PLJ 2001 Judgments

PLJ 2001 Karachi 1

[Sukkur Bench]

i Present: MUHAMMAD ROSHAN ESSANI AND

muhammad ashraf leghari, JJ.

MUHAMMAD ASLAM--Petitioner

versus

INCHARGE N.L.C. CENTRE, KHAIRPUR-Respondent C.P. No. D-87/1998, and C.M.A. 281 of 1998, decided on 4.10.2000. Constitution of Pakistan (1973)--

—-Art. 199(3)»Pakistan Army Act, 1952--Ss. 5 & 7-Jurisdiction of High court provide remedy against National Logistic Cell-Notional Logistic cell being managed and controlled by Pakistan Army, provisions of Sections 5 and 7 of Pakistan Army Act, 1952 have been made applicable thereto-Art. 199(3) of the Constitution oust jurisdiction of High Court in > mattes which were governed by Pakistan Army Act, 1952, therefore, constitutional petition before High Court being corum non-judice was not maintainable--Petitioner, however, could exhaust his remedy before proper forum provided under the law. [Pp. 6, 7 & 9] A, B & C

1996 SCMR 1614; PLD 1987 SC 490; 1996 MLD 469; PLD 1996 S_C 632; PLD 1999 SC 504; 1994 SCMR 2286; 1999 SCMR 664 ref.

Mr. Sardar Akbar F. Ujjan, Advocate for Petitioner. Mr. Abdul RaufKhan, Advocate for Respondents Nos. 1 & 2. Sheikh Abdul Ghani, D.A.G. and Mr. Zawar Hussain Jafferi, Addl. A.G. on Court Notice.

Date of hearing: 4.10.2000.

judgment

Muhammad Roshan Essani, J.--By this Constitutional petition, the petitioner Muhammad Aslam Arain has sought the following relief :--

(a) That this Honourable Court may be pleased to declare that the act of the Respondent No. 1 and his subordinate drivers of their trailer by removing the trailer and truck of the petitioner, without lodging FIR at the police station of the local jurisdiction and subsequently detaining of the truk of the petitioner at their centre at Khairpur and demand of an amount of Rs. 1,00,000/- from the petitioner for release of truck is illegal, void, without lawful authority, without jurisdiction, arbitrary, capricious, whimsical and in violation of law and Constitution as the Respondent No. 1 cannot take law into his own hands and become Judge of his own cause. The act of the Respondent No. 1, is also malafieous and of ulterior motive so as to illegally save his subordinate drivers from legal punishment and damages caused by their negligent driving.

(b) That this Honourable Court be also pleased to order the Respondent No. 1 to produce the truck of the petitioner bearing Registration No. MRA 1823 detained by him at their centre at Khairpur, in this Honourable Court, to be dealt with according to law and returned to the petitioner.

(c) Costs of the petition be awarded to the petitioner.

(d) Any other relief deemed fit in the circumstances of the case be also awarded to the petitioner."

The brief facts of the case as disclosed by the petitioner in the petition are that he was employed as driver on truck Bearing No. MRA-1823. He used to transport chalf from Kandiaro to Karachi. The Respondent No. 1 is incharge of N.L.C. Centre established by the Respondent No. 2 at Khairpur which is working under the Ministry of Defence, Government of Pakistan, Islamabad. The Respondent No. 2 is operating transport The employees of the Respondent No. 2 are retired Army personnel and they used to wear army dress. The Respondent No. 1 looks-after the affairs as incharge of the drivers at Khairpur. On 25.1.1998 at about 5.00 p.m. the petitioner was going to Karachi and when he covered few miles distance from Kandiaro town, a guny bag containing the chalf was detached and chalf fell on the ground. The petitioner parked the truck by the side of the road and went to Bhiria for bringing labourers. One Muhammad Baladi was left behind at the truck. At about 11.00 p.m. petitioner brought the labourers at the site but he found his truck missing. The petitioner remained in search of the truck but could not get any due. On 26.1.1998 Muhammad Baladi went to the petitioner and informed him that while he was sitting in the truck, two trailers coming from opposite direction while over-taking collided with the struck of the petitioner. The cars were loaded on the trailers of National Logistic Cell. The driver of the trailer stopped the trailer and two persons who were in army uniform went to the petitioner and enquired from him as to why he parked the truck. He disclosed the reason but they informed him that damage has been caused to the cars loaded in the truck, therefore, they are taking the truck to their Centre situated at Khairpur. The person by name Muhammad informed them that he was not the driver and had no authority to remove the truck whereupon they got annoyed and misbehaved with him. They forcibly took away the truck to N.L.C. Centre, Khairpur. In the morning, the said Muhammad was produced before the Respondent No. 1 who released him with the direction to bring the petitioner. The petitioner on hearing this, accompanied Muhammad and his friend Amjad Ali Arian and went to Respondent No. 1. The Respondent No. 1 informed the petitioner that some damage was caused to the vehicles loaded in the trailer of the Respondent No. 1, therefore, petitioner should pay an amount of Rs. 1,00,000/- to him otherwise the truck impugned by them would not be released. The petitioner declined to do so and informed him that the incident occurred due to the fault of the driver of the trailer belonging to National Logistic Cell. The Respondent No. 1 paid no heed to the constant requests of the petitioner and refused to release the truck. The petitioner approached the Kandiaro police but they refused to intervene in the matter. Pursuant to the notice of this Court, the respondents filed the comments wherein they have, at the very outset, challenged the maintainability of the petition. We have heard Mr. Sardar Akbar F. Ujjan, learned counsel for the petitioners, Mr. Major (R) Abdul Rauf Khan, Headquarters Field Commander, on behalf of the respondents. Mr. Shaikh Abdul Ghani learned Deputy Attorney General and Mr. Zawar Hussain Jafferi, learned Additional Advocate General on Court notice. The latter both the learned counsel have adopted the arguments advanced by the learned counsel for the respondents.

We have also perused the material placed on the record.

It will be pertinent to reproduce herein below Article 199 clause (3) of the Constitution of Islamic Republic of Pakistan for the sake of convenience :--

"199. Jurisdiction of High Court.--(l) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--

(a) on the application of any aggrieved party, make an order-

(i).........................................................................................

(ii).........................................................................................

(b) .............................................................................................

(2) .............................................................................................

(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Force of Pakistan , or who is for the time being subject to any law relating to any of those Forces, in respect of bia terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a „. person subject to such law.

The perusal of clause (3) of the Article 199 of the Constitution is to be read in conjunction with clause (1) of Article 199 with envisages that no order shall be made under clause (1) of the Article 199, in relation to a person who is a member of the Armed Forces of Pakistan or is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, or in respect of any matter arising out of the service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.

(Underlining is ours)

The learned counsel for the petitioner at the very out set while arguing the case, has challenged the status of the National Logistic Cell (NLC). He has contended that National Logistic Cell (NLC) is not governed by the Army Act, thus any action taken by the personnels of National Logistic Cell (NLC) is not covered by Article 199 clause (3) of the Constitution and to be declared as unlawful in writ jurisdiction. He has further contended that the Respondent No. 1 is not an Army personnel and Section 279 P.P.C. is not included in the Schedule, therefore, it goes out of the ambit of Army Act.

In order to arrive at a just decision of the case, it will be essential to vglance over the idea of the creation of the National Logistic Cell (NLC), its aims, objects, facts involved in the case and the provisions of the Constitution.

The perusal of material placed on record shows that Government of Pakistan constituted National Logistic Board consisting of Secretary, Finance Division, Secretary, Planning and Development Division and Quartermaster General, General Headquarters for the management of transportation/projects/work, entrusted to the Board from time to time. The Quartermaster General, General Headquarters was not only appointed as member but also to act as Secretary of the National Logistic Cell. In this context, it will be pertinent to reproduce herein below the notification issued by the Government of Pakistan, in extenso :--

"Government of Pakistan

CABINET SECRETARIAT

(Cabinet Division)

NOTIFICATION

Rawalpindi, the 12th August, 1978

No. 120/19/78-Min.--The Government of Pakistan is pleased to constitute National Logistic Board consisting of the following for the management of transportation/projects/work entrusted to the Board from time to time :--

(1) Secretary, Finance Division Chairman

(2) Secretary, Planning and Development Division Member

(3) Quartermaster General, General Headquarters. Member/

Secretary

1. The Board may co-opt any other member as and when considered necessary.

2. The terms of reference of the Board shall be as follows :--

(a) Transportation by all available means i.e. by hired ' mechanical transport, civil general transport, through contractors, trucks, railways, etc, the stores or commodities whose transportation is entrusted by Govern­ment to the National Logistic Board from one station/ location to any other place/station/location, their loading and unloading; and entering into contracts for the same.

(b) Procurement of such transport trucks/equipment/spares etc. from within the country or abroad and its maintenance and repair.

(c) Building of truck bodies on chassis of various maker.

(d) Raising of such organization that may be necessary efficient performance of the mission assigned to the Board. Engaging staff and labour and making payments to them for their services or affording any other facilitates to them on terms and conditions commensurate with the work/ responsibilities entrusted to them.

(f) Hiring of any storage office, residential and any other type of accommodation.

(g) Engaging local and foreign consultants or contractors subject to the normal rules.

1. The functioning of this Board will be through a National Logistic Cell for day to day working headed by the Quartermaster General."

By Special Pakistan Army order dated 5.3.1979, promulgated by the Chief of the Army Staff, the National Logistic Board was reconstituted and the functions of the National Logistic Cell to be carried out were denned in the Notification., The same is reproduced herein below :--

"Creation of National Logistic Board.

Undjer the authority of Government of Pakistan, Cabinet Secretariat (Cabinet Division Letter No. 120/19/78-Min dated 12th August, 1978, sanction of the President was accorded to the creation of National Logistic Board (NLB). The Constitution of the NLB is as under :--

(1) Secretary, Finance Division, Islamabad Chairman

(2) Secretary, Planning and Development Division, Islamabad Member

(3) Quartermaster General, GHQ, Rawalpindi Member/

Secretary

The day to day working of the Board would be through the National Logistic CelMNLC) headed by the Quartermaster General, NLC would undertake any functions assigned to it by the Government It will ensure the expeditious despatch of all essential commodities throughout the country."

The persual of the above notification reveals that the persons acting in the National Logistic Cell are subject to Pakistan Army Act, 1952.

The Federal Government is competent to make applicable the provisions of Pakistan Army Act, 1952 by notification. In this context the Sections 5 and 7 of the Pakistan Army Act, 1952, are reproduced herein below :-

"5. POWERS TO APPLY ACT TO CERTAIN FORCES UNDER THE FEDERAL GOVERNMENT.-(l) The Federal Government may, by notification, apply all or any provisions of this Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government."

6...................................................

"7. POWER TO DECLARE PERSONS TO BE ON ACTIVE SERVICE.--Notwith3tanding anything contain in Clause (1) of Section 8, the Federal Government may by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act."

The Section 2 of Pakistan Army Act 1952 lays down that the force would be governed by the provisions of Pakistan Army Act, 1952.

The copy of warrant "A" issued by the Chief of Army Staff to the Director General, National Logistic Cell (NLC) shows that the latter was directed by the former to convene and confirm the proceedings of General Court Martial.

The plaint reading of the above provisions of law dearly shows that the present petition before this forum is corum non judicie.

In the case of Force Commander, Airport Security Force Karachi And Others V. Haji Muhammad Rashidand another (1996 S.C.M.R 1614), it was observed by the apexCourt at page 1629 as under :--

"It may be stated that sub-section (1) of Section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas sub-section (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of person employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of person subject to the Army act under Clause (c) of sub-section (1) of Section 2. It may also be pointed out that sub­section (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction, powers or duties incidental to the operation of these provisions shall be exercised or performed in respect of that force and may suspend the operation of any other enactment for the time being applicable to that force In the case of Dr. Aon Muhammad Khan v. Lt. Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490), it was observed at page 493 as under:--

(xiii) 1978-85. Chief Executive and then, from 1981 onward, Chairman, National Logistics Cell. This appointment was held by the answering respondent in addition to his duties on Q.M.G. The answering respondent created the National Logistics Cell (NLC). He did so in pursuance of a directive received by him on 23.7.1978. By 6.8.1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet The NLC successfully undertook the re­organization of Karachi Port so as to clear 2 million tons of wheat through this port in between October, 1978 and April, 1979. The NLC moved this wheat from Karachi to the remotest corners of the country. During the last 7 years the NLC has organized the Karachi Port, built and rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150,000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, moved crude oil from the oil fields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities, reorganized the Lahore Dry Port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways."

Again in the same citation at page 500, the word "Logistics" has been defined as under :--

"The word logistics" according to the Chambers Twentieth Century Dictionary means "the art of movement and supply of troops". This necessarily involves the management, operation and control of mechanically propelled vehicles. Therefore, logistics apparently is an allied field with the automobile engineering."

In an unreported C.P. No. 2502/1995, the legal status of National Logistic Cell (NLC) was determined by a Division Bench of this Court and it was observed that the entire set up of National Logistic Cell (NLC) is controlled by Army Officer. The Establishment is neither commercial nor industrial. The civil man-power working in National Logistic Cell (NLC) is incidentally connected with the Armed Forces.

In the case of Brigade Commander Headquarters field command, NLC, Karachi v. The State (1996 MLD 469), it was observed that the trial of the Army Personnel could only be held by the Military Court

In the case of Mrs. Shahida ZahirAbbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632) it was observed that

under Article 199(3), the jurisdiction of High Court is barred and it cannot superintendent the affairs of the Armed Forces.

In the case of Sh. Liaqat Hussain and others v. Federation of Pakistan and others (PLD 1999 SC 504), it was observed that civil offences committed by civilians having nexus with the Armed Forces are triable by the Military Courts.

In the case of Muhammad Mushtaq v. Federation of Pakistan (1994 S.C.M.R. 2286), it was observed that under Article 199 for grant of relief under sub-Article (1) thereof the relief regarding fundamental rights is included in Sub-Article (1) is clearly barred under Article 199(3) with reference to Sub-Article (1) thereof, therefore, High Court has no jurisdiction in such-matters.

The decision of Apex Court in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another (1999 S.C.M.R. 664) relief upon by the learned counsel for the petitioner is of no avail to the petitioner as it also supports the contention of the respondents.

The up-shot of the above discussion is that the petition is not maintainable and is misconceived. Consequently, it stands dismissed alongwith listed application, with no order as to costs. However, the petitioner may exhaust his remedy before the proper forum provided under law.

(AA) Petition dismissed.

PLJ 2001 Karachi 9

[Circuit Bench at Larkana]

Present: anwar zaheer jamali, J.

MUHAMMAD AKRAM alias AKAN-Applicant

versus

Mst. PATHANI etc.~Respondents C.R. Application No. 20 of 1999, decided on 18.9.2000.

Specific Relief Act, 1877 (I of 1877)--

—S. 12~Civil Procedure Code, 1908 (V of 1908), S. 115-Plaintiff s suit for specific performance of agreement to sell was dismissed by Trial Court as also by the Appellate Court-Validity-Plaintiff himself being a necessary witness did not appear in Court as his own witness-Concurrent judgment and decree of Courts below was based on appreciation of evidence and nothing was pointed out to suggest non-consideration of evidence or misreading or non-reading of evidence-Plaintiff in order to succeed was required to prove assertions of his plaint but instead of proving his own case he pointed out weaknesses of plaintiffs case which would not entitled him to succeed-Agreement to sell was to be executed by specific date on which registration was to be effected but plaintiff did not take steps for registration of agreement-Suit was filed beyond period of limitation and he could not point out justification for filing the same beyond period of limitation-- Judgments and decrees of Courts below were affirmed in circumstances. [Pp. 14 & 15] A, B C & D

Mr. Moohanlal K Makhyani, Advocate for Applicant. Mr. RehmatAli Rqjput, Advocate for Respondents. Mr. G.A. Shahani, Addl. A.G. for Official Respondents. Date of hearing: 18.9.2000.

judgment

Through this Civil Revision Application under Section 115 C.P.C. the applicant has impugned the judgment and decree dated 4.4.1998 and 11.4.1998 passed by IV-Senior Civil Judge, Larkana, whereby suit for specific performance of contract and injunction filed by the applicant was dismissed and also the judgment and decree dated 25.6.1999 and dated 30.6.1999 passed by the I-Additional District Judge, Larkana whereby he dismissed the appeal of the applicant and maintained the judgment and decree passed by the lower Court.

1. Facts leading to this litigation, as stated in the plaint of F.C. Suit No. 12/96, are that one Sikandar Ali, the predecessor-in-interest of the Respondent No. 1 (a) to l(d) was granted S. No. 47/1 (Area 4-21 Acres) in Deh Dhori Mubarak, Taluka Miro Khan (hereinafter referred as suit land) on full rate conditions, A. Form was issued in his favour and non-payment of full installments of the suit land same was mutated in his favour in the revenue record videentry No. 132 dated 10.11.1976. During the year 1985 Sikandar Ali leased out installment land to the plaintiff for a period of four years and accordingly possession was handedover to him. In the year 1987 Sikandar Ali intended to sell the suit land and made such offer to the plaintiff which was accepted by him. According to the mutually agreed terms and conditions, out of lease money paid earlier by the plaintiff, Rs. 17600/-were adjusted towards sale consideration of the suit land and the plaintiff further paid a sum of Rs. 46400/- i.e. in all Rs. 66.000/- to Sikandar Ali and entered into a written agreement of sale with him on 23.4.1987 which was duly attested by Notory Public. In the said agreement it was mentioned that on payment of remaining amount of Rs. 15,000/- and completion of documents registered deed will be executed by 30.6.1988. After the death of Sikandar Ali, the plaintiff approached his legal heirs several times but all in vain. Not only this but legal heirs of Sikandar Ali adopted coercively methods to dis-possess the plaintiff from the suit land, giving cause of action to the plaintiff for filing of present suit for specific performance of contract and perpetual injunction. In the suit the plaintiff also joined official respondents as party as they threatened to forcibly dispossess him from the suit land.

2. The legal heirs of Sikandar All, in their written statement admitted grant of a 4 years lease to the plaintiff from 1985 to 1988 and stated that after completing the said period of lease the possession of the plaintiff over the suit land was that of their hari, as they are the Zamindars and owners of the suit land. The private defendants/respondents categorically denied the existence of execution of any agreement of sale between the plaintiff and their predecessor-in-interest, Sikandar Ali, and further stated that said Sikandar Ali died on 3.2.1986 and therefore there was no question of execution of any agreement of sale with him on 23.4.1987 or payment of any sale consideration amount to him. The challenge the sale agreement as forged and fabricated document.

3. From the above pleadings of the parties lower Court framed following five issues in the suit.

4. Whether the alleged agreement of sale dated 23.4.1987 is false, bogus and managed document and what its effect ?

5. Whether the suit land in question was leased out by the defendant Sikandar Ah' to the plaintiff for a 4 years period from 1985 to 1988 and on completion of the lease period the defendant was entitled for its possession ?

6. Whether the plaintiff is entitled for the relief sought by him ?

7. Whether the suit is not maintainable ?

8. What should the decree be ?

9. At the stage of evidence from the side of plaintiff, the plaintiff examined his son and attorney Mumtaz as Ex. 49, who produced various documents as Ex. 50 to Ex. 61. The plaintiff also examined another witness Muhammad Ibrahim as Ex. 66 and thereafter closed his side for evidence vide statement dated 16.8.1998 as Ex. 67. From the side of private defendants one Abdul Ghafoor appeared in the witness-Box as attorney of the defendant No. 1 (a). This witness produced general power of attorney as Ex. 69, attested copy of the death certificate of deceased Sikandar Ali as Ex. 70 and thereafter side for evidence of the private defendants was closed videstatement dated 20.3.1989 as Ex. 71.

10. The lower Court after hearing the arguments of the learned counsel for the parties answered Issues Nos. 1 and 4 in affirmative, Issue No. 3 in negative and on the basis of such findings dismissed the suit of the 'present applicant/plaintiff.

11. Appeal preferred by the applicant against the judgment and decree of the lower Court being Civil Appeal No. 52/98 also met with the same fate and was dismissed by the Court of learned I, Additional District Judge, Larkana vide its Judgment and decree dated 25.6.1999 and 30.6.1999. Such concurrent findings of facts recorded by the two Courts below have 1)een impugned by the applicant in the present revision application.

12. Mr. Moohanlal K. Makhijani Advocate for the applicant in his arguments mainly contended that the two Courts below mis-read the evidence led by the parties in the suit as a result of which the suit filed by the applicant was illegal dismissed. Learned counsel further contended that in their pleadings the private respondents did not raise any plea of limitation and therefore no issue of limitation was framed in the suit but the lower Court at the time of passing the judgment illegally held the suit as time bared. In support of his contention on the point of limitation, that in-spite of the fact that some specific date was fixed in the agreement of sale viz. 30.6.1988 but still the period of limitation would not commence from such date and that suit instituted on 28.3.1996 was within time, learned counsel placed reliance upon the cases reported as Mst. Munawar Bibi v. Mst. Meheen Quddusi (1986 CLC 1887) and Messrs Tanzeem Overseas v. Mst. Zainab Bai and another (PLD 1965 W.P. Karachi, 274). On the legal point that if a plea has not been raised by a party in his pleading same cannot be made basis for deciding a suit. Learned counsel placed his reliance on the case of Abdul Haftz and another v. Muzaffar Karim (PLD 1973 Karachi 253). Referring to the death certificate Ex. 70 produced by the private respondents, learned counsel contended that this was an in-admissible piece of evidence and therefore any findings based on such document are liable to be set aside in revision, being unwarranted by law. With reference to this contention learned counsel placed his reliance on the case of Muhammad Hussain v. Abdul Razzaq and another (1970 SCMR 506).

13. On the other hand Mr. Rehmat All Rajput learned counsel for the private respondents strongly controverted submissions of Mr. Moohanlal and that through this case a poor illiterate widow and her minor children were fraudulently and dishonestly dragged into litigation by the applicant Learned counsel contended that it is clearly established from the oral as well as documentary evidence produced by the respondents that Sikandar All expired on 3.2.1986 and in such circumstances alleged execution of agreement of sale dated 23.4.1987 was a complete fraud practiced by the applicant Learned counsel further contended that non-appearance of applicant himself in the witnesses-box was fatal to his case and appearance of his son, who was not even present at the time of alleged execution of agreement of sale dated 23.4.1987, as witness was of no consequence. In this regard learned counsel placed his reliance on the case of Muhammad Rafique v. Muhammad (1989 CLC 318). Referring to the evidence of other alleged attesting witness of Ex. 52 viz. Muhammad Ibrahim, learned counsel contended that from the evidence of this witness it is proved beyond doubt that this witness was totally ignorant of any such agreement as according to him the agreement Ex. 52 was executed and attested before the Mukhtiarkar Mirokhan while the perusal of agreement Ex. 52 shows that it was only attested by a Notary Public. Referring to the contents of this document learned counsel also contended that at three places where round seal of the Notary Public has been affixed on this agreement, the date of attestation is shown 23.7.1987 while under the signature of the attesting Notary so also

under the alleged signatures of some counsel identifying the parties the date is mentioned as 23.4.1987. All these facts are more than sufficient to show the fraudulent and forged nature of document Ex. 52. The learned counsel lastly referred cases reported as Muhammad Bux v. Muhammad Ali (1984 S.C.M.R. 504); Abdul Hakeem v. Habibullah and 11 others (1997 S.C.M.R. 1139) and Anwar Zaman & 5 others v. Bahadur Sher & others (2000 S.C.M.R. 431) to fortify his submission that concurrent findings of facts recorded by the two Courts cannot be disturbed in revisional jurisdiction, unless it is shown the same suffer from misreading of evidence, jurisdictional defect or some patent illegality or irregularity and mere fact that on the assessment of evidence led by the parties before lower Court, the revisional Court could arrive at some other conclusion would not justify exercise of revisional powers to interfere with such concurrent findings. The learned counsel therefore urged for dismissal of this revision application with special cost

1. Mr. GA Shahani, learned Additional A.G. representing the official respondents in this case, at the outset stated that since no Government interest is involved in this case therefore the official respondents are not interested in contesting this matter. In this regard, learned Additional A.G. also placed on record a statement in writing signed by the Respondent No. 2.

2. I have carefully considered the arguments advanced before me, perused the material placed on record and with the assistance of learned counsel also gone through the evidence led by the parties before the lower Court.

3. It is an admitted position that in the year 1985 a lease agreement was executed between the applicant and Sikandar Ali, the predecessor-in-interest of the private respondents and at that time possession of the suit land was delivered to the applicant Therefore for the first time on filing of this suit on 28.3.1996 the applicant came forward with the claim of existence of an agreement of sale in his favour allegedly executed by the predecessor-in-interest of the private respondents on 23.4.1987 in respect of the same land which was already on lease with him. In this background of the matter the whole claim of the applicant subject matter of the suit hinged upon the proof of execution of agreement dated 23.4.1986 (Ex. 52) purportedly executed by Sikandar Ali in his favour. This assertion of the applicant was not only strongly denied by the legal heirs of Sikandar Ali in their written statement on the ground that such agreement was a forged and fabricated document but they had gone one step further by taking the plea that their predecessor-in-interest, Sikandar Ali, had expired on 3.2.1986 i.e. more than one year before the date of alleged execution of agreement of sale dated 23.4.1987. However, in the instant case to prove the execution of agreement of sale (Ex. 52), at the stage of evidence the applicant even did not care to enter into the witness-box to depose about the relevant facts in this regard. While Mumtaz Ah the son of the applicant who deposed on behalf of applicant as his attorney in this case was admittedly a boy of tender age at the time of alleged execution of agreement Ex. 52 and he in his evidence did not utter a single word to show that the execution of Ex. 52 took place in his presence. Thus, the evidence of witness Mumtaz Ali was also of no help to prove the execution of Ex. 52 being heresay evidence. I have no hesitation to observe that in the given facts and circumstances, non-appearance of a applicant in the witness box was fatal to his case. This view of the matter is forfeited from the judgment of a Division Bench of this Court in the case of Muhammad Rafique v. Muhammad (1989 CLC 1318). Relevant observations read as follows :—

"The appellant was a necessary witness to throw light about the transaction pleaded by him. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case." (also see P.L.D. 1982 S.C. (AJ&K) 76).

1. Coming to the evidence of applicant's other witness Muhammad Ibrahim who claimed himself to be the attesting witness of Ex. 52 it may be mentioned that during his evidence this witness was neither shown/confronted with document Ex. 52 nor he deposed anything about the alleged signatures of the parties over it or even about his own signature on this document. Not only this but in his cross-examination he gave replies to the questions put to him in such a manner that leaves no room of doubt to hold that he had no knowledge about the execution of Ex. 52. Besides, on perusal of contents of Ex. 52 the shortcomings in this document as highlighted by Mr. Rehmat Ali are also clearly visible.

2. From the above discussion I am of the view that the applicant miserably failed to prove the execution of Ex. 52 and the findings of facts recorded by the two Courts below in this regard against the applicant are thus based on proper appreciation of evidence. Learned counsel for applicant also failed to show any misreading of evidence or any jurisdictional defect in the judgments of the two Courts below challenged in this revision. Following the dicta laid down in the reported cases Muhammad Bakhsh v. Muhammad Ali (1984 S.C.M.R. 504); Abdul Hakeem v. Habibullah and 11 others (1997 S.C.M.R. 1139) and Anwar Zaman & 5 others v. Bahadur Sher & others (2000 S.C.M.R. 431) this revision application is liable to be dismissed on this score alone.

3. During the course of arguments Mr. Mohan Lai, learned counsel for the applicant, attempted to show some superficial deficiencies in the case of private respondents, specially with reference to the death certificate Ex. 70. In this context, it may be observed that not only the private respondents produced in their evidence such death certificate issued by the Chairman Union Council Bahram but their witness Abdul Ghafoor who was the real brother of the deceased also categorically deposed about the death of his brother Sikandar Ali in the year 1986. Admittedly the applicant was stranger to the family of the deceased and in such circumstances a mere denial of such fact by him was not sufficient to dislodge the plea of the private respondents about the death of their predecessor Sikandar Ah\ on 3.2.1986. In addition to this. It may be observed that by now it is well settled legal position that a party approaching the Court for seeking some relief has to stand on his own legs and any weakness in the case of otherside, would neither improve his case nor he will be entitled for any relief on that basis. If any case law is needed, reference may be made to the following decisions of the Hon'ble Supreme Court of Pakistan Sudkangshu Bimal Biswas v. MD. Mustafa Chowdhary (1968 S.C.M.R. 213 and MD. Anwarullah Mazumdar v. Tamina Bibi & Bothers (1971 S.C.M.R. 94).

4. Lastly coming to the question of limitation, with reference to the findings of two Courts below on Issue No. 4 it may be observed that Section 3 of the Limitation Act casts a duty upon the Court to examine the question of limitation irrespective of the fact whether such plea was raised by a party in his pleadings or not. In the present case if the contents of the agreement of sale Ex. 52 are examined then it will be seen that in the said agreement it was clearly mentioned that the registration of deed would be effected till 30th June 1988. For the purpose of limitation, a suit for specific performance of contract is governed by Article 113 of the Limitation Act which provides three years period of limitation for such suits to the computed form the date fixed for performance in the agreement as in the instant case. Thus from the material available on record it is evident that suit when instituted on 28.3.1996 was clearly time-barred.

5. For the foregoing reasons this revision application was found without substance and was accordingly dismissed with costs by short order dated 18.9.2000.

(A.P.) Revision dismissed.

PLJ 2001 Karachi 15

[Circuit Bench at Larkana]

Present .-muhammad ashraf leghari, J.

Mst. AZIZ KHATOON and 7 others-Petitioners

versus

LUDHARAM and 7 others-Respondents

Civil Revision No. 4 of 1997, heard on 25.5.2000.

Land Revenue Act, 1967 (XVII of 1967)--

—-S. 53-Civil Procedure Code, 1908 (V of 1908), S. 115-Qamm-e-Shahadat Order (10 of 1984), Art. 100-Revision against concurrent judgments of Courts below-Registered sale-deed dated 27.4.1926 was challenged in 1984 i.e. about 58 years after its registration-Petitioners (defendants) neither challenged sale by their predecessor effected in 1926 nor subsequent gift made by vendee in favour of plaintiffs-Documents of sale deed and gift being more than 30 years old, genuineness thereof, could not be doubted-Possession of property in question, was admittedly with plaintiffs-Courts below had thrashed out all entries in revenue record—Subsequently change in entries in favour of defendant, in collusion with revenue staff was, however, subservient to registered document—Scope of revision being very limited, defendants had not been able to point out any mis-appreciation of evidence or misreading of the same-Impugned judgment need, no interference and the same was maintained. [Pp. 17 & 18] A & B

Mr. All Ahmad Qureshi, Advocate for Petitioners. Mr. Lachhmandas, Advocate for Respondents Nos. 1 to 4. Mr. Alt Azhar Tunio,Asstt. A.G. for Respondents Nos. 5 to 8. Date of hearing: 25.5.2000.

judgment

This Civil Revision is directed against the impugned judgment and decree dated 4.12.1996 and 5.12.1996 respectively passed by IVth-Additional District Judge, Dadu in Civil Appeal No. 18 of 1992 whereby he dismissed the appeal filed by applicants and upheld the judgment and decree passed by Senior Civil Judge, Mehar in Suit No. 19/985 re : Ludha Ram & others v. Government ofSindh and others.

1. The brief facts giving rise to this civil revision are that one Hoondomal father of Respondents Nos. 1 to 4 had purchased agricultural land Bearing S. Nos. 122 to 125 of deh Charo and S. Nos. 137,138, 145,149 and 150 of deh Nath, Taluka Mehar from one Ghulam Muhammad through registered sale-deed in the year 1926 and the possession thereof was delivered to him. The said Hoondomal gifted the aforesaid landed property to his son Ludharam under MLR 64 and since then Ludharam remained in possession of the property. Some how, the applicants in collusions with revenue staff managed certain entries in their favour, hence Respondent No. 1 submitted an application to the Deputy Commissioner (Defendant No. 6) for changing the said entry. The D.C. passed an order to the effect that Ghulam Muhammad was entitled to 5 annas and 4 paisas share in the suit land and the remaining share belonged to Khanzadi and Muhammad. The Respondents Nos. 1 to 4, thereafter filed suit stating that they were being forcibly dispossessed by the applicants and further raised a plea tht Ghulam Muhammad who was the sole owner of entire property and rightly sold the

property to the father of Respondents Nos. 1 to 4. the applicants had no legal

right and they did not challenge the sale by Ghulam Muhammad in favour of

father of Respondents Nos. 1 to 4.

1. The applicants were defendants in the suit, they filed their

written statements pleading therein that the vendor Ghulam Muhammad owned share of property to the extent of 5 annas and 4paies and that he had no right to sale the entire property to Hoondomal. It was stated that the subsequent gift made by Hoondomal in favour of Ludharam was of no legal effect.

1. The parties adduced their evidence, and ultimately the learned trial Court decreed the suit filed by Respondents Nos. 1 to 4. The applicants impugned the said judgment and decree filed in Civil Appeal No. 37/1989 before the Court of District Judge, Dadu. The learned Appellate Court remanded the suit back to trial Court to examine the revenue authorities and give its decision afresh. The trial Court again decreed the suit of the Respondents Nos. 1 to 4 on 26.10.1992. The applicants again impugned the said judgment and decree in Civil Appeal No. 18 of 1992, which was ultimately heard and dismissed by IVth: Additional District Judge, Dadu on 5.12.1996. The said judgment and decree is impugned here in this civil revision.

2. It is contended by Mr. All Ahmed Qureshi learned counsel for the applicants that the sale of suit property by Ghulam Muhammad was not valid as the entire property was not belonging to him and, therefore, he had no right to dispose of the entire property by way of registered sale-deed. The next point which he argued before me is the gift made by Hoondomal in favour of his son Ludharam in the year 1957. It is stated that gift was not in accordance with the provisions of Hindu Law and the gift under Section 356 of Hindu Law is necessarily to be registered but according to learned counsel it was oral which had no value in the eye of law.

3. It is argued by Mr. Lachhmandas learned counsel for the respondents that the property was sold by Ghulam Muhammad in the year 1926 through registered sale-deed and the said sale-deed was not challenged by the applicants. It is argued that thereafter Hoondomal gifted the suit property to his son Ludharam in the year 1957, but the applicants did not challenge the said gift also. The property is in possession of Respondents Nos. 1 to 4 since long. The issue in regard to the possession of suit property was decided by two Courts below in favour of Respondents Nos. 1 to 4. It is pleaded that the points in regard to sale by Ghulam Muhammad in favour of Hoondomal and the gift made by Hoondomal in favour of Ludha Ram in the year 1957 has been dealt with very correctly on the basis of evidence adduced by the parties. The reference is made to PLD 1968 SC 241 and PLD 1987 Revenue Sindh 25.

4. Mr. All Azhar Tunio, learned Assistant A-G has adopted the arguments of the learned counsel for the Respondents Nos. 1 o 4 and has supported the impugned judgments and decree of two Courts below.

5. The perusal of record reveals that the suit property was sold by Ghulam Muhammad through registered sale-deed dated 27.4.1926 in favour of Hoondomal and handed over possession to vendee. The said Hoondomal in the year 1957 gifted the entire property to his son Ludha Ram and since then Respondent No. 1 is in possession thereof. The applicants neither challenged the sale by Ghulam Muhammad nor the gift made by Hoondomal in favour of Ludha Ram. The documents are more than 30 years old and under Article 100 of Qanoon-e-Shahadat Order 1984, its genuineness cannot be doubted. Reference can be made to a case ofJekamdas & another v. Abdul Nabi (PLD 1968 SC 241). The possession of the suit property is admittedly with the Respondents Nos. 1 to 4. The suit property is entered in revenue record in his name. The Respondents Nos. 1 to 4 are paying land revenue to the Government. The aforesaid points have been discussed and thrashed out by the two Courts below in details. No doubt Deputy Commissioner, Dadu in the year 1984 held that Ghulam Muhammad was owner to the extent of 0-5-4 but the entries are sub-servient to the registered document and then the old entries, registered documents and the intricate questions of facts and law are not to be decided summarily by revenue authorities. The Deputy Commissioner was not competent to upset the document in the year 1984 •which was registered about 58 years ago. The possession of Respondent No. 1 is established by document Ex.68. This is a letter issued by Mukhtiarkar, Mehar, to Deputy Commissioner, Dadu, intimating him that suit land was gifted by Hondo Mai to Respondent No. 1 in accordance with MLR 64 and since then, it is in his possession and is paying land revenue.

The case law cited by the learned counsel for the respondents is applicable to the facts and circumstances of the case in hand. The scope of civil revision is very limited and learned counsel for the applicants has not been able to point out any mis-appreciation of evidence or mis-reading of the same. The impugned judgment needs no interference, hence this civil revision is dismissed in limine with no order as to costs.

(A.A.) Revision dismissed.

PLJ 2001 Karachi 18

[Circuit Bench Larkana]

Present: MUHAMMAD ASHRAF LEGHARI, J. HAFEEZ ULLAH-Appellant

versus SUHAIL MAHMOOD and 8 others-Respondents

F.R.A. No. 9 of 2000, heard on 1.6.2000.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 21-Appeal against ejectment-Default in payment of rent was proved against appellant as also respondent's bona fide personal need was established on record-Validity-Respondent's evidence for non-payment of rent by appellant was not controverted by any proof on behalf of appellant-Counsel for appellant had admitted in Court that they were not paying any rent at present to respondents-Requirement of premises by respondent was established on record and no evidence in rebuttal was produced by tenant-Respondent's both pleas for ejectment of tenant i.e., plea of default in payment of rent and plea of his personal bonafideneed were proved by evidence-Appellant was thus not entitled to relief and his appeal against ejectment was dismissed being not maintainable.

[Pp. 20 & 21] A, B

Mr. Noor Muhammad Soomro, Advocate for Appellant. Date of hearing: 1.6.2000.

judgment

Impugned in this first rent appeal is the order dated 29.4.2000 passed by First Rent Controller Shikarpur, whereby the ejectment application filed by the respondents was allowed and the appellant was directed to hand over the vacant possession of the disputed premises within one month to the respondents.

The brief facts stated in the ejectment application are that the disputed property was allotted to the father of respondents by Deputy Settlement Commissioner on 23.4.1960 in an open auction. The record was mutated in city survey in the name of their father Sikandar All. The property was then gifted by him to his sister Mst. Razia on 15.6.1974 and the same was exchanged vide R.D. No. 803 dated 26.9.1991 and the said premises were mutated in the name of deceased on 23.12.1991. It is asserted in the ejectment application that premises in question was rented out by the father of the respondents to appellant on 1.3.1995 at the rate of Rs. 2000.00 per month by an oral agreement The father of respondents died in June, 1995 and left behind the respondents as his legal heirs. It is stated that after the death of their father, the appellant stopped paying rent to them and committed default since August, 1995. The appellant filed a Suit No. 22/1997 in the Court of Civil Judge Shikarpur against Respondent No. 9 wherein he prayed that he should not be dispossessed from the premises by the defendant. The said suit was withdrawn, after the Respondent No. 9 made a statement to the effect that appellant shall not be dispossessed from the premises without due course of law. The relationship of land lord and tenant was not denied by the appellant and the appellant was not paying the rent fixed at the alleged rate of Rs. 900.00 as asserted by him. The respondents demanded rent from August, 1995 at the rate of Rs. 2000.00 and claimed the arrears for the last three years from the date of filing the ejectment application. It was further asserted in the application that the respondents required the premises in question for their personal bona fide use as the Respondents Nos. 2 to 3 were married and the remaining respondents were also grown up.

The appellant after service submitted his written reply wherein he stated that the disputed house was rented out to him by the father of

respondents in the year 1990 and he paid Rs. 50,000.00 as deposit on 5.3.1991. He further stated that the previous rate of rent was fixed Rs. 700.00 and thereafter it was enhanced to Rs. 900.00 per month. He has stated that he paid the rent up to March, 1999 and has committed no default The appellant further submitted that the respondents should repay Rs. 10,000.00 as he paid Rs. 50,000.00 to Sikandar Ali in advance and then he incurred expenses of Rs. 30,000.00 on the repair of the premises and later on he paid more advance of Rs. 20,000.00 to respondents.

On the pleadings of the parties the Rent Controller settled the following issues :—

(i) Whether opponent committed wilful default in making payment of rent?

(ii) Whether the premises in question is bonafidely required by the applicants in good faith for their personal need ?

The respondents/applicants in support of their case examined Respondent No. 1 who filed his affidavit and submitted extracts from the Property Register, certified copy of Suit No. 22/1997 and order passed thereon dated 15.3.1999. Witnesses Abdullah and Khair Muhammad were examined as Ex. 18 and 19 respectively.

The appellant failed to adduce any evidence although several chances were provided to him but he even failed to cross-examine the respondent and his witnesses. Ultimately on 22.4.2000 the side was dosed. Thereafter the matter was adjourned for filing affidavit of appellant but he failed to file his affidavit and produce witness in defence. The applications were moved for reopening side but the same were dismissed by the trial Court under the circumstances.

The trial Court ultimately came to the conclusion that appellant was defaulter and then the premises in question was required to respondents for their own use and ultimately passed ejectment order against the appellant

It is contended by Mr. Noor Muhammad Soomro that the appellant has paid the rent up to March 1999 and has committed no default. On my querry he has not been able to show me the receipts for payment of rent He has stated that the proper chance was not given to the appellant to adduce the evidence in the Court of Rent Controller.

The appellant was rented out the disputed house in March, 1995 by the father of respondents but he failed to make payment of rent after the death of their father. The respondents have examined themselves and stated on oath that rent is not paid by the appellant since August, 1995. The respondent and his witnesses have not been cross-examined by the appellant He has not produced any evidence showing that he has paid the 2001

rent, no receipt has been produced on record. The initial burden of proof lay upon Landlord to establish that tenant had not paid or tendered disputed rent but after the Landlord has once stated in the Court in affidavit that the rent had not been paid to Mm by tenant; then, the burden is shifted to tenant to prove affirmatively that he has paid or tendered rent for disputed period. In the instant case Landlord has testified in the Court on oath and his evidence is not shattered by the other side and tenant has failed to prove that he has actually paid the rent. He has failed to submit any documentary evidence to show that he has paid the rent. The learned counsel has admitted during arguments that they are at present not paying rent to Landlord nor depositing it in Court. It is rightly held by Rent Controller that appellant has not paid rent since August 1995.

The next issue is regarding the requirement of premises for personal bona fide use by the respondents. The evidence has been adduced by Landlord that Respondents Nos. 2 and 3 are married and they have three children out of their wedlock. The remaining respondents are though unmarried but they are grown up and have reached at their marriage stages but they have not contracted marriages for want of proper accommodations. The testimony of Landlord has neither been shattered nor the appellant has adduced any evidence contrary to it

Under these circumstances the ejectment order is just and proper which does not call for interference. This First Rent Appeal No. 9/2000 is dismissed in limine with nor order as to costs. The appellant is directed to hand over the vacant possession to the respondents within thirty days of the passing of this order.

(A.A.) Appeal dismissed.

PLJ 2001 Karachi 21

[Circuit Bench Larkana]

Present: muhammad ashraf leghari, J.

GHULAM NABI-Appellant

versus

GHULAM SARWAR-Respondent

F.R.A. No. 6 of 2000, decided on 15.5.2000.

Sindh Rented Premises Ordinance, 1879 (XVII of 1979)--

—-S; 21--Appeal against ejectment-Rent Controller had ordered ejectment of appellant from premises in question, on proof of respondent being owner of premises, non-payment of rent by appellant and on proof of bonafide personal use of premises by respondent Gandlord)--Validity- Respondent had produced tenancy agreement signed by parties which showed that appellant had taken premises in question on rent from respondent-Attesting witnesses of rent deed had supported execution of the same—Town Committee concerned had issued certificate to the effect that respondent was the landlord of premises-Tenant (appellant) although claimed ownership of premises yet he could not produce evidence in support of his such plea—Non-payment of rent stood established in the record so also plea of respondent for his personal use could not be contradicted-Rent appeal being meritless, was, thus not maintainable in circumstances. [P. 23] A

Mr. Muhammad Anwar Durrani, Advocate for Appellant. Date of hearing: 15.5.2000.

order

Respondent Ghulam Sarwar filed rent application under Section 15 of Sindh Rented Premises Ordinance, 1979 against the appellant for handing over vacant possession of the residential house situated in Dokri town.

The brief facts giving rise to this appeal are that the respondent is owner of the said house which he rented out to the appellant with effect from 17.5.1995 at the rate of rent of Rs. 1000.00 per month. It is stated that appellant failed to deposit rent from April to June 1999 and committed wilful default. The respondent further prayed that the premises in question is required to him for his personal bona fide use. The appellant was served and he pleaded his case in written reply, stating, that the ejectment application was not maintainable and that the respondent was not owner of the house. He claimed to be owner of the disputed house and the same was entered in his name in Record of Rights. He pleaded that on 29.11.1995 Town Officer, Town Committee Dokri had issued a letter in favour of appellant that he is owner of the house by way of inheritance. The appellant stated in the written reply that electricity and gas meters have been installed in his name and he is paying the bills, as such. He stated that applicant/ respondent was son in law of his brother Ghulam Hyder Memon and is residing in another house belonging to appellant.

Out of pleadings, following issues were framed by the Rent Controller:

Point No.l Where there is relationship of landlord and tenant between the parties.

Point No. 2 Whether the opponent is defaulter.

Point No. 3 Whether the disputed house is in personal bona fide use of applicant.

Point No. 4 What should the order be ?

The parties led their evidence and learned Rent Controller ultimately came to the conclusion that relationship of landlord and tenant was existing in between the parties. The appellant was defaulter in payment of rent and that the house in question was required to respondent for his personal bona fide use and consequently allowed the ejectment application.

It is contended by Mr. Muhammad Anwar Durrani for the appellant that the document showing entry in Town Committee record in favour of respondent is false and fabricated and that the rent agreement in between the appellant and respondent is also forged and false. It is stated that the house in question is entered in Town Committee record in his name but unfortunately the said documents have not been produced in the Court of Rent Controller. He stated that the respondent is not landlord and there is no tenancy relationship in between the parties.

I have seen the Lower Court record and find that the respondent has produced tenancy agreement signed by the parties which shows that the appellant had taken the premises on rent from the respondent at the rate oi rent of Rs. 1000. The attesting witnesses namely Ashiq All and Habibullah have been examined. Both of them have supported the execution of said rent agreement. Likewise the certificate dated 27.12.1994 has been issued by Town Officer, Town Committee Dokri which shows that the house in question belongs to respondent and is entered in the record in the name of respondent. Learned counsel for the appellant has not been able to show any ownership document in favour of appellant but he states that if this rent application is remanded back to Rent Controller he can prove his ownership. I am sorry, I cannot accede that request as the competent Court has delivered its finding on the basis of record that the appellant is the tenant of respondent and that admittedly he is not paying rent to him. The respondent needs the premises in dispute for his personal use and the said piece of evidence is not rebutted by appellant.

The rent appeal is meritless and is dismissed in limine alongwith the listed applications with no order as to costs. However, if the appellant claims to be the owner of the property he can avail his remedy before the proper forum if available to him under the law. The premises are to be vacated by the appellant within sixty days from the date of this order.

(M.Y.)

PLJ 2001 Karachi 24

Present: muhammad roshan essani, J.

MUHAMMAD ITTAYAT KHAN--Applicant

versus Mst. REHMAT KHATOON and others-Respondents

C. Rev. A. No. 15 of 1991, decided on 22.2.2001.

Civil Procedure Code, 1908 (V of1908)-

—S. 115-Applicant assailed judgment and decree of Trial Court by way of appeal before learned District Judge which was dismissed—Being aggrieved by concurrent findings of both Courts below, Applicant preferred revision application u/s 115 C.P.C.-Rights of parties cannot be defeated merely upon technicalities-Revisional jurisdiction can be invoked only when impugned order passed by Court is without jurisdiction or Court failed to exercise jurisdiction vested in it or acted illegally or with material irregularity in exercise of its jurisdiction-There are concurrent findings of two courts below which cannot be ordinarily disturbed in revisional jurisdiction until and unless it is proved that he order is illegal, suffers from material illegality or in excess/without jurisdiction-Impugned judgments and decrees do not suffer from any illegality or material irregularity, consequently, revision application stands dismissed with no order as to costs.

[P. 27] A

Mr. Abdul Naeem, Advocate for Applicant

Mr. David Lawrence, Advocate for Respondents.

Date of hearing: 24.1.2001.

judgment

By this civil revision application, the applicant has assailed the judgment and decree dated 4.11.1990 passed by the learned District Judge, Sukkur in Civil Appeal No. 60/1990 and order dated 23.6.1990, judgment and decree dated 23.6.1990, passed by the learned 1st. Senior Civil Judge, Sukkur, in Second Class Suit No. 59/1989.

The brief facts of the case as disclosed by the applicant in the memo of the application are that the father of the applicant namely Muhammad Hidayat Khan S/o. Nizamuddin was sole and absolute owner of property bearing city Survey No. A-1227-2B situated at Shahi Bazaar, Old Sukkur. Said Muhammad Hidayat Khan and two sons namely the applicant Muhammad Attayat Khan and Muhammad Himayat Khan. In the year 1981-82, the said Muhammad Hidayat Khan obtained a loan of Rs. 80,000/-from House Building Finance Corporation, Sukkur, and he also obtained some loan from his friends and relatives and raised new construction over

his immovable property bearing city Survey No. A-1227-28 and as such three storied building was constructed by him from the said loan. There are six shops on the ground floor of the said properly, which are on rent while first floor of the said property is in occupation and possession of the applicant and his family and the second floor of the said property is in occupation and possession of the respondents. During the lifetime of said Muhammad Hidayat Khan in April, 1984, his son Himayat Khan expired leaving behind the respondents as his legal heirs. Thereafter, on 31.1.1988, the said Muhammad Hidayat Khan also expired. After the death of the father of the applicant, i.e. Muhammad Hidayat Khan, the applicant is looking after the properly stated herein above left by his deceased father. At the time of the death of the father of the applicant, namely Muhammad Hidayat Khan, an amount of Rs. 1,00,003/- of House Building Finance Corporation was outstanding against the deceased Muhammad Hidayat Khan and the applicant is paying an amount of Rs. 1000/- per month to the House Building Finance Corporation as instalment towards the loan amount and the applicant also used to pay an amount of Rs. 500/- or Rs. 600/- per month to the respondents for their subsistence. The applicant is receiving an amount of Rs. 1500/- as rent from the above said shops, out of which he pays an amount of Rs. 1000/- as instalement of loan to the House Building Finance Corporation, while Rs. 500/- or Rs. 600/- were being paid to the respondents by the applicant till the filing of the suit by them.

It is further stated that the applicant also used to pay the electricity and sui gas charges of both the above said residential portions.

In the month of March, 1989, the respondents filed a suit against the applicant in the Court of learned 1st Senior civil Judge, Sukkur being Second Class Suit No. 59/1989 with the following prayer :—

(a) To declare that the plaintiffs are the owners of the suit property bearing C.S.No. A-1227. A-1228, Shahi Bazzar. Old Sukkur, to the extent of fifty paisa share of the deceased Muhammad Himayat Khan s/o. Late Muhammad Hidayat Khan.

(b) To direct the defendant to pay Rs. 850/- per month as fifty paisa share to the plaintiffs from the month of May, 1989, to September, 1989, and onwards regularly from the total income of Rs. 1700/- per month coming from the six shops on the ground floor of the suit property.

(c) To grant permanent injunction restraining the defendant from threatening or disturbing the peaceful possession of the plaintiffs in the suit property or from discontinuing the amenities and services of the plaintiffs existing in the suit property or from withholding or stopping the payment of fifty paisa share from May, 1989, and onwards from the monthly income of the said six shops in the ground floor in any manner whatsoever.

(d) To grant any other relief, which this Honourable Court may deem, fit under the circumstances and nature of the case.

(e) To award cost of the suit."

\

It is further averred that the applicant filed his written statement in the above suit whereby he denied the claim of respondents. During the pendency of the suit, Mr. Muhammad Shariful Islam Fakhree Advocate was appointed arbitrator to decide the matter in dispute. The arbitrator filed his award, which was made the rule of Court. The applicant assailed the judgment and decree of the trial Court by way of appeal before the learned District Judge, Sukkur, which was also dismissed. Being aggrieved by the concurrent findings of both the courts below, the applicant has preferred present revision application under Section 115 CPC.

I have heard Mr. Abdul Naeem, learned counsel on behalf of the applicant. He has relied upon the following case law :--

1. PLD 1965 Dacca 258 (D.B)

2. PLD 1965 SC 690.

3. PLD 1970 Karachi 357 (D.B)

4. PLD 1971 AJ&K 127 (D.B)

5. 1979 CLC 283.

6. 1986 SCMR 962.

7. 1986 CLC 281 (D.B)

8. 1986 CLC 2362.

9. PLD 1987 Quetta 33 (D.B)

10. 1990 MLD 261.

11. 1991 SCMR 425.

12. PLD 1991 Karachi 200.

I have also heard Mr. David Lawrence, learned counsel on behalf of the respondents. He has placed reliance on the following case law :--

1. PLD 1978 Lahore 829.

2. PLD 1984 Peshawar 285.

3. 1985 SCMR 1215.

4. 1987 CLC 651.

5. 1989 CLC 1030.

6. PLD 1990 Karachi 216.

7. PLD 1990 SC 800.

S. PLD 2000 Lahore 154. 9. 2000 CLC 567.

I have also perused the material placed on record as well as record and proceedings of the trial Court and the Appellate Court.

The perusal of record shows that during the pendency of the proceedings before the trial Court. Mr. Muhammad Shariful Islam Fakhree. learned counsel was appointed by the trial Court as arbitrator in the matter at the point request of the parties i.e. applicant as well as respondents, thus contention of the applicant that Mr. Fakhree was not competent to pass an award and Court illegally made it the rule of the Court, is misconceived.

(Underlining is mine).

It is well settled that one cannot approbate or reprobate.

It will be pertinent to reproduce herein below the relevant findings of the Appellate Court :-

"10. As regards the absence of notice of award on the part of the trial Court, it has been pointed out by learned counsel appearing for the respondents, that on the date of filing of the award his previous counsel as well as Mr. Muhammad Sharif Buriro were in attendance before the Court and they knew the factum of filing of the award. Notwithstanding the absence of issuance of a notice, these advocates who represented the appellant were in the knowledge of filing of the award and one of them namely Mr. Buriro had been seeking adjournments from time to time with the result that ultimately, he filed objections on 19.5.1990, i.e. after a lapse of one month and nineteen days and application under Section 30 of the Arbitration Act on 27.5.1990 i.e. after a lapse of one month and twenty seven days, Article 158 of the Limitation Act provides a period of thirty days for an application to set aside the award from the date of filing of the award."

"14. On merits as well the appellant has failed to establish by any cogent, evidence that the Arbitrator misconducted the proceedings or that the award was improperly procured. In fact the Arbitrator who was the sole nominee of both the parties had taken pains to visit the property in suit and held discussion with the parties as well as the elders of their families and come to a just and right conclusion by settling the dispute once for all. He is a senior member of the Bar enjoying integrity and reputation of being fair and honest. No exception therefore can be taken to the procedure adopted by him resulting into a decree of the Court which is otherwise just, legal and proper."

The perusal of the impugned judgments and decrees shows that the same are well reasoned and do not suffer from any illegality or material irregularity.

The rights of the parties cannot be defeated merely upon technicalities.

The revisional jurisdiction can be invoked only when the impugned order passed by the Court is without jurisdiction or the Court failed to exercise the jurisdiction vested in it or acted illegally or with material irregularity in the exercise of its jurisdiction.

There are concurrent findings of the two courts below which cannot be ordinarily disturbed in revisional jurisdiction until and unless it is proved that the order is illegal, suffers from material illegality or in excess/without jurisdiction.

The citations, relied upon by the learned counsel for the applicant, are distinguishable from the facts and circumstances of the present case.

The impugned judgments and decrees do not suffer from any illegality or material irregularity, consequently, the revision application stands dismissed with no order as to costs.

(A.P.) Petition dismissed.

PLJ 2001 Karachi 28

Present: ZlA PERVAIZ, J.

QAIMUDDIN and 3 others-Petitioners

versus

MUHAMMAD HANIF and 6 others-Respondents

Civil Revision No. 42 of 1998, heard on 11.12.2000.

Civil Procedure Code, 1908 (V of1908)--

—S. 115—Suit was dismissed for non-prosecution--Application u/Order 9 R.9 C.P.C. was moved for restoration same was dismissed-Appeal before District Judge also dismissed-Challenge to~Contention that justice cannot be sacrificed on the alter of technicalities—Held : Petitioners be afforded an opportunity for the decision of the case ou merits after recording evidence in the interests of justice as observed by honourable Supreme Court in 1999 S.C.M.R. 971; 1986 C.L.C. 2458; 1993 C.L.C. 1158 and 1992 S.C. 822-Refusal to allow them to produce their evidence would only amount to shutting out evidence and denial of justice on technical grounds-Petitioner accepted. [P. 33] A

Mr. Cured Das and M. Chhawria,Advocates for Petitioners. Mr. MazharAli and M. Siddiqui, Advocate for Respondents. Date of hearing: 11.12.2000.

judgment

This revision application is directed against the judgment/order of the 1st Additional District Judge, Shikarpur dated 8.8.1998 dismissed the Civil Appeal No. 3 of 1995 filed by the present petitioners and maintaining the order dated 2.10.1995 in F.C Suit No. 40/1992 before 2nd Senior Civil Judge, Shikarpur.

The facts of the case are that the petitioner claims that the disputed land comprising S. No. 125 (50-37) acres situated in Deh Mangria, Taluka Garhi' Yasin, District Shikarpur, belonged to Atta Muhammad, the predecessor-in-interest of the Respondents Nos. 1 to 7 to the extent of 0-25 paisa share while the remaining 0-75 paisa share in it jointly belonged to Muhammad Hassan and his brothers and their mother and also Mst. Umed Bibi and her sons Ghulam Rasool. On 22.1.1981 the said Atta Muhammad and Muhammad Hassan and others entered into an agreement of sale in respect of the suit land whereby they agreed to sell and the appellant agreed to purchase the same at the rate of Rs. 3,000/- per acre and the total amount of consideration was fixed as Rs. 1,80,000/-. The petitioners had to purchase the above land in equal shares. They paid Rs. 75,000/- to the intending sellers while the balance amount was agreed to be paid at the time of registration of sale-deed. Thereafter Atta Muhammad expired and the Respondent No. 1 and other legal heirs of deceased Atta Muhammad executed a fresh agreement of sale dated 15.2.1982 on the same terms and conditions to the extent of 0-25 paisa share in the land having inherited by them from their ancestor Atta Muhammad. The possession of the suit land was already with the petitioners from the yea\ 1975-76 who were delivered its possession at the time of previous agreement of sale. It is further submitted that the other joint owners namely Muhammad Hassan and others sold out their 0-75 paisa share in the land to the petitioners through statement of sale dated 28.2.1982 before Mukhtiarkar Garhi Yasin. The respondents were avoiding to honour and abide by the agreement of sale and to execute the registered sale-deed in favour of the petitions in respect of their 0-25 paisa share in the land hence the petitioners filed the suit for specific performance of contract against them on 9.6.1985. During the pendency of the suit the Respondent No. 1 Muhammad Hanif died his legal heirs were brought on record. On Mughal Mangrio claiming to be attorney of Respondent No. 1 Muhammad Hanif filed written statement in the Court when executant Muhammad Hanif had already expired. Moreover the Respondent No. 1 (ii) was minor son of Respondent No. 1 and could not contest the suit except through his guardian. Hence the written statement filed by the alleged attorney Mughal on behalf of all the respondents had no legal sanctity. After receipt of written statement learned trial Court framed the issues'on 26.6.1992 where after the suit was fixed for evidence of plaintiff side. Then the above suit was transferred form the Court of 1st Senior Civil Judge, Shikarpur to Ilnd Senior Civil Judge Shikarpur. The Petitioner No. 1 was holding general power of attorney on behalf of other petitioners and therefore, he had been appearing and pursuing the above civil suit. A few

adjournments were obtained for leading evidence of the plaintiffs side. On 4.4.1994 when the suit was fixed for evidence, the advocate for the petitioners had gone to attend the Court of learned Additional District Judge, Khanewal (Punjab) in connection with one Civil Appeal and the Petitioner No. 1 had also fallen ill hence neither the advocate for the petitioners nor the Petitioner No. 1 could attend the Court of Ilnd Senior Civil Judge, Shikarpur, with the result that the above Civil Suit was dismissed for non-prosecution.

On 2.5.1995 an application under Order 9, Rule 9 C.P.C. was moved for restoration of suit but the same was dismissed by the trial Court vide order dated 2.10.1995 against which the appeal was preferred in the Court of learned District Judge, Shikarpur on 26.10.1995 and after being transferred was decided vide judgment dated 8.8.1998, against which the present petition is filed.

Heard the advocates for both the parties. Learned advocate for the petitioner stated that on 4.4.1994 the case was fixed for plaintiff/petitioner's evidence due to certain illness of the petitioner who was pursuing the case and their advocate was out of station as that day he was appearing in a case at Khanewal. The contention of the learned advocate is that the application was dismissed in the appeal and inspite of sufficient cause being shown for the absence being neither deliberate nor wilful, the Courts acted with material irregularity and the jurisdiction has been exercised illegally by denying the petitioner the chance of fair trial on the basis of mere technicalities. In support of his arguments, the learned advocate placed reliance on the reported cases ofMoosa Khan v. Abdul Hague (1993 S.C.M.R 1304), Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 Supreme Court 1051), (1990 C.L.C. 1439), Zakirullah Khan and others v. Faizullah Khan and others (1999 S.C.M.R. 971), Dummar Coal Company v. Akbar Khan (1986 C.L.C. 2458), and Muhammad Saddique and 2 others (1993 C.L.C. 1158).

Learned counsel for the respondents has vehemently opposed the petition. He argued that the suit was originally filed in the year 1985 when it was later numbered as Suit No. 40/1992. Since 1985 no evidence is produced. Prior to this particularly 8 adjournments were allowed. The last being on 4.4.1994 when a last chance was afforded to the petitioner to produce. He further argued that there were four plaintiffs and none of the other 3 could have appeared before the Court. "The" Medical Certificate was produced later and not on the date of hearing.

Not only at the trial stage, but even at the appeal stage, the petitioner took 5 adjournments for deposit of process fee alone. Learned counsel argued that the scope of exercise of jurisdiction U/S. 115 C.P.C. in case of concurrent finding of fact are in his favour.

Reliance is placed on the cases of Muhammad Ramzan v. The Director, Military Land Cantonment, Rawalpindi and another (1986 C.L.C.

245), Ghulam Rasool and others v. Karim Bukhsh and others (1990 C.L.C. 1439), Zakirullah Khan v. Faizullah Khan and others (P.L.D. 1999 SC 971), Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani (P.L.D. 1959 Karachi 376) on the point of negligent conduct of the parties, Material' irregularity, sufficient cause, gross negligence, conduct of party and validity of none appearance of advocates as sufficient ground.

In the case ofMoosa Khan v. Abdul Haq the question raised before the Honourable Supreme Court was of limitation for the purpose of filing of application wherein Court held that it is one of the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversies on merits stands at a much higher level than the disposal on the basis of legal technicalities and technical bars. In the case of Syed Phul Shah v. Muhammad Hussain and 10 others, it has been observed by the Honourable Supreme Court as under :

"Even a winning party feels embarrassed and some times guilty as well, if it has no case under the dictates of justice but succeeds merely on account of technical failure of the other side. It is also because justice in such a situation does not even appear to have been done. This "appearance of justice" in Islam is not only for lawyers and intellectuals say in foreign lands, they include people of Pakistan in general the litigant parties being in the forefront.

It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must nor retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle. Justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional in Islam come to the said when, one exerts."

Learned counsel on the strength of above authorities argued that justice cannot be sacrificed as the alter of technicalities. He also stated that the petitioner will not seek any adjournment as it is in the interest of justice and fair play that the matter be decided on merits rather than shutting out the petitioners on technical grounds and that the case may be decided on facts yet to be proved in evidence.

In the case of Zakirullah Khan v. Faizullah Khan (1999 S.C.M.R. 971), the honourable Supreme Court has held as under:

"No exception can be taken to the above view of the High Court that in this case where the High Court was seized of the matter in the

revision petition filed by the appellants, the High Court had the jurisdiction under Section 115, C.P.C. to pass such orders in the case as it thought fit to modify the judgment of the Lower Court to correct any error of jurisdiction or where the lower Court had, in the exercise of its jurisdiction acted illegally or material irregularity."

The case of Dummar Coed Company v. Akbar Khan (1936 C.L.C. 2458), is a case of repeated absence of plaintiff on a number of dates of hearing which is not attracted to the facts of present case where the absence of a single date is also supported by medical certificate like-wise in the case 01 Ghulam Rasool and others v. Karim Bukhsh and others. The power of High Court have been pointed out by the learned counsel as specified under Section 115 C.P.C. which are not disputed.

In the case of Muhammad Sadique and 2 others v. Faqir Muhammad and another (1993 C.L.C. 1158), the Honourable Supreme Court observed as under:

"The justice has to be meted out to the litigants, irrespective of their failings to properly pursue their causes, and technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. The procedure is provided by C.P.C. to help and not thwart the grant to the people dieir rights. Their Lordships of Supreme Court in Khurshid All's case, supra have laid down :

"It is incorrect to think now under an Islamic dispensation that the Courts are only to sit and watch as to who commits a mistake, and who does not commit a mistake, from amongst the contesting litigants, and one who commits mistake in procedural matters should be deprived of the right claimed; even if he is entitled to it".

The purpose of adjudication of a Us is to reach the truth and to see that right claimed, if found due is acknowledged and awarded to the suitor. A dishonest litigant, winning a lis, only on technical pleas, can neither live without pangs of conscience in this world not rest in peace in the life hereafter. In my view, it is his obligation, rather, to point out before the Court the weakness of his case rather than hide it, irrespective of the fact that opponent had failed to plead the same. Likewise, it is the bounden duty of the Courts to discourage dishonest litigation and in exercise of the powers conferred upon them by law to take suitable measures/steps in the cases so that the dishonest litigant is denied the relief."

In the case of Khurshid All and 6 others v. Shah Nazar (1992 S.C. 822), it was held as under:

"The error having been committed by the to in this case is not summoning the original register and other material evidence for just decision of the case, there is not alternative decision. The application

made by the appellants for summoning the record including the register is allowed. The said material shall be requisitioned and produced in the Court as soon as possible. The parties shall be afforded a further opportunity to adduce additional evidence, if necessary. There shall be no order as to costs."

In view of the above, it is maintained that the petitioners be afforded an opportunity for the decision of the case on merits after recording the evidence is in the interests of justice as observed by the Honourable Supreme Court. Refusal to allow them to produce their evidence would only amount to shutting out the evidence and denial of justice on technical grounds. Accordingly, this petition is allowed as prayed and the judgment and decree passed by learned 1st Additional Sessions Judge, Shikarpur dismissed Civil Appeal No. 3 of 1995 vide his order dated 8.8.1998, is hereby set aside but with no order as to costs.

(A.P.) Petition accepted.

PLJ 2001 Karachi 33

Present: S. ahmed sarwana, J.

NATIONAL DEVELOPMENT FINANCE CORPORATION-Plaintiff

versus Messrs BHITAI RUBBER INDUSTRIES LTD. and others-Defendants

Suit No. 1294 of 1999 and Misc. Nos. 9592, 9593, 9594 of 1999, decided on 1.2.2000.

Qanoon-e-Shahadt Order, 1984 (10 of 1984)-

—Art. 84-Comparison of signatures-Powers of Court-Section lO-Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, No. XV of 1997-Grant of leave in defend disputed or fabricated signatures- Guarnator's counsel raised several grounds in defence, including, among others, that guarantees were not signed by his client and that his signatures were fabricated-Signatures on a few guarantees on comparison with admitted signature of Defenda.it No. 3, prima facie appear to be different-Plaintiffs Counsel concedes to this position— Application for Leave to defend of suit is granted- [P. 34] A

Mr. A.H. Mirza, Advocate for Plaintiff.

Mr. Noorullah Manji, Advocate for Defendants Nos. 1, 2, 5, 6, 7 and 8.

Mr. Amer Raza Naqvi, Advocate for Defendant No. 3.

Date of hearing: 1.2.2000.

order

1. This is an Application filed by Defendants Nos. 1, 2, 5, 6, 7 and 8 for leave to Defend the Suit filed by the Plaintiff for recovery of Rs. 77,138,911/-, Liquidated damages of Rs. 15,427,782/- and for sale of mortgaged properties and pledged shares. On 21.1.2000, when the matter came up hearing Mr. Manji learned Counsel for the aforesaid Defendants sought time to verify the Statement of Accounts and submitted that if no discrepancy was found in the same, he would not file any Rejoinder. Today, he conceded that the Accounts were in order except a debit of Rs. 47.006/- alleged to have been paid to E.F.U. on 27.3.1990. He did not advance any other argument for leave to defend. Mr. A. H. Mirza, learned Counsel for the Plaintiff states that he has no objection, if a sum of Rs. 47,006/- is deducted from the Plaintiffs claim as it is not shown in the Statement of Account. Consequently, the Plaintiffs claim shall stand reduced by Rs. 47,006. The plaintiff has also claimed liquidated damages and mark-up for the cushion period of 210 days, which cannot be allowed under the law. In view of the above position. Plaintiffs suit to decreed jointly and severally as follows:--

(a) Judgment and Decree against Defendants Nos. 1, 2, 5, 6, 7 and 8 in the sum of Rs. 77,091,905/- together with mark-up at the rate of Rs. 0.50 per thousand per day from the date of suit till realization (The rate of Mark-up is not disputed by Mr. Manji).

(b) Final mortgage Decree for sale of ihe mortgaged property;

(c) Decree for sale of the pledged shares;

(d) costs of the suit.

1. Mr. Amer Raza Naqvi, raised several grounds in defence, including, among others, that the guarantees were not signed by his client and that his signatures were fabricated. The signatures on a few guarantees on comparison with the admitted signature of Defendant No. 3, prima facie, A appear to be different. Mr. A.H. Mirza concedes to this position. Accordingly, the Application for leave to defend the suit is granted. Defendant No. 3 is allowed three weeks to file the Written Statement.

2. In view of the orders passed above in CMA No. 9593 of 1999, Mr. Naqvi does not press this Application, which is accordingly dismissed as withdrawn.

3. No. Application for leave to defend has been filed by Defendant No.

4. Consequently, the Plaintiffs claim against Defendant No. 4 is decreed in the same terms as against Defendants Nos. 1, 2, 5, 6, 7 and 8.

(T.A.F.) Orders accordingly.

PLJ 2001 Karachi 35

Present: S.A. RABBANI, J.

MUHAMMAD HUSSAIN-AppeUant

versus Messrs ADAMJEE SHEIKH JEEVANJEE and another-Respondents

First Rent Appeal No. 566 of 1999, decided on 18.8.2000.

(i) Interpretation of Law--

—A definition given in an enactment and law is either exhaustive or inexhaustive-When it is exhaustive, 'means' is used and when it is to be inexhaustive, verb 'includes' is used-Exhaustive definition means that term defined is what it has been defined for all purpose. [P. 36] A

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-

—S. 2(0~Tenant--Ejectment of-Prayer for-A definition given in an enactment and law is either exhaustive or inexhaustive-When it is exhaustive, 'means' is used and when it is to be inexhaustive, verb 'includes' is used-Exhaustive definition means that term defined is what it has been defined for all purpose-Thus, an owner of property is landlord for all purposes-In an inexhaustive definition, term defined is by what it has been defined for some purpose or purposes~A rent collector is thus landlord for some purposes, and he can collect rent and can also take necessary legal steps in case of default in payment of rent-It has not been established that appellant is landlord in his capacity as owner, and since default in payment of rent was not in issue, his rent case was liable to rejection. [Pp. 36 & 37] B

Mr. M.S. Shahzad, Advocate for Appellant.

Mr. Rehanul Hassan Farooqui, Advocate for Respondents.

Date of hearing: 8.8.2000.

judgment

Claiming that he is owner of the property on Plot No. SR. 7-41/3 at Cambell Street, Karachi, the appellant filed Rent Case No. 2022 of 1996, before the Vlllth Rent Controller, Karachi South, for ejectment of the tenants in the property respondents in this appeal. Default in payment of rent was not a ground. The ejectment was sought on the grounds that the premises was required by this appellant for personal bona fide use and that the respondents had sublet the property and had impaired its value by making alterations.

1. The respondents did not dispute the relationship of landlord and tenant but asserted that the capacity of this landlord was of a rent collector only and he was not the owner of the property, and, therefore, he cannot seek ejectment on these grounds. Determining lack of title of the appellant to the property in dispute, the Rent Controller agreed that he was not entitled to seek ejectment on these grounds. He, therefore, dismissed the case filed by the appellant.

2. Learned counsel for the appellant contended that since the relationship of landlord and tenant between the parties was not disputed, an issue relating to ownership was irrelevant. He submitted that the respondents were tenants of the previous owner from whom the appellant purchased the property and the respondents are paying rent to the appellant He referred to a letter of attornment issued by the previous owner to the respondent, calling upon him to pay rent to the present appellant. This letter may be a valid mode of conferring the status of the rent collector on the appellant, but is not relevant for the purpose of transfer of ownership to the appellant.

3. Learned counsel for the respondent relied upon the definition of landlord' given in Section 2(0 of the Sindh Rented Premises Ordinance, 1979, and contended that a landlord merely by virtue of his capacity as rent collector is not authorized to seek ejectment of a tenant on the ground of personal use. He submitted that findings on all other issues in this case depended upon the finding on issue regarding ownership of the appellant, and since the appellant is not owner of the property, other issues failed. Relating to ownership of the property, copy of an agreement has been placed on record by the appellant. Mr. Farooqui pointed out that the agreement itself mentions that the leasehold rights in the property were granted by K.M.C. for 99 years to the original owner which expired on 1.8.1975 and the lease has not been renewed by the said lessor. Thus, the vendor itself not having the rights, could not transfer them to the appellant

4. It is admitted that no sale-deed has been executed. Mr. Farooqui referred to the relevant provisions of Transfer of Property Act and the Registration Act that are to be complied with for a valid transfer of property. It is not claimed on behalf of the appellant that such compliance has been made. It is thus established that the appellant has not yet acquired ownership of the property in dispute. For relevance of this fact here, the definition of landlord' will have to be adverted to. In the Sindh Rented Premises Ordinance, 1979, it is as under:

"2(f) "Landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises."

1. A definition given in an enactment and law is either exhaustive or inexhaustive. When it is exhaustive, 'means' is used and when it is to be inexhaustive, the verb 'includes' is used. Exhaustive definition means that the term defined is what it has been defined for all purposes. Thus, an owner of the property is landlord for all purposes. In an inexhaustive definition, the term defined is by what it has been defined for some purpose or purposes. A rent collector is thus landlord for some purposes, and they are that he can collect the rent and can also take necessary legal steps in case of default in payment of rent.

2. Since it could not be established in this case that the appellant is the landlord in his capacity as owner, and since default in payment of rent was not in issue, his rent case was liable to rejection.

3. Learned advocate for the appellant has cited some case law but only two of them are of binding nature. They are decisions in the cases of Muhammad Ismail and another vs. Sh. Muhammad Munawar (1984 SCMR 27) and Mian Muhammad Saeed vs. Muhammad Mansoor Ali Khan & others (1991 SCMR 1209). In the first cited case, the Supreme Court refused to interfere with the decision of the High Court that "it is appropriate that in appealable case the trial Court should decide all the issues to avoid remand. This, of course, is a guiding principle but it does not mean that all the cases decided on preliminary issues should necessarily be remanded. The other authority is distinguishable on facts. 10. As a result of these facts and reasons, the appeal is dismissed with costs.

(T.A.F.) Appeal dismissed.

PLJ 2001 Karachi 37

Present: S. A. RABBANI, J.

Syed KHURSHEED HYDER ZAEDI-Appellant

versus

LATIF AHMED-Respondent

First Rent Appeal No. 525 of 2000, decided on 18.8.2000.

(i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-

—S. 16(2)~According to Section 16(2) of Sindh Rented Premises Ordinance, defence of tenant is to be struck off "if tenant has failed to deposit arrears of rent or monthly rent under Sub-section (1). [Pp. 39 & 40] A

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

-—S. 16(l)~Tenant was directed under Section 16(1) of Ordinance, to deposit Rs. 30,000/- as arrears of rent within 15 days and he deposited this amount on 9th March, 2000, i.e. on 16th day of order-Despite fact that the act of depositing arrears of rent was a bit beyond 15 days time, deposit of rent was under Section 16(1) of Ordinance—Wording of Sub­section (2) of Section 16 itself 'ignores such a technicality— Appellant/tenant obviously deposited rent in pursuance of order passed by Rent Controller under Section 16(1) of Ordinance—Impugned order of Rent Controller is based on unwary interpretation of provisions of law-It cannot be sustained-Accordingly, appeal is allowed and impugned order is set aside-Matter is remanded to Rent Controller for further proceedings in case. [Pp. 39 & 40] B & C

Syed Zaki Muhammad, Advocate for Appellant. Mr. S. ArifAli Shah, Advocate for Respondent, Date of hearing: 8.8.2000.

judgment

The appellant is the tenant of the respondent and the latter filed Rent Case No. 620/99 in the Court of III Rent Controller, Karachi Central for his ejectment on the ground of default in payment of rent. In that case, on the application of the landlord, the Rent Controller directed the tenant/appellant to deposit monthly rent arrears from May, 1999 to February, 2000 at the rate of Rs. 3000/- per month, amounting to Rs. 30,000/-, within 15 days from the date of that order. The order was passed on 22.2.2000, 2. On another application of the Respondent/landlord under Section 16(2) of the Sindh Rented Premises Ordinance, 1979, the Rent Controller held that the tenant before that Court viz. the present appellant, had failed to comply with the order dated 22:2.2000 and, therefore, the Rent Controller directed him to put the landlord in vacant possession of the premises in question within 60 days. This order has been called in question in this appeal.

1. The record shows, and it is not disputed, that the rent amounting to Rs. 30,000/- was deposited by the present appellant on 9th March, 2000. The Rent Controller was of the view that the tenant/appellant failed to comply with the order passed on 22.2.2000 because, according to it, the rent was to be deposited within 15 days i.e. by 8th March, 2000.

2. Mr. S. Zaki Muhammad, learned counsel for the appellant, contended that the appellant was ill and was under the impression that the order on the application under Section 16(1) of the Ordinance was reserved and the next date was given as 8th March, 2000 and when he attended the Court on 8th and came to know about the order, he obtained challan from the Court for deposit of rent but as the bank time was over, he deposited the amount on the next date i.e. 9th March, 2000. The learned counsel also contended that the order of deposit of rent was invalid and incorrect because it included an order of rent for the month of February by 8th March, which, according to law, could be deposited by 10th of March.

3. Mr. Arif Ali Shah, learned counsel for the respondent contended that .the day when the order under Section 16(1) of the Ordinance was passed, is also to be included and the time for deposit, thus, would be by 7th March, 2000, and not 8th March, 2000. This is obviously not in the line with the principles of reckoning time. The 15 days period ended on 8th March, 2000.

4. Mr. Arif All Shah further contended that there was a default in deposit of the arrears of rent and the Rent Controller had no powers to condone this dault. In support of his contention he cited the decisions in the following cases :--

5. Ghulam Muhammad Khan Lundkhor vs. Safdar Mi (PLD 1967 SC 530).

6. Javaid Iqbal vs. Rana Muzaffar Khan (1976 SCMR 229).

7. Mushtaq Hussain vs. Muhammad Shaft (1979 SCMR 496).

8. Zia Ullah Shah vs. Syed Riaz Ahme^ (1981 SCMR 538).

9. Zafar Qureshi & others vs. Kh. Maqsoodul Hassan etc. (1982 SCMR 392).

10. M. Nazir vs. S. Shaukat Alt (1982 SCMR 985).

11. Akhtar Jehan Begum & others vs. Muhammad Azam Khan(PLD 1983 SC 1).

12. Mst. Anees Manzar Kazmi vs. Mst. Amir Jehan Begum (1989 SCMR 235).

13. Mst. Akhtari Begum vs. Muhammad Yamin (1988 CLC 2051).

14. Ghulam Yasin vs. Bakhshomal (PLD 1973 Karachi 228).

15. Nazir Ahmed vs. Holaram (1985 CLC 41), and

16. Salahuddin & others vs. Addl. District Judge, Kohat & others(1989 CLC 1658).

17. Almost all the cases cited by Mr. Arif Ah' Shah, particularly cases decided by the Supreme Court, are in respect of the proceedings under the old law, viz. West Pakistan Urban Rent Restriction Ordinance, 1959. In that law the corresponding provision was Section 13(6) of that Ordinance and the order of striking off the defence of the tenant was to be made by the Rent Controller in case "if the tenant makes default in the compliance of such an order" i.e. the order passed by the Rent Controller under that provision for deposit of rent arrears etc. According to Section 16(2) of the Sindh Rented Premises Ordinance, the defence of the tenant is to be struck off "if the tenant has failed to deposit the arrears of rent or monthly rent under Sub­ section (1). Un-identical interpretation is the effect of diversity of syntax and words used in two provisions of law.

18. In the present case, the appellant/tenant was directed under „ Section 16(1) of the Ordinance, to deposit Rs. 30,000/-as arrears of rent within 15 days and he deposited this amount on 9th March, 2000, i.e. on 16th day of the order. Despite the fact that the act of depositing the arrears of rent was a bit beyond the 15 days time, this deposit of rent was under Section 16(1) of the Ordinance. Wording of Sub-section (2) of Section 16' itself ignores such a technicality. The appellant/tenant obviously deposited this rent in pursuance of the order passed by the Rent Controller under Section 16(1) of the Ordinance.

19. The impugned order of the Rent Controller is based on unwary interpretation of the provisions of law. It cannot be sustained. Accordingly, the appeal is allowed and the impugned order is set aside. The matter is remanded to the Rent Controller for further proceedings in the case.

(T.A.F.) Appeal allowed.

PLJ 2001 Karachi 40

Present: MUHAMMAD MOOSA LEGHARI, J.

ALEEMUDDIN-Appellant

versus

AAMIR GAZDAR and others-Respondents

First Rent Appeal No. 1435/2000, decided on 8.11.2000.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—Application for ejectment filed by respondent/landlord was granted by learned Rent Controller-F.R.A. filed by appellant/tenant was also dismissed by High Court in Zi/rane-Petition for leave to appeal before Honourable Supreme Court also met same fate, thus, order of ejectment attained finality, appellant having exhausted all remedies available to him. [P. 42] A

Rent Matters--

—S. 12(2) Civil Procedure Code, 1908~Certain time was granted to appellant/tenant to vacate premises—This fact has been mentioned by appellant/landlord in his appeal, however, no copy of judgment/orders passed by High Court as well as Honourable Supreme Court have been placed with present appeal-Subsequently, when after expiry of time granted to appellant by Courts, landlord filed an execution application in accordance with law. it appears, that as a counter-blast, appellant filed an application under Section 12(2) CPC-However, question here will be whether application under Section 12(2) CPC was maintainable before Rent Controller at this stage of case, in view of fact that order of ejectment passed by learned Rent Controller has attained finality after same having been affirmed by Honourable Supreme Court—Judgment of

learned Rent Controller has merged into judgment of Honourable Supreme Court-Even on merits, there is no substance in this appeal which has been filed in order to protract proceedings in a bad faith—As appellant has, obviously, not been acting in a reasonable and proper manner inasmuch as that he did not vacate premises even after expiry of time granted by Honourable Supreme Court and consequently, when execution proceedings were filed, these fallacious applications were moved-Learned Rent Controller has given detailed findings regarding validity of power of attorney and has passed a detailed and speaking order-Appeal dismissed. [Pp. 42 & 43] B, C & D

Mr. Dilawar Hussain, Advocate for Appellant. Date of hearing: 8.11.2000.

order

Appellant/tenant has filed this appeal to challenge the order dated 23.10.2000 passed by the learned VHth Rent Controller, (South) Karachi, whereby the application under Section 12(2) CPC filed by the appellant alongwith other applications was dismissed in Execution Application No. 35/1998 in Rent Case No. 1309/1993.

1. Facts of the case, in brief, as narrated by the appellant, are that the respondent/landlord filed an application for ejectment under Section 15 of the Sindh Rented Premises Ordinance, 1979 against the present appellant being Rent Case No. 1309/1993 on the ground of default, dilapidated condition of the building and erection of a water pump without seeking permission from the landlord.

2. The said rent application was allowed vide order dated 10.3.1998. F.R.A. No. 195/1998 filed by the present appellant was also dismissed in limine vide order dated 9.10.1998. Consequently, the.Civil Petition for Leave to Appeal Bearing No. 715-K/1998 filed before the Honourable Supreme Court of Pakistan was also dismissed in limineon 5.8.1999.

3. Accordingly, after the expiry of the time granted by the Honourable Supreme Court for vacating the premises, the respondent landlord filed an Execution Application No. 35/1998 in the Court of VHth Rent Controller (South) Karachi for execution of the order.

4. It appears that after the initiation of execution proceedings, the appellant filed an application under Section 12(2) CPC thereby challenging the ejectment order, allegedly having been obtained by way of fraud and misrepresentation as, according to him, the Power of Attorney on the basis of which rent application was filed by father of the respondents in respect of the premises owned by the respondents viz.his sons, was invalid. The learned Rent Controller after hearing the parties and perusal of record, dismissed the application under Section 12(2) CPC videorder dated 23.10.2000. Consequently, the other applications namely, application under Section 22 Sindh Rented Premises Ordinance, 1979 and application under Section 20 of the Sindh Rented Premises Ordinance, 1979 for summoning the witnesses and stay of proceedings respectively, were also dismissed, hence this appeal.

5. I have heard the learned counsel for the appellant at length and perused the impugned order.

6. It is an admitted position that the application for ejectment filed by the respondent/landlord was granted by the learned Rent Controller. The F.R.A. No. 195/98 filed by the appellant/tenant was also dismissed by this Court in limine vide order dated 9.10.1998. The petition for leave to appeal before the Honourable Supreme Court also met the same fate, thus, the order of ejectment attained finality, the appellant having exhausted all the remedies available to him.

7. The facts are also clear that certain time was granted to the appellant/tenant to vacate the premises. This fact has been mentioned by the appellant/landlord in his appeal, however, no copy of the judgment/ orders passed by this Court as well as Honourable Supreme Court have been placed with the present appeal. Subsequently, when after the expiry of the time granted to the appellant by the Courts, the landlord filed an execution

B application in accordance with law, it appears, that as a counter-blast, the appellant filed an application under Section 12(2) CPC alleging therein that the father of the respondents, who has filed ejectment application on behalf of is real sons i.e. the respondents, who are said to be the owners of the said property, was not validly authorised person and the power of attorney was allegedly invalid.

1. The learned counsel has been heard at length with regard to the maintainability of the application under Section 12(2) CPC before the Rent Controller as well as on merits of the case.

2. The learned counsel has relied upon the case-law reported in PLD 1983 S.C. 155 titled as Messrs. Bambino Ltd. vs. Messrs. SelmorInternational Ltd. and another.In this authority the Honourable Supreme Court has held that the order passed by the Rent Controller in execution of order of ejectment was appealable before the High Court. There is no cavil with this proposition of law and I am bound to follow the principle enunciated in the said authority. However, the question here will be whether the application under Section 12(2) CPC was maintainable before the Rent Controller at this stage of the case, in view of the fact that the order of ejectment passed by the learned Rent Controller has attained finality after the same having been affirmed by the Honourable Supreme Court C Accordingly, in my view, the judgment of the learned Rent Controller has merged into the judgment of the Honourable Supreme Court. This view is supported by the authority reported in 1986 C.L.C. 1520 (Mst. Zaibunnisa vs. Sultan Ahmad and another) wherein Mr. Justice Haider Ali Prizada, as he then was, has observed as under:-

"It is settled position of the law that the order, Judgment of the lower Court merges into the judgment of the appellate Court. This, question has been considered by my learned brother K.A. Ghani, J. in his unreported judgment, dated 12.6.1985 in F.R.A. 313 of 1985 Shabbir Hussain v. Mr. Anwar Sultan, in which my learned brother has come to the conclusion after giving cogent reasons that the application under Section 12(2) CPC was not maintainable before the Rent Controller as he had no jurisdiction in the matter, after the order of the eviction application passed by him had been upheld by the learned Single Judge of this Court as well as by the Honourable Supreme Court of Pakistan. The principle laid down in the above case was also laid in the case of Muhammad Yaqoob v. Mst. Nooran 1983 C.L.C. 1948. The principles laid down were also agreed by my learned brother K.A. Ghani, J.

In the instant case the eviction order, dated 28.3.1982 was merged in the judgment, dated 31.10.1984 of this Court. The Civil petition for special leave to appeal was also dismissed by the Honourable Supreme Court. In this view of the matter the application was not competent before the Rent Controller."

1. Same view was taken by Mr. Justice Saleem Akhtar, as he then was, in the case reported in the case of Sh. Muhammad Azim v. Basit Yar Khan and another reported in 1989 CLC 302.

2. I have also considered the case-law reported as 1987 S.C.M.R. 1627 (Mubarik All vs. Fazal Muhammad and another) but I find that the facts in the said case are distinguishable as in the above case the petition for special leave to appeal was not finally adjudicated by the Honourable Supreme Court but was not pressed.

3. Even on merits, I find no substance in this appeal which has been filed in order to protract the proceedings in a bad faith. As the appellant has, obviously, not been acting in a reasonable and proper manner inasmuch as that he did not vacate the premises even after the expiry of the time granted by the Honourable Supreme Court and consequently, when the execution proceedings were filed, these fallacious applications were moved. The learned Rent Controller has given detailed findings regarding the validity of the power of attorney and has passed a detailed and speaking order.

4. In view of the above circumstances, I do not find any merit in the appeal which is accordingly dismissed in limine alongwith CMAs 2399/2000 and 2400/2000.

(T.A.F.) Appeal dismissed.

2001 Karachi 44 (DB)

Present: RANA BHAGWANDAS AND SABIHUDDIN AHMAD, JJ.

GATRON (INDUSTRIES) LIMITED through its MANAGING DIRECTORS-Petitioner

versus

GOVERNMENT OF PAKISTAN through THE SECRETARY, MINISTRY

OF FINANCE, FEDERAL SECRETARIAT, ISLAMABAD

and 4 others—Respondents

Constitutional Petition Nos. 129-D 1151 2064 and 2696 of 1993, decided on 11.2.1999.

Customs Act, 1969--

—S. 19~Protection of Ecnomic Reforms Ordinance, 1991-Petitioners owned industrial undertaking located in Hub Industrial Trading Estate in Province of Baluchistan and had imported certain machinery for their plant during 1992-93-Machinery of kind imported, which was admittedly not being manufactured in Pakistan, was at one time altogether exempted from custom duty through notification issued under Section 19 of Customs Act pursuant to a policy decision of Government in providing incentives for industrialisation in rural areas-However, when petitioners imported such machinery it was subjected to a levy of custom duty at rate of Rs. 10% advalorem in terms of SRO No. 484(l)/92 dated 14.5.1992--Petitioners have called in question aforesaid levy of custom duty through these petitions—Learned counsel for petitioners has pressed before Court a two fold contention-That impugned notification is ultra vires, Section 6 of Protection of Economic Reforms Act, 1992, in so far as it is repugnant to SRO No. 1284/(1)/90, dated 13.12.1990 and is therefore, of no legal effect;~In support of his first contention, learned counsel for petitioner drew Court's attention to provisions of Protection of Economic Reforms Ordinance, 1991, promulgated by President on 9th December, 1991 Le. when Notification No. 1284(1)/90 dated 13.12.1990 had not been superseded- -Section 6 of Ordinance reads as under-fiscal incentives for investment provided by Government through statutory orders listed in Schedule or otherwise notified shall continue in force for terms specified therein and shall not be altered to disadvantage of investors—Learned Counsel argued that under aforesaid statute, financial incentives granted to investors in terms of notification acquired statutory protection and Section 3 of Act provided that it would override all other laws including Customs Act-Therefore such incentives or privileges could not be withdrawn through a notification issued under Section 19 of Customs Act till 30th June, 1995—As such impugned notification purporting to levy 10% custom duty was ultra vires powers of Federal Government available under Customs Act-In support of his contention Learned Counsel relied upon unreported judgment of Honourable Supreme Court in Gatron

Industries Limited vs. Government of Pakistan and others (Civil Appeal No. 223/94), where reversing judgment of High Court of Baluchistan Honourable Supreme Court has held that exemption under Notification No. SRO No. 1284(1)/90 dated 13.12.1990 having been granted statutory protection, same could not be destroyed, through a subsequent notification under Customs Act—According to learned counsel this amendment being a beneficial provision is required to be given retrospective effect-In this context he referred to a recent judgment of same Bench in case of Polyron Limited v. Government of Pakistan (C.P. No. D-2838 of 1992), wherein, respectfully following law declared by Honourable Supreme Court in Army Welfare Sugar Mill v. Federation of Pakistan (1992 S.C.M.R. 1652), Court had indeed taken above view-Nevertheless, keeping in view legal position authoritatively settled by Honourable Supreme Court, High Court is of the opinion that same has to be held void and inoperative to extent to which it is repugnant to statutory protection available to petitioners under Section 6 of Protection of Economic Reforms Act-These petitions therefore, allowed-Bank guarantees furnished shall stand discharged and amount deposited by petitioners shall be refunded to them.

[Pp. 45, 46, 48 & 49] A to F

M/s. Sharifuddin Pirzada and Makhdoom Ali Khan, Advocates for Petitioner.

Mr. Syed Tariq Ali Standing Counsel and Mr. Shakeel Ahmad, Advocates for Respondents.

Date of hearing: 3.2.1999.

judgment

Sabihuddin Ahmad, J.-These four petitions involving similar questions of fact and law are being disposed of by this common judgment.

1. Briefly speaking the admitted facts are that the petitioners owned industrial undertaking located in the Hub Industrial Trading Estate in the Province of Baluchistan and had imported certain machinery for their plant during 1992-93. The machinery of the kind imported, which was admittedly not being manufactured in Pakistan, was at one time altogether exempted from custom duty through notification issued under Section 19 of the Customs Act pursuant to a policy decision of the Government in providing incentives for industrialisation in rural areas. However, when the petitioners imported such machinery it was subjected to a levy of custom duty at the rate of Rs. 10% advalorem in terms of SRO No. 484(l)/92 dated 14.5.1992 (hereinafter mentioned as the impugned notification). The petitioners have called in question the aforesaid levy of custom duty through these petitions.

2. Mr. Syed Sharifuddin Pirzada, learned counsel for the petitioners in C.P. Nos. 129, 2064 and 2696 of 1993, has pressed before us a two fold contention i.e.:~

(i) That the impugned notification is ultra vires, Section 6 of the Protection of Economic Reforms Act, 1992, in so far as it is repugnant to SRO No. 1284/(1)/90, dated 13.12.1990 and is therefore, of no legal effect;

(ii) That in any event the impugned notification was amended by SRO No. 1056(l)/93, dated 1.11.1993, and as a consequence of the aforesaid amendment total exemption from custom duty was extended to industries in the Hub Industrial Trading Estate. The amendment being beneficial was required to be given retrospective effect and covered imports made by the petitioner.

1. Giving chronological perspective of the exemption from custom duty Mr. Pirzada pointed out that in accordance with the policy of the Federal Government to provide incentives for industrialisation in rural areas S.R.O. No. 1284(1)/90 was issued on 13.12.1990, the relevant provisions whereof read as under: "S.R.O. No. 1284(l)/90.-In exercise of the powers conferred by Section 19 of the Customs Act, 1969 (IV of 1969), sub-section (2) of Section 2 of the Finance Ordinance, 1982 (XII of 1982) and Section 31 of the Sales Tax (Amendment) Act, 1990 (XVH of 1990), the Federal Government is pleased to exempt such plant and machinery as is not manufactured locally and is imported during the period commencing on the 1st December, 1990 and ending on the 30th June, 1995, for setting up new units and for expansion or balancing, modernisation and replacement of existing units:-

(a) In areas other than mentioned in Table-I, from whole of the Customs duty, surcharge and sales tax leviable or chargeable thereon under the First Schedule to the Customs Act, 1969, or, as the case may be, the Finance Ordinance, 1982, or the Sales Tax (Amendment) Act, 1990; and

(b) In the areas specified in Table-It from so much of the customs duty leviable thereon under the First Schedule to the Customs Act, 1969, as is specified in column 3 of the said Table and whole of the sales tax chargeable thereon under the Sales Tax (Amendment) Act, 1990, subject to the conditions set out below, namely:

TABLE-I

Sr. No.

Area

1. The municipal or Cantonment Board limits of Karachi and 40 Kilometres area around these limits.

2. The municipal or Cantonment Board limits of Lahore and 30 Kilometres around these limits.

3. The existing limits of Municipal Corporations, Municipal Committees and their Cantonment Boards and 10 kilometres areas around Municipal Corporations and their Cantonment Boards, in Provinces of Sindh and Punjab excluding Bahawalpur, D.G. Khan, Sukkur and Larkana Division.

4. Areas falling within the limits of Islamabad Capital Territory and Huh Tehsil in the Province of Baluchistan.

TABLE-II

S.No.

Area

Extent of Exemption

All approved industrial estates in the following areas:

Hub Tehsil in the Province of Baluchistan; District of Mianwali And Bhakkar-and Tehsil of Kushab In the Province of Punjab; and District Tharparkar and Dadu (excluding Taluka of Kotri) in the Province of Sindh.

All approved industrial estates in the Following areas:

Islamabad Capital Territory Lahore District and Tehsil of Ferozewala, Gujranwala, Sialkot, Faisalabad, Multan and Rawalpindi in the Province of Punjab.

Talukas of Kotri and Hyderabad in the Province of Sindh.

Whole

One half (1/2) of the leviable customs duties.

1. All approved industrial estates located Three fourth

in the areas other than those mentioned (3/4) of the

at Table-I and S. Nos. 1 and 2 above leviable Duties." excluding Karachi Division.

1. It may be seen that under para (2) of the aforesaid notification machinery for units located in areas other than those specified in table I were totally exempted from custom duty, surcharge and sales tax. However, units located in areas mentioned in table II were only granted specific exemption from such taxes to the extent mentioned in column (iii) of the aforesaid table. In practical effect since Hub Tehsil figured at Serial No. 4 in table I industries located therein could not qualify for total exemption in terms of paragraph (a). Nevertheless since the approved industrial estates in Hub Tehsil were mentioned at Serial No. 1 in Table II, the petitioners' unit qualified for exemption in terms of paragraph and the extent of exemption stated in column (iii) was the whole of custom duly and sales tax. In other words, for whatever reason total exemption from custom duty and sales tax was made available to industrial units located within the Hab Industrial Trading Estates and not any other part of the Hub Tehsil.

2. The aforesaid notification was superseded through SRO No. 50(l)/92, dated 28.1.1992 and Hub Industrial Trading Estate was mentioned at Serial No. 2 in Table II and industries located therein continued to remain exempt from the whole of leviable custom duly and sales tax. This notification nevertheless was subsequently superseded by SRO No. 484 (D/92, dated 14.5.1992 (the impugned notification, whereby Hub Industrial Trading Estate continued to be listed at Serial No. 2 of Table II; but the extent of exemption in column 3, was specified to be "custom duty in excess of 10% advalorem and whole of sales tax". In view of the aforesaid stipulation the machinery imported by the petitioner was subjected to custom duty.

3. In support of his first contention, learned counsel for the petitioner drew our attention to the provisions of the Protection of Economic Reforms Ordinance, 1991, promulgated by the President on 9th December, 1991 i.e. when Notification No. 1284(1)/90 dated 13.12.1990 had not been superseded. Section 6 of the Ordinance reads as under "the fiscal incentives for investment provided by the Government through statutory orders listed in the Schedule or otherwise notified shall continue in force for the terms specified therein and shall not be altered to the disadvantage of the investors." The notification impugned above finds place at Serial No. 2 of the schedule.

4. This Ordinance was enacted as an Act of Parliament after having received the assent of the President on 23rd July, 1992, wherein the terms of Section 6 and the schedule were reproduced verbatim. Mr. Pirzada argued that under the aforesaid statute, the financial incentives granted to investors in terms of the notification acquired statutory protection and Section 3 of the Act provided that it would override all other laws including the Customs Act Therefore such incentives or privileges could not be withdrawn through a notification issued under Section 19 of the Customs Act till 30th June, 1995. As such the impugned notification purporting to levy 10% custom duty was ultra vires the powers of the Federal Government available under the Customs Act. In support of his contention Mr. Pirzada relied upon the recent unreported judgment of the Honourable Supreme Court in Gatron Industries Limited vs. Government of Pakistan and others (Civil Appeal No. 223/94), where reversing the judgment of the High Court of Baluchistan the Honourable Supreme Court has held that the exemption under Notification No. SRO No. 1284(1)/90 dated 13.12.1990 having been granted statutory protection, the same could not be destroyed, through a subsequent notification under the Customs Act

5. In addition to the above learned counsel contended that in any event through a subsequent amendment in the impugned notification vide SRO No. 1056(l)/93, the impugned notification has been amended to the extent that the words Hub Tehsil in the Province of Baluchistan have been omitted from Table I and simultaneously "Hub Industrial Trading Estate" has been omitted from Table n. The effect being that of Industrial Units falling in Hub Tehsil, whether located in the Industrial Estate or otherwise would enjoy total exemption from custom duty and sales tax in terms of paragraph (a). According to the learned counsel this amendment being a beneficial provision is required to be given retrospective effect In this context he referred to a recent judgment of this Bench in the case ofPolyron Limited v. Government of Pakistan(C.P. No. D-2838 of 1992), wherein, respectfully following the law declared by the Honourable Supreme Court in Army Welfare Sugar Mill v. Federation of Pakistan(1992 S.C.M.R. 1652), we had indeed taken the above view.

6. Mr. S. Tariq Ah', learned Standing Counsel attempted to argue that the impugned notification was issued under proper authority and had not been rescinded so far. Nevertheless, keeping in view the legal position authoritatively settled by the Honourable Supreme Court, we are afraid that the same has to be held void and inoperative to the extent to which it is repugnant to the statutory protection available to the petitioners under Section 6 of the Protection of the Economic Reforms Act These petitions therefore, must be allowed. The bank guarantees furnished shall stand discharged and the amount deposited by the petitioners shall be refunded to them. We are informed that in C.P. No. 2064 of 1993 the amount of Customs duty was paid to the respondent which will be refunded to them without mark up, if the same is paid within 30 days from this judgment and with 14% marked if it is paid thereafter.

(T.A.F.) Petition allowed.

PLJ 2001 Karachi 50 (DB)

Present: GHULAM nabi soomro and anwar zaheer jamali, J J.

ALTAF QURESHI-Petitioner

versus

GOVERNMENT OF SINDH through CHIEF SECRETARY, and another-Respondents

Const. Petition No. 709 and Misc. No. 1841 of 1999, decided on 27.10.2000.

Sindh Civil Servants (Regulation of Ad Hoc Appointments Act, 1994--

—-Civil Servants Act, 1973-S. 2(a)-Constitution of Pakistan, 1973 Art. 18, 25 and 2A-Contention that ad hoc appointment of petitioner was made on 2.7.1992 and at that time no rules of recruitment and appointment in respect of post held by petitioner were framed-For this reason rules of recruitment framed on 21.4.1994 were not applicable in case of petitioner and petitioner was entitled for regularizatioh of his service under Act of 1994—Further contended that in any case videnotification dated 1.10.1995 ad hoc appointment of petitioner was extended upto 21.3.1997 and further he was asked to acquire requisite qualification for his post which he did acquire by passing M.A. examination in year 1996 and therefore petitioner is now entitled for relief claimed in petitioner-In such circumstances practice of repeated extension of term of ad hoc appointment, as has been done in case of petitioner, cannot be approved as such practice if continued will divert course of regular appointments in accordance with law and same will also be violative of spirit of Articles 18, 25 and 2A of Constitution of Islamic Republic of Pakistan 1973-Held : Petitioner cannot claim any vested right in his favour on basis of his ad hoc service for any period which was even otherwise not according to law--Petitioner has not approached High Court with clean hands as at time of filing of present petition, he suppressed fact that his representation/application for regularization submitted to Chief Secretary was disposed of by Chief Secretary and thereafter petitioner also preferred an appeal before Sindh Service Tribunal-As petitioner has already availed a remedy available to him under law, on this ground also his petition is liable to be dismissed-Petitioner is not entitled for any relief petition is dismissed in limine with costs— [Pp. 55 & 56] A to D

Mr. Abdul Ghafoor Mangi, Advocate for Petitioner. Mr. Muhammad Qasim Mirjat, AAG. for Respondents. Date of hearing: 27.10.2000.

judgment

Anwar Zaheer Jamali, J.-This Constitutional Petition has been preferred by the petitioner Altaf Qureshi for seeking following reliefs from this Court:-

"(a) declare that the petitioner is entitled to be regularized under Sindh Civil Servants (Regularization of ad-hoc appointment) Act, 1994 having been appointed in 1992.

(b) declare that the qualification of M.A. as prescribed after the appointment of the appellant are not applicable to the petitioner as the same were not the conditions at the relevant time of his appointment though he has passed his M.A. examination as per directions of the Special Committee and even now is qualified in accordance with the subsequent amended rules of recruitment."

1. The relevant facts as disclosed in the petition are that the petitioner, who as per his educational qualification is a 8.A. and LL.B., applied for the post of Assistant Director, Culture Tourism Sports and Youth Affairs Department, Govt. of Sindh. After interview vide order dated 2.7.1992 he was appointed as Assistant Director on ad hoc basis for six months on the terms and conditions contained in the said order. This period of ad hoc appointment was later on extended for two years. At the time of such appointment of the petitioner, there were no rules of recruitment in the department. However, vide notification dated 21.4.1994 for the first time, method, qualification and other conditions for such appointment were laid down according to which minimum educational qualification of Assistant Director BPS-17 was prescribed as M.A. in Ilnd Division.

2. On 28.7.1994, with the object of regularization of services of civil servants appointed on ad hoc basis in various departments of Government of Sindh, Act XDC of 1994 the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act 1994 (hereinafter referred to as the Act of 1994) was passed by the Government of Sindh.

3. When the case of the petitioner was placed before the Special Committee appointed by the Government for this purpose the petitioner was found lacking in his educational qualification being not M.A. The Special Committee however recommended the case of the petitioner for extension of the terms of his ad hoc appointment and accordingly notification dated 1.10.1995 was issued by the Government of Sindh whereby period of ad hoc appointment of the petitioner was further extended upto 21.3.1997 and he was required to acquire requisite qualification of his post. In the year 1996 the petitioner cleared his M.A. examination in I-Division and thus became qualified for the post held by him on ad hoc basis. On 31.1.1999 he made representation seeking his regularization, however, despite that case for regularization of his services under the Act of 1994 was not finalized giving him a cause of action for filing of the present petition.

4. The Respondents Nos. 1 and 2 filed their separate parawise comments to this petition wherein they stated that the Chief Minister Secretariat forwarded the application of the petitioner to the concerned department requesting therein for his appointment on the aforesaid post In compliance of such request summary was floated, specifying M.A. in End Division as qualification for the post but thereafter in relaxation of the rules, the petitioner was appointed on ad hoc basis. The respondents further stated that the rules framed on 21.4.1994 were very much applicable to the case of the petitioner for the purpose of regularization of his service, and as admittedly the petitioner was not holding the requisite educational qualification i.e. M.A. in Ilnd Division, he was not entitled for regularization under the Act of 1994. The respondents also stated that the representation dated 31.1.1999 made by the petitioner was turned down by the Chief Secretary Government of Sindh on 4.2.1999 and thereafter the petitioner preferred an appeal before the Sindh Service Tribunal at Karachi. The respondents reiterated that the crucial date for examining the case of regularization of the petitioners services within the scope of Act of 1994 was 28.7.1994, when the said Act was passed by the Government, admittedly at that time petitioner was lacking in qualification and therefore the case of the petitioner was not the one which could have been regularized under the Act of 1994 and thus the petition is liable to be dismissed.

5. We have heard Mr. Abdul Ghafoor Mangi Advocate for the petitioner and Mr. Muhammad Qasim Mirjat, Assistant A.G. for the respondents.

6. Learned counsel for the petitioner mainly contended that the ad hoc appointment of the petitioner was made on 2.7.1992 and at that time no rules of recruitment and appointment in respect of the post held by the petitioner were framed. For this reason the rules of recruitment framed on were not applicable in the case of the petitioner and thus the petitioner was entitled for regularization of his service under the Act of 1994. Learned counsel further contended that in any case vide notification dated the ad hoc appointment of the petitioner was extended upto 21.3.1997 and further he was asked to acquire requisite qualification for his post which he did acquire by passing M.A. examination in the year 1996 and therefore the petitioner is now entitled for the relief claimed in the petition.

7. Mr. Muhammad Qasim Mirjat, Asstt. A.G. appearing in this case on behalf of respondents did not seriously oppose this petition though in the comments both the respondents have strongly resisted this petition. We are unable to understand such conduct of the learned Asstt A.G. which cannot be appreciated.

8. We have carefully considered the arguments advanced before us and perused the material placed on record by the parties.

9. In the instant case it is an admitted position that initial appointment of the petitioner was made by the Government of Sindh under the directions of the then Chief Minister in relaxation of the rules and also in relaxation of the required qualification as specified in the summary submitted by the Chief Secretary to the Chief Minister, mentioning therein the minimum qualification for such post as M.A. in Had Division. It is also an admitted position that till the enforcement of Act of 1994 with effect from 28.7.1994 petitioner was not holding the requisite qualification i.e. M.A. II- Division for the post on which he was working as an ad hoc appointee. It is pertinent to note that the rules for appointment of such post and prescribed qualifications were notified by the Government on 21.4.1994 before the enactment of Act of 1994 and thus the same were very much applicable to the case of the petitioner. The petitioner cannot validly claim immunity from such rules on the pretext that at the time of his initial appointment such rules were not in force. Learned counsel for petitioner in his arguments had referred the notification dated 1.10.1995 issued by the Govt. of Sindh whereby the ad hoc appointment of the petitioner was extended upto 21.3.1997 and further he was required to acquire requisite qualification of his post on the recommendation of the Special Committee. In order to examine the powers of the special committee in such matters and to see as to whether special committee could issue such recommendations, it will be useful to peruse the relevant sections of the Act of 1994 specifying such powers of the Special Committee, same are reproduced as under:

"3. Regularization of services of certain civil servants.-(l) Notwithstanding anything contained in the Act or rules thereunder, or in any decree order or judgment of a Court, but subject to other provisions of this Act a civil servant holding ad hoc appointment against a post in BS-16 or above and is in employment on the commencement of this Act shall, on orders made in that behalf, be deemed to have been validly appointed to that post on regular basis with effect from the date of the commencement of this Act.

(2) The orders under sub-section (1) shall not be made unless antecedents of such civil servants, his academic qualification experience, age and place of domicile as scrutinized and cleared by_a Special Committee appointed by Government.

(3) The Special Committee under sub-section (2) shall be headed bj the Secretary Incharge of the Department concerned and amongst

others shall consist of a representation each from that Department and the Services and General Administration Department

(4) Where the Commission, has recommended person for appointment to a post in a cadre service before the commencement of this such person may be accommodated."

1. A plain regrading of above provisions of the Act of 1994 would show that the Special Committee appointed under the Act was formed for a limited purpose, as underlined above. It was thus beyond the powers and jurisdiction of such Special Committee to issue recommendations for extension of period of any ad hoc appointment or to allow him any further time for acquiring the requisite qualification. With reference to the notification dated 1.10.1995 it is also pertinent to note that under the same notification the persons at Serial Nos. 4, 5 and 6, who were holding posts under. BPS-17 and BPS-18 on ad hoc basis were terminated from service w.e.f. 2.10.1995 due to lack of qualifications and in their case no such recommendations for extension of time or any opportunity for acquiring the requisite qualification was afforded to them. This was a clear instance of discriminating attitude followed by the Special Committee as well as the Respondent No. 1. In any case, as observed above, the Special Committee constituted under the Act of 1994 had no jurisdiction to extend time in any individual case for acquiring requisite qualification. According to the spirit of the Act crucial date for examining the case of each ad hoc civil servant for regularization under the Act of 1994 was 28.7.1994 on which date admittedly the petitioner was not holding the required qualification. It will not be out of place to mention here that the petitioner, who is an ad hoc appointee despite non-regularization of his service under the Act of 1994, still appears to be in service, initially under the blessings of the Respondent No. 1 who extended period of his ad hoc appointment from time to time and thereafter on the strength of statuts quo order passed in this petition on 14.10.1999 although his continuance in service in this manner is wholly against the directions/ observations of the Hon'ble Supreme Court of Pakistan in the matter of Abdul Jabbar Memon and others (1996 S.C.M.R. 1349) which reads as under:-- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitment, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointment into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession.

Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be disconti­nued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement" 12. The apex Court reaffirmed the above view in the case of Mushtaq Ahmad Mohal v. Honourable Lahore High Court, Lahore (1997 S.C.M.R. 1043) in the following words:

"17. We reiterate that the appointments to various posts by the Federal Government. Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/ institutions."

1. Examining the merits of the relief claimed by the petitioner from another angle the definition of ad hoc appointment as given under Section 2(l)(a) of the Sindh Civil Servants Act 1973 is also relevant, same is reproduced as under:

"2. Definitions.-^) In this Act, unless there is anything repugnant in the subject or context—

(a) "ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method."

1. From the perusal of above definition, it is clear that the powers of ad hoc appointments have been conferred basically as a stop gap arrangement pending recruitment on the post in accordance with method prescribed under the law. In such circumstances practice of, repeated extension of term of ad hoc appointment, as has been done in the case of the present petitioner, cannot be approved as such practice if continued will divert the course of regular appointments in accordance with law and the same will also be violative of the spirit of Articles 18, 25 and 2A of the Constitution of Islamic Republic of Pakistan 1973. As a matter of fact, with reference to the Articles of the Constitution, as referred earlier, the validity of the Act of 1994 itself is doubtful. However as this legal aspect is not an issue before us, we deem it proper not to dilate upon this legal aspect here and leave it open to be decided in some proper proceedings when such question may arise. In any case the petitioner cannot claim any vested right in his favour on the basis of his ad hoc service for any period which was even otherwise not according to law.

2. In addition to the above, perusal of reply of paras 9 and 11 of the petition submitted by respondents, which have not be disputed by the petitioner, would show that the petitioner has not approached this Court with clean hands as at the time of filing of present petition, he suppressed the fact that his representation/application for regularization submitted to the Chief Secretary on 31.1.1999 was disposed of by the Chief Secretary vide his order dated 4.2.1999 and thereafter the petitioner also preferred an appeal before the Sindh Service Tribunal at Karachi on 12.5.1999, being Appeal No. 149 of 1999. Even if the petitioner had preferred such appeal after filing of this petition he should have unfolded this fact before this Court thereafter, but he did not care to do. As the petitioner has already availed a remedy available to him under the law, on this ground also this petition is liable to be dismissed.

3. The upshot of the above discussion is that the petitioner is not entitled for any relief prayed in this petition and therefore this petition is dismissed in ft/nine with costs. A copy of this judgment be sent to the Chief Secretary Government of Sindh for his future guidance with specific reference to the contents of paragraphs 11 and 14 of this judgment.

(T.A.F.) Petition dismissed.

PLJ 2001 Karachi 56 (DB)

Present: GHULAM NABISOOMRO AND ANWAR ZAHEER JAMALI, J J.

Dr. KHURSHEED BHUTTO-Petitioner

versus

CIVIL AVIATION AUTHORITY-Respondent

Constitutional Petition No. D-llll & 1120 of 2000, decided on 23.10.2000.

(i) Audi Alterm Partem-

—Right of hearing, when claimed on principle of natural justice, is not an absolute right, but it will be facts and circumstances of each case which will enable a Court to draw a proper conclusion in this regard.-There is a clear distinction between two situations, one where right of such hearing is statutory and other where such right is claimed on principles of natural justice-In former case such right is almost absolute, while in later case it is not so and exclusion of such right could be express, or implied.--

[P. 63] D

(ii) Government Premises--

—Constitutional Petition u/A. 199 of Constitution of Pakistan 1973--Specific Relief Act, S. 42-Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965-Petitioner a doctor posted at PIA Hospital as employee of PIAC-In year 1996, she applied for a quarter to respondent Civil Aviation Authority and was allotted residential Quarter situated at Civil Aviation Authority Colony, Karachi International Airport, at rate of Rs. 1,950/- per month which she had been paying regularly-Petitioner further stated that she is also paying regularly other charges of amenities and residing in said quarter alongwith her family since September 1996-On 28.6.2000 respondent cancelled her allotment in respect of this quarter and directed her to vacate same without any Show Cause Notice to her, which action is in violation of fundamental rights and human rights—Respondent also illegally disconnected electricity of quarter and threatened to dispossess petitioner from said quarter per force-Petitioner therefore prayed in her petition as under-"to declare and hold that impugned order issued by respondent to be without any lawful authority and quash same—Coming to grievance of petitioners that before cancellation of their allotments, no Show-Cause Notice was served on them and thus principles of natural justice were violated-Held : Petitioners have no statutory right of hearing before Cancellation of their allotments and therefore right of Show-Cause Notice before cancellation claimed by them is not an absolute right-Besides Petitioner also suppressed certain facts and lost her claim/right any equitable relief from Court in exercise of jurisdiction u/A. 199 of Constitution of Pakistan, 1973—Petition dismissed.

[Pp. 57 & 62] A to C

order

Anwar Zaheer Jamali, J.-Constitutional Petition No. D-1111/2000 filed by the petitioner Dr. Khursheed Bhutto and Constitutional Petition No. D-1120/2000 filed by the petitioner Mrs. Kauser Shaheen^ based upon similar facts, raising common questions for adjudication, were dismissed by us by our short order dated 10.10.2000. Relevant facts of each petition and common reasons for these orders are as under.

1. In Constitutional Petition No. D-l 111/2000, the petitioner stated that she is a doctor posted at PIA Hospital at Air Terminal No. 1, Karachi International Airport, Karachi, as employee of PIAC. In the year 1996, she applied for a quarter to the respondent Civil Aviation Authority and was allotted residential Quarter No. DF-41, situated at Civil Aviation Authority Colony, Karachi Internationa] Airport, Karachi, w.e.f. 1st September 1996 at the rate of Rs. 1,950/- per month which she had been paying regularly. The petitioner further stated that she is also paying regularly other charges of amenities and residing in the said quarter alongwith her family since

September 1996. On 28.6.2000 respondent cancelled her allotment in respect of this quarter and directed her to vacate the same without any Show Cause Notice to her, which action is in violation of fundamental rights and human rights. The respondent also illegally disconnected the electricity of the quarter on 21.7.2000 and threatened to dispossess the petitioner from the said quarter per force. The petitioner therefore prayed in her petition as under:

"to declare and hold that the impugned order (annexure C) issued by the respondent to be without any lawful authority and quash the same and further declare that the act of disconnection of electricity of the quarter/Flat under the occupation of petitioner is illegal and direct the respondent to restore the above amenities and so also direct the respondent not to dispossess the petitioner from quarter/Flat Bearing No. DF-41, situated at CAA Colony Karachi International Airport without due course of law in absence of the order of competent Court of law."

1. The respondent Civil Aviation Authority in reply to the above averments submitted its comments wherein they challenged the maintainability of the petition on the grounds that the dispute between the parties pertains to the terms and conditions of the service of the petitioner therefore this Court has no jurisdiction to entertain this petition, the petition is barred under Section 42 of the Specific Relief Act and Sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965. The respondent also submitted that the petitioner has not approached this Court with clean hands as she had requested for fifteen days time to vacate the quarter and on her assurance to vacate, such time was allowed to her. Referring to various letters issued to the petitioner, respondent denied the allegations levelled against them by the petitioner and prayed for dismissal of the petition.

2. In C.P. No. D-1120/2000 the petitioner stated that she is wife of Abbas Khan Saledra who is an employee in Collectorate of Customs, under Respondent No. 2, and was posted at Karachi International Airport Residential Quarter No. C-4 at Civil Aviation Authority Quarters, Karachi International Airport, Karachi, was allotted to her husband w.e.f. 25.7.1992 and since then she and her children are in occupation of this quarter. Though the allotment of quarter to the petitioner's husband was not temporary but Respondent No. 1 vide its order dated 25.7.2000 cancelled such allotment arbitrarily and threatened to dispossess the petitioner from the said quarter per force. The petitioner termed such action of Respondent

No. 1 in violation of the principles of natural justice and prayed for the following relief:--

"to declare and hold that the impugned order (annexure B) issued by the Respondent No. 1 to be without any lawful authority and quash the same."

1. In reply to the averments made in C.P. No. D-1120/2000 the Respondent No. 1 filed their comments wherein they took same legal objections as in other petition. In addition to that, they also disclosed the facts of institution of a civil suit by the husband of the petitioner before the Senior Civil Judge at Malir regarding the same dispute and its withdrawal on 31.7.2000 on the basis of application dated 28.7.2000 moved by petitioner's husband. The Respondent No. 1 also disputed the averments made in Para 4 of the petition wherein petitioner had stated that her husband had gone to Vehari.

2. We have heard the arguments of Mr. Muhammad Aziz Khan Advocate for petitioner in C.P. No. D-l 111/2000 while none of the three counsel, M/s. Muhammad Nehal Hashmi, Badar Muneer and Muhammad Rafi engaged by the petitioner in C.P. No. D-1120/2000, who had filed their vakalatnamas on behalf of petitioner separately, appeared to address the Court at the time of hearing of these petitions. The husband of the petitioner, who was present in Court at the time of hearing of this petition and the other connected petition, was directed to call counsel for the petitioner for making submissions in the matter. Initially he informed the Court that counsel was busy before another bench. However, at the time of second call also, none of the counsel for petitioner in C.P. No: D-1120/2000 appeared before the Court. From the side of respondent in both the matters Mr. Muhammad Jamil Advocate appeared for respondent Civil Aviation Authority while Syed Zaki Muhammad, DAG, also appeared on Court notice and they made their submissions.

3. Mr. Muhammad Aziz Khan, learned counsel for petitioner in his arguments contended that the petitioner is occupying Quarter No. DF-41 at Civil Aviation Authority Colony Karachi under a valid allotment order. She is paying the standard rent of this accommodation regularly and also paying the other charges of amenities. In such circumstances there was no justification for respondent to cancel her allotment and ask her to vacate the premises within a fortnight.

4. On the other hand Mr. Muhammad Jamil contended that the perusal of allotment order dated 7th August 1996 would show that it was specifically incorporated in the allotment order that it was ,on temporary basis and the petitioner will have to vacate such quarter as and when needed by the respondent In such circumstances, after due opportunity to the petitioner vide letters dated 17.6.2000 and 28.6.2000 action was taken against her as the quarter in question is needed for the officers and employees of Civil Aviation Authority who are facing great difficulty due to non-availability of accommodation. Learned counsel also referred to Sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965 to justify the action of the respondent. Learned counsel lastly contended that there was no violation of any rights of the petitioner as the allotment of quarter in dispute to the petitioner did not confer any legal character or right in her favour.

5. Referring to the facts of the other petition viz. C.P. No. D- 1120/2000, he contended that the petitioner has not approached this Court with clean hands. The allegations of violation of principles of natural justice are totally false and baseless as from time to time the petitioner was allowed opportunity to vacate the accommodation allotted to her husband but she failed to do so. Referring to the letter dated 28 July 2000, filed by the petitioner alongwith her Misc. Application No. 3196/2000 learned counsel stated that after letter dated 29.6.2000 the petitioner was again asked to vacate the house but, she failed to do so. He also argued that initially the husband of the petitioner, who was the allottee of the disputed house, filed a suit for permanent injunction, being Suit No. 89/2000, in he Court of Senior Civil Judge at Malir, Karachi. On his failure to get an injunction order issued from that Court, the petitioner, who is wife of said Abbas Khan Saledra, suppressing all these facts, filed the present petition before this Court on 28.7.2000. In such circumstances, it is clear that the petitioner has not approached this Court with clean hands and therefore she is not entitled for any equitable relief in the matter. In this context learned counsel also invited the attention of this Court to an application under Order 23 C.P.C. dated 28.7.2000 moved by Abbas Khan Saledra before the Court of Senior Civil Judge at Malir to show that the allegations made in Paragraph 4 01 the petition are belied from this document In such circumstances, learned counsel also challenged the locus standi of the petitioner to file the present petition which according to him in such circumstances is an abuse of the process of law. Lastly the learned counsel urged the same legal objections to the maintainability of this petition as urged in respect of other connected petition.

6. We have carefully considered the arguments and perused the material placed on record. In the present petitions the whole claim of the petitioners in respect of disputed residential accommodations is based on its allotment by the respondent Civil Aviation Authority in favour of petitioner Dr. Khursheed Bhutto and husband of petitioner Mrs. Kauser Shaheen, and they have not claimed any other right, title or interest therein. Perusal of letter of allotment issued to the petitioner Dr. Khursheed Bhutto reveals that there is a specific note at its bottom that allotment is purely on temporary basis and she will have to vacate as and when needed by the respondent Civil Aviation Authority. However, in the other letter of allotment issued to Mr. Abbas Khan Saledra no such note is available. 2001

7. In the present petitions, the moot point for consideration before us is the status and legal character of an allottee vis-a-vis the status of the petitioners to occupy these residential accommodations. The legal position on such allotments and the status of the allottees has been considered by the Hon'ble Supreme Court of Pakistan in the case of Estate- Officer Government of Pakistan v. Syed Tahir Hussain (P.L.D. 1962 S.C. 75). Relevant observations of the Court on this point are reproduced as under:

"We express our agreement, and do so with respect; with the view that the best, occupation by a Government Servant of Government-owned premises allotted to him, i.e., ear-marked for his occupation, can be no more than a tenancy-at-will, which may be terminated by the State at any time without cause shown. We have noted already that the allottee himself was entitled to relinquish the premises allotted to him at any time, subject only to suffering a certain small penalty in case he caused inconvenience, to the Estate Officer by not notifying to him his intention to vacate within a reasonable time. Whether the case be one of tenancy-at-will or mere license, there can be no question but that the Government had full authority to terminate the occupation of the premises by Syed Tahir Hussain, by means of a peremptory notice. Such a notice was in fact issued on the 20th February 195S, and we repeat that it is a matter of regret that as a result of iLc proceedings which are now being terminated by means of this judgment the occupant has been enabled to continue to occupy the quarter, in seeming defiance of a strictly legal order of the Government, for a period of a nearly four years."

1. In the case of Imtiaz Hussain v. Government of Pakistan (1992 CLC 1122) the question of legal status of an allottee of Government property when came up for consideration before a learned Single Judge of this Court, same was answered in the following words:

"An allottee of a building or land belonging to the Federal Government does not become its tenant His status is only that of licenses. Under Section 5 of the said Ordinance, the Federal Government by order in writing may direct an authorised occupant to vacate the land within the period specified in the said order."

1. In another case of Dr. Munir Ahmad, M.B., B.S. Medical Officer v. Chairman House Allotment Committee, Govt. of Baluchistan, Quetta & another (1983 CLC 1783) similar issue when examined was answered by the learned Single Judge of Baluchistan High Court as under:- The main guiding principle being that the decision of the Government in the matter of determination of the disputes, has been exclusively allowed to be examined by the Government or the Committee set up by the Government and the jurisdiction thus created is not one in respect of which the Courts could be thought to be invested with powers of any supervisory jurisdiction and the Court should not involve itself into a field which is more appropriate for the Committee set up under that law rather than a Court The occupation by a Government Servant of Government premises, even if allotted, can be no more than a tenancy at will which may be terminated by the Government at any time without 'any show-cause notice."

2. In a more recent case of Director General, Pakistan Coast Guards Karachi v. Mst. Zarina Jamshed (1998 MLD 1879) a Division Bench of this Court examining the question of rejection of plaint with reference to the status of an allottee and her legal character with reference to Section 42 of the Specific Relief Act and Sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965, while rejecting the plaint followed the view as taken in the case of Estate Officer, Government of Pakistan (supra).

3. The learned counsel for the petitioner Dr. Khursheed Bhutto was unable to show anything from the record to avoid the applicability of the legal principle discussed in the above cases to the present petitions.

4. Reverting to the facts of the two petitions, it will be seen that the petitioners being mere allottee, of a Government accommodation cannot claim any vested right in their favour. The respondent while taking action against the petitioners had already issued a notice giving them reasonable time to vacate the premises. In their reply the respondent Civil Aviation 0 Authority has stated that such action was taken due to shortage of accommodation for their officials and policy of HQCAA. In the absence of any thing to the contrary no exception could be taken to such claim of the respondent Civil Aviation Authority.

5. Coming to the grievance of the petitioners that before cancellation of their allotments, no Show-Cause Notice was served on them and thus principles of natural justice were violated. It may be observed that C the petitioners have no statutory right of hearing before Cancellation of their allotments and therefore the right of Show-Cause Notice before cancellation claimed by them is not an absolute right. In the case of Miss Rukhsana Soomro and others v. Board of Intermediate and Secondary Education, Larkana, Sindh and others (2000 MLD 145) a Division Bench of this Court of which one of us (Anwar Zaheer Jamali, J.) was a member after referring several judgments of Indian Supreme Court on the rule of Audi Alterant Partemand right of hearing on the principles of natural justice observed as under:-

"We are also in agreement with the arguments of the learned counsel for the Respondents Nos. 1 to 3 that right of hearing, when claimed on the principle of natural justice, is not an absolute right, but it will be the facts and circumstances of each case which will enable a Court to draw a proper conclusion in this regard."

"From the perusal of the above case law it is evident that there is a clear distinction between the two situations, one where the right of such hearing is statutory and the other where such right is claimed on the principles of natural justice. In the former case such right is almost absolute, while in the later case it is not so and exclusion of such right could be express, or implied."

1. In the present petitions, letters of cancellation of allotment were issued to the allottees in the month of June 2000 whereby time was allowed to the allottees to vacate the residential accommodation in their possession. Thereafter at least till the dismissal of these petitions vide short order passed on 10.10.2000 they remained in possession. During the intervening period not only the petitioners got sufficient time to urge their view point before the respondent but they also did so before this Court. In such circumstances the plea of non-issuance of any Show-Cause Notice is not tenable.

2. Besides, with reference to the petition of Mrs. Kauser Shaheen, we also find substance in the arguments of Mr. Jameel that she had not approached this Court with clean hands. Perusal of case record reveals that to justify filing of this petition by herself, the petitioner in Para 4 of the petition, stated about the non-availability of her husband at Karachi which assertion is belied from the copy of compromise application filed by her husband Abbas Khan before the Court of Senior Civil Judge at Malir in Suit No. 89/2000 showing his presence at Karachi on 28.7.2000 i.e. the date when she filed the present petition. She in her petition also suppressed the fact of filing of Suit No. 89/2000 by her husband in respect of same dispute before the Court of Senior Civil Judge at Malir which was pending there at the time of institution of this petition. For these reasons also the petitioner Mrs. Kauser Shaheen lost her right claim any equitable relief from this Court in exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. For the reasons given above these petitions were found without substance and were dismissed in limine.

(T.A.F.) Petition dismissed.

PLJ 2001 Karachi 64 (DB)

Present -. syed deedar hussain shah, C.J. and anwar zaheer jamau, J.

IBADAT FOUNDATION and another-Petitioners versus

Mr. Justice (R) AJMAL MIAN CHANCELLOR, HAMDARAD UNIVERSITY KARACHI-Respondent

W.P. No. D-277 of 2000, decided on 1.3.2000.

(i) Hamdard University Act, 1991 (Sindh Act No. IV of 1992)--

-—S. 8.5--Constitution of Pakistan 1973, Article 199-Question of jurisdiction of Chancellor-It is amply clear from Act that Respondent No. 1 being Chancellor of Respondent No. 2, had jurisdiction under Section 8.5 of Act to annul any proceedings of Board of Governors, being one of authority of University under Section 11.1 of Act-Contention of learned counsel that Respondent Chancellor had no jurisdiction to pass an order in terms as specified in impugned has no force.

[P. 73] A

(ii) Hamdard University Act, 1991 (Sindh Act No. IV of 1992)-

—S. 8.5~Chancellor Hamdard University sitting at Karachi have jurisdiction at Islamabad Campus or not-Question of~Clause 15 of agreement dated 9.2.1999 is as under-To safeguard interest of students studying at Islamabad Campus, it is agreed between 2 parties that this agreement shall be irrevocable-However, as provided in Clause 9(1) of Act of University, Chancellor may cause a visitation or inquiry to be made in respect of any matter, connected with affairs of University, (In this case Hamdard University Islamabad Campus) and appoint such person or persons as may deem fit for purpose-Provided further that as a result of visitation, if Chancellor is not satisfied with academic and administrative functioning of Islamabad Campus, he may revoke agreement after providing an opportunity to IBADAT Foundation to defend itself~It is evident that under this clause of agreement, petitioners themselves have agreed and empowered Chancellor to cause a visitation or inquiry to be made in respect of any matter connected with affairs of University (HUIC) and for this purpose he can appoint any person or persons as deemed fit by him and further in case Chancellor is not satisfied with academic and administrative working of Islamabad Campus as a result of such visitation made under his directive, then he can revoke agreement after providing an opportunity to Petitioner No. 1 to defened itself--Respondent Chancellor exercised such powers by appointing an officer for purpose of visitation of Islamabad Campus who in response to that made necessary visitation and inquiry and submitted his report—It has not been disputed before Court by learned counsel for petitioners that after receipt of visitation report notice to show-cause was issued to petitioner No. 1 and after receipt of their reply and due opportunity of hearing to Petitioner No. 1 on various dates impugned order was passed~On basis of second agreement also passing of impugned order was well within jurisdiction of Respondent Chancellor and petitioners are legally estopped from challenging his jurisdiction. [P. 74] B

(iii) Hamdard University Act, 1991 (Sindh Act No. IV of 1992)--

—-S. 8.5~Examining question of territorial jurisdiction as raised by learned counsel, it may be observed that Sindh Act No. VI of 1992, under which Respondent No. 2 has been established as a body corporate, does not limit its jurisdiction as regard to establishment of its Campus any where outside province of Sindh-Petitioner No. 1 is managing affairs of Islamabad Campus of Respondent No. 2 in terms of agreement executed between Petitioner No. 1 and Respondent No. 2 and under control of Respondent No. 2 therefore Respondent No. 1 being Chancellor of University had jurisdiction to exercise his powers ia matter-

[Pp. 74 & 75] C

(iv) Hamdard University Act, 1991 (Sindh Act No. IV of 1992)-

—-S. 8.5~Referring to contention of learned counsel about alleged use of some indecent language against Respondent Chancellor it may be observed that such allegations have been attributed to Respondent Chancellor in his capacity as Chancellor of Respondent No. 2 but not as a former Chief Justice of Pakistan~If Respondent Chancellor feels himself aggrieved, it will be open for him to seek his redress in this regard before proper forum. [P. 77] D

M/s. Muhammad Akram Shaikh, Muzharul Haque and Hashim Padhiar, Advocates of Petitioners.

M/s. S.M. Zaffar, Abdi S. Zuberi and Ejaz Ahmad Advocate for Respondents.

Date of hearing: 1.3.2000.

order

Syed Deedar Hussain Shah, C-J.-This Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 filed by Ibadat Foundation and Executive Council Hamdard University Islamabad Campus calls into question an order dated 14.2.2000 passed by the Respondent No. 1 in his capacity as Chancellor of Respondent No. 2. The prayers made in the petition read as under :--

(a) The order passed on 14.2.2000 by Respondent No. 1 be declared to have been passed without lawful authority and to be of no legal affect, and its abbreviation be suspended. The respondent be restrained from acting upon the orders dated 14.2.2000.

(b) Any other relief that this Honourable Court deems fit and proper in the circumstances of the case may also kindly be granted.

1. Facts forming background of this litigation, as stated in the petition, are that the Respondent No. 2 viz. Hamdard University, a statutory body, established under the Hamdard University Act, 1991 (Sindh Act No. VI of 1992) (hereinafter referred to as "the Act") having its principal campus at Madinatul Hikmat, Karachi, on 1.6.1998, entered into an agreement with the Petitioner No. 1 viz. Ibadat Foundation to establish its Campus at Islamabad. Such agreement was with the prior approval of such proposal by the Board of Governors of Respondent No. 2 in their 10th meeting held on 24.2.1998. Clause 3 of this agreement provided that parties will provide equity in the ratio of 51% by Respondent No. 2 and 49% by Petitioner No. 1 for development of Islamabad Campus while Clause 15 of the agreement provided that in case of any dispute matter would be referred to arbitration committee constituted by the Chancellor of Respondent No. 2 and Chairman of Petitioner No. 1.

2. After the sad demise of the then Chancellor of the Respondent No. 2 Hakeem Saeed on 17.10.1998, the Respondent No. 1. (Mr. Justice (R) Ajmal Mian) was notified as Chancellor of the University on 15.2.1999. But before that on 9.2.1999 the Petitioner No. 1 and Respondent No. 2 entered into a second agreement, superseding the first one, which provided for payment of 15% of the gross revenue collected from Islamabad Campus by the Petitioner No. 1 to the Respondent No. 2. In the 13th meeting of the Board of Governors of Respondent No. 2 held on 6.3.1999 a follow up of a 12th meeting was presented and as Item No. 6-C of the Agenda the Contract between the Petitioner No. 1 and Respondent No. 2 was concluded. Upto that time relationship between the petitioners and Respondent No. 2 was continuing in a smooth manner. However, on induction of Respondent No. 1 as the Chancellor of Respondent No. 2 problems started creeping up due to the wrongful approach of Respondent No. 1 regarding his functions as the Chancellor. He purportedly exercising his power under Section 9.1 of the Act appointed Dr. Engineer Jamil Ahmed Khan, Chairman, Pakistan Engineering Council to visit Hamdard University, Islamabad and Faisalabad Campus to inquire into the working of these campus and the appointment of the teaching staff. Respondent No. 1 further asked him to suggest steps which could be taken to improve the working of the said campuses and to bring them in conformity with the Act, rules and the agreement On such assignment entrusted to Dr. Jamil Ahmed Khan, he carried out his visitation and submitted report on 18.9.1999. On receipt of report the Respondent No. 1 issued Show-cause Notice to the petitioners on 4.10.1999 which was replied by them inter-alia challenging the jurisdiction of Respondent No. 1 and emphasizing that the parties were governed by the second agreement and not the first one. Thereafter further proceedings were conducted by the Respondent No. 1 on various dates and on conclusion of such proceedings, Respondent No. 1 passed the impugned order.

3. On service of notice of this petition to the respondents, the Registrar of Respondent No. 2 Dr. M. Aijaz Nairn filed his counter affidavit in reply to the assertions made in petition and the injunction application wherein he challenged the maintainability of the petition on the grounds that the petition involves enforcement of contractual obligations and determination of disputed questions of fact which exercise could not be undertaken in a writ petition. The order of Respondent No. 1 dated 14.2.2000 has been passed by him in exercise of his powers under the Act and the Statute framed thereunder and in the best interest of the University and its students and any interference in writ may result irreparable adverse consequences for the institution. In his parawise reply to the petition the Registrar of Respondent No. 2 stated that only the first agreement dated 1.6.1998 was validly executed between the Petitioner No. 1 and Respondent No. 2 while the second agreement dated 9.2.1999 was illegal and void, the same was never rectified or unanimously approved by the Board of Governors in accordance with the relevant provisions of law. With reference to this he gave detailed facts that how in glaring violation of the mandatory provisions of the Act the Petitioner No. 1 attempted to manage the second agreement which was to the great prejudice of the Respondent No. 2. In reply to allegations made in various paragraphs of the petition the Registrar stated that under Section 8.5 of the Act the Respondent No. 1 had jurisdiction to pass the 'impugned order and such powers were legally and validly exercised by him. Alongwith his counter affidavit the Registrar of Respondent No. 2 also placed cm record copies of several documents to fortify his stand.

4. In reply to the above allegations made in the counter affidavit, one Major (R) Muhammad Arshad filed his affidavit in rejoinder on behalf of the petitioners wherein he reiterated the assertions made in the petition and in reply to the preliminary objections as to the maintainability of the petition stated that through this petition the petitioners are not seeking either enforcement of any contractual obligation or adjudication of any factual controversy hence the petition is maintainable.

5. On 15.3.2000 when this petition was taken up for Katcha Peshi it was agreed by the learned counsel for the parties that on the next date of hearing this petition will be heard and disposed of finally at the stage of Katcha Peshi.

7.We have therefore heard Mr. Muhammad Akram Shaikh, learned counsel for the petitioners and Mr. S.M. Zafar, learned counsel for the respondents at length.

1. Mr. Akram Shaikh at the outset of his arguments candidly stated that through {his petition neither the petitioners are seeking adjudication of any disputed questions of fact nor they wish to enforce any contractual obligations arising out of any agreement between the parties as invocation of writ jurisdiction for this purpose would not be justified, but through this petition the petitioners have challenged the impugned order passed by the Respondent No. 1 on the sole ground that under the relevant statute (Sindh Act VI of 1992) Respondent No. 1 had no jurisdiction to pass such order thereby unilaterally cancelling/quashing the second agreement between the Petitioner No. 1 and Respondent No. 2. With reference to his contention, the learned counsel referred and read before us Sections 8.1, 8.5, 9.1 and 9.2 of the Act. He submitted that under Section 8.5 Chancellor can only exercise his powers in respect of proceedings of any "authority" or orders of any "officer" if the same were not in accordance with the provisions of the Act, the statute, the regulation or the rules, while the Board of Governors was not an authority under the Respondent No. 1 and therefore annulment of any action of the Board of Governors of Respondent No. 2 was beyond the jurisdiction of Respondent No. 1. With reference to Sections 9.1 and 9.2 also the learned counsel advanced similar arguments that it was beyond the jurisdiction of the Respondent No. 1 to have specified the conditions as contained in the operative part of the impugned order and therefore the impugned order may be declared to be without lawful authority and of no legal effect.

2. Mr. Akram Shaikh further submitted that if Respondent No. 1 was anxious to enforce the first agreement dated 1.6.1998 then the proper course available to him was to refer the matter for arbitration in terms of Clause 15 of the said agreement. About the merits of the impugned order, the learned counsel also submitted that as a consequence of impugned order future of more than one thousand and six hundred students at the Hamdard University Islamabad Campus is at stake and to save them from disaster, impugned order needs to be set-aside. Lastly the learned counsel referred to Article 137 of the Constitution and contended that it was beyond the jurisdiction of Respondent No. 1 to pass an order affecting the interest of the petitioners working at Islamabad i.e. outside the Sindh Province as the Respondent No. 2 has been established under a Provincial Statute viz. Act No. VI of 1992 and therefore the Respondent No. 1, as Chancellor of Respondent No. 2 cannot exercise his jurisdiction beyond the territorial limits of Sindh Province.

3. Controverting the above submissions Mr. S.M. Zafar referred to Sections 3.2, 5.2, 5.3, 6.2, 8.1, 8.5, 9.1, 9.2 and 11.1 of the Act to show that the Board of Governors is one of the authority of the university covered by Section 11.1 of the Act and therefore under Section 8.5 of the Act the Chancellor had the jurisdiction that in case he was not satisfied with any proceedings of the Board of Governors then he could annul such proceedings, and in the instant case before taking any such action not only the Respondent No. 1 called upon the Board to show cause about the proceedings of its 13th meeting but even he afforded proper opportunity of hearing to the petitioners so that in case action taken against the Board of Governors causes any prejudice to the interest of the petitioners, they may not have any cause of grievance against such action on the pretext of denial of an opportunity of hearing before such action.

4. Mr. S.M. Zafar further submitted that the material placed on record would show that proceedings were initiated by Respondent No. 1 on receipt of complaint dated 1.7.1999 made by one Iqarar Ah', intimating him about the mismanagement and commercialized approach of the petitioners. After receipt of such complaint, exercising his powers under Section 9.1 of the Act and also in conformity with Clause 15 of the second agreement dated 9.2.1999 Respondent No. 1 appointed Dr. Engineer Jamil Ahmed Khan for visitation and inquiry, who after his visitation at the petitioner's campus at Islamabad on 1.9.1999 submitted his detailed report dated 18.9.1999 mentioning serious financial, administrative and academic violations and also indicating disloyalty of the petitioners towards Respondent No. 2. Such report of the visitor has not been disputed/challenged by the petitioners before any forum till today, though such remedy was available to the petitioners. In this context learned counsel referred to the cases reported as 1987 All England Report 834 and 1988 All England Report 1004.

5. In the first case it was held that the jurisdiction of an university visitor who holds such position as a sole judge of the internal or domestic laws of the university, was exclusive and not concurrent with the Courts jurisdiction. Visitors jurisdiction included the interpretation and enforcement not only of such laws themselves but also of internal powers and discretions derived from them and for this purpose he enjoys exclusive jurisdiction.

6. In the other case also it was held that in the matters relating to the internal laws of the college jurisdiction of a university/college visitor on the relevant subject was exclusive.

7. With reference to the report of the visitor learned counsel also submitted that in this report with specific instances serious financial irregularities and mismanagement of fund has been attributed to the petitioners but no denial of such report has come from the petitioner side and in such circumstances exercise of writ jurisdiction under Article 199, which is primarily meant for proper dispensation of justice, would not be justified as it will perpetuate injustice and may result in protecting the ill- gotten gains of the petitioners. Mr. S.M. Zafar also emphasized that the dispute brought before this Court relates to the internal affairs of the university and in such circumstances the superior Courts have always been reluctant in exercising their writ jurisdiction as it may result interference in the proper administration of the institution.

8. Referring to Clause 15 of the second agreement dated 9.2.2000 the learned counsel contended that under this clause the Chancellor had full authority to revoke the agreement after an opportunity of hearing to the petitioners which was admittedly afforded to the petitioners before passing of

9. the impugned order and on this ground too the order impugned in this petition is fully justified and within the jurisdiction of Respondent No. 1. Adverting to the impugned order and its operative part "A" and "B" the learned counsel contended that the same has been totally misunderstood by the petitioners. The language used in the order clearly indicates that option was given to the petitioners for acceptance of "A" part of the order and in case of their refusal, in part "B" of the order further follow up remedy has been highlighted for the benefit of Respondent No. 2 which even otherwise is the duty of Respondent No. 1. Thus the impugned order is just, equitable and fair and passing of such order was inevitable to save the interest of Respondent No. 2.

10. During the course of his arguments Mr. S.M. Zafar also placed on record copy of resolution passed in the sixteenth meeting of the Board of Governors held on 20.3.2000 and submitted that after passing of this resolution virtually this petition has become infructuous and passing of any order favourable to the petitioners will be an exercise in futility.

11. Reverting to the second agreement dated 9.2.2000, the learned counsel also contended that it is an admitted position that such agreement was executed between the parties without approval or authorization of Board of Governors and in violation of the mandatory requirements of the Act and therefore the second agreement is a nullity.

12. In the end Mr. S.M. Zafar referred to certain paragraphs of the petition and the affidavit in rejoinder filed from the petitioners side and contended that Respondent No. 1 is a person who was Chief Justice of the apex Court in the recent past but the language used against him in these paragraphs is not only objectionable but also defamatory in nature and therefore the petitioners be directed to expunge such objectionable material from the petition and the affidavit in rejoinder. In this context he further contended that the judgments delivered by the Respondent No. 1 in his capacity as a Judge of High Court and the Supreme Court reflect about his high caliber, honesty, integrity and impartiality, and therefore it was not befitting for the petitioners to have dragged him to this litigation in such an indecent manner.

13. Mr. Akram Shaikh replying to the last contention of Mr. S.M. Zafar submitted that the petitioners have taken utmost care in using proper and legal language in their petition with reference to their grievances against the Respondent No. 1 and there is no such objectionable or defamatory language used against the Respondent No. 1 which may justify such arguments. The learned counsel also expressed his high respect for the Respondent No. 1 as a retired Judge of Supreme Court of Pakistan. Replying to the contentions of Mr. S.M. Zafar with reference to the powers of visitation and action in consequence thereof and the case law referred by the learned counsel for respondents in this context. Mr. Akram Shaikh submitted that the report of the visitor has been strongly disputed by the petitioners, however, this issue has not been agitated in the present petition and no relief has been sought in its regard for the reason that it would involve inquiry into the disputed questions of fact Mr. Akram Shaikh referring on the case law submitted that an order of the visitor of University is open to question in writ jurisdiction what to speak of the order of the Respondent No. 1 which is patently without jurisdiction.

14. We have carefully considered the arguments advanced by the learned counsel for the parties and perused the material counsel for the parties and perused the material placed on record so also the case law referred by them.

15. In the present petition the only crucial point for consideration before us is whether the Respondent No. 1 had jurisdiction to pass the impugned order dated 14.2.2000. In order to appreciate respective contentions of the learned counsel for the parties on this point, it will be proper to reproduce here the provisions of law referred and relied by them in this context

Establishment and 3. 3.1.....................

corporate by the name of the Hamdard

University having perpetual succession and a common seal, with power, among others, to acquire, hold and dispose of any property vesting in it and shall by the said name, sue and be sued.

Powers and 5. The University shall be an autonomous

Functions of the body and shall have the powers :

University ,.., .......................................

5.2. to submit and examine students and to confer or award degrees, diplomas, certificates and other academic distinctions on and to persons, who have passed its examinations under prescribed conditions;

5.3 to affiliate itself or associate with other institutions and establish faculties and the teaching departments to discharge its functions and responsibilities for the betterment of education;

Officers of the University

6.

The following shall be the officers of the University:

6.1

The Chancellor

6.2 the Chancellor;

1. 8.1 The Chancellor shall be a person of eminence, known for his contribution in the field of knowledge or service to society and appreciated for his high moral and intellectual caliber:

Provided that Hakim Muhammad Saeed of the Foundation shall be first life-Chancellor of the University.

8.2. 8.3.

8.4.

Visitation

8.5. If the Chancellor is satisfied that the proceedings of any Authority or orders of any officer are not in accordance with the provisions of this Act, the Statutes, the Regulations, or the Rules, he may, after calling upon such Authority or officer to show-cause why such proceedings should not be annulled, by order in writing, annul such proceedings or orders.

1. 9.1. The Chancellor may cause a visitation or inquiry to be made in respect of any matter connected with the affairs of the University and appoint such person or persons he may deem fit for the purpose.

9.2. The Chancellor shall, on receipt of a report under sub-section (1), issue such directions as he thinks fit and the Vice-Chancellor will comply with such directions.

Authorities 11. The following shall be the Authorities of

the University :--

11.1. the Board of Governors;

11.2.......................

11.3.......................

11.4......................

11.5......................

11.6......................

11.7.,.....................

11.8.......................

1. From the bare reading of above quoted Sections of the Act, it will be seen that Section 3.2 describes the status of the University as a body corporate; Section 5.2 deals with the powers of the University to admit and examine the students and confer or award degrees, diploma certificates and other distinctions, Section 5.3. empowers the University to affiliate or associate itself with other institutions and establish faculties and teaching departments in discharge of its functions and responsibilities for the betterment of the education. Section 6.2 denotes Chancellor as one of the officers of the University; Section 8.1 signifies the qualifications of the Chancellor; Section 8.5 refers to the powers of the Chancellor that in case the Chancellor is satisfied that any proceedings of the authority or orders of any officer are not in accordance with the provisions of Act, the statute, regulations or the rules, then after calling such authority or officer to show- cause that why such proceedings or order should not be annulled, by an order in writing, be can annul such proceedings or orders. Section 9.1 of the Act deals with visitation and empowers the Chancellor to cause a visitation or inquiry to be made in respect of any matter connected with the affairs of the university and appoint any person or persons for this purpose, Section 9.2 of the Act authorizes the Chancellor that on receipt of report of visitation or inquiry, issue directions to the Vice-Chancellor for compliance; Section 11.1 denotes the Board of Governors as one of the authority in the University set up.

2. Reverting to the question of jurisdiction of the Chancellor, it will be seen that from the above provisions of the Act, it is amply clear that the Respondent No. 1 being Chancellor of the Respondent No. 2, had the jurisdiction under Section 8.5 of the Act to annul any proceedings of the Board of Governors, being one of the authority of the University under Section 11.1 of the Act. In view of the above, contention of Mr. Akram Shaikh that the Respondent No. 1 had no jurisdiction to pass an order in the terms as specified in the impugned order dated 14.2.2000, has no force.

3. Resolving the question of jurisdiction from another angle, llause 15 of the agreement dated 9.2.1999 is relevant. The same is therefore •eproduced as under:

"15. to safeguard the interest of students studying at Islamabad Campus, it is agreed between the 2 parties that this agreement shall be irrevocable. However, as provided in Clause 9(1) of the Act of the University:

The Chancellor may cause a visitation or inquiry to be made in respect of any matter, connected with the affairs of the University, (In this case Hamdard University Islamabad Campus) and appoint such person or persons as may deem fit for the purpose:

Provided further that as a result of visitation, if the Chancellor is not satisfied with the academic and administrative functioning of Islamabad Campus, he may revoke the agreement after providing an opportunity to IBADAT Foundation to defend itself."

1. From the bare reading of this clause, it is evident that under this clause of the agreement, the petitioners themselves have agreed and

mpowered the Chancellor to cause a visitation or inquiry to be made in espect of any matter connected with the affairs of the University (HUIC) and for this purpose he can appoint any person or persons as deemed fit by lim and further in case the Chancellor is not satisfied with the academic and dministrative working of the Islamabad Campus as a result of such visitation made under his directive, then he can revoke agreement after roviding an opportunity to the Petitioner No. 1 to defened itself. In the nstant case, it is an admitted position that the Respondent No. 1 exercised uch powers by appointing Dr. Engineer Jamil Ahmed Khan for the purpose f visitation of Islamabad Campus who in response to that made necessary visitation and inquiry and submitted bis report on 18.9.1999, which has been explicity reproduced in Para 4 of the impugned order. It has not been isputed before us by the learned counsel for the petitioners that after the eceipt of visitation report notice to show-cause was issued to the petitioner . 1 and after receipt of their reply and due opportunity of hearing to the 'etitioner No. 1 on various dates the impugned order was passed. Thus it is lear that on the basis of second agreement dated 9.2.1999 also the passing of impugned order was well within the jurisdiction of the Respondent No. 1 and the petitioners are legally estopped from challenging his jurisdiction.

1. Examining the question of territorial jurisdiction as raised by Mr. Akram Shaikh, it may be observed that Sindh Act No. VI of 1992, under which the Respondent No. 2 has been established as a body corporate, does not limit its jurisdiction as regard to the establishment of its Campus any where outside the province of Sindh. Admittedly the Petitioner No. 1 is managing the affairs of Islamabad Campus of Respondent No. 2 in terms of the agreement executed between the Petitioner No. 1 and the Respondent

No. 2 and under the control of Respondent No. 2 therefore the Respondent No. 1 being Chancellor of the University had the jurisdiction to exercise his powers in the matter. Thus this contention of Mr. Akram Shaikh has also not force.

1. Coming to the merits of the impugned order, it will be useful to reproduce here the operative part of the order which is in two parts "A" and "B", the same is as under:

(i) For the reasons recorded above, it is held that the Second Agreement dated 9.2.1999 has not been competently entered into and has not been ratified by the BOG in accordance with law. In consequence thereof, the above First Agreement dated 1.6.1998 holds the field.

(ii) I also quash the act of placement of a copy of the Second Agreement dated 9.2.1999 in the working papers of BOG 13th Meeting as a follow-up report of BOG 12th Meeting for the reasons already recorded herein above, under Section 8.5 of the Act and declare that the same cannot be treated as a part of the proceedings of the BOG, 13th Meeting held on 6th March, 1999 and is of no legal consequence.

(iii) The Statutes, which were approved by the BOG in its llth Meeting held on 23.6.1998 and assented to by the then Chancellor without any additions, hold the field and IF and the University are obliged to follow the same.

(iv) I direct the Vice-Chancellor to cause the Constitution of various committees envisaged by the Statutes within a period of seven (7) days from the receipt of a copy of this order, except that the nomination by the BOG of three members on the Executive Council of HUIC in terms of Clause 2.1(b) thereof (if not already done) is to be made in the first meeting of the BOG after receipt of this order but in any case not later than thirty (30) days thereof.

(v) M/s. A.F. Ferguson, Chartered Accountants, will be requested by the Vice-Chancellor to examine the accounts books and other relevant record of HUIC for the period from 1.2.1998 to date, to ascertain the amount/assets, which would have remained with HUIC, if Clause 3 of the First Agreement dated 1.6.1998 would have been adhered to, and no amount for unjustifiable reason would have been spent and/or withdrawn and/or diverted to any purpose other than HUIC. Upon ascertainment of such amounts/assets, IF would deposit the difference, if any, in the account of HUIC, within two (2) months of such ascertainment. After such deposit by IF, the

University would refund the amount received by it as 15% of the gross revenue under the alleged Second Agreement dated 9.2.1999toHUIC.

In case M/s A.F. Ferguson, Chartered Accountants, decline to accept the above request, the Chancellor shall nominate some other reputable firm of the Chartered Accountants for the above purpose.

(vi) Upon receipt of the above amounts from IF and the University referred to hereinabove in para (v), the efforts shall be made to purchase a suitable land and/or building in Islamabad for the establishment of a permanent campus having good facilities for the students.

(vii) The Selection Committee to be constituted or cause to be constituted as per statutes, for HUIC by the Vice-Chancellor, shall review the appointments already made, within a period of three (3) months, in order to ascertain, whether the same are made on merits and would take corrective action/actions, if any, required.

(viii)The Vice-Chancellor shall set up a separate cell for campuses outside Karachi and shall evolve a mechanism, which shall ensure the compliance of the terms of the First Agreement dated 1.6.1998 and the statutes/regulations/rules.

"B"

In the alternative, in case IF does not accept the above orders mentioned in Para A (i) to (viii), I order as under :--

(i) The First Agreement for the reasons recorded inter alia hereinabove in Para 20 and without prejudice to the foregoing, the alleged Second Agreement for the reasons mentioned hereinabove in Para 21, are liable to be terminated and they shall stand terminated on receipt of this order and that the name of Hamdard University shall not be used in any form by IF, subject to proviso that the students, who have already been enrolled with HUIC by the date of termination of above agreements, whose list will be obtained by the Vice-Chancellor, would be entitled to continue to pursue their studies with IF as per Hamdard University's requirements and would be entitled to receive degrees of Hamdard University, if they pass the examinations according to the relevant Statutes/Regulations/ Rules.

(ii) The University would make efforts to open a campus at Islamabad on its own or in collaboration with any society or organization having sound reputation of rendering services in

educational field without any commercial motivation within a reasonable period. The above enrolled students at HUIC would have option either to continue their studies with IF or to switch over to Hamdard University's newly proposed campus on payment of prescribed fees and other charges for the relevant semesters.

(iii) The Vice-Chancellor shall file a suit in a competent Court of law for appropriate reliefs including for accounts against IF on the basis of the First Agreement dated 1.6.1998 in terms thereof, for the recovery of the University's 51% share in the assets of HUIC, which would have been accumulated upto the date of termination of the above agreement, if IF had not spent/withdrawn/diverted the funds for any reason/purpose not admissible under the said agreement/statutes. In the proposed suit, an application for appointment of an administrator or a receiver of HUIC may also be filed, if so advised by the lawyer to be engaged.

(iv) The Vice-Chancellor shall take such further action/actions, which will ensure the compliance of this order and will protect the interest of the University and students.

1. From the language of the order as reproduced above, it seems that the contention of Mr. S.M. Zafar that through this order basically a proposal/offer for the settlement of dispute of an educational institution was extended to the petitioners, appears to be well founded and justified. In case the Respondent No. 1 had intention to take any unilateral decision in the matter, then he might not have invited the petitioners for settlement of dispute and extended the option for the acceptance or otherwise of operative part "A" of the impugned order to them. After perusal of the impugned order, we feel ourselves persuaded to observe that in the facts and circumstances the impugned order is not only just, equitable and fair but also interest of the students already studying at Hamdard University Islamabad Campus has been properly safeguarded. Besides, the same relates to the internal affairs of an educational institution and thus in the given circumstances, calls for no interference in writ jurisdiction.

2. Referring to the contention of Mr. S.M. Zafar about the alleged use of some indecent language against the Respondent No. 1, it may be observed that such allegations have been attributed to the Respondent No. 1 in his capacity as Chancellor of the Respondent No. 2. In any case, if the Respondent No. 1 feels himself aggrieved, it will be open for him to seek his redress in this regard before the proper forum.

3. The upshot of the above discussion is that this petition has no merits and the same is accordingly dismissed in limine.

In view of the above, the listed application has become infructuous and the same is dismissed as such.

(T.A.F.) Petition dismissed.

PLJ 2001 Karachi 78 (DB)

Present: SABiHUDDiN ahmad and muhammad afzal soomro, JJ.

Mst. BUSHRA SADIQ-Petitioner

versus

KARACHI DEVELOPMENT AUTHORITY through its DIRECTOR GENERAL and others-Respondents

Court. P. No. D-1818 of 1999, accepted on 21.12.2000.

(i) Affidavit-

—Constitution of Pakistan, 1973 Article 199~Challenge to non-utilization charges demand by K.D.A.-Affidavit-Its value in constitutional petition- An affidavit ought to be accepted unless rebutted by another statement on oath-Fact supported by affidavit accepted. [P. 79] A

(ii) Constitution of Pakistan, 1973--

—-Art. 199~Charges of non-utilization of plot-Challenge to in extra­ordinary Constitutional jurisdiction-Held-Petitioner addressed various letter to KDA for possession but KDA remained silent-Silence of KDA not explained-KDA itself responsible for not delivering vacant possession of plot-Demand for non-utilization of plot held illegal-KDA was directed to hand over vacant possession to petitioner within one month.

[P. 79] B & C

Kh, Gharib Nawaz Daccawala, Advocate for Petitioner. Syed Jamil Ahmed, Advocate for Respondents. Date of hearing: 21.12.2000.

order

Since the facts and legal questions involved were simple, we decided, with the consent of counsel, to admit and dispose of this petition. The admitted facts briefly appeared to be that the petitioner had purchased a Plot of land from the respondent in open auction in 1988 the petitioner paid the entire sale consideration of more than Rs. 10,00,000/- and an allotment order was issued to her on 9.3.1989 whereby she was required to obtain possession within 30 days.

1. The petitioner however contends that there were illegal encroachment on the plot and therefore by her letter dated 27.3.1989 (written within 30 days period from the allotment order) the respondents

were requested to remove or cause such encroachment to be removed so that she may obtain vacant and peaceful possession. However she was not given any reply thereafter. She kept on approaching the officers of the respondents as well as other authorities through various letters but having failed to obtain any redress she addressed legal notices through her advocate. In response to such notice she was informed by letter dated 12.7.1999 that she had failed to obtain possession within the given time and upon her mak­ing an application the case would be proposed and submitted to DG for condonation of delay and delivery of possession on payment of necessary dues. The above order has been called in question through this petition.

1. In their comments the respondents have alleged that the petitioner herself was responsible for not obtaining possession in time. It has been averred that though she wrote a few letters but did not appear personally in the office of the Executive Engineer to obtain possession. Copies of some letters purported to have been addressed by the Assistant Director (Commercial) to the petitioner in 1999 have also been annexed to the comments. The petitioner however has refuted the assertion by filing a reply alleging that the petitioner visited the office of the concerned Executive Engineer for more than 100 times.

2. We do not propose to enter any factual controversy. Nevertheless it is the settled legal position that a statement supporting by an affidavit ought to be accepted unless rebutted by another statement on oath. The concerned officer of the KDA has not chosen to file an affidavit and therefore the factual assertion purporting to contradict the petitioner cannot be accepted.

3. Even otherwise, allegation that several letters were addressed by the petitioner has not been expressly refuted and all that has been said is that she did not attend personally to receive possession. Curiously however while the allotment letter was issued in 1989 all the letter written by the KLA officials filed alongwith the comments were written in 1999. There is no explanation for a mysterious silence of about 10 years. Even otherwise there is no requirement of law to make a 'personal visit'.

4. In the circumstances, we are satisfied that the plea to the effect that the petitioner herself was responsible for not seeking possession in time is merely an after thought. It is understandable that KDA was unable to remove encroachments and therefore vacant possession was not given to the petitioner. We are, therefore, of the view that the respondent is not entitled to charge any non-utilization fee from the petitioner. The plot is otherwise available according to the case set up by the KDA itself. We would, therefore, allow this petition and direct the respondent to hand-over vacant possession within one months from today.

(S.A.) Petition accepted.

PLJ 2001 Karachi 80

Present: GHULAM NABISOOMRO AND anwar zaheer jamali, JJ.

JEHANZEB-Petitioner versus

Messers GENERAL TYRE & RUBBER CO. and another-Respondents

C.P. No. D-613 of 2000, disposed of on 27.10.2000.

(i) Administration of Justice--

—Administration of justice-Technicalities-Law favours adjudication of disputes on merits rather than on enforcement of such technicalities observance of which some time may result in giving benefit to defaulting party- [P. 84] C

(ii) Constitution of Pakistan, 1973-

—Art. 199--Relief"Jurisdiction under Article 199 is completely discretionary in nature and can be declined in appropriate cases.

[P. 84] B & C

1997 SCMR 1901, 1998 S.C.M.R. 2268, 1994 SCMR 859 relied.

(iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 38(8)-Worker reinstated into service with all back benefits-Appellate Tribunal ordered deposit of back benefits and monthly salary of worker in pendency of appeal and impugned order suspended subjected to above conditions-Challenge to in writ petition-Held-S. 38(8) of ERO is only applicable and confined to orders of Labour Court which relate to reinstatement of work-man and not to orders of any other nature-S. 38(8) of I.R.O. discussed Zn detail. [P. 83] A

1999 SCMR 1707, PLD 1993 S.C. 109, 1993 SCMR 126, 2000

S.C.M.R. 88, 2000 PLC 235, NLR 1995 T.D (Lah.) 229, 1984

P.L.C. 115, PLD -1975 Kar. 858, 1994 PLC 21,1986 PLC 588 &

1984 PLC 169 ref.

Mr. M. Shafiq Qureshi, Advocate for Petitioner.

Mr. Muhammad Abdul Ghani, Advocate for Respondent No. 1.

Date of hearing: 27.10.2000.

order

Anwar Zaheer Jamali, J.-This petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 calls into question the

legality of the order dated 13.12.1999 passed by the Respondent No. 2, whereby he suspended operation of the order dated 30.11.1999 passed by the Sindh Labour Court No. V, at Karachi, ordering reinstatement of the applicant in service with full back benefits. Relevant facts of the case may be summed up as under;

1. The petitioner was a work-man in the establishment of Respondent No. 1, wherefrom he was removed from his employment. Against such action of Respondent No. 1 the petitioner served a grievance notice under Section 25-A of Industrial Relations Ordinance, 1969 to them on 5.5.1997 which was not replied by the Respondent No. 1. Thereafter the petition filed an application under Section 25-A of Industrial Relations Ordinance 1969 before the Sindh Labour Court No. V at Karachi, agitating therein that his removal/dismissal from service by Respondent No. 1 was illegal and malafide.

2. Respondent No. 1 contested the matter before the Labour Court, however, after usual proceedings application of the petitioner was allowed and consequently he was ordered to be reinstated in service with full back benefits vide order dated 30.11.1999.

3. Against the above order passed by the Sindh Labour Court No. V, at Karachi Respondent No. 1 filed an appeal under Section 37(3) of I.R.O. 1969 before Respondent No. 2 which was accompanied with an application for stay of the impugned order dated 30.11.1999.

4. The Sindh Labour Appellate Tribunal vide it order dated 13.12.1999 admitted the appeal of Respondent No. 1 to regular hearing and also suspended the operation of the impugned order subject to furnishing of bank guarantee by Respondent No. 1 within one month and further directions to continue depositing monthly future salary.

5. In the instant petition this order has been impugned by the petitioner. The main ground urged is that according to the proviso to Section 38(8) of I.R.O. 1969 1969 the Sindh Appellate Tribunal was not competent to suspend the operation of the impugned order for a period of more than 20 days which period has already expired and thus the said order is liable to be set-aside.

6. We have heard Mr. M. Shafiq Qureshi, advocate for the petitioner and Mr. Mahmood Abdul Ghani, advocate for the Respondent No. 1.

7. Mr. Shafiq Qureshi during the course of his arguments read before as Section 38(8) of I.R.O. and contended that in view of clear and unambiguous language of this provision of law the order dated 13.12.1999 is patently illegal and is liable to be set-aside as such. He placed his reliance on a recent judgment of this Court dated 16.3.2000 passed in C.P. No. 87/2000, wherein a Division Bench of this Court held as under:

8. In the above cited cases at Serial Nos. 1 to 8 general principles of law about the powers and jurisdiction of High Court under Article 199 of the Constitution, powers of Labour Appellate Tribunals, power of Court to grant interim reliefs, and ancillary and incidental powers of Court were dilated while in the two unreported cases and other cases at Serial Nos. 11 to 13 in some what similar facts and circumstances, question of stay/suspension of order passed by the Labour Court with reference to Section 38(8) of I.R.O. 1969 was considered. In all these cases in exercise of writ jurisdiction High Court suspended the impugned orders of the Labour Court during the pendency of appeal before the Labour Appellate Tribunal.

9. We have carefully examined the contentions raised before us and also perused the material placed on record. In order to examine the true import of Section 38(8) of I.R.O. 1969 and its proviso it will be useful to reproduce the same herein under:

38.Labour Appellate Tribunal.

(1) ...................................

(2) ...................................

(3) ............ ,......................

(4) ...................................

(5) ..... :.............................

(6) ................................ ....

(7) ...................................

(8) Notwithstanding anything contained in Sub-section (3), if in an appeal preferred to it against the order of a Labour Court directing the reinstatement of a workman, the Tribunal makes an order stating the operation of the order of the Labour Court, the Tribunal shall decide such appeal within twenty days of its being preferred:

Provided that, if such appeal is not decided within the period aforesaid, the order of the Tribunal shall stand vacated on the expiration of the period."

1. From a bare reading of above quoted provision of law it will be seen that the applicability of proviso to Section 38(8) is only confined to the orders of the Labour Court which relate to the reinstatement of a work-man and not to orders of any other nature.

2. Applying this principle to the facts of the present case at best the petitioner can agitate his grievance in respect of impugned order passed by Respondent No. 2 only to the extent of suspension of his reinstatement. So far as the other part of the order relating to suspension of back benefits awarded to the petitioner is concerned same would not be hit by the proviso to Section 38(8) reproduced above. It is also pertinent to note that even otherwise Respondent No. 2 while passing the impugned order fully safeguard the interest of the petitioner with regard to his claim of back benefits by asking the Respondent No. 1 to furnish bank guarantee equivalent to that amount and further to deposit future monthly salary of the petitioner in Court.

3. Perusal of the Court diaries dated 29.3.2000 and 3.5.2000 in the pending appeal reveal that on these dates adjournments were sought before the Respondent No. 2 by and on behalf of the petitioner while on 17.4.2000 learned counsel for the petitioner did not agree for hearing of main appeal and pending applications together resulting in delay in disposal of the appeal. Before us also the learned counsel for the petitioner did not agree to the proposal extended by the other side for disposal of appeal by the tribunal on merits within a weeks time or any other time mutually agreed between the parties and insisted for strict technical observance of proviso of Section 38(8) of I.R.0.1969.

4. It may be observed that law favours, adjudication of disputes on merits rather than on enforcement of such technicalities observance of which some times may result in giving benefit to a defaulting party. In any case to avoid enforcement of such technicalities and to meet the ends of justice in appropriate case exercise of jurisdiction under Article 199 of the Constitution, which is completely discretionary in nature, can be declined. If some case law is needed to fortify this legal position following cases may be referred.

5. Syed Wajih-ul-Hassan Zaidi vs. Government of Punjab andothers(1997 S.C.M.R. 1901).

6. Messrs Airport Support Services vs. The Airport Manager,Quaid-e-Azam International Airport, Karachi and others (1998 S.C.M.R. 2268).

7. Export Promotion Bureau and others vs. Qaiser Shaifullah(1994 S.C.M.R. 859).

8. In the facts and circumstances discussed above we deem it just equitable fair and proper to dispose of this petition in the following terms.

The Respondent No. 2 shall hear and finally decide the pending appeal filed by the Respondent No. 1 being Appeal No. Kar-322/1999, within two weeks from the receipt of this order and till then the impugned order shall remain in operation. In case any of the parties fails to appear or proceed with the appeal before the Respondent No. 2 the tribunal shall pass appropriate orders in accordance with law.

(S.A.) Petition disposed of.

PLJ 2001 Karachi 85

Present:syed ali aslam jafri, J.

Mrs. SULTANA BEGUM-Appellant

versus

MANSOOR JAVEED and another-Respondents

First Rent Appeal No. 494 of 1998, decided on 15.11.2000.

(i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-S. 5—Rent agreement executed before coming into force of Sindh Rented Premises Ordinance, 1979 would not require any attestation by Rent Controller or the First Class Magistrate.

[P. 89] A

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-

—Ss. 19 & 20»Civil Procedure Code, 1908 (V of 1908), S. l»Code of Civil Procedure was not applicable to cases under Sindh Rented Premises Ordinance, 1979 on all fours. [P. 89] B

(iii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—- S. 15(2)-If verifica-tion of ejectment application was not duly attested, such omission was a mere irregularity and could be cured at any stage by directing the party to get the formality observed—Application could not be held as not maintainable for such an omission. [P. 89] C

Miss Sofia Saeed, Advocate for Appellant. Hafiz A. Baqi, Advocate for Respondents. Date of hearing: 13.10.2000.

judgment

This first rent appeal is directed against the judgment, dated 29.5.1998 passed by the learned VI Rent Controller, Karachi-East, dismissing Rent Case No. 752 of 1993 filed by the present appellant/landlady (hereinafter referred u applicant) seeking ejectment of Mansoor Javeed and Shakeel Ahmad (hereinafter referred as opponents) from the first floor of the premises/building situated on Plot Bearing No. 430-C, Central Commercial Area, Allama Iqbal Road, PECKS, Karachi, (hereinafter referred as demised premises) on the ground of default and sub-letting.

The learned Rent Controller issued notices to the opponents who filed their joint written statement denying the ownership of the applicant/ landlady in respect of the demised premises. However, they admitted that the demised premises was let out to Opponent No. 1 by the applicant as back as in 1974. It was denied that there was any default in payment of the rent.

It was also denied that there was any sub-letting. So far the status of Opponent No. 2 is concerned it was stated that he is working as a manager of Opponent No. 1 who is running his business in the demised premises under the name and style of "Lion Communications". The rate of rent being Rs. 400 per month was not disputed. However, it was further stated that a substantial amount as a "security deposit" was also paid to the applicant. It was also stated that the application herself stopped receiving rent hence the Opponent No. 1 started depositing the same in Court in M.R.C. Nos. 2529 of 1978 and 1197 of 1980.

Haroon Siddiqui, attorney of the applicant, filed his affidavit-in-evidence. He was partly cross-examined on 17.4.1998 and his further cross-examination was reserved for want of time and the case was adjourned to 25.4.1998. On that date the witness was present but he was not cross-examined further, as an application for adjournment filed by the learned counsel for the opponents was dismissed by the learned Rent Controller and side of the applicant was closed. It appears from the record that on 5.5.1998 an application was filed by the learned counsel for the opponents for recalling the order, dated 25.4.1998 and allow him to conclude the cross-examination of the witness, but the said application was also dismissed on 27.5.1998. Since the learned Rent Controller by his order, dated 16.5.1998 had already debarred the opponents from filing their affidavits-in-evidence, hence the learned Rent Controller decided to proceed further and framed the following points for determination:--

(1) Whether the opponents have committed wilful default in the payment of the rent since October, 1977?

(2) Whether the Opponent No. 1, has handed over the possession of the case premises to the Opponent No. 2, against the terms and conditions of the tenancy?

(3) Whether the application is not maintainable on the grounds that the same was not verified on oath by the applicant at the time of filing the same as required by the law?

(4) What should the order be?

Points Nos. 1 to 3 were replied in negative and in the result application for ejectment was dismissed with no orders as to costs on 29.5.1998. It is against the said order that the applicant/landlady has filed this appeal.

I have heard the learned counsel for the parties and gone through the record of the rent case with their assistance.

The learned counsel for the applicant has contended that the learned Rent Controller has not only erred in law, but misread the evidence while deciding the issues of default and maintainability against the applicant/ landlady, as there is clear default in payment/depositing of the rent by the Opponent No. 1. She has referred to the notices, dated 3.8.1993 (Exh. A/7)

and 22.8.1993 (Exh. A/8). She has also referred to the reply of the said notices which was sent on 8.9.1993 (Exh. A/9). In order to prove the default, the learned counsel for the applicant has placed reliance on the copies of the applications for withdrawal of the amount of rent deposited in M.R.C. No. 1198 of 1980 (Exhs. A/4 to A/6) and pointed out that rent for various months was either deposited late or was not deposited at all. The learned counsel has particularly pointed out that rent for the months of July and August, 1987 was deposited on 1.8.1987, as also the rent for the months of January and February, 1988 was deposited on 3.2.1988 whereas according to the terms and conditions of the rent-deed, dated 1.1.1974, rent for each month is payable in advance on first of every month. It has been further pointed out by the learned counsel for the applicant that rent for the months of December, 1990 and August, 1991 was not paid/deposited at all. It has been, therefore, vehemently urged that it is a clear case of misreading and non-reading of the evidence by the learned Rent Controller.

The learned counsel for the applicant has also stated that the finding of the learned Rent Controller that the rent agreement was not admissible in evidence because under Section 5 of the Sindh Rented Premises Ordinance, 1979, (hereinafter called the Ordinance) it should have been attested by the Rent Controller or any Civil Judge or First Class Magistrate within whose jurisdiction the premises is situated is not based on proper appreciation of law because an agreement of rent executed before coming into force of the Ordinance does not require registration or attestation by the Rent Controller or a First Class "Magistrate.

The learned counsel for the applicant has further argued that the learned Rent Controller has held the ejectment application to be not maintainable, because the rent application was not verified on oath before the Oath Commissioner or any other concerned authority, though it was a mere irregularity and could be cured at any stage by directing the applicant to get the verification attested.

The learned counsel for the applicant has also pointed out that according to Condition No. 1 of the rent agreement, the monthly Rent of the demised premises was payable in advance on the first day of every month and as such, any default in violation of the terms and conditions of the rent agreement shall make the Opponent No. 1 a wilful defaulter. Reliance has been placed on the case ofAlifDin v. Khadim Hussain 1980 SCMR 767 and Muhammad Akbarv. Shaikh Nasiruddin 1991 MLD 1338.

The learned counsel for the opponent while refuting the arguments of the other side has stated that there is no default on the part of the Opponent No. 1 who is the tenant of demised premises and the burden of proof was upon the landlady/applicant to prove the specific default but there is nothing in the rent application to show the period of default. The learned counsel has further pointed out that in Para. 3 of the notice, dated 3.8.1993 (Exh. A/7), no period of default is mentioned. The learned counsel in

support of his contention has relied upon the case of Shafique Ahmad v. Abdul Rehman 1987 MLD 2243, wherein it has been held that delay of filing ejectment application not explained, landlord was not issuing any rent receipt and tenant not taking advantage of it, fact that tenant started depositing rent from March, 1978 clearly showed that it was from that month landlord refused to accept rent Tenant was, held, not defaulter in payment of rent in circumstances. The learned counsel for the opponents has also placed reliance upon Allauddin v. Ghazanfar Ali and another 1988 CLC 1343, wherein it has been held that an initial burden in respect of default in payment of rent is upon the landlord and he could discharge the same by making a statement on oath that he had not received rent of particular period and thereafter the burden would shift on tenant to prove tender or payment, which he could do by either producing rent receipts or producing counter-foils of money order or receipts for deposits of rent in miscellaneous rent case.

The learned counsel has further argued that the affidavit-in-evidence filed by attorney of the applicant is not in accordance with the requirements of Order XIX, Rule 3(1), C.P.C. and, as such, defective affidavit-in-evidence without clearly stating how much of statements were true to the knowledge of deponent and how much statements were made on information or belief and without stating source of information or belief being in violation of legal requirements, would be meaningless, valueless and could be ignored.

In support of his contention the learned counsel has placed reliance on the case ofHabib Bux v. Zahoor-ul-Hasan 1986 CLC 1119 wherein it was held as under:

"Order XIX, Rule 3(1) Affidavit-Requirements of--Affidavits verified as true to knowledge and belief of deponent, without clearly stating how much of statements were true to knowledge of deponents and how much statements were made on information or belief, and without stating source of information or belief being in violation of legal requirements, held, would be meaningless, valueless and could be ignored."

The learned counsel has further pointed out that so far the point of sub-letting is concerned there is nothing on record to establish the same. Lastly, he argued that there is nothing wrong with the findings of the learned Rent Controller so far dismissing the ejectment application is concerned.

I have considered the arguments of both the learned counsel for the parties and gone through the case-law. What I find from the record of this case and the judgment passed by the learned Rent Controller, that he was perhaps in no haste to decide the rent case. At the very out set, I have to observe that there was no justification either in rejecting the adjournment application filed by the learned counsel for the applicant or the application

for recalling the order debarring him from completing the cross-examination of the attorney of applicant or leading his evidence in rebuttal.

The view taken by the learned Rent Controller that the rent agreement between the applicant and Opponent No. 1 should have been registered or attested by the Rent Controller or a First Class Magistrate though it was executed much prior to the enforcement of the Ordinance, is not based on proper appreciation of law. The learned Rent Controller has, in fact, ignored proviso to Section 5 of the Rent Ordinance, 1979 which reads as under:

"Provided that nothing in this section shall affect in agreement between the landlord and tenant immediately before coming into force of this Ordinance."

Admittedly, the rent agreement between the parties is dated 1.1.1974 hence it did not require any attestation by the Rent Controller or the First Class Magistrate and, as such, it could not be ignored on this ground. In fact, it was to be looked into for the purpose of determining the obligations of the parties with regard to the terms of tenancy. Moreover, in Para. 7 of the application under Section 15(2) of the Ordinance filed before the learned Rent Controller details of the default have been specifically and categorically mentioned in Clauses (a) to (i). So also in the affidavit-in-evidence filed by the attorney of the applicant there is specific reference with regard to delay in depositing of the rent and a reference has been also made for the period during which no rent has been deposited by the Opponent No. 1 in the miscellaneous rent cases filed by him. However, I am leaving it for the learned Rent Controller to decide this issue afresh keeping in view the evidence to be adduced by the parties.

So far the strict compliance of Order XIX, Rule 3(1), C.P.C. is concerned, it is well-settled that Code of Civil Procedure is not applicable to the rent cases on all fours. Under Section 19 of the Sindh Rented Premises B Ordinance, the procedure to be followed by the Rent Controller has been laid down whereas in Section 20 it has been categorically mentioned as to what powers of Civil Court shall be exercised by a Rent Controller. In this view of the matter it shall be too harsh to dismiss a rent case due to non-compliance of Order XK, Rule 3, C.P.C. before the Rent Controller.

The finding of learned Rent Controller, that verification of the rent application was not duly attested hence the application is not maintainable according to law has also no force, because it is well-settled principle of law that such omission is a mere irregularity and can be cured at any stage by directing the party to get the formality observed. Reliance is placed on the case of Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan 1990 CLC 1473 wherein it has been held as under:

"Order VI, Rule 15~Irregularity in signature or verification was a mere defect and same could be rectified at any stage of the proceeding."

A similar view was taken in the case of Muhammad Munshi and another v. Mst. Rakiya Bi 1990 CLC 301, which reads as under:

"Order VI, Rules 14 and 15-Omission to sign and verify pleadings-­Effect—Omission to sign and verify pleadings is only an irregularity curable at any stage of proceedings and not an illegality likely to result in dismissal of suit."

Under the circumstances, I am of the view that the impugned judgment passed by the learned Rent Controller is liable to be set aside. I also find that important legal aspects of the matter have not been attended by the learned Rent Controller while dismissing the ejectment application. Moreover, I do not find any justification in the view taken by learned Rent Controller while debarring the opponents to lead their evidence and further declining to allow them to complete the cross-examination of the attorney of the applicant. I am, therefore, of the considered view that this case should be remanded to the learned Rent Controller to decide the case afresh after giving reasonable opportunity to the parties to produce and complete their evidence and a chance be given to the applicant to get attested the verification, if she so desires. Since this rent case pertains to the year 1993 hence the learned Rent Controller is directed to complete this exercise not later than six months from the receipt of this order/judgment by him. The office is directed to send back the R&P of the case forthwith to the Rent Controller. The learned counsel for the parties are advised to direct their clients to appear before the learned VI Rent Controller, Karachi-East, on 1.12.2000 positively as no Court motion/notices for their attendance shall be issued by the learned Rent Controller. The appeal is accordingly allowed and the case is remanded to the learned Rent Controller for disposal keeping in view the observations and directions made above. The parties to bear their own costs.

(T.A.F.) Appeal allowed.

PLJ 2001 Karachi 90

Present: S. AHMED SARWANA, J.

MASOOD ASIF and others-Plaintiffs

versus

UNITED BANK LIMITED-Defendant Suit No. 1700 of 1999, decided on 13.10.2000.

(i) Contract Act, 1872 (IX of 1872)--

—S. 28-If there is no express choice of proper law, it is open to Court to determine whether there is any implied or inferred choice of proper law in contract-Question of choice does not arise, where parties have agreed to submit their dispute to Court or arbitration in a particular country-

[P. 99] A

<ii) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--

—S. 10-Agreement between parties was executed in England and both parties agreed to adjudication of their disputes by Courts in England- Plaintiffs filed suit against Bank for reason that Head Office of Bank was in Pakistan-Bank had already invoked jurisdiction of English Courts according to agreement-Effect-Where parties had agreed to a forum for adjudication of their dispute they were directed by High Court to resort to that forum and proceedings in the suit were stayed-Bank having raised serious and bona fide dispute, leave to defend the suit was granted to it. [P. 100] B

Mr. Muhammad Akram Shaikh, Advocate for Plaintiffs.

Mr. Sajid Zahid, Advocate for Defendant.

Dates of hearing: 17, 28.2.2000, 15, 16.3.2000 and 5.4.2000.

order

The brief facts leading to this suit as reflected from the pleadings are as follows:

1. Masood Asif and his wife Nasreen Akhtar (Plaintiffs Nos. 1 and 2) are carrying on business through Messrs Jenice Limited (Plaintiff No. 3), a company incorporated in England whose shares are wholly owned by them (hereinafter referred to as 'Jenice'). Plaintiffs Nos. 1 and 2 allege that they are Nationals of Pakistan residing in England, where they are doing business of Import, Export, Manufacture, Sale and Marketing of various kinds of leather goods. Jenice had been earlier using the services of former B.C.C.I. as their banker; however, in 1990, on the inducement of the officers of United Bank Limited (U.B.L.), Jenice shifted its business to the said bank. They further allege that on account of the conduct of U.B.L., the plaintiffs suffered economic losses, whereupon the plaintiffs filed a suit in the High Court of Sindh at Karachi for Declaration, Permanent Injunction and Recovery of damages amounting to Pounds atg. 10.945 million (Suit No. 1198 of 1997). The plaintiffs also filed an interlocutory application to restrain U.B.L. from appointing administrative receiver of Jenice pursuant to Debenture, dated 2.8.1990 on which the Court ordered Notice against which they filed a petition directly in the Supreme Court of Pakistan (C.P. No. 1018 of 1997), which was withdrawn on 4.2.1998. The plaintiffs also filed Civil Petition No. 2 of 1998 against another interlocutory order of the High Court, dated 24.12.1997. The Supreme Court without deciding the question of maintainability of the petition which was challenged by the defendant, disposed of the same with the direction that if the plaintiffs deposited with

U.B.L. within one week from 5.2.1998 a sum of Pounds 3 Million, the undertaking given by the Bank before the High Court of Sindh in Suit No. 1189 of 1997 would remain operative until disposal of C.M.A. 6254 of 1997 and if the plaintiffs did not do- so, the undertaking given by the Bank before the High Court in the civil suit shall stand discharged. Thereafter, plaintiff filed Review Petition No. 1 of 1998 against the aforesaid order, which was dismissed on 11.2.1998. It transpires that on 16.2.1998, the parties executed a settlement in England whereby the plaintiffs agreed to pay a sum of Four Million Pounds as against the agreed debt of Pound Sterling 6,570,774.25 due from the plaintiffs to the Bank at the close of business on 11.2.1998 within a period of 60 days from the date of the deed. Thereafter, on 23.2.1998, the plaintiffs withdrew Suit No. 1189 of 1997 from this Court without any condition. It further transpires that on 14.5.1998, the parties entered into a supplementary deed whereby U.B.L. agreed that in case Jenice paid a sum of Pounds 80,000 to it on or before 25.5.1998, the time for payment of the settled amount would stand extended to 1.6.1998. The plaintiffs allege that they paid the stipulated sum of Pounds 80,000, thereby leaving an outstanding balance of Pound 3,420,000. They further allege that subsequent to 1.6.1998, lengthy discussions and negotiations regarding settlement of the outstanding amount took place between the parties and U.B.L. agreed to extend the time for payment. However, in spite of promise, the terms of the agreement arrived at between the parties on 28.1.1999 were not put in writing and U.B.L. placed Administrative Receivers of Jenice and Receivers of the mortgaged properties. The plaintiffs further allege that the reason why U.B.L. reneged from their agreement was U.B.L.'s problem with the Bank of England which is the regulatory authority for banking in U.K. As U.B.L. is a Banking Company incorporated under Pakistan Law and has its registered office at I.I. Chundrigar Road, Karachi, the plaintiffs filed the present suit on 6.12.1999 seeking, inter alia, the following reliefs:--

"(a) Declaration that the appointment of the receivers over the assets and personal properties of Plaintiffs Nos. 1 and 2 who are the sole share-holders of plaintiffs' company, by the defendant, its officers, functionaries, representatives, agents and solicitors be declared illegal, unconscionable mala fide, arbitrary, void and of no legal effect, without lawful authority and ineffective as regards properties and assets of Plaintiffs Nos. 1 and 2 and assets of the plaintiffs' company.

(b) Mandatory injunction requiring the defendant to remove directly or acting through its officers, functionaries, representatives, agents and solicitors, the receivers over the personal properties of Plaintiffs Nos. 1 and 2 and assets in the name of plaintiffs' company.

(c) Perpetual injunction restraining the defendant directly or through its officers, functionaries, representatives, agents and solicitors and the receivers, from dealing with in any manner, or disposing of, the personal properties of Plaintiffs Nos. 1 and 2 and the assets and business of the plaintiffs' company.

(d) Requiring the defendant directly or through its officers, functionaries, representatives, agents and solicitors to specifically perform the agreement of 28.1.1999 and suitably varied as aforesaid, the price being adjusted, mutatis mutandisfor monies already received.

(e) Decree for rupees of equivalent GBP 5,200,000 as damages to the plaintiffs against the defendant

1. The plaintiffs filed two interlocutory applications under Order XXXK, Rules 1 and 2, C.P.C., requesting the Court, among others to restrain U.B.L. directly or through its agents, functionaries and receivers from disposing of or dealing with any property of the Plaintiffs Nos. 1 and 2, the business of the Jenice and directing U.B.L. to allow time of 90 days to pay off a sum of Pound 3,470,000 pursuant to oral agreement, dated 28.1.1999. By order, dated 19.1.2000, a learned Judge was pleased to dismiss both interlocutory applications for temporary injunction filed by the plaintiffs against which they filed a petition in the Supreme Court which is apparently pending there. Meanwhile, on 29.12.1999, U.B.L. filed an application under Section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, for grant of leave to defend the suit without prejudice to their challenge to the jurisdiction and competency of the Court. In the said application for leave to defend, U.B.L. has challenged the maintainability of the suit, inter alia, on the following grounds:--

(1) That the plaint arises from the deed of settlement, dated 16.2.1998 which specifically states that the deed shall be governed and construed in accordance with the laws of England and that the parties submit to the exclusive jurisdiction of the High Court of Justice of England. This Court, in the circumstances, therefore, does not have jurisdiction to decide the dispute between the parties.

(ii) That the Plaintiffs Nos. 1 and 2 are British Nationals while Plaintiff No. 3 is incorporated in England. All the plaintiffs are residing and carrying on business in England where their

immovable properties which were given as security to U.B.L. are situated. Further, all banking transactions between the parties took place exclusively in London where all the evidence in relation to the suit is available and consequently, the suit in this Court is hit by the doctrine of Forum non-convenients.

(iii) The present proceedings are barred under the principle of res judicata as the plaintiffs commenced and continued with the same claim against U.B.L. in England up to the Court of Appeal.

1. In reply to the aforesaid objections, Mr. M. Akram Shaikh, learned counsel for the plaintiffs submitted as follows:-

(i) As the Head Office of U.B.L. is situated in Pakistan an action can be filed in this Court though other ingredients of jurisdiction may be absent. Pakistan is the most suitable place to file a suit in view of the judgments reported in PLD 1960 SC 202, 1981 SCMR 494 and PLD 1991 SC 780.

(ii) The deed of settlement, dated 16.2.1998 allowed a refinancing period of 60 days which was extended up to 1.6.1998. The time for payment up to 1.6.1998 was not the essence of the contract as U.B.L. did insist on it '-ud did not take any action to enforce the contract by taking any steps for appointment of a receiver and continued to discuss the question of payment and orally agreed to further extension of time; however, they reneged from their promise and on 6.4.1999, got receivers of the properties of the plaintiffs appointed which was in violation of law. The claim of U.B.L. included penalty which issue cannot be raised in U.K. but can only be raised in Pakistan under Section 74 of the Contract Act, 1872 and, therefore, this Court has competent jurisdiction to entertain the claim and decide the issues raised in the suit.

(iii) The law of contract in Pakistan is different from English Law. Both the plaintiffs and defendant (U.B.L.) are citizens of Pakistan and are accordingly bound by the law of Pakistan which prohibits charging of interest which is contrary to Islamic Law. The rights guaranteed under Articles 4 and 5 of the Constitution are sacrosanct and all citizens are entitled to have their disputes decided in accordance with Pakistani Law no matter where they may be residing and any agreement to the contrary is void; Consequently, this Court should entertain the claim of the plaintiffs and decide the same in accordance with Pakistani Law. (PLD 1975 SC 383, 394).

(iv) Under Article 29 of the Constitution of Pakistan, U.B.L. is a person or authority performing functions in connection with the affairs of the Federation which can only he sued in Pakistan for enforcement of the right? guaranteed by the Constitution and referred to 1998 SCMR 2268 in this respect.

(v) In England no leave to defend the suit was granted to the plaintiff, the matter was decided under summary procedure, there has been no adjudication in England on merits and substantial questions of law including those of Section 74 of the Contract, Act, 1872 and charging of Ribahought to be decided by this Court. The judgment does not meet the requirements of Section 13, C.P.C. and is, therefore, not binding and conclusive between the parties.

I have heard the arguments of Mr. Sajid Zahid, learned counsel for the defendant (U.B.L.) on his preliminary objection challenging the jurisdiction of the Court which are also the grounds on which leave to defend the suit has been sought by U.B.L. and Mr. Muhammad Akram Shaikh, learned counsel for the plaintiffs, who vehemently opposed the same.

At the outset Mr. Sajid Zahid conceded that in view of the provisions of Section 20, C.P.C. this Court is competent to hear the matter on the ground that U.B.L. against whom relief is claimed has its Head Office at Karachi; however, he challenged the jurisdiction of the Court to hear the matter, requested rejection of the plaint under Order VII, Rule 11, C.P.C. or in the alternative stay of the proceedings and advance his arguments on the grounds stated above.

It is an admitted position that Plaintiffs Nos. 1 and 2 who are holders of all the shares of Jenice, a company incorporated and existing under the Laws of England, are carrying on business in that country for the last several years, that Jenice obtained a loan from U.B.L. and after differences developed between the parties the plaintiffs filed Suit No. 1189 of 1997 in this High Court wherein, inter alia, they sought to restrain U.B.L. from appointing any Receiver or Liquidator of their properties. The application for temporary injunction was decided against the plaintiffs who went to the Supreme Court of Pakistan against the said order. Ultimately the dispute between the parties was settled by a deed of settlement, -dated 16.2.1998 and consequently, on 23.2.1998 the said suit was dismissed as withdrawn with no orders as to costs. The deed, dated 16.2.1998 which was executed by all the plaintiffs and U.B.L. clearly states that the agreed debt due from the plaintiffs at close of business on 11.2.1998 was Pounds 6,570,774.25 and that U.B.L. had agreed to accept a sum of Pounds 4 million (greed amount) in satisfaction of the debt on the condition that the plaintiffs would deposit within seven days of the date of the deed a sum of Pounds 400,000 on account of the agreed amount and the balance of Pounds

3,600,000 within sixty days from the date of the deed. The agreement further provided that U.B.L. shall not be under any obligation to accept the agreed amount in full satisfaction of the debt if the plaintiffs committed breach of any of the terms of the deed which included payment as sated above. The deed also provided that "Time shall in all respects be of the essence of this Deed" (Clause 12). The clause relating to Governing Law and Jurisdiction provided as follows:

"The borrower and the Bank agree that this deed shall be governed and construed in accordance with Laws of England and that they submit to the exclusive jurisdiction of the High Court i>f J^ice England in relation to any dispute between them arising out of this deed and/or the banker customer relationship between the parties. (Clause 13)."

The deed of settlement further provided that

"This deed construes the entire agreement between the parties with respect to the matters dealt with in it and supersedes and previous

agreement between the parties in relation to such matters........... No

variation of this deed shall be valid or effective unless made by one or more instruments in writing signed by the parties to the deed. (Clause 14.8.)."

It is also an admitted position that the plaintiffs failed to repay the amount stipulated in the deed of settlement within the agreed period which by supplementary deed of settlement, dated 14.5.1998 was extended up to 1.6.1998. It is alleged by the plaintiffs that U.B.L. verbally greed to extend the time but instead of acting upon their promise they commenced recovery proceedings against the plaintiffs in terms of the security document executed by them in favour of U.B.L., namely, deed of debenture and personal guarantees. Both, the plaintiffs and the defendant filed their claims and counterclaims in the English Court which litigation apparently culminated in favour of U.B.L. up to the Court of Appeal. The primary objection of Mr. Zahid, learned counsel for U.B.L., is that in view of the exclusive jurisdiction clause referred to above this Court does not have jurisdiction to entertain the suit as both the parties agreed to have their disputes decided in accordance with Laws of England by the High Court of Justice, England. He emphasized that after the parties had expressly greed to such terms, the plaintiffs cannot invoke the jurisdiction of this Court for resolution of their dispute which must be decided by the English Court. He, however, conceded that the jurisdiction of this Court is not completely outset because U.B.L. has its Head Office in Karachi but this Court should treat the Exclusive Jurisdiction Clause in the nature of an arbitration clause, stay the proceedings and direct the parties to have their dispute decided by the agreed forum. In support of his contention he relied upon the case of M.A. Chowdhury v. Mitsui O.S.K.

Lines Limited and 3 others PLD 1970 SC 373 at 394 wherein the Chief Justice Hamoodur Rahman as he then was, observed as follows:

"I am of the opinion that in order to preserve the sanctity of contracts I ought also to hold, as was done in the earlier cases in Great Britain that such foreign jurisdiction clauses, even when they purport to give jurisdiction to a Court in a foreign country^are really in the nature of arbitration clauses which come within the exceptions to Section 28 of the Contract Act and therefore, should be dealt with in the same manner as other arbitration clauses. In the case of an arbitration it has to be remembered that the jurisdiction of the Court is not altogether ousted, for, the Courts merely stay their hands to allow the parties to resort to the form of adjudication to which they have previously agreed. By only staving the actions before them the Courts still retain to themselves the jurisdiction to resume the case if the arbitration, for any reason, fails or the parties find it impossible to comply with the form of adjudication to which they had agreed."

To reinforce the above argument he also referred to the case of Messrs Eckhardt & Co. v. Muhammad Hanif PLD 1993 SC 42 at page 52 where Ajmal Mian, J. as he then was, in his separate note observed as follows:

"The rule that the Court should not lightly release the parties from their bargain, that follows from the sanctity which the Court attaches to contracts, must be applied with more vigour to a contract containing a foreign arbitration clause. We should not overlook the fact that any breach of a term of such a contract to which a foreign company or person is a party, will tarnish the image of Pakistan in the comity of nations. A ground which could be in contemplation of party at the time of entering into the contract as a prudent man of business, cannot furnish basis for refusal to stay the suit under Section 34 of the Act."

In reply Mr. Muhammad Akram Shaikh, learned counsel for plaintiffs, submitted that there was no arbitration clause in the deed of settlement, dated 16.2.1998 and, therefore, the present proceedings could not be stayed for referring the matter for decision as contended by U.B.L. Mr. Shaikh further contended that as a citizen of Pakistan he relied upon Section 74 of the Contract Act, 1872 which prohibits imposition of any penalty in case of breach of contract and according to which the claimant has to prove the loss arising from the breach before he can recover it and added that under the terms of the deed of settlement a penally had been imposed upon the plaintiffs which is contrary to Section 74 of the Contract Act, 1872. Further under English Law he would be liable to pay interest which cannot be recovered in Pakistan which defenses would not be available to the plaintiffs in the English Courts. He further submitted that the deed of

settlement dated 16.2.1998 was executed under economic duress and therefore, it was not a valid document as described in the judgment of this Court in the case of Abdul Rahim v. U.B.L. PLD 1997 Kar. 62.

The answer to the objections raised by Mr. Shaikh are simple. Undoubtedly, there is not arbitration clause in the deed of settlement, dated 16.2.1998, but it is not the case of U.B.L. that there is an arbitration clause or that the Supreme Court of Pakistan in case of M.A. Chawdhury held that there has to be an arbitration clause in the agreement between the parties before the proceedings can be stayed. What the Honourable Supreme Court has held and what Mr. Zahid has argued is that the foreign jurisdiction clause is in the nature of an arbitration clause and, therefore, the judgment of the Supreme Court of Pakistan in the case of M.A. Chawdhury, is applicable. The argument that by deed of settlement dated 16.2.1998 plaintiffs are required to pay a penalty in case of breach of the agreement is misconceived. The deed clearly states that the agreed amount is Pounds 6,570,774.25 and U.B.L. agreed to accept Pounds 4 million in satisfaction of the debt provided certain conditions were fulfilled. The difference between the debt amount and the amount agreed to be accepted in final satisfaction of the debt is not a penalty but a concession or indulgence given by U.B.L. to the plaintiffs if the latter paid Pounds 4 million according to the agreed terms on schedule. Further, it is an admitted position that Jenice, a company incorporated in England, is carrying on business in England, borrowed money under English Law and in the deed of settlement dated 16.2.1998 the plaintiffs agreed that "this deed shall be governed and construed in accordance with laws of England and that they submit to the exclusive jurisdiction of the High Court of Justice England in relation to any dispute , between them arising out of this deed and or banker customer relationship between the parties". The plaintiffs are residing and carrying on business in England where all their activities without exception are subject to English Law and they cannot in their daily lives contract out of English Law and insist that if they have any dispute with a Pakistani it must be decided in accordance with Pakistani Law and the English Court on their application stay the Court proceedings to enable them to have their dispute decided by Pakistani Courts in accordance with Pakistani Law especially because transactions based on interest are prohibited in Pakistan being contrary to the principles of Islamic Finance. Assuming for the sake of argument that there is no express intention to apply the English Law, such a request if made, would be rejected by all Courts because the system of law with which the transaction has the closest and most real connection in the English Law (see Dicey and Morris on "The Conflict of Law", Eleventh Edition, 1987).

In their International business dealings where the plaintiffs have a choice of law including the present one, the plaintiffs chose not to exercise such option and in the deed of settlement expressly agree that they would have all their disputes arising out of the deed and/or banker customer relationship settled in accordance with English Law and exclusively by the High Court of Justice, England. After having given such an undertaking it does not behave the plaintiffs to contend that the dispute between the parties should be decided in Pakistan and under Pakistani Law. Moreover, the plaintiffs are professing to be good Muslims. They must therefore, fulfil their obligations/covenant which they undertook in the deed of settlement dated 16.2.1998. (Surrah V, Al-Maidah, Ayat 1 and Surah XVH, Al-Isra, Ayat 34).

Further, it is well established that where there is no express choice of the proper law, it is open to the Court to determine whether there is any

implied or inferred choice of the proper law in the contract and where the

.

parties agree that any dispute shall be submitted to the Court of or arbitration in a particular country, the question of choice does not arise and the intention of the parties must be implemented (Karachi Gas Company Limited v. Hasham Issaq PLD 1981 Kar. 197). The parties having agreed to have their dispute decided by English Courts under English Law by agreement dated 16.2.1998, the plaintiffs are bound by the agreement and cannot back out from the same. As far as the defence of economic duress in relation to the execution of the deed of settlement is concerned, suffice it to say that the said judgment is in consonance with the principles of English Law and the plaintiffs are and would be free to take such defence in the English Courts.

It would not be out of place to mention here that in accordance with the provisions of the deed of settlement dated 16.2.1998, U.B.L. filed an action in the High Court of Justice, Queen's Bench Division, and the Court after considering the cases of both parties in accordance with the applicable law and procedure rejected the defences put forward by the plaintiffs and Master Eyre passed an order in favour of U.B.L. on 29.6.1999. In the said case the plaintiffs had also filed a counterclaim against U.B.L. which was also rejected by Master Eyre on the same day. It appears that the plaintiffs then filed an appeal against the order of Master Eyre before Mr. Justice Wright which was dismissed on 27.7.1999. Thereafter, the parties apparently filed appeals in the Court of Appeal (Civil Division) against the judgment of Justice Wright which was decided by Lord Justice Thorpe and Lord Justice Mantell against the plaintiffs by judgment, dated 11.2.2000. It is, therefore, evident that the plaintiffs have already been pursuing their remedy in the

form and the agreed forum of adjudication provided in the deed of settlement. After the judgment of the Court of appeal the plaintiffs can file further appeal in accordance with English Law.

The argument of Mr. Shaikh, learned counsel for the plaintiffs, that the judgment given hy the English Courts do not meet the requirements of Section 13, C.P.C. and accordingly it cannot he enforced in Pakistan is irrelevant. It would not he proper to comment upon the judgment pronounced by the English Court in the present dispute between the parties as U.B.L. has not so far invoked the jurisdiction of this Court to enforce the same. This Court would look into the validity of the English judgment at the appropriate time when it is brought to this Court for execution. The remedy of the plaintiffs, if any, at this point of time, is in the English Courts as agreed by them in the deed of settlement dated 16.2.1998. The suit is not bona fide and this Court cannot at this stage restrain U.B.L. from proceeding with their claim in accordance with English Law in the English Courts as agreed by the parties.

In light of the judgment of the Supreme Court of Pakistan in case of M.A. Chowdhury, it is a fit case in which this Court should stay the proceedings and direct the plaintiffs to resort to the form of adjudication which they had agreed to in the deed of settlement. Having reached the conclusion that the proceedings in the suit should be stayed, it is not necessary to discuss the other points raised by both learned counsel.

As discussed above the defendant has raised serious and bona fide dispute; accordingly, their application for leave to defend is granted and they are directed to file their written statement within 90 days. Following the law laid down in M.A. Chawhury's case the proceedings in the present suit are stayed and the plaintiffs are directed to agitate their dispute in England in accordance with English Law and get it decided by the English Courts as expressly agreed by them. The plaintiffs may approach this Court for revival of the proceedings, if they find it impossible to comply with the form of adjudication to which they had agreed. In such event, U.B.L. shall have the right to file an amended, revised for further written statement and defend the proceedings in accordance with law.

In view of the above discussion it is apparent, that the plaintiffs' opposition to defendant's application for leave to defend the suit, their request for stay of proceedings in Pakistan and direction to the plaintiff to pursue his remedy in the agreed form were patently vexatious. Consequently, the plaintiffs shall pay special costs of Rs. 15,000 to the defendant.

(T.A.F.) Order accordingly.

PLJ 2001 Karachi 101

Present: zia pervwez, J.

COLLECTOR OF CUSTOMS (APPRAISEMENT), COLLECTORATE, OF

CUSTOMS, GOVERNMENT OF PAKISTAN, CUSTOMS HOUSE, KARACHI and others—Applicants

versus

Messrs IMRAN ENTERPRISES through PROPRIETOR and others-Respondents

Revision Applications Nos. 44 to 60 of 1999, decided on 6.11.2000.

Customs Act, 1969 (IV of 1969)--

—S. 217-Civil Procedure Code, 1908 (V of 1908), O.XXX, Rr. 1 & 10-Comparative study of Order 30, Rule 1, C.P.C. which deals with suits by a partnership firm permits filing of suits by or against a partnership firm whereas Order 30, Rule 10, C.P.C. which deals with suit in name of proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietary-Thus, a proprietary concern can be sued in its name but it cannot sue in its own name- [P. 105] A

Mr. Shakeel Ahmed, Advocate for Applicants. Nemo for Respondents.

order

This order will dispose of the Revision Applications Nos. 44 to 60 of 1999 involving the common point of law filed by the Islamic Republic of

Pakistan and Collector of Customs and are directed against the impugned orders of the Ilnd Additional District and Sessions Judge, Karachi West

against the judgment and decree in the original suit. The appellants seek redress against the impugned orders. The facts leading to these revision applications are as under:—

1. That the plaintiff in Suit No. 637 of 1996 followed by Revision Application No. 44 of 1999 imported consignment of Betel Nuts 278 bags, weighing 25 metric ton at the rate of US $775 per metric ton being Cargo of Eagle Integrity under I.G.M. No. 549/95, dated 27.3.1995 Index No. 191 the Bill of Entry filed by the Importer was assessed at value higher than declared by the Importer resulting in payment of extra amount of Rs. 30,927 towards increase duties and sales tax.

2. That the plaintiff in Suit No. 636 of 1996 followed by Revision Application No. 45 of 1999 imported consignment of Rund Balooch Gamble 72 bags weighing 4.75 metric ton at the rate of US $ 2631.55 per metric ton being Cargo Eagle Cape under I.G.M No. 1519/94, dated 22.8.1994 Index No. 246 the BUI of Entry filed by the Importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 36,381 towards increased duties and sales tax.

3. That the plaintiff in Suit No. 414 of 1996 followed by Revision Application No. 46 of 1999 imported consignment of Betel Nuts 260 bags weighing 25 metric ton at the rate of US $ 775 per metric ton being Cargo of Eagle Integrity under I.G.M No. 519/95 dated 27.3.1995 Index No. 189 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 28,760 towards increased duties and sales tax.

4. That the plaintiff in Suit No. 710 of 1996 followed by Revision Application No. 47 of 1999 imported consignment of Betel Nuts 378 bags weighing 18 metric ton at the rate of US $ 600 per metric ton being Cargo of IBN Abdoue under I.G.M No. 1113/94 dated 13.6.1994 Index No. 35 the Bill of Entry filed by the importer was assessed at value higher than declared by the Importer resulting in payment of extra mount of Rs. 33,520 towards increased duties and sales tax.

5. That plaintiff in Suit No. 413 of 1996 followed by Revision Application No. 48 of 1999 imported consignment of Betel Nuts 269 bags weighing 25 metric ton at the rate of US $ 775 per metric ton being Cargo of Eagle Integrity under I.G.M No. 477/95, dated 20.3.1995 Index No. 216 the Bill of Entry filed by the importer was assessed at value higher than declared by he Importer resulting in payment of extra amount of Rs. 30,860 towards increased duties and sales tax.

6. That the plaintiff in Suit No. 772 of 1996 followed by Revision Application No. 49 of 1999 imported consignment of Betel Nuts 277 bags weighing 26 metric ton at the rate of US $ 725 per metric ton being Cargo of Eagle Integrity under I.G.M.. No. 625/95 dated 17.4.1995 Index No. 271 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 36,500 towards increased duties and sales tax.

7. That the plaintiff in Suit No. 773 of 1996 followed by Revision Application No. 50 of 1999 imported consignment of Betel Nuts 288 bags weighing 25 metric ton at the rate of US $ 800 per metric ton being Cargo of Eagle Integrity under I.G.M. No. 382/95 dated 6.3.1995 Index No. 233 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 31,500 towards increased duties and sales tax.

8.That the plaintiff in Suit No. 771 of 1996 followed by Revision Application No. 51 of 1999 imported consignment of Betel Nuts 275 bags weighing 25 metric ton at the rate of US $ 795 per metric ton being Cargo of Transcord under I.G.M No. 442/95 dated 25.3.1996 Index No. 302 the BUI of Entry ffled by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 58,000 towards increased duties and sales tax.

1. That the plaintiff in Suit No. 730 of 1996 followed by Revision Application No. 52 of 1999 imported consignment of Betel Nuts 277 bags weighing 26 metric ton at the rate of US $ 750 per metric ton being Cargo of Eagle Integrity under I.G.M No. 739/95 dated 8.5.1995 Index No. 339 the Bill of Entry ffled by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 33,821 towards increased duties and sales tax.

2. That the plaintiff in Suit No. 770 of 1996 followed by Revision Application No. 53 of 1999 imported consignment of Betel Nuts 277 bags weighing 26000 of Kg. at the rate of US $ 725 per metric ton being Cargo of Eagle Integrity under I.G.M. No. 666/95 dated 24.4.1995 Index No. 260 the BUI of Entry ffled by the importer was assessed at value higher than declared by the importer resulting payment of extra amount of Rs. 36,300 towards increased duties and sales tax.

3. That the plaintiff in Suit No. 719 of 1996 foUowed by Revision Application No. 54 of 1999 imported consignment of Betel Nuts 286 bags weighing 26 metric ton at the rate of US $ 775 per metric ton being Cargo of Eagle Integrity under I.G.M. No. 625/95 dated 17.4.1995 Index No. 286 the Bill of Entry ffled by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 30,712 towards increased duties and sales tax.

4. That the plaintiff in Suit No. 724 of 1996 followed by Revision Application No. 55 of 1999 imported consignment of Betel Nuts 199 bags weighing 16 metric ton at the rate of US $ 525 pet metric ton being Cargo of Kotauaganega under I.G.M. No. 563/96 dated 17.4.1996 Index No. 19 the BUI of Entry ffled by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 71,822 towards increased duties and sales tax.

5. That the plaintiff in Suit No. 713 of 1996 followed by Revision Application No. 56 of 1999 imported consignment of Betel Nuts 250 bags 12.5 metric ton at the declared rate being Cargo of Lanka Rawan under I.G.M. No. 477/95 dated 17.6.1995 Index No. 216 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 9,000 towards increased duties and sales tax.

6. That the plaintiff in Suit No. 712 of 1996 followed by Revision Application No. 57 of 1999 imported consignment of Betel Nuts 80 bags weighing 5 metric ton at the rate of Rs. 17,000 per metric ton being Cargo of Trade Expansion under I.G.M. No. 274/95 dated 17.5.1995 Index No. 398 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 9,750 towards increased duties and sales tax.

7. That the plaintiff in Suit No. 714 of 1996 followed by Revision Application No. 58 of 1999 imported consignment of Betel Nuts 209 bags weighing 12.5 metric ton at the rate of Rs. 24,000 per metric ton being Cargo of Khabir under I.G.M. No. 1204/95 dated 5.8.1995 Index No. 331 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 9,600 towards increased duties and sales tax.

8. That the plaintiff in Suit No. 521 of 1996 followed by Revision Application No. 59 of 1999 imported consignment of Betel Nuts 275 bags weighing 23 metric ton at the rate of US $ 400 per metric ton being Cargo of Eagle Cape under I.G.M. No. 928/94 dated 16.5.1994 Index No. 196 the BUI of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 93,000 towards increased duties and sales tax/

9. That the plaintiff in Suit No. 419 of 1996 followed by Revision Application No. 60 of 1999 imported consignment of coconut oil 98 drums weighing 3.5, 17.640 at rate of US $ 500 per metric ton being Cargo of Naptune under I.G.M. No. 1286/93 dated 27.6.1993 Index No. 45 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs. 44,299 towards increased duties and sales tax. Aggrieved with this levy the aforementioned suits were filed by the plaintiff in the Court of IUrd Senior Civil Judge. Suits were decided by the judgment, dated 29.5.1998 following the decrees dated 4th July, 1998. Appeals were filed by the present respondents against the decrees in the Court of District and Sessions Judge, Karachi West/Appeals alongwith an application seeking stay of the operation of the impugned decree were filed. While the appeals were admitted, Ilnd Additional District and Sessions Judge, Karachi West refused to grant stay vide order, dated 31.5.1999. Aggrieved by this order appellants have filed the present revision applications All the cases involve common point of law. Learned counsel,states that all the suits were instituted by one Abdul Razzak son of Hqji Abdul Sattar as proprietor of the plaintiff firm Objection regarding the jurisdiction of the Court was taken by the present appellants before the trial Court as well as at the appellate stage. The learned Advocate argued that the trial Court as well as Appellate Court acted beyond their jurisdictions in impugned judgment, decreed and order. The main ground of their attack is that suit against Customs is barred under Section 217 of Customs Act (Act IV of 1969) as amended and reads as under:-

(1) No suit, prosecution or other legal proceeding shall lie against the (Federal Government) or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the Rules.

(2) No suit shall be brought in any Civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act."

Learned counsel further argued that the remedy is available to the importer under Section 193 of the Customs Act, 1990 for filing appeal before Collector Appeal which is appropriate forum in this case and competent to decide such matters.

The plaint in all the suits are filed in the name of a proprietorship firm. Rule 1 of Order XXX, C.P.C. provides that any two or more persons claiming or being liable as partners and carrying on business in Pakistan may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action. Order 30, Rule 10, C.P.C. provides that any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. Comparative study of Order 30, Rule 1, C.P.C. which deals with suits by a partnership firm permits filing of suits by or against a partnership firm whereas Order 30, Rule 10, C.P.C. which deals with suit in the name of the proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietary. Thus, a proprietary concern can be sued in its name but it cannot sue in its own name. Ismail Hqji Sulaiman v. Messrs Line and another PLD 1961 Dacca 693, Habib Bank Limited v. Iqbal I. Chundrigar 1983 CLC 1964 and Ahan Saz Contractors v. Pak Chronical Limited 1999 MLD 1781. The learned counsel states that Senior Civil Judge has exercised jurisdiction not vesting in him by law and proceeded with material irregularities in admitting and decreeing the above suits. Having come to a conclusion 29.5.1998 rejected the plaint under Order VII, Rule 11, C.P.C. and set aside the judgment and decree abovementioned passed in which case appeals pending before the Ilnd Additional District Judge, Karachi West are dismissed. Accordingly appeals alongwith pending applications are allowed. Since the Revision Applications have been disposed of all the pending applications have become infructuous which are dismissed accordingly.

(T.A.F.) Order accordingly.

PLJ 2001 Karachi 106

Present: muhammad ashraf leghari, J. ALI JAN--Petitioner

versus Mst. AKBAR and others-Respondents

C.P. No. S-1074 of 1999 and Civil Misc. Appln. No. 1078 of 2000, decided on 31.8.2000.

(i) Constitution of Pakistan (1973)--

—-Art. 199-Relief touching contractual elements cannot be granted in Constitutional jurisdiction-Finding of fact recorded by competent Courts is not open to interference by High Court in exercise of such jurisdiction- Court which has jurisdiction in the matter can decide matter rightly or wrongly and such order cannot be interfered with in Constitutional jurisdiction unless the same is mala fide, arbitrary, perverse or Court has acted in excess of its jurisdiction. [P. 108] B

(ii) Constitution of Pakistan (1973)--

—Art. 199-Constitutional jurisdiction is discretionary and same is to be used in good faith having looked at all attending circumstances and relevant factors of case-Such discretion is to be used in just, fair and reasonable ways. [P. 108] C

(iii) Family Courts Act, 1964 (XXXV of 1964)--

—-Ss. 5 & 14(2)~Dissolution of marriage on the basis of Khula'--No right of appeal in such case having been provided under the provisions of S. 14(2) of Family Courts Act, 1964, Constitutional jurisdiction could not take place of appellate jurisdiction. [P. 108] A

Mughal Mumtaz All Khan, Advocate for Petitioner. Ghulam Hussain, Advocate for Respondent No. 1. Date of hearing: 31.8.2000.

order

This Constitutional petition was fixed on 29.5.2000 when neither the petitioner nor his counsel was present and the matter was dismissed for non-prosecution. Today I have heard Mr. Mughal Mumtaz All Khan learned counsel for the petitioner and by consent of the parties restored the petition at its original position and heard the counsel at length. The petitioner has sought the following reliefs in this Constitutional petition:--

"(a) To allow this petition by setting aside the impugned judgment and decree, dated 30.6.1999 and 30.6.1999 passed by the learned Family Court, Rohri and to dismiss the suit of the respondent as not maintainable.

(b) To refer the petitioner for medical check-up to any authorized medical officer.

(c) To restrain the Respondent No. 1 not to contract the marriage till the decision of this petition.

(d) To grant the cost of the petition.

(e) To grant any other equitable relief as deemed fit by this Honourable Court in circumstances of the case."

The facts in brief as narrated in the plaint are that the petitioner had married with Respondent No. 1 and after few days of the marriage, she left the house of the petitioner as she found him impotent. Further she averred in her plaint that the attitude of the petitioner towards her was very harsh and cruel. He used to maltreat her and was addict of intoxication. The Respondent No. 1 therefore, developed intense hatred against the petitioner and she asserted that it would not be possible for the parties to live as husband and wife within the limits prescribed by Allah the Almighty. She therefore, filed the suit for dissolution of her marriage on the ground of Khula'.

The defendant/petitioner was served and denied the allegations levelled by the Respondent No. 1 in her suit. It was pleaded by the petitioner that she completely severed her relations with defendant/ petitioner and his family members and after some time, she left the house of the petitioner. The parties adduced their evidence in support of their pleas. Ultimately the suit filed by the Respondent No. 1 was decreed and the marriage of the spouse was dissolved on the ground ofKhula'.The instant petition is directed against the impugned judgment and decree, dated 30.6.1999 passed by Family Judge, Rohri, whereby he granted dissolution of marriage to the Respondent No. 1. The appeal is not provided under the Family law, the petitioner has, therefore, invoked the writ jurisdiction. The impugned judgment is being attacked on the grounds that the evidence recorded by the trial Court is not appraised in right directions. It is pleaded that the evidence is misread, as the petitioner was neither impotent nor he maltreated and caused any torture to her. It is argued that the judgment may be set aside and the Respondent No. 1, may be directed to live with the petitioner as his wife. It appears from the evidence adduced by the parties that the relations of young spouse are so severely strained that they cannot live together as husband and wife and cannot pass happy life with each other. It would, therefore, be futile to grant relief as prayed, in exercise of writ jurisdiction, as no fruitful result is expected to come out The object of taking away right of appeal under family matters specially against dissolution of marriage is meaningful. If the Constitutional jurisdiction takes place of appeal, then the intent and purpose of Legislature would be frustrated. The young spouse, under the circumstances, who seek separation should find out its new ways for passing happy life, in early days, after the divorce Relief cannot be granted in writ jurisdiction touching contractual elements. Finding of the fact recorded by the competent inferior Courts would not be open to interference by High Court in exercise of its writ jurisdiction. The Court which has jurisdiction in the matter can decide the matter rightly or wrongly and that order cannot be interfered with in writ jurisdiction, unless the same is mala fide, arbitrary, perverse or the Court has acted in excess of its jurisdiction. Exercise of writ jurisdiction is discretionary which is to be used in good faith having look to all the attending circumstances and relevant factors of the case in hand. The same is to be used in just, fair and reasonable ways. In the instant case Family Judge has dissolved marriage of Respondent No. 1 (Mst.Akbari) on the ground of Khula' as the relation of; young spouse is so severely strained that they cannot live together as) husband and wife.

Under such circumstances this Constitutional petition cannot be! maintained and stands dismissed in limine,with no order as to cost.

(T.A.F.) Petition dismissed.

PLJ 2001 Karachi 109 (DB)

Present: muhammad roshan essani and muhammad ashraf leghari, JJ. ABDUL QAYOOM-Petitioner

versus Messrs SHELL PAKISTAN (LTD.) and others-Respondents

C.P. No. D-422 of 2000, decided on 27.9.2000.

(i) Constitution of Pakistan (1973)--

—Art. 199-Where order does not create any vested right in favour of any person, such person has no locus standi to challenge such order in Constitutional petition. [P. 112] A

(ii) Constitution of Pakistan (1973)--

—Art. 199 (l)(a)-"Aggrieved party" or "person aggrieved"-Aggrieved person must be a man who had suffered a legal grievance, a man against whom a decision had been pronounced which had wrongfully deprived that person of something or wrongfully refused him something which he had a right to demand or wrongfully affected his title in something.

[P. 112] B

1984 CLC 1146 ref.

(iii) Constitution of Pakistan (1973)--

—Art. 199—Constitutional petition—Disputed question of fact—Installation of petrol pump in residential area-Petitioner was running a petrol pump at some distance from the disputed site-Effect-Constitutional petition having been filed on account of professional jealous or with some ulterior motives, controversies or disputed facts could not be resolved in Constitutional jurisdiction. [Pp. 112 & 113] C & D

David Lawrence, Advocate for Petitioner.

Mr. ManzarAlam, Advocate for Respondents Nos. 1 to 3.

Mr. Gul Bahar Korai and Saifuddin Shah, Advocate for Respondent

No. 5.

Mr. S. Zawar Hussain Jafferi, Addl. A.G. for Respondents Nos. 6 and?.

Mr. Sardar Abdul Sattar Chohan, Advocate for Respondent No. 8. Date of hearing: 27.9.2000.

judgment

Muhammad Roshan Essani,J.--By this Constitutional petition, the petitioner Abdul Qayoom son of Muhammad Mehfooz Qureshi has sought the following relief in capacity as pro bono publico:—

(a) To direct the Respondents Nos. 6 to 8 to direct the Respondents Nos. 1 to 4, and Respondent No. 5 to maintain the residential status and character of the plots in question hearing C-550/18 and C-550/19 situated at Minara Road, Sukkur.

(b) To direct the Government functionaries Respondents Nos. 6 to 8 to demolish the Kacha and temporary structure erected over said open plots in question being C.S. No. C-550/18 and C- 550/19 without any approved building plan, and remove the Malbah of Oil Tanker and one petrol dispensing unit (pump), and iron sheets from the said residential plots.

«

(c) To direct the Deputy Commissioner, Sukkur to cancel/withdraw the 'No Objection Certificate', issued vide No. JB/9, dated 3.1.2000 to Messrs Shell Pakistan Ltd. For installation of Messrs HSD new Petrol Pump retail out let on Plot C.S, No. 550/18 and C-550/19, situated at Minara Road, Sukkur, as the same has been obtained by the respondents Messrs Shell Pakistan Ltd. on suppressing the original residential status of the plots for which said 'No-Objection Certificate' was issued.

(d) To direct the respondent Sukkur Municipal Corporation not to approve any building plan of Petrol Station on the said residential Plots C-550/18 and C-550/19 by the Respondents Nos. 1 to 6, except building plan for the residential purpose.

(e) To direct Respondent No. 4, the Chief Inspector of Explosive, Karachi, to cancel the licence No. Suk/5-P under Petroleum Rules, 1937 at Local Market Sukkur City, as the same has been obtained on the basis of the false documents, reports and affidavit annexed with the petition.

(f) To grant permanent injunction restraining the Respondents Nos. 1 to 6 not to raise or carry out any construction work over the said residential plots, bearing C.S. Nos. C-550/18, C- 550/19, either directly or indirectly or in any other manner whatsoever. Also, further restrain the Respondents Nos. 6 to 8 not to approve the commercial building plan of Petrol Pump Messrs Shell Pakistan Limited on the said residential plots C-550/18 and C-550/19 or change the character and status of the said residential plots into commercial plots.

(g) To grant any other relief which .this Honourable Court deems fit and proper in the public interest."

The facts as disclosed in the petition by the petitioner are that the Respondents Nos. 6 to 8 in connivance with Respondents Nos. 1 to 5 failed to perform their duties as contemplated under law. They are extending benefits to the Respondents Nos. 1 to 5 "at the cost" (when the learned counsel for the petitioner was asked to clarify about the words "at the cost" to the effect that what inference from these words could be drawn, but he failed to explain and satisfy) and irreparable loss to the public of Sukkur at large and so also residents of thickly populated area adjacent and around city Survey Nos. C-550/18 and C-550/19 of Sukkur City. It is further stated that Sukkur Municipal Corporation leased out Plot No. 9 admeasuring 3660 square feet out of city Survey No. C-550 situated in Ward-C, Minara Road, Sukkur Town to one Nasrullah Khan son of Khan Bahadur Agha Jan Muhammad Khan for residential purpose. The said Nasrullh Khan sold out plot to Respondent No. 5 on 31.8.1999. The Respondent No. 5 in collusion with Respondents Nos. 1 to 4 planned to instal Petrol Pump of Shell Pakistan Limited on the said plot. The Respondents Nos. 1 to 4 illegally obtained "No-Objection Certificate" from the District Magistrate who issued the same without completing the codal formalities'with regard to the status of the plots. According to the petitioner, installation of Petrol Pump in the residential Area and issuance of "N.O.C." has no legal sanctity. The Respondents Nos. 1 to 5 after obtaining the said N.O.C., started construction/installation of the Petrol Pump on the site stated hereinabove. It is further averred that the installation of the Petrol Pump would be hazardous to the public safety and it is in violation of the statutory provisions of law. Moreover it is urged in the petition that the installation of Petrol Pump has caused danger to the lives and property of the persons who are residing around the Petrol Pump. Pursuant to the notice issued by this Court, the Respondents Nos. 5, 6, 7 and 8 have filed comments wherein they have denied the allegations levelled against the respondents. The crux of the objections is that the petition has been filed malafidely in order to harass and mould the respondents for ulterior motive. We have heard Mr. David Lawrence, learned counsel on behalf of the petitioner, Mr. Manzar Alam, learned counsel for Respondents Nos. 1 to 3, Mr. Gul Bahar Koai, learned counsel for Respondent No. 5, Mr. S. Zawar Hussain Jafferi, learned Additional Advocate-General on behalf of Respondents Nos. 6 and 7 and Sardar Abdul Sattar Chohan learned counsel for Respondent No. 8.

We have also perused the material placed on the record by the parties.

It will be pertinent to reproduce hereinbelow cause (a) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the convenience sake:

"199. (1) Subject to the Constitution, a High Court, may, if it is satisfied that no other adequate remedy is provided by law, (a) on the application of any aggrieved party, make an order—

(i)................................................................................................ ".

The perusal of the above Article shows that only an "aggrieved person" whose rights have been infringed can file a writ petition except the writ of "habeas corpus" or of "quo warranto". It is well-settled that where any impugned order does not create any vested right in favour of the petitioner, he would have no locus standi to challenge srch order. The words "aggrieved party" or "person aggrieved" connotes that it does not really mean that a man who is disappointed of a benefit which he might have received if some other orders have been made. An "aggrieved person" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something which he has a right to demand or wrongfully affected his title in something. In this context we are fortified by a D.B. decision in the case of Muhammad Hussain Shah v. Board of Revenue and others 1984 CLC 1146.

Admittedly the petitioner is resident of about 4 to 5 kilometres away from the place of the installed Petrol Pump and on the same road at the distance of about 150 yards petitioner himself is running a Petrol Pump of Pakistan State Oil. This fact is not controverted by the learned counsel for the petitioner but has been rather admitted by him and is also borne out from the certified true copies of judgment in Suit No. 36 of 1990 and Suit No. 43 of 1990. The perusal of the record shows and as stated by the learned counsel for the respondents and not controverted by the learned counsel for the petitioner that the site in question is situated in an area where cinema, 0hotels, shopping centre are situated and many persons are residing, but none of the residents of the vicinity has come forward with the grievance before the concerned authorities or any Court that by the installation of the Pump at the site mentioned in the petition would be hazardous to their health and safety. On the contrary, the petitioner himself is running Petrol Pump of

P.S.O. at some distance from the disputed site. Prima facie it appears that the petitioner has filed the present petition due to professional jealousy or with some ulterior motive. So far the belated sanction of the plan is concerned, it can be termed as post de facto sanction, because the authorities concerned during the construction/installation of the Pump were in knowledge of the same. Apart from that it is contemplated under Section 35(3) of Sindh Local Government Ordinance that if a plan for approval is presented before the concerned authority and no decision is taken within sixty days, it will be deemed that the sanction has been accorded. There are also controversial facts. It is well-settled that controversies or disputed facts cannot be resolved in the Constitutional jurisdiction.

Consequently, for the foregoing reasons, we are of the considered view that the present petition is misconceived, resultantly, the same stands dismissed with no order as to costs.

Since the main petition has been dismissed, the listed applications have become infructuous and stands disposed of.

(T.A.F.) Petition dismissed.

PLJ2001 (Karachi) 115 (DB)

Present: muhammad roshan essani and muhammad ashraf leghari, JJ.

MUHAMMAD SALEH-Petitioner

versus

STATE and another-Respondents

CMA No. 1869/2000, heard on 17.1.2001.

Criminal Procedure Code, 1898 (V of 1898)-

—S. 382-B-Prayer of petitioner is to the effect that his son (convict) be granted benefit of Section 382-B Cr.P.C.-Benefit of Section 382-B Cr.P.C is mandatory-Judicious discretion is always to be exercised in favour of convict, unless it is not unjustified or causes harm to any other party-Consequentiy petition is allowed-Jail authorities are directed to grant benefit of Section 382-B Cr.P.C. to son of petitioner-

[Pp. 116 & 117] A to C

Mr. Habibullah Shaikh, Advocate for Petitioner.

Mr. Abdul Ghafoor Pirzada, on behalf of AAG for State.

Date of hearing: 17.1.2001.

judgment

Muhammad Ashraf Leghari, J.--The application is moved for seeking directions of the Court, to the office for receiving Constitutional

petition, wherein the prayer of the petitioner is to the effect that his son (convict) Muhammed Bachal be granted benefit of Section 382-B Cr.P.C.

By consent we have allowed the application and taken the main Constitutional petition to pass final order as very short point is involved.

The petitioner Muhammad Saleh through this petition has sought the following relief:--

(a) To declare that the convictee Muhammad Bachal son of the petitioner has completed his tenure of imprisonment awarded to him by this Hon'ble in Crime Nos. 205/97 and 16/1998 of Police Station Kandh Kot District Jacobabad therefore entitled to his release from Jail.

(b) The Respondent No. 2, be directed to release the convictee Muhammad Bachal (son of the petitioner) from Jail as his detention in Jail is unlawful under the law, since he has completed his tenure of sentence.

(c) Any other relief be granted to the petitioner, which this Hon'ble Court deems fit and proper according to the circumstances of the case.

The facts briefly stated are that Muhammad Bachal the son of petitioner was tried in an offence under Sections 392, 302 PPC and Section 7 of Anti-Terrorism Act 1997 read with Section 412 PPC, and ultimately the accused was awarded sentence to suffer R.I. for life imprisonment under Section 412 PPC only. He was acquitted of the charge under Sections 302, 392, 34 PPC and Section 7 of the Anti-Terrorism Act, 1997.

While hearing the appeal, we had dismissed the criminal appeal of appellant but modified the sentence from 412 PPC to 411 PPC and reduced it from life imprisonment to three years R.I. and fine of Rs. 20,000/- in default of payment of fine he had to suffer additional R.I. for six months.

The present petition has been filed, wherein it is prayed that benefit of Section 382-B Cr.P.C. be granted to the convict. The petitioner was convicted in two separate trials. The benefit of provisions of Section 382-B Cr.P.C. has to run concurrently and may be counted from the date of his arrest. Mr. Abdul Ghafoor Pirzada learned counsel appearing for the State . has argued that the petitioner is entitled to the benefit of Section 382-B 6 Cr.P.C. We are of the opinion that the benefit of Section 382-B Cr.P.C is mandatory. The judicious discretion is always to be exercised in favour of convict, unless it is not unjustified or causes harm to any other party. Consequently the petition is allowed. The jail authorities are directed to grant the benefit of Section 382-B Cr.P.C. to the son of petitioner. It appears that when this petition was presented in the office it was not numbered under the impression that first CMA 1869/2000, is to be decided. The office is hereby directed to enter and number the petition accordingly.

(T.A.F.) Petition allowed.

PLJ 2001 Karachi117 (DB)

Present: zahid qurban alvi and mushir alam, JJ. M/s. ALL ENTERPRISES-Appellant

versus

NATIONAL BANK OF PAKISTAN-Respondent

First Appeal No. 100 of 2000, decided on 19.12.2000.

Export Finance Scheme of State Bank of Pakistan 1991-

—According to counsel for appellant decree has been made calculating mark-up at 18%--According to him he was liable to pay mark-up at 8% by virtue of a concessional rate of mark-up given to exporters under Export Finance Scheme of State Bank of Pakistan, 1991-Further contended that even if he, did not export goods the maximum that could be charged by Bank is special concessional rate of mark-up plus penalty-Points raised require examination- [Pp. 117 & 118] A

Mr. Saalim Salim Ansari, Advocate for Appellant. Mr. TasawarAli Hashmi, Advocate for Respondent. Date of hearing: 19.12.2000.

order

1. Granted subject to all just exceptions.

2. According to counsel for appellant the decree has been made calculating the mark-up at 18%. According to him he was liable to pay the mark-up at 8% by virtue of a concessional rate of mark-up given to exporters under Export Finance Scheme of State Bank of Pakistan, 1991. Counsel for respondents, however, points out that the normal rate payable is 18% and a concessional rate of 13% was not given since the export was not done, there­ fore, the borrower would have to pay at the normal rate of 18%. Counsel for appellant on the other hand insists that even if he did not export the goods the maximum that could be charged by the Bank is the special concessional rate of mark-up plus penalty. Points raised require examinational ADMIT. NOTICE.

(T.A.F.) Orders accordingly.

PLJ 2001 Karachi 118 (DB)

Present: zahid qurban alvi and S.A. rabbani, JJ. MUNAWAR AZAM and others-Appellants

versus GOVERNMENT OF SINDH and others-Respondents

H.C.A. No. 206 of 2000, decided on 4.12.2000.

Civil Procedure Code, 1908 (V of 1908)--

—O. VII, R. ll--Constitution of Pakistan (1973, Art. 212-Law Reforms Ordinance, 1972 (XII of 1972), S. 3-Dismissal of suit challenging enquiry against misconduct and suspension from service-Validity-Steps challenged in suit included suspension of appellants, enquiry conducted, report of such enquiry and recommendations of Enquiry officer-Such action were patently steps germane to final order that could be challenged in appeal before Service Tribunal—Bar, thus, contained in Art. 212 of the Constitution applied to appellants, case-Findign of Single Judge whereby he rejected appellants, plaint was not open to interference-Costs imposed by Single Judge upon appellant were, however, condoned.

[P. 120] A & B

PLD 1981 Kar. 290; 1991 SCMR 1041; 2000 PLC (C.S) 1172.

Mr. Abid S. Zuberi, Advocate for Appellants. Mr. Muhammad Sarwar Khan A.A.G. for Respondent No. 1. Mr. Ansari Abdul Lateef, Advocate for Respondents Nos. 2 & 3. Date of hearing: 22.11.2000.

judgment

S.A. Rabbani, J.-Appellants are employees serving in Karachi Building Control Authority. On the charge of misconduct, they were suspended and an enquiry was ordered and conducted. Against this action, they filed Suit No. 74 of 1997, in the High Court for declaration and permanent injunction. The learned Single Judge dealing with the Suit, rejected the plaint under Order VII, Rule 11, CPC, in view of the bar provided in Article 212 of the Constitution. With this rejection of the plaint, a cost of Rs. 2000/- was imposed on each plaintiff, to be paid to KDA and KBCA with a direction to them to buy computers for their legal departments.

1. This order, passed on 15.6.2000, has been called in question by way of present appeal. Mr. Abid Zuberi, learned counsel for the appellants, submitted that there can be no cavil with the proposition that in respect of an issue relating to the terms and conditions of service of a civil servant, Service Tribunal has exclusive jurisdiction, provided there is a final order, about it, passed by the competent authority. According to him, in the present case, there is no final order that could be challenged before the Tribunal. He submitted that the Enquiry Officer appointed in this case was not a competent person to carry out the enquiry, and the only relief sought at the time, when issue regarding maintainability of suit was heard, was that the enquiry report was not lawful and was based on malice and was arbitrary, discretionary and violative of the rules of natural justice, and this could not have been challenged before the Tribunal.

2. Mr. Zuberi submitted that it was neither an interim nor a final order and, therefore, the principle laid down in the case of Abdul Ban (PLD 1981 Kar. 290), does not apply to this case. He further contended that no amendment has been made by the Province to include appeal against an interim order within the jurisdiction of the Provincial Service Tribunal. He relied upon the case of Moeenul Islam, reported in 2000 PLC (CS) 1172, wherein it was observed that where the impugned action was not a final order, the jurisdiction of the Service Tribunal was barred under Section 4 of the Sindh Civil Service Tribunals Act, and as no remedy was provided, the petition was maintainable. The authority is,obviously, not helpful, because of the distinguishable facts. In that case, a notification, withdrawing, temporarily, the earlier notification in respect of the promotion of the petitioner, were challenged. Moreover, it was a Constitution Petition, and not a civil suit, and was held to be maintainable for the reason that no other legal remedy was available. If this is applied in the present case, the suit would not be maintainable.

3. It has been contended that the appellants cannot challenge the enquiry report before the Service Tribunal or any other forum, hence the suit was maintainable. The case of LA. Sherwani vs. Federation of Pakistan (1991 SCMR 1041) has been relied upon by the learned counsel. It was held in that case that in case Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of Courts remains intact.

4. A distinguishable feature is that the case before the Supreme Court was relating to petitions filed under Article 184(3) of the Constitution, whereas in the present case the proceedings were initiated by way of a civil suit. Whether the Service Tribunal has jurisdiction to adjudicate upon the grievance in the present case, shall have to be determined in the light of the principle given in the case of Abdul Ban (PLD 1981 Karachi 290) in view of the circumstances of the case. The grievance relates to a disciplinary enquiry against the appellants that has, naturally and logically, to culminate in a final order, that would be challengeable before the Service Tribunal.

5. Mr. Muhammad Sarwar Khan, Additional Advocate General Sindh, relied upon the case of Abdul Bari (PLD 1981 Karachi 290). It was held in that case that actions or orders in the nature of interlocutory steps and germane to the final order appealable before the Tribunal, will also be outside the jurisdiction of the Court.

6. In the present case, the steps challenged include suspension of the appellants, enquiry conducted and its report and the recommendations of the Enquiry Officer. These actions are patently steps germane to a final order that may be challenged in appeal before the Service Tribunal. The bar thus applies to the present case. We are, therefore, unable to differ with the a finding of the learned Single Judge. We feel, however, that the appellants were not liable to pay costs imposed upon, them because they are responsible only for presentation of the plaint, which is not an act liable for imposition of any penalty by way of specified costs. The order imposing costs is accordingly set aside. The appeal is dismissed in respect of the main relief.

(A.A.) Appeal dismissed.

PLJ 2001 Karachi 120

Present:zia pervez, J.

ASLAM RAZA-Applicant

versus

MUHAMMAD NAWAZ-Respondent

Civil Revision No. 29 of 2000, decided on 18.12.2000.

Civil Procedure Code, 1908 (V of 1908)-

—S. US-Revision jurisdiction exercise of-Powers of High Court in revisional jurisdiction under 8. 115, Civil Procedure Code are very limited-On reappraisal of evidence, even if different view is possible, High Court cannot substitute its own view and upset findings of facts concurrently arrived at by Courts below-Such findings can only be interferred with if Courts below have misread evidence on record or have committed any jurisdictional error". [P. 123] A

Mr. Illah Bux Kehar, Advocate for Applicant. Mr. Mi Ahmed Qureshi, Advocate for Respondent Date of hearing: 18.12.2000.

order

This revision application under Section 115 CPC is directed against the judgment and decree of the fflrd Additional District Judge Dadu in Civil Appeal No. 14/1998, both dated 23.5.2000.

The proceedings arise out of dispute pertaining to property Bearing No. 469/A and C-469, situated in K.N. Shah Town. On the basis of a claim for execution of an agreement dated 31.7.1988 pertaining to sale of the property for the sum of Us. 24,200/- and handing over possession of the same on receipt of Us. 18,000/- as advance possession was handed over to the respondent. It is further claimed that on failure of the respondent to execute the sale-deed, applicant instituted Suit No. 88/1988 in the Court of Senior Civil Judge for specific performance with the prayer for execution of registered sale-deed of House No. C-469 and western portion of House No. C-469/A on payment of the balance amount of Rs. 6,200/-. Parties led their respective evidence and the suit was final dismissed. Aggrieved by the judgment and decree in Suit No. 88/1988 applicant preferred an appeal under Section 96 of the Civil Procedure Code, 1908 being Civil Appeal No. 14/1998 finally decided by the judgment and decree of the Illrd Additional District Judge, Dadu, dated 23.5.2000, dismissing the appeal of the applicant.

Heard the learned counsel for the parties.

Learned advocate challenge the judgment on the ground that the judgment of the learned Illrd. Additional District Judge is violative of order XLI Rule 31 CPC as the evidence of witnesses is not discussed in detail. Reliance is placed on the case of Iftikharuddin Hyder Gurzaidi versus Central Bank of India, 1996 SCMR 669. He further stated that the judgment does not qualify to be a judgment in the meanings of order XLI Rule 31 CPC. Learned counsel argued that the lower Court failed to appreciate the evidence on record and thus acted with material irregularity. Reliance is placed on the case of Nasir Abbas versus Manzoor Hyder Shah, PLD 1989 SC 568. That the appellate Court is required to re-assess the evidence produced and examine the findings of the trial Court and only after giving reasons for up-holding or reversing the same the appeal should be decided. Reliance is placed on the decision in the case of Mehrban versus Hamid Khan, 1985 CLC 1780 and Hassan Shah versus Malook Shah, 1987 CLC 2281. Learned counsel further argued that as a consequence of the above findings arrived at by comparison of signatures by the Court is illegal. Reliance is placed on the case of Dr. Major Abdul Rahat Khan versus Muhammad Iqbal, PLC 1989 Karachi 102 and Articles 59 and 84 of Qanun-e-Shahadat Act as reported in the case of Muhammad Kabeeruddin versus Muhammad Muneeruddin, 1993 CLC 747.

Learned counsel for respondent has appeared on pre-admission notice. He has opposed the application. He argued that in the present case all points have been discussed in sufficient detail to arrive at a conclusion by the learned appellate Court and there has been no violation of the provisions of Order XLJ Rule 31 CPC. He produced the case law on the point that substantial compliance depending upon nature of judgment against appeal is not a rule that may vitiate a judgment and make the same a nullity and would not vitiate the judgment and make it wholly void. He argued that compliance of Order XLI Rule 31 would be adequately made if there has been substantial consideration of all relevant points determined in the suit or appeal and the First Appellate Court need not refer to every item of evidence or document taken into consideration by the trial Court. Sufficient compliance is observed by giving views on the evidence on record. Reliance is pkced on Roshi vs. Mst. Fateh PLJ 1982 SC 478, Umeruddin vs. Ghazanfar Ali PLD 1985 Lahore 498, Sindh Flpur Mills Ltd. versus Abdul Hussain Masooji Jafferi 1965 (West Pakistan) Karachi 567, Akhtar Begum versus Allah Jawaya, AIR 1936 Lahore 543, Darya Thathera versus Narian Thathera, AIR 1931 Allahabad 597. Learned counsel stated that present case is on a far better footing as the issues have been dealt with by the learned trial Court the judgment and the findings of the judgment in the learned Appellate Court are based on a proper appraisal of evidence.

On the point of arriving at a finding after comparison of handwriting learned counsel argued that Court is entitled to compare handwriting and examination by an expert. In every case it is not directed by any rule or law. That finding of trial Court by comparing signatures in dispute with the admitted signatures is a legal procedure adopted by the Court and up-held by the honourable Supreme Court, as such it is within the powers of the Court. Reliance was placed on the case of Mst. Ummatul Waheed versus Mst. Nasira Kausa (1985 SCMR 214), Ghulam Rasool versus Sardar-ul-Hassan 1997 SCMR 976 and Messrs Waqas Enterprises versus Allied Bank of Pakistan1999 SCMR 85.

Learned counsel also argued that this is the case of concurrent finding of facts recorded by the two Courts below and did not duffer from mis-reading, non-reading or mis-construction of the facts by the Courts below, as such, there is no material irregularity and illegality in the exercise of jurisdiction, as such, the same do not call for interference with in exercise of revisional jurisdiction. Reliance is placed on the case of Muhammad Sadiq versus Imamuddin CLC 1994 Lahore 103 and Haji Ghulam Rasool versus The Chief Administrator ofAuqaf 1995 CLC Peshawar 696.

From the perusal of the available record the judgment of the trial Court is based on the conclusion arrived at after examination of the evidence which has been discussed and finding of facts have been arrived at on the basis of the same which do not merit any interference by this Court in exercise of the powers under Section 115 C.P.C. The concurrent findings of fact as to the signatures of the respondent after comparison by the respective Courts do not warrant interference. In the case of Iftikharuddin Hyder Gurdaizi versus Central Bank of India Limited the Honourable Supreme Court was pleased to set aside the judgment as it was announced 8 Months after the date of hearing and all the points argued and relied by the appellants in that case were not considered. It is not so in the instant case. In the case of Nasir Abbas versus Manzoor Hyder Shah it has been held :--

"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 irregularity and its decision is open to revision by the High Court."

The instant case does not involve any mis-reading or the resulting erroneous conclusion or failure to take notice of any vital fact. Weighing of evidence for the purpose of arriving at a conclusion is the normal function which has been done by both the Courts taking into consideration the facts available on record and no vital fact is ignored. The reasons for reaching the conclusion are required to be mentioned which is done in the present case. As held in the case of Mehrban versus Hamid Khan. Facts in the cases of PLD 1989 Karachi, Karachi 102 and 1983 CLC 747 are also distinguishable where comparison of signature was made in chambers in absence of the counsel for the parties and it has been observed that the power to compare the signatures, available to the Courts, should be exercised with caution. In the present case no such ground has been substantiated by the learned counsel and the Appellate Court has not erred in comparing the signatures as held in 1994 CLC 102, 1999 SCMR 85; 1997 SCMR 976 and 1985 SCMR 214. The law on the point of concurrent findings of fact and re-appraisal of evidence are very limited has been settled by the Honourable Supreme Court in the cases of Muhammad Umer Baig versus Sultan Mahmood Khan PLD 1970 SC 139, Abdul Khaliq versus Rashid Ahmed 1999 MLD 2156 and Kanwal Nian versus Fateh Khan PLD 1983 SC 53 and Zareen Khan versus Mureed Khan 1998 C.L.C. 1794 wherein it is held that :--

"S. 115-Revisional jurisdiction exercise of. Powers of High Court in revisional jurisdiction under S. 115, Civil Procedure Code are very limited. On reappraisal of evidence, even if different view is possible, fL

High Court cannot substitute its own view and upset findings of facts concurrently arrived at by Courts below. Such findings can only be interfered with if Courts below have misread evidence on record or have committed any jurisdictional error".

In view of the above discussion the appellate Court has acted within its jurisdiction without any material irregularity or illegality and this application is accordingly dismissed with no order as to costs.

(T.A.F.) Petition dismissed.

PLJ 2001 Karachi 124

Present:muhammad mujibullah siddiqui, J.

KOHINOOR TEA COMPANY (PVT.) LTD.-Petitioner

Versus

DIRECTOR OF LABOUR, GOVT. OF SINDH & others-Respondents

C.P. No. S-159 of 1999, dismissed on 13.10.2000.

Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 10-Constitution of Pakistan, 1973, Art. 199-Registration of Trade Union—Validity—Petitioner, body corporate engaged in importing, processing and marketing tea-Bulk of work given on contract which mainly related to packing-Contractor employed his own workmen for packing-Registrar of Trade Union registering Trade Union-Challenge to-Availability of remedy-Writ petition-Maintainbaility-Question of determination—Petitioner has not availed remedy available u/S. 10 of IRO, 1969 and, therefore, respectfully following decision of Division Bench in judgment reported as 1998 P.L.C. 122, it is held that petitioner has no right to invoke Constitutional jurisdiction of High Court for issuance of writ of mandamus under Article 199 of Constitution-Held : Constitutional petition is not maintainable—Held further : Issues of facts and law raised in petition can be effectively and competently decided by Labour Court on complaint of Registrar Trade Unions—Petition dismissed.

[P. 128] A&B

Mr. ML. Shahani,Advocate for Petitioner.

Mr. Muhammad Alt Mazhar, Advocate for Respondent No. 3.

Nemo for Respondents Nos. 1 & 2.

Date of hearing: 13.10.2000.

order

This Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred seeking following declaration :--

(i) That the registration of Respondent No. 3, as a union of workers in the establishment of the petitioner is illegal and quash the same and further direct the Respondent No. 2 to initiate proceedings under Section 10 of Industrial Relations Ordinance against the respondents.

(ii) Declare that Respondent No. 1, was not a Registrar of Trade Union as no notification appointing such person exists in terms of Section 12 of Industrial Relations Ordinance, therefore, impugned order is without any lawful authority."

The relevant facts as gleaned from the Memo of Petition are that the petitioners are body corporate engaged in importing, processing and marketing tea in the country. According to petitioners they employ some employees who have directional role in the factory, but the bulk of the work is given on contract which mainly relates to packing. It is contended that the contractor employs his own workmen and submits bills according to the rate so agreed and specified in the contract. It is farther averred that the employees employed by the Contractor (which is a distinct and separate establishment in terms of law and have no relationship of employer and workmen employed by the petitioners) formed a trade union and intimated the petitioners about the formation of such union. The petitioners immediately sent letter to Respondent No. 1, Director of Labour Govt. of Sindh and the Registrar of Trade Unions intimating that the persons forming union were not the workers of the petitioners. The Respondent No. "2, Joint Director (Labour) summoned the petitioners for a joint meeting and thereafter on the basis of proof it was established that the petitioners were not the employers of the workers who formed union, the Respondent No. 3. It is further contended in the petition that the Respondent No. 2, rejected the contention of the petitioners and registered Respondent No. 3, as union vide order dated 28.12.1997. The petitioners thereafter filed Constitution Petition in this Court being C.P. No. S-23/98 and the matter was remanded back to the Respondent No. 1. After remanding of matter back to the Respondent No. 1, proceedings/meetings took place before the Joint Director (Labour) West Division and one meeting only took place before Respondent No. 1. It is alleged in the petition that no notification regarding the appointment of Respondent No. 1, by the Government of Sindh in terms of Section 6 of the Industrial Relations Ordinance was issued. It is further stated that the Respondent No. 1, is not notified Registrar of Trade Unions but he rejected objections urged by the petitioner and registered Respondent No. 3, as union. It is stated that the petitioners have not been dealt in accordance with law and the Respondent No. 1, has registered a union of workers not employed by the petitioners therefore, Respondent No. 3, has been registered as union in violation of Section 7 of Industrial Relations Ordinance, which inter alia provides that no union shall be registered unless all the workmen are employed in the industry to which the union is related. It is further contended in the petition that against the registration of union and for the determination of proceedings for C.B.A., the petitioners have no alternate remedy and hence this petition. It is further stated in the petition that the Respondent No. 1, should have initiated proceedings under Section 10 of the I.R.O., or should have refused to register such union.

I have heard Mr. M.L. Shahani, learned counsel for the petitioner and Mr. Muhammad Ali Mazhar, advocate for the Respondent No. 3. None present for Respondents Nos. 1 & 2. The learned advocate for the petitioners and Respondent No. 3, have addressed their arguments at length. Mr. Shahani, has assailed the registration of union and has elaborately

narrated the facts. He has contended that the Respondent No. 1, is performing judicial functions and therefore, he was required to perform all the functions himself instead of delegating the job of ascertaining the facts by his sub-ordinates. He has further submitted that the Registrar has not applied his mind to the facts and law and therefore, the registration of union is not proper. He has argued that the Registrar has placed reliance on an extraneous material, to wit, a statement which was not made before him. He has further contended that the persons who have formed the union are not employed by the petitioner and therefore, they cannot be imposed on the petitioners. Mr. Shahani, has dilated on the issues of facts in detail, which 1 would not like to discuss because of findings to be given presently.

On the other hand Mr. Muhammad Ali Mazhar, learned counsel for the Respondent No. 3, has mainly argued that the writ petition is not maintainable because the disputed questions of facts cannot be considered by the High Court while exercising writ jurisdiction under the Constitution. He has further submitted that the petition is not maintainable for further reason that the petitioners have not exhausted the alternate remedy available in law. Mr. Muhammad Ali Mazhar, has submitted that in similar circumstances, a Division Bench of this Court has held that petition is not maintainable. In support of his contention he has placed reliance on D.B. judgment of this Court in the case of Messrs Hakim & Sons Chemical vs. The Registrar of Trade Marks (it appears that instead of Registrar of Trade Unions the name of respondent has been wrongly printed as Registrar of Trade Marks), 1998, P.L.C, 122.

I have carefully considered the contentions raised by the learned advocate for the parties before me. I have gone through the D.B. judgment of this Court cited above and am of the considered opinion that the issue already stands covered with the findings of above judgment to the effect that without availing the adequate, alternate and efficacious remedy available to the petitioners u/S. 10 of the Industrial Relations Ordinance, the petition is not maintainable. I can do no better than to re-produce the relevant findings which reads as follows :--

"It is pertinent to note that for invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution, the appellants were required to show that no other adequate alternate and efficacious remedy was available to them under any other law. The appellants in their petition made a statement that no other adequate, alternate and efficacious remedy was available to them under any provision of law which statement was absolutely contrary of the provision of Section 10 of the Industrial Relations Ordinance which empowers the Respondent No. 1 to file registration of a Trade Union on the grounds contained sub-sections (1), (2) and (3) thereof. The Respondent No. 1, can lodge a complaint for cancellation of the registration on coming to know of any of the aforesaid causes warranting cancellation of a Trade Union. Such information can be acquired by Respondent No. 1 on his own accord or through some other source, which may include the employer. As such, after registration of respondent No. 1, the appellants could approach the Respondent No. 1, for cancellation of registration of Respondent No. 2, Union on the ground that on the date when it was formed the office-bearers/workers thereof were not in their service and so was the fact when the application for registration was filed, but as already .uinted out the appellants did not resort to the above statutory remedy available to them. It is a settled principle of law that exercise of Constitutional jurisdiction would be declined in favour of a party who has not exhausted the remedy available to him before filing the Constitutional petition. In support of the above proposition several authorities can be cited. In the case Shaikh Gulzar All & Company V. Special Judge Banking Court and others, reported in 1991 SCMR 590, the Supreme Court made an emphatic declaration that the High Court in exercise of its Constitutional jurisdiction could not be allowed to take over the function of the machinery provided by the statute. In the case ofAdamjee Insurance Company v. Pakistan, reported in 1993 SCMR 1798, the Supreme Court categorically declared that the condition precedent for exercise of Constitutional jurisdiction was that no other remedy was available to aggrieved party. In the case of Abdur Rehman v. Haji Mir and others reported in PLD 1983 SC 21, the Supreme Court observed that Constitutional jurisdiction could not be invoked in the presence of alternate adequate remedy. The Supreme Court in the case of Mumtaz Ahmed and others v. Assistant Commissioner and another, reported in PLD 1990 SC 1195 propounded the principle that when a statute creates and also provides machinery for redress of the party complaining of breach or violation of any provision of the statute, then it must avail himself of the remedy provided by the statute for such breach before invoking Constitutional jurisdiction of this Court did not exhaust the alternate adequate and efficacious remedy available to them under the Industrial Relations Ordinance, which is condition precedent for invoking the Constitutional jurisdiction\ On this ground too the Constitutional petition filed by appellants was liable to be dismissed."

Mr. M.L. Shahani, learned counsel for the appellant has stated during the course of arguments that the plea for issuance of writ of quo-warranto is not pressed meaning thereby that the objection to the effect that

Respondent No. 1, was not Registrar of Trade Union he been given up. The only other remedy sought through this petition is for the initiation of proceedings u/S. 10 of the I.R.O., and to the declaration that registration of Respondent No. 3, as union of workers in the establishment of the petitioner is illegal. All these questions can be determined by the Labour Court on a complaint by the Registrar of Trade Unions under Section 10 of the Industrial Relations Ordinance, which reads as follows :--

(1)(10). Cancellation of registration,-(l) The registration of a Trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has-

(i) contravened (or has been registered in contravention of), any of the provisions of this Ordinance or the rules; or

(ii) contravened any of the provisions of its constitution; or

(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules

(2) Where any person who is disqualified under Section 7-A from being elected as, or from being, an officer of a trade union is elected as an officer of a registered trade union, the registration of that trade union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs.

(3) The registration of a trade union shall be cancelled by the Registrar, if after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist.

It is admitted position that the petitioner has not availed the remedy available under Section 10 of the Industrial Relations Ordinance, 1969 and therefore, respectfully following the decision of Division Bench in the judgment cited supra, it is held that the petitioner has no right to invoke the Constitutional jurisdiction of this Court for issuance of writ of mandamus under Article 199 of the Constitution. In view of my findings that the Constitutional petition is not maintainable and the issues of facts and law raised in the petition can be effectively and competently decided by the Labour Court on the complaint of Registrar Trade Unions, therefore, I would not like to dilate on the points raised before me on merits. The petitioners may have recourse to the alternate remedy available to them under the Industrial Relations Ordinance. The constitutional petition stands dismissed as not maintainable. The listed applications also stands dismissed accordingly.

(E.T.) Petition dismissed.

PLJ 2001 Karachi 138

Present: muhammad mujibullah siddiqui, J.

QAMRUDDIN-Applicant

Versus

MUHAMMAD SADIQ and another-Respondents

Civil Revision No. 261/98, heard on 20.10.2000.

(i) Civil Procedure Code, 1908 (V of 1908)--

—O. XLIIIR. 3-Object and scope of O.XLIII, R. 3, C.P.C.«Before enactment of O.XLIII, R. 3, C.P.C., no less than three or four successive dates of hearing were consumed, so that parties could become ready by knowing case of each other-Order XLIII, R. 3, C.P.C. was enacted, so that such wastage of time could be avoided but just for that reason, O.XLJII, R. 3, C.P.C. could not be termed to be mandatory rule--Non-complaince with O.XLJII, R. 3, C.P.c. must not inevitably result in dismissal of appeal.

[P. 152] E

(ii) Civil Procedure Code, 1908 (V of 1908)--

—-O. XLIII, R. 3--Validity-When Lower Appellate Court gives pre­ admission notice to the respondent, such defect stands cured-Appeal cannot be dismissed on such legal ground accordingly. [P. 152] F

(iii) Civil Procedure Code, 1908 (V of 1908)--

—O. XLJII, R. 3 & O. XXXIX, Rr. 1, 2-Interim injunction, grant of-Failure to give notice under CXXliii, R. 3, C.P.C.-Petitioner preferred appeal against status quo order granted by Trial Court, but due to failure to give notice prior to filing of appeal, lower Appellate Court dismissed appeal-­ Validity-Where counsel for respondent had appeared in Lower Appellate Court prior to consideration of merits and application of mind by Court, substantial compliance was made with provisions under O.XLJII, R. 3, C.P.C.-Appeal was not decided on merits and the same was dismissed for technical non-compliance of provisions contained in O.XLIII, R. 3, C.P.C. - Order passed by Lower Appellate Court had caused miscarriage of justice and the same was illegal-Case remanded- [P. 152] G

(iv) Interpretation of Statutes­'—Crawford in "Statutory Construction", 1940 edition, at topics 261 and 262 has considered question in all aspects~At page 520, learned author has state the case as such: "Nevertheless, it will always be presumed by Court that legislature intended to use word in their usual and natural meaning-If such a meaning however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to obvious intention of Legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa~ln other words, if language of statute, considered as a whole and with due regard to its nature and object reveals that Legislature intended words "shall" and "must" to be directory, they should be given that meaning-- Similarly, under same circumstances, word "may" should be given a mandatory meaning, and especially where statute concerns rights, and interests of public, or where third persons have a claim de jure that a power shall be exercised, or whenever something directed to be done for sake of justice or public good, or is necessary to sustain statute's constitutionally." [P. 143] A

(v) Interpretation of Statutes-

—-Craise on "Statute Law", Sixth edition, has considered point with more particularity in relation to object of a statute relating to general policy in contradistinction to object being for benefit of a person, or, a class of persons-Order XLIII, Rule 3 CPC~Undoubtedly is not a provision regarding general policy of realm, but only intends to give benefit to a class of person, who come as suitors before a Court-In that regard, learned author at page 269 has state the case thus:

"If object of a statute is not one of general policy, or if thing which is being done will benefit only a particular person or class of persons, then conditions prescribed by statute are not considered as being indispensable, this rule is expressed by maxim of law, Quillibet potest renuntiare juri pro se interoducto-As a general rule, conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving Court jurisdiction-But if it appears that statutory conditions were inserted by Legislature simply for security or benefit of parties to action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting jurisdiction of Court." [P. 144] C

(vi) Interpretation of Statutes-

—Maxwell on "The Interpretation of Statutes", Twelfth Edition, at page 314 has also state the case as follows: "It is impossible to lay down any general rule for determining whether a provision is imperative or directory-"No universal rule", said Lord Campbell L.C., "can be laid down for construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience-It is duty of Court of justice to try to get at real intention of Legislature by carefully attending to whole scope of statute to be construed." [P. 143] B

(vii) Interpretation of Statutes-

—Question in regard to a provision being mandatory, or, directory is not capable of an easy answer-answer has to depend on several questions in regard to correct interpretation of statute itself, objects which statute wants to fulfil, consequence which follows non-compliance of rule, prejudice and quantum thereof that it causes to other party by non- compliance, penalty which statute prescribes in matter of non-compliance and benefit of entire populace, or, he is in limited sense f parties being concerned only in a particular cause-All these questions need to be considered, while determining nature of provision. [P. 145] D

Mr. Rizwan Ahmed Siddiqui, Advocate for Applicant. Mr. Mehmood Habibullah, Advocate for Respondents. Date of hearing: 20.10.2000.

judgment

This revision application under Section 115 C.P.C. is directed against the order dated 30th September, 1998 by the First Additional District Judge Karachi (South).

1. The relevant facts are that the respondents filed suit for declaration and permanent injunction against the applicant and others in the Court of Xth Civil Judge Karachi, South, being Suit No. 1218 of 1994. The respondents/plaintiffs filed an application under Order 39, Rule 1 & 2 C.P.C., which was allowed on 6.11.1996. The trial Court directed to maintain status-quo till the disposal of suit.

2. Being aggrieved with the granting of injunction, the applicant, Qamaruddin filed miscellaneous appeal which was heard by the learned First Additional District Judge Karachi South. The learned counsel for the respondents/plaintiffs raised objection before the learned Additional District Judge that a notice was required to be served by the appellant on the respondents U/O. 43, Rule 3 CPC. The said notice was not served before filing the appeal and hence the appeal was not maintainable. Reliance was placed on the judgment of Hon'ble Supreme Court of Pakistan, in the case of Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (1983 P.L.D. Supreme Court 693). Further reliance was placed on a Single Bench judgment of Sindh High Court in the case ofNazir Ahmed Jagirani Balocuh (1987 C.L.C. 1750), It was contended that the provisions contained in Order 43, Rule 3 CPC are mandatory in nature and non-compliance thereof would render the judgment of appellate Court illegal and therefore, the appeal was not maintainable. The learned Additional District Judge accepted the contention and held that for want of notice U/O 43, Rule 3 CPC, on the respondents, prior to the filing of appeal, the appeal was not maintainable. The misc. appeal was dismissed accordingly, for this sole reason.

3. The applicant being aggrieved with the dismissal of Civil Misc. Appeal has preferred this revision application.

4. I have heard Mr. Rizwan Ahmed Siddiqui, advocate for the appli­cant and Mr. Mehmood Habibullah, learned counsel for the respondents.

5. Mr. Rizwan Ahmed Siddiqui, has submitted that the learned First Appellate Court has failed to exercise jurisdiction vested in it and has thereby committed illegality. He has further submitted that the learned First Appellate Court has accepted the contentions of the respondents, without going through the judgment of the Hon'ble Supreme Court of Pakistan in the case of Mrs. Dino Manefyi Chinoy and 8 others vs. Muhammad Matin (1983 P.L.D. S.C. 693) and has acted in flagrant violation of the dictum laid down by the Hon'ble Supreme Court, in the case of Salahuddin vs. Syed Mansoor Mi Shah (1997 S.C.M.R. 414). He has contended that with the issuance of notice to the respondents by the Court before making any order, the purpose of provisions contained in Order 43 Rule 3 CPC was fulfilled and therefore, the learned First Appellate Court instead of dismissing the Misc. Appeal for the reason of technical non-compliance, ought to have decided the appeal on merits, by adopting the purposive approach.

6. On the other hand Mr. Mehmood Habibullah, learned counsel for the respondents has supported the impugned order of the learned First Appellate Court by placing reliance on the judgment of Lahore High Court, reported as (1997 P.L.J. Lahore 1183).

7. I have carefully considered the contentions raised by the learned advocates for the parties, and in the facts and circumstances of the case, am persuaded to agree with the contention of learned counsel for the applicant. Rule 3 was inserted in Order 43 CPC, by Ordinance X of 1980 and an amendment was made in the year 1994. Order 43, Rule 3 CPC reads as follows: "Notice before presentation of appeal.--(l) 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 alongwith a copy of the order appealed against either personally or through registered post acknowledgment due and the postal or other receipt shall be filed with the memorandum of appeal for the record 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 inlimine. 9. This provision came for consideration before a Division Bench of this Court in the case of Muhammad Matin v. Mrs. Dino Manekji Chinoy and others (P.L.D. 1983 Karachi 387). The provision was examined in depth by his lordship Mr. Justice Abdul Hayee Qureshi, acting Chief Justice. I can do no better than to reproduce the entire discussion which is as follows:

"Before we go to the merits of the appeal in so far as the cardinal rules for grant of injunctions are considered vis-a-vis application of such rules to the facts of the present case, we would like to dispose of a preliminary objection raised by Mr. Akhtar Mahmood in regard to the maintainability of this appeal.

The learned Advocate has urged before us that the provisions of Order XLIII, Rule 3, CPC, requiring notice before presentation of appeal had not been complied with, because the applicant, who has given notice of such appeal to the respondent, or, his Advocate, had not complied with the rule. Rule 3 as enacted by Ordinance X of 1980. It reads as follows:

"3. Notice before presentation of appeal.~(l) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, given notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed (against either personally or through registered post acknowledgment due and the postal or other receipt shall be filed with the memorandum of appeal for the record 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.

The contention of Mr. Akhtar Mehmood is that the use of the word "shall" in the said rule would seem to indicate that rule was imperative and mandatory. A counter-affidavit was filed on behalf of the respondents on 2.1.1983, and the same is at page 421 of the record. An objection was taken on the ground of non-compliance with this rule, and it was stated that the appeal was liable to be dismissed summarily on such ground of non-compliance. However, when this appeal came up for admission on 17.1.1983, Mr. Akhtar Mahmood was present on pre-admission notice. It was stated by Mr. Akhtar Mahmood that he would not press this point. No doubt the Order sheet, dated 17.1.1983 does not mention that this point was not being pressed, but during arguments Mr. Akhtar Mahmood as well as Mr. Naseem Farooqui, stated that Mr. Akhtar Mahmood did say so. However, Mr. Akhtar Mahmood stated that, since the point was one of law and touched what he called the jurisdiction of this Court, he may be permitted to argue the same. We are, however, of the view that the point was not in regard to jurisdiction of the Court, but merely in relation to a correct exercise of power of this Court. Ordinarily the word "shall" is construed as couching a mandatory provision, but very often the word "shall" and "may" connote inter­changeable concepts. The point has been considered by some learned

authors. Crawford in "Statutory Construction", 1940 edition, at topics 261 and 262 has considered the question in all aspects. At page 520, the learned author has stated the case as such:

"Nevertheless, it will always be presumed by the Court that the legislature intended to use the word in their usual and natural meaning. If such a meaning however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the Legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object reveals that the Legislature intended the words "shall" and "must" to be directory, they should be given that meaning. Similarly, under the same circumstances, the word "may" should be given a mandatory meaning, and especially where the statute concerns the rights, and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionally."

"Maxwell on "The Interpretation of Statutes", Twelfth Edition, at page 314 has also stated the case as follows:

"It is impossible to lay down any general rule for determining whether a provision is imperative or directory. "No universal rule", said Lord Campbell L.C., "can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."

In the same treatise, the learned author has referred to the judgment of Scarman J., in the case of B. v. B. (1). In that case, the learned judge was considering a question in relation to the import of provision, stating that Court shall not make any decree for divorce, or, nullity of marriage absolute, unless and until the Court was satisfied that the parties had, in the matter of upbringing of the children, made satisfactory arrangement. It may be noted that the statute has used the word "shall" and with the added qualification by use of the word "not" that it appeared that the Court would be completely debarred from making the decree absolute, if conditions were not fulfilled. Yet the learned judge, at page 397 of the Report, observed as follows:

"I agree", said the learned judge (at p. 397)" that prior authority on other statutes is not of great assistance to the Court in determining the intention of the Legislature when this section was enacted. It seems to me that it is my duty to look at this statute, to look at the B

circumstances in which it was enacted and the purposes that it was intended to serve, and then to come to a conclusion whether the purposes intended this requirement as to the Court's action before making a decree absolute to be something with out which the parties should have no decree absolute or merely a beneficial requirement which, if ignored by the parties (of course in all innocence), could thereafter be ignored by the law of the land."

Craise on "Statute Law", Sixth edition, has considered the point with more particularity in relation to the object of a statute relating to general policy in contradistinction to the object being for the benefit of a person, or, a class of persons. Order XLIII, Rule 3 CPC. Undoubtedly is not a provision regarding general policy of the realm, but only intends to give benefit to a class of person, who come as suitors before a Court. In that regard, the learned author at page 269 has stated the case thus:

"If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable, this rule is expressed by the maxim of law, Quillibet potest renuntiare juri pro se Interoducto. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the Legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court."

Mr. Akhtar Mahmood has invited our attention to the judgment of the Supreme Court in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore (1). Mr. Justice Sajjad Ahmad Jan, has examined this point by reference to consequences of neglect of plain requirements of statutory enactments, prescribing the mode of doing a particular act. The learned judge formed a question. It was, whether an enactment is to be considered as absolute, or, directory. At page 70 of the Report, the learned judge expressed as follows:

"It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain, action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, if may be considered as a directory provision. None the

less, if appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R. (1948) 13 Q.B. 30, it was stated that "the words negative and affirmative of a statute mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same."

Again, in the case of Mansab All v. Amir and 3 others (2), a case decided by our Supreme Court the same point came up for consideration, and the learned judges once again expressed the opinion that the result, or, consequences of non-compliance would depend on the question, whether the provision is mandatory, or, not. We would also refer to the case of Niaz Muhammad Khan v. Mian Fazal Raqib (3) because, in that case, the nature of the provision had been held to be mandatory, or, directory by reason of the statute providing for consequences of non-compliance. The learned judges stated the case as follows:

"It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity, if the Act is mandatory disobedience entails serious legal consequences amounting to the Invalidity of the act done in disobedience to the provision."

The question in regard to a provision being mandatory, or, directory is not capable of an easy answer. The answer has to depend on several questions in regard to the correct interpretation of the statute itself, the objects which the statute wants to fulfil, the consequence which follows the non-compliance of the rule, the prejudice and quantum thereof that it causes to the other party by non-compliance, the penalty which the statute prescribes in the matter of non-compliance and the nature of the provision, whether it is for the benefit of the entire populace, or, is in the limited sense of the parties being concerned only in a particular cause. All these questions need to be considered, while determining the nature of the provision.

In the background of forbearance which Akhtar Mahmood had expressed on 17.1.1983, by stating that he does not press that point, it is easy to infer that no prejudice has been caused to the respondents. In any case, we are dealing with an appeal, in which we refer to and review only such questions as are already within the knowledge of both the parties. No grievance has been made on the score that some copies of documents, to which reference has been made by the appellant during the arguments, had not been supplied to Mr. Akhtar Mahmood. At no stage of the case, Mr. Akhtar Mahmood has made a grievance that he had been taken by surprise. The point of prejudice, therefore, does not arise in this case at all. \Ve also cannot over look that Order XLIII, RuJle 3 CPC does not provide for the consequences that will ensure in regard to an appeal on account of non-compliance of the rule. One of the important test in the matter of a rule being mandatory, or, directory is, whether a consequence in the nature of dismissal of an appeal, or, imposition of penalty must ensue on account of the non-compliance. The statute book contains several provisions laying down the consequences for non-compliance of a rule. But, in the instant case, the consequences are not stated, much less than the dismissal of an appeal for the mere reason of non-supply of copies. This appears to be a rule of convenience and expediency. In the background of legislative process, it may be remembered that before the enactment of Order XLIII, Rule 3, CPC., no less than three, or, four successive dates of hearing were consumed, so that the parties could become ready by knowing the case of each other. This rule was enacted, so that such wastage of time could be avoided, but just for that reason, the rule cannot be termed to be a mandatory rule, the non-compliance with which must inevitably result in dismissal of an appeal. We overrule the objection".

1. The above judgment was assailed before the Hon'ble Supreme Court of Pakistan and vide judgment reported as (P.L.D. 1983 S.C. 693), the Division Bench judgment of this Court, rejecting the preliminary objection was up held. It was observed that the appeal preferred before Division Bench was liable to be disposed of on merits. The findings of Hon'ble Supreme Court of Pakistan are as follows:

"15. 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 alongwith 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 alongwith the other documents has, indeed, been received by the respondent or his Advocate.

1. 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 ground on which this is behind done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertain-ability of the appeal.

2. Sub-rule (2) of Rule 3 provides that on receipt of the notice preferred 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 limini, in case he succeeds in doing so he may even be awarded costs.

3. The above 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 any appeal but a right has been conferred on him to contest the appeal at the limini 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 land 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 alongwith 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 alongwith 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.

4. In the instant case, we observed that the learned Division Bench has issued a pre-admission notice to Advocate of the respondents (the petitioner herein) and their Advocate Mr. Akhtar Mahmood was present on pre-admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in limini. No grievance, further more, was made by him to the effect that any document to which reference was being made during the hearing of the appeal had not been supplied to him or that he was otherwise taken by surprise. Thus, in this case, all the objects for which Rule 3 was inserted in Order XLIII of the C.P.C. were satisfied in substance. Since the proper place of procedure is to hold and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilised as "stepping stones" rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with.

5. After the above judgments, the controversy ought to have been laid to rest but unfortunately it was not done so and conflicting views were expressed by various benches of the Sindh High Court, Lahore High Court, Peshawar High Court and Balochistan High Court.

6. The issue was raised before Lahore High Court in the case of Ch. Bashir Ahmed and 4 others v. Province of Punjab and others and because of divergence of opinion by various High Courts, and by different benches of the High Courts, a learned Single Judge referred the case to a Division Bench and videjudgment reported as (P.L.D. 1990 Lahore 266), the learned Division Bench of Lahore High Court discussed a large number of cases from various High Courts. The judgments considered by the learned Division Bench of the Lahore High Court are as follows:-

7. Mrs. Dino Manekji Chinoy and 8 others, (P.L.D. 1983 S.C. 693).

8. Siraj Din and others us. Province of Punjab (1984 C.L.C. 1287 (Lahore High Court).

9. Muhammad Shaft v. Muhammad Amm-(1984 C.L.C. 1528 (Lahore High Court).

10. Muhammad Siddique and 6 others v. Boota (P.L.D. 1985 Lah. 243).

11. Ghulam Rasul v. Mst. Fatima (1987 C.L.C. 1177).

12. Nazir Ahmed Jagirani Balouch v. Province of Sindh andanother,(1987 C.L.C. 1750).

13. Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13others(1985 C.L.C. 168).

14. Muhammad Ramzan and another v. Haji Karim Bakhsh and 5others,(1988 C.L.C. 448).

15. I would like to refer to a judgment by Balouchistan High Court in the case of Haji Muhammad Naeem and another v. Malik Ghulam Nabiand 5 others (P.L.D. 1988 Quetta 9) and by the Peshawar High Court in F.A.O. No. 7 of 1995, Salahuddin v. Mansoor All Shah. In both these judgments it was held that the service of notice required in Order 43 Rule 3, was mandatory in nature and the non-service of notice on the respondent was sufficient in itself for dismissal of appeal. The latter judgment was overruled by the Hon'ble Supreme Court of Pakistan, vide judgment reported as (1997 S.C.M.R. 414).

16. The learned Division Bench of the Lahore High Court in the case of Ch. Bashir Ahmed v. Province of Punjab (supra), held as follows: "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 gauging the Lakshmiratan Engineering Works Limited versus Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range (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 installments 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 alongwith 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 'entertain' 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 provision 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.

1. 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 non- observance 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 scrutinizing 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.

2. 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 sub- rule (2) of Rule 3 of Order XLIII, 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 penalized 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."

3. The latest judgment on the point is by the Hon'ble Supreme Court of Pakistan, in the case of Salahuddin v. Syed Mansoor Ali Shah and others (1987 SCMR 414). It was contended in this case that the appearance on behalf of respondent was put in High Court, before full hearing of the case by the D.B. of the High Court and thus object of serving notice U/0. 43, Rule 3 CPC was fully served and achieved. In these circumstances the case was sent back to the High Court for decision on merits. It was held by the Hon'able Supreme Court of Pakistan as follows:

"We are, otherwise, satisfied that as the respondents were fully represented before the learned Judges of the Division Bench before admission of the appeal, the object of serving a notice on the respondents under Order 43, Rule 3, CPC before filing of the appeal was fully met in the case and therefore, the appellant could not be non-suited in the appeal on this ground."

1. Before parting with this order I would like to refer one judgment of the Lahore High Court and the other by this Court. In the case of Abdul Ghani v. Settlement & Rehabilitation Commissioner & Another (1983 N.L.R., Civil 558), it was held by Justice Irshad Hasan Khan (as his lordship then was) that "mere failure to serve notice of the appeal on respondent would not by itself furnish a valid ground for dismissal of appeal. The rationale behind provisions of Rule 3 is to achieve expeditious disposal of appeals against interlocutory orders and application filed before the Appellate Court during pendency of a suit. The provisions are somewhat part materia with the caveat system prescribed by Supreme Court Rules. The purpose is that the opposite party may appear before a Court at the time of hearing of appeal in motion without being summoned through process of Court. The respondent in this case admittedly appeared at the time of admission of the appeal, therefore, the technical non-compliance of the provisions of Order 43, Rule 3 CPC, have not occasioned any injustice to the respondent. It is well settled that the object behind all procedural laws is to save paramount interest of justice and the mere technicalities, unless offering insurmountable hurdles cannot be allowed to defeat the ends of justice."

2. In the case of Elite D. Silva v. Dilawar Hussain (1993 C.L.C. 361), a single Judge of this Court after reference to the judgment of Hon'able Supreme Court reported as (P.L.D. 1983 S.C. 693) and other judgments held that in view of the judgment reported as (P.L.D. 1983 S.C. 693), referred to above, the defect in serving notice under Order 43, Rule 3, C.P.C. before filing of the appeal stood cured upon pre-admission notice having been given by the learned First Appellate Court to respondent before admission and hearing of the appeal. The appeal, therefore, could not have been dismissed on that legal ground".

3. Consequent to the above discussion, it is held that the substantial compliance was made with the provisions under Order XLIII, Rule 3 C.P.C., with the appearance of the learned counsel for the respondent before the First Appellate Court, prior to the consideration of merits and application of mind by the First Appellate Court. In these circumstances the learned First Appellate Court ought to have decided the Misc. appeal on merits instead of dismissing the same for technical non-compliance of the provisions contained in Order 43, Rule 3 C.P.C. Since miss-carriage of justice has taken place rendering the impugned order as illegal therefore, the impugned order of learned 1st Additional District Judge Karachi (South), is set aside. The case is remanded back to the learned First Additional District Judge Karachi (South), for rehearing of Misc. appeal and decision on merits. The revision application is allowed accordingly. (A.A.J.S.) Petition allowed.

PLJ 2001 Karachi 152

Present: faiz muhammad qureshi, J. A.H. ALVI-Appellant

versus

MUHAMMAD TARIQ-Respondent First Rent Appeal No. 314 of 1996, heard on 17.1.2001.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 21-Objections raised by tenants counsel have not been discussed by learned Rent Controller—Effect—Appeal is allowed and impugned Order is set aside and case is remanded with directions to re-examine three Objections raised by learned Counsel for Tenant and decide matter in light of objections and give findings—Since Order is passed on legal grounds, therefore, there will be no order as to costs.

[P. 156] A & B

Mr. Badarudduja Khan, Advocate for Appellant. Mr. Imran Ahmed, Advocate for Respondent. Date of hearing: 17.1.2001.

judgment

Appellant A.H. AM has called in question the Judgment dated 12.8.1996 passed by learned III Senior Civil Judge and Rent Controller, Karachi Central, in Rent Case No. 252 of 1995, directing the Appellant, who is Tenant, to vacate the Shops in question and hand-over its vacant and peaceful possession to the Respondent/Landlord, subject to the payment of rent of the said period. The Respondent/Landlord filed Application under Section 15 of the Sindh Rented Premises Ordinance, 1979 stating therein that the Appellant is tenant in respect of Shops in question which were let out to him by Late Muhammad Nasir Khan father of the Respondent/Landlord about 24 years back and during his life time late Muhammad Nasir Khan had distributed his entire property situated on Plot No. ll/B-6, Commercial Area, Nazimabad-2, Karachi and shops in question fell into share of the Respondent/Landlord and the Appellant/Tenant started paying rent to the Respondent/Landlord of both shops at the rate of Rs. 350/- each per month.

According to Respondent/Landlord, the Appellant/Tenant is a very difficult person and habitual defaulter in payment of rent as he always used to pay the rent after due date the Appellant/tenant has paid rent upto June 1994 thereafter he failed to pay rent from July 1994 and thus he committed default. It is a case of Respondent/Landlord that he is Government employee where he is being paid low salary of Rs. 3000/- per month; in order to pull on with his large family, Respondent/Landlord decided that his wife shall open and run business of Ready Garments in the shops in question and thus he requires the above Shops for his personal bona fide use and start business of his wife and therefore, he filed the above Rent Application. The Appellant/Tenant was served with notice who filed his Written Statement denying the averments of main Application as well as allegations levelled by the Respondent/landlord against him.

The Respondent/Landlord filed Affidavit-in-evidence of his attorney, namely, Muhammad Saleem Khan, who produced photocopy of General Power of Attorney-as Ex.A/1, photocopy of Legal Notice as A/2, photocopy of reply of notice as Ex.A/3, photocopy of reply of Legal Notice as Ex.A/4, photocopy of another reply of notice as Ex.A/5, photocopy of reply of Legal Notice as Ex. A/6 and Original Rent Receipts as Ex. A/7 and has been subjected to cross-examination by the learned Counsel for the Appellant/ Tenant and thereafter the Respondent/Landlord's Counsel closed his side by way of endorsement dated 16.11.1995.

The Respondent/Landlord also filed his Affidavit-in-evidence and has been subjected to cross-examination by learned Counsel for the Appellant/Tenant and thereafter the Appellant/Tenant's Counsel closed his side by endorsement dated 28.3.1996.

The learned Rent Controller formulated the following points for determination:--

1. Whether the Applicant requires the Shops in question for his personal bona fide use in good faith to start the business of his wife?

2. Whether the Opponent has committed default in payment of monthly rent?

3. What should the Order be?

After hearing the learned Counsel for the parties and going through the evidence adduce by the parties, the learned Rent Controller passed the Judgment in terms as stated above. Hence this Appeal was filed by the Appellant/Tenant. At the very outset, without touching the merits of the case, learned Counsel for the Appellant/Tenant Mr. Badardduja Khan raised three Preliminary Objections, which are re-produced below:

(i) That Power of Attorney of Respondent/Landlord is invalid and against the law;

(ii) Notice was given by the Respondent/Landlord to the Appellant/Tenant and in the said notice, personal bona fide use is not mentioned;

(iii) Respondent/Landlord has not examined himself.

According to Mr. Badarudduja, learned Counsel for Appellant Tenant, these preliminary objections were raised by him before the Rent Controller but the same have not been discussed by the Rent Controller while delivering the Judgment although such objections are borne out from the record. Learned Counsel for Appellant/Tenant has argued with vehemence that Power of Attorney's evidence is not admissible. Since the Respondent/Landlord was available in Karachi and so also his wife; they are oupht to have examined themselves before the Rent Controller as the Power of Attorney is only attested by Notary Public and is not authenticated as envisaged under Article 95 of Qanun-e-Shahadat. He has also cited Article 50 of Stamps Act and Section 35 of the Stamps Act. In order to elaborate his contentions on this point, learned Counsel for Appellant/ Tenant has placed reliance on PLD 1984 SC (AJK) 157 (165/166); 1986 CLC 363 (365A); 1989 PLD 2166; PLD 1997 Lah. 122.

Learned Counsel for Appellant/Tenant while dealing with he Preliminary Objection No. 2, that the Notice sent by Respondent/Landlord to Appellant/Tenant in which requirement of personal need is not mentioned and according to him there has been correspondence between the Respondent/Landlord and Appellant/Tenant right from 17.1.1995 to March 1995 and in the month of April 1995 the Rent Application was filed by the Respondent/Landlord. According to learned Counsel for the Appellant/ Tenant, since the requirement of personal need is not mentioned in the said Notice and subsequently the Rent Application has been filed by the Respondent/Landlord stating therein that he needs the premises in question for his personal bona fide use is nothing but the Respondent/ Landlord has not come with clean hands. He has placed reliance on PLD 1997 Karachi 285; 1988 CLC 1053; 1984 CLC 645. While, elaborating his contentions on Objection No. 3 that Respondent/Landlord has not examined himself, the learned Counsel for Appellant/Tenant has submitted that the Landlord was in Karachi, his wife was also available in Karachi, neither the Respondent/Landlord has examined himself nor his wife on the point of bona fide use and the case filed by Respondent/Landlord cannot be treated as evidence. He has placed reliance on 1997 CLC 430; 1997 CLC 363; 1984 CLC 1137. Finally, learned Counsel for Appellant/Tenant has prayed for remand of case to the trial Court for re-examination of these three preliminary objections, which are being raised by him and decide the matter in the light of such preliminary objections.

On the other hand, Mr. Imran Ahmed, learned Counsel for Respondent/Landlord has strongly opposed the arguments rendered by the learned Counsel Appellant/Tenant and has submitted that no Application has been moved by the learned Counsel for Appellant/Tenant before the trial Court impounding the Power of Attorney and no such plea has been taken by the learned Counsel Appellant/Tenant before the trial Court nor such question has been put in cross-examination of the Respondent/ Landlord and in this regard, he has cited Section 3/33 of Stamps Act. He has also drawn my attention on Schedule 48 of the said Stamps Act. He has placed reliance on 1986 CLC 1472; 1993 CLC 2511 (2514B). Learned Counsel for Respondent/Landlord has further submitted that Notice is not mandatory and has placed reliance on 1983 CLC 1446 (1447); PLD 1985 S.C. 38.

Learned Counsel for Appellant/Tenant in rebuttal has submitted that as far as the objection raised by the learned Counsel for Respondent/Landlord that there was no Application for impounding the Power of Attorney is concerned, it was not the job of the learned Counsel for Appellant/Tenant to move such Application before the trial Court and had he moved such Application, he would have filled the lacuna on the part of learned Counsel for Respondent/Landlord and once again he has drawn my attention to Article 95 of Qanun-e-Shahadat and Section 35 of Stamps Act. He has further submitted in rebuttal that as far as notice is concerned, it is

not necessary to send by the Respondent/Landlord to the Appellant/Tenant but since the notice has been sent, it was necessary on the part of the Landlord to mention in the said Notice about the requirement of premises in question for his personal bona fide use. He has further elaborated his contention in rebuttal that the law cited by the learned Counsel Respondent/Landlord is distinguishable. The contentions raised by him, who laid much stress that the law cited by the learned Counsel for Respondent/Landlord that Attorney has been examined on behalf of the Respondent/Landlord, in this regard the learned Counsel has cited law in which the Landlords were abroad but in the instant case, the Respondent/Landlord was available in Karachi and so also his wife and according to the learned Counsel for Appellant/Tenant, the contention of the learned Counsel Respondent/Landlord in this regard has no substance.

I have considered the arguments rendered by the learned Counsel for the parties on the preliminary objections raised by the learned Counsel for Appellant/Tenant and have perused the material available on record and have also gone through the Impugned Judgment passed by the learned Rent Controller. I have also examined the General Power of Attorney and Affidavit-in-evidence of the parties and there cross-examination.

The preliminary Objections raised by the learned Counsel for Appellant/Tenant admittedly borne out from the record available and the learned Rent Controller while delivering the Judgment in the matter has not taken into consideration these three Objections, which are being raised by the learned Counsel for Appellant/Tenant.

Whatever law has been cited by the learned Counsel for Appellant/Tenant and the law cited by the learned Counsel for Respondent/ Landlord; be that as it may, it is quite evident that these Objections have not been discussed by the learned Rent Controller therefore, I am of the considered view that it is a fit case for remand. Accordingly, this Appeal is allowed and the Impugned Order is set aside and the case is remanded with directions to re-examine these three Objections raised by the learned Counsel for Appellant/Tenant and decide the matter in the light of the Objections and give the findings.

Since the Order is passed on the legal grounds, therefore, there will be no order as to costs.

Since this Rent Case was filed in 1995, the trial Court is directed to pass the appropriate Orders within three months. The parties are directed to appear before the aforesaid Rent Controller on 12.2.2001. Office to return the Record and Proceedings of the case as soon as possible.

(T.A.F.) Orders accordingly.

PLJ 2001 Karachi 157

Present: faiz muhammad qureshi, J. SALEEM-UD-DIN-Appellant

versus

Mst. BIBI JAN-Respondent

F.R.A. No. 63 of 1999, decided on 25.1.2001.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-S. --Tenant-Ejectment of-Appeal against-Admission of son of landlady that "pagri"has been received by them from other tenant and sole object of landlady is nothing but to get increased rent from tenant which is borne out from record and evidence-It is also an admitted position, that landlady is also in possession of other Shops and one of Shops has been let out and in view of these circumstances, it cannot be said that landlady has come out for personal bona fide use for her son with clean hand and need of landlady is not appearing bona fide, therefore, no case for personal bona fide need is made out by Respondent/Landlady-Landlady has miserably failed to make out a case for ejectment against Appellant/ Tenant on personal bona fide use—Impugned order setaside—Appeal allowed- [P. 160] A

Mr. Abdul Hameed Bhopali, Advocate for Appellant. Mr. Zahid Hussain,Advocate for Respondent. Date of hearing: 25.1.20001.

judgment

Appellant Saleemuddin has assailed the Judgment dated 12.8.1996 passed by learned VIII Senior Civil Judge and Rent Controller, Karachi East in Rent Case No. 516 of 1995, directing the Appellant/Tenant, to vacate the Shops in question and to deliver its vacant and peaceful possession to the Respondent/Landlady, by granting 60 days time to the Appellant/Tenant to vacate the said premises. Hence this Appeal.

The brief facts of the case are that Respondent/Landlady Mst. Bibi Jan is the owner of Shops Nos. 5 and 6, constructed over Plot No. 1/94, situated at Main Bazar, Shah Fasial Colony, Karachi and the Appellant is the tenant on monthly rent of Rs. 150/- for Shop No. 5 and Rs. 75/- for Shop No. 6 excluding electricity and conservancy charges which are payable by the Appellant/Tenant to the concerned Department, The Respondent/Landlady has further stated that Appellant/Tenant has not paid monthly rent for the month of December, 1991 and has also not paid electricity charges amounting to Rs. 9,497/- upto 16.8.1985. Thereafter Respondent/LandlarVv

filed Ejectment Application being Rent Case Nos. 48 of 1995 and 49 of 1995 on the ground of default, pending, adjudication before II Rent Controller. It is further stated by the Respondent/Landlady that the premises required by her in good-faith for her son, namely, Mehboob Khan who at present doing his business in rented premises and paying rent of Rs. 350/- per month and the Legal Notice was also sent to the Appellant/Tenant for personal bonafide use. The son of Respondent/Landlady is carrying his business under the name and style of Bismillah Gas and Electric Welding Works and the demised premises is very much suitable for the use of the son of Respondent/Landlady, therefore, Ejectment Application was filed.

The Appellant/Tenant was served and he filed Written Statement wherein he has challenged the maintainability of the Ejectment Application. He has denied the contentions raised in Application. However, the rate of rent in tenancy is not disputed. Appellant/Tenant has further stated that in total he has paid an amount of Rs. 23,480/- as Advance out of which Rs. 3,480/- was adjustable and Rs. 20,000/- is fixed deposit; the Respondent/Landlady has filed two Rent Cases Nos. 48 of 1995 and 49 of 1995 on the ground of default in order to enhance the rent. He has further stated in his Written Statement that Respondent/Landlady recently has let out one Shop to some other Tenant and the said Shop is situated on Plot No. 1/94, Shah Faisal Colony, Karachi. According to Appellant/Tenant the Respondent/Landlady has not come to the Court with clean hands and prayed for dismissal of the Ejectment Application.

Learned Rent Controller from the pleadings of the parties formulated the following Issues:-

1. Whether the Ejectment Application is maintainable?

2. Whether the premises is required by the Applicant for her son bona fidely?

3. Whether the Opponent has committed wilful default in payment of electric charges which is included in rent?

4. What should the Order be?

Respondent/Landlady examined herself and her son Mehboob Khan; both have been subjected to cross-examination. Whereas the Appellant/Tenant has examined him; Abdul Ghaffar, Saadullah Khan and Muhammad Usman and they have also been subjected to cross-examination.

The learned Rent Controller, after going through the evidence and arguments of the learned Counsel for the parties and decided Issues Nos. 1 and 2 in affirmative whereas Issue No. 3 was decided in negative and Issue No. 4, the Application of Respondent/Landlady was allowed and Appellant/ Tenant was directed to vacate rented premises and deliver the physical possession of the premises to the Respondent/Landlady within 60 days.

Learned Counsel for the Appellant/Tenant Mr. Abdul Hameed Bhopali has submitted that as far as the ground of default Is concerned that has not been proved and now the question of personal bona fide use is to be proved by learned Counsel for Respondent/Landlady and has contended that Respondent/Landlady has got total six shops and she has also filed two Rent Cases Nos. 48 of 1995 and 49 of 1995 against the present Appellant/Tenant on the ground of default and against which such First Rent Appeals are also pending before this Court and so far the Respondent/Landlady is avoiding to accept the service in those First Rent Appeals. He has further submitted that this is 3rd Application for ejectment against the present Appellant/Tenant vide Rent Case No. 516 of 1995 on the same grounds. According to him, the Respondent/Landlady has not come with clean hands. Learned Counsel for the Appellant/Tenant has contended with full force that before filing the present Rent Case No. 516 of 1995, the Respondent/Landlady let out Shop No. 2 to Suleman, the another tenant which has been admitted by the son of Respondent/Landlady, namely, Mehboob Khan in cross-examination. So also, this fact has been admitted by the Respondent/Landlady in her cross-examination. He has also submitted that rent receipt No, 11 dated 5.4.1996 and No. 13 dated 6.4.1994 are regarding Shop No. 2 let out to Suleman. According to him, the Respondent/Landlady has not come with clean hand as she has suppressed the material facts and according to him another shop has been vacated by tenant which has been let out by Respondent/Landlady to another tenant namely Suleman which she has admitted in her cross-examination and the purpose of filing of the Ejectment Application against the Appellant/Tenant is nothing but to increase the rent and no case for personal bona fide need is made out by Respondent/Landlady.

In support of his contentions, he has placed reliance on 1985 CLC 562, 1989 CLC 241-247E; 1990 CLC 1320; 1991 MLD 651; 1992 MLD 1685; 1997 CLC 1531; 1999 CLC 1273; 1994 SCMR 1900; 2000 CLC 90; 2000 CLC 1314; 1986 SCMR 594; 1999 MLD 2989; 1999 CLC 454; 1999 CLC 266.

On the other hand, learned Counsel for Respondent/Landlady has drawn my attention on Objections of the main Appeal and has submitted that personal bona fide need has been proved as the son of Respondent/Landlady, namely Mehboob is doing his business in a rented premises; when asked, as to whether any witness of the locality has been examined by the learned Counsel for Respondent/Landlady before the lower Court on the factum of personal use, the learned Counsel for Respondent/Landlady replied in negative. He has placed reliance 1996 SCMR 1178; 1992 MLD 1225; 2000 CLC 1756; 2000 CLC 230 - 2000 CLC 997.

I have heard Mr. Abdul Hameed Bhopali, learned Counsel for the Appellant/Tenant and Mr. Zahid Hussain, learned Counsel for Respondent/Landlady; have gone through the Record and Proceedings of the case; their Affidavit-in-evidence and cross-examination.

The Respondent/Landlady in her cross-examination has admitted that his son, namely Mehboob is doing business of welding. She has also admitted in her cross-examination that Shop No. 2 was let out to Nawabuddin who handed over the possession of the same to his nephew Suleman; she has also admitted in her cross-examination that her son is not jobless. I have also examined the Affidavit-in-evidence of Mehboob son of Respondent/Landlady and his cross-examination; he has admitted in his cross-examination; that tenant of Shops Nos. 1 and 4 have paid "Pagri" to his father; he has also admitted in his cross-examination that Shakir is a tenant of Shop No. 1; he has also admitted in cross-examination that Nawabuddin was previously tenant of Shop No. 2 and Iqbal is the tenant of Shop No. 3 and he is the tenant of Shop No. 4.

Admittedly, there are six Shops in the said premises and one of shops has been let out to one Nawabuddin who has handed over its possession to his nephew Suleman and in these circumstances, if there was any need for personal use, the Respondent/Landlady should have not rented out the Shop No. 2 to Nawabuddin and have retained the same for personal use of her son. Admittedly, the Respondent/Landlady has filed two other Rent Cases and the question of personal bona fide use is not being proved and it is also very clear from the admission of Mehboob son of Respondent/Landlady that "pagri" has been received by them from other tenant and sole object of the Respondent/Landlady is nothing but to get increased the rent from the present Appellant/Tenant which is borne out from the record and the evidence. It is also an admitted position, thai Respondent/Landlady is also in possession of oilier Shops and one of the Shops being Shop No. 2 has been let out and in view of these circumstances, it cannot be said that Respondent/Landlady has come out for personal bona fide use for her son with clean hand and the need of Respondent/Landlady is not appearing bona fide, therefore, no case for personal bona fide need is made out by the Respondent/Landlady. I am being also fortified by the cases cited by the learned Counsel for Appellant/Tenant.

The upshot of the above discussion is that the Respondent/Landlady has miserably failed to make out a case for ejectment against the Appellant/Tenant on personal bona fide use and accordingly I allow the Appeal and set aside the Impugned Order dated 12.8.1996 passed by learned VIII Senior'Civil Judge and Rent Controller, Karachi East, in Rent Case No. 516 of 1995 with no order as to costs.

The above are the reasons of my short Order dated 25.1.2001. (AAJS) Appeal allowed.

PLJ 2001 Karachi 161

Present: ZlA PERVAIZ, J.

M/s. PAKISTAN NATIONAL SHIPPING, CORPORATION KARACHI-Appelicant

versus M/s. ADAMJEE INSURANCE COMPANY LTD. KARACHI-Respondent

C.R.A. No. 149 of 1998, heard on 17.1.2001.

Sindh Small Causes Court Act, 1887--

—-S. 25-Review application filed under Section 25 of Sindh Small Cause Courts Act 1887 and only remedy available to applicants against judgment and decree of Small Causes Court which lies before High Court-Order passed on basis of word "appeal" used in application seeking permission for amendment by which permission was granted for revision to be read under Section 25 of Sindh Small Cause Courts Act, 1887 in place of Section 115 CPC-Amended title of review application filed under Section 25 of said Act giving correct description and section of law applicable and being only remedy available to applicants from High Court as specifically mentioned in Section 25 of said Act-Order is thus a result of ignoring provision of Section 25 empowering High Court for exercise of jurisdiction in revision of law and distinction provided under Sections 24 and 25 of aforesaid act has escaped consideration while passing order- Error of law is apparent on face of record and calls for indulgence by way of review to prevent injustice being done to applicant by Court-Order of High Court holding revision application moved under Section 25 of Sind Small Causes Act, 1887 to be an appeal and dismissing same as such is hereby recalled-Case may now be fixed for Katcha Peshi according to roster. [P. ] A & B

Mr. M. Imtiaz Agha, Advocate for Applicant. Mr. Jamil Khan, Advocate for Respondent. Date of hearing : 17.1.2001.

order

This application under Section 114 read with Section 151, CPC, that was originally filed against to the judgment and decree of the Court of Small Causes passed in Suit No. 65/195 dated 27.2.1998 in favour of the plaintiff for a sum of Rs. 15,310/- with costs. Present application is directed against the order of this Court dated 12.1.2000 dismissing R.A. No. 149/98 as under:

"Against this order Civil Revision u/S. 115 CPC was filed on" 10.8.1998.

Subsequently on 15.9.1998 advocate for applicant filed CMA No. 1331/98 under Order VI, Rule 17 read with Section 151. CPC, requesting that appellant may be allowed to amend the title page of memo of appeal and insert Section 25 of Provincial Small Causes Court Act in place of Section 115 CPC. On 18.9.1998 this application was allowed. So this is not R.A. but it is an appeal under the provision of Provincial Small Causes Court Act, 1887 which has different procedure for recovery of small amounts falling within the jurisdiction of such Court. The relevant portion of the impugned order has already been reproduced above. The appellant instead of approaching the lower Court has come to this Court. No case is made out for interference with the impugned order. The Revision is, therefore, dismissed."

At the time of hearing a preliminary objection on the point of limitation was raised and the learned counsel has placed reliance on the following reports: Jawed Singh u. Ala Singh, AIR 1938 Lahore 295, Wall Muhammad v. Wali Muhammad, (PLD 1974 SC 1956, Dada Steel Mills v. Government of Baluchistan, 1986 SCMR 1602, Nadir Khan v. Liaquat All 1999 SCMR 1132, Mst. Zojan v. Muhammad Hasan 1999 MLD 2096 and Ghulam Nabi v. Rashid PLD 2000 SC 63. Wherein it has been held that time consumed for obtaining certified copies can be excluded in case of review. Accordingly this objection is dropped in view of the law laid down in the aforesaid reports.

The Revision application under Section 25 of the Provincial Small Causes Act, 1887 (hereinafter referred to as the said act was dismissed after my learned brother Mr. Justice Amanullah Abbasi (as he then was) on the assumption that it was an appeal under the provisions of the said act vide order dated 1.3.1999.

Appeal provided under Section 24 of the said act has a limited scope • which is restricted to the extent of orders made by the Small Causes Court falling under Clause (ff) or Clause (h) or sub-section (I) of Section 104 of Court of Civil Procedure Code 1908 and it is only in such cases that the appeal lies to the District Court.

The instant case does not fall under any of the specified cases and is beyond the scope of appeal under Section 24 of the said act.

Cases not covered by Section 24 are not subject to appeal before the District Judge but attract provisions of Section 25 as reproduced as under :--

"25. The High Court, for the purpose of satisfying itself that a decree order made in any case decided rjy a Court of Small Causes was according to law, call for the case and pass such order with respect thereto as it thinks fit."

The review application filed in the case under Section 25 of the said Act is thus the only remedy available to the present applicants against the judgment and decree of the Small Causes Court which lies before the High Court as specified in the Section itself. The order dated 12.1.2000 passed on the basis of the word "appeal" used in the application seeking permission for amendment (MA 1331/98) by which permission was granted for the revision to be read under Section 25 of the said act in place of Section 115 CPC. The amended title of the review application filed under Section 25 of the said Act giving the correct description and section of the law applicable and being the only remedy available to the applicants from the High Court as specifically mentioned in Section 25 of the said act. The order is thus a result of ignoring the provision of Section 25 empowering the High Court for exercise of jurisdiction in revision of law and the distinction provided under Sections 24 and 25 of the aforesaid act has escaped consideration while passing the order. The error of law is apparent on the face of record and calls for indulgence by way of review to prevent injustice being done to the applicant by the Court. As held in the cases of Muhammad Aslam Mirza v. Mst.\ Khurshid Begum, PLD 1972 Lahore 603 and Zulfiqar All Bhutto v. State,] PLD1979S.C. 741.

Accordingly CMA 275/2000 is allowed and order of this Court dated 12.1.2000 holding the revision application moved under Section 25 of the o Sind Small Causes Act, 1887 to be an appeal and dismissing the same as such is hereby recalled. The case may now be fixed for Katcha Peshi according to roster.

(T.A.F.) Orders accordingly.

PLJ 2001 Karachi 163 (DB)

[Sindh Bench at Sukhar]

Present: muhammad ashraf leghari and muhammad roshan essani, JJ.

HAFIZ MUHAMMAD ISMAIL & others-Petitioners

versus PROVINCE OF SINDH and others-Respondents

C.P. No. D-656 of 1999, decided on 27.2.2001.

(i) Administrative Officer--

—Administrative Officers have to exercise their discretion honestly, reasonably and not arbitrarily. [P. 172] B

(ii) Land Acquisition Act, 1894 (I of 1894)--

—-Ss. 4, 5, 5-A, 6, 16, 17, 23 & 48(l)-Acquisition of land-Proper proceHure-Effect of not following-Whether notification once withdrawn can be reviewed by same authority-Question of-For establishing Tanga-cum- Donkey cart stand and fruit-vegetable market, Deputy Commissioner issued notification u/S. 4 of the Act on 18.4.1994, whereas Commissioner issued notification u/S. 6 on 26.4.1994-While treating it as a matter of urgency provisions of S. 17(1) were invoked, but those of Ss. 5, 5-A of the Act were relaxed-Petitioners challenged said notification by filing civil suit, wherein stay was not granted—Later on, Commissioner offered to withdraw notification u/S. 4 subject to the condition that petitioners shall withdraw their suit-Petitioners then withdrew their suit and Deputy Commissioner videnotification dated 27.6.1998 issued u/S. 48(1) of the Act withdrew notification u/S. 4, which was published in Official Gazette on 15.7.1998-Subsequently, notification u/S. 6 was withdrawn by Commissioner on 30.6.1998-During all this period, petitioner remained in possession of suit land-Thereafter, Commissioner vide letter dated 6.7.1998 directed Manager, Government Printing Press not to publish notification dated 30.6.1998 and held that notification dated 26.4.1994 shall stand intact-Challenge to-Held: Section 17 of the Act comes into play in case of urgency, whereas in instant case, there seemed to be no urgency and after applying S. 17, no urgency work was done on the plot, even its possession was not taken over by respondents-Before withdrawing his previous orders, Commissioner did not issued notice and hear parties, and after withdrawal of notification, proper course for him was to initiate fresh proceedings under Land Acquisition Act-Required land was acquired in year 1994, but its possession 011 paper only was said to have been taken over and its compensation had not yet been paid to onwers-No progress had been made at the site-Government officials could not be allowed to exercise colourful and unfettered powers to proceed with matter as they desire out side the four corners of statute-In instant case, statute had not been followed in its true and right perspective, but powers vested in respondents were exercised for collateral purposes and their action was extraneous and unreasonable— Judicial process could not be allowed to be abused in this fashion- Government was not debarred from initiating proceedings afresh in accordance with provisions of newly amended law, if plot in question was required to them in larger interest of public-Writ Petition was a]1 jwed as prayed. [Pp. 172 £ 173] A, C & D

PLD 1992 FSC 398; 1991 SCMR 2180; 1991 SCMR 2193; PLD 1965 SC 671; 1999 CLC 776; PLD 1973 SC 49 ref.

Mr. M.A Rasheed, Advocate for Petitioners. Mr. Parya Ram, Advocate for Respondent No. 5. Mr. Abdul Sattar Soomro, Advocate on behalf of A.A.G., for other Respondent.

Date of hearing : 24.1.2001.

judgment

Muhammad Ashraf Leghari, J.--The petitioners through this petition have sought the following reliefs :--

(a) declare that the issuance of letter dated 6.7.1998, Annexure "A" is without any lawful authority and is of no legal effect.

(b) directing the Respondent No. 2 to withdraw letter dated 6.7.1998 annexure "A".

(c) directing the respondents to desist from, initiating any action whereby the petitioners are deprived of their right of enjoyment of property as enjoined by the Constitution, or from interfering with their possession over the suit property.

(d) to make such other declaration and issue such other direction as this Honourable Court deems fit and proper in the facts and circumstances of this case.

(e) To grant costs of these proceedings.

The facts briefly stated in the petition are that petitioners jointly own Plot No. 1109/1 & 2 ad-measuring 21579 sq. feets in the Town Committee Daharki, District Ghotki. Town Committee Daharki passed a resolution on 7th December 1983, wherein the request was made to Commissioner Sukkur Division and Deputy Commissioner Ghotki at Mirpur Mathelo to initiate proceedings under the Land Acquisition Act, 1894 for acquiring the above mentioned plot for establishing Tanga-cuni-donkey cart stand and fruit-vegetable market. Consequently Deputy Commissioner Ghotki under Section 4 of Land Acquisition Act issued notification on 18.4.1994, whereas Commissioner Sukkur Division Sukkur subsequently issued notification under Section 6 on 26.4.1994. The provisions of Section 17(1) regarding the urgency of the matter were invoked and the applicability of Sections 5 and 5-A of the Land Acquisition Act was relaxed as treating it as a matter of urgency.

The petitioners filed a F.C Suit No. 255/1995 against Respondents Nos. 1, 4 and 5 and some private defendants. No stay was however granted to the plaintiffs against the land acquiring authorities. But no further proceedings were initiated till 27.3.1998. The Respondent No. 3 then called feasibility report from Assistant Commissioner and the Land Acquisition Officer Mirpur Mathelo in respect of the required land for establishing the fruit, vegitable market and the Donkey cart/Tanga Stand. The report of Respondent No. <4 revealed that the required plot was not suitable for the several reasons including its narrowness. It was observed in the report that no award under Section 11 of the Land Acquisition Act was passed. The said report given by Respondent No. 4 was entrusted by Respondent No. 3 (Deputy Commissioner (Ghotki) who requested Respondent No. 2 (Commissioner Sukkur Division Sukkur) for withdrawal of a notification

under Sections 4 & 6 of the Land Acquisition Act by a letter dated 15.4.1998. Further Respondent No. 3 called for the opinion of Respondent No. 5, who also was of the view that the land sought to he acquired was not suitable for the said purpose.

The Respondent No. 2 (Commissioner Sukkur Division Sukkur) approved the suggestion of the respondents for withdrawal of notification under Sections 4 and 6 subject to the condition that the plaintiffs shall withdraw their suit. The petitioners, therefore, withdrew Suit No. 255/1995 vide statement dated 25.6.1987, as such, Deputy Commissioner Ghotki at Mirpur Mathelo by his notification dated 27.6.1998 under Section 48(1) of the Land Acquisition Act withdrawn the notification under Section 4 of the Act dated 18.4.1994 and ordered M.D. Government Printing Press, Karachi to publish the same in Government Gazette. The said notification under Section 48(1) of the Act was published in Sindh Government Gazette on 15th July 1998. Subsequently the notification under Section of the Act was withdrawn by Commissioner Sukkur Division Sukkur on 30.6.1998.

During all this period the petitioners remained in possession of the suit land. All of sudden the Commissioner Sukkur Division Sukkur, Respondent No. 2 issued letter dated 6.7.1998, whereby he directed Manager Government Printing Press Karachi not to publish the notification under Section 48(1) of the Act dated 30.6.1998 and further held that notification dated 26.4.1994 shall stand intact.

The petitioner approached Respondent No. 2 for withdrawal of subsequent letter dated 6.7.1998 but to no avail and he ultimately expressed that the earlier proceedings stood reviewed by the said letter. The said letter obviously reveals malice on the part of Respondent No. 2 and is mala fide, corum non-judice. The Respondent No. 2 had no locus standi to review the Land Acquisition proceedings after the withdrawal of notification under Section 4 of the Act. Pursuant to the notices issued to respondents; the Respondents Nos. 1, 2 and 3 have not submitted their comments however Respondents Nos. 4 and 5 have filed their counter affidavits.

The Respondent No. 4 Assistant Commissioner and Land Acquisition Officer Mirpur Mathelo has denied some of the pleas raised in the petition but stated that the same are denied for want of knowledge or having no concern with them by putting evasive denial.

The Respondent No. 5, Administrator Town Committee Daharki has also admitted most of the assertions made in the petition. He has further stated in the counter affidavit that Assistant Commissioner and Land Acquisition Officer Mirpur Mathelo has given false report in collusion with the petitioners. It is admitted that the Respondent No. 2, Commissioner Sukkur Division Sukkur had agreed to the withdrawal of notification subject to withdrawal of suit but according to Respondent No. 5, it was all because of the false reports submitted by the Respondents Nos. 3 & 4, It is stated in the counter affidavit that Respondent No. 2 may not have been in the knowledge

of withdrawal of notice under Section 48(1), under Section 6 of Land Acquisition Act issued on 26.4.1994 as it was issued by Addl. Commissioner Sukkur Division. The possession of Plot has already been handed over by Mukhtiarkar Daharki to answering Defendant No. 5 and the Government Printing Press Karachi was directed to publish the order dated 6.7.1998 directing him not to publish the notification under Section 48(1) of the Act issued on 30.6.1998 with a clarification that the notice 'dated 26.4.1994 will remain in tact. It is further stated in the counter affidavit that the Respondent 3 was not competent to withdraw the notification under Section 4 of the Land Acquisition Act which was earlier issued by him.

It is contended by Mr. M.A. Rasheed learned counsel appearing for the petitioners that the whole proceedings carried under Land Acquisition Act are corum non judice and without lawful authority. The notification under Section 4 was issued on 18.4.1994 and the requirements of Section 4 were not fulfilled by the authorities concerned. Later on after eight days, Respondent No. 2 issued another notice order dated 26.4.1994 wherein all the formalities were relaxed and the procedure contained under Sections 5, 5-A of Act were by passed. It is submitted that the feasibility report was called from Land Acquisition Officer, the Respondent No. 4 to submit his report, who by his report dated 6.4.1998 opined that the plot in question was not suitable.

The said report was approved by Respondent No. 4 as well as Respondent No. 2. The notification under Section 48(1) of the Land Acquisition Act was issued and subsequently the Respondent No. 2 malafidelyissued latter on 6.7.1998, whereby he restrained the Manager Government Printing Press Karachi not to publish the notification under Section 48(1) of the Act dated 30.6.1998, holding therein that the notification dated 26.4.1994 shall remain intact. It is argued that the said actions were mala fide, void, ab initio and corum non judice. It is stated that the proper procedure has not been adopted by the respondents. The feasibility report submitted by the Land Acquisition Officer and Deputy Commissioner Ghotki have been ignored malafidely. The land acquisition proceedings have been delayed. The possession has not yet been taken over nor the land has been surveyed. The compensation has not been made to the owners and it is contrary to the injunction of Islam. The notification once withdrawn cannot be reviewed by the same authority. Reliance is placed upon the cases. The Land Acquisition Act (I of 1894) (PLD 1992 F.S.C. 398), Pakistan through Secretary, Ministry of Defence, and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCMR 2180), Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193), Abdul Roufand others v. Abdul Hamid Khan and others (PLD 1965 S.C. 671) Malik Salahuddin and others v. Collector, Land Acquisition Peshawar and 3 others (1999 CLC 776) and The State v. Zia-ur-Rehman and others (PLD 1973 S.C. 49).

Mr. Parya Ram, learned counsel appearing for Respondent No. 5 has reiterated his arguments on the assertions made in the counter affidavit. It is argued that the reports of Respondents Nos. 3 & 4 were false which were prepared in connivance with the petitioners. The possession has been taken over by the Respondent No. 5 and the Deputy Commissioner has no power to withdraw previous notification issued under Sections 4 and 6 of the Land Acquisition Act.

Mr. Abdul Sattar Soomro, learned counsel appearing for the Government has expressed similar views and has adopted the arguments of Mr. Parya Ram.

The report of Respondent No. 4 is reproduced hereinbelow in extenso:

"To, No:A CLA)-751

M. Mathelo dated. 6.4.1998

The Deputy Commissioner Ghotki at Mirpur Mathelo.

Subject:ACQUISITION OF PLOT BEARING G.NO: TC:

1109/1 & 2 (D. NO. 0016 G) SITUATED OPPOSITE HAFEEZ BUILDING TOWN DAHARKI FOR CONSTRUCTION OF FRUIT/ VEGETABLE MARKET. DONKEY CARTS/AND TANGA STAND.

Reference : Your Letter No. RB/1104 dated 27.3.1998.

Respectfully the report on the points mentioned in the above letter is submitted as under:

Point No. 1.

Firstly about the measurement of the plot in question, I will submit that there are contradicting reports on record. One report show its measurement 38115 sq feet, whereas the other reports showing measurement to be 21579 sq feet which is the latest report by Mukhtiarkar Daharki, which in my opinion appears to be correct and this measurement is to be taken into consideration. The size of plot is quite in sufficient to meet the requirements. So as to accommodate fruit and vegetable market on one hand and stand for donkey Carts/Tangas Cars of the town and its vicinity on the other hand. Secondly this fact cannot be denied that a heavy rush of traffic is already experienced on the road leading to the Shahi Bazar and turning to the proposed site which requires widening to meet the rush of traffic but it is hot possible in the present circumstances. If the site in question is selected for the purpose required, admittedly the traffic will multiply altogether and will create a great inconvenience for the public-at-large. Thirdly the roads, I should say streets, leading from all sides to the proposed site are so narrow that then crossing of vehicle, tangas and donkey carts is not possible at all. Fourthly the turn from the Shahi Bazaar roads towards the proposed site is so narrow that it is not possible for the traffic to turn towards the proposed site especially it will not be possible for heavy traffic such as trucks, trailers and Mazdas. In the present circumstances it is not possible to widen the said turn as the buildings on both sides are already in existences. Perhaps this appears to be an old scheme when the things were otherwise, but now the process or passage of time the situation has totally changed due to increase in shopping and spree because of the biggest in industrial projects near this town.

Lastly admittedly the plot in question is situated in the heart of town surrounded by thickly populated are and school and from the health and hygienic point of view it will not be wise to suggest to establish fruit/vegetable Market and donkey Carts/Tanga Stands at the proposed site, whereas in these scientific days such man dies are either shifted or being shifted to the out skirts of the cities and town of the Pakistan.

Point No. 2.

It is submitted that Award under Section 11 of Land Acquisition Act has not yet been passed as such the payment of compensation is out of question.

Point No. 3.

The Civil Suit No. 4/1985 filed by Private Parties Ahmed Din v/s. Muhammad Ismail and others pending in the Court of Senior Civil Judge Ubauro, where his No. is 38/96. It is fixed on 11.4.1998 for the purpose of evidence on defendant side. In the said Civil Suit the Government is not party. Further more it is submitted there is another FC, Suit No. 255/1955 Re-Muhammad Ismail and others vs. Town Committee Daharki and others against the Acquisition proceedings in which the heirs of deceased Ahmed Din namely Muhammad Hussain, Muhammad Rafique, Abdul Latif and Talib Hussain are defendant. Then matter is fixed on 16.4.1998 for the purpose of argument on injunction application, framing of issues and evidence on plaimtiff side.

Sd/-4-4-1998

Assistant Commissioner

L.A.C. Mir Mathelo."

The said report was recommended by Deputy Commissioner Ghotki vide his letter dated 15.4.1998. On receipt of such report from Deputy Commissioner, the office of Commissioner Sukkur Division dispatched a letter to Deputy Commissioner Ghotki at Mirpur Mathelo directing him to propose another piece of land for the required purpose in consultation with Administrator Town Committee Daharki as previously proposed plot was situated in the heart of Daharki Town and was not suitable for the purposes. The withdrawn notification under Section 48(1) of the Land Acquisition Act issued by the Deputy Commissioner Ghotki is reproduced herein blow in extenso :--

Withdrawal Notification Under Section 48(1) of Land Acquisition Act. 1894

No. RB/- of 1998, Ghotki at Mirpur Mathelo

Dated :

Whereas it appears to the Deputy Commissioner/Collector Ghotki at Mirpur Mathelo that the plot mentioned in the scheduled here annexued, which was acquired for the Public Purpose viz. construction of Tanga/Donkey Cart stands/Fruit and vegetable market Daharki Taluka Daharki District Ghotki at Mirpur Mathelo vide Notification under Section 4 of Land Acquisition Act, 1894 and issued vide Notification No. RB/- 1213 dated 18.4.1994.

The said plot which was acquired for purpose mentioned above is situated in the center of Town Daharki, which is said to be a conjusted place and is quite-in-sufficient for the heavy traffic and also public rush experienced to wards road leading to Shahi Bazar of Town Daharki. The subject-matter was too old of 1983 and there was also litigation over the plot in the Court of Senior Civil Judge Ubauro is withdrawn.

SCHEDULE

District Taluka Deh/Town Plot No: Area

Ghotki at Daharki Daharki TC/No. 1109/1 21579

Mirpur & 2 (D.No. 16.C)

Mathelo situated opposite

Hafeez Building

Daharki.

With the approval of the Competent Authority, the proceedings already launched under Section 4 of the Land Acquisition Act, 1894. The acquiring agency as well as the Assistant Commissioner and LAO Mirpur Mathelo is requested to propose/suggest an other piece of land for the purpose for fresh proceedings under Land Acquisition Act.

Sd/- 27/6

(NAZAR AHMED ABBASSI)

Deputy Commissioner Ghotki at

Mirpur Mathelo.

The withdrawal of notification under Sections 4 & 6 was approved by Addl. Commissioner Sukkur Division vide his order dated 30.6.1998 which is reproduced herein blow:--

Withdrawal Notification Under Section 48(1) Land Acquisition Act 1984:

No. 0-3-103-LA/94 Sukkur Dated 30.6.1998.

Whereas it appears that the plot mentioned the schedule given below, which was acquired for the public purpose viz.construction of Tanga/Donkey card stand/Fruit and vegetable Market Daharki, taluka Daharki, District Ghotki vide Notification under Section 6 of Land Acquisition Act, 1894 discussed vide No. 0-3-103-LA/94, dated 26.4.1994.

The said plot which was acquired for the purpose mentioned above is situated in the center of Town, Daharki which is reported to be a congested place and is quite unsuitable for the heavy traffic and also public rush is experienced towards road leading to Shahi Bazar of Town Daharki and the situation has also changed now being 15 years old.

Schedule

District Taluka Deh/Town Plot No. ________

Ghotki at Daharki Daharki TC/No. 1109 2157 sq. ft.

M. Mathelo 1&2 (D.No.l6.G)

situated opposite Hafeez Building Daharki.

Whereas in view of the above position, the proceedings already launched under Section 6 of the Land Acquisition Act are hereby withdrawn under Section 48(1) of the Land Acquisition Act, 1894. The Acquiring Agency as well as the Assistant Commissioner & Land Acquisition Officer, Mirpur Mathelo is requested to propose/suggest another piece of land for the purpose for fresh proceedings under Land Acquisition Act.

Sd/-

Additional Commissioner-II Sukkur Division.

It appears that the Liand Acquisition proceedings were initiated in the year 1994 but proper procedure as enunciated by Sections 4, 5-A, 6, 17 of the Act has not been adopted by the concerned authorities Sections 4 of the Land Acquisition Act provides, if the notification is published, the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Then their workmen and servants can enter upon the survey numbers and prepare boundaries of the plot by placing marks and cutting trenches.

Section 17 of the Act comes into play in case of urgency. There seems to be no urgency in the case and after applying Section 17 no urgency work has been done on the plot even the possession is not taken over. Neither boundaries have been prepared nor the land is surveyed and so also no measurement is taken. No such plea has been raised in the counter affidavit filed by the respondents. The reports were called for from Land Acquisition Officer who has given his detailed report which is reproduced above.

The action under Section 48(1) of the Land Acquisition Act for withdrawal of the earlier notification was approved by the Commissioner Sukkur Division and then subsequently he changed his mind and reviewed his previous orders. After withdrawal of notification, the proper course for him was to initiate fresh proceedings under Land Acquisition Act. That has not been done in the instant case. The Commissioner Sukkur Division has without issuing notice and without hearing the parties has withdrawn his previous orders and vetoed all the subsequent orders and reports submitted by Assistant Commissioner and so also his own orders. The order passed by Respondent No. 2 is obviously fanciful and mala fide and the actions are not taken under the statutes. The required land is acquired in the year 1994 and the possession on papers only is said to have been taken over by the respondents. The compensation has not yet been paid to the owners. No progress has been made at the site and no action has been taken towards the preparation of alleged Tanga-Donkey cart Stand and fruit and vegetable market. The Government officials of the department cannot be allowed to exercise colorful and unfettered powers to proceed with the matter as they desire out side the four corners of statute. The administrative officers have to exercise discretion honestly reasonably and not arbitrarily. It is manifest that in the instant case, the statute has not been followed in its true and right perspectives but the powers vested in them are exercised for collateral purposes. The actions of respondents mentioned above are extraneous and unreasonable. The judicial process cannot be allowed to be abused in this fashion.

The Government has failed to pay any compensation to the petitioners. Sections 16 and 23 were to be amended suitably within six months from the date of pronouncement in the case of land acquisition in Shariat Suo Motu No. 14/P of 1983 decided on 30th April 1992 reported in PLD F.S.C. 398 wherein their lordships have held as under:

"35. We, therefore, direct the Provincial Government of all the four Provinces, as the law is included in the provincial list of the Constitution that the amount of compensation is to be paid to the owner of the land or deposited in Civil Court in his name by the acquisitioning authority before taking over possession of land and a provision may be added to this effect after the existing Section 16 of the Act which relates to taking of possession by the Government. This will protect the rights of both the parties under the principle of the Sheridan : ( )

1. To sum up, Section 16 and Section 23(1) of the Land Acquisition Act, 1894 will be amended suitably within a period of six months from the date of this judgment, as discussed above. In case the Government fails to do so, the above provisions will be deemed to have been amended on the expiry of six months period from the date whereof and the existing provision shall cease to be operative on and from 1st November, 1992."

Consequently the petition is allowed as prayed with no order as to costs. However, the Government is not debarred from initiating the proceedings afresh in accordance with the provision of newly amended law, if the plot in question is required to them in the larger interest of public.

(S.A.K.M.) Writ Petition accepted.

PLJ 2001 Karachi 173

[Sindh Bench at Sukhur]

Present: syed zawwar hussain jafferi, J.

QURIB ALI @ MUHAMMAD QABIL-Appellant

versus

Dr. SHAH NAWAZ and others-Respondents Civil Appeal No. 7 of 1982, decided on 6.4.2001.

(i) Benami Transaction--

—In order to prove benami character of a transaction, no documentary evidence was invariably essential. [Pp. 175 & 180] A & D

(ii) Benami Transaction--

—True touchstone for determining benami nature of transaction are: (i) Source of consideration, (ii) From whose custody titie documents and other documents came in evidence, (iii) Who is in possession of suit property, (iv) Motive for benami transaction. [P. 180] E

(iii) Benami Transaction--

—-Benami transaction has full recognition in Pakistan, and Legislature by any general measure has not declared such transaction as invalid.

[P. 182] I

(iv) Benami Transaction--

—Benami transaction-During employment of Khairpur State, appellant purchased property in his brother's name due to embargo placed on purchase of land by government servants without permission-After his dispossession from property, appellant filed suit claiming to be its real owner having paid entire sale consideration, remained in possession of property and its title document, and paid all Government dues-Trial Court dismissed suit and appeal filed against it was also dismissed by High Court-On petition for special leave to appeal, Supreme Court remanded case to High Court for its decision after re-appraisal of evidence—Held: Title documents, original challan for paying money supported by revenue receipts and entries in the name of appellant clearly proved that he had purchased suit property and made payment of sale consideration, and he was in possession of it before 1976, when he was forcibly dispossessed by Respondent-Held Further : Circular placing ban on purchase of land by Government servants in Khairpur State was beyond doubt, genuine, original and relevant, whereby motive for purchase of land by appellant in his brother's name stands clearly proved-Besides that the fact that at relevant time, appellant was issueless made out a strong motive for a benami transaction-Held Further: Circular imposing restriction on purchase of land by Government servants did not restrain them from purchasing immovable property in the name of other person for various reasons-Held-Further : Appellant had successfully proved his case through oral and documentary evidence-He was real owner of suit property-Judgment and decree passed by Civil Judge and affirmed in appeal were set aside and suit of appellant was decreed with cost-Trial Court was directed to appoint Commissioner to ascertain mesne profits and pass final decree accordingly. [Pp. 181 & 182] F, G, H, J & K

1995 MLD 316 (Karachi); 1997 MLD 390; 1998 SCMR 806; 1991 SCMR 703; PLD 1969 Karachi 221; AIR 1930 Allahabad 732; 1999 MLD 2934 (a) (Karachi); AIR 1954 Madras 811 ref.

(v) Qanoon-e-Shahadat Order, 1984 (P.O. No. 10 of 1984)--

—Art. 52-Manual of Khairpur State Special Circulars, published in year 1936-Authenticity of-Respondents' center'Jon that original Manual produced in Court contain!\e relevant Circular No. 24 was not signed by any authority, was Held, based on misconception of law in view of Art. 52 of Qanoon-e-Shahadat Order. [P. 177] B

M/s. Qadir Bux Memon and Zaheer Hassan, Advocates for Appellant.

Mr. Ahmed Ali Shahani, Advocate for Respondents. Date of hearing: 19.2.2001.

judgment

The instant appeal has been remanded by the Hon'ble Supreme Court on the ground that the evidence produced by the parties respectively had not received proper consideration in the light of law bearing BENAMI transaction. In the opinion of the worthy apex Court no documentary evidence was invariably essential in order to support a finding of a benami character of a transaction. The matter is remanded to the High Court for a fresh decision after taking into consideration the evidence already on record and on a proper evaluation thereof in the light of relevant law. The above appeal was remanded on 3rd July, 1991 and for ten long years it could not be disposed of for one reason or the other. It was argued seriously by the parties on 14.2.2001 and 19.2.2001 and finally it was fixed for judgment which is given hereunder :-- The facts of the case are already given in the judgments of the learned Senior Civil Judge, Khairpur and the Hon'ble High Court and for the sake of brevity, need not be repeated. However, for co-relating the submissions of the parties, the main features of the case are narrated below: Qurib Ali was in the employment of erstwhile Khairpur state when he purchased certain land specifically described in Para 7 and 11 of the plaint, in the name of his brother Muhammad Chuttal. The reason for purchasing the above property. In the name of his brother was that Qurib Ali was a Government servant and an embargo was placed on the purchase of land by the Government servants without obtaining permission from the Government. Qurib Ali paid the entire sale consideration, and claimed to have remained in possession and enjoying of the said property and paid the Government dues (Dhal etc.). He also possessed the documents of title of the land purchased by him and the various receipts paid towards the installments of the land. He was also in possession of a registered document for the piece of land purchased by him from a private person in the name of his brother. Qurib Ali has thus produced revenue receipts ranging from the year 1950 to 1977, Village Form 8-A and 8-B in respect of the land purchased by him in the name of his brother. Besides he examined five witnesses who were all unanimous in supporting his claim of BENAMI transaction in favour of Muhammad Chuttal. In defense, Shahnawaz son 01 Muhammad Chuttal and two other witnesses namely Bagh Ali and Bux Ali were examined, who denied that Qurib Ali had remained in possession of the land in question. PW Shahnawaz has also produced certain documents, which are mostly the duplicates of the original documents produced hy Qurih Ali. DW Bagh Ali and Bux Ali have denied that Qurib Ali remained in possession of land after its purchase. The learned trial Court did not believe the oral testimony of the witnesses on the point of. Benami character of the property, and insisted upon production of any written undertaking wherein Muhammad Chuttal would have promised to return the land to Qurib Ali when he so desired. He also repelled the contention that any embargo was placed on Government servants in Khairpur state for purchasing property in his own name. For such reasons, it was held that the Plaintiff had given insufficient proof of the benami character of the transaction. Consequently, the suit was dismissed. The Plaintiff assailed the above judgment and decree in appeal before Hon'ble High Court but he could not succeed in appeal also. The learned single Judge of this Court was also of the opinion that nothing documentary was produced to prove the benami character of the transaction and reliance was placed only on oral evidence which, in his worthy opinion, was not sufficient. Besides, Muhammad Chuttal has all along remained the recorded owner of the land in question. It was also held that the Plaintiff/appellant has failed to show any law under which fetters were placed on his powers to purchase the land in his own name being a Government servant. Summing up his findings, the learned Judge observed that the appellant utterly failed to prove that he had provided the funds for the purchase of the property and that he exercised a domain over the property as absolute owner thereof. The simply copy produced of the Circular of Khairpur state imposing a ban on the purchase of property by Government servants was also discharged as inadmissible as its genuineness, in his worthy opinion, was highly questionable. For such reasons, appeal was dismissed which obliged the appellant to move an application for leave to appeal which was allowed and consequently the matter is remanded to this Court for fresh decision after a careful re­appraisal of the evidence on record, and after proper evaluation thereof. The parties were also given an opportunity to produce proper circulars, instructions and Rules relevant on the question of acquisition of immovable property by Civil Servants of Khairpur state at the relevant time. The question of law contained in Section 23 of the Contract Act demanded consideration for final decision of the case and its impact on the legality of the claim of the appellant, was also to be judged. The learned counsel for the appellant has relied upon the case of Major (Retd.) Mazhar Mahmood Khan vs. Khushal Khan Jadoon, reported in M.L.D. 1995 Kar. 316.

The learned counsel for the respondent has relied upon the following case\law :--

(1) 1997 MLD 390 (Syed Habib Mehmood vs. Mrs. Bilqees Fatima).

(2) 1988 S.C.M.R. 806 (Mst. Sardar Khatoon and Ors. vs. Dost Muhammad and another).

(3) 1991 S.C.M.R. 703 (Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain).

(4) PLD 1969 Kar. 221 (Sultan vs. Nawab Mouladad).

(5) AIR 1930 Allahbad 732 (Mani Ram Misra v. Purshotam Laiand another).

(6) MLD 1999 Kar. 2934 part (a) (Mst. Halima vs. Muhammad Kassam and Others).

(7) AIR 1954 Madras 811 (Ganesa Naicken vs. Arumugha Naicken)

I have heard the learned counsel for the parties at length, perused the record and have also carefully gone through the various rulings produced on their behalf.

During the course of proceedings, the counsel for the appellant moved applications for summoning the original Circular referred to above to the Deputy Commissioner, Khairpur, who is the Custodian of old record of Khairpur state. It appears that proper interest was not taken and consequently an "UNSIGNED" Circular was sent which was neither authentic nor carried any more evidentiary value than the one already on record. After a passage of time, the counsel for the appellant was successful in getting original Book captioned as "A MANUAL OF KHAIRPUR STATE SPECIAL CIRCULARS". It was published in the year 1936 under the authority of Government of Khairpur state. This book contains many circulars on different subjects including the relevant Circular No. 24, which appears at page 48 of this book. The original copy of the book is kept on record.

The learned counsel appearing on behalf of the Defence vehemently challenged the authenticity of the above book on the solitary ground that it was not signed by any authority. This objection is manifestly based on misconception of law. In this connection it may be stated that Section 52 of the Qanun-e-Shahadat completely repels the contention raised on behalf of defence. For ready reference, the contents of Section 52 of Qanun-e-Shahadat are reproduced below :

"Section 52. Relevancy of statements as to any law contained in law books.-When the Court has to form an opinions to a law of any

country and statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law and any report of a ruling of the courts of such country contained in a book purporting to be a report of such ruling, is relevant."

| | | --- | | |

Thus, the motive of the appellant for making a benami transaction in the name of his brother stands fully proved. The other criteria for proving the character of Benami transaction are also proved by the evidence, which is discussed below, under Issue No. 5 which is apparently the most important issue. The appellant has examined himself as Ex. 72. In his statement, Qxirib Ali has fully supported his contentions as put forth in his pleadings. He has stated that he was in the Government service of Khairpur state and was issueless. These were persons for making Benami transaction and the same appear to be plausible. Qurib Ali, the appellant has further stated that he made the payment and incurred expenditure on the improvement of the land. He claimed that his brother was only a grazier and cultivated small pieces of lands which were hardly enough for his own maintenance. He has produced 5 true copies of Form 8-A as Ex. 74/1 to 74/5 Revenue Receipts for Flat rate as Ex. 75, 81 land Revenue receipts as Ex. 76/1 to 76/81, 6 land revenue bills as Ex. 77/1 to 77/6. True copy of Form A. No. 1072 as Ex. 78, True copy of Khasra of two Dehs as Ex. 80 and 81, true copies of "A" Forms Nos. 496, 633/496 etc. as Ex. 81 to 85, Revenue bill form as Ex. 86. Land Revenue receipts as Ex. 87/1 to 87/2. Original challan as Ex. 88. True copy of flat rate bill as Ex. 92. All these documents are originals or certified true copies and I have no reason to dis-believe them or doubt their authenticity or genuineness. In presence of such over-whelming evidence or purchase of land and possession thereof, I cannot subscribe to the observations of the two courts that Qurib Ali only confined his case to oral testimony.

As for the other evidence, as already stated, Qurib Ali examined as many as 7 witnesses, who are all either the close relatives of the parties, their close acquaintances. To appreciate and evaluate their evidence, the jist of each evidence is given below :--

PWJIAND Ex. 45. He stated that Qurib Ali was Government servant and because of the ban on purchase of immovable property by Government servants, Qurib Ali being issueless purchased the land in question in the name of his brother Muhammad Chuttal. Qurib Ali paid the sale consideration and bore the improvement charges of the land. Muhammad Chuttal used to graze buffaloes. Qurib Ali used to get the land cultivated and his brother used to live separately. In cross, he stated that three sons were born to Qurib Ali after his retirement. I was often present when Qurib Ali purchased the land.

He has repelled all suggestions vehemently that the land was not purchased by Qurib Ali, or the same was being cultivated by Muhammad Chuttal.

PWSODHOEx. 46.

He stated that Qurib Ali purchased the land when he was in Government service in the name of his brother and he used to enjoy its produce and make expenditure on cultivation. He stated that Muhammad Chuttal had no interest in the land in question. In cross, he admitted that he was cultivating different survey Nos. of Plaintiff Qurib Ali as his Hari. He has also denied all suggestions put forward by defence about the title of Muhammad Chuttal over the land in question.

PWRAHIMBUXEx. 47.

He has stated about the theft of the bag of Qurib Ali which was stolen by the defendants and which contained important documents. As for the factum of ownership, this witness has pleaded ignorance.

PW GULZAR Ex. 48.

He has deposed in un-ambiguous terms that the land belonged to Qurib Ali who has purchased it while in Government service in the name of his brother. Qurib Ali used to keep haries and he also acted as a witness of the sale-deed Ex. 49 which was a benami sale in the name of Muhammad Chuttal for which sale consideration was paid by the Qurib Ali. He is the maternal uncle of the parties, and is supposed to be well versed with the facts .of the case. He was also not prepared to admit that Muhammad Chuttal had any interest in the land in question.

PWMIANBUXEx. 50.

He deposed that he cultivated the land in question as a Hari of Qurib Ali. He used to give him seed and fertilizer. About three-four years back, defendants have occupied the land.

PW SAHIB KHAN Ex. 51.

The land was given to me on harrap by Qurib Ali and he used to give seed and fertilizer to me and take batai. At present land is in possession of Shahnawaz (His statement was recorded on 2.9.1980).

PW MUHAMMAD AYUB Ex. 70.

He is a witness about the theft of the bag of Qurib Ali. He has stated that Abdul Majeed took away the bag without informing us.

I now propose to summarily deal with the evidence produced in defence.

DW 1 Shah Nawaz, who is son of Muhammad Chuttal, who died prior to the retirement of Qurib Ali and who was subsequently married with the daughter of Qurib Ah', occupied the land in the year 1976 and got the foti khata badal in favour of L.Rs of Muhammad Chuttal. He has stated that the land in question was purchased by his late father and during his life time has remained in possession and enjoyment of the same. He has denied all contention of the Plaintiff Qurib Ali and has further denied that he has not occupied the land but it has devolved upon him in due course of law. He has produced a number of documents which are listed below as Ex. 113 to 142. It is noticed that most of such documents are duplicate copies of the documents produced by Qurib Ali, or receipts for Dhal etc. after the occupation of the land by him. The witnesses examined by the defence are Beaux Ali and Bagh Ali. Their evidence may also be summarized as under :--

DW BAGH ALI (Ex. 98).

He deposed that the suit land was purchased by Muhammad Chuttal and I used to cultivate the land as hari on a portion. Prior to me Nizamuddin and Abdul Majeed used to cultivate the land as haries. (Such persons have not been examined). He has strongly asserted that Qurib Ali neither purchased the land nor he had any concern with the same. He has never remained in possession. In cross, he has admitted that 30-40 years ago he used to sell fuel. His Goth is situated 2 miles away from the land in question.

DW3 BUXALI (Ex. 101).

He deposed that after death of Muhammad Chuttal, Nizamuddin used to cultivate the land and sons of Bagh Ali are cultivating the land. In cross, he admitted that for the last 10-12 years he was working as Beldar. I heard that Muhammad Chuttal purchased the land and I do not know who paid the consideration. He repelled the suggestion that the suit land belonged to Plaintiff Qurib Ali.

After analyzing the evidence discussed above and making its proper evaluation, there remains no room for doubt that the appellant has succeeded in proving the Benami character of the transaction. The overwhelming evidence which is unimpaired by cross-examination has titled the balance in his favour. It would be worthwhile to mention that DW Shahnawaz was not born when the purchases were made and thus, whatever he has stated in this behalf in hearsay. No direct evidence has been produced to show that the purchased were made by Muhammad Chuttal in his benefit. Judged from the surrounding circumstances, also, the nature of transaction is proved to be Benami. I have no hesitation to respectfully subscribe to the view of the learned Judge of the Hon'ble Supreme Court that documentary evidence is not invariably essential to support a finding for Benami character of a transaction. In the instant case, the appellant has not confined to production of oral evidence but he has placed on record authentic and genuine record in support of his claim. As has been rightly pointed out that the true touchstone for determining Benami nature of transaction as consistently formulated by the Superior Courts through various judicial pronouncements. Some of them are also mentioned in the Remand Order which are reproduced as under :--

(i) Source of consideration.

(ii) From whose custody title documents and other documents

came in evidence.

(iii) Who is in possession of suit property, (iv) Motive for the Benami transaction.

In the light of evidence on record, I wish to make my observations on each point as under :—

Point No. (i) & (ii) :

Admittedly, the documents produced as Ex. 79 to 86 are the title documents which remained in possession of the person who is the real owner. Similarly, documents produced as Ex. 88 is the original challan for paying money which is supported by Revenue receipts Ex. 76/1 to 76/81 and the entries in the name of Qurib Ali in Form VIII-A Ex. 74/1 to 74/5 as well . as Ex. 80 clearly and manifestly prove that the land in question was purchased by Qurib Ali and he made the payment of sale consideration.

Point No. (iii)

The documents produced above clearly establish that since before 1976, the appellant was in possession when he was forcibly dispossessed by ~~" "•"• Respondent No. 1 through force. The statement of various persons examined as PWs and DWs are in consonance on this point.

Point No. (iv):

The circular placing a ban on the purchase of land by Government servants in Khairpur state is reproduced as under :—

| | | --- | | |

The Book containing such notification/circular is beyond any doubt genuine, original and relevant. Besides, the above reason the fact that at the relevant time, Qurib Ali was issueless, makes out a strong motive for a "Benami Transaction". The above discussion exhaustively covers the main Issue No. 5 which is pivtoal in the whole case and is replied in favour of appellant. Incidentally, Issue Nos. 6 & 7 are also covered tinder this discussion and these are also decided in favour of appellant. H As for Issue No. 8 is concerned, the learned trial Curt has rightly pointed out that the suit having been filed by the appellant, thi« issue is declared as redundant.

Issues Nos. 9 and 10 are discussed in the concluding paragraph of this judgment while Issues Nos. 1 to 4 were not pressed by the parties. Thus all the issues are discussed as framed in the suit.

Referring to the legal objection relating to Section 23 of Contract Act, suffice it to say that in the instant suit, an agreement implied or concluded is not to be enforced against the Government. Therefore, Section 23 of Contract Act shall have no impact on the brivity of contract between Qurib Ali and Muhammad Chuttal. The law of Benami Transaction has full recognition in Pakistan and the legislature by any general measure has not declared such transaction as void. The Circular No. 24 issued by the erstwhile state imposes restrictions on purchase of property by a Government servant. It does not restrain a Government servant from purchasing immovable property in the name of other person for various reasons. In my opinion, Section 23 of Contract Act has no application on the present case.

The upshot of the above discussion is that the appellant has successfully proved his case tiirough oral and documentary evidence. He is the real owner of the land in question and the judgment and decree passed by the learned senior Civil Judge and affirmed in appeal are liable to be set K aside. Consequently, the suit of the appellant is decreed as prayed with cost. The learned trial Court is directed to ascertain the mesne profits by appointing a Commissioner and pass final decree in accordance with law.

(S.A.K.M.) Suit decreed Appeal accepted.

PLJ 2001 Karachi 182

Present: RASHEED A. RAZVI, J.

TAJAMUL KHAN BANGASH-Petitioner

versus

S.H.O. OF P.S. GULZAR HIJRI, DISTRICT MALIR KARACHI & 2 others-Respondents

C.P. No. S-443 of 1998, heard on 31.12.1998.

Criminal Procedure Code, 1898 (V of 1898)--

—-Ss. 523, 550 & 51-Constitution of Pakistan, 1973, Arts. 23, 24 & 199-Powers to police to seize property suspected to be stolen-Available alternate remedy not availed-Constitutional petition-Maintainably- Seizure of vehicle by police and arrest of petitioner on his failure to produce registration documents-Whether departure from mandatory provisions of law by police, prevented petitioner to invoke constitutional jurisdiction of High Court-Question for determination-Petitioner was not legally entitled to invoke Section 523 Cr.P.C. and therefore it cannot be said that petitioner has alternate remedy-Respondent who has not acted with all fairness and within four corners of laws, is not entitled to raise such plea with intention to perpetuate his illegalities on mere technical grounds-Section 523 Cr.P.C. is not attracted as it does not fulfil three conditions-Section 550, Cr.P.C. makes obligatory on police to report seizure of property immediately to Magistrate which was not done- -This makes act of seizure by police as illegal-It is claimed in petition that vehicle involved was purchased by petitioner-It is also admitted that despite lapse of more than three months nobody has come forward before respondents claiming vehicle involved-Act of Respondent in depriving petitioner of his vehicle by abusing process of law, amounts to violation of fundamental rights guaranteed to petitioner under Arts. 23 & 24 of Constitution-Held: Petitioner is entitled to custody of motor vehicle- Held further: Petition is maintainable for violation of fundamental rights. [Pp. 187 & 188] A, B & C

1976 P.Cr.L.J. 30.

Mr. Muhammad Yaqoob, Advocate for Petitioner.

Mr. Muhammad Saleem Samo, A.A.G. for Respondents.

Dates of hearing: 30.12.1998 & 31.12.1998.

judgment

The facts as alleged in the petition are that the petitioner was called by the Respondent No. 1 on 20.12.1998 at his police station in between 11:00 to 11:30 Who directed the petitioner to withdraw his earlier Constitutional Petition Bearing No. D839/1998. It is further alleged in the petition that upon refusal of the petitioner he was arrested and his vehicle make Toyota Corolla, Model 1988 bearing Registration No. IDG-6985 was impounded. It is stated in the petitioner that at night of the relevant day he was released upon furnishing surety by one Umer Gul. Petitioner's main grievance is that upon his release the vehicle was misused by the Respondent No. 1 for next four days and subsequently was deposited in the Nazarat Pool. He has prayed for the following relief :—

"It is therefore humbly prayed that this Honourable Court may be pleased to pass necessary directions to the Respondent No. 1 to deliver the peaceful possession of the vehicle bearing its Registration No. IDG-6985, Make Toyota Corolla, Model 1988 to the petitioner. This Honourable Court may further be pleased to direct the Respondent No. 2 to register necessary case and make inquiry in connection with the Crime committed by the Respondent No. 1 for keeping the petitioner in illegal confinement and Snatching the vehicle mentioned above from the possession of the petitioner alongwith any other further/additional relief which this Honourable Court may dem fit and proper in the facts and circumstances of the case."

1. Respondent No. 1 has filed his parawise comments. It has not been denied specifically that the petitioner had earlier filed a Constitutional petition wherein the Respondent No. 1 herein is also one of the respondents. It is para 5 of the comments filed by the Respondent No. 1 which gives some detailed reply, otherwise, the entire parawise documents appears to be evasive. Following is the para 5 of the comments filed by the Respondent No. 1:--

"(5) That on 21.10.1998 early in the morning Police Party headed by ASI Ali Muhammad Soomro stopped one suspected vehicle bearing Registration No. IDG-6985 Make Toyota Corolla colour silver driven by Tajamul Khan S/O Mohabat Khan who failed to produce the registration documents of the said car. Tajamul Khan S/o Mohabat Khan was arrested u/S. 54 and the car was seized u/S. 550 Cr.P.C. vide SDE No. 60 at 0010 hours dated 21.10.1998. Accordingly Tajamul Khan S/o Muhabat Khan was released on bail and the said vehicle was deposited to the Nazarat Pool vide road certificate No. X/98 dated 24.10.1998."

1. I have heard Mr. Muhammad Yaqoob, Advocate for the petitioner and Mr. Muhammad Saleem, A.A.G. for the respondents. Learned Additional Advocate General has raised objection to the maintainability of this petition on the ground that there is an alternate and efficacious remedy available to the petitioner under Section 523, Cr.P.C. which has not been availed. Mr. Muhammad Yaqoob has disputed this point and contended that S. 523 Cr.P.C. is not attracted. Section 523, Cr.P.C. reads a follows :--

"523. Procedure by police upon seizure of property taken under Section 51 or stolen.--(l) The seizure by any police officer or property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property.

(2) Procedure where owner of property seized unknown : If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate

thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

1. A perusal of Section 523 shows that any police officer who seizes any property, under Section 51 Cr.P.C., which is alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence, such fact shall be reported by him to the Magistrate who shall pass an appropriate order for disposal of such property or delivery thereof to the person entitled to the same. It was argued by Mr. Muhammad Saleem that it is sub-section (2) to Section 523 Cr.P.C. which is attracted in the circumstances of the case as the owner of the vehicle is not known. It is not disputed that the papers of the said vehicle stand in the name of one M. Yasin Khan son of Arshad Khan of Islamabad. It is the case of the petitioner that he has purchased this vehicle from said M. Yasin Khan on an open blank transfer letter which were also snatched by the Respondent No. 1 at the time of his arrest. Since this fact has been denied by the Respondent No. 1,1 would not like to dilate upon the same. Reverting to the provision of Section 523 (1), the Magistrate is competent to dispose of or deliver any such property which is forwarded to him by the police officer, under following three conditions namely :—

(a) If such property is seized during personal search of an accused as provided under Section 51 Cr.P.C. is conducted; or

(b) When it is alleged or suspected to have been stolen; or

(c) If such property is found under circumstances which create suspicion of any offence.

It was argued by Mr. Muhammad Saleem Samo, A.A.G. that since the recovery of the vehicle in question was made under Section 550, Cr.P.C. it could be returned by the Magistrate as provided under Section 523, Cr.P.C. He has referred to the two conditions mentioned in Section 550, Cr.P.C. which empowers a police officer to seize any property. These conditions are same as mentioned in sub-paras (b) and (c) above. In so far as involvement of the vehicle in any offence is concerned, the respondents were not able to show till this date that the said vehicle was involved in any offence or that it is a stolen property. It was argued by Mr. Saleem Samo that since the original papers were not available with the petitioner, it gives rise to suspicion that the car may have been involved in commission of some offence or may have been a stolen property. It was categorically stated by Mr. Yaqoob that the vehicle was not wanted by the respondents or by any other police official throughout Pakistan in any crime. Respondents were not able to show till this date that any other person has lodged any claim for this property. It was stated by Mr. Saleem Samo on the instructions of the respondents that they are still investigating the title of this property from Motor Vehicle Department, Rawalpindi. A suspicion is created when a person is not able to disclose his identity properly or in the case of a vehicle, he is not in a position to disclose ownership of the same. What was the material before the respondents at the time of impounding the vehicle in question which could give rise to suspicion, has not been placed either with parawise comments or with any counter affidavit or even today by producing any material. While considering these circumstances one cannot ignore the facts leading to filing of an earlier Constitutional Petition Bearing No. D-839/1998 (Tajamul Khan Bangash v. Province ofSindh and 8 others). The said petition was filed under Article 199 of the Constitution, 1973, on 17.6.1998 wherein Respondent No. 1 (in this petition) is impleaded as Respondent No. 7. This fact has been mentioned in Para 5 of the instant petition to which no specific denial has been made by the Respondent No. 1 in his parawise comments. On 24.6.1998, D.S.P. Gulzar-e-Hijri and S.H.O. P.S. Gulzar Hijri appeared before a Division Bench in that constitutional petition and it was in the knowledge of Respondent No. 1 of the instant petition on the day (20.12.1998) when the vehicle in question was impounded and the petitioner was arrested, that such a petition has been filed against him alleging harassment and violation of the fundamental rights of the petitioner. The allegations of the petitioner that he was called by the Respondent No. 1 in his police station and was threatened to withdraw C.P.C. No. 839/98 if seen in light of the fact that the arrest of petitioner was shown at the police station Gulzar-e-Hijri and the vehicle of the petitioner was allegedly recovered by police party gives substantial weight to the submissions of the petitioner that the acts of the respondents in the instant proceedings could not be termed anything else but mala fide and illwill. It is pertinent to note that the police officials have not filed any material, such as copies of station diaries, to substantiate that the petitioner was stopped during routine checking and later on was brought to the police station.

1. There were serious allegations against the Respondent No. 2, namely, S.H.O. Gulzar-e-Hijri P.S., Karachi in the earlier Constitutional petition (C.P. No. D-839/1998) that he, in connivance with other respondents of that petition attempted to deprive the present petitioner of his immovable property. An interim injunction was also granted in favour of petitioner restraining the respondents from unlawfully dispossessing him from the immovable property involved in that petition which was still pending when Respondent No. 2 filed his parawise comments denying allegations of the petitioner. In the above said backdrop of the case, Respondent No.l should have acted more cautiously and vigilantly while dealing with the petitioner in the alleged circumstances. The petitioner was deprived of his liberty and property in an unlawful manner. Article 4 of the Constitution, 1973 provides that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law. It

further provides that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 260 of the Constitution has defined the term 'property' as inclusive of any right, title or interest in the movable and immovable property which will include any right and interest in a motor vehicle as of instant case. Article 23 extends right to every citizen to acquire, hold and dispose of properly in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 provides further protection to this fundamental right and guarantees that no person shall be deprived of his property save in accordance with law. Fundamental rights of a citizen whenever violated and if brought to the notice of the High Court, should be investigated and an appropriate order is to be passed while exercising jurisdiction under Article 199 of the Constitution. In the case of Government of Sindh and 4 others v. Raeesa Farooq and 4 others (1994 SCMR 1283 at 1291), it was observed by Hon'ble Supreme Court that whenever a complaint of violation of a fundamental right is made to a High Court, it must step in to investigate such facts and to pass order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. These are the standards which must prevail before the Courts while dealing with a Constitutional petition under Article 199 whenever encountered with similar facts as of the instant petition.

1. In so far as the objection about invoking of the Constitutional jurisdiction without resorting to Section 523, Cr.P.C. is concerned, I would like to observe that it is settled law that the rule about invoking the Constitutional jurisdiction only after exhausting other legal remedies, is a rule of convenience and discretion by which the courts regulates its proceedings and that it is not a rule of law. (See Mst. Kulsoom Maleek andothers v. Assistant Commissioner and others (1996 SCMR 710 at 725), and Haideri Ship Braking Industries Ltd. v. Sindh Government and others (1988 MLD 1863 at 1875). I am also of the view that in the circumstances of this petition, the petitioner was not legally entitled to invoke Section 523 Cr.P.C. and, therefore, it cannot be said that the petitioner has an alternate remedy. A respondent who has not acted with all fairness and within the four corners of Law, is not entitled to raise such plea with the intention to perpetuate his illegalities on mere technical grounds. This overrules the objection raised by Mr. Muhammad Saleem Samo, A.A.G., Sindh, to the maintainability of this petition on the ground of availability of an alternate remedy.

2. Mr. Muhammad Yaqoob has referred to the cases Nasir Usman v. AshiqAli and 5 others (1992 P.Cr.L.J. 306), Muhammad Arifv. S.H.O., CityPolice Depalpur and 5 others (PLD 1994 LAhore 521), M. Salim Khan v. The State and 3 others (PLJ 1990 Cr.C. (Karachi) 483), Muhammad Ramzan v.Station House Officer, Police Station Baghbanpura, Lahore and 2 others (1995 P.Cr.L.J. 1947) and Khalid Saleem v. Muhammad Jameel alias Billaand 6 others (1996 S.C.M.R 1544). In the last cited case a Full Bench of Hon'ble Supreme Court has considered the provisions of Sections 516-A and 517, Cr.P.C. In so far as Section 516-A Cr.P.C. is concerned, it will attract when a criminal case is pending and in regard to those properties, for which it is alleged that some offence was committed with that property. Section 517 Cr.P.C. is attracted when the inquiry or the trial is completed before the trial Court. This provision is also not attracted in this case. The other relevant Section is 523, Cr.P.C. which again is not attracted as it does not fulfil the three conditions as noted above. Section 550, Cr.P.C. makes obligatory on the police to report seizure of the property immediately to a Magistrate which was not done in the instant case. This make the act of seizure by police as illegal. I am fortified in my view by the cases Fazal v. Incharge C.I.A. (1976 P.Cr.L.J. 30) and Muhammad Ramzan (supra). Accordingly, I am not impressed by the arguments that the petitioner has an alternate and efficacious remedy. In the instant case, it is claimed in the petitioner that the vehicle involved was purchased by the petitioner. It is also admitted that despite lapse of more than three months nobody less come forward before respondents claiming the vehicle involved. In these circumstances, the petitioner is entitled to the custody of the motor vehicle as held by this Court in the cases Nasir Usman (supra) and Zardullah Khan v. The State (PLD 1971 Karachi 906). The acts of the Respondent No. 1 in depriving the petitioner of his vehicle by abusing the process of law, amount to violation of the fundamental rights guaranteed to the petitioner under Articles 23 and 24 of the Constitution, 1973 and for its violation this petition is maintainable.

3. As a result of the above discussion, this petition is disposed of with the following directions :—

(a) Nazir, Central Vehicle Nazarat Pool shall deliver the vehicle mentioned by the petitioner on execution of a bank guarantee or on submission of solvent surety worth Rs. 400, OOO/- (Rupees four lacs only) to the satisfaction of the Nazir of this Court.

(b) Respondent No. 2, D.I.G. Police Karachi Range, Karachi is directed to conduct an inquiry into the allegations made in the body of this petition against Respondent No. 1 as well as in light of the observation of this Court made hereinabove and to submit his report within four weeks after receipt of intimation of this order, to the Registrar of this Court.

(c) In case, the above report disclose any such act which constitutes misconduct on the part of Respondent No. 1 and/or on the part of any other officer, then the Inspector General Police, Sindh, shall institute proceedings against such officer(s) under intimation to the Registrar of this Court.

(B.T.) Orders accordingly.

PLJ 2001 Karachi 189

Present:anwar mansoor khan, J. HABIB BANK LIMITED-Plaintiff

versus

M/s. QAYYUM SPINNING LIMITED and others-Respondents Suit No. 1812 of 1999, decided on 23.2.2001.

(i) Administration of Justice--

—Any contract which is of such a nature that, if permitted it would defeat provisions of any law, or which is contrary to public policy is a void agreement. [P. 249] H

(ii) Administration of Practice-

—It is established principle of law that what cannot be done directly cannot be done indirectly. [P. 249] G

(iii) Agreement--

—If any part of a single consideration is unlawful agreement is void.

[P. 254] L

(iv) Banking Control Department Circular No. 13--

—Circular No. 13 preamble also states that banking system was to shift over to Islamic modes of financing, such is public policy—After law has been brought in conformity with Holy Quran and Sunnah, way and methods' are being employed by bank to continue previous usuriou? Banking Practice, despite fact that law has been Islamised in accordance with Constitution of Islamic Republic of Pakistan-Such a practice that is sought to be developed by banks is a fraud on Islamic provisions-No one can be allowed to play a fraud on existing law by trying to avert existence of such law that prescribes that mark up on mark up cannot be charged-Act of entering into a future transaction is in respect of renewal of financing and does not contain any aspect of actual disbursement or payment-Such contracts are contracts that are against public policy.

[P. 250] J

(v) Banking Control Circular No. 13--

—Once it is held that loan of a commodity has to be returned in same kind and quantity irrespective of any changes in its price, concept of 'roll over' will also have changed-Concept of 'roll over\ though, dominant and an easy method of earning money, had actually been done away with, by introduction of BCD Circular No. 13 providing that no mark up on mark shall be charged-Argument that mark up on mark up would actually mean that no mark up could be charged on mark up levied on the principal amount in first instance has been made, it has been argued that words 'mark up on mark up' will only be read as if there shall not be charged any further sum on mark up that was added to first agreement for purposes of arriving at a repurchase price, but it could be charged on actual purchase price namely, purchase of goods from customers-­ Position is very clear that mark up is charged for purposes of arriving at a repurchase price and said mark up is merged and becomes a part of debt-Such amount cannot dealt with separately as, entire amount will form a debt and it is this debt that shall payable by borrower-Practice of keeping mark up in a separate amount and principal on separate account and charging mark up on principal and not mark up is contemplated by said notification namely BCD Circular No. 13-Once principal debt is determined debt becomes a finance by lending and no mark up, by whatever name called, can be charged-If one were to presume that such mark up on mark up could not be charged, but could be charged on principal money lent, outcome would in fact be same-All payments made would be, (in fact are) adjusted towards markup, and then markup would be charged on principal-This will be purposively avoiding law-Interest has been defined as an increase on money by elapse of time i.e. that a sum that is continued to be paid till such time debt remains in place at a certain rate and for utilization of monies that may have been given to another person—In instant case also arguments therefore that mark up on principal can be charged also held no ground-Charge of mark up on mark up will mean an addition in existing marked up price-Mark up is charged only for purposes of arriving at a price sale of a commodity, and addition to arrive at a price is profit in trade, and which is only amount a bank can gain—There would be no commodity to sell after agreement of sale has been acted upon-Bank, shall only be an unpaid seller-In subsequent agreement it will only be money (the debt) that is being resold and which cannot be done—In fact, if said subsequent agreements are read, it will be clear that said agreements are in fact sale and purchase of 'goods' and not of 'money', but there are no 'goods', and is a garb to overcome and avoid and existing law. [P. 239-240] F

(vi) Constitution of Pakistan, 1973-

—Constitution of Islamic Republic of Pakistan is basic document on touched stone of which all laws have to be looked into. [P. 249] I

(vii) Contract Act, 1872-

—S. 23 of Contract Act categorically states that consideration of object of an agreement is lawful unless it is of such a nature that if permitted, would defeat to provision of any law-A subsequent agreement whereby, there is a settlement of previous debt or is renewal thereof shall in fact amount to defeating provision of specific law available—Such will not be novation but an independent agreement contemplating an actual sale and purchase-Such an agreement entered into only for renewing previous debt shall be a void agreement-Position in law is absolutely clear-There are clear instructions of State Bank in Regulation XVI-Such renewal will only be Window Dressing and that all profits shown will be nothing but added mark up—Mark up cannot be allowed to be added on an 'existing debt', as there can be no agreement between parties in respect of that 'specific debt' except that there could be enlargement of time, and that too without increase in debt payable. [P. 250] J

(viii) Financial Laws-

—History of financial enactment in Pakistan vis-a-visa transformation of existing laws in conformity with injunctions of Islam-See Page.

[Pp. 213 & 214] A

(ix) Islamic Ecnomic Order-

—Salient features-

1. While permitting individual right to seek his economic well- being, Islam makes a clear distinction between what is Halal (lawful) and what is haram (forbidden) in pursuit of such economic activity—In broad terms, Islam forbids all forms of economic activity, which are morally or socially injurious. While acknowledging individual's right to ownership of wealth legitimately acquired, Islam makes it obligatory on individual to spend his wealth judiciously and not to hoard it, keep it idle or to squander it.

2. While allowing an individual to retain any surplus wealth, Islam sucks to reduce margin of surplus for well-being of community as a whole, in particular destitute and deprived sections of society by participation in process of Zakat.

3. While making allowance for ways of human nature and yet not yielding to consequences of its worst propensities, Islam seeks to prevent accumulation of wealth in a few hands to detriment of society as a whole, by its laws of inheritance.

4. Viewed as a whole, economic system envisaged by Islam aims at social justice without inhibiting individual enterprise beyond point where it becomes not only collectively injurious but also individually self-destructive. [P. 217] C

(x) Islamic Jurisprudence—

—Superior Courts of Pakistan have in large number of cases applied Islamic teachings and philosophy, when statute law is silent about a situation, field is unoccupied, so to say, a statutory void is to be filled, or Court has discretion to follow one of several course, one of which is more in accord with Muslim jurisprudence- [P. 258] N

(xi) Islamic Law--

—No such act of violating Injunctions of Islam will be permissible which does not pay attention to text of Holy Quran and Sunnah and its interpretation together with its 'Khamir'and 'Zamir'.[P. 216] B

(xii) Novated contract--

—Argument therefore that subsequent agreement is a novation and that once a contract is novated previous contract cannot be looked into is not correct in present scenario. [P. 251] K

(xiii) Qard-i-Hasana—

—'Qard-I-Hasana' which is a loan given on compassionate ground, free from 'interest', 'mark-up' or 'service charges' and repayable, 'if and 'when' borrower is able to pay, [P. 236] E

(xiv) Riba--

—Kind of-Ar-Riba, consists of several types of transactions which have been forbidden by Allah-Dealing in riba is one of greatest sins a Muslim can commit-greatest sin according to Imam Malik.All forms of riba fall into two basic categories. A, Riba An-Nasee'a.

This is most pervasive and well-known-It includes several kinds of transactions.

The "classic" one which was described by Companions of Prophet (sas) was where someone owes another money for whatever reason (purchase, loan, etc.) which is due at a certain time-When time comes, creditor would say to debtor : "a taqdhee am turbee?" (Will you pay up, or accept an increase ?)-It seems that there was no fixed rate set at beginning of transaction, rather it was set by "custom" and expectations and what creditor felt he could demand from creditor who was unable to pay—In this way, original debt could easily expand to many times its original size-Allah said:

{Ya ayyuhaa alladhina aamanoo la ta'kuloo ar-riba adh'aafan mudhaa'afatan wa ittaqoo Allaha la'allakum tuflihoon}.

{O you who believe do not consume interest doubling and multiplying and beware of Allah that perhaps you may succed.}

Aal-'Imraan: 130 The question of Exchange of currency for currency or food for food with one side being delayed is explained by following hadith which explains this and several other issues : "Gold for gold either ore or pure, silver for silver either ore or pure, wheat for wheat measure for measure, barley for barley measure for measure, dates for dates measure for measure, slat for slat measure for measure whoever increases or seeks an increase has committed ri&a-There is nothing wrong with selling gold for silver and silver is more as long as it is hand to hand as for deferred payment, no-And there is nothing wrong with selling wheat for barley and barley is more as long as it is hand to hand, as for deferred payment, no." In another version, he (sas) said :" When items are different in these categories, then sell however you wish as long as it is hand to hand." Abu Baud and both narrations are sahih. Two sales in a sale-Prophet (sas) forbid a transaction which was "two Sales in a sale"--This means that at time of sale, two parties agree to different prices corresponding to different times of payment. For example: 90 days like cash but after that, price goes up by 1% for every month of delay-This transaction is illegal and if a Muslim has engaged in such a transaction before knowing, they only have a right to least of prices. "Whoever transacted two sales in a sale has a right only to lesser of two or he commits riba." A loan which benefits lender-As we saw in first point, money cannot be exchanged for money with a delay no matter what values-There is no "business" transaction where money is given and returned later—A "loan" is NOT a business transaction, but is a form of "sadaqa" or charitable transaction and money returned must be same as money given.

The Prophet (sas) forbid "kulla qardhin yajurru manfa\ atan"-any loan which returns a benefit (i.e., to lender).

B. Riba Al-Fadhl.

It is forbidden in Islam to exchange currency for currency unless it is done real time i.e., no currency "futures" market-It is also forbidden to exchange food items for same kind of food unless in both real time and in equal measure—It is forbidden to exchange food items for other food items unless it is real time-Obviously measures do not have to be same-Exchange of items in different categories, e.g., food for money, money for goods, etc—can be done in any quantities per rule of supply and demand and with or without delay of one of two sides of transaction-This category of ribais explained in sahih hadith from Abi Daud above—

We should note that Islam forbid ihtikaar (monopoly) in foodstuffs and all necessities-In this case, ruler has right to interfere with normal functioning of "market" (supply and demand) in order to protect peoples' necessities of life-A monopoly in other necessities say for example diamonds is of no consequence and ruler is not allowed to interfere with market-No dealing in these interest transactions of any kind is allowed—Prophet (sas) hs invoked Allah's "la'na" upon five individuals for a single transaction: payer of interest, receiver of interest, scribe (probably computer programmer in our day) who records it and two witnesses-word "la'na", usually translated as "curse" is much more than that—It means distance, i.e., that Allah will put you at great distance from Him on Qiyama-Similarly, Allah said about those who consume people's property with falsehood that--He will neither look at them, speak to them nor cleanse them on that day-This is most severe punishment from Allah and those subjected to it will wish they could be punished by Allah in His fire rather than to be ignored and put away from Him-Also, as Allah said in Sura Taha :

{And whoever turns from my reminder will surely have a miserable life and we will resurrect him blind-He will say: Lord! Why have you resurrected me blind though I used to see? He said: Likewise my signs came to me and you neglected them and in same way you, on this day, are neglected.}

Riba may appear to be in increase and a benefit, but it will never bring any benefit and will only bring those who deal in it wrath of Allah, a declaration of war from Him and His punishment in hereafter-Allah said:

{And whatever interest transactions you have made that they may grow in other people's wealth will not grow with Allah-And whatever zakat you have given desiring only Allah's countenance, these surely are ones whose returns are multiplied.} Ar-Rum: 39

Riba is one of seven mubiqaat (sources of ruination) which Prophet (sas) told us about in hadith :

"Stay far away from seven destroyers." They said: O Allah's Messenger, what are they ? He said : "Associating partners with Allah, sorcery, killing one protected by Allah except by right, consuming riba,consuming wealth of orphans, fleeing from battle and slandering chaste and innocent believing women." Muslim & Bukhari and others.

And never forget "la'na" of Allah invoked by Prophet (sas) on five parties involved in any riba transaction.

"The Prophet (sas) invoked la'na on receiver of interest, payer of interest, scribe and two witnesses-And he said: "They are same." Muslim

Some people are under misconception that only high rates of interest are prohibited, and that low rates are permissible-This delusion comes from misunderstanding verse of Qur'an, (translated), "O you who believe! Do not consume riba, increased manifold." [Qur'an, 3:130] This verse, however, does not 'mean that if increase is small it is permissible; it is merely describing common or usual state of affairs-Interest, as a rule, will be increased and compounded several times as debtor repeatedly fails to pay up—This is similar to statements, "Do not sell My signs for a small price," meaning at any price, for any price is too small to sell signs of Allah for, and "Do not kill your children out of fear of poverty," which clearly cannot be taken to mean that it is permissible to kill them for any reason besides fear of poverty—Further confirmation that all interest this prohibited is in another verse of Qur'an-"But, if you repent [from riba] then for you is your principal." [Qur'an, 2:279] So, those who repent may keep only their principal (i.e. initial amount loaned), and not even one penny or 1% more-Aside from all of his, "little" and "much" are subjective—What one person regards as "a little" interest may be considered "a lot" by someone else-So, truth of matter is that a small amount of interest is prohibited just as is a large amount.

Similarly, hadith literature confirms this understanding: "If a man extends a loan to someone, he should not accept a gift." [Bukhari] Abu Burdah ibn Abi Musa said, "I came to Medina and met Abdullah ibn Salam, who said Tou now live in a country where riba is rampant--Hence, if anyone owes you something and presents you with a load of hay, or a load of barley, or a rope of straw, do not accept it, for it is riba.'" [Bukhari]

The unbelievers made a very similar claim-They said, "Trade is just like riba." However, this is an absurd analogy-It is like saying that there is nothing wrong with prostitution, because it is use of body to earn money, just like any other kind of work-Moreover, claim that it is beneficial is invalid-In reality, it brings only a limited, temporal, material benefit to only a certain category of people-On larger scale, it harms debtor, especially in case of his business running into loss-It restricts wealth among wealthy, and impedes its free circulation-It can lead to inflation, and other economic woes-It is selfish and unfair.

The Prophet said in Farewell Pilgrimage, "Every riba of Jahiliyyah is abolished under these feet of mine, and first riba I abolish is that of 'Abbas." It was around this time that Allah revealed verse, (translated) "This day have I perfected for you your religion, completed My favor upon you and chosen Islam for you as your religion." [al-Ma'idah] religion was completed, and all regulations (including riba) had been legislated by that time.

But, this was not last revaluation-A few days after that, approximately nine days before Prophet left this world, some further verses were sent down-"O you who believe! Fear Allah, and Give up whatever remains of Riba. if indeed you are believers, (my emphasis} And, if you do not do [so], then receive news of a war from Allah and His Messenger-tOn Day of Judgment, consumer of riba will be given weapons and asked to prepare for war with Allah, and whoever has Allah as an adversary shall surely be overcome.] But, if you repent, then for you is your principal; do .not wrong [by taking interest], and you will not be wronged [by deprivation of principal]-And. if [the debtor] is in dire circumstances, then [give him] reprieve until ease-And. it would be better for you that you [remit debt as] charity, if only you knew--And, fear a day in which you will be returned to Allah-Then, every soul shall be paid for what it has earned, and they will not be wronged." [Qur'an, 2:278-281] (my emphasis).

This is something for us to ponder over-last revelation of Qur'an at almost last possible time for revelation is on n'ba-This must be to reiterate its severity, and to issue a dire warning to us against it-Not even dhimmis (non-Muslim citizens) are allowed to deal in riba in Islamic state-Prophet wrote to Christians of Najran,' person amongst you who deals in interest is not under our protection.' [Kanz al-'Ummal]

"On night I was transported (i.e. night of Isra and Mi'raj), I was brought to a people whose stomachs were [largo] like houses, with snakes inside them which were visihle from outside their bellies—I said, 'who are these, O Garbriel?' lie said, 'Consumers ofriba.' "[Ibn Abi Hatim, Ahmad]

(!purt of a long hadith of a dream:)"......... then we came to a river," I (the

narrator) think he said: red like blood, "and there in river was a swimming man, and on bank of river was a man who had collected a lot of stones by him—swimmer would try to emerge [from river], whereupon one who had gathered stones would throw a stone into his mouth [forcing him back in]." Prophet conveyed that swimmer was consumer of riba. [Bukhari]

"Allah has cursed consumer of riba,one who gives it for consumption, two witnesses [to contract] of [riba], and scribe thereof-"[Ahmad, Abu Ya'la, Ibn Khuzaymah, Ibn Hibban; Muslim, Nasa'i, Abu Dawud, Tirmidhi, Ibn Majah; Bukhari]

"On account of wrongdoing/oppression of Jews-We made prohibited for them good/wholesome things which had been lawful for them, and [this was also] for their abundant hindering from path of Allah, their taking riba although they had been prohibited from it, and their wrongfully consuming property of people." [Surah al-Nisa']

"The nation amongst whom adultery and interest become common definitely bring punishment of Allah upon themselves." [Abu Ya'la] According to a narration with Ahmad, interest brings upon drought.

"By lie in Whose control is my life! Some people of my ummah will spend night in state of pride, haughtiness, play and amusement, and in morning, they will be disfigured as apes and swine, because they made unlawful lawful, kept (employed) singing girls, drank liquor, consumed interest and wore silk clothes." [Abdullah Ibn Ahmad] (emphasis is mine).

"When you trade in al-eenah [a round-about transaction intended to circumvent riba, but ending in same result—A man would buy an article from a needy person at a low price, stipulating that he should buy it back at a future date for a higher price], take hold of ears of cows, become contented with agriculture, and abandon jihad, Allah will impose upon you a humiliation which He will not remove until you return to your religion." [Ahamd]

It should be quite clear by now that interest obtained nowadays from banks and like is Haram without any doubt-three councils of jurists that meet regularly to discuss contemporary issues, have all declared, with a unanimity of all of their members, that this interest is prohibited by texts of Qur'an and Sunnah (i.e. it is to merely a matter of ijtihad), and that it is veiy riba which Allah and His Messenger have prohibited—One of former shaykhs of al-Azhar (raHimah Allah) observed, 'This has become a matter which is necessarily known to be part of religion, and so it towers above any disagreement.'

"So, whoever receives an admonition from his Lord, then for him is what has passed, and his matter is with Allah—But, [as for] whoever returns [to dealing in interest, even after learning of its prohibition, and after hearing serious and dire warnings against it] - they are inmates of Fire; they shall ahid therein." "Say : 0 My servants who have committed excesses against their own selves! Do not despair of mercy of Allah! Indeed, Allah forgives all sins-Indeed, He is Most Forgiving, Most Merciful." If you have been guilty for consuming riba, then you should repent to Allah sincerely—You should feel regret over your sin, cease it immediately, and resolve never to return to it again-interest which you have from past must be disposed of--You cannot kept it, for it is Hararn money--[Qur'an, 2:279]--You may not destroy it, because Messenger of Allah (may Allah bless him and grant him peace) forbade destruction of money [MuWatta']-Nor should you give it back to bank, for that would only strengthen it and further institution of n"6a--Hence, you should give it away for general projects of good, but with intention of getting rid of Haram money, not with intention of charity. [Pp. 217 & 218] D

Mr. Harnza I. Ali, Advocate for the Plaintiff.

Mr. Ghulam Mustafa Lakho, Advocate for Defendants Nos. 1 to 8.

Mr. Afzal Siddiqui, Advocate for Defendants Nos. 9 to 15.

Mr. Munir A. Malik, Advocate amicus curiae.

Mr. Ejaz Ahmed, Advocate amicus curiae.

Mr. Azizur Rehrnan, Advocate amicus curiae.

Date of hearing : 23.2.2001.

order

These are two applications, namely CMA 1356/2000 filed on behalf of the Defendants Nos. 1 to 8 and CMA 1357/2000 filed on behalf of the Defendants Nos. 9 to 15. These were initially listed on 31.10.2000, when Mr. Asif Javed, holding brief for Mr. Afzal Siddiqui Advocate representing the Defendants Nos. 9 to 15, requested for adjournment on the ground of latter's personal engagements. Mr. Ghulam Mustafa Lakho representing the Defendants Nos. 1 to 8 was also not present. It was, at that time that it was categorically stated that no further adjournment would be granted and the case was adjourned to 10.11.2000, when it was to proceed.

1. The case came up on 10.11.2000 as was ordered. On that date Mr. Ghulam Mustafa Lakho stated that, in view of the case of Dr. M. Aslum Khaki v. Syed Muhammad Hashim reported as PLD 2000 SC 225 and on account of the law being BCD Circular No. 13 dated 20.6.1984 and BCD Circular No. 32 dated 26.11.1984 issued by the State Bank of Pakistan, the entire accounts from the date when the finance was granted, shall have to be looked into so as to determine, whether any markup on markup has been charged to arrive at a figure as claimed by the plaintiff. He said that if the same is seen in light of the ratio of the case of Dr. M. Aslain Khaki v. Syed Muhammad Hashim, PLD 2000 SC 225 in fact the entire debt thus claimed by the plaintiff, on account of the various agreements filed would be seen to have been paid off, and that, it is only the mark up on the debt that is now being claimed.

2. In the application, CMA No. 1356/2000 for leave to defend filed by the Defendants Nos. 1 to 8, it is categorically stated that, mark up on the mark up is the only amount that is being claimed. Similar application has also been made, (CMA No. 1357/2000) by the Defendants Nos. 9 to 15. Mr. Afzal Siddiqui is not present today, however, the application filed by him, notwithstanding his absence shall be taken into consideration whilst passing the order.

3. I had therefore asked Mr. Hamza I. Ali, that in view of the above, he should address this court on the issue, especially when, by the order dated 10.10.2000, this court had directed the plaintiff to file a summary of account verified on oath giving details of the principal amount of loan/credit facility provided to the defendant under the Agreement of Financing with its period, the buy back price, the rate of markup to arrive at the buy back price, prompt payment bonus, rebate if allowed, markup charged for the cushion period, markup charged beyond the period of the Agreement of financing markup on markup charged, if any and another amounts that may have been debited. The purpose being to arrive at an amount under the concept of Islamic Banking system. Mr. Hamza gave some facts. He stated that, to understand the whole case, the background has to be understood. He said that at the point of time when the agreement was first entered into in 1990 between the plaintiff and the defendants, the company was known as 'Raja Textile Mills', which was changed to 'Schon Spinning Mills Ltd.' in July, 1990. Subsequently, the name of 'Schon Spinning Mills Ltd.' was changed to 'Qayyum Spinning Ltd.' He said that the financing had commenced in 1990, and the various sums that were payable were Rs. 120.00 million. However, in the year 1993, the same finance overdue to the extent of Rs. 120.00 million was reduced to Rs. 90.00 million, as such another agreement dated 22.2.1993 was entered into, whereby a sum of Rs. 90 million was stated to be given, which was in fact a continuation of the previous finance. However, the defendants had agreed to pay back a sum of Rs. 114,222,000/- stated to be the repurchase price. This being the position I asked Mr. Hamza whether the buyback/repurchase price mentioned in the agreement contained in it any component of mark up, and was this amount actually and physically disbursed to the account of the Defendant No. 1. Mr. Hamza stated that, actual disbursements were in the nature of restructured previous finance and in fact, such restructured payments were outstanding and continued to be the liability of the defendants, notwithstanding the fact that said agreement of 1993 did not refer to any previous agreement. I had also asked Mr. Hamza, that in the presence of Islamic financing system made applicable and binding on all banks, financing institutions and Development Financing Institutions, could such a transaction be entered into, when BCD Circular No. 13 dated 20.6.1984 and BCD Circular No. 32 dated 26.11.1984 contemplate, that the entire banking system shall be converted into the Islamic mode of financing from the first day of January, 1985. No overdue/penal interest or mark up on mark up could be charged on account of the customers delayed payment and if there was any overdue, the State Bank had directed the banks to proceed to recover the same by taking legal steps to do the same. I had expressed in court, that if the bank chose not to take steps to recover the proceeds or overdue, the bank has to suffer. There is no doubt, that such was in the absolute discretion of the bank, but such could not be taken to be the excuse to add any amount to an existing debt. I had therefore asked Mr. Hamza that once the repurchase price has been stated to be the debt of the customer, how and under what law, the bank had the power or authority to increase the debt. I had also observed that such question seems to have been decided finally in the case of Dr. Aslam Khaki (supra). At this stage Mr. Hamza stated that he was unaware of the judgment and that, he sought time therefore so that he would be able to address this court.

4. At this stage, as this is the question of law and an interpretation of the Islamic system and mode of finance, I had initially therefore, on the said date appointed Mr. Muneer A. Malik advocate to act as arnicus curiae and to dilate on the question keeping in view the said Circulars being BCD Circulars Nos. 13 and 32, and the effect of the judgment of Dr. Aslam Khaki (supra). The case was adjourned on that date and came up for hearing on 17.1.2001. Mr. Hamza was present along with Mr. Ghulam Mustafa Lakho and Choudhry Muhammad Iqbal, Advocates, however, Mr. Afzal Siddiqui was not present despite the case having been adjourned on 31.10.2000 in the presence of Asif Javed who was holding his brief to 10.11.2000. I, therefore, proceeded with the case, notwithstanding his absence, he being on due notice. Mr. Hamza stated that as Mr. Muneer A. Malik was ready on the question, the case should first be put up by the amicus curiae. Mr. Muneer A. Malik agreed and has, therefore, argued the case. Mr. Muneer was short, brief and to the point. According to him, the judgment that was passed and, BCD Circular No. 13 dated 20.6.1984 and BCD Circular No. 32 dated 26.11.1984 were slightly different in that, the said BCD Circular No. 13 dated 20.6.1984 and BCD Circular No. 32 dated 26.11.1984 have not been discussed in the judgment of Dr. Aslam Khaki (supra). He stated that in view of categorical assertion in the circulars itself and notwithstanding the judgment in Dr. Aslam Khakhi in view of the Sections 41 and 42 of the Banking Companies Ordinance, 1962 giving State Bank of Pakistan (SBP) the power to give direction the Banks or NBFI as to the system of banking. This power included any advice or otherwise, and the said circulars were binding on the banks. He stated that the direction could be general or to any specific banking company. According to him the said circulars were therefore valid and proper and would continue to remain binding on the banks. He has referred to the case of Hashwani Hotels Ltd. v. Federation of Pakistan

reported in PLD 1997 SC 315 in which it has been held that the8 circulars or instructions of the State Bank of Pakistan shall remain and continue to remain binding till such time they are withdrawn. He, however, said that the circular shall act prospectively and not retrospectively and such has been held by the Supreme Court in the aforesaid judgment. Mr. Muneer A. Malik stated therefore, that a careful perusal of the BCD Circular No. 13 dated 20.6.1984 has to be made. It was argued by Mr. Muneer Malik that under Article 2 of the Constitution of the Islamic Republic of Pakistan, it has been categorically provided that Islam shall be the state religion of Pakistan. He stated that the Objectives Resolution though, in 1SJ84 was not a part of the Constitution, but steps had been taken and such was in serious consideration. He stated that the Objectives Resolution was inserted and became an integral part of the Constitution by a Presidential Order No. 14/1985 with effect from the 2nd March, 1985. Me referred to Articles 31, 38(f), and 227 of the Constitution which categorically provided that, steps were to be taken to enable the Muslims of Pakistan, individually and collectively to live in accordance with the fundamental principles and basic concepts of Islam, and 'Riba' was to be eliminated as early as possible. Further that all laws existing were to be brought in conformity with the 'Injunctions of Islam\ as laid down by the Holy Quran and Sunnah and that no laws were to be enacted, which were repugnant to such injunctions. He said that in view of the provisions of the Constitution, serious steps were being taken for Islamisation of the financial system of the countiy. The Islamisation of the financing system being required to be changed, the Finance Minister also showed his intention to Islamise the banking system from 1985. The banking system being a major part of the entire structure of the country's financial system. It was in this light, that BCD Circular No. 13 dated 20.6.1984 and BCD Circular No. 32 dated 26.11.1984 were introduced in which, the intention of the government was very clear. The Circulars clearly required the shifting of the then banking system based on 'Interest' into the banking based on the Islamic mode of financing and such was stated categorically. A transactional period was also provided in the said notification/circular of 20th June, 1984. He said that it was categorically provided that from the 1st of January, 1985 all financing provided by the banking companies to the Federal government and the provincial governments, public sector corporations, public or private joint stock exchange companies will be in the mode as indicated in the Annexure-I to the said circular. He said that the said circular was complete in itself, that it was published on the recommendation of the Council of Islamic Ideology, a Council created by the Constitution. The recommendations thus given were after long drawn proceeding and research, and attended by bankers, economist and religious scholars. The modes prescribed were that had been allowed by the Council and that such were thus the permissible modes of financing. The permissible modes, according to him are categorized in three specific head. These were, (i) Financing by Lending, (ii) Trade Related Modes of Financing in relation to purchase of commodities and (iii) being in respect of Masharkaand participation. Mr. Muneer A. Malik read out

permissible modes of financing in Annexure-I of the said circular in which it was categorically mentioned that on loans, at best, service charges could be allowed. He therefore stated that under the Financing by Lending i.e. the actual transaction of lending of money by the bank was allowed, but they were not allowed to charge any interest or markup thereon. The only amounts thus allowed were 'Service Charges' which was not to exceed the proportionate cost of operation and excluded from it, the costs of funds and provision of bad debts. The said BCD Circular No. 32 provided that while deregulating house remittance a direction was also given that, the markup on import bills and mark down in the case of documentaiy bills (both being modes of Islamic Financing). Further he said, it has been clarified by the said Circular that "Interest wherever charged by banking company/Development Finance Institution, in any items of the bank charges shall be replaced by non-interest mode considered appropriate by it." He said that the bank charges included any amount being charged to the account of the customer. Thus, the direction was clear that such charges could be the one's that where allowed by Annexure-I and BCD Circular No. 13. He said that in the Circular No. 32 it is stated that "overdue/penal interest or markup, markup on markup shall not be charged by a banking company/DFIs as from the date. Instead, it may take legal steps to recover the overdue finance." By this he said it is amply clear that there would be no cany forward or roll over, rescheudling or restructuring as would involve the additions of markup on a debt due on account of the initial agreement. He said that law is explicit and in fact in the clear words there was no need of any clarification. He said if the banks those to give time such could be given, but without any increase. Mr. Munir A. Malik from Annexure-I of BCD Circular No. 13 said that, there was a categorical assertion that such would be only in relation to the purchase of goods by banks and their sale to the clients at an appropriate marked up price on deferred payment basis. In case of default however according to him and as stipulated in the said annexurt, no mark up on mark up could be charged. The third reference was made to the various provisions relating to Masharka, equity participation, participation term certificate and Modaraba and rent sharing. He said it was provided that in the event of loss, in the other case, the same the loss was to be proportionately shared by the banks also. Mr. Muneer A. Malik referred to Annexure-II to BCD Circular No. 13 dated 20.6.1984 in which various modes of transactions and their basis of financing had been dealt with. In the nature of business, which involved trade and commerce, he stated it was to be a fixed investment by mark up in price in export bills etc. The financing by lending or trade related modes could be on the basis of only 'service charges' or 'commission' or 'mark-up' or mark down in the price, but all could not be taken together nor could markup be added to amounts on which the same has been charged. This banks could have charged either 'commission' or 'service charges' or 'mark up' or 'mark down' in the price, but it could not be that 'commission' or 'service charges' to be charged with mark up or mark down in price. Similarly various other financing modes have been mentioned. Therefore, he said the BCD Circular No. 32 was to

clarify the situation that the banks shall not charge interest or markup in any manner whatsoever. He said that under the powers vested in it, the State Bank of Pakistan gave the directions which were to be implemented from 1st of January, 1985. He said that therefore, wherever interest was charged by the banking company/Development Financial Institutions in any of its bank charges, such was liable to be replaced by non interest mode that was considered appropriate by it. In view of the above, it has been categorically argued by Mr. Munir Malik that these two circulars namely BCD Circular No. 13 dated 20.6.1984 and BCD Circular No. 32 dated 26.11.1984 are sufficient to come to the conclusion that in fact any increase would amount to interest which was not allowed. He stated that in BCD Circular No. 13 dated 20.6.1984 as also BCD Circular No. 32 dated 26.11.1984, it is categorically stated no mark up on mark up can be charged and that, if such is charged it is liable to be deleted. The question therefore he stated boils down that if nothing can be done directly it could not be done indirectly and referred to the case of Mian Muhammad Nawaz Sharif v. The President of Pakistan(PLD 1993 SC 473). He stated that rescheduling by addition of further sums was nothing but an addition of mark up and would amount to mark up on mark up which could not be allowed. He stated that under BCD Circular No. 13 in Annexure-I in item (B)(i), it is specifically provided that "in case of default, there should be no mark tip on mark tip". He stated that thereafter in BCD Circular No. 32 dated 26.11.1984, it is provided that, "moreover, overdue/penal interest or mark up on mark up shall not be charged by a banking company/DFI from that date. Instead it may take legal steps for recoveiy of the overdue financing." He stated therefore, where there is a categorical stipulation and where the State Bank of Pakistan has specified that no addition can be made in default and if such is made, the bank should take legal steps to recover their money. If the bank chooses therefore not to recover the money and reschedule the same, the bank will not be within its right to add to or change the amount by increasing thereon by addition of the mark up. He said that this would be against the provisions of Section 23 of the Contract Act which reads as under :--

"23. The consideration or object of an agreement is lawful, unless-It is forbidden by law; or

is of such a nature that; if permitted, it would defeat the provisions of any law ; or

is fraudulent; or involves or implies injury to the person or property of another; or

the court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."

1. Mr. Munir A. Malik stated that Section 23 of the Contract Act, contemplates six cases in which the consideration or object is unlawful. The first being that it is forbidden by law, the second, that it would defeat the provisions or any law; the third being, that it is fraudulent; the forth, that it involves injury to some ones person or property; the fifth, that it is immoral or finally, the sixth that it is opposed to public policy. He says that therefore, if any contract is entered into, the consideration or intention of which is to 'defeat the provisions or any law' or if such agreement is 'opposed to public policy', such agreement would not be lawful. He states that parties cannot contract out of the provisions of an Act, such he states was held in the case of E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536). He states that in the celebrated case of Sardar All vs. Muhammad All (PLD 1988 SC 287 FB) the

Honourable Supreme Court has held that the existing laws were to continue in full operation and effect, notwithstanding the Islamisation process. He

said that, the Honourable Supreme Court observed that proceedings including appeals were to be decided and concluded under the existing laws

and such were to cease having effect only from the day specified by the court in that behalf, and the light accrued by those laws by virtue of their continued operation were not affected. In view of such observation he asserted that the BCD Circulars Nos. 13 and 32 shall have full force. As

such, where time for payment was extended on the grant of payment of excess on principal or on accrued markup is hit by para 4 of the said

Circulars. The subsequent agreement would be therefore, both, against public policy, and was for a purpose that it could defeat the provisions of law.

Mr. Munir A. Malik has referred to the case of Wafaq-I-Pakistan v. Awamun Nas (1988 SCMR 2041) in which the Shariat Appellate Bench had declared that such contracts of sale (Bai) where the goods did not exist, is not a valid sale, though an agreement of sale, he says can be entered into, but such shall

also not be enforceable, as there are no goods. There has not be some thing that is being sold, thus in the said case directions were given to amend the

law accordingly. The declaration was also of the fact that in Section 23 of the Contract Act should also include such agreements that are against the

injunctions of Islam and all agreements against the injunctions of Islam are void agreements.

1. Mr. Munir Malik stated, however, that the judgment delivered by the Shariat Appellate Bench of the Supreme Court of Pakistan being Dr. M. Aslam Khaki (supra) has given a time schedule that has been mentioned in the Order of the Court. I had put to him that the time schedule related to the provisions that were mentioned in the said Order. At this he stated that they related to the specific laws that have been dealt with. Mr. Munir Malik read out the various provisions of the last paragraph of the order of the court and stated that eight laws appeared to have been held to be repugnant to the injunction of Islam and ceased to have effect from 31st March 2000, whereas other laws and provisions mentioned therein, to the extent that they have been declared to be repugnant to the injunctions of Islam were to cease to have effect from 30th June, 2001. Thus after that date, held in the Sardar All's case (supra) notwithstanding any objection, the said law with all the provisions till the date mentioned be valid and binding. lie stated therefore, that those laws which have not been mentioned in the judgment will not be effected. He however, said that in the judgment, certain guidelines had been given for the Federal government to constitute a high level commission in the State Bank of Pakistan empowering it to carryout control and supervise the process of transformation of the existing financial system to one conforms to the Shariah. I had asked Mr. Munir as to whether the Islamic banking was a part of the financial system, and if so, what would be the effect of the judgment in Dr. M. Aslam Khaki (supra). Mr. Munir Malik said therefore, that, the transformation commenced from 1962, and specially in 1985, a part of the over all financial system had been changed and converted to the system that came in line with the Shariahby introducing BCD Circulars Nos. 13 and 32. The principle enunciated by this judgment defined further and clarified the term 'Riba' and its applicability. Mr. Munir said that the ratio decidendi of the case shall be applicable to all laws. The question therefore came up as to, from when the system of Islamic banking commence, to which Mr. Munir stated that it started from January, 1985. At this Mr. Munir concluded.

2. Mr. Azizur Rehman and Ejaz Ahmed stood up in the court and requested that as the question that has been raised was very important and would effect the entire banking system and as they mostly represent the banks, they may also be allowed to address this court. Such was allowed.

3. Mr. Azizur Rehman argued with regard to SBP Circular Nos. 13 and 32 dated 20-June 1984 and 26.11.1984 respectively. He stated that the two Circulars are among many which SBP has been issuing from time to time and the two Circulars in actual fact have to be examined. The first Circular No. 13 according to him will not be attracted where renewal of loan is made subsequently, since "renewal" amounts are merely extension and continuation of the earlier agreement between the parties. Circular No. 32 merely pertains to different items of Bank charges and therefore cannot be made basis for striking down the contract between the parties. In other words Circular No. 32 does not have the effect that it over rides Circular No. 13. In the case of UBL vs. Central Cotton Mills Ltd. reported as 2001 MLD 78 (S.B.) deals with the said two Circulars. The learned Single Judge of the High Court of Sindh Karachi came to the conclusion that Circular No. 13 is not overridden by Circular No. 32. He said that in SBP Circular No. BID (Gen.) 2470/601-Q4-90 of 16.7.1990 which was addressed to all Banks with regard to the treatment to be given to rescheduled loans and capitalisation of mark up/interest and the guidelines were given. In Clause 2.1 of the said Circular, the "restructured" loan has been defined as one whose terms and conditions have been modified principally because of deterioration in the borrowers financial condition, in order to provide reduction in interest rate or principal or a capitalisation of interest accrued. Clause 2.2 refers to a "rescheduled" loan and defines it as one in which effective interest rate terms remain unchanged from original terms but principal repayment terms have been extended because of project delays and such loan has been defined as not a restructured loan. According to him, clause 7.1 provided for capitlised mark up/interest on loans and defined the words as 'uncollected interest' which is added to 'unpaid principal' in accordance with contractual loan agreement. In the saiil Circular and the guidelines attached to the same, the word "interest" has really been utilized to mean interest and/or markup as is evident from line 5 of the Circular itself. He said that on the date of Circular i.e. 17.6.1990 five years had elapsed from the date on which the system of markup bad been introduced. Guidelines, according to him were issued by HBL to its various officers in order to deal with rescheduling, restructuring and writing off which was contained in the aforesaid Circular of SBP dated 17.6.1990. He said that the guidelines issued by SBP were attached. Circular No. 4 of 17.2.2000 was also issued by SBP under the heading "Rescheduling/restructuring of non-performing loans". The Banks as per Para (i) were required to continue to provide for rescheduled/restructured loans/advances for a period of one year (excluding grace period). Also while reporting to CIB, it was made incumbent that such loans/advances should be shown to SBP as "rescheduled/restructured" instead of, 'defaults'. In other words when Banks finlise rescheduling/restructuring arrangements with the borrowers/customers, SBP does not treat the borrowers/customers as having committed defaults. In actual fact in some cases if rescheduling/restructuring is not carried out, it would create lot more problems for borrowers/customers who actually stand to gain from the new agreements. Additionally he stated that, an unreportod judgment dated 8.1.1999 was passed by a Division Bench of this Court.in Spl. HCA No. 187198 (M/s. Hardware manufacturing Corporation (Pvt.) Ltd. and 5 others vs. UBL). It was held that by executing a Finance Agreement, the Appellant's liability on the original contract/agreement stood extinguished and the earlier agreement was substituted by a later Finance Agreement/contract. A reference was made in this connection by the Division Bench to, two reported cases i.e. PLD 1962 Karachi 334 and AIR 1943 P.C. 147. He said that the said Order of the Division Bench is binding on this court, and therefore, what is decided has to be acted, and no judgment otherwise can be passed.

4. Mr. Aziz argued the position of Novation of Contract and stated that in the unreported judgment of the Division Bench of the High Court of Sindh dated 8.1.1999, the decision which was reached was in line with a number of cases which had mentioned, being 1994 CLC 2272 (Karachi) D.B. and 2000 CLC 1602 (Karachi) S.B. He said that it was held by the Division Bench of the High Court of Sindh Karachi that, where a fresh agreement was entered into and the Defendant acknowledged that a certain sum was due from him which formed consideration under the new agreement, the liability of the Defendant under the original contract was completely extinguished and there was a fresh contract substituting the old contract and which was in the nature of novation of a contract within the meaning of Section 52 of the Contract Act, 1872. The Division Bench has placed reliance for purposes of interpretation of Section 62 of the Contract Act on PLD 1964 S.C. 337. Likewise he said that in the second reported the conclusion of the learned Single Judge was that Section 62 of the Contract Act clearly provides that if parties to a Contract agree to substitute a new contract fur the old one or to rescind or alter it, the original contract between the parties need not be performed and that, there is nothing in the Contract Act or in any other law which prohibits the parties from altering terms of the original contract or executing a new contract to substitute the old one. It was further held that the subsequent agreement amounted to novation of the old contract, the consideration of which was the agreement of the Bank to extend time for payment of the OUTSTANDING LIABILITIES of Defendant No. 1.

5. On of the point, of actual disbursement it was argued by Mr. Aziz stating that there need not be any actual disbursements when a Bank grants rescheduling or restructuring. Therefore in rescheduling the liability to pay to the Bank is amended or recast giving further time for repayment to the Bank. He said that, in this connection the definition of the word "debt" would also be relevant and for the examining of the word, he has relied on PLD 1983 Karachi 176 (D.B.) where it was held that a debt in the hand of a debtor does not belong to him but it belongs to the person to whom it is payable. A debt is something which is owned by one person to another. It is an obligation and liability to pay or return something. He states that similarly in the above referred case reported in 2000 CLC 1502 (Karachi) S.B., the learned Single Judge utilized the words "outstanding liabilities of Defendant No. 1" which was treated as consideration for the new contract. Thus the outstanding liabilities constituted the debt payable to the Bank. Since the acknowledgment of liability contained in the fresh agreement is available, fresh disbursements obviously was not required, as otherwise there would be duplication, and the Bank will be out of pocket by actually disbursing the outstanding amount again to its borrower/customer.

6. Mr. Aziz said that the judgment reported in PLD 2000 S.C. 225 is actually the one passed by Shariat Appellate Bench of the Supreme Court consisting of 5 Judges. The Supreme Court has given directions and in any case until 30.6.2001 the present laws will continue to be valid. Therefore the . contents of the judgment have not come into force so far. A large number of steps have to be taken by the Federal Government and other agencies including Banks for different phases of transformation which is still to be effected. He had also referred during the arguments to the various Articles of the Constitution of Pakistan, inter alia Article 203-H(1) which provides that all pending proceedings in any Court or Tribunal shall continue and the points in issue therein shall be decided in accordance with the law for the time being in force. He referred to a judgment of a learned Single Judge of the High Court of Sindh, Karachi, in Suit 1700/99 where it was held that the said judgment of the Shariat Appellate Bench of the Supreme Court and injunctions of Islam cannot be pressed into service to avoid payment of

7. outstanding liabilities since verse 2:280 does not create a right in favour of a debtor for payment of what is acknowledged as due. 13. Mr. Aziz said that Industrialists and Traders make lot of money by borrowing from Banks, etc. and the money really comes from even small depositors who put their money into the hands of the Banks. The interest or mark up paid by these Industrialists and Traders is included in their accounts and they get benefit of increased prices for their produced/ manufactured items and they are allowed to reap benefits by showing interest/mark up as costs of production which interest/mark up is allowable expenditure in income tax returns.

8. Mr. Aziz concluded and said that therefore rescheduling, restructuring and entering into fresh agreement to renew the facility by adding markup is valid. It shall only be effected after the judgment of the Shariat Appellate Bench of the Supreme Court becomes applicable.

9. Upon the conclusion of arguments of Mr. Azizur Rehman Advocate, Mr. Ejaz Ahmed Advocate, also argued his position, that the judgment of Dr. M. Aslam Khaki (supra) was not applicable to the cases that had been instituted prior to the same. He said that notwithstanding the fact that the said judgment is not applicable, it is necessary to dilate upon the history as to how and what was the actual perspective that the bankers had understood in respect of the said system. He has referred to the judgment in the case of Dr. M. Aslam Khaki (supra). He stated that the said judgment also notices the manner in which the system was to work and referred to a note that has been mentioned in the judgment of Mr. Junejo. He has stated that the State Bank of Pakistan considered that the entire transaction of purchase and repurchase as a notional transaction, and that, because it was considered as a notional transaction where, the mark up was not serviced, rescheduling was allowed by addition of markup on the un-serviced markup. Such rescheduling/restructing was the only way that the banks could save their money, and earn thereon. He stated therefore, renewal by way of entering into a fresh agreement was considered appropriate. He statedi that the circulars namely BCD Circular No. 13 and BCD Circular No. 32 did not give any idea how the transaction were to take place and it was therefore a belief that such transactions could be entered into or done. He said that it was common knowledge that notional sale and such like transactions were valid transaction. He stated that disbursement for purchase in such notional transaction was not necessary and that the amount of debt on a particular date could be deemed to be proper and appropriate disbursement. Mr. Ejaz Ahmed stated that if a view is taken by this court that subsequent agreements are invalid agreements it will cause an irreparable injury and harm to the banks whereby, the banks may in fact collapse. In the judgment of Dr. M. Aslam Khaki (supra) a discussion on the concept of Negotiable Instrument Act, 1881 has been referred to. Section 79 and 80 of the said Act have also been cited. Reference has been made to a booklet on markup system by Mr. Justice Moulana Muhammad Taqi Usmani in which a detailed discussion has been held as to the mark up system as is in vogue and has been in practice in the banks. It has been pointed out that the practice adopted under the garb of mark up is authoritative of the conditionalitics attaching to Bui Moajjal as the permissibility of such a transaction is dependent on fulfillment of the various conditions as enshrined in the Quaranic injunctions in the order of the court. It has been stated by Mr. Ejaz Ahmed that in BCD Circulars Nos. 13 and 32, the concept of Bai Moajjal or Murabaha, has not been stated and what was categorically said in the notifications of the State Bank of Pakistan, was that mark up could be charged on a transaction, but mark up on mark up could not be charged, in that there was nothing to stop the banks from entering into such fresh agreements for renewal, restructuring or rescheduling. His emphasis lay on the fact that, upon mark-up having been charged under the agreement the same became a debt and such debt became due and payable within the stipulated period. He said that in the books of accounts such was a credit payable by the debtor, therefore, the debtor was in fact using the money of the creditor, namely the bank. According to him, subsequent agreements were nothing but agreements for sale and purchase where, the commodity being sold was notional and that in fact, the debt payable under the first agreement became the notional sale of notional goods at a purchase price of such goods, and markup was added to arrive at a notional repurchase price and so forth. He said that it has now been explained as to how the bank should finance and what is the meaning of 'Riba' or mark up on mark up. He stated that no doubt, now under the new definition that has been given by the case of Dr. M. Aslam Khaki, subsequent agreements would lie deemed to be invalid agreements on the account of the fact that the Supreme Court has held that purchase if any, has to be actual purchase and not a notional transaction. Mr. Ejaz Ahmed further submitted that the question of increase on money was also not understood by the banks, in fact State Bank of Pakistan had also not understood the concept of money which has now been stated in the said judgment of the Supreme Court. He stated that it could not have been even thought of or understood that money could not earn money by way of additional mark up on a debt. According to him, it is this judgment which has cleared the concept of money and that in doing so it is stated that the money is not a 'commodity' and therefore cannot be traded like a trade of a commodity. He stated that it has been held, therefore, that only commodities could be traded which were in accordance with the principle that "Allah has allowed trade and prohibited Riba". According to him, therefore, in view of the above the Honourable Shariat Appellate Bench of the Supreme Court had given a regulatory timetable whereby, a dale of implementation has been given. He stated that under the measures to be taken for the purposes of creating an infrastructure and a legal framework a summary has been given in the order passed by the court. It was stated that the solution to the economic revival has to be taken into account and that the Federal government shall cause a board to be created for arranging exchange of information of financial institutions about feasibility of project, etc. and all technical assistance with regard to the anomalies emerging in the practical operation of financial institutions or difficulty arising out of the operation of financial practice etc. and that all this was to be done by the 30th June, 2001, whereafter the laws arid provisions of laws to the extent that those declared to be repugnant of injunction of Islam shall cease to have effect from 30th June, 2001.

10. Mr. Ejaz Ahmed said that:

The question is whether the amount of purchase price (which has been stated to be the debt of the customer) can be increased? And if so in what circumstances ?

The answer to this question depends on the meaning ascribed to the word "increase" and accordingly the increases in the amount of purchase price are classified as follows :

(a)Increase which are not permissible

(A) Mark-up on any overdue installment, where the finance facility is payable in installments and the amounts and due dates of installments are specified in the Agreement. Mark-up on overdue amounts in cases of lump sum payment agreements.

(b)Increases which are permissible

(A) Where the amount of mark-up is to be booked by the Banks on accrual basis in each quarter on the basis of outstanding balance and such outstanding balance also includes the mark-up for the previous quarters. In these cases, the banks can be allowed to charge mark-up on the outstanding balance) (inclusive of previous mark-up debits) as the bank under its general lien and right to set-off is allowed to apply the credit balance of the Customer to offset the liabilities of the Customer. Accordingly any mark-up recovered by the Bank by debiting the account of the Customer should be recognized as a withdrawal by the Customer.

(B) At the time of fresh sanction [renewal] of the working capital facilities, some times the amount of the facility is enhanced. The amount of the fresh finance facility is used to adjust the outstanding liabilities of the Customer in respect of the previous facility. Naturally the outstanding amount of the facility also includes mark-up. It is sometimes argued that the amount of the second facility amounts to mark-up on mark-up or capitalization of mark­ up or roll-over Fresh finance facility is granted to the Customer by the Bank. The amount of the facility can be utilized by the Customer for any purpose and the mere f^ct that the Customer used such amount to pay back its liabilities which included some amount of mark-up would not make the amount of the fi e^h facility mark-up on mark-up.

The proposition would be further clarified with the converse argument i.e. the Customer could have paid the outstanding liabilities from its own resources or by obtaining a finance facilities of equal amount from a separate institution. In such a case the argument of the later facility being mark-up on mark-up, capitalization of mark-up or roll-over cannot be sustained.

In such cases the enhanced amount of the facility or the such amount of the facility as has been used to settle earlier liabilities on account of mark-up cannot bo termed as increase in the purchase price and is therefore permissible.

(C) It also needs to be clarified that the grant of a fresh finance facility of a similar nature" particularly in cases of working capital facilities is not restructuring or rschcduling of the liabilities. Accordingly, any increase in amount, of the later facility is not increase the marked-up price of the earlier facility.

(D) A number of times, the overdue facilities (mostly long term) are restructured or reschuled. Again restructuring and rescheduling of the over due facilities is structured in the following manner:

• by way of grant of fresh facilities

• by way of a new schedule of payment

Mr. Ejaz thus concluded the arguments saying that in holding that the hanks have unlawfully rescheduled/restructured/renewed by entering into fresh agreement adding markup, the banks shall collapse.

1. With utmost respect to the learned counsel I disagree with the proposition in the first instance that the said judgment of Dr. Aslant Khaki shall be operative from the date mentioned in it as regards the hanking transition. The laws by which the Banking Business was to be conducted was set moving from 1962, and a concrete law was enforced from 1.1.1985. BCD Circular No. 13 categorically states that a transitional period is given to the banks for the purposes of transition from the old system of the banking into the Islamic system of banking. There are two things that are enshrined in the judgment of Dr. M. Aslam Khaki. First being the economy of the

country and the other heing the financing system of the banks. The Shariat Board was to arrange for exchange of information for the evaluation of the practice and for providing guidance of successfully managing the Islamic economy. Islamic economy is, in its totality the economy of the country and laws in respect of, not only the banking, but oilier aspect which includes interest being charged by other institutions, payment to various banks and other such like transformation. The period of transformation has been given inthe said order which reads as under :--

"Keeping all these aspects in view, we have decided to appoint different dates for different phases of the transformation. We, therefore, direct that :--

(1) The Federal Government shall, within one moth from the announcement of this judgment, constitute in the State Bank of Pakistan a high level Commission fully empowered to carry out, control and supervise the process of transformation of the existing financial system to the one conforming to Shariah. It shall comprise Shariuhscholars, committed economics, bankers and chartered accountants.

(2) Within two months from the date of its constitution, the Commission shall chalk out the strategy to evaluate, scrutinize and implement the reports of the Commission for Islamization of the Economy as well as the report of Raja Zafarul Ilaq Commission after circulating it among the leading banks, religious scholars, economist and the State Bank and Finance Division, inviting their comments and further suggestions. The strategic plan so finalized shall be sent to the Ministries of Law, Finance and Commerce, all the banks and financial institutions to take steps to implement it.

(3) Within one month from the announcement of this judgment, the Ministry of Law and Parliamentary Affairs shall form a task-force, comprising its officials and two Shariahscholars from the Council of Islamic Ideology or from the Commission of the Islamization of Economy, to :

(a) Draft a new law for the prohibition of Riba and other laws as proposed in the guidelines above".

(b) To review the existing financial and other laws to bring them into conformity with the requirements of the new financial system.

(c) To draft new laws to give legal cover to the new financial instruments.

The recommendations of the task force shall be vetted and finalized by the "Commission for Transformation" proposed to he set

up in the SBP, after which the Federal Government shall promulgate the recommended laws."

1. The said direction has to be read carefully. The requirement is that of the Federal Government to constitute in the State Bank of Pakistan a commission for transforming the existing "financial system" to one conforming to the Shariah and thereafter a strategy was to be chalked out to evaluate, scrutinize and implement the report of the commission for Islamising the economy. In addition, it was the banks who were to take steps to implement it. Laws on Riba were required to be introduced and reviewed and existing financial laws and other laws were to be made out for the purposes of bringing into conformity the requirements of the new Financial system. It was, therefore, be seen that there was a distinction between the financial system and system of the government financial institutions. No doubt the financial system includes within it the system of banking which is why a separate period has been given in the said order in respect of preparation of model agreement etc. which reads as under :

"(4) Within six months from the announcement of this judgment, all the banks and financial institutions shall prepare their model agreements and documents for all their major operations and shall present them to the Commission for transformation in the SBP for its approval after examining them.

(underlining is mine)

(5) All the joint stock companies, mutual funds and the firm asking in aggregate finance above Rs. 5 million a year shall be required by law to subject themselves to independent rating by neutral rating agencies.

((5) All the Banks and financial institution shall, therefore, arrange for training programmes and seminars to educate the staff and the clients about the new arrangements of financing, their necessary requirements and their effects.

(7) The Ministry of Finance shall, within one month from the announcement of this judgment, form a task fore of its experts to find out means to convert the domestic borrowings into project related financing and to establish a mutual fund that may finance the Government on that basis. The units of the mutual fund may be purchased by the public and they will be tradable in the secondary market on the basis of net asset value. The certificates of the existing bonds of the existing Government savings schemes based on interest shall be converted into the units of the proposed mutual fund."

1. The financial system also includes intra-govenrment borrowing as well as borrowing from the State Bank of Pakistan by the Federal Government and foreign debt. Such has been separately dealt with in paras 8 & 9 which reads as under :--

"(8) The domestic inter-Government borrowings as well as the borrowings of the Federal Government from State Bank of Pakistan shall be designed on interest-free basis.

(9) Serious efforts shall be started by the Federal Government to relieve the national from the burden of foreign debts as soon as possible, and to renegotiate the exiting loans. Serious efforts shall also be made to structure the future borrowings, if necessaiy, on the basis of Islamic modes of financing."

1. From the above, it will be seen that various aspects of law for transformation has been given and it is for this, that the Honourable Supreme Court has given a specific time. Certain laws in the judgment have been declared to be repugnant to the injunctions of Islam and ceased to have effect from 31st March, 2000, however, other laws or provisions of laws to the extent that those have been declared to be repugnant to the injunction of Islam would cease to have effect from 30th June, 2001. It will be noted that BCD Circulars Nos. 13 and 32 having been declared to be mi-Islamic, the said circulars do not cease to have effect from 30th June. 2001. They were in force since 1.1.1985 and are valid legislation and continue to remain in force. The concept of BCD Circular No. 13 is that it was for the purposes of Islamisation of banks which was a part of the global change in Pakistan for Islamising the economy in generality. Banks were first to be placed in line for their transformation. It is in line of this, that BCD Circular No. 13 came into existence.

2. For the purposes of looking into the concept as given by BCD Circular No. 13 we may have to look into the histoiy as to why and how such laws were required to be enforced or made. It will not be out of place to mention that Pakistan itself was created to be a religious Islamic State. Quaid-e-Azam had expressed the desire to institute an Islamic Financial System in his speech (July, 1948) at the inaugural ceremony of the State Bank of Pakistan. From the Constitution of 1956 to the Constitution of 1973 an express desire has been shown to get rid of Riba. In the Article 38(f) of the Constitution of 1973 it has been categorically stated that the State shall eliminate Riba as early as possible. Article 2 of the Constitution categorically states that "Islam shall be the state religion of Pakistan". Article 2-A was inserted to become a substantive part of the Constitution by Presidential Order No. XIV of 1985 with effect from 2nd March, 1985. All these put together categorically showed and it was in the knowledge of all, that primarily Islam was the guiding factor. The Islamic Advisory Council created in 1962 in its various opinions till 1969 has time arid over again stated that the Riba must be finished in its eveiy form and a system that would work under the Islamic principles to be enforced. It seems that initially such was not enforced. The Council of Islamic Ideology was therefore created with the assignment to formulate an interest free system for banking. The Council in cooperation with its various financial and banking experts initially presented its interim report in November, 1978 and completed their report in June, 1980. It, is in the light of this report that the Government took the first practical step to purge three financial institutions of interest system on 1st of July, 1979. From 1980 onward other reforms were introduced till 1984 but such could not he properly handled.

3. The Constitution of Islamic Republic of Pakistan in Article 227 clearly provides that all existing laws are to be brought in conformity with the injunctions of Islam as laid down in the Quran and the Sunnah. The important aspect therefore is that there are only two modes in which the laws have to be brought in conformity with, namely, the Holy Quran and Sunnah. Under Article 228 it had become mandatory upon the Government to constitute a Council of Islamic Ideology which was constituted in 1974, thus it was a clear intention of the legislature and the maker of the Constitution that all laws that are made shall be in the line of and exactly what the Quran and Sunnah states. In fact, in the case of Commissioner Income Tux Peshawar Zone v. Simcn AG reported in PLD 1991 SC 368 it has been held that so long as the existing statutes were not brought in conformity with the injunctions of Islam, their interpretation, application and enforcement were discretionary judicial elements are involved only that course would be adopted which was in accord with the Islamic philosophy. its common law and Jurisprudence, In another case of Kancc.z Fatima v. Wall Muhammad reported in PLD 1993 SC 901, it was held that the principles of law and injunctions of Islam have to be kept in view while interpreting the statute and more so in the case where administrative decision affecting individual's rights and liberties have been challenged. In the case of Maple Leaf Cement Factory Ltd. v. Collector of Excise and Sales Tax reported in 1993 MLD 1645 it was held that the provisions of Articles 2-A and 227 of the Constitution postulate that the existing laws must be interpreted, as far as possible keeping in view the Islamic principles of interpretation, especially in fiscal statutes Courts are bound to apply Islamic rules of interpretation unless excluded otherwise in preference to the contrary accepted rules of interpretation under other jurisprudential concept and fiscal laws are not exception in that behalf. The functions of Council of Islamic Ideology have also been detailed in Article 230 of the Constitution. One of which is "to make recommendations as to measures for brining existing laws into conformity with the injunctions of Islam and the stages by which such measures should be brought into effect". The introduction, therefore of the aforesaid BCD Circulars Nos. 13 and 32 were in fact upon recommendations of the Council of Islamic Ideology. In the case of Pakistan v. Public At Large reported in PLD 1986 SC 240, there is a detailed discussion on the meaning of term 'injunction of Islam'. It has been held that the scope of expression 'injunctions of Islam' has not been left to the discretion of the Courts and notions of the individuals but it has been clearly spelt o\it that, as only those injunctions which have been laid down by the Holy Quran and the Sunnah of the Prophet (PBUH). In this celebrated judgment, of the Shariat Appellate Bench of the Supreme Court it was held that:

"We do feel that while expounding the Injunctions of Islam a possibility of some marginal so called divergences might be visualized. It is a veiy difficult and perilous exercise. 1 can lead to proper and improper consequences. Be that as it may, no such expounding of the Injunctions of Islam will be permissible which does not pay attention to the statement of the text of the Holy Qur'an and Sunnah and to its interpretation together with its Khamir and Zamir. Within this framework while "expounding" the Injunctions the Court will remain under a duty in case of need during a new approach or to meet a new situation to keep in view the following essentials, of course, amongst others:-

(i) Whether instead of attempting a relaxation of an Islamic rule, the relaxation may not be made in the required need for which the relaxation is intended to be made. A veiy simple exercise preliminary though, will be of great advantage-to ask oneself: Cannot the society exist or progress without the relaxation and where the answer is negative to ask the further question: Cannot it be done with a temporaiy and mildest one?

(ii) It is often said that modernism in (even when used in good sense of: achievement, progress and high attainment for the Ummah), Ijtiliadis essential. There can be no cavil with the proposition, but before doing the same within accepted spheres and under well-recognised rules it should also be asked: whether the same objects cannot be achieved without doing it; and, whether purpose would not be served by doing the similar Ijtihad or making a deviation in the demands of modernism; in other words, cannot the society change to word Islam?

(iii) Whether a relaxation is approvably on the accepted rules and principles of Ijtihad and Ijinah, old or new; Zaroorat or Zarar; Tawil or Takhsis; Urf and other recognised method s like Qiyas, Ihsun, Istcshan, Masalah-Mursalah etc.?

(iv) Whether in a case a new principle like the foreoging, is visualized there is support for the same in the Holy Qur'an and the Sunnah?

(v) Whether there has been a need similar to the one in issue earlier-if so, whether attempts were made by those who were qualified to do the exercise and with what result; the same would apply to attempts made in all other lands?

(vi) Whether there are precedents for guidance in the well-known authentic works—if so, what are the reasons for not following them. It is pertinent to note here that the Pakistan Courts when interpreting and applying laws do follow the precedents if they are by law, binding. And even when not so binding, help is

always sought from good precedents. Not only this but also it is well-known, the judgments and opinions of foreign Judges and jurists are accepted as legitimate guide or support for resolution of controversies. If that is treated as permissible, (rather indispensible by some atleast for the time being) there should be no hesitation in examining the judgments and precedents from our own masters including Sahaba, Aimrna and Ulema, old and new.

(vii) When examining, views and opinion of the old, special place is to be given to the Khulafa-e-Rashideen and Companions and Tabaeens in accordance with the Holy Qur'an and Sunnah. It is high time, we reduce the dangers of sectarianism and make masterly combination of both (old and new) with gradual elimination of uncalled for criticism and Taboos against the so-called Taqleed and so-called Tqjdid, when looking for and following the precedents.

(viii)It would also be necessary when rendering an answer for a new situation to see whether the interests of Islam and Muslim Ummah are advanced in Islamic way. The collective conscience of the Islamic Ummah, past and present, is also to be kept in view in making the answer.

(ix) Whether after doing the necessary exercise and after going through the above stages and others which might be spelt out later, the question when asked from the spiritual and mental faculties of oneself through Nafs Baseera, Nafs Lawwamah and Nafs Mutmainnah and not the Nafs Ammarah (14) 75— (53)12.( sj(.lo^)(27)89( ^^(^ ) (2)75 ) the answer comes in the clear affirmative for the intended attempt or step. (See Foot-notes Nos. 5810 and 5819 of Text Translation and Commentary on the Holy Qur'an by Abdullah Yusuf Ali (Vols. II, III). In not, it must be given upon. If it is in doubt even then it. must be given up. In other words, it must be beyond all doubts of reason, intellect and spirit.

(x) In unoccupied field, the precedent of Hzr. Moaz Bin Jabbal (r) should be applied with full consciousness of its limitations which can in the present day context, be spelt out from the foregoing points."

It will therefore be seen that no such act of violating the Injunctions of Islam will be permissible which does not pay attention to the text of the Holy Quran and Sunnah and its interpretation together with its 'Khamir' and 'Zamir'.

1. In the present case the Council of Islamic Ideology has given the report which enumerates in details as to which financing has to be entered

into under the Islamic system which had to be acted upon by the banks on the instructions of State Bank of Pakistan given under its authority under the Banking Companies Ordinance, 1961. The said report is based on the Quaran and Sunnah and for the purposes of interpreting the said existing laws its 'Khamir and 'Zamir' has to be looked into and cannot be deviated from. The Honourable Supreme Court of Pakistan in the case of Pakistan v. Public At Large (supra) has held that while expounding the Injunctions of Islam the Court will remain under the duty in case of need, during a new approach or to meet a new situation to keep in view a number of essentials, which essentials have been narrated above. It is clear that this Court will also have to look into whether, when there was a proper Ijtchad for the purposes of arriving at a certain principle of law under the Islamic system, could that Court take a view different with the Ijtehad that has already been taken place. The Ijtchadwas by way of consultation, finalized and published as a report of the Council of Islamic Ideology and thereafter when the judgment was announced by the Federal Shariat Court being PLD 1992 FSC 1. There can be no cavil with the proposition that the position that has been detailed and accepted by the Council of Islamic Ideology acted upon by the Federal Government and State Bank of Pakistan giving direction to the banks to finance under the modes prescribed and thereafter confirmed by the Federal Shariat Court and eventually by the Shariat Appellate Bench of the Supreme Court in the case of Dr. M. Aslam Khaki.

1. It is in pursuance to the long standing act in attempting to change the old banking system into a system of banking, to operate and run on the lines as provided by Quran and the Sunnah. The banks, State Bank of Pakistan and all other were duly connected and were party in the transformation of the banks by the introduction of the Islamic Financing to be governed by BCD Circular No. 13. The 'Modes of Transaction' were categorically mentioned wherefore the whole system commenced.

2. It will therefore be seen that a lot of work had been put in for the purposes of the system to be transformed from the usual interest bearing system and un-Islamic modes, into financial system based on the Injunctions of Islam, the Islamic Banking System. As I have already stated, the Government felt it proper that the entire system could not be transformed in one go, but chose to break it up into different sectors and the banking being the first of them.

Various Islamic councils that have been formed including the Council of Islamic Ideology, were always of the unanimous on the opinion that Riba in its every form was forbidden and the increase or decrease of the rate of the interest did not effect it being otherwise. It is well known that the committee of bankers that worked under the Chairmanship of the Governor State Bank of Pakistan in their report in 1980 also took the similar stand.

1. Scholars of the countiy, economic expert and bankers were agreed with the same. This was all taken into account in the case of Dr. Mehmoodur Re.hm.anFaisal and others v. The Secretary, Ministry of Law, Justice and

Parliamentary Affairs, Govt. of Pakistan and others reported as (TLD 1992 FS1).

When the concept of Islamic banking with its ethical values was propagated, financial circles the world over treated it as a Utopian dream. Having lived for centuries under the valueless capitalist economic system, they asked what ethics had to do with finance ?

1. Attitudes are changing gradually and in the last few years value neutral conventional banking has begun to trouble the conscious of an increasing number of people. There is a reluctance to hand over the funds to banks and financial institutions that invest in companies engaged in unethical and socially harmful activities. The emerging Islamic banking scene has succeeded in achieving general acceptance. Today, Islamic banking is estimated to be managing funds to the tune of US $100 billion. Its clientele are not confined to Muslim countries but are spread over Europe, United State and the Far East. Islamic banking continues to grow at a rapid pace because of its value-orientated ethos that enables it to draw finances from both Muslims and non-Muslims alike. Islamic bankers, keeping pace with sophisticated techniques and latest developments have evolved investment instruments that are not only profitable but are also ethically motivated. Today, more than one hundred and fifty Islamic financial institutions are operating world-wide.

The basic principle of Islamic banking is the prohibition of Riba-(Usury-or interest) :

"While a basic tenant of Islamic banking—the outlawing of rift a, a term that encompasses not only the concept of usury, but also that of interest—has seldom been recongised as applicable beyond the Islamic world, many of its guiding principles have. The majority of these principles are based on simple morality and common sense, which form the basis of many religions, including Islam.

The universal nature of these principles is immediately apparent even at a cursory glance of non-Muslim literature. Usury was prohibited in both the Old and New Testaments of the Bible, while Shakespeare and many other writers, particularly those writing in the 19th century, have attacked the barbarity of the parties. Much of the morality championed by Victorian writers such as Dickens-­ranging from the equitable distribution of wealth through to man's fundamental right to work-is clearly present in modern Islamic society.

Although the western media frequently suggest that Islamic banking it its present form is a recent phenomenon, in fact, the basic practices and principles date back to the early part of the seventh century." (Islamic Finance: A Eurornoney Publication, 1997)."

1. It is evident that Islamic finance was practiced predominantly in the Muslim world throughout the Middle Ages, fostering trade and business activities. In Spain and the Mediterranean and Baltic States, Islamic merchants became indispensable middlemen for trading activities. It is claimed that many concepts, techniques, and instruments of Islamic finance were later adopted by European financiers and businessman.

The revival of Islamic banking coincided with the world-wide celebration of the advent of the 15 Century of Islamic calendar (Hijra) in 1976. At the same time financial resources of Muslims particularly those of the oil producing countries, received a boost due to rationalization of tlio oil pricua, which Imd hitherto been under the control of foreign oil Corporations. These events led Muslims' to strive to model their lives in accordance with the ethics and philosophy of Islam.

Disenchantment with the value neutral capitalist and socialist financial systems led not only Muslims but also others to look for ethical values in their financial dealings and in the West some financial organizations have opted for ethical operations.

Islam not only prohibits dealing in interest but also in liquor, pork, gambling, promography and anything else, which the Shariah(Islamic Law) deems Haram (unlawful). Islamic banking is an instrument for the development of an Islamic economic order. Some of the salient features of this order may be summed up as :--

1. While permitting the individual the right to seek his economic well-being. Islam makes a clear distinction between what is Halal (lawful) and what is haram (forbidden) in pursuit of such economic activity. In broad terms, Islam forbids all forms of economic activity, which are morally or socially injurious.

2. While acknowledging the individual's right to ownership of wealth legitimately acquired, Islam makes it obligatory on the individual to spend his wealth judiciously and not to hoard it, keep it idle or to squander it.

3. While allowing an individual to retain any surplus wealth, Islam seeks to reduce the margin of the surplus for the well- being of the community as a whole, in particular the destitute and deprived sections of society by participation in the process ofZakat.

4. While making allowance for the ways of human nature and yet not yielding to the consequences of its worst propensities, Islam seeks to prevent the accumulation of wealth in a few hands to the detriment of society as a whole, by its laws of inheritance.

5. Viewed as a whole, the economic system envisaged by Islam aims at social justice without inhibiting individual enterprise beyond the point where it becomes not only collectively injurious but also individually self-destructive.

6. The Islamic financial system employs the concept of participation in the enterprise, utilizing the funds at risk on a profit and loss sharing basis. This by no means implies that investments with financial institutions are necessarily speculative. This can be excluded by careful investment policy, diversification of risk and prudent management by Islamic financial institutions. It is possible, that investment in Islamic financial institutions can provide potential profit in proportion to the risk assumed to satisfy the differing demands of participants in the contemporary environment and within the guidelines of the Shariah. The concept of profit and loss sharing, as a basis of financial transactions is a progressive one as it distinguishes good performance from the bad and the mediocre. This concept therefore encourages better resource management. Islamic banks are structured to retain a clearly differentiated status between shareholders' capital and clients' deposits in order to ensure correct profit-sharing according to Islamic Law.

7. Ar-Riba, consists of several types of transactions which have been forbidden by Allah. Dealing in ribais one of the greatest sins a Muslim can commit. The greatest sin according to Imam Malik.

All forms of riba fall into two basic categories. A. Riba An-Nasce'a.

This is the most pervasive and well-known. It includes several kinds of transactions.

The "classic" one which was described by the Companions of the Prophet (sas) was where someone owes another money for whatever reason (purchase, loan, etc.) which is due at a certain time. When the time comes, the creditor would say to the debtor : "a taqdhee am turbee?" (Will you pay up, or accept an increase ?). It seems that there was no fixed rate set at the

beginning of the transaction, rather it was set by "custom" and expectations and what the creditor felt he could demand from the creditor who was unable to pay. In this way, the original debt could easily expand to many times its original size. Allah said :

{Ya ayyuhaa alladhina aamanoo la ta'kuloo ar-riba adh'aafan mudhaa'afatan wa ittaqoo Allaha la'allakum tuflihoon}.

{O you who believe do not consume interest doubling and multiplying and beware of Allah that perhaps you may succed.}

Aal-'Imraan: 130

The question of Exchange of currency for currency or food for food with one side being delayed is explained by the following hadith which explains this and several other issues :

"Gold for gold either ore or pure, silver for silver either ore or pure, wheat for wheat measure for measure, barley for barley measure for measure, dates for dates measure for measure, slat for slat measure for measure whoeve increases or seeks an increase has committed riba. There is nothing wrong with selling gold for silver and the silver is more as long as it is hand to ham as for deferred payment, ho. And there is nothing wrong with selling whea for barley and the barley is more as long as it is hand to hand, as for deferra payment, no." In another version, he (sas) said :" When the items are different in these categories, then sell however you wish as long as it is ham to hand." Abu Daud and both narrations are sahih.

Two sales in a sale. The Prophet (sas) forbid a transaction which was "two sales in a sale". This means that at the time of the sale, the two parties agree to different prices corresponding to different times of payment. For example 90 days like cash but after that, the price goes up by 1% for eveiy month o: delay. This transaction is illegal and if a Muslim has engaged in such a transaction before knowing, they only have a right to the least of the prices.

"Whoever transacted two sales in a sale has a right only to the lesser of the two or he commits riba."

A loan which benefits the lender. As we saw in the first point, money cannot be exchanged for money with a delay no matter what the values. There is no "business" transaction where money is given and returned later. A "loan" is

NOT a business transaction, but is a form of "sadaqa" or charitable

transaction and the money returned must be the same as the money given.

"The Prophet (sas) forbid "kulla qardhin yajurru manfa' atan"-any loan which returns a benefit (i.e., to the lender).

B. Riba Al-Fadhl.

It is forbidden in Islam to exchange currency for currency unless it is done real time-z.e., no currency "futures" market. It is also forbidden to exchange food items for the same kind of food unless in both real time and in .equal measure. It is forbidden to exchange food items for other food items unless it is real time. Obviously measures do not have to be the same. Exchange of items in different categories, e.g., food for money, money for goods, etc. can be done in any quantities per the rule of supply and demand and with or without delay of one of the two sides of the transaction. This categoiy of riba is explained in the sahih hadith from Abi Daud above.

We should note that Islam forbid ihtikaar (monopoly) in foodstuffs and all necessities. In this case, the ruler has the right to interfere with the normal functioning of the "market" (supply and demand) in order to protect the peoples' necessities of life. A monopoly in other necessities say for example diamonds is of no consequence and the ruler is not allowed to interfere with the market.

No dealing in these interest transactions of any kind is allowed. The Prophet (sas) hs invoked Allah's "la'na" upon five individuals for a single transaction: the payer of interest, the receiver of interest, the scribe (probably computer programmer in our day) who records it and the two witnesses. The word la'na", usually translated as "cu.se" is much more than that. It means distance, i.e., that Allah will put you at great distance from Him on Qiyama. Similarly, Allah said about those who consume people's property with falsehood that. He will neither look at them, speak to them nor cleanse them on that day. This is the most severe punishment from Allah and those subjected to it will wish they could be punished by Allah in His fire rather than to be ignored and put away from Him. Also, as Allah said in Sura Taha:

{And whoever turns from my reminder will surely have a miserable life and we will resurrect him blind. He will say: Lord! Why have you resurrected me blind though I used to see? He said: Likewise my si^n.s came in me and you neglected them and in the same way you, on this day, are neglected.}

Rib a may appear to be in increase and a benefit, but it will never bring any benefit and will only bring those who deal in it the wrath of Allah, a declaration of war from Him and His punishment in the hereafter. Allah said:

{And whatever interest transactions you have made that they may grow in other people's wealth will not grow with Allah. And whatever zakatyou have jiven desiring only Allah's countenance, these surely are the ones whose returns are multiplied.} Ar-Rum: 39

Riba is one of the seven mubiqaat (sources of ruination) which the Prophet [sas) told us about in the hadith :

"Stay far away from the seven destroyers." They said: O Allah's Messenger, what are they ? He said : "Associating partners with Allah, sorceiy, killing the one protected by Allah except by right, consuming riba, consuming the wealth of orphans, fleeing from battle and slandering chaste and innocent believing women." Muslim & Bukhari and others.

And never forget the "la'na" of Allah invoked by the Prophet (sas) on the five parties involved in any riba transaction.

"The Prophet (sas) invoked la'na on the receiver of interest, the payer of nterest, the scribe and the two witnesses. And he said: "They are the same." Muslim

Some people are under the misconception that only high rates of interest are >rohibited, and that low rates are permissible. This delusion comes from

misunderstanding the verse of the Qur'an, (translated), "0 you who believe!

Do not consume riba, increased manifold." [Qur'an, 3:130] This verse, lowever, does not 'mean that if the increase is small it is permissible; it is

merely describing the common or usual state of affairs. Interest, as a rule, will be increased and compounded several times as the debtor repeatedly fails to pay up. This is similar to the statements, "Do not sell My signs for a small price," meaning at any price, for any price is too small to sell the sign of Allah for, and "Do not kill your children out of fear of poverty," whicl clearly cannot be taken to mean that it is permissible to kill them for anj reason besides fear of poverty. Further confirmation that all interesi thi prohibited is in another verse of the Qur'an. "But, if you repent [from riba

then for you is your principal." [Qur'an, 2:279] So, those who repent ma> keep only their principal (i.e. the initial amount loaned), and not even one penny or 1% more. Aside from all of his, "little" and "much" are subjective What one person regards as "a little" interest may be considered "a lot" b] someone else. So, the truth of the matter is that a small amount of interest is prohibited just as is a large amount.

Similarly, the haclith literature confirms this understanding: "If a man extends a loan to someone, he should not accept a gift." [Bukhari] Abu Burdah ibn Abi Musa said, "1 came to Medina and met Abdullah ibn Salam who said 'You now live in a country where riba is rampant. Hence, if anyone owes you something and presents you with a load of hay, or a load of barley, or a rope of straw, do not accept it, for it is riba." [Uukhari]

The unbelievers made a veiy similar claim. They said, "Trade is just like riba." However, this is an absurd analogy. It is like saying that there is nothing wrong with prostitution, because it is the use of the body to earn money, just like any other kind of work. Moreover, the claim that it is beneficial is invalid. In reality, it brings only a limited, temporal, material benefit to only a certain category of people. On the larger scale, it harms the debtor, especially in the case of his business running into loss. It restricts the wealth among the wealthy, and impedes its free circulation. It can lead to inflation, and other economic woes. It is selfish and unfair.

The Prophet said in the Farewell Pilgrimage, "Every riba of Jahiliwah is

abolished under these feet of mine, and the first riba I abolish is that of

'Abbas." It was around this time that Allah revealed the verse, (translated) "This day have I perfected for you your religion, completed My favor upon you and chosen Islam for you as your religion." [al-Ma'idah] The religion was completed, and all the regulations (including riba) had been legislated by that time.

But, this was not the last revaluation. A few days after that, approximately nine days before the Prophet left this world, some further verses were sent down. "O you who believe! Fear Allah, and Give up whatever remains of

Riba, if indeed you are believers, (my emphasis} And, if you do not do [so], then receive news of a war from Allah and His Messenger. [On the Day of Judgment, the consumer of riba will be given weapons and asked to prepare for war with Allah, and whoever has Allah as an adversary shall surely be overcome.] But, if you repent, then for you is your principal; do not wrong [by taking interest], and you will not be wronged [by deprivation of the

principal]. And, if [the debtor] is in dire circumstances, then [give him] reprieve until ease. And, it would be better for you that you [remit the debt

as] charity, if only you knew. And, fear a day in which you will be returned to Allah. Then, eveiy soul shall be paid for what it has earned, and they will not be wronged." [Qur'an, 2:278-281] (my emphasis).

This is something for us to ponder over. The last revelation of the Qur'an at almost the last possible time for revelation-is on riba. This must be to reiterate its severity, and to issue a dire warning to us against it. Not even the dhimmis (non-Muslim citizens) are allowed to deal in riba in the Islamic state. The Prophet wrote to the Christians of Najran," The person amongst you who deals in interest is not under our protection.' [Kanz al-'Ummal]

"On the night I was transported (i.e. the night of Isra and Mi'raj), I was brought to a people whose stomachs were [large] like houses, with snakes inside them which were visible from outside their bellies. I said, 'who are these, 0 Garbriel?' He said, 'Consumers of riba.' "[Ibn Abi Hatim, Ahmad]

(part of a long hadith of a dream:)"........... then we came to a river," I (the

narrator) think he said: red like blood, "and there in the river was a swimming man, and on the bank of the river was a man who had collected a ot of stones by him. The swimmer would try to emerge [from the river], whereupon the one who had gathered the stones would throw a stone into lis mouth [forcing him back in]." The Prophet conveyed that the swimmer was the consumer of riba. [Bukhari]

'Allah has cursed the consumer of riba,the one who gives it for consumption, the two witnesses [to the contract] of [riba],and the scribe .hereof. "[Ahmad, Abu Ya'la, Ibn Khuzaymah, Ibn Hibban; Muslim, Nasa'i, Abu Dawud, Tirmidhi, Ibn Majah; Bukhari]

On account of the wrongdoing/oppression of the Jews. We made prohibited or them good/wholesome things which had been lawful for them, and [this ,vas also] for their abundant hindering from the path of Allah, their taking

riba although they had been prohibited from it, and their wrongfully

consuming the property of people." [Surah al-Nisa']

The nation amongst whom adultery and interest become common definitely )ring the punishment of Allah upon themselves." [Abu Ya'la] According to a narration with Ahmad, interest brings upon drought.

By He in Whose control is my life! Some people of my ummah will spend he night in the state of pride, haughtiness, play and amusement, and in the norning, they will be disfigured as apes and swine, because they made the unlawful lawful, kept (employed) singing girls, drank liquor, consumed nterest and wore silk clothes." [Abdullah Ibn Ahmad] (emphasis is mine).

When you trade in al-eenah [a round-about transaction intended to ircumvent riba, but ending in the same result. A man would buy an article rom a needy person at a low price, stipulating that he should buy it back at

a future date for a higher price], take hold of the ears of cows, become contented with agriculture, and abandon jihad, Allah will impose upon you a humiliation which He will not remove until you return to your religion. [Ahamd]

It should be quite clear by now that the interest obtained nowadays from banks snd the like is Hararn without any doubt. The three councils of jurists that meet regularly to discuss contemporary issues, have all declared, with a unanimity of all of their members, that this interest is prohibited by the texts of the Qur'an and Sunnah (i.e. it is to merely a matter of ijtihad), and that it is the very riba which Allah and His Messenger have prohibited. One of the former shaykhs of al-Azhar (raliimah Allah) observed, 'This has become a matter which is necessarily known to be part of the religion, and so it towers above any disagreement.'

"So, whoever receives an admonition from his Lord, then for him is what has passed, and his matter is with Allah. But, [as for] whoever returns [to dealing in interest, even after learning of its prohibition, and after hearing the serious and dire warnings against it] - they are the inmates of the Fire; they shall abid therein." "Say : O My servants who have committed excesses against their own selves! Do not despair of the mercy of Allah! Indeed, Allah forgives all sins. Indeed, He is the Most Forgiving, the Most Merciful."

If you have been guilty for consuming riba, then you should repent to Allah sincerely. You sho\ild feel regret over your sin, cease it immediately, and resolve never to return to it again. The interest which you have from the past must be disposed of. You cannot kept it, for it is Haram money. [Qur'an, 2:279]. You may not destroy it, because the Messenger of Allah (may Allah bless him and grant him peace) forbade the destruction of money [Muwatta']. Nor should you give it back to the bank, for that would only strengthen it arid further the institution of riba.Hence, you should give it away for general projects of good, but with the intention of getting rid of Hararn money, not with the intention of charity.

1. Having discussed the concept of 'Riba'existent from the earlier days of Islam distorted by the western banking system, I shall proceed to discuss the various aspects that have been stated and detailed in the said judgment of Dr. Mehmood-ur-Rehman Faisal (supra). It is important to narrate some facts which will show that no only the bankers but the entire country as also the International Banks remained involved in the transformation and to say, that today, they have been taken by surprise by the judgment of Dr. M. Aslam Khaki is incorrect. Such a stand is taken for the purposes only that having done an act knowingly that the accrued markup became the banks profit and the same was reflected in the balance sheet. The markup thus charged continually by elapse of time was reflected as income. This deemed income showed the huge profits of banks, which was due to the rescheduling and rollovers, where the markup on markup was charged.

2. The discussion on charge of interest/mark up that is, in the nature of Ribahas been in light all over the world in the various Islamic Fiaqah Conference. In the assembly of the Islami Fiqah of India in its seminar of the top scholars were of the opinion that "Interest whether received on the loans for personal expenditure or on commercial and business loans, is in the eyes of Islamic Shariah, forbidden." Additionally, Islamic Fiqah Academy established at the official level by the organization of the Foreign Minister also considered this matter in December, 1985 and arrived at the same conclusion. In the official document of the IMF the position of the Muslim Umman described it as follows :--

"It seems appropriate that the beginning of the study of Islamic Banking system should be made from the definition of its basic terminology. Riba is an Islamic legal term which is tantamount to an accepted addition before the use of money Controversy is found in the past whether Ribameans interest or usury but now there is a consensus of opinion among the Muslim scholars that this technical term is applicable to every form of Interest and its corroboration is not merely excessive interest. Therefore in the forthcoming discussions riba and Interest will be used as synonyms and the Islamic Banking System will mean the system in which the payment or receipt of Interest will be prohibited, whereas an interest giving or conventional bank will mean an institution in winch interest is received or given on the use of monetary fund-(International Monetary Fund Staff Papers, Vol. xxxiii No. 1 March 1986. Islamic Interest-free Banking, a Theoretical Analysis by Mohsin S. Khan p-4-5)

The dispassionate analysis of the academic discussions of half a century absolutely lays bare the fact that the questions and doubts raised about Interest (Riba) are unreal and the Quran and Sunnahhave prohibited Riba in its every form, be it the ancient banking form or the modern banking, be it related to the consumption loans of the needy or commercial and production loans, may they fall within the sphere of private limits or Government, semi-Government limits, and whether provided at a lesser or exorbitant rate. The second great success achieved in the last thirty years covers - the principles and rules, way of working, financial Instruments of interest-free banking and the proposal and drafting of the strategy of investment. In this connection investigations have been made with great endeavors and a chart of alternative system has been prepared with deep foresight. At least two dozen research books have been published in which the features of the new system have been explained. Among them some of their authors have received the Islamic Development Bank and the King Faisal Awards.

In Pakistan the report of the Council of Islamic Ideology (1980), which is based on the report of the economic and banking experts, occupies the position of a mile-stone. In this report, a veiy realistic blue print has been presented to purge .Pakistan's domestic economy of interest. A Committee of the Central Bank also worked on this subject in 1981 under the Chairmanship of the governor of State Bank and the blue print provided by it is also very close to the blue print of the Council of Islamic Ideology. The report of the Council of Islamic Ideology was discussed in an International Seminar and its recommendations were, on the whole ratified. Moreover some additional recommendations were made, which were published under the title of "Money and Banking in Islam," by the International Institute of Islamic Economics, (Islamabad) and Institute of Policy Studies (Islamabad). In 1989 the International Institute of Islamic Economics held a workshop on the subject as to how interest can be eliminated from Government dealings. The report of this workshop (Elimination of Interest on Govt. Transactions) has also been published. After that in June 1992 the commission for Islamization of Economy submitted its interim report, which has, however, not been published so far. It was even not presented in the Senate and National Assembly as required under the law. The Institute of Policy Studies held a Seminar in 1993 which was attended by about one hundred experts. Two editions of its proceedings have been published in 1994 and 1995 entitled "Elimination of Riba from the Economy." The whole of this work presents a vivid outline of an alternative system in the light of conditions prevailing in Pakistan. Regarding the foreign loans, clear guidance exists in the above mentioned reports of the Institute of Policy Studies and the self-Reliance Committee. Even an outline exists in the Self-Reliance Report (1991) which tells how to execute this job, and on the other hand with the help of a proper economic model a complete programme has been given to eliminate Riba from the economy in three years. The difficulty is that those demanding an alternative system neither study these reports nor intend to act upon them. It seems that because the recommendations made in this whole assignment, are not in accordance with their taste or desire, they therefore refute the existence of these documents and are continuously harping upon, "where is the alternative?" The matter is not limited only to academic exercise and drawing a sketch of the alternative system. No doubt much work has yet to be done and many stages have to be covered, but whatever has been attained by way of implementation is sufficient to bow before the prowess of Islamic banking system.

The work of accumulating the savings and provision of resources has always been carried out at the lowest and public levels C individual and institutional. After the first World war, Dr. Muhammad Hamidullah had carried out research work and had shown how investment to the extent of billions of rupees was being carried out through equity-based venture system. During the last forty years the experiments include the Mit Ghamr Bank of Egypt, which had been working from 1963 to 1967 and after that it adopted a new form in the shape of Nasir Social Bank (1971). These institutions continued to work very successfully for ten to twelve years on which studies were carried out which declared them to be successful preliminary experiments (vide: The Research Report of T. Wholus Scharf: Arab Islamic Banks: New Business Partners for Developing Countries, Paris, OECD, 1993)."

1. In pursuance to the international discussion of the Muslims all over the world in 1975, Dubai Islamic Bank was formed to perform the work under the Islamic system. Two major Financial groups namely Darul Mai Islamia (DMI) and Al-Barka Groups were also formed for the purposes of interest free banking. The Islamic Development Bank formed in Jeddah in 1975. All these banks are continuing to work under the system of Islamic Banking.

2. For the purpose of understanding the law in force for the time being, and for the purpose of understanding the two important judgments, i.e. the cases of Dr. Mehmood-ur-Rehman Faisal (supra) and Dr. M. Aslam Khaki (supra), it will be important to reproduces the two most important circulars that have been continued to the relied upon in this respect. The first being BCD Circular No. 13 dated 20th June, 1984 which reads as under:—

"STATE BANK OF PAKISTAN

Banking Control Department

Central Directorate

Karachi.

BCD Circular No. 13 20th June, 1984.

All Banks, Dear Sirs, Elimination of 'RIBA' from the Banking System

As has been announced by the Finance Minister, it is the intention of Government that the Banking System should shift over to Islamic modes of financing during the course of the next financial year. These modes of

financing have been described in Annexure I. This shift will take place according to the following programme.

(i) As from the 1st July, 1984, all banking companies will be free to make finance available in any of the modes of financing listed in Annexure I. However, as a transitional arrangement, they will also be free to lend on the basis of interest, provided that no accommodation for working capital will be provided or renewed on interest basis for a period of more than six months.

(ii) As from the 1st January, 1985, all finances provided by a banking company to the Federal Government, Provincial Governments, public sector corporations and public or private joint stock companies hall be only in any one of the modes indicated in Annexure I.

(iii) As from the 1st April, 1985, all finances provided by a banking company to all entities, including individuals, shall be on the same basis as mentioned in (ii) above.

(iv) The appropriate mode of financing to be adopted in any particular case will be settled by agreement between the banking company and the client. Some possible modes of financing for various transactions have been shown in Annexure II.

(v) As from the 1st July, 1985, no banking company shall accept any interest-bearing deposits. As from that date, all deposits accepted by a banking company shall be on the basis of participation in profit and loss of the banking company, except deposits received in Current Account on which no interest or profit shall be given by the banking company.

1. The instructions contained in Items (i), (ii) and (iii) above shall, however, not apply to on-lending of foreign loans which will continue to be governed by the terms of the loans. Likewise, the instructions contained in Item (v) above shall not apply to foreign currency deposits.

2. The above instructions are being issued under the Banking Companies Ordinance, 1962. Further instructions, where necessary, will follow.

Please acknowledge receipt.

Yours faithfully, (SIBGHATULLAH) Director"

ANNEXURE-I

Permissible modes of Financing (A) Financing by lending :--

(i) Loans not carrying any interest on which the banks may recover a service charge not exceeding the proportionate cost of the operation, excluding the cost of funds and provision for bad and doubtful debts. The maximum service charge permissible to each bank will be determined by the State Bank from time to time.

(ii) Qard-e-Hasana loans given on compassionate ground free of any interest or service charge and repayable if and when the borrower is able to pay.

(II) Trade-related modes of financing including the following :-.-

(i) Purchase of goods by banks and their sale to clients at appropriate mark-up in price on deferred payment basis. In case of default, there should be no mark-up on mark-up.

(ii) Purchase of trade bills.

(iii) Purchase of moveable or immoveable property by the banks from their clients with Buy-Back Agreement or otherwise.

(iv) Leasing.

(v) Hire-purchase.

(vi) Financing for development of property on the basis of a develop­ment charge.

The maximum and the minimum rates of return to be derived by the banks from these modes of financing will be as may be determined by the State Bank from time to time.

(C) Trade-related modes of financing including the following :--

(i) Musharika or profit and loss sharing.

(ii) Equity participation and purchase of shares.

U;i) Purchase of participation term certificates and Modaraba Certificates.

(iv) Rent-sharing.

The maximum and minimum rates of profit to be derived by the banks from such transactions will be as may be prescribed by the State Bank from time to time. However, should any losses occur, they will have to be proportionately shared among all the financiers.

ANNEXURE-II

Permissible modes of Financing for Various Transactions

| | | --- | | Basis of Financing Fixed investment Mark-up in price. |

Nature of Business

I. Trade and Commerce

(a) Commodity operations of the Federal and Provincial Governments and their agencies.

(b) Export Bills purchased/negotiated under Letters of Credit (Other than those under reserve)

(c) Documentary Inland Bills drawn against Letters of Credit purchased/discounted.

(d) Import Bills drawn under Letters of Credit.

(e) Financing of exports under the State Bank's Export Finance Scheme and The Scheme for Financing Locally Manufactured Machinery.

(f) Other items of trade & commerce.

II. Industry

Rate

| | | --- | | (i) |

Exchange

differential in the case of foreign currency bills.

| | | --- | | (ii) |

Commission or mark-down in the case of Rupee bills.

Mark-down in price.

Mark-up in price.

Service charge/Con-

cessional Service Charge.

Fixed investment Equity participation, P.T.Cs., Leasing or hire-purchase.

Working Capital

Profit and loss sharing or

mark-up

Fixed investment

Equity participation, P.T.Cs., Modaraba

Certificates, leasing, Hire-purchase or mark-up.

Working Capital.

Profit & loss sharing or

mark-up.

PLJ

III. Agriculture and Fisheries

(a) Short-term Finance.

Mark-up. In the case of small farmers and small fishermen who are at present eligible for interest free loans finances for the specified inputs etc., upto the prescribed amount may be on mark-up basis. The mark-up amount may however be waived in the case of those who repay the finance within the stipulated period and payment of the mark-up made by the Slate Bank to banks by debit to Federal Government Account.

(b) Medium and long-term Finance.

(i) Tubewells & other wells.

(ii) Tractors, Traitors and other farm machinery and transport (including fishing boats, solar energy plants etc.)

(iii) Plough-cattle, Milch Cattle & other live stock.

(iv) Faiiy & Poultry.

(v) Storage and other farm construction (viz. Sheds for animals, fencing etc.).

(vi) Land Development.

(vii) Orchards, including nurseries.

Leasing or hire-purchase. In addition to ownership of machinery, banks may create charge on the land in their favour as in the case of other loan to the farmers under the Passbook System.

Hire-purchase or leasing.

Mark-up

PLS/mark-up/hire-purchase/leasing.

Leasing or rent sharing basis with flexible weightage to the bank's funds.

Development charge.

Mark-up, development

charge or PLS basis.

(viii) Forestry. Mark-up, development

charge or PLS.

(ix) Water Course improvement. Development charge.

IV.Housing Rent sharing with flexible

weightage to bank's funds or buy-back cum mark-up.

V.Personal Advances (other than those For business purposes & housing)

(a) Consumer durables (cars, Hire-purchase, motor Hire-Purchase cycles, scooters and house-hold goods).

(h) For consumption purposes. Against tangible security

with buy-back

arrangement.

And the other being BCD Circular No. 32 dated 26.11.1984 which roads as

under :--

"STATE BANK OF PAKISTAN

Banking Control Department

Central Directorate

Karachi.

BCD Circular No. 32 26th November, 1984.

All Banks and development finance institutions. Dear Sirs, Elimination of 'RIBA' from the Banking System-Bank Charges.

Please refer to BCD Circular No. 13 dated the 20th June, 1984.

1. Vide BCD Circular No. 7 dated the 28th March, 1984 bank charge except charges for home remittances, have been deregulated. The scheduled of bank charges received from the banks show that the following items of bank charges are based on interest :--

(i) Mark up in the case of import bills under import letters of credit.

(ii) Mark-down in the case of documentary bills drawn against inland letters of credit.

1. The schedules also provide for levy of overdue/penal interest in case of non-retirement/non-payment of inland cheques, bills etc., purchased.

4.In exercise of the powers vested in it under the Banking Companies Ordinance, 1962, the State Bank of Pakistan is pleased to direct that as from the 1st January, 1985, interest, wherever charged by a banking company/development finance institution in any of the items of bank charges, shall be replaced by a non-interest mode considered appropriate by it. Moreover, overdue/penal interest or mark-up on mark-up shall not be charged by a banking company/DFI as from that date. Instead, it may take legal steps for recovery of the overdue finance.

1. Please acknowledge receipt.

Yours faithfully, (SIBGHATULLAH) Director"

1. An analysis of the said BCD Circular No. 13 is required to be done in the light of the afore-stated discussions that a complete conscience effort was put in by the Government which included the bankers to bring about the transformation in the existing system in the banks for shifting to the Islamic modes of financing. The first paragraph of said BCD Circular No. 13 states that, it was the Government which acted through its Finance Minister, showing the intention of the Federal Government, to transform the banking system into the Islamic mode whereby, the financing done would be in the manner as provided in the Annexures to the said circular. It was not an abrupt transformation. The transformation had actually commenced from 1962 and various committees had been formed. Discussion at the highest level had taken place and naturally upon discussion after numerous position a settled formula came in by way of this circular. No doubt, this circular does not mention the name of the transaction i.e. whether it is MorabqJia transaction, a transaction by bai or by Ijarah,Modaraba or any other such means but the annexure to the said notification categorically spelt out, what was to be done and that, these in fact reflected the various transactions that are and continued to be in vogue in other Islamic banks. Though no names were given but it will be seen that these permissible modes were nothing but specified transaction allowed by the Islamic Scholars. BCD Circular No. 13 also speaks of "transitional management" and, after the first of January, 1985 as provided in Clause 2(i) of the said circular of finances provided by a banking company, Federal Government, Provincial Government, public sector corporation and public or private joint sectors companies could only be done in the modes indicated in the Annexure-1 to the said circular.

2. It cannot by any stretch of imagination be presumed that the meaning of the words 'interest', 'mark-up' or 'Riba' were not understood. When this notification was issued all the transactional aspects had been discussed at the top level by the Government which is why the Finance Minister announced the public of transformation. This announcement was also in the line with the Constitutions of the Islamic Republic of Pakistan.

3. In Annexure-I to the said circular namely BCD Circular No. 13 there were three basic forms of transaction that were allowed viz. The first being, 'Financing by Lending'. From the title, it is clear tha though, otherwise in the usual parlance financing' and 'lending' would have in fact meant the same, but when 'financing' is used with 'lending' saying, that there is lending, it would mean that there is a Joan\'given to finance some person. The word 'finance' will have to be given a separate meaning and is to be treated to be 'lending' simplicitor. 'Lendings' are loans i.e. the delivery of the money to another person. The money therefore being a 'debt' crated by way of lending. In such a situation the question that will arise is that, whether such debt created by lending could attract a levy of further sums on elapse of time for repayment, as wound be done under the normal banking system on any money lent which would carry interest. Under this circular there is a categorical stipulation, that, where there is a 'lending' the 'debt' so created by giving 'money' to another person or financing to other person by way of lending, such would not carry any interest or markup. It is, therefore, provided in sub-clause (i) of Clause A to Annexure-I that such 'loans' shall not carry interest or markup. The banks were only allowed to recover 'Service Charges' which were not to exceed the proportionate costs of operation. The important aspect that needs to be noted in the first permissible mode, is the use of the words 'excluding cost of funds and provision of bad and doubtful debts'. This phrase needs to be explained. The Shariat Appellate Bench of the Supreme Court in the case of Dr. M. Aslam Khaki has held, that money is not the commodity and in fact, is only a medium of exchange'. It has also been held, that, in view of it being the medium of exchange and cannot be treated as a commodity wherefore it cannot be traded. It can only used for the purposes it is for, namely the exchange for commodity. The value of the money cannot change, that is, if a currency note is for Rs. 100/- it can only be exchanged with a hundred rupees or for various notes of the value of the Rs. 100/-, but no addition can be made thereto. Such medium of exchange can get the commodity of the value of Rs. 100/-, but the money cannot be traded. It will be important to note that that in the;modern world, money is obtained from various sources, which involves cost. If such cost is taken into account, and if that money which is lent, the usual course would have been that the bankers would have charged interest, which would carry his own spread alongwith the cost of funding and provision of bad and doubtful debt, to arrive at a rate of interest that, till such time the money is repaid, the debtor shall continue to pay an additional sum for utilizing the money. Such has been categorically restricted by the said BCD Circular No. 13 in Annexure-I. The said judgment of Dr. M. Aslam Khaki only reaffirms the same and categorically states that nothing can be added for the purposes of utilization of 'money.' Notwithstanding what has been stated by the Honourable Supreme Court, even if BCD Circular No. 13 is therefore seen, it is clear that by inclusion of this particular phrase, the banks are prohibited to charge except for the service charges, any other amount on a debt, to the extent that the cost of

obtaining funds by the lending agency, and provision by such lender of his bad debt and charging interest has categorically been done away with. The service charges are only the cost of the actual banks operation and the maximum of which was to be determined by the State Bank of Pakistan from time to time. This shows the importance that has been attached to the fact that no 'increase' or 'addition' by elapse of time could be made on a 'debt' or 'loan', i.e. 'on money lent'.

1. The other manner of loans allowed is the 'finance by the lending' as 'Qard-I-Hasana' which is a loan given on compassionate ground, free from 'interest', 'mark-up' or 'service charges' and repayable, 'if and Svhen' the borrower is able to pay, I am riot aware whether this has even been acted upon.

2. The next mode of financing that has been dealt with in Circular No. 13 is the 'Trade Related Modes of Financing', which type is in fact, the basic earner for banks. Various modes have been provided, one of which is, purchase of goods by hanks and their sale to the clients at an appropriate markup in price for deferred payment and which is the most utilized manner of 'financing'. We need to analysis this aspect also. It is important to first note that the term 'loan' or 'lending' is missing and it is 'financing' that is being used. The absence of the term 'lending' has to be given a meaning. As discussed above, there was 'Financing by Lending', is a 'loan' of money, which may be repayable at a certain time. 'Financing' is not 'lending'. It is a form of a business activity, which has been termed in the title as 'Trading'. Thus the finance is earned by trading, and cannot be termed as a 'Loan' of money. The permissible mode allows the purchase of 'goods' or various commodities by banks. The purchase of goods has to be given a proper meaning. Purchase will never mean purchase of 'money'. As discussed, this would amount to 'lending money', which is not allowed.by the said BCD Circular and even if allowed, no addition can be made to it. It is the 'goods' or 'commodity' that have to be purchased. 'Money' is neither 'goods' nor 'commodity'. It is, therefore a categorical stipulation in sub-clause (i) of Clause B of Annexure-I. The banks are allowed to sell goods that are required by their clients. It is the 'sale price' of these 'goods' that shall be the financing. I have already discussed that there is 'financing by lending' and this mode is the other mode i.e. financing by sale or 'Bai'. Therefore, money or the 'sale price' fixed and agreed between the 'Seller' and the 'Buyer' is what is payable for the goods purchased. There could be various types of Purchase, however the most common being, that the client of the bank sells 'goods' to the bank for a value of the 'purchase price', which is the amount that is actually paid by the bank to the customer. The customer simultaneously agrees to repurchase the same goods for a 'marked up price', which is the agreed 'sale price' or the 'repurchase price'. Thus the purchase and sale is by the same person (though some writers say that this would also amount to 'Riba\ but the law for the time being in force, permits such sale and purchase), the money i.e. 'the sale price' or the 'repurchase price' is

payable on deferred payment basis. It is categorically provided in the said Circular, that in case of default there shall be no markup on markup. Thus delay in payment will under no circumstances cause any addition of any sums. This is because of the categorical fact that the 'repurchase price' becomes a loan' or 'debt' and nothing could be added thereon. We now also analysis this clause keeping in view Judgment in Dr. M. Aslam Khaki's case. In the order of the Court it is observed that 'the Holy Quaran says: 'and if the (the debtor) is poor he must be given respite till he is well of. (2:280). It is further held in the Order, that if the purchase delays the payment despite his ability to pay, he may be subjected to different punishment, but it cannot be taken to be a source of further return to the seller on per cent, per annum basis as contemplated in Section 79 of Negotiable Instrument Act. The permissible mode of financing by sale and purchase therefore could not carry any mark up on mark up and that, such was also not allowed in the event of default. Thus the comparison of the Circular and the judgment of the Supreme Court has the same and result.

1. The sale price of the goods purchased by the client from the bank will therefore be a determined price namely, a price on which certain profits by way of addition of mark up would also be included. Such price could be arrived at, as also observed by the Supreme Court in the aforestated case, on any sums that may be agreed between the parties, but after the 'purchase price' has been agreed to between the 'bank' and the 'customer' such amount will only become a 'debt' and would therefore be nothing but 'lending'. The transaction of sale and purchase is complete, and the bank becomes an 'unpaid seller', i.e. is only liable to be paid the repurchase price or the amount of 'debt' created by the sale by the bank to the customer. The payment, to be made is at a date in the future. Such will only be a 'loan' or 'debt' repayable at a future date. If payment is not made on that future date, it is the money due that is recoverable only, and per the said Circular, no markup on markup or addition thereto can be made. After it becomes 'loan', such amount will be dealt with in the manner as provided in Clause-A of Annexure-I and would therefore only become loan payable by the purchaser to the bank. Such loan will not cany any interest or markup. Only services charges therefore could be recovered. The usual method being applied by the bank for the purposes of recovery of this interest, is the indirect mode and method. What is being done is, that another 'agreement' is entered into under Clause B(i) and the said 'loan' or 'debt' recoverable is translated into the said agreement as the 'purchase price' of the goods and commodity. On this purchase price is added a markup in the agreement which will therefore become the 'sale price' or 'repurchase price' i.e. sale by the customer to the bank and an addition of further mark up is made to the said existing sale price to arrive at a further marked up price. In the subsequent agreement there is no transaction of sale or purchase of goods but a fictitious act is done, whereby notional goods are transacted and not detailed in the agreement and a sale and purchase price is agreed upon. This is nothing but a fraud on the Constitution, the law and the people of this country. It is a

mockery of Islam, and the Islamic Modes of Transaction approved by law. In the case of Mian Muhammad Nawaz Sharif u. The President of Pakistan (PLD 1993 SC 473), it has been held that, Vhat cannot be done directly cannot be done indirectly'. This is also a very well settled law, that no one can be allowed to circumvent the law, no one can be allowed to act otherwise than what is provided. It is also settled law, that if a thing has to be in a specific manner, it has to be done in that manner alone and none else. No one can be allowed in the name of their own profitability to cause the existing law to be bypassed, avoided or interpreted, or usage or customs to be developed which are contrary to an existing unequivocal and exact law. BCD Circular No. 13 is very categorical. It clearly states that no mark up on mark up shall be charged. There is not ambiguity surrounding this issue. In the garb of the other agreement such will not be allowed to be taken. Mr. Azizur Rehman has referred to the following cases :--

(i) Unreported judgment being Spl. HCA No. 187/98, M/s. Hardware Manufacturing Corporation (Pvt.) Ltd. and 5 others versus U.B.L.

(ii) Danque Indosuez versus Banking Tribunal for Sindh and Baluchistan and others (1994 CLC 2272).

in which according to him, the two Division Benches of this Court have held that 'roll over' being a 'custom' and 'old practice' can be allowed. According to him, and .that has been discussed above, that this Court shall be bound by the judgment pronounced by the Division Bench. No doubt, all judgments that are not distinguishable do bind on any other Court which may be subordinate to it. I, sitting in the original side as a single judge will be bound by the judgment of divisional bench. I have, therefore, perused the said judgment in some detail. The principle expounded by my brothers is not incorrect. The facts of the said case are however distinguishable from the present case and I say this with all respect and humility at my command. It is apparent that all the facts, details and law were also not discussed by the Honourable judges of the Division Bench. The case of Mehmoodur Rehman Faisal (supra) was also not considered which was a judgment of Federal Shariat Bench and binding on the Court. The Honourable judges of the Federal Shariat Appellate Bench in the aforestated judgment which was the judgment of the Full Bench held that: 'in view of the above discussion, the rule of Maslaah cannot be invoked in aid to permissibility of 'bank interest'. It was also held that:

"153. For consideration of the other point, whether an increase to offset the depreciation in the value of currency can be justified and considered as an alternate and substitute for interest, in the eye of Shari'ah, we may quote first from the well known works of Economics as to the theory of inflation arid indexation, purely from economic point of view, and then we would examine the same on the anvil of the Qur'an and Sunnah.

1,54. 'Inflation is a persistent tendency for the prices of most of the goods and\services of rise over time. Inflation has been a world-wide problem throughout, much of the 20th centuiy. Nonetheless, inflation has proved to be extremely difficult for economists to define or to distinguish from related problems."

The learned judges after having discussed the various possible reasons for rise in the price, including inflation and keeping in view the indexation have come to the conclusion that all increase in any manner whatsoever is Riba.lt was held that:

"169. Guided by the hadith the fuqaha have opined that in case dirhams or dinars are lent out by counting, they will be paid back by counting not by weight. Similarly in case these are lent out by weight they will be returned by weight not by counting. In respect of the loan of a commodity it is further provided by the fuqaha that it should be returned in the same kind and quantity irrespective of any change in its price at the time of return of the loan."

1. Once it is held that loan of a commodity has to be returned in the same kind and quantity irrespective of any changes in its price, the concept of 'roll over' will also have changed. I am therefore of the view tha the concept of 'roll over' though, dominant and an easy method of earning money, had actually been done away with, by the introduction of BCD Circular No. 13 providing that no mark up on mark shall be charged. The argument that mark up on mark up would actually mean that no mark up could be charged on the mark up levied on eh principal amount in the first instance lias been made, it has been argued that the words 'mark up on mark up' will only be read as if there shall not be charged any further sum on the mark up that was added to the first agreement for the purposes o; arriving at a repurchase price, but it could be charged on the actual purchase price namely, the purchase of the goods from customers. I am afraid, I shall also not subscribe with this view. The position is veiy clear that the mark up is charged for the purposes of arriving at a repurchase price and as discussed above, the said mark up is merged and becomes a part of the debt. Such amount cannot dealt with separately as, the entire amount will form a debt and it is this debt that shall payable by the borrower. The practice of keeping mark up in a separate amount and principal on the separate account and charging mark up on the principal and not the mark up is contemplated by the said notification namely BCD Circular No. 13. Once the principal debt is determined as discussed above, the debt becomes a finance by lending and no mark up, by whatever name called, can be charged. If one were to presume that such mark up on the mark up could not be charged, but could be charged on the principal money lent, the outcome would in fact be the same. All payments made would be, (in fact are) adjusted towards markup, and then markup would be charged on the principal. This will be purposively avoiding the law. Interest has been defined as an increase on money by elapse of time i.e. that a sum that is continued to be paid till such time the

debt remains in place at a certain rate and for utilization of the monies that may have been given to another person. In the instant case also the arguments therefore that mark up on the principal can be charged also held no ground. The charge of mark up on mark up will mean an addition in the existing marked up price. Mark up is charged only for the purposes of arriving at a price sale of a commodity, and the addition to arrive at a price is the profit in trade, and which is the only amount a bank can gain. There would be no commodity to sell after the agreement of sale has been acted

upon. The bank, as aforestated shall only be an unpaid seller. In the subsequent agreement it will only be the money (the debt) that is being resold and which cannot be done. In fact, if the said subsequent agreements are read, it will be clear that the said agreements are in fact sale and purchase of 'goods' and not of 'money', but there are no 'goods', and is a garb to overcome and avoid and existing law.

1. Great emphasis has been placed on the fact that, in the even an order is passed, that all monies that have been charged under the various financing given by the banks to the customers are stated to be unlawfully done, the banks shall collapse. This may be true but, the question of charging mark up on mark up is not one which is new. I have discussed above, that this was being in light and was had been taken up and discussed at some length from 1962. Presuming that the bankers did not know of such also and presuming that they had acted bonafidein entering into subsequent agreements and presuming that they were under a bonafide belief that mark up on mark up was only the charge on the mark up and could be added to the principal by subsequent agreement. They will however have to consider that the matter had been taken immediately thereafter and the first judgment of this Court that was in place was the case of Bank of Oman Ltd. v. East Trading Company (PLD 1987 Karachi 404). In this case, it was held that the Courts in Pakistan are bound by the Constitution and any law repugnant to the Constitution is void. It was further held that the principle and the provisions of the Objective Resolution by virtue of Article 2-A are now a part of the Constitution and justiceable subject however to limitation imposed by Article 203-A, B(c), 203-D, 203-G and 203-GG of the Constitution whereby special and specific jurisdiction has been conferred on the Federal Shariat Court to declare the law as defined by Article 203-B(C) read with Article 203-G or any provision thereof as repugnant to the Injunctions of Islam laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH) and that the said law and any provision thereof so declared by it. In another case ofHabib Bank Ltd. v. Muhammad Hussain reported as PLD 1987 Karachi 612 whilst dealing with the provision of the Banking Companies (Recoveiy of Loans) Ordinance, 1979 i.e. before the issuance of BDC Circulars Nos. 13 and 32, it was held that, such interest cannot be awarded but, because of binding view in the case reported as Muhammad Bachal Memon v. Government of Sindh (PLD 1987 Karachi, 296) interest was allowed.

2. In the case of Aijaz Haroon v. Inam Durrani (PLD 1989 Karachi 304) the entire position was again discussed agreeing with the position of Dr. Justice Tanzil-ur-Rehman, J. in the above referred cases :

"I am of the view that all laws whether they be constitutional or sub-constitutional must yield to the Sovereignty of Allah as reflected in the Holy Quran and Sunnah and if there be a clear commanding that behalf it is that command alone which has to be given effect to and all other legislation applicable in this Islamic Republic of Pakistan must be construed as subordinated thereto. Sovereignty over the entire universe vesting, as it does, in Almighty Allah, is the cornerstone of the Constitutional edifice of this Republic and the Injunctions of Islam, meaning thereby Injunctions of Quran and Sunnah, as interpreted by a particular sect in Islam in relation to the personal law of that sect and subject to the status and personal laws of non-Muslims, are enforceable, as such."

In this case it was also held that:

"The law of Allah does not brook injustice of any kind and, therefore, whenever a case for payment, for refund or return of money, comes before a Court of law in Pakistan it has to be the endeavour of that Court to order the payment, refund or return, as the case may be, of so much of current legal tender to the person entitled as is equal, in terms of buying power or other intrinsic value, to the amount initially, loaned out contracted to be paid or deposited."

However, Mr. Wajihuddin Ahmed, J. held that as the legal tender had lost value, the amount to be paid would be calculated based on the depreciation of the value of the Rupee as compared with a basket of foreign currencies.

It was further observed :--

"63. This brings me to the crucial question as to how equity is to be done between the parties. For obvious reasons no rule of thumb-is available to determine the extent of erosion, which the principle sum due, and earlier decreed in this case, has suffered till the date of payment, if any, or the decree. Such matter, as a rule involves application of detailed accounting procedures, based on official data on the subject. Simple decree on the basis of the afore quoted statistics may not do. The case, therefore, in principle, calls for a Preliminary Decree, if one can be passed under law. This, however, does not imply that where smaller amounts or periods are involved a given case cannot be disposed of on approximations.

1. The relevant provision regarding Final and Preliminary Decrees is contained in Section 2(2) of the Code of Civil Procedure, 1908, which provision defines such decrees. It is true that thee are specific provisions for Preliminary Decrees in Order XX, Rules 12 to 16 and 18 and in Order XXXIV, Rules 2 to 5 and 7 to 8 CPC, but the same, in my view contain only examples in which Preliminary Decrees may be passed and such Decrees can be passed, wherever the requirements of a case so dictate, under Section 2(2), C.P.C., which is the basic provision in the Code in that behalf, I am fortified in this view by the decision in Dattatrayna Purshotarn Parnekar and others v. Radhabai Balkrishna AIR 1921 Bom, 220, (Raja) Peary Mohan Mookerjee v. Manohar Mookerjee AIR 1924 Cal. 160 and a Travancore Full Bench decision reported in AIR 1953 T.C. 220.

2. I would, therefore, grant in this case to the plaintiff a decree of a Preliminary nature of assessment as to what was the equivalent real worth of the money which was initially borrowed that is to say of the sum of Rs. 5,00,000 as payable on 20.5.1984, the amount and date reflected, as they are, in the Promissory Note in suit. For this purpose and in order to make accurate assessment I would appoint a Commissioner to do the needful and for that purpose the Commissioner would be entitled to seek assistance from the relevant functionaries of the State Bank of Pakistan. Mr A.K.M. Idris, Advocate, of this Court is appointed such Commissioner and his fees, tentatively, shall be Rs. 5.QOO/-, which would be included in the Bill of Costs. The Commission shall be returnable within three months from the date this Preliminary Decree is transmitted to the learned Commissioner."

3. Subsequently, however, a Division Bench of this Court, one of the member of which was Mr. Wajihuddin Ahmed, J. in the case of Habib Bank Ltd. v. M/s Farooq Comport Fertilizer Corporation Ltd. and 4 others (1993 MLD 1571) held that:

"Word 'finance', within the meanings of Section 2 (e) of the Banking Tribunals Ordinance 1984 does not involve any equivalent of interest and by its own force does not carry returns beyond the stipulated period unless emanating in due course of law or expressly covenanted, again within the framework of law. In the relevant agreement, envisaging sale and purchase of goods, no such term (finance) nor perhaps a term to that effect could be improvised, the reason being that such an improvisation may have exposed itself as a degenerative, relegating the transaction to one, carrying interest. Patently, a provision for sale/and repurchase of the goods within period specified (Bai Muajjal), culminating on repurchase, was calculated to advance the concept of trade and to forestall the extension of interest. Such agreements were to be construed in the light of Islamic Fiqh. The enforcement of Shariah Act, 1991, lends support to 4t\ch observations because that legislation declares the Qur'an and.Junna/i as the Supreme Law of the land and, if more than one ipterpretations be possible, enjoins upon all Courts to interpret statute-law in a manner consistent with Islamic principles and jurisprudence. Relevant to the present case trade and commerce

is to be encouraged and Riba, correspondingly, eliminated. Banking Tribunal thus, acted in accordance with law and within the parameters of the agreed stipulations, when it disallowed any mark up beyond the period of the comtract, extending it only for the cushion period of specified days, which covered the period between demand and default as well as period likely to be consumed in the institution and conclusion of proceedings for recovery."

1. The next qiiestion that has been raised is that BCD Circular No. 32 does not strike down BCD Circular No.
2. This was never the case of any other person. However, Mr. Azizur Rehman tried to distinguish the two whereby, he states that Circular 32 relates to charges by the Bank. He states that the said circular speaks of charges and that therefore there is no nexus between BCD Circular No. 13 and BCD Circular 32. He states, that it is stated therein that interest shall not be charged on Bank charges. I do not agree with the proposition of Mr. Azizur Rehman. A careful perusal of the said circular shows that it is in addition and furtherance to BCD Circular No. 13 dated 20th June, 1984. There is a clear stipulation in the preamble to BCD Circular No. 32, that "Please refer to BCD Circular No. 13 dated the 20th June, 1984." The only thing that it changes is in Clause 3 of Circular 13 which gives the date of 1st April, 1985 to be a cut off date for financing to individual whereas such date had been modified to 1st of January, 1985 in para 4 clause 4 of the Circular No. 32. The power has been exercised by the State Bank of Pakistan under the Banking Companies Ordinance, 1962 stating that, from the 1st of Januaryt 1985 interest wherever is charged by a Banking Company/Development Financial Institutions in any of the item of the Bank charge would be replaced by non-interest mode considering to be proper. It is this, 'bank charges' that Mr. Azizur Rehman contends is to be 'other charges'. The entire clause has to be read for the purposes of understanding the provision. The bank charges has been used in conjunction with replacement of an interest free mode, here the bank charge would imply, all amounts charged to the account which also included interest. It is thus, that the subsequent portion, of the said notification says, that overdue or penal interest or mark up on mark up shall not. be charged by a banking company as from that date instead the bank shall take legal steps to recovery the finance. There are two implications of this notification, first being that of mark up on mark up and interest in any form charged by a banking company shall cease from the 1st January 1985, the cut off date. Secondly, that no future mark up on mark up would be charged. The effect of that, where a default has been made, the bank was required to take legal steps. A co-relation has been developed between not charging mark up and proceeding to recover money instead. Therefore, there was no question of renewal of a debt by addition of mark up. It is important, therefore, to note that the State Bank of Pakistan has taken a categorical view in this regard and which is in fact a correct issue, that the banks in financing, and where debt is created, cannot take any additional amount on such debt. In taking additional amount it shall be deemed to be Ribawhich is prohibited. It is

thus, that the State Bank of Pakistan instructed to the banks to institute proceeding for recovery. If the banks choose to give additional time then, it will do so without charging any amounts. The law when promulgated was very clear. Mr. Azizur Rehman says if this Court were to take a view that all mark upon on mark-up charged from the first day has been unlawfully done, it shall be detrimental to the banks. No doubt, such difficulty may arise, but then once the banks are required to act in accordance with law, specially when the change of law is so great that the entire system has been modified and that, numerous discussions had been taken place which included banki to arrive at the notification issued it will not lie in their mouth to say that they were unaware of the correct prospect of the law. Even if they were not aware from 1987 onwards the Court had otherwise held that such transactions to be unlawful. The banks should have been taken cognizance of the judgments. Mr. Azizur Rehman has referred to the SBP Circular No. BID (Gen.) 2470/601-4-90 and said that BID Circular No. 3 dated 20.2.1989 regarding Prudential Regulations for loan classification etc. was taken into account and that in connection with treatment that was to be given to rescheduled loans and capitalization of mark up, the State Bank had given guidelines. Instead in the guidelines the mark up on mark up, according to him were required to be capitalized and such is provided according to him in Section 6.2.4 of the rescheduling and restructuring debts. Mr. Azizur Rehman has however chosen not to read the first paragraph of the said guidelines. The entire regulation as to be read to understand the import of the regulation. It reads as under:

"6.1 Introduction

The bank's borrowers may, at times, face financial distress due to a number of reasons. This, in turn, may lead to a situation where they are unable to service their debt obligations as they fall due. In instances of this manner, the Bank may, at its sole discretion, decide to offer financial reprieve to such customers, with the sole aim of safeguarding its (the Bank's) own best interests.

After evaluation of a available options, it may be decided to grant reprieve in the form of rescheduling or restructuring of the financial obligations of customers. One of the prime considerations should be that:

'The discounted expected monetary value (EMV is the amount of cash flow times its estimated probability) of inflows accruing to the Bank, in the event that financial reprieve is granted, significantly exceeds the net (i.e. net of legal and other expenses) present value of cash flow arising from liquidation of available securities.'

The reprieve (or accommodation) referred to, herein above, may involve modification of the term of the loan by :

Extending/amending the repayment schedule. Reducing the rate of mark-up

Reduction the amount of accrued mark up and/or principal Extending further credit

And/or settlement of part of debt outstanding by foreclosing on or transferring certain assets to the Bank.

Normally such accommodation/reprieve would be consisted (by the Bank), if the borrower and/or sponsors offer additional security, thereby strengthening the Bank's position."

1. It will be seen from these guidelines that the banks were allowed to reschedule or restructure of financial obligations and the method was given i.e. extending or amending the repayment schedule, reducing the rate of mark up reducing the amount of agree mark up and/or principal and extending the correct facility. Nowhere in the said circular has it been stated that an additional mark up could be charged on a debt for extending the time for payment. It is the mark up that has already been charged for the purposes of arriving at a marked up price which was allowed to be capitalized. Capitalization only brings it in the line of the accounting system. Such was advised to the banks only for their accounting purposes and nothing else. This circular has been issued by the Central Directorate and relates only for the purposes of classification of account else, if it is not allowed to be capitalized a provision will be required to be made by the bank, that may cause further loss to the banks. In the same guidelines, the restructured loan has been defined as under;

"2.1 A "restructured" loan is one whose terms and conditions of loan have been modified, principally because of a deterioration in the borrower's financial condition, to provide for a reduction in interest rate or principal, or a capitalization of interest accrued.

2.2 A 'rescheduled" loan in which effective. interest rate terms remain unchanged from original terms, but principal repayment terms have been extended because of project delays, is not considered a "restructured' loan, as loan as interest continues to be serviced on time."

1. A careful analysis of this will also show that it provides a reduction in rate or capitalization in the interest accrued. Accrual of interest is in relation to the agreement entered into and nothing can be read beyond such position. A perusal of clause 2.3 will show that a troubled debt restructure has also been defined and various situations have been catered for. In this also, there is no increase in the sums. Reliance therefore by Mr. for. In'this also, there is no increase in the sums. Reliance there by Mr. Azizur Rehman on this aspect will be a farce. Had the State Bank not intended and the Government not wanting to proceed under the Islamic

System of Banking, the choice was open. If they had opted to proceed, they cannot be allowed to beat about the bush. Reliance therefore on the said regulation of the State Bank is not only incorrect but seeking an interpretation which otherwise is not available. Mr. Azizur Rehman also refers to BPRD Circular No. 9 dated 27th April. 2000 namely the Prudential Regulations. He has referred to clause 3 of the same stating that the rescheduling/restructing of non-performing loans shall not change the status of classification of a loan/advance etc. unless the terms and conditions of rescheduling/restructuring are fully met for a period of atleast one year (excluding grace period, if any) from the date of such rescheduling or restructuring. This is only in respect of placing a defaulter on the list of CIB and is nothing to do with the increase or decrease modes. Mr, Aziz Rehman has placed reliance on the case of Hardware Manufacturing Corporation (Pvt) Ltd. v. United Bank Ltd. in the Special High Court Appeal No. 187/1998 in which it has been held that:

"By execution of the finance agreement dated 30.6.1994 original appellant's liability on the basis of original contract/agreement was extinguished and the same was substituted by another finance agreement/contract through the valid documents wherein the appellants acknowledged the stated sum therefore under the new finance agreement the appellants would be liable under the law of contract. Reference may be made to Abdul Qayoom v. Ziaul Haq and another (PLD 1962 (W.P.) Karachi 334) and Gouri Dutt Ganesh Lall Firm v. Madho Prassd and others (AIR 1943 P.O. 147)."

1. This position has been discussed by me above, in which I had said that this judgment is distinguishable from the presence case. The facts of the case no doubt relate to a 'roll over' of the facility but there is no discussion as to whether the said agreements were in respect of sale and purchase of commodity and if it were whether such subsequent agreements carried a clause of such extension. Mr. Azizur Rehman referred to the discussion in the said judgment stating that where the arguments were that roll over was in practice on interest base banking and prohibited by BCD Circular 13 dated 20.6.1984 issued by the State Bank of Pakistan, the Court had held that the parties having agreed or entered into an agreement, the terms of the subsequent agreement will be applicable notwithstanding the fact that it was a roll over and roll over in fact, is an accepted custom.

2. In another unreported case which has been cited by him is in the Special High Court Appeals Nos. 186 and 187/1998, Mr. Azizur Rehman stated that the same position was taken up and the Division Bench of this Court and had decided the matter that the old method pf roll over was in practice and therefore allowed. In am otherwise bound by the judgment of the Federal Shariat Court, as also the Appellate Bench of the Supreme Court notwithstanding the distinction that I have drawn, and therefore hold otherwise. In this I may refer to a judgment of a Division Bench of the

Lahore High Court being United Bank Ltd. v. Ch. Ghulam Hussain (1998 CLC 816) where it has heen held that:

"Significantly, the statement of account filed by the appellant does not show any disbursement, whatsoever, under these two agreements which have to be treated a void, being without consideration. The supporting material of these agreements i.e., D.P.C. Notes etc. (pages 483, 485, 487 and 489) also suffer from the same fatal defect and cannot be looked into fcr holding that Respondents Nos. 1 and 2 had incurred and financial liability there under. We hold accordingly."

1. Mr. Azizur Rehman has referred to a judgment in the case of United Bank Ltd. v. Central Cotton Mills Ltd. (2001 MLD 78) where according to him, the said judgment allowed the interest. Mr. Azizur Rehman probably has not understood the import of the said judgment. The import of the said judgment is that all transactions that were entered into prior to the first day of January, 1985 were required to be coverted into Islamic mode of financing as such, the same was allowed. Mr. Azizur Rehman has referred to the discussion on the subject where Mr. Mushtaq Ahmed Memon, J. (as he then was) had stated that the renewal of loans subsequently also cannot attract the applicability of the above referred circular issued by the State Bank of Pakistan since renewal merely amounts to extension and the continuation in force of the earlier agreement. No doubt such could be correct. This does not say 'increase in the quantum of loan', but is an extension in the time for payment of the initial agreement. He also places reliance on this judgment to say that BCD Circular No. 32 does not strike done BCD Circular No. 13. Mr. Azizur Rehman should have read the last portion of that notification where Mr. Musthaq Ahmed Memon, J. (as he then was) has held that "in the circumstances, the contention to the effect that the fixed loan was granted on mark up basis does not inspire confidence." Likewise the assertion that the interest based facility could not be continued or renewed after BCD Circular No. 13, is equally without force. True, that the interest based facility could be i-enewed and such is provided in Circular 13 but this judgment does not say that an amount could be added to the said debt that is, due and payable. The contention therefore also does not have any force. In fact the same learned Judge in an Order passed in Suit No. 1659 of 1999 observed :

"Having considered the submissions of the learned counsel, I cannot resist expressing doubt about the validity of the fresh agreement between the parties as is asserted by the learned counsel for defendant on the basis of correspondence. Even if the parties had settled fresh terms in novation of agreement dated 23.5.1996, the same appear, tentatively speaking, to be violative of the Quranic Injunctions restraining a creditor from taking advantage of a debtor to make repayment within the agreed time."

1. Mr. Azizur Rehman has referred to the novation of the contract. The contract stand novated according to him after a new contract has been entered into. There is no cavil to this proposition, but in the present case this is not what is being sought. What actually has been sought is that whether such an agreement could at 'all be entered into and if so. whether any amount could be added. In my view it is only the extension by addition of mark up by the bank to arrive at a restructured documents. Mr. Azizur Rehman has relied on the judgment of Bank Indosuez v. Banking Tribunal for Sindh and Baluchistan and other reported in 1994 CLC 2272 and states that when there is a novated contract, that contract has to be looked into as a fresh contract to determined whether the same was in conformity with the definition a given under Section 2(c) of the Banking Tribunal Ordinance, 1984. He refers to the following passage of the said judgment:

"... A fresh agreement was entered into by a document whereby the

defendant acknowledged that a sum of Rs. 10,000 was due from him to the said firm which formed the consideration of the agreement entered into between him and the plaintiff. It was held by a Division Bench of this Court that under the new agreement the liability of the defendant under the original contract was completely extinguished and there was .a fresh contract substituting the old contract by introducing new business and it was in the nature of novation of a contract within the meaning of Section 62 of the Contract Act. In S. Sibtain Fazli v. Star Film Distributors (PLD 1964 SC 337) the above principle was re-affirmed by Hamoodur Rehman, J. In the following words :--

"It is an essential element of novation, when new contracting parties are substituted, that the rights and obligations of original contractors shall be extinguished and the right and the liabilities of new contracting parties accepted in its place."

He states that the old contract by introducing the new agreement was in the nature of novation of contract within the meaning of Section 62 of the Contract Act. There is no cavil to this well established principle but the question that has to be looked into, is whether any act has been done by the bank whereby, an existing law has been avoided. Where the rights of parties have altered, and a valid contract alters rights of a previous agreement, the arguments would have been valid. This is not the case here. Subsequent agreements do not change the previous agreements. There is no mention of reference of the previous agreements. The only document shown is a Sanction Advice, which is an internal document of the bank. The document could be seen only to what was approved by the bank. The agreement overrides all arrangements. The sanction advice, in the presence of the agreement, viz-a-viz the customer cannot be construed to be adverse disadvantage to the customer. The agreement is the document signed by both, the contents of which have to be seen. The question whether where a law categorically disallows mark up on mark up, can an agreement cause it

to be charged, or could any act be done by the parties to- the agreement by which mark up is added, or mark up on mark up is included to a marked up price. If not, could this agreement be a valid contract. Mr. Azizur Rehman has referred to the Prudential Regulation in Regulation No. XVI prohibits window dressing which reads as under :

"Regulation-XVI Window Dressing

1. All banks are directed to refrain from adopting any measures or practices wherely they would either artificially or temporarily show an ostensibly improved position of banks accounts as given in their Balance Sheets and Profit and Loss Accounts specially in relation to its deposits and profit. Particular care sttall be taken in showing inter-branch and inter bank accounts accurately and strictly according to their true nature."

2. A careful will show that the banks have been restrained from adopting any measures or practice whereby they, either artificially or temporarily show an ostensibly improved position of the bank account. The addition of mark up is added towards the assets of the bank which gives an ostensible improved position of the bank accounts which cannot be allowed. Otherwise also, it is established principle of law that what cannot be done directly cannot be done indirectly. It is also a very established principle of law that any contract which is of such a nature that, if permitted it would defeat the provisions of any law, or which is contrary to public policy is a void /i!agreement.

3. It will thus have to be seen as to what provisions of law would be defeated if such an agreement is entered into. The law in the notification by way of circulars, being BCD Circulars Nos. 13 and 32 issued in 1984. The Circulars have been discussed above. Suffice to mention that the agreement which seeks to add and cause an additional amount to be paid in respect of some previous agreement is nothing but a manner to avoid the restrictions imposed by BCD Circulars Nos. 13 and 32. It is clear that no markup on the marked price could be charged on the said agreement entered into initially. If it could be, the banks could have utilized the provisions of Section 79 of the Negotiable Instruments Act. The same has since 1985 never been invoked. The new documents approved and utilized by the bank, utilize the D.P. Note where no rate of markup is mentioned. It is only the repurchase price that is stated. The new subsequent agreement is nothing but to avoid the restriction imposed by law. The other question whiph needs to be elaborated is the validity of subsequent contracts that have been entitled into where the actual sale has not been made. I shall discuss this subsequently herein.

4. The other question is as to what is the 'public policy', and such will have to be looked into. The Constitution of the Islamic Republic of Pakistan is the basic document on the touched stone of which all laws have

to be looked into. The preamble of the Constitution WHEREUNDER "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed." Article 2 states that Islam shall be State religion of the Pakistan. Article 2-A incorporates Objective Resolution as reproduced in the annex to the Constitution. Article 38 also clearly stipulates that the State shall eliminate Riba a early as possible and Article 227 clearly, state that the existing laws have to bring in conformity with the Injunction of Islam as laid down in the Quran and the Sunnah. In view of the provisions of the Constitution in fact, even prior to this, right from the days when this countiy achieved independence that it was clear that all laws were liable to be promulgated which were and ought to have been in accordance with the Holy Quran and the Sunnah.I have already dilated at length on this issue and shown the quantum of work that has been carried out for such purposes. The policy has always been that, all laws, practices and procedures would be in accordance with what is provided in the Quran and Sunnah. In fact, BCD Circular No. 13 the preamble also states that the banking system was to shift over to the Islamic modes of financing, such is the public policy, after the law has been brought in conformity with the Holy Quran and Sunnah, way and methods' are being employed by the bank to continue the previous usurious Banking Practice, despite the fact that the law-has been Islamised in accordance with the Constitution of the Islamic Republic of Pakistan. Such a practice that is sought to be developed by the banks is a fraud on the Islamic provisions. No one can be allowed to play a fraud on the existing law by trying to avert the existence of such law that prescribes that mark up on mark up cannot be charged. The act of entering into a future transaction admittedly is in respect of renewal of financing and does not contain any aspect of actual disbursement or payment. Such contracts are contracts that are against the public policy.

1. When one is talking of novation of contract it will be seen as to 'what is the aim for novating the same. The position will have to be seen in its true, proper and correct perspective. The agreement for financing as is termed by the banks is nothing but an agreement, of sale and purchase of tangible properties, goods or commodities. Once the goods are purchased by the bank, the bank makes a payment for the purchase of the goods which according to the agreement is termed as the 'sale price'. The goods are thereafter sold to the customer and such sale is the resale/repurchase on a marked-up price. There are, therefore, two distinct transactions under the said single agreement. The first being the purchase by the bank for consideration. It is at this juncture that the 'sale price' is disbursed to the seller namely, the customer. This is the amount that the bank say is the 'finance' or the amount to be paid to the customer. The second is in respect of resale by the bank to the customer but such is the actual Murabaha transaction/Bai Muajjal Thus before entering into this transaction, the bank has to be the owner of the goods/property being sold to the customer. It is thus ti,he first transaction that is entered into. After sale to the Bank, and

the bank paying the sale price, being the 'consideration' of purchase by them of a defined good/property/commodity, they can by the 'Bai Muajjal, transfer that title to the customer, that they have acquired by purchase of the said property. It is a well established principle of law that no one can transfer a title, better that what he has. Thus the sale is concluded between the bank and the customer upon such purchase price as may be agreed, the repurchase price. It is this price, which is liable to be paid by the customer on deferred payment. After the second transaction, i.e. the sale by the bank to the customer is concluded, the contract of sale and purchase is finalized, the bank becomes an unpaid seller whereby the purchase is liable to pay the repurchase price. This the purchaser (customer) is indebted to the bank for the repurchase price payable within the period prescribed. Thus repurchase price becomes the debt. Thus the only thing required under the said agreement is recovery of debt, the goods having been sold and consumed by the customer. Such is the loan or debt. Therefore, a clear distinction between the agreement entered into and the debt paid or payable therefor is to be looked into. Once the debt has been determined the contractual obligation under the agreement is concluded and it is the debt now that becomes payable. The amount will be the liability of the customer and such cannot be increased by addition of any mark up. A perusal of Section 23 of the Contract Act categorically states that consideration or object gf an agreement is lawful unless it is of such a nature that if permitted, would defeat to provision of any law. A subsequent agreement whereby, there is a settlement of previous debt or is renewal thereof shall in fact amount to defeating the provision of the specific law available. Such will not be novation but an independent agreement contemplating an actual sale and purchase. Such an agreement entered into only for renewing the previous debt shall be a void agreement. The position in law is absolutely clear. I had also referred to the clear instructions of the State Bank in Regulation XVI above. Such renewal will only be Window Dressing and that all profits shown will be nothing but added mark up. Mark up cannot be allowed to be added on an 'existing debt', as there can be no agreement between the parties in respect of that 'specific debt' except that there could be enlargement of time, and that too without increase in the debt payable.

1. The subsequent agreement technically would have no nexus which the previous agreement in which a debt had been created. It is a fresh agreement. An agreement by which fresh commodities, goods or articles are to be sold or purchased, therefore, when goods are sold under the fresh contract there shall be consideration by actual and physical payment in the statement of account and not merely adjustment stating that an amount is due and therefore, the bankers can exercise lien. A lien can only be exercised on a credit in the account of the bank to set off a liability and not by additional credit to set off to the previous debt. A debit will not be a credit of the customer and where it is not a credit of the customer, Section 171 of the Contract Act shall not apply. Section 171 clearly stipulates that a banker in the absence of a contract shall have right to retain a security for such balance

K

goods (bailed to them). A loan or finance or debt given to a customer shall not be an amount or goods bailed to the banking company as such, no right can be claimed.

57, The subsequent agreement does not have any stipulation that there could be a set off by a subsequent finance. Even if it were there, the question would be that such an amount could be where a mark up has been added thereon for the purposes of adjustment of marked-up price. I am of the considered view that such cannot be done. The argument therefore that the subsequent agreement is a novation and that once a contract is novated the previous contract cannot be looked into is not correct in the present scenario.

1. If it is presumed for the sake of argument that the last agreement that had been entered into is the agreement on the basis of which the amount due is payable by the defendants/customers then we will have to look into the contract itself. Admittedly, the contract is one of sale and purchase of commodities. In the circumstances it shall be governed by the Sales of Goods Act, 1930. Sale is defined in Section 4 which reads as under:

"4. Sale and agreement of sell.--(l) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.

(2) A contract of sale may be absolute or conditional.

(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future item or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

>.

(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred."

It will be seen that a distinction is created in 'Sale' and 'Agreement of Sale'. A contract of sale is, where the seller transfers or agrees to transfer the property in the goods for a price and such could be absolute or conditional. Sub-Section (4) of Section 4 of the Sales of Goods Act above states, that the 'Agreement of Sale' becomes a 'Sale' when the time elapses or conditions are fulfilled subject to which the property in the goods has to be transferred. It clearly implies that there has to be conclusion as to the transfer of property in the goods which is the principal element of sale. This Act also came under scrutiny by the Shariat Appellate Bench of the Supreme Court in the case of Islamic Republic of Pakistan v. Public At Large (supra) and in the judgment in the case of Federation of Pakistan v. Awamunnas (1988 SCMR 2041) that, a contract of 'Sale' or Tjarah' of a commodity shall only be valid where the 'commodity' is in existence and that there has to be a transfer of such

property. Whilst dealing with the concept of 'agreement of sale' it was stated that where the goods did not exist, the Islamic Injunctions do not recognize such agreement. Sale cannot take place, but an Agreement of Sale can be entered into and this agreement is not a complete 'Sale' of 'Goods'. The sale will only accrue when the commodity is transferred to the purchaser or consideration thereof has been paid. From the principle laid down we see that the agreement which is a subsequent one does not have the ingredients of a sale and at best be treated an 'Agreement to Sell' such agreement can possibly be specifically enforced whereby, the purchaser may seek direction against the seller upon payment of actual consideration to sell his property, but if such is not done the purchase price/repurchase price mentioned in the said agreement will not, be taken to be a debt payable by the purchaser. If money has actually been transferred or handed over to him there are only two possibilities, one is the transfer of the property for which money had been given, or the return of the money that had been given to him. The customer will therefore only be liable to the extent that was actually paid to him. If there was damage caused due to the refusal to sell the commodity if there was one, then such shall be required to be provide. The judgment of the Supreme Court was delivered in 1988 has also been reaffirmed in the judgment of Dr. M. Aslam Khaki. I am also of the same view and either where the resultant would be that it is the principal amount that was actually paid would become due but where there is a sale, the ale price has been transmitted and resale is made, the resale price will be payable by the defendants to the plaintiff. It is well settled principle of law that parties cannot contract out of the provisions of the Act. See in the case of Wanian Shriniwas Kini v. Rat Hal Bhagwandas and Co. (AIR 1959 SC 689) it has been held that an agreement to waive an illegality is void on the ground of public police. Similar views have been taken in the case ofAnayatAli Shah v. Anwar Hussain (1995 MLD 1714).

1. We now come to another question, i.e. whether an agreement without consideration is a valid agreement. Section 25 of Contract Act reads as under :--

"25. An agreement made without consideration is void unless —

(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless ;

(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless;

(3) It is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of

which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these case such an agreement is a contract."

The subsequent agreements of finance are not covered by the exception to the general principle, that an agreement without consideration is void. Section 24 of the Contract Act reads as under:

"24. If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void."

It will be seen that if any part of a single consideration is unlawful the agreement is void.

1. I have discussed the unlawful act. Thus the agreements made subsequently with an aim to avoid and defeat the provisions of the law of not charging markup on markup is void.

2. The question of disbursement has also been dealt with above. It was argued that there is no need of actual disbursement and that debt could be deemed to be disbursement. Reliance is placed on the Judgment of Moudood Ahmed Farooqui v. Ameen Fabrics (PLD 1983 Karachi 176), in which it has been held that 'debt' means an obligation and liability to pay or return something owed by one person to another. There is no cavil to this very settled principle that a debt is liability of the person and the reliance on this judgment is not incorrect. The position is what has been stated is that such is liable to be paid to the creditor as such a fresh loan which is given will be that of the customer and from which he clears a previous debt. One is amazed at this argument. This is nothing but a fraud on the statute. Once it is a debt in respect of one agreement it will be a debt in respect of the other agreement also and a liability, therefore, saying that from a finance obtained, it being a debt, a previous debt can be set off has no place. In the said judgment the question was in respect of the dividend declared and not paid to the shareholder, dividend declared becomes the property of the debtor. Debt does not become the property of the shareholder. In the circumstances the case is distinguishable from the present case.

3. The last point that was argued by Mr. Azizur Rehnian was that the judgment in the case of Dr. M. Aslam Khaki v. Muhammad Hashimreported in PLD 2000 SC 25 is operative from 30.6.2001 and the present laws will continue to be valid till that date. There can be no cavil to the proposition that all laws that are in conflict with the Islamic provisions shall remain valid only upto 30.6.2001. BCD Circulars Nos. 13 & 32 have not been declared to be in conflict with the Islamic provisions. What has been said by the said judgment of the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan is that all laws or part thereof that have been declared to be against the Injunctions of Islam shall be changed and modified by 30.6.2001 whereafter they sh^ll become invalid and not be acted upon.

4. Further to the question that has now been raised is that the judgment of Dr. M. Aslam Khaki shall apply prospectively and not retrospectively. High Court is bound by the decision of the Superior Courts under Article 189 of the Constitution of the Islamic Republic of Pakistan which reads as under :

"189. Decision of Supreme Court binding on other Courts. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principles of law, be binding on all other Courts in Pakistan."

Thus, it is clear that the decision of the Superior Courts namely the Supreme Court is binding on the High Court. In fact, the order of the Shariat Court is also, under Article 203-GG subject to Article 203-D and 203-F binding. The judgment by the Federal Shariat Court was announced in 1992, however, such remained stayed during the period of appeal which was finally decided in 2000. The argument is that as the appeal had remained stayed therefore, it is the judgment by the Supreme Court from which date, it shall be acted upon. What the learned counsel have not looked into is that there are two specific points in the said judgment, be it before the Federal Shariat Court or the Honourable Supreme Court. One is that reliance to the specific laws that were being discussed and admittedly, the laws of banks except Section 79 of the Negotiable Instruments Act, Section 25 of the Banking Companies Ordinance, Rule 9(2) & (3) of the Banking Companies Rules, Section 22(1) of the State Bank Act, 1956 and Section 8(2)(a) & (b) of the Banking Companies (Recovery of Loans) Ordinance, 1979 were before the Court. None of these except Banking Companies (Recovery of Loans) Ordinance, 1979 related to the charge of mark up and mark up on mark up. In that law namely, the Ordinance, 1979 there was only the charge of 'interest' and was prior in date when the BCD Circulars Nos. 13 and 32 came into existence. In fact, BCD Circulars Nos. 13 and 32 changed the entire law, its perspective and modes and methods of banking converted them into trade related modes. Loans were only treated to be given without any mark up and increase except for service charges. BCD Circular No. 13 categorically states that no mark up on mark up shall be charged and it is well settled principle that nothing can be done indirectly what cannot be done directly. In this regard, Mr. Azizur Rehman had cited two latest judgments that this indirect process namely, entering into future mark up in the case of Mst. Aisan v. Manager, Agricultural Development Bank of Pakistan, Chunian (2001 CLC 57) and Muhammad Ramzan v. Citibank N.A (2001 CLC 158). The first one being the judgment pf the learned Single Judge of the Lahore High Court and the, other being a judgment of a Division Bench "one of which Judge was the same as who delivered the first judgment. Both the aforesaid judgments are in fact distinguishable in that, they are dealing with Section 15 of the Banking Companies (Recoveiy of Loans, Advances, Credits and Finances) Aet, 1997 which provides for mark up on decree from the date of the institution of the

debt till payment. What their lordships had observed is that the judgment of the Supreme Court in the case of Dr. M. Aslam Khaki will for that purpose act retrospectively. In fact a history of the introduction of the provisions of mark up during the period it remained in the Court it seems would be, that such was in Court and the delay could not be ascribed to the creditor who could not be penalized because of delay of the Court. Such had not been considered by the Council of Islamic Ideology as such, it was not provided in BCD Circulars Nos. 13 & 32 these provisions not being there, their lordships were absolutely correct in holding that the provisions of Section 15 in the Act, 1997 will only be applicable from the date of the judgment and not retrospectively. The difference and distinct feature in the application of the judgment of the Supreme Court to the present case is that, the said tow Circulars having not been declared to be void or ultra vires they, therefore, having been held to be intra vires, will remain in force from the date they were promulgated. According to the doctrine of stare descisis the precedent in the case of Dr. M. Alsam Khaki gives the authority of established law. The cases earlier decided by the High Court and upon application of the same doctrine would result into the effect that it would be presumed that the Courts gave decisions with all possible care and consideration and had not acted per incuriam. What is binding on the other Courts under the present Article 189 is the ratio of the decision of the Supreme Court and not any finding or conflict of opinion of the Court or any question which was not required to be decided in a particular case. In the present case also a similar situation has occurred whereby the decision of the Court is in respect of certain laws that have been specified and will not effect the law that are in existence but the ratio of the decisions which is based on the Quaran and Sunnah and its application will remain binding. For the purposes of looking into as to what is the scope of the jurisdiction of the Federal Shariat Court we need to read sub-Article (a) of Article 203-D which reads as under :--

"203-D. The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or Provincial Government, examine and decide the question whether or not any law or provisions of law is repugnant to the Injunctions of Islam as laid down by the holy Quran and Sunnah of the Holy Prophet (PBUH) (hereinafter referred to as the 'Injunctions of Islam')."

(underlining is mine)

Thus, the Federal Shariat Court will examine only such question of law or provisions of law that are repugnant to the Injunctions of Islam. Reasoning or ratio for arriving at the same will however, remain applicable. The banking system had been converted into Islamic form in 1985. It was not held to be against the Injunctions of Islam. This Court has to only see that whether the manner in which an agreement had been entered into or otherwise is within four corners of laws laid down by-the BCD Circulars Nos. 13 & 32. This Court of the purposes of looking into the law which is valid

and existing shall remain bound by the ratio given in the case of Dr. M. Aslam Khaki. It shall not be that such case is being acted upon retrospectively. In the case of Sakhi Muhammad v. Capital Development Authority (PLD 1991 SC 777) it was held that "decision would not have the effect of altering the law from the date of its announcement commencement so as to render void all decisions made by the subordinate Courts or authorities made in the light of the earlier interpretation." The position is that application of interpretation continues to be on the basis of earlier judgments which were announced as early as 1987. Dr. M. Aslam Khaki's case (supra) confirms the earlier view.

1. The position is that BCD Circulars Nos. 13 & 32 are the consequences of the reports of the Council of Islamic Ideology provided for the furtherance of Islamic financing where mark up on mark up has been stated to be un-Islamic and usurious. Riba was disallowed and that because of such disallowance it was in the line with the arguments put forward for the purposes of Islamic financing. In fact, the judgment of the FSC as also the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan have not in any manner held that the law as was enacted is against the injunction of Islam. What has been said is that the bankers have not acted in accordance with law in force. It has also been said that the manner in which Murabaha/Bai Muqjjal transaction though lawful transaction have been misapplied by the banks. Misapplication of the law was by the banks. Even if it is held that the said judgment shall be applicable from the date provided therein, the ratio of the case for the purposes of determined and deciding cases shall be applicable on a valid and operative law from the date of the enactment. The definition shall remain applicable from the date when the law came into force. It is not a case where any law has been declared to be ultra vires. I am aware of the well settled principle that where a law has been declared to be ultra vires, the declaration shall act prospectively and not retrospectively. This is a case where the law has been held to be valid, proper and intra vires. In such a situation where a law has been declared to be intra vires, it is only the interpretation of the specified law that has to be taken into account. It cannot be said therefore that this judgment will act prospectively. This judgment only acts to clarify an existing valid law. Even otherwise, this appeal is from the judgment in the case of Mehmoodur Rehman Faisal (supra). This case decided alongwith many other cases the point in issue. However, in the Supreme Court the leading case came to be the ease of Dr. M. Aslam Khaki as such there the case is known by that name. The banks should have anticipated actions and should have protected themselves after the earlier judgment. Appeals may been filed, but any decision could have been forthcoming. The banks were aware of the factum from 1987 onwards when markup on markup was declared against the injunction of Islam by the High Court. Taking refuge therefore, behind the judgment that it shall be applicable from June, 2001 is not correct. No one can be allowed to make a mockery of a legal process, the Islamisation and the

provisions of the Islamic modes of transactions/financing. It seems that the law introduced in 1985 was taken by the banks as only a change in the name and as such, continued as if they were charging interest. The banks had thus made a mockery of the law by avoiding and creating legal fictions. The concept never changed. Even today during the course of arguments the question of lending on mark up basis is being spoken. From this it is clear that even today the law is being utilized only as a garb or screen to protect 'themselves. Laws having been Islamised one needs to understand that they have to be interpreted and acted upon in the manner as they are. They have to be acted upon in the manner they are required to be acted upon and cannot be extended or transformed. In fact it has been observed that "the Superior Courts of Pakistan have in large number of cases applied the Islamic teachings and philosophy, when the statute law is silent about a situation, the field is unoccupied, so to say, a statutory void is to be filled, or f<i the Court has discretion to follow one of the several course, one of which is more in accord with Muslim jurisprudence. Such was held by the Hon'ble Supreme Court has held in the case of Muhammad Bashir versus The State (PLD 1982 SC 139), that such a void has to be filled up by Islamic Common Practice and provisions. The banks chose otherwise. In the case of Fazal Ghafoor v. Chairman Tribunal Land Disputes (1993 SCMR 1073), it has been held "when there is a vacuum on question of law left by statutory silence, the prevailing mode having full constitutional support, would be that of Islamic Common Law".

1. Mr. Ejaz Ahmed has also argued in detail, most of which have been dealt with and covered by the discussion above However, the important aspect that needs to be seen is with regard to the argument that has been advanced by Mr. Ejaz Ahmed about the concept of mark up on mark and the renewal. Mr. Ejaz states that the marked up price is an agreed consideration and that if such price is not paid the remedy available to the bank to seek recovery. This is a correct proposition. He further says that mark up on marked up amounts to recovering the opportunity cost of money which is not permissible under the Islamic mode of financing. This is also correct. On the basis of this, subsequently, Mr. Ejaz Ahmed dealt with the question of renewal and distinguished the renewal by way of adjustment and continuing facility on a revolving basis. As far as the adjustment is concerned, he states that the amount of sale price is credited to the customer's account and is set off against the existing liability of the customers on account of the facility originally granted and therefore accounts operates on a revolving basis. As far as continuing facility, he states that the adjustment as stated above, does not take place and the account continues to operate on a revolving basis and in fact, he states that this is an established practice in the banking industry and the customer are aware of this mechanism. He states that such a mechanism is beneficial for customers and

it allows to customers to withdraw the amount within the amount of facility at any time and repay the sale as and when the excess money is available to him during the currency of the facility. He states therefore customer benefits from the fact that the mark up is charged only on the outstanding. He states that if the mark up facility is strictly construed to mean that the bank is only obliged to disburse once, then according-to him the finance becomes more expensive for the customers as, once the full amount of finance facility is availed the customer will be charged mark up on the full amount. The excess liquidity of the customer will remain lying in the current account with no profit. I do not agree with this proposition. This proposition presupposes dealing in money and mark up the money. The concept that has been evolved is that the purchase is made by the bank and is the sale price which is actually disbursed, the repayment is the repurchase price and it is the price that is fixed. There is no concept of addition of further sums by elapse of time. The consideration for the actual sale has to be made by the bank to the customers and has to be done so in its entirety. The customers will be in his rights to withdraw the entire amount or to leave any sum in his account. He will be in his right to transfer this amount to saving account or otherwise. Money being the consideration for sale would therefore be required to be transferred to the customer. The second portion of the agreement as discused above, is the actual finance agreement which is fact is a Bai, Muqjjal. 'Bai' meaning sale and 'Muajjal'meaning upon deferred payment. This Bai Muajjal or Murabahatransaction is that, the bank having purchased as resold this commodity at a higher price to the customer. At this point, the customer is not required to pay the sale consideration but what is required is to do so within the specified period at an agreed repurchase price. The consideration for the sale of the commodity by the bank to the seller cannot be adjusted against this repurchase price as, it is Bai Muajjal the payment is deferred. The consideration for the resale by the bank to the customer is a contract between the two and such becomes a debt. This debt is therefore only liable to be paid by the customer. There is therefore no question of a revolving facility. It is the amount that is available with the customer being the sale consideration of the sale made to the bank. This amount can be utilized at the wish and whims of the customer. I am therefore not convinced that the transactions as stated by Mr. Ejaz are in true spirit the financing as provided under BCD Circulars Nos. 13 and 32.

1. The next question therefore is whether the purchase price can be increased and which has been answered by Mr. Ejaz saying that it depends on the meaning ascribed to the word 'increase' and accordingly the increase in the purchase price has been classified as (a) where the increase is not permissible; (b) where increase has been permissible. In the first

classification he states that mark up on overdue installement where the finance facility is payable in installement and clue dates of installements are specified in the agreement and where mark up on overdue amounts in the cases of lump sum payment agreements no increase can be allowed. He states that however increase would be permissible in specific transactions namely the mark up is to be booked by the banks on accrual basis or where there is a fresh sanction or the renewal of the working capital or where there is a restructuring or rescheduling of liability. I will also not subscribe to this view. What cannot be done directly cannot be done indirectly. It is also a well settled principle that if a certain thing has to be done in a certain manner it has to be done in that manner and no other. I have already discussed above, that markup in itself is only restricted for the purposes of arriving at the repurchase price and one such is arrived at the amount of repurchase price becomes the debt, therefore, there could be no question of separation of mark up. The mark up has to be capitalized which is also provided in the Prudential Regulation. Unless such mark is capitalized the repurchase price cannot be determined. Thus, if the mark is capitalized and added to the principal amount (principal meaning the sale price) and having arrived at the repurchase price any increase by way of renewal, capitalization, booking on accrual basis or by any means will be nothing but addition of mark up on markup.

1. In a Hadis narrated by Abdullah Ibn Abu Qatadah reported in Book 9, Number 3795 of Sahi Muslim the following was said :

"Abu Qatadah demanded (the payment of his debt) from his debtor but he disappeared; later on he found him and he said: I am hard up financially, whereupon he said: (Do you state it) by God? By God. Upon this he (Qatadah) said : I heard Allah's Messenger (PBUH) said: He who loves that Allah saves him from the torments of the Day of Resurrection should give respite to the insolent or remit (his debt.)"

The concept of increase in money rational to time cannot be allowed. In another Hadis narrated by Uthaman ibn Affan reported in Book 8, Number 3849 of Sahih Muslim the following was said :

"Allah's Messenger (PBUH) said: Do not sell a dinar fur two dinars and one dirharn for two dirhams."

In another Hadis narrated by Abu Sa'id al-Khudi in Book 9, Number 3854 of Sahih Muslim the following was said :

"Allah's Messenger (PBUH) said: Gold is to be paid for by gold, silver by silver, wheat by wheat, barley by barley, dates by dates, salt by salt, like by like, payment being made hand to hand. He who made an addition to it, or asked for an addition, in fact dealt in usury. The receiver and the giver are equally guilty."

In another Iladis on this subject narrated by Abu Hurayrah in Book 9, Number 3856 is as follows :

"Allah's Messenger (PBUH) said: Dates are to be paid for by dates, wheat by wheat, barley by barley, salt by salt, like for like, payment being made on the spot. He who made an addition or demanded an addition, in fact, dealt in usury except in case where their classes differ. This hadith has been narrated on the authority of Fudayl ibn Ghazwan with the same chain of transmitters, but he made no mention of (payment being) made on the spot."

1. From the above, it will be clear that any increase or difference in the value thereof will be usurious and will come within the definition of 'Riba'. I am not inclined to grant such increase.

2. In view of the above, I am of the considered opinion that once the agreement has been entered into and the repurchase price determined there can be no renewals by increasing the debt. If there is a renewal or restructuring nothing can be added to arrive at extended figure. The question that needs therefore to be answered is what will be the amount payable by the defendant/customer of the banks. If they have entered into a subsequent agreement or addition of mark up thereon, I have already held that subsequent agreements are void. The bank can only seek recovery of the amounts of the marked up price under the first agreement. However, if the bank is able to establish the fact that the amount has been actually disbursed under the subsequent agreement and it is not for the purpose of adjustment of the previous debts and that there has been a defacto sale and purchase in commodity in that situation all agreements that may have been entered into for such purposes and independent of the previous agreements can be looked into and money shall be recoverable there-against. Every agreement will therefore have to be proved. For this evidence needs to be led. If the bank has chosen to extend the time for repayment of the amounts given it cannot increase the sum. Naturally if extension is given there is a consideration that he is unable to pay at that point of time. If there is delay in the repayment of the debt, the banks shall be free to proceed to recover the amount of loss caused to them by such delay. This however shall be required to be proved. In the case of Dr. M. Aslam Khaki the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan has observed that:

"...If the purchaser could not pay at the due date because of his poverty, the Qur'anic command is very clear that he should be given more time till he is able to pay. The Holy Qur'an says :

And if he (the debtor) is poor, he must be given respite till he is well-off. (2:280).

However, if the purchaser has delayed the payment despite his ability to pay, he may be subjected to different punishments, but it cannot be taken to be a source of further 'return' to the seller on per cent per annum basis as contemplated in Section 79."

1. What has been stated is that agreements that have been entered into on a subsequent date will be the only agreement that can be looked into and all agreements that have concluded elapse of time shall be deemed to be past and closed transactions. I do not agree with this view. Admittedly, the bankers have chosen to reform or rename the transactions though, it continues to emanate from one single account. If the account is the same it will be seen that the certain amount was due and payable on a certain date and remained unpaid. It is this debt that continues in the subsequent agreements. The sanction letters clearly show that they are renewal of facility and such renewal of facility by way of subsequent agreement, is only a garb to get out of the legal restrictions imposed on them by BCD Circulars Nos. 13 & 32. Such cannot be allowed. A valid law being acted upon shall have to be acted in the manner as it prescribes. When it says mark up on mark up cannot charged, the same cannot be charged in any form or manner whatsoever. When it says that in the event of a default being committed, recovery has to be made and no mark up on mark up or penalty can be charged, it specifically implies and assumes without ambiguity that no mark up even if restructured can be allowed. It is my considered view that the first agreement continues to be effective for the recovery of the debt by the unpaid seller, the Bank, despite the fact that new agreement may have beer entered into. The said agreements are nothing but a continuance of the first agreement and only for the purposes of enhancement and charge of mark up by elapse of time. I am, therefore, of the view that such will not be deemed to be a past and closed transaction and shall continue till such time the payment of the debt caused by the first agreement is made over or the agreement is extinguished by being fully acted upon or that by a concluded case decided by any Court of law. All pending proceedings in respect of any finance on the basis of the 'Murabaha' or 'Bai Muajjal' shall continue to be current.

2. In view of the above, where it is clear that such is genuine and bona fide dispute, I grant leave to defend the present suit to the defendants The defendants shall file the written statement within a period of 21 days whereafter evidence shall be led for the purposes of determination as above. CMAs 1356 and 1357/2000 stand disposed of accordingly.

3. Before parting I must place my appreciation for the efforts of Mr. Muneer A. Malik, Advocate, Mr. Azizur Rehman and Mr. Jljaz Ahmed, Advocates, who appeared and placed a lot of material and presented the law due to which it had become possible for me to decide this matter.

(T.A.F.) Orders accoH.inglv.

PLJ 2001 Karachi 263 (DB)

Present:S. AHMED SARWANA AND muhammad mujeebullah siddiqui, JJ.

ALLIED BANK OF PAKISTAN LTD.--Petitioner

versus

THE WAFAQI MOHTASIB (OMBUDSMAN) and others-

Respondents C.P. No. 1587 of 1992, decided on 1.2.2001.

(!) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)-

—Arts. 9 & 10-Constitutional petition u/A 199 of Constitution of Pakistan, 1973--Where anything is done, any action is taken or is purported to have heen taken, made or done under provisions of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, without jurisdiction, High Court has jurisdiction to declare same as illegal, without lawful authority and of no legal effect. [P. 268] B

(ii) Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)-

—Arts. 10(5) & 29--Civil Procedure Code, 1908 (v of 1908), S. l--Qanun-e- Shahadat Order, 1984 (10 of 1984), Art. l«Proceedigns before Wafaqi Mohtasib are not judicial in nature and provisions of C.P.C. and Qanun- e-Shahadat Order, 1984, are not applicable-Mohtasib can adopt such procedure as he consider appropriate for investigation and can make such inquiries as he thinks fit under Art. 10(5) of Establishment of Office of Wafaqi Mohtasib because the institution of Wafaqi Mohtasib has been established to provide speedy and expeditious relief to people" outside judicial hierarchy in order to avoid proverbial delay in dispensation of justice. [Pp. 267 & 268] A

PLD 1992 Kar. 339 ref.

(Hi) Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)-

—Art. 10(5)-Constitution of Pakistan 1973, Art. 199-Burden to show that any section has been taken or any act has been done by assumption of jurisdiction not vested in Wafaqi Mohtasib is always on person alleging lack of jurisdiction so as to warrant interference by High Court in Constitutional jurisdiction. [P. 268] C

(iv) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)--

—Arts. 9 & 10-Constitution of Pakistan (1973), Arts. 24 & 199--Jurisdiction once acquired by Wafaqi Mohtasib would continue till conclusion of proceedings, notwithstanding the denationalisation of Bank-When the account holds were deprived of their money as a result of maladministration, Bank was an agency and even at the time of assuming of the jurisdiction by Wafaqi Mohtasib the Bank still was an agency-Until and unless there was any law declaring that on denationalisation the Bank, proceedings pending before Wafaqi Mohtaib would stand abated, proceedings would be deemed to be pending and continuing-Bank could not wriggle out of responsibility for maladministration and could not be absolved of maladministration resulting in deprivation of account holders of their valuable right of protection of property—Order passed by Wafaqi Mohtasib being with proper jurisdiction, Constitutional petition was dismissed. [Pp. 269 & 270] D & E

PLD 1992 Kar. 339 distinguished.

Mr. Muhammad Muzaffarul Haque, Advocate for Petitioner. Date of hearing: 17.1.2001.

judgment

Muhammad Mujibullah Siddiqui, J.-The petitioner Allied Bank of Pakistan Ltd., has assailed the order dated 18.5.1992 by the Respondent No. 1. Wafaqi Mohtasib (Ombudsman) contending that the said order is illegal, without jurisdiction, void ab initio and of no legal effect.

Briefly stated the facts as alleged in the petition are that Messrs N.J.N. Garments and Hosiery (Pvt.) Ltd. and Mrs. Nighat Nusreen Respondents Nos. 2 and 3 respectively have bank accounts with the petitioners' Ancholi Branch, Karachi. They filed a written complaint to the President of the Bank to the effect that two cheques in the sum of Rs. 40,000 and Rs. 1,30,000 which were not signed by them were encahsed from their Current Account No. 589 and P.L.S. Account No. 212 respectively. The complaints were not entertained for the reason that after investigation, it was found that the cheques were signed by the Respondents Nos. 2 and 3 and there was no discrepancy. According to the petitioner, the signatures on the disputed cheques were genuine. Thereafter the Respondents Nos. 2 and 3 filed a joint complaint with the Respondent No. 1 who entertained the same on 16.9.1991. The petitioner was intimated that the action was being taken and the petitioner replied that the matter was got thoroughly probed through their Circle Audit Head, Karachi and the complaint was found baseless. The matter was heard by the Investigating Officer, appointed by Respondent No. 1 on 13.2.1992 when the petitioner contended that the Bank had been privatised on 12.9.1991 and its administration handed over to the new management and therefore, the Respondent No. 1 had no jurisdiction to entertain such claim. It is further contended that the action taken by the Respondent No. 1, does not fall within Articles 9 and 29 of the President's Order No. 1 of 1983 by virtue of which the Office of Wafaqi Mohtasib was established. It is submitted in the petition that the objection to the jurisdiction of Respondent No. 1 was not entertained and the cheques were sent to the A.I.-G. Police Criminalistic Division, Sindh, Karachi. The said A.I-G. sent a report to the effect that these cheques did not bear the signatures of the Account holders. It is alleged that the said report was not given to the petitioner to challenge the same in rebuttal and on the basis of said report and without giving further opportunity to the petitioners, it was ordered that the responsibility of honouring the cheques bearing forged signatures lies on the bank and into the account holders. The petitioner was directed to refund the amount so encahsed. It is further contended in the petition that the Respondent No. 1 is not a Constitutional office and has been established under a statute therefore, all those conditions which are attached to the Constitutional office are not available to him and the impugned action can be challenged by the petitioner in the Constitutional jurisdiction. It is stated in the grounds of appeal that the complaint of Respondents Nos. 2 and 3 does not fall within the meaning of maladministration as defined in the Presidential Order No. 1 of 1983.

When the petition was taken up for admission it was contended by the learned counsel for the petitioner that according to Article 9 of the Presidential Order No. 1 of 1983, the Wafaqi Mohtasib can undertake any investigation into an allegation of maladministration on the part of any Agency or any of its Officers or employees. The term "agency" is defined in Article 2(1) sf the said Order as follows :

"Agency means a Ministiy, Division, Department, Commission or Office of the Federal Government or a statutory corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court."

It was submitted that since the petitioner is now privately owned, therefore, it does not fall within the purview of "Agency" and the learned Wafaqi Mohtasib (Ombudsman) had no jurisdiction to pass the impugned order directing the petitioner to refund the amount of Rs. 40,000 and Rs. 1,30,00 to Respondents Nos. 2 and 3 respectively. On 8.9.1992 the learned counsel for the petitioner placed reliance on a Division Bench decision of this Court in the case of National Bank of Pakistan v. Wafaqi Mohtasib PLD 1992 Karachi 339, contending that the judgement supported the petitioner's case. The petition was accordingly admitted for regular hearing. On 13.10.1992 the petitioner was directed-to deposit the amount in question with the Nazir of this Court with the direction to invest the same in some Government securities. The operation of impugned order was suspended till the decision of the petition. The amount was deposited with the Nazir of this Court on 25.5.1994. The petition was fixed for hearing on 29.11.1999, when it was contended by the learned counsel for the petitioner that the main question is whether the petitioner was an agency to whom direction could be given by the Respondent No. 1. The learned counsel was not able to show that, this was the position on 24.7.1991 when the application was made to the Wafaqi Mohtasib and that subsequent change shall have the effect of ousting the jurisdiction of Respondent No. 1. The learned counsel for the petitioner sought time to prepare himself on all the questions involved in the petition. On his request the hearing was adjourned to 16.12.1999. The petition however could not be heard till 17.1.2001.

On this date nobody was present for the respondents. The learned counsel for the petitioner was present. He addressed arguments in support of the petition but. he was no able to show that any subsequent change shall have the effect of ousting the jurisdiction of the Respondent No. 1. He is not able to deny that when the cheques were encahsed in the years 1988 and 1989 the petitioner was an agency as defined in Article 2(1). His contention that the act complained against does not fall within the purview of "maladministration" as defined in Article 2(2) of President's Order No. 1 of 1983 is not tenable for the reason that in the definition of maladministration contained in Article 2(2)(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities are also included.

Mr. Muhammad Muzaffarul Haque, learned counsel for the petitioner next submitted that the right of cross-examination was not afforded to the petitioner. We are not impressed with the contention because in Article 10(5) it is provided that Mohtasib may adopt such procedure as he considers appropriate for such investigation and may obtain information from such persons and in such manner and make such inquiries as he thinks fit.

A perusal of the impugned order shows that a meeting was held in the office of Investigating Officer, Mr. Shaukat Ali Sheikh. The following persons were present in the meeting :--

(1)Mr. Noor Ahmed Khan for complainants.

(2) Syed Hasan Saghir, Manager, A.B.L.

(3) Mr. Khalid Mahboob, Senior Vice-President, A.B.L.

(4) Mahir Raza, Zonal Chief, A.B.L.

During the discussion it was argued by all the parties that the issue hinges on the genuineness of the signatures on the cheques. The Investigating Officer after a thorough discussion with the parties came to the conclusion that the question, whether the cheques bore the signatures of the account-holders or not could be decided by a Handwriting Expert alone. The cheques were therefore referred to Mr. G.A. Jafri, A.I.-G. Sindh, Karachi

and the hearing was adjourned to 29.12.1992 which was attended by the following persons:—

(1) Mr. Noor Muhammad Khan complainant.

(2) Syed Hasan Saghir, Manager, A.B.L.

(3) Mr. S.M.I. Rizvi, Zonal Chief.

(4) Mr. G.A. Jafri, A.I.-G. Police, Sindh, Karachi.

At the hearing Mr. G.A. Jafri requested that the following documents be handed over to him for examination in the Laboratoiy :--

(1) Cheques in Original.

(2) Bank Specimen Cards.

(3) Account Opening Form.

(4) Ten Undisputed Cheques.

(5) Identity Card of the Account-holders.

(6) Signatures of the account-holders taken in presence of the Investigating Officer.

The next meeting was held on 21.4.1992 which was attended by the following persons :—

(1) Syed Hasan Saghir, Manager, A.B.L.

(2) Mr. G.A. Jafri, A.I.G., Police Sindh, Karachi.

The representative of the complainants was absent on the said date. Mr. G.A. Jafri submitted a report containing the conclusion that the disputed cheques did not bear the signatures of the account-holders.

On conclusion of the above proceedings and in presence of Handwriting Expert's report, the Respondent No. 1 held that the responsibility for honouring the cheques bearing the forged signature lies t;; the Bank which includes staff of the Bank and not on the account-holders. It was ordered that the respective amounts debited to the account of the account-holders be refunded to them. The petitioner was directed to submit a compliance report within one month of the receipt of the order. A perusal of the record made available to us shows that no objection was raised to the procedure adopted for investigating into the complaint before the Investigating Officer. On the contraiy the petitioner supplied the documents to the Handwriting Expert, Mr. G.A. Jafri vide their letter dated 8th March, 1992. After the submission of report by the Handwriting Expert no request was made for giving an opportunity for cross-examination of the Expert and no objections were filed thereto. Thus the petitioner is now estopped from raising plea that any prejudice has been caused to it by not providing an opportunity of cross-examining the Handwriting Expert. The proceedings before Wafaqi Mohtasib are not judicial in nature and the provisions of C.P.C. and Qanun-e-Shahadat are not applicable. As already observed earlier, the Mohtasib can adopt such procedure as he considers appropriate for investigation and can make such inquiries as he thinks fit under Article 10(5) of the President's Order No. 1 of 1983. No exception can be taken to the procedure adopted for deciding the complaint. The technicalities and niceties of the civil litigation in judicial proceedings, are not attracted to the proceedings before the Wafaqi Mohtasib because the institution has been established to provide speedy and expeditious relief to the people outside the judicial hierarchy in order to avoided the proverbial delay in the dispensation of justice. For the reason, no appeal or revision is provided against the order of Wafaqi Mohtasib except representation to the President under Article 32 of the President's Order No. 1 of 1983. The jurisdiction of the Courts is also barred under Article" 29 of the President's Order No. 1 of 1983, which reads as follows:

"29. Bar of jurisdiction-No Court or other authority shall have jurisdiction-

(1) to question the validity of any action taken, or intended to be taken or order made, or anything done or purporting to have been taken, made or done under this Order; or

(2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done, by or under the orders or at the instance of the Mohtasib."

However, we would unhesitatingly add that if anything it done, any action is taken or is purported to have been taken, made or done under the President's Order No. 1 of 1983 without jurisdiction, the High Court shall always have the jurisdiction to delcare the same as illegal, without lawful authority and of no legal effect. If any authority is required on this point it is available in the Division Bench judgment of this Court in the case of National Bank of Pakistan v. Wafaqi Mohtasib (Ombudsman), PLD 1992 Karachi 339. The burden to show that any action has been taken or any act has been done by assumption of jurisdiction not vested in the Wafaqi Mohtasibshall, however, always be on the person alleging the lack of jurisdiction so as to warrant interference by this Court in Constitutional jurisdiction.

Consequent to the above discussion it is held that the plea that the impugned order is bad for want of opportunity to cross-examine the Handwriting Expert is not available to the petitioner for the reasons that, firstly, it is not the requirement of any law, secondly, the procedure adopted by the Respondent No. 1 for investigating into the complaint is permissible under the President's Order No. 1 of 1983, thirdly the petitioner has already participated in the meetings held from time to time in the office of Investigating Officer of Respondent No. 1 without any objection to the procedure adopted, fourthly, it has not caused any miscarriage of justice and fifthly, the action taken by the Respondent No. 1, within its competence and jurisdiction cannot be challenged.

We would now revert to the last point which was agitated by the learned counsel for the petitioner on the first date of hearing and again raised on 29.11.1999. It is an admitted position that when the act complained against was committed, the petitioner was an agency as defined in Article 2(1) of the President's Order No. 1 of 1983 and so was the position when the complaint was made to the Wafaqi Mohtasib. The learned counsel for the petitioner has not been able to show how with the denationalisation of petitioner, the Respondent No. 1 shall be divested of the jurisdiction already assumed and acquired and that the proceedings pending before the respondent No. 1 shall stand abated. We are, therefore, of the opinion that the jurisdiction once acquired by Respondent No. 1 shall continue till the conclusion of the proceedings, notwithstanding the alleged denationalisation of the petitioner-bank. The reason being that when the Respondents Nos. and 3 were deprived of their money as a result of maladministration on the part of petitioner, the petitioner was admittedly in agency and when the jurisdiction was assumed even at that time the petitioner was an agency. The denationalisation takes place with the transfer of all the assets and liabilities. Until and unless is any law declaring that on denationlisation of the petitioner, the proceedings pending before Respondent No. 1 shall stand abated, the proceedings shall be deemed to be pending and continuing, with the result that the petitioner cannot wriggle out of the responsibility for maladministration and cannot be absolved of the maladministration resulting in deprivation of the Respondents Nos. 2 and 3 of their valuable right of protection to property. It is, therefore, held that the Respondent No. 1 passed the impugned order with proper jurisdiction. The objection raised in this behalf is not tenable as the learned counsel for the petitioner has not been able to substantiate the contention that the impugned action taken by the Respondent No. 1 was without jurisdiction. Although the learned counsel for the petitioner has not placed reliance on the judgment in the case of National Bank of Pakistan v. Wafaqi Mohtasib, PLD 1992 Karachi 399 at the time of final arguments, however, we have gone through the said judgment as reliance was placed on it at the time of admission of the petition. A perusal of the cited judgment shows that it is based on entirely different and distinguishable facts and therefore, the ratio of the cited judgment is not attracted to the present petition. In the cited judgment an employee of the National Bank was proceed with for omissions and commissions, in respect of service matter. After inquiiy, the competent authority awarded punishment. The order was challenged by the employee before the Lahore High Court by a petition which was accepted by the High Court and the infliction of punishment was set aside. The Bank challenged the aforesaid judgment of Lahore High Court before the Supreme Court of Pakistan in which leave to appeal was granted but finally the appeal was dismissed. The Bank preferred review petition which was also rejected. The employee thereafter filed proceedings for contempt in the Lahore High Court. The contempt proceedings were finally dismissed. Respondent; No. 2 in the cited petition filed a complaint with Wafaqi Mohtasib who directed the petitioner to report complete compliance of the Order of High Court. The Order of Wafaqi Mohtasib was assailed in a Writ Petition and it was held that the matter complained against related to a person grievance and therefore, Wafaqi Mohtasib had no jurisdiction in the matter. It was held that Wafaqi Mohtasib is not legally competent to take upon himself the functions of an executing Court in the matters emanating from the orders in Writ Petition. In these circumstances it was held that the impugned order made by the Wafaqi Mohtasib seeking compliance of the order of High Court and Supreme Court was without jurisdiction, illegal and of no legal effect. The facts involved in the present petition are entirely distinguishable and therefore, no reliance can be placed on the ratio of the judgment in the cited case.

Consequent to have findings, it is held that the petition is without substance, which sands dismissed with cost.

Mr. Muhammad Muzaffarul Haq, learned counsel for the petitioner submitted that if the petition is dismissed the amount deposited with the Nazir of this Court may be released to the Respondents Nos. 2 and 3 but the profit earned thereon may be allowed to be appropriated by the petitioner. The request is not tenable. It is the money of Respondents Nos. 2 and 3, which had been invested under the orders of this Court in the month of May, 1994. The Respondents Nos. 2 and 3 have already been deprived of the profits of the money, which was wrongly encahsed from their accounts in the year 1988 and 1989. In between the years 1988/1989 and the years 1994, they have not reaped any benefit of this amount. They cannot be deprived further of the profit earned on their own money. The contention is, therefore, repelled and the Nazir is directed to release the amount deposited with him alongwith the profit earned on the investment to the Respondents Nos. 2 and 3 on proper verification and identification. The petition stands disposed of accordingly.

(A.P.) Orders accordingly.

PLJ 2001 Karachi 271

[Circuit Court Hyderabad]

Present: faiz muhammad qureshi, J.

Mst. JAMEELA and another-Appellants

versus

Mst. MUBENA BEGUM-Respondent F.R.A. No. 56 of 2000, decided on 26.2.2001.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 16--Ejectment--Personal bona fide need and default—Ground of—It is established from material available on record that respondent is landlady of appellants being owner of disputed house and same is required by her for her and her children for personal use and appellants are also defaulters-Appellants have not been able to disprove that respondent is not landlady of premises in question and so also default is proved from record and proceedings and material available on record and landlady has been able to prove her personal bona fide need-Held: Appellants have miserably failed to make out their case—In result appeal is dismissed. [P. 274] A

Mr. Riaz Ahmed Shaikh, Advocate for Appellants. Mr. Jharnat Jcthanand, Advocate for Respondent. Date of hearing: 26.2.2001.

order

Appellants/opponents have challenged the impugned order dated 5.4.2000, passed by 1st Senior Civil Judge & Rent Controller, Mirpurkhas in Rent Application No. 2 of 2000, whereby the appellants have been directed to handover the vacant possession of suit premises within 30 days after passing the said order dated 5.4.2000. Hence this appeal.

Brief facts of the case are that respondent/applicant Mst. Mubena Begum purchased Plot No. 3/29 Lalchandabad Mirpurkhas area 1820 Sq. Ft. through registered Sale-Deed No. 1861 dated 29.4.1985 for consideration of Rs. 18.200/- and raised construction thereon consisting of two rooms with other amenities. The respondent/applicant has been living with her family in another house at some distance from the suit premises. Through a General Power of Attorney alongwith her elder daughter Qamarun Nisa the respondent/applicant on her behalf and as a guardian of her 10 minor children and all the family members authorized Qamaruddin to manage her properties situated at different places alongwith other business. The power of attorney was registered vide No. 22 on 5.2.1984, with Sub-Registrar Mirpurkhas. In March 1997, Qamaruddin with permission of respondent/applicant allowed the appellants/opponents to use and occupy the suit premises for about a year and consequently they were put in possession thereof. The respondent/applicant and other children were not satisfied with the management of their properties by Qamaruddin. They informed Qamaruddin about revocation/cancellation of power of attorney and such notice was got published in Jurrat Karachi, dated 10.7.1997. After a year the appellants/opponents were asked to vacate the suit premises but they failed to vacate the same. Differences developed between respondent/ applicant and her family members with Qamaruddin and relations between them became strained. The respondent/applicant also filed F.C. Suit No. 47/1999 for possession, mesne profits and injunction against the appellants/opponents. The appellants/opponents filed written statement in the said suit claiming that they were rented out the suit premises by Qamaruddin at Rs. 700/- per month and that they are paying said monthly rent to Qamaruddin, they also produced three rent receipts issued by Qamaruddin. The suit was there upon withdrawn by the respondent/ applicant. Thereafter the respondent/applicant being landlady filed Rent Application with a prayer (a) to direct the appellants/opponents to vacate the suit premises and put respondent/landlady in vacant possession thereof, (b) direct the appellants/opponents to pay the respondent/applicant the rent of the suit premises from October 1999, onwards at Rs. 700/- per month till they vacate the same and put the respondent/landlady in vacant possession thereof, (c) Award costs of the proceedings to the respondent/landlady, (d) Grant any other relief to which the respondent/applicant is entitled under the circumstances of the case.

Appellants/opponents were served and both the appellants/ opponents filed written reply in which they have denied the allegations and claims of the respondent/landlady and submitted that they have obtained the disputed house from one Qamaruddin on rent at Rs. 700/- per month and they are' paying rent to the Qamaruddin regularly. They further mentioned that neither they have obtained the house on rent from respondent/landlady nor they are her tenants, hence there is no relationship of landlady and tenants between the parties. The rent application has no merits and is liable to be dismissed.

Respondent/landlady has examined her witness Fakhre Alam at Ex. 9, respondent/landlady examined herself at Ex. 10 and produced Extract at Ex. 10-A, original general power of attorney at Ex. 10-B, Acknowledgment receipts at Ex. 10-C and 10-D, Publication in newspaper Jurrat Karachi dated 10.7.1997 at Ex. 10-E and notice dated 30.11.1999 at Ex. 10-F, Witness No. 2, thereafter, advocate for the respondent/landlady closed the side at Ex. 11.

Appellant/Opponent No. 2, Maqbool has examined himself at Ex. 12 '\ and produced one rent receipt at Ex. 12-A. He has also examined his witness Khalil Ahmed Qureshi at Ex. 13, thereafter, the advocate for the appellants/opponents closed their side as per statement at Ex. 14.

The learned Rent Controller formulated the following points for determination:--

1. Whether relationship of landlady and tenant is in existance?

2. Whether the landlady has required the disputed house for her sons personal bona fide use.

3. Whether the opponents are defaulters?

4. What should the order be?

After hearing the learned counsel for the parties and going through their evidence adduced by them, the learned Rent Controller passed the orders in terms as stated above.

Mr. Riaz Ahmed Shaikh, learned counsel for the appellants/opponents at the very outset has raised objection that there is no relationship between the parties as landlady and tenants and has submitted that Fakhre Alam who is the son of the respondent/landlady in cross- examination has admitted that he is not the owner of the suit premises. He has also admitted that he has not given the said house to opponent Maqbool on rent. He has also admitted that there is dispute between him and Qamaruddin. The main object of the learned counsel for the appellants/opponents is that the respondent/landlady is not the owner of the said property and no relationship existed between the parties as landlady and tenants and he has not argued on the issues involved in the matter.

Mr. Jhamat Jethanand, on the other hand has submitted that the First Class Suit was filed which was pending between the parties where the appellants/opponents have admitted the present respondent/applicant as landlady and he has drawn my attention on the evidence of Mst. Mubena landlady and has submitted that nothing has been extracted from the mouth of said Mst. Mubena that she is not the landlady of the premises in question. He has further submitted that the landlady/respondent has not only examined herself but her son, copy of extract, power of attorney, two receipts of A/D, copy of newspaper, copy of notice. She has stated in her evidence, that she is the owner of the disputed house. She has further stated that she and her elder daughter Qamarun Nisa and on behalf of other children authorized their general attorney to Qamaruddin to manage their properties including agricultural land and Urban properties situated at different places including the suit house. She has further mentioned that in the year 1997, her eldest son and Qamaruddin who was attorney sought permission from her to give the suit premises to appellants/opponents and she allowed such permission and consequently the appellants/opponents were put in possession of the suit house. She has further stated that in the beginning of 1997, out of 10 minor children excepting 2, have attained majority and being dis-satisfied revoked/ cancelled power of attorney dated 5.2.1984. They not only informed Qamaruddin all such cancellation but also through registered letters informed the Sub-Registrar Hyderabad Mirpurkhas and Mukhtiarkar Mirpurkhas.

I have heard the learned counsel for the parties and have gone through the record and proceedings of the case and I have also gone veiy carefully to the evidence adduced by the parties before the trial Court.

It is established from the material available on record that the respondent is landlady of the appellants/opponents being owner of disputed house and the same is required by her for her and her children for personal use and the appellants/opponents are also defaulters. The appellants/opponents have not been able to disprove that the respondent is not the landlady of the premises in question and so also default is proved from the record and proceedings and material available on record and landlady has been able to prove her personal bona fide need for the suit premises in question. I am of the considered view that the appellants/opponents have miserably failed to make out their ease and the present appeal has no merits and I am not inclined to interfere with the impugned order dated 5.4.2000 passed by the Rent Controller Mirpurkhas. In result the appeal is dismissed. Appellants/opponents are given six (6) months time to hand over the vacant possession of the suit premises in question to the respondent.

(M.Y.F.K.) Appeal dismissed.

PLJ 2001 Karachi 274

Present:ZlA PERVEZ, J.

SULTAN ALI MUHAMMAD GULAMANI-Plaintiff

versus M/s. ASIATIC ADVERTISING (PVT.) LTD.--Defendant

Suit No. 487/2000, heard on 21.2.2001.

Civil Procedure Code, 1908 (V of 1908)--

—O.IX, R. 9--Suit--Objection to maintainability-Plaintiffs earlier suit was filed in 1974 against defendant of present suit and others-Plaintiffs suit was dismissed and he failed to avail remedies provided by law-Time for proceeding further admittedly expired in 1977-Present suit was filed by plaintiff without disclosing fact of dismissal of earlier suit after 23 years of the order-Plaintiff having transferred his shares in defendant company of his own accord, defendant had only acted as required by law to register such transfer-Person who was alleged to have purchased shares of plaintiff has not been made a party to present suit which in substance was the same as the earlier suit-Only remedy available to plaintiff after transfer of his shares was with regard to recovery of sale consideration after determination by Arbitrator which has not been done for the last over 25 years-Plaintiffs present suit incorporating the same relief which he had claimed in earlier suit and which having been dismissed had attained finality for plaintiffs failure to proceed further, was thus, not maintainable in terms of O.K, R. 9 of C.P.C.-Plaint filed in present suit was thus, rejected. [P. 284]'A

PLD 1996 Kar. 164; PLD 1989 Kar. 1; 1996 CLC 1273; 1999 CLC 1236;

2000 CLC 1107; PLD 1976 AJK 26; 1973 SCMR 289; 12 Beng L.R. 304;

PLD 1970 SC 63; PLD 1985 SC 153; (1975) 45 Company Cases 43;

AIR 1942 Cal. 461 ref.

Kazi Abdul Hameed Siddiqui, Advocate for Plaintiff. Mr. Abid T. Japanwala, Advocate for Defendant. Date of hearing: 21.2.2001.

judgment

On an objection raised as to the maintainability of this suit, vide order dated 28.11.2000. The following issue was framed as a preliminary issue:-

(i) Whether the suit of the plaintiff is hit by the provision U/O. 9 Rule 9, CPC?

It was further ordered that, "the parties are allowed to place on record the certified copies of plaint of Suit No. 1330/94 and order of dismissal of the aforesaid suit".

Brief facts of the case are that plaintiff is one of the founder members of the defendant, a private limited company, incorporated under the then Companies Act, 1913. Plaintiff held a 1/16 share in the holdings of the defendant represented by 240 share of the face value of Rs. 100 each hereinafter referred to as the 'said shares'. Plaintiffs sold and transferred the 'said shares' in favour of one Anwar Hassan Ali Ramal on 31.8.1974. The case of the plaintiff is that at the time of transfer of the 'said shares' he was not paid the full amount of sale consideration. The reason is alleged to be that determination of the value of the 'said shares' was to be made by one Shaukat A. Fancy in pursuance to the arrangement contained in letter of plaintiff dated 31.7.1972 filed as annexure D-5 to the written statement it is reproduced hereunder:

"Messrs Asiatic Advertising Ltd.

Finally House, I.I. Chundirgar Road, Karachi.

31st July, 1972 Dear Sirs, With reference to my discussion with Mr. Shaukat A. Fancy and Mr. Anwar Rammal, I hereby tender my resignation with effect from 31st July, 1972 office closing hours, subject to the following terms and conditions which had been agreed to between Mr. Shaukat A. Fancy, Mr. Anwar Rammal and myself.

(1) I shall be paid six months salary in lieu of notice period. Three months salary shall be paid to me immediately and I shall be paid 40 days salary in lieu to my total unallied privilege leave.

(2) I shall be paid a sum of Rs........ being the credit balance lying in my account after adjustment of expanses.

From the aforesaid amount a sum of Rs. 10,000/- should be paid to me immediately and the balance by the 15th September 1972.

(4) In respect of my 240 shares in the company of the face value of Rs. 24,000/- Mr. Anwar Ramal and/or Mr. Shaukat A. Fancy have agreed to purchase the same from me. It has been further agreed between Mr. Anwar Rammal. Mr. Shaukat A. Fancy and myself that Mr. Shaukat A. Fancy is hereby appointed the arbitrator to fix price of these shares. The sale shall be completed within the period of six months from the date hereof.

The decision of the arbitrator in this matter shall be final and binding on Mr. Anwar Rammal and myself Mr. Shaukat A. Fancy as President of the Company has agreed to guarantee the fulfillment of the above conditions.

Sd/-

(SULTAN GULAMANI)

In pursuance to the above letter the 'said shares' were transferred on 31.8.1974 but the decision as to the amount of sale consideration has not been taken therefore. Plaintiff instituted the present suit alleging that the cause of action accrued on 12.2.2000 as stated in paragraph 16-A of the plaint and is reproduced hereunder:

"CAUSE OF ACTION

16-A. That the initial cause of action to the plaintiff accrued in the month of January, 2000 when the plaintiff came to know that the defendant company is being disposed off/third party interest is being created. The cause of action renewed on 12th February, 2000 when the plaintiff was provided the report (Annexture "C"), through which the plaintiff came to know that his shares stand transferred long ago. The cause of action got renewed against when after the report supra,. the plaintiff conducted detailed enquiries through which other wrongs committed by the defendant got exposed. The cause of action is in continuum."

Defendant filed written statement raising amongst others, objection as to the maintainability of this suit by way of preliminary objection. Defendant also moved an application under Order 7, Rule 11 CPC. These objections led to the framing of the above preliminary issue. Learned counsel for the parties agreed before the Court that the above issue can be decided on the basis of aforesaid pleadings and documents together with the certified copies of proceedings in an earlier Suit No. 1330/74 originally filed in the Court of in 14th Senior Civil Judge Karachi and followed by subsequent proceedings on transfer of the said suit before the Court of 7th Senior Civil Judge, Karachi South.

Mr. Abid T. Japanwala advocate for defendant has referred to the record of proceedings of Suit No. 1330/1974 filed by the plaintiff against the defendant and others. It was a suit for declaration and injunction challenging the sale and transfer of the aforesaid 240 shares held by plaintiff in of the defendant company in favour of Mr. Anwar H. Rammal with the following prayers:--

"(i) A declaration that the Annual General Meetings dated 30.9.1972 and 4.9.1973 were illegal, void and of no consequence whatsoever being in clear contravention of provisions contained in Articles 8, 9 & 10 of the companies (Managing Agency and Election of Directors) Order, 1972 and also the Companies Act, 1913 and the Articles of Association of the Defendant No. 1.

(ii) A declaration that the plaintiff is still a Director of the Defendant No. 1 and continue to have 16% shares holding of the Defendant No. 1.

(iii) An injunction restraining the Defendants Nos. 1, 3 to 5 from taking steps enforcing the transfer of 240 shares held by the plaintiff under Article 26 of Articles of Association of otherwise.

(iv) Cost of the suit.

(v) Such further and/or additional relief which may deem fit land proper to this Honourable Court".

Application under Order 39, Rules 1 & 2 of CPC filed by plaintiff for restraining transfer of the said shares in Suit No. 1330/1974 was dismissed by the learned 1st Senior Civil Judge and Assistant Sessions Judge Karachi vide his order dated 3.7.1974. On 4.7.1974 a letter was forwarded under registered post A/D. acknowledged by the plaintiff which is annexure B to the written statement and is reproduced hereinunder:

"Mr. Sultan A. Gulamani, 4th July, 1974, 14-Al-Filpana, C-2, Bath Island, KARACHI.

Dear Sir, In continuation of our Letter No. 24298 dated 18th June 74, we wish to inform you that action has been taken in accordance with the Article 26 of the Articles of Association of the Company, and you are hereby advised that the 240 shares held by you have been sold to Mr. Anwar H. Rammal for a consideration of Rs. 6,480/- for which a Cheque No. F-124517 dated 4.7.1974 on Commerce Bank Ltd., from Mr. Anwar H. Rammal is enclosed.

Please note that the certificate Nos. 1, 5 and 11 for 240 shares bearing distinctive Nos. 1 to 120, 501 to 540 and 1341 to 1420 have been treated as cancelled as you have failed to surrender the same.

Yours faithfully, FOR ASIATIC ADVERTISING LIMITED.

Sd/-DIRECTOR

End: One Cheque."

Subsequent proceeding of Suit No. 1330/74 as recorded on the relevant dates and relied upon by defendants are as under:

"22.3.1977 plaintiff and his counsel were called absent as costs was not paid, the suit was dismissed default of costs, the diary sheets for subsequent date are relied upon by the learned counsel is reproduced as under:

26-04-1977

Advocate for plaintiff moved application U/0. 9, Rule 4 C.P.C. Order passed thereon. Notice. Cost hearing 11.7.1977.

Sd/-C.J.XXVI

11.7.1977

None present at call. Process not issued as cost not paid. Put off to 4.8.1977 for order.

Sd/-C.J. XXVI

4.8.1977

None present at call, no any intimation nor cost has been paid as per office report. Fixed the stand dismiss accordingly.

Sd/-C.J. XXVI"

Learned advocate for defendants after referring of Section 3 of the Limitation Act, 1908 has argued that after dismissal of Suit No. 1330/94 on 4.8.1977, the remedies were available to plaintiff were (i) either to move the Court under Order 9, Rule 9 CPC or (ii) to prefer an appeal against the said order. The period of Limitation provided under law to seek these remedies is 30 days and 60 days respectively, from the date of orders. The time available thus expired some time in the year 1977. In support of arguments reliance has placed on the reported case of Sabzal and others v. Bingo and others PLD 1989 Karachi 1, Dr. Izhar Fatima M.B.B.S.^Haji Muhammad, PLD 1996 Karachi 164. Sikandar All v. Abdul Raheem alias Leemon, 1996 CLC 1273, Messrs Shakil Waqas & Co. v. General Manager/Marketing, Pakistan Railways1999 CLC 1236.

It is further argued that the present suit is filed by plaintiff without. disclosing the fact of the dismissal of earlier suit after 23 years of the order and it is not maintainable. Reliance is placed upon the reports Muhammad Riaz v. Karachi Metropolitan Corporation, 2000 CLC 1107, Maj. (Retd) HamidAli Khan v. Mian Muhammad Anwar, (2000 CLC 1633), MirAfzal v. Qalandar (PLD 1976 AJK 26).

Mr. Kazi Abdul Hameed Siddiqui learned advocate for plaintiff in his reply has also relied upon the letter of defendant dated 31.7.1972 Annexure D-5 to the written statement already reproduced above and stated that the value of the shares remain to be fixed by Mr. Snoukat A. Fancy. He was appointed as Arbitrator to fix the price of the said shares but he failed to do so. Since July 1972 the said arbitrator neither entered into arbitration nor gave his award. He further argued that this is a case of continuous cause of action in favour of plaintiff. That in substance the two suits are different and on different set of facts, the plaintiff Was awaiting for commencement of the arbitration proceeding and award to be made by arbitrator. He further argued the parties to the two suits are different. Suit No. 1330/1974 was filed by the plaintiff against defendant and four other defendants while in the present suit only the plaintiff and defendant are parties, and that the Defendants Nos. 2 to 5 in the earlier suit have not been made parties to the present suit. In support of his argument, the learned counsel placed reliance upon the reports Surqj Rattan Thirani and others v. Azamabad Tea Co. Ltd., and others, AIR 1965 Supreme Court 295, Jumma Khan and others v. Mahmud Khan and other 1973 SCMR 289.

In Suraj Rattan's case while considering the words "in respect of the same cause of action" the Hon'ble Supreme Court of India has referred to the test adopted by the Judicial Committee for determining the identity of the causes of action in two suits which can be reproduced with advantage:

(30) We consider that the test adopted by the Judicial Committee for determining the identity of the causes of action in two suits in Muhammad Khalil Khan v. Mahbub All Mian, 75 Ind App. 121: (AIR 1949 PC 78) is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O.II, R. 2 of the Civil Procedure Code observed:

"In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance - not technically -identical?"

(31) The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorjomonee Ddyee v. Suddannund, 12 Beng L.R 304 at p. 315 and extracted the following passage as laying down the approach to the question:

"Their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action.

The principle that it is the substance that is to be examined and not the form as the guide line in arriving at a finding the Hon'ble Supreme Court in the case of Abdul Hakim and 2 others v. Saadullah Khan and 2 others, PLD 1970 SC 63 has observed as under:

"The expression "cause of action" in Order 11, Rule 2, C.P.C. means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants. As laid down by their Lordships of the Privy Council in Muhammad Khalil Khan and others v. Mahbub All Mian and others (1) "the bar under Order 11, Rule 2 refers entirely to the grounds set out in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour". A raugh test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as: the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action and file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievances caused to him by the infringement of his rights by the defendant in the course of the same transaction, but he cannot and is under no obligation to add to his grievances which did not occur in that transaction."

In the case of Hakim Muhammad Buta and another v. Habib Ahmed and others, PLD 1985 SC 153. The Hon'ble Supreme Court has been pleased to examine the question of Limitation in detailed and was pleased to observe that:

"The words of Section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of Sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessaiy, to lay down that limitation being a matter of statute and the provisions being mandatoiy, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (1), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiffs application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it". The same Court in a subsequent case, Ramamurthy v. Gopayya (1), reiterated that the parties cannot stop themselves from pleading the provisions of the statute of limitation, the Lahore High Court also took a similar view in Kundo Mai v. Firm Daulat Ram (2), and held that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving, them or by the Courts themselves."

The plaint filed in both the suits by the plaintiff are based on the same facts of the transfer of share and requires the same evidence to prove the fact of "transfer of the said shares and are thus same in substance. The shares in question were sold by the plaintiff and it was with his consent that they were transferred in the books of the defendant company in favour of Anwar H, Rammal. They only matter that remained for determination was ' the amount of sale consideration that was paid in part by the transferee to the transferor and the plaintiff has, in his letter dated 31.7.1972 plaintiff has admitted:

"In respect of my 240 shares in the company of the face value of Rs. 24.000/-, Mr. Anwar Rammal and/or Mr. Shaukat A. Fancy have agreed to purchase the same from me. It has been further agreed, between Mr. Anwar Rammal, Mr. Shaukat A. Fancy and myself that Mr. Shaukat A. Fancy is hereby appointed the arbitrator to fix price of these shares. The sale shall be completed within the period of six months from the date hereof."

The record does not reveal any step taken by the plaintiff for commencement of Arbitration proceedings and for the determination of value of the said shares and allowed the same to become time-barred.

The transfer effected in pursuance to the letter of the plaintiff dated 31.7.1972 was completed on the expiry of the period of six months from that date as stated therein. The only grievance that the plaintiff was left with, if any. was thus question of determination of the price and the recovery of such ameunt after determination thereof by Mr. Shaukat A. Fancy who was appointed as Arbitrator to fix the price the plaintiff did not pursue this remedy since the past over twenty five years and there is no substance in the statement made in Paragraph No. 16-A of the plaint to show that cause of action accrued in the month of January. The defendant company is a legal entity and no fact or grievance, actionable under law is made out by the plaintiff. The defendant is not a party to the sale or transfer of share except to the extent of the entries in the register of share holders and these were effected on the basis of the sale and transfer of shares between the transferor and transferee of the said shares. It is only after transfer is agreed to that the entries to this effect are made in the register of share-holders required to be maintained by the Company. It is not the defendant but the plaintiff and the transferee of the shares who are the parties to the transaction of the sale of the aforesaid shares. The case of Vasudew Tamchandra Shelat v. Pranlal Jayanand Thakar, (1975) 45 Company Cases 43, decided by the Supreme Court of India can be cited with advantage where the Court has clearly laid down that where, as between the transferor and the transferee, all formalities have been gone through, such as the execution of a document of transfer and the physical handing over of the shares by the transferor to the transferee, the shares should be taken to have been transferred to the transferee, though until the transfer of shares is registered in the company's books in accordance with the company law, the transfer could not enable the transferee to exercise rights of a shareholder vis-a-visthe company.

In the case of 0 Chmappa Reddy, E.S. Vankatrevmiab vs. Buluk Rishria Evadi, R.B. Mesiia, AIR 1986 S.C. 1370 the Court while examining the interest of a shareholder has observed that

"Shares is movable property, with all the attributes of such property. The right of shareholder are (i) to elect Directors and thus to participate in the management through them; (ii) to vote on resolutions at meetings of the Company, (iii) to enjoy the profits of the Company in the shape of dividends; (iv) to apply to the Court for relief in the case of oppression; (v) to apply to the Court for relief in the case of mismanagement; (vi) to apply to the Court for winding up of the Company; (vii) to share in the surplus on winding up. A share is transferable but while a transfer may be effective between transferor and transferee from the date of transfer the transfer is truly complete and the transferee becomes a shareholder in the true and full sense of the terms, with all the rights of a shareholder, only when the transfer is registered in the tompany's register."

Palmer's Company Law, 19th Ed. Page 113 explain the practice relating to sale or mortgage of shares in blank as follows:

"Upon a sale or mortgage of shares, the transferor very commonly signs and hands over with is called blank transfer (i,e.a transfer signed by transferor, but with a blank for the name of the transferee), the intention being that the purchaser or mortgagee shall be at liberty later on to fill up the blank and perfect his security by getting himself registered. If however, the regulations require the transfer to be by deed, the transferee cannot effectively, fill up the blank and deliver the deed unless authorized so to do by power of attorney under seal; whereas if the transfer may be under hand merely, the authority to fill up the blank may be oral and may be implied from the nature of the transaction."

The English case, law relating to transfer of shares in blank was fully discussed by Lord William, J. In the matter of Bengal Silk Mills Company Ltd. (AIR 1942 Cal. 461). In that case, one Mst. Fatima Begum was the registered holder of 6 shares in the Bengal Silk Mills Company Ltd. In 1928 she executed a transfer deed of the shares in blank in favour of one Suhrawardhy for Rs. 2100/-. After the death of Mst.Fatima in 1935. Suharwardy transferred the shares in blank to the petitioner on 10th December 1940 for Rs. 2400/-. The petitioner thereupon completed and filed in the blanks and inserted the date of the transfer as 10.12.1940 and presented the transfer deed for registration to the Company, but the company declined to register the same on the ground that the same it was filled in after the death of Mst. Fatima Begum. It was held that whether it be a matter of agency or authority or contract, the transferee in cases of transfers in blank has the right to fill in the necessary particulars including his own name as transferee and the date of the transfer, after the death of the original transferor. If it were otherwise the vast amount of business done by means of blank transfers would have to cease because it would be quite impossible in many cases to ascertain without much trouble and inconvenience whether the original transferor was alive or not.

In the instant case the transfer was registered in the books of the defendant in 1974 with the consent of the plaintiff and plaintiff instituted this suit with the prayer of declaration that the modus operandi adopted by defendant Company in 1974 is illegal and void ab initio in addition to injunction against defendant for transferring the said shares as the main prayer cannot be maintained. The plaintiff by his own actions has allowed the property to pass in favour of Anwar H. Rammal with respect to the 'said shares' and the defendant only acted as required by law to register the transfer. The said Anwar H. Rammal has not been made a party to the present suit which in substance is the same as the earlier suit. After transfer of the shares the only remedy available to the plaintiff was with regard to the recovery of the sale consideration after determination by the Arbitrator which has not been done since the last over 25 years. In view of the above the issue is answered with affirmative. CMA No. 3353/2000 is allowed and the plaint filed in the above suit is rejected but with no order as to costs.

(A.A.) Plaint rejected.

PLJ 2001 Karachi 284

Present: zahid kurban alavi, J.

Hqji AHMED ASSOCIATES-Applicant

Versus

COTTON EXPORT CORPORATION OF PAKISTAN LTD.-Respondent

R.A. No. 104 of 2000, decided on 16.5.2001.

Civil Procedure Code, 1908 (V of 1908)--

—-S. 115-Non-prosecution of case-Dismissal of--Challenge to--It would be an unfair proposition on part of Court to dismiss suit for non-prosecution if counsel pleads no instructions--If counsel wants to seek discharge from ase then there are proper provisions available which if strictly followed would not lead to a situation where gross injustice may be done to party purely because he is unaware of his case having been fixed in Court—In this matter an affidavit of previous counsel also shows that a letter was written but it remained un-served--0n the other hand plaintiff has pointed but that there was a change of address-If this is true then it would be logical that plaintiff would not be aware as to when his case was fixed—It is an acknowledged fact that cases on original side become ripe after years and there would be certain difficulties faced in contacting parties by lawyers-When a lawyer pleads no instructions then instead of dismissing suit it is necessaiy to issue notice to arties—Under circumstances this revision is allowed-Matter to be fixed for recording of evidence after due notice to both sides. [P. 290] A

Mr. LatifA. Shakoor, Advocate for Applicant. Mr. M.A. Khan, Advocate for Respondent. Date of hearing: 14.5.2001.

judgment

This Revision has been filed challenging the order passed by the 3rd Sr. Civil Judge dated 4.3.2000 in Suit No. 387/1979. It seems that a suit was filed in the High Court for recovery of Rs. 4,88,000/-. This suit was filed in the year 1979. It became for ripe of evidence several years latter. It was fixed in Court on 10.4.1995 when the counsel appearing on behalf of the plaintiff pleaded no instruction of the suit and it was dismissed for non prosecution. In this order it was also observed that the plaintiffs advocate had written a letter to the plaintiff which had returned un-delivered.

According to the applicant on failing to obtain any information about the fate of this case he requested Mr. Yaqoob Kapadia to inquire from the office and he was informed in March, 1996, that the suit had been dismissed. Thereafter an application was filed under Section 151 CPC alongwith the application, affidavit were filed. Counter affidavit was filed by the defendant and a rejoinder was also filed. During this time the pecuniaiy jurisdiction of this Court changed and this suit was transferred to the Court of Senior Civil Judge and there the matter was heard and a detailed order was passed on 4.3.2000 whereby the application under Section 151 CPC was dismissed for want of limitation under Article 163 of the Limitation Act.

Against this order this revision application was filed. I have heard both the counsels at length. The line of arguments put forward by the applicant is that the suit was not dismissed under Order 9 and hence Article 163/164 of the Limitation Act would not be applicable but Article 181 of the Limitation Act would be applicable therefore, the application under Section 151 CPC would be within time and the matter could be restored. The learned counsel on behalf of the respondent however, insisted that it was dismissed under Order 9 and hence Article 163 is applicable. Accordingly the

application under Section 151 CPC is grossly barred by limitation. Both the learned counsels have relied on case laws in support of their respective contentions.

The learned counsel for the plaintiff has relied on the following case laws:--

1. 1997 PLD Peshawar 55, (Jamila Begum and other vs. Abdullah Jan and others) .... Dismissal of suit in default.... Restoration ... Suit filed by plaintiff was dismissed in default and application for restoration of suit filed by plaintiffs was also dismissed by trial Court as time-barred, but in appeal filed by plaintiffs against order of trial Court Appellate Court below set aside order of trial Court and allowed restoration of suit .... Defendants had challenged order of appellant Court below contending that application filed by plaintiffs for restoration of suit was to be governed by Ait. 163 of Limitation Act, 1908 which provided thirty days for filing such application whereas application was filed by plaintiffs after seventy seven days from dismissal of suit.... Defendants also alleged that application for restoration of suit having not been accompanied by an application for condonation of delay such application was not maintainable .... Date on which suit was dismissed for non-prosecution having been given by Reader of the Court and not by presiding officer, such date could not be treated as a date of hearing within contemplation of O.IX, R. 8, C.P.C. ... Period of Limitation for filing application for restoration of suit thus was to be determined in the light of Art. 181 of Limitation Act, 1908 which provided period of three years for filing application and not Art. 163 of that Act — Application for restoration of suit filed after seventy-seven days from dismissal of suit, therefore, was well within time—Even otherwise cause for non-appearance, highlighted by plaintiffs in their application for restorations of suit being a "sufficient cause" within contemplation of O.IX, R. 9 CPC., suit was rightly restored .... In absence of any delay in filing application for restoration of suit there was no need to file application for condonation of delay and delay in filing application for restoration of suit there was no need to file application for condonation of delay and delay was condonable without formal application in view of fact that act of Court should prejudice no one. (p. 57) A.M. Shafique Shah and another vs. Mst. Irshad Begum and 8 others 1981 CLC 369; Abdul Rehman and another vs. Mukhtar Ahmed and another 1985 CLC 1072 and Muhammad Qasim and others vs. Mouluddin and others 1995 SCMR 218 ref.

2.NLR 2000 Civil 604 (Muhammad Bakhsh etc. vs. Ghulam Yasin, etc.) S. 151 R/W. Order XLI, Rule 1 Provisions of Section 151 are intended for advancement of justice as all rules in first schedule of CPC do not allow the defeat of ends of justice. It is always the duty of a judge to apply law and satisfy himself for just application of law. Court must always avoid technicalities to defeat the ends of substantial justice. Court has inherent power under Section 151 to do justice and to redress a wrong instead of heading to objections and tiying to dispose of a case on mere technicalities. (P. 608).

1. 1997 CLC 1080 Karachi (Muhammad Afzal vs. Small Business Finance Corporation and 4 others) Dismissal of suit for non-prosecution. Application for restoration of suit filed beyond period of 30 days .... Entitlement .... Counsel from outstation filing personal affidavit stating that he did not receive notice of date of hearing .... Contents of counsel's affidavit could not be lightly disbelieved, therefore, it was quite plausible that he never received notice of date of hearing .... Ample justification thus existed for setting aside order of dismissal of suit.... Order of dismissal having been passed without notice to parties, or on date which was not date of hearing. Court would have inherent power under S. 151 CPC., for restoration of suit.... Application for restoration of suit was although filed beyond prescribed period of 30 days in terms of Art. 163. Limitation Act, 1908 but such provision would be applicable only where suit was validly and properly dismissed under O.IX CPC. Where order of dismissal itself suffered from some irregularity or infirmity, Court could exercise its inherent power to restore suit under S. 151 CPC and in such case Art. 163, Limitation Act, 1908 would have no application, (pp. 1083, 1084) A, B and C National Bank of Pakistan vs. Additional District Judge (PLD 1985 Lah. 326; Abdul Latif vs. Muhammad Yousuf PLD 1996 Kar. 365; Province of East Pakistan vs. Abdul Hameed Darji 1970 SCMR Zahoor Ellahi vs. S. Fazlur Rehman 1969 SCMR 274; Ahmeduddin vs. Rasool Bibi PLD 1968 SC 21; Muhmad Swaleh vs. M/s. United Grain and Fodder PLD 1964 SC 97 and Manager, Jammu and Kashmir Estate Property vs. Khuda Yar (PLD 1975 SC 678) ref.

2. PLD 1981 SC 21 (M/s. Rehman Weaving Factory (Regd Bahawalnagar vs. Industrial Development Bank of Pakistan and M/s. Rehman Weaving Factory Regd Bhawalnagar vs. Punjab Small Industries Corporation Lahore ... Words "sufficient cause".... Causes to be treated as sufficient.... (Words and phrases).

Arts. 164 '& 181 .... Ex-parte decree, setting aside of Limitation .... Any cause shown for non-appearance at first hearing, whether non service of summons, or any other sufficient cause, e.g., accident or act of God .... Ait. 164 applies to such case and Limitation commences from date or knowledge of decree (When summons not duly served) otherwise from date of decree-­Application for setting aside ex parte decree not covered by Art. 164 Governed by residuary Art. 181 giving period of limitation as three years from accrual of right to apply .... Ex Parte decree passed on a date after initial service of summons, on fresh hearing after return of records from High Court, and defendants having no notice of date of hearing when such

decree passed..... Applications for setting aside ex parte decree made within three years of ex parte decree as also from date of knowledge of decree, held, within prescribed limitation period, (pp. 37, 38, 39) D.F.F. and G.

1. S. 115, Dismissal for non prosecution is not legally well- recognized for reason that jurisdiction under S. 115 is invoked by an aggrieved person to point out illegalities or irregularities or jurisdictional defects in orders passed by subordinate for a. Therefore, on-entertaining a revision petition Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings of subordinate Courts do suffer or not from any illegality or irregularity. In other words after filing of a revision matter rests between revisional and subordinate Courts. Thus it is advised that Court after having entertained a civil revision instead of dismissing it in default may make efforts to dispose it of in accordance with parameters laid down in S. 115 (p. 634, 635).

2. (1) Limitation Act (IX of 1908).......

Art. 181. Three years' limitation time provided in residuary Art. 181 would apply to application file.d under S. 151 CPC.

The respondents has relied on the following case laws:

1995 CLC 461 Karachi (M/s. Ciba Geigy (Pak) Limited vs.Muhammad Safdar).

—Art. 163-Civil Procedure Code (V of 1908), O.IX, R. 3 ... Dismissal of suit in default ... Limitation for setting aside order of dismissal of suit for default is thirty days.

(b) Dismissal of suit for default of appearance........ Plaintiffs plea that Court should have proceeded to frame issues and not dismissed the suit would be of no avail for it was incumbent on parties to be present on the day of settlement of issues ... Provision of O.XVII R. 2 CPC. was also not attracted for such provision could be resorted to only where suit was adjourned to a fixed date and the parties, or any one of them failed to appear on that date....Duty is cast upon plaintiff to pursue his case diligently and where he neglects or fails to do so, provision of O.IX, R. 3 CPC would become operative....Suit was thus, rightly dismissed for default in appearance on specified date under O.IX, R. 3 CPC.

(c) O.IX, R. 9....Object and scope of O.IX, R. 9 CPC ... Only consideration before Court under provision of O.IX, R. 9, CPC would be to do justice between the parties and in absence of any express bar, it should not hesitate to grant proper relief on mere technical grounds .... Plaintiff, however, must satisfy the Court that there was sufficient cause for his non-appearance.

(d) S. 5... Dismissal of suit for default of appearance ...... Application for restoration of suit filed after about one year of dismissal of suit i.e.beyond period of limitation .... No. application for condonation of delay was filed by plaintiff .... Effect ... Even if ground for non-appearance (I,/e wrong noting of date) of plaintiff were accepted there being no application for condonation of delay or any ground-in support thereof, and substantive right having accrued to defendant, Court was left with no alternative but to dismiss application for restoration of suit.

(b) Engagement of an advocate by a litigant ... Does not absolve litigant of his responsibility in proper and diligent prosecution of matter for which advocate is engaged Litigant is also under duty to see that his matter is prosecuted properly and diligently by advocate engaged. He cannot seek recall of an order passed by Court an basis of statement made by his counsel.

1974 SCMR 162 (ZulfiqarAli vs. Lai Din and another)

—O.XLI. R. 19-Appeal re-admission of-Appeal dismissed for non prosecution...Restoration sought on ground of default due to negligence of counsel and no negligence on appellant's part ... Contention without force .... Mere engagement of counsel does not absolve litigant of all his responsibilities .... Party as well as counsel both bound to see appeal properly and diligently prosecuted .... Counsel engaged, if lacking in his sense of responsibility to Court, opposite-party cannot be made to suffer on that account.

PLD 1954 Baghdad-ul-jadid 53, (Shaikh Abdul Rahman vs. Mai Bhagwan Das through Custodian of Evacuee Property, Bahawalpur).

(a) Civil Procedure Code (V of 1908) S. 151 -- Inherent power not to be resorted to even if other remedy is time-barred.

Application under Order IX, Rule 9 Civil Procedure Code for restoration of suit had become time-barred. The plaintiff applied for restoration under Section 151 CPC.

Held, the petitioner could not legally invoke the inherent powers of Court when a specific procedure has been provided by the code under Order IX, Rule 9 CPC. The application for setting aside the dismissal of the suit, which was obviously time-barred, was incompetent. Any subsequent application for the restoration of a previous application shall also be deemed to have been made under Order IX, Rule 9 read with Section 141 and not under Order IX CPC.

Considering the above and the facts of the case I am of the considered opinion that it would be an unfair proposition on the part of the Court to dismiss the suit for non-prosecution if the counsel pleads no instructions. If the counsel wants to seek discharge from the case then there are proper provisions available which if strictly followed would not lead to a situation where gross in justice may be done to party purely because he is unaware of his case having been fixed in Court. In this matter an affidavit of the previous counsel also shows that a letter was written but it remained un-served. On the other hand the plaintiff has pointed out that there was a change of address. If this is true then it would be logical that the plaintiff would not be aware as to when this case was fixed. It is an acknowledged fact that the cases on the original side become ripe after years and there would be certain difficulties faced in contacting the parties by the lawyers. As observed earlier when a lawyer pleads no instructions then instead of dismissing the suit it is necessaiy to issue notice to the parties.

Under the circumstances this revision is allowed and the order dated 4.3.2000 is set aside. The matter to be fixed for recording of evidence after due notice to both sides and as it is an old case therefore the recording of evidence may be completed within six months.

(AAJS) Revision allowed.

PLJ 2001 Karachi 291 (DB)

Present: saiyed saeed ashhad, C.J. and sarmad jalal osmany, J.

NATIONAL ACCOUNTABILITY BUREAU CHIEF EXECUTIVE

SECRETARIAT CONSTITUTION AVENUE ISLAMABAD

and 2 others-Appellants

versus

Mst. ZAHIDA SATTAR and 2 others-Respondents

H.C.A. Nos. 281, 282, 283, 284, 285, 286, 287, 288, 289, 290 and 291 of 2000, decided on 26.1.2001.

(i) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—-S. 13-Accountability Court, under provisions of S. 13 of National Accountability Bureau Ordinance, 2000 has been given exclusive jurisdiction to entertain and adjudicate upon all claims/Objections- Persons who are ostensible owners of property have to be given notice of freezing order so that they can file objections, which thereafter would be tried and adjudicated by Accountability Court- [P. 295] A

(ii) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—-Ss. 13 & 32-Where any adverse finding or order was made against ostensible owners of properties, such owners had a right to challenge any adverse order by filing appeals in view of observations made by Supreme Court in case of H.M. Saya & Co., Karachi v. Wazir All Industries Ltd., Karachi reported as PLD 1969 SC 65--Ostensible owners were to be provided opportunity of defending themselves before Accountability Court, as their properties had been mentioned in references and charges against accused person—Such ostensible owners would come within definition of 'aggrieved person'. [P. 296] B

(iii) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—-Ss. 13 & 32--Specific Relief Act (I of 1877), S. 42-Interim injunction issued by Court regarding properties frozen by Accountability Court-Validity-National Accountability Bureau Ordinance, 2000, had provided for complete adjudication of rights of accused as well as those whose properties had been frozen-Civil suits filed in order to legitimize private respondents' title over such properties, were misconceived—No declaration/injunction could be given under Specific Relief Act, 1877, to legitimize means of acquiring title over disputed immovable property-Court had wrongly allowed interim injunction in favour of plaintiffs regarding properties frozen by Accountability Court. [Pp. 296 & 298] C, D, G & H

(iv) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—S. 13--Specific Relief Act (I of 1877), S. 56(e)--Stay of proceedings in criminal matter-Inquiry as to ostensible ownership of properties and source of money under provisions of National Accountability Bureau Ordinance, 2000--Embarking upon such inquiry is in violation of S. 56(e) of Specific Relief Act, 1877, which particularly prohibits grant of any injunction to stay proceedings in a criminal matter. [P. 297] E

(v) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—S. 13-Persons who are aggrieved by freezing orders can file their objections before Court concerned under provisions of S. 13 of National Accountability Bureau Ordinance, 2000. [P. 297] F

Mr. Muneer A. Malik, Advocate for Appellants. Mr. Abid S. Zuberi, Advocate for Respondents. Mr. S. Tariq All, State Counsel. Mr. M. SarwarKhan, Addl. A.G., Sindh.

Date of hearing: 2.11.2000.

judgment

Sarmad Jalal Osmany, J.--The subject Appeals impugn the orders dated 15.9.2000 passed by a Learned Single Judge of this Court in Suit Nos. 877, 878, 879, 880, 881, 882, 883, 884, 885, 887 and 1012 of 2000 whereby the Applications filed by the Respondent No. I/Plaintiff Under Order 39, Rules 1 and 2 CPC praying that the said Respondents be allowed to enjoy the peaceful possession, use and ownership of their properties and the Appellants be restrained from forcibly dispossessing them from the same without due process of law was disposed off by framing issues on the reliefs sought by the Plaintiffs and ordering evidence thereon. Earlier on 17.7.2000, the learned Single Judge had ordered status quo to be maintained between the parties on the said Application. Since the facts and issues raised in the above mentioned Appeals are common, we propose to dispose them of through this common judgment as well.

The brief facts of the matter are that one Abdul Sattar Dero is being proceeded against before the Learned Accountability Court No. IV at Karachi in Reference No. 15 of 2000. The substance of he Charge against the Accused is that being a public servant he owns properties disproportionate to his known sources of income. A further Charge against him is that these properties were acquired through corrupt practices and dishonest means and are being held by him in the names of his spouse, dependants, relatives and other Benamidars and consequently, the Accused has been Charged with the offence of Corruption and Corrupt Practices under Section 9 of the National Accountability Ordinance, 1999. Subsequently, the said properties were frozen under Section 12 of the Ordinance vide Order dated 13.8.2000 passed by the Chairman National Accountability Bureau. The Private Respondents who are the alleged ostensible owners of the suit properties had filed the above mentioned suits for declarations, inter alia, that they are the lawful and exclusive owners of the suit properties and that inclusion of the said properties in the Reference filed by the Appellants against Abdul Sattar Dero is unlawful and finally an injunction directing the Appellants to delete the Plaintiffs property from the said Reference and Charge framed by the Accountability Court. As observed above, the applications under Order 39, Rules 1 and 2 were also filed alongwith the suit, which were disposed of by the Learned Single Judge, vide the impugned orders and hence the Appeals.

In support of the Appeals Mr. Muneer A. Malik, Advocate for the Appellates, has referred to the provisions of the National Accountability Ordinance, 2000 and submitted that as per the Scheme of the Ordinance, the onus to prove that the wealth possessed by the Accused is lawful and bona fide is upon him. Similarly, as per Learned Counsel the Accountability Court has exclusive jurisdiction in the matter placed before it including the claim/ objection against freezing of the assets, which allegedly belong to the Accused and which have been acquired through unlawful and corrupt means. In support of these contentions. Learned Counsel has referred to the definition of the word "ASSET" given in Section 5(c) of the Ordinance to mean any property owned, controlled or belonging to any Accused whether directly or indirectly or held Benami in the name of his spouse or relatives or associates whether in or outside Pakistan for which the Accused cannot reasonably account or for which he cannot prove payment of full and lawful consideration. So also the definition of word "FREEZING" as per the Section 5(1) of the Ordinance includes attachment, sealing, prohibition, holding control and/or managing any property either through a Receiver or otherwise as may be directed by the Court or Chairman National Accountability Bureau.

• Next Learned Counsel has referred to the provisions of Section 12 of the Ordinance, which authorises either the Chairman of the National Accountability Bureau or the Court to freeze the property in question whereafter as per Section 13 of the Ordinance any claim or objection against the freezing order are to be exclusively decided by the Court. In view of the foregoing provisions of the National Accountability Ordinance, Learned Counsel has submitted that the Accountability Court has exclusive jurisdiction in the matter including the decision regarding objections filed by an aggrieved person as to the freezing of any property.

Next Learned Counsel has submitted that the Reference against Abdul Sattar Dero was filed on 19.2.2000 and the Charge framed on 8.4.2000 whereas the impugned freezing order was passed on 3.8.2000. Learned Counsel says that all these actions were in accordance with the Ordinance

and since no appeal could lie against any freezing order under Section 13, therefore, to that extent this Court would not have jurisdiction. More so, since a final appeal against any order passed by the Accountability Court has been provided to this Court as per Section 32 of the Ordinance.

Further Learned Counsel has submitted that the issue before the Learned Accountability Court is not the Private Respondents title to the properties in question but as to the means through which such title was acquired-allegedly through the ill-gotten wealth of the Accused. Conse­quently, the declaration sought by the Private Respondents in the Suits as per the Prayer Clause "A" of the Plaints could not be granted in terms of Section 42 of the Specific Rielief Act since such prayer pertains to the lawful acquisition of the properties, which have been frozen by the Court.

Finally, Learned Counsel has submitted that Section 56(e) of the Specific relief Fact, which provides that no declaration can be given to stay proceedings in any criminal matter is a complete bar to the filing of the suits and consequently, they should have been dismissed on this short ground alone.

In support of his submissions Learned Counsel has relied upon : Naya Daur Motors (Pvt.) Ltd. v. Federal Investigation Agency, C.B.C., Karachi and another (2000 MLD 1384), Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd., Lyallpur and 2 others (PLD 1978 SC 305) National Petrocarbon (Pvt.) Ltd. and 2 others v. Registrar of Trade Unions and 6 others (1989 CLC 1975) and (PLD 1971 S.C. 677).

Appearing for the private Respondents Mr. Abid S. Zuberi's main argument is that the said Respondents are not parties before the Learned Accountability Court and hence they are not in a position to protect their interest before it since their plea is that they are the owners of the properties in their own right, which have been frozen and these have been obtained through legitimate means and bona fide from their own sources. He has further submitted that on the properties of these private Respondents up-to-date income tax and wealth tax have been paid. Consequently, a per Learned Counsel. Section 42 of the Specific Relief Act would squarely apply to the facts of the matter as the private Respondents are seeking a declaration as to the ownership and title of the properties, which have been frozen. In this regard, he has referred Clauses B and C of the Plaints in the various suits. Further more, as per Learned Counsel, Section 9 of the CPC, applies to the case which provides that all suits of a civil nature shall be tried by the Courts established by law unless their cognisance is either expressly or impliedly barred by any law.

Secondly, Learned Counsel has referred to the Application under Order VII, Rule 11 CPC filed by the Appellant, which was also apparently not allowed vide the impugned order. Per Learned Counsel as a copy of the freezing order dated 13.8.2000 was filed alongwith the said Application, the Plaint could not be rejected on this basis as the said order was not a part of the Plaint.

Next Learned Counsel has submitted that videthe Accountability Court's Order dated 7.10.2000, the freezing order imposed by the National Accountability Bureau had been set aside, which would thus mean that as the Accountability Court is no longer seized with the freezing order, consequently, no objections could be filed by the Respondents in the said Court as regards the properties in question. Continuing in this vein, Learned Counsel has further submitted that after the passage of the order dated 7.10.2000, the applications filed by the Appellant. Under Order VII, Rule 11 CPC had become infructuous and so also the present Appeals.

In support of his propositions Learned Counsel has relied upon Central Co-operative Bank Ltd. Sargodha v. Ahmed Baksh (PLD 1970 S.C. 343). As regards the other authorities cited by Mr. Munir A. Malik appearing for the Appellants on the issue whether any criminal proceedings can be 'challenged by virtue of a civil suit, Learned Counsel has submitted that those cases are distinguishable as the facts are different.

Mr. S. Tariq Ali appearing for the Federation of Pakistan and Mr. Muhammad Sarwar Khan, Learned Addl. Advocate General, have adopted and supported the arguments of Mr. Muneer A. Malik.

We have heard both the Learned Counsel and our conclusions are as follows :—

It would be seen that the main objection of the private Respondents to the proceedings before the Learned Accountability Court as regards the freezing order dated 13.8.2000, which concerns the Respondents properties, is that they are neither witnesses nor the Accused before the said Court and consequently not in a position to protect their rights. A short answer to this objection is that as per Section 13 of the Accountability Ordinance, the Accountability Court has been given the exclusive jurisdiction to entertain and adjudicate upon all claims/objections against the freezing of any property. The provisions of this Section, in our view, essentially contemplate that the persons who are the ostensible owners of the property would be given notice of the said freezing order so that they would be enabled to file objections, which thereafter would be tried and adjudicated by the Accountability Court. This is also in keeping with the well recognized maxim of law that nobody can be condemned unheard and has been endorsed by the Hon'ble Supreme Court in a number of cases whereby it has been held that it would be read in every statute, although not specifically provided therein.

With regard to Mr. Zubairi's contention that in view of the Accountability Court orders dated 7.10.2000, the Chairman NAB's order dated 13.8.2000 freezing the private Respondents properties is no more in existence and hence no objections could be filed by the private Respondents under Section 13 of the Ordinance, our view is that keeping in mind the settled law, these Respondents would have the right to challenge any adverse finding or order, if made against them, by filing appeals in view of the observations made by the Supreme Court in the case of H.M. Saya & Co., Karachi vs. Wazir All Industries Ltd., Karachi reported in PLD 1969 SC 65. They may also be provided an opportunity of defending themselves as per law before the learned Accountability Court as by virtue of the mere fact that their properties have been mentioned in the Reference and Charge against the Accused, the Respondents would come within the definition of an aggrieved person as is envisaged in the case of H.M. Saya & Co., Karachi vs. Wazir Ali Industries Ltd., Karachi (supra). Secondly, it would be seen that as per the Scheme of the Ordinance, the Accountability Court has been given exclusive jurisdiction to hear and adjudicate all issues arising out of the References made to it by the Chairman of the National Accountability Bureau in which event, in our view, no exception can be taken to the freezing order dated 13.8.2000 with which the private Respondents are aggrieved. In this regard, reference can be made to Khalid Mehmood v.Collector of Customs (1999 SCMR 1181) wherein the Hon'ble Supreme Court has held that where an exclusive Tribunal or Court has jurisdiction in a matter but the legislation creating such Court or Tribunal or conferring jurisdiction on the same also ends up by providing the Appellate or Revisional jurisdiction to the High Court against the final judgment/decision then the High Court would normally not entertain proceedings challenging the legality of such final judgment/decision or any interlocutory order passed therein except in very rare and exceptional circumstances. Applied to the facts of the present matter, therefore, we are of the opinion that where the ordinance provides for complete adjudication of the rights of the Accused as well as those whose properties have been frozen, the units, which were filed in order to legitimize the Private Respondents title over such properties were misconceived. It would also be seen that the title of the Private Respondents to the properties in question is not in issue as the same has never been challenged before the learned Accountability Court but, on the other hand it is the case of the Prosecution that money invested in acquiring these properties was obtained through ill-gotten means by the Accused and provided to the Private Respondents for acquiring properties in their names. In this regard we also seriously doubt whether any declaration/injunction can be given under the specific Relief Act to legitimize the means of acquiring title over immovable property.

Next It would be seen that Section 56-E of the Specific Act specifically enjoins that an injunction cannot be granted to stay proceedings in any criminal matter. By virtue of the impugned order although the proceedings before the learned Accountability Court have not been stayed, however, the learned Single Judge has upheld the maintainability of the suits and decided to investigate the issues before him viz. whether the property is benami and if so whether it can be attached and ultimately sold if the charges against the accused are proved. In our opinion, these are the issues which the learned Accountability Court would be called upon to answer once the matter went to trial before it, in so far as the properties of the Private Respondents are concerned. Thus, assumption of jurisdiction in the matter virtually amounts to usurping the jurisdiction of the trial Court regarding the issues of ostensible ownership of the properties and the sources of money by which such properties were acquired because obviously both the Courts cannot proceed to decide this issue simultaneously. Consequently, we are of the opinion that embarking upon an inquiry as to the ostensible ownership of the properties and the source of money would be in violation of Section 56-E of the Specific Relief Act, which particularly prohibits grant of any injunction to stay proceedings in a criminal matter. Reference in this connection can be made to National Petrocarbon (Pvt.) Ltd. and 2 others v. Registrar of Trade Unions and 6 others (1989 CLC 1975) and Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd., Lyallpur and 2 others (PLD 1978 Lahore 305). Finally, it would also be seen that the assumption of jurisdiction by the Learned Single Judge specifically militates against the scheme of the Ordinance which provides for a procedure whereby Accountability Courts have been established throughout the country to bring corrupt persons to book and the moneys which they have made unlawfully, recovered, for the general good of the country. Such a procedure essentially contemplates the eradication of corruption and corrupt practices and as provided in Section 12 of the Ordinance gives the power to the Chairman of the National Accountability Bureau or the Accountability Court to freeze the property of any person being tried for an offence before it which is either in his possession or in the possession of any relative or any other person on his behalf. This in our view is a salutory provision of law because given the present state of our society and the rampant corruption which exists at all levels, there was no other option but to create such a machinery so that an Accused could not avoid the reach of the law by transferring his assets/properties in the names of his close relatives and associates or acquiring the same in the name of his relatives and/or associates from ill-gotten money. So also it would be seen that adequate provisions have been made in the Ordinance whereby those persons who are aggrieved by such freezing orders can file their objections before the Court as provided in Section 13 of the Ordinance. A somewhat similar provision was enacted by virtue of Section 7 of the Offences in Banks (Special Courts) Ordinance, 1984 which provides that after the Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person such person or any relative of such person or other person on his behalf shall not without the previous permission in writing by the Special Court, transfer, or create a charge on any immovable or movable property owned by him or in his possession while proceedings are pending before the Special Court. In Naya Daur Motors (Pvt.) Ltd. v. Federal Investigation Agency, C.B.C. Karachi and another(2000 MLD 1384), a learned Single Judge of this Court while considering Section 7 of the aforemen­tioned Ordinance had come to the conclusion that the said section read with Section 8 of the Ordinance contemplates that the mere possession of any property by the accused ir by his relatives/associates would give rise to the presumption that such property was ill gotten and proving otherwise would lie upon the accused or hi.\ relatives/associates. In our view, Section 7 of the Offences in respect of b£ iks (Special Courts) Ordinance, 1984 is in para-materia with Sections 1.2 and 13 of the National Accountability Bureau Ordinance. Thus, in our opinion, where the Accountability Court is seized with the precise issue of determining the source of money involved in acquiring the properties in question and whether they are ostensibly owned by the Private Respondents or actually by the Accused, this Court would not have any jurisdiction to entertain these issues through a civil suit and to that extent we were of the opinion that the suits are misconceived. To hold otherwise would be to thwart the accountability process itself because obviously where the title to such properties is being adjudicated by a Civil Court, or more precisely the means of acquiring such title, the Accountability Court would be prevented from proceeding on this issue, which is the main issue before it.

We have already observed that the main concern of the private Respondents seems to be their non-existence before the learned Accountability Court either as accused for witnesses. In this regards, as adverted to earlier we have no doubt that the Learned Accountability Court would accord a proper opportunity to the Private Respondents before passing of final order.-, in keeping with the well established principle of audi alteram partem earlier referred to. Similarly, the Private Respondents, if aggrieved by the final orders of the learned Accountability Court shall have the right to appeal the same. Order accordingly.

For all the foregoing reasons, we would allow the Appeals and set aside the impugned orders. We would also dismiss the suits as not being maintainable. A copy of this order shall be circulated amongst all the Accountability Courts in the Province of Sindh for compliance.

(AAJS) Appeal allowed.

PLJ 2001 Karachi 298

Present: faiz muhammad qureshi, J.

JAN MUHAMMAD-Appellant

versus

Mst. HANIFA and another-Respondents

F.R.A. No. 48 of 1994, decided on 31.3.2001.

Sindh Rented Premises Ordinance (XVII of 1979)--

—-S. 21-Appeal against dismissal of ejectment application-Tenants (respondents) did not examine themselves before Rent Controller-Rent Controller had not given finding on issue on default in payment of rent-­ Judgment passed by Rent Controller appears to be in slipshod manner and he had not taken into consideration entire facts of case-Appellant (landlord) on basis of evidence on record has been able to make outprima facie case for acceptance of appeal-Respondents (tenants) were directed to vacate demised premises and hand over vacant possession of demised premises to appellant within specified period. [P. 301] A

Mr. KB. Bhutto, Advocate for Appellant.

Mr. M.A. Latif Qureshi, Advocate for Respondents.

Date of hearing: 29.3.2001.

judgment

The present Appellant has called in question the Impugned Judgment dated 31.10.1993, passed by IV Rent Controller, Karachi South in Rent Case No. 358 of 1987, whereby the learned Rent Controller has dismissed the ejectment Application moved by the Appellant, hence this Appeal.

Brief facts of the case are that the Appellant is the owner of building situated on Plot No. O.T.7/26, known as Kashan-e-Kausar Building, Imambargah Street, Old Town Quarters, Karachi; Whereas the Opponent/Respondent No. 1 is his tenant in respect of the residential tenement situated on 5th Floor of the said Building at the monthly rent of Rs. 88/25 excluding electric and gas charges. Respondent failed to pay rent since December 1986 as such he is wilful defaulter.

Respondent No. 1 in December, 1986 also sub let the demised premises to Respondent/Opponent No. 2 without any consent of Opponent Respondent No. 1 and, therefore, Respondent/Opponent No. 1 rendered himself liable to be ejected from the demised premises on the ground of default and subletting. The Opponents/Respondents were duly served and they have filed their Written Statement whereby they denied that they have committed any default; after refusal of Money Order dated 4.2.1987, by the Applicant/Appellant, they are depositing rent in MRC No. 264 of 1986; they have also denied the allegation of subletting and finally they have prayed for dismissal of this case. The matter was disposed of under Section 16(2) of Sindh Rented Premises Ordinance, 1979 on 13.3.1988 but it was remanded by this Court videorder dated 25.1.1989. Subsequently, after another successful finding in favour of the Applicant, on 21.5.1990 which were uprooted on 8.8.1991 the matter proceeded. The attorney of the Applicant/Appellant filed Affidavit-in-evidence who has been subjected to cross-examination; he produced old receipts and copy of one notice.

On the other Respondents/Opponents in spite of several opportunities failed to lead any evidence.

After hearing the learned Counsel for the parties and having gone through the evidence adduced by the Appellant and other material on record, the learned Rent Controller formulated the following points for determination-

1. Whether the Opponent No. 1 has committed any default ?

2. Whether the Opponent No. 1 has sublet the case premises to Opponent No. 2 ?

3. What should the order be ?

After hearing the learned Counsel for the parties the learned Rent Controller passed the judgment in terms as stated above.

At the very outset, Mr. K.B. Bhutto, learned counsel for the Appellant has invited my attention on the Order-sheet dated 18.5.1999 wherein it is mentioned that it was pointed out that Mr. M.A. Latif was informed that he was never enrolled as an Advocate of the High Court, which fact has been recently circulated by the Sindh Bar Council. In these circumstances, the matter was adjourned and notice was issued directly to Respondents for the next date of hearing. Show-cause notice was also issued to Mr. M. A. Latif to show-cause as to why the matter should not be referred to Sindh Bar Counsel for his professional mis-conduct in view of Legal Practitioner Bar Council Act, 1973. Order Sheet dated 16.11.1999 reveals that intimation notice issued to Respondents have been returned un-served by the bailiff with the report that none of them was present at the given address and he was informed that they do not live there. Notices were repeated in ordinary course, by courier service and by affixation at the cost of the Appellant. Order Sheet dated 7.12.1999 reveals that notice has been served through courier service. However, none was present on behalf of Respondents. Office was directed to send intimation notice to respondents for the date of hearing. The Bailiff was directed to affix the intimation notice at the out door at the last known address, in case any body refused to accept the notice. Order sheet dated 21.12.1999 reveals that intimation notice has been issued to Respondents in the ordinary course, by courier service and affixation of the notice at the outer door at the last known address; none of them made their appearance of the aforesaid mode of services. In these circumstances, the appeal was directed to proceed exparte against the Respondent No. 1.

Mr. K.B. Bhutto for the Appellant submits that learned Rent Controller has not based his finding on Point No. 1 with regard to default on sound reasons and has mentioned in his finding that the report of Nazir, who has given clean bill of health to the Respondent/Opponent and no case on this point is made out. Consequently, the learned Rent Controller has given his findings in negative against the Appellant/Applicant. The findings of learned Rent Controller on Point No. 2 with regard to subletting is not elaborative; Mr. K.B. Bhutto has also drawn my attention to evidence of the Appellant's attorney, who has supported the averments of his Application and he has also been subjected to cross-examination but nothing has been extracted from his mouth to establish that default has not been committed by the Respondent. He has further drawn my attention that neither the Respondents/Opponents have examined themselves on oath nor they led any evidence and the Statement of the attorney of the Appellant has gone un-shaken even in cross-examination. He has further argued that learned Rent Controller has not taken into consideration the entire evidence of the Appellant and has not taken into consideration the cross-examination; on the contrary the default has been proved and subletting has also been proved.

I have given my anxious consideration to the argument rendered by the learned Counsel for the Appellant and have examined the affidavit in evidence and cross-examination and the material available on record.

The startling point is that the Respondents have not examined themselves before the learned trial Court; more over the learned Rent Controller has not given his finding on Point No. 1 with regard to default and no report of Nazir was produced before the learned Rent Controller as argued by Mr. K.B. Bhutto and more over the Report has been taken into consideration by the learned Rent Controller and the Judgment passed by the learned Rent Controller appears to be in slipshod manner and he has not taken into consideration the entire facts of the case.

In view of the above discussion I am of the considered view that the Appellant has been able to make out a prima facie case for grant of above Appeal; accordingly, I set aside the impugned Judgment, Appeal is allowed; the Respondents are directed to vacate the demised premises and hand over the vacant peaceful possession of the demised premises to the Appellant within three months from today.

(A.A.) Appeal accepted.

PLJ 2001 Karachi 301 (DB)

Present: SABIHUDDIN AHMED AND S. ALT ASLAM JAFRI, JJ.

Messr. FAZAL COTTON INDUSTRIES-Appellant

versus

Messrs. COTTON EXPORT CORPORATION OF PAKISTAN (PVT.) LTD. KARACHI-Respondent

H.C.A. No. 43/2001 and C.M.A. No. 490/2001 decided on 21.3.2001.

Constitution of Pakistan, (1973)--

—Art. 203-D-Constitution requires that a decision of Federal Shariat Court can be deemed to effect only upon expiry of period of limitation within which an appeal before Supreme Court could be preferred or where such appeal has been preferred till decision of Supreme Court (Shariat Appellate Bench)--Moreover, Hon'able Supreme Court is entitled to fix a date upon which it's judgment will become effective. [P. 1A]

Mr. Saalim Salam Ansari, Advocate for Appellant. Date of hearing: 21.3.2001.

judgment

Learned counsel contends that the learned Single Judge should have declined to treat such laws as operative which had been held to be repugnant to the Injunctions of Islam by the Hon'ble Federal Shariat Court. The contention, we are afraid is entirely misconceived. The proviso to Article 203-D of the Constitution requires that a decision of the Federal Shariat Court can be deemed to effect only upon the expiry of the period of limitation within which an appeal before the Supreme Court could be preferred, or where such appeal has been preferred till the decision of the Supreme Court (Shariat Appellate Bench). Moreover, the Hon'ble Supreme Court is entitled to fix a date upon which its judgment will become effective. In view of the above there is no substance in the appeal which is dismissed in limine alongwith the listed application.

(N.R.) Appeal dismissed.

PLJ 2001 Karachi 302

Present: SARMAD JALAL OSMANY, J.

AL-WARIS TRADERS-Plaintiff

versus

FEDERATION OF PAKISTAN through SECRETARY FINANCE AND EX-OFFICIO, CHAIRMAN C.BR. ISLAMABAD and 3 others-Defendants

Suit No. 699 of 1999, decided on 14.5.2001.

(i) Income Tax Ordinance (XXXI of 1979)--

—-Ss. 50 (7-A) & 80-C (3) & (4)-Specific Relief Act (I of 1877), S. 42-Demand for payment of advance Income Tax assailed by plaintiff claiming that such obligation was only upon defendant corporation as also that specified clause of agreement between plaintiff and defendant corporation was without jurisdiction, unlawful void ab-initio and unenforceable as the same obliges plaintiff to pay advance Incometax-Validity-Provision of S. 50 (7-A) of Income Tax Ordinance 1979, prescribes that advance Income Tax has to be paid by buyer of Government Property which is to be calculated on basis of sale price as per the specified rate and is to be collected by seller of such property and finally deposited in Government Treasury; and that advance tax so collected is to form part of Income Tax paid on behalf of purchaser which fact would indicate that such advance tax has to be paid by purchaser-Plaintiffs plea that Assistant Commissioner of Income Tax was not entitled to demand Impugned tax from plaintiff was repelled on the ground that no provision of Income Tax Ordinance 1979, prohibits defendant official from demanding tax which is payable as a matter of law-Plaintiff having purchased Government property, he was obliged to pay advance Income Tax as per terms of S. 50 (7-A) of Income Tax Ordinance, 1979. [P. 309 & 311] A, B

(ii) Income Tax Ordinance (XXXI of 1979)-

—-S. 50 (7-A)--Specific Relief Act (I of 1877), S. 42-Suit for declaration- to the effect that plaintiff was not obliged to pay advance Income Tax on purchase of Government property-Maintainability-Where Impugned order was either corum-non-judice, without jurisdiction, malafide or unlawful then in such circumstances and eventualities non-obstante clauses, which were frequently found in various enactments barring jurisdiction of Civil Courts would not operate so as to non-suit plaintiff— In plaintiffs case, however, obligation to pay and demand advance Income Tax by/from plaintiff does not violate any provision of law, therefore, suit for declaration filed by plaintiff was not maintainable. [P. 311] C

PLD 1964 SC 536; PLD 1997 Kar. 62; 1982 (138) ITR 462; PLD 1993 SC 176;

PLD 1997 SC 582; PLD 1966 Kar. 31; 1991 CLC 694; PLD 1997 SC 3; PLD

1987 SC 447; 1998 PTD 3923; 1998 PTD 2884; 1999 PTD 1313 ref.

Mr. Farogh Nasim, Advocate for Plaintiff. Mr. Nasrullah Awan, Advocate for Defendant No. 2. Mr. Sirqjul Haq Memon, Advocate for Defendant No. 4 with Mr. Yasin Kayani.

Ch. Muhammad Rafique, Addl. A.G. for Defendant No. 3. Dates of hearing: 4.6.1999; 7.6.1999; 11.3.2001 & 22.3.2001.

judgment

This is a suit for declaration, permanent injunction and refund/adjustment whereby the Plaintiffs have prayed inter-alia for a declaration that they are not obliged to make any payment of advance Income tax under Section 50 (7A) of the Income Tax Ordinance, 1979, that such obligation is only upon Defendant No. 4 i.e., KMC; so also it has been prayed that Clause 4 of the Agreement dated 4.7.1998 between the Plaintiff and KMC be declared as being without jurisdiction, un-lawful, void ab-initio and unenforceable as it obliges the Plaintiff to pay advance income tax. Similarly, a declaration has also been sought to the effect that the advance income tax so far paid by the Plaintiffs in the amount of Rs. 1,12,54,048/-alongwith mark-up at the rate of 20% be adjusted with the Plaintiffs obligation to pay the contractual price to KMC as per agreement between the parties. Finally, it has been prayed that the Defendants be restrained from recovery of advance income tax from the Plaintiffs in any manner.

The brief facts of the matter are that admittedly the Plaintiff and the Defendant No. 4 entered into an agreement dated 4th July, 1998 whereby the Plaintiff was awarded a contract to collect octroi on the goods imported within the KMC Limits during the contract period for certain octroi posts located at the Karachi Airport. Certain disputes have arisen between the parties as to payment of advance income tax by the Plaintiff in accordance with Clause 4 of the above mentioned agreement. It is the Plaintiffs contention that said Clause violates Section 50 (7A) of the Income Tax Ordinance whereby it has been prescribed that the obligation to pay advance income tax in relation to the lease hold rights to collect octroi duty would be that upon the seller of such lease hold rights viz; KMC and not upon the Buyer thereof which in the present case is the Plaintiff. Consequently, it has been maintained by the Plaintiff that Clause 4 of the agreement whereby they have been obligated to make such payment is un enforceable and of no legal effect being violative of Section 23 of the Contract Act. In the circumstances, it has been averred in the Plaint that there could not be any estoppel against the statute or the Constitution as even if the parties have agreed to fulfil certain obligations the same could not be implemented if they are against the law. In the final result it has been pleaded that the amount so far paid over to the Income Tax Department viz; Rs. 11,25,042/- alongwith 20% mark-up which approximately comes to Rs. 11,27,000/- be adjusted against the Plaintiffs liability towards the KMC in terms of the letters contractual obligations per the Agreement dated 4.7.1998.

In reply to the above contentions as raised in the Plaint the Defendant No. 4 viz. KMC has, through Counter Affidavit to CMA No. 3826/99, which has been treated as its Written Statement by consent, raised preliminary objections to the effect that the suit is barred under Section 162 of the Income Tax Ordinance and Section 117 of the Sindh Local Government Ordinance, 1979. On merits it is stated in such Counter Affidavit that the Plaintiff has completely misinterpreted the Provisions of Section 50 (7A) of the Income Tax Ordinance. Accordingly to the Defendant No. 4, in terms of said provision the charge of tax is on the person to whom the property is sold i.e., Plaintiff and not KMC who is only to collect such advance income tax and deposit it in the Treasury. Similarly, Section 50 (7B) of the same Section treats such collection as income tax paid on behalf of the purchaser, which further clarifies the position that such tax in fact has to be paid by the Plaintiff and only collected by KMC and deposited into the Treasury. It is further submitted on behalf of the Defendant No. 4 that as per the provisions of Section 80-C of the Income Tax Ordinance under sub­section (2)(a)(iii) thereof the amount on which tax is deductible under Section 50 (7A) is deemed to be the income of the Plaintiff and consequently under sub-section (3) it cannot claim any refund so collected or deducted under Section 50, Finally, under sub-section (4), the tax so collected is the final discharge of the Plaintiffs liability under the Ordinance where no the Plaintiff has no other source of income.

It is next contended by KMC that the Plaintiffs obligation to pay advance Income tax under Section 50(7A) of the Ordinance has nothing to do with the amounts so far deposited by it with the Nazir of this Court in connected Suit No. 1102/1998 which also relates to the rights and obligations of the parties regarding the same contract for collection of octroi at Karachi Airport. This is for the reason that the obligation to pay advance Income tax was absolute in terms of Section 80(C) of the Ordinance, therefore, no exceptions can be taken to the same. Finally, it has been averred that as no case has been made out by the Plaintiff on merits and since even otherwise the suit is not maintainable in terms of the ouster clause contained in the Income Tax Ordinance same merits dismissal.

As only legal issues were involved, the parties did not lead any evidence and restricted themselves to their pleadings and the documents already on the record plus a few submitted at the time of arguments which have been admitted by them. The Learned Counsel by consent agreed to argue the matter finally and consequently the following issues were framed:-

1. Whether the suit is maintainable ?

2. Whether the Defendant No. 2 is entitled to demand the impugned advance tax from the Plaintiff ?

3. Whether the Plaintiff is obligated to pay the impugned demand of advance Income Tax in terms of the agreement between the Plaintiff and Defendant No. 4 as well as under the law ?

4. What should the decree be ?

By consent the documents produced alongwith the plaint, Counter Affidavit and Rejoinder were exhibited and so also a few documents viz, copy of order dated 10.2.1999 passed in Suit No. 1102 of 1998 and letters of demand dated 3.5.1999, 20.5.1999 and 25.5.1999 issued by the Assistant Commissioner of Income Tax upon KMC.

On the above facts and circumstances, Dr. Farogh Naseem, Learned Counsel for the Plaintiffs, has submitted that Section 50(7A) is an exception to Section 50(4A) of the Income Tax Ordinance which provides that any person making any payment to any other person which is covered by Section 50 has to deduct advance Income Tax from such payment and deposit the same in the Treasury. However, under Section 50(7A) a person who sells Government property viz. KMC is to collect advance Income Tax on such sale and pay it into the Treasury. Consequently, in the opinion of the Learned Counsel, the obligation to pay such advance income tax is upon KMC who is to collect the same from the Plaintiff on the basis of the sale price of such property, which is provided in para-11 of the first schedule to the Income Tax Ordinance i.e., at the rate of 5% of such sale price. Learned Counsel emphasised that the term "5% of the sale price" does not mean in addition to the sale price. As per Learned Gov'isel, if KMC would collect 5% over and above the sale price this would become indirect tax which cannot be permitted since income tax is only a direct tax and the conclusion is in escapable that the sale price (contract price) includes the 5% of advance tax. Consequently,. Learned Counsel has submitted that as Clause 4 of the Agreement between the parties obliges the Plaintiff to pay advance Income tax over and above the value of the contract price, this cannot be sustained in terms of Section 23 of the Contract Act which provides that every agreement of which the object or consideration is unlawful is void some of which such agreements have been described in the said section as one which is forbidden by law or is of such nature that if permitted, it would defeat the provisions of any Saw, In support of this proposition Learned Counsel has cited the following cases:

E.A. Evans vs. Muhammad Ashraf (PLD 1964 SC 536), Abdul Rahim and 2 others vs. Messrs United Bank Ltd. of Pakistan (PLD 1997 Karachi 62), M.L.M. Muthiah Chettiar vs. Commissioner of Income-Tax, Madras (1959 (;I5) ITR 339), Commissioner of Income-Tax., Meerut vs. Hari Raj Swarup & Sons (1982 (138) ITR 462).

The second leg of Dr. Farogh Naseem's argument is that in the connected Suit No. 1102/1998, this Court had passed an order on 1.10.1998 whereby the Plaintiff hud deposited its entire octroicollection with the Nazir of this Court for the month of November and December, 1998 as well as January and February, 1999. Consequently, in any event no further advance tax is payable for these months as otherwise it would be against the Plaintiffs fundamental rights. Explaining this line of argument Learned Counsel submits that it would be unfair and immoral to demand advance tax when the entire earnings of the Plaintiffs for the months above mentioned have been deposited with the Nazir of this Court and which have been subsequently released to the KMC. Learned Counsel says that where no income is being generated by the Plaintiff it cannot be taxed in any event. For this proposition reliance is placed upon : Government of Pakistan vs. Muhammad Ashraf (PLD 1993 SC 176), 'Messrs. Ellahi Cotton Mills vs. Federation of Pakistan (PLD 1997 SC 582).

Regarding the issue of estoppel raised by KMC viz. that since previously the Plaintiff has been depositing advance Income Tax separately with the Revenue Department, it is now estopped from disputing such payment, Learned Counsel submits that their can be no estoppel against the law for which proposition, he has relied upon : Ch. Rehmat All vs. Custodian, Evacuee Property, Lahore (PLD 1966 Karachi 31) and The Committee' of Receivers of Assets of Mr. Abdul Wahab Galadari vs. Abdul Wahab Ebrahim Galadari (1991 CLC 694).

Finally, as regards the bar cf jurisdiction contained in the Income Tax Ordinance as well as the Sindh Local Bodies Ordinance, 1979 Learned Counsel submits that as the demand of Income Tax is not within the four corners of the statute such bar would not apply to the facts of the present case. Reliance has been placed on :

Abbasia Cooperative Bank us. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 3), Utility Stores Corporation of Pakistan Ltd. vs. Punjab Labour Appellate Tribunal (PLD 1987 SC 447), M/s. Tri-Star Industries (Pvt.) Ltd. vs. The Commissioner of Income Tax Companies, Companies-I, ' — Karachi (1998 PTD 3923), Abbas Shroff vs. Miss Farzana (1998 PTD 2884), Asia Petroleum Ltd. vs. Federation of Pakistan through Secretary Finance (1999 PTD 1313).

On the other hand, Mr. Sirajul Haq, Learned Counsel for the Defendant No. 4 viz. KMC has argued firstly that the entire bargain between the parties was founded on the clear understanding that the advance payment of the Income Tax is a separate obligation of the Plaintiff well apart from the contractual value and would have to be paid alongwith monthly instalments of the said contractual value. In this regard, he has referred to the notice put up by the Plaintiff on its Notice Board on 13.6.1999 inviting tenders for KMC's octroicollection which was thereafter published in the official gazette. Similarly, Condition No. 38 of the terms and conditions regulating such tender also provides for advance tax which has been reflected in no uncertain terms in Clause 4 as well as Clause 7 (33) of the agreement under consideration whereby it has been clearly stipulated that the advance income tax has to be paid alongwith monthly instalments of the contractual value.

According to the Learned Counsel therefore, the parties once having clearly understood and undertaken that advance income tax would be payable by the Plaintiff over and above the monthly instalments it should be bound to such bargain which should not be disturbed on a faulty or hyper-technical interpretation of the law.

On the legal plane Learned Counsel submits that Section 80C (1) of the Income Tax Ordinance has introduced a presumptive regime of Income tax whereby any amounts received thereunder or arise or are deemed to accrue or arise to any person being a resident, shall be deemed to be income of the said person and tax thereon shall be charged on the rates as specified in the First Schedule, sub-section 80C (3) further provides that allowance or deduction against the income as determined under Section 80C(1) or any refund of tax deducted or collected under Section 50 shall not be allowed and accordingly sub-section 80C(4) provides that where the assessee has no income other than the income referred to in sub-section (1) in respect of which tax has been deducted or collected under Section 50, this shall be deemed to be the final discharge of his tax liability under the Ordinance and he shall not be required to file the return of total income under Section 55. Thus according to the Learned Counsel Section 80C(2)(a)(iii) is squarely applicable to the Plaintiffs case as it provides that the amount on which the Plaintiff would be taxable is the amount on which tax is deductible under Section 50(7A) of the Ordinance. Hence, in Learned Counsel's opinion Section 50(7A) of the Ordinance read with Section 80C(2)(a)(iii) makes it clear that it is the Plaintiffs obligation to pay advance income tax on the contractual value of the right to collect octroi duty on KMC's Octroi Posts at the Karachi International Airport more so since Section 50 (7A) provides for advance tax on sale price which could then never be inclusive of such price. Consequently, there is no violation of the law which would entitle this Court to assume jurisdiction in the matter so far as the payment of advance income tax is concerned by KMC or the Plaintiff. In support of his contention Learned Counsel has cited Messrs Elahi Cotton Mills vs. Federation of Pakistan (supra) wherein the Hon'ble Supreme Court has upheld the provisions of Section 80-C and 80-D of the Ordinance declaring that the same are not expropriatory in nature but a lawful exercise in legislation which in some cases are beneficial to the assessee as the same avoid the filing of income tax returns and subsequent assessment etc. Secondly, Learned Counsel has contended that Clause 88 of the Second Schedule to the Income Tax Ordinance exempts KMC from all charge of Income Tax by virtue of Section 14 thereof and hence it would be contradictory to hold that KMC was obligated towards the payments of tax since it would not be in accordance with the law. Consequently, Learned Counsel has contended that as there is no element of mala fides or lack of jurisdiction or coram non judice and also as no case has been made out for the violation of Section 50 (7A) of the Ordinance the suit would be barred under Section 162 of the Ordinance as well as under Section 117 of the Sindh Local Government Ordinance 1979.

Both Mr. Nasrullah Awan and Mr. Yaseen Kiyani have adopted the arguments of Mr. Sirajul Haq Memon.

In rebuttal Dr. Farogh Naseem Learned Counsel for the Plaintiff has submitted that nothing turns on Clause 7(33) of the Agreement between the parties viz. the Plaintiff and the KMC as the words used are the same as in Clause 4. Similarly, according to the Learned Counsel the terms and conditions upon which the auction of the octroiposts was to be held as well as the auction notice and the policy issued by the Government of Sindh Local Government Department are also not germane to the issues in the present suit. As per Learned Counsel it is an admitted position that the Plaintiff in terms of all these documents had to pay advance income tax. However, the issue is whether in terms of Section 50(7A) this obligation was enforceable at law since such advance income tax in terms of said section was to be paid by KMC.

As regards the application of Section 80-C of the Income Tax Ordinance Learned Counsel submits that the word used in the relevant portion thereof viz; 80-C(2) (iii) is "deductible" and not "collectable" and therefore it does not apply in the present case, since it is clear from the wording of said sub-section that the tax to be paid by an assessee thereunder is on the amount deductible as advance tax under such octroi contract.

Whereas in Section 50 (7A) said advance tax is to be collected by KMC. Conversely Learned Counsel has argued that where the above said sub­section is applied to the Plaintiffs case then it furthers the argument that KMC would have to pay advance tax on whatever they have collected from the Plaintiff viz. the contractual amount. Further Learned Counsel submits that in any even as this Court has in the connected Suit No. 1102/1998 ordered that all the Plaintiffs receipts for December, 1998 and January, February, 1999 should be deposited with the Nazir therefore, there should be no question of any advance tax for these three months. Learned Counsel is of the opinion that the Ellahi Cotton Mills case does not go so far as to hold that even when there are no receipts tax is payable.

I have heard all the Learned Counsel and my conclusions are as follows :--

As the answer to Issue No. 1 viz. the maintainability of the suit is dependent upon Issues Nos. 2 and 3, 1 shall accordingly take up the latter issues first.

In this connection it would be seen that the entire controversy between the parties revolves round the interpretation of Section 50 (7A) and Section 80(C) of the Income Tax Ordinance. Section 50(7A) provides, inter alia, that any person making a sale by public auction of any property belonging to the Government or Local Authority shall collect the advance tax computed on the basis of the sale price of such property and at the rate specified in the first schedule from any person to whom such property is sold and credit for the tax so collected in any financial year shall, subject, to the provision of Section 53 be given in computing the tax payable by the purchaser. From a plain reading it would be seen that this is a charging Section as far as the Plaintiff is concerned and further enjoins the seller of the property viz. the Government/Local Authority to collect advance tax computed on the basis of the sale price of such property and at the rate specified in the first Schedule, from the person to whom such property is sold. Consequently, it is quite clear that in the present case KMC, who has auctioned the octroi posts to the Plaintiff, is to collect advance tax from the latter on the sale price of such property at the specified rate viz. KMC is merely a collection agency, Concurrently, the obligation to pay the advance tax, in my view, would be upon the Plaintiff. It would also be seen that the rate of advance tax is to be computed on the basis of the sale price of the Government property in accordance with the rates specified in the first Schedule which does not mean, in my view, that the advance income tax is to be necessarily included in the sale price. What Section 50 (7A) prescribes is in principle that advance tax has to be paid by the buyer of Government property which is to be calculated on the basis of such sale price as per the specified rate and is to be collected by the seller of such property and finally deposited in the Government Treasurery. Nowhere in Section 50(7A) is it stated',either in explicit or implicit terms that the advance tax payable thereunder must form a part of the sale price. Secondly, it would also be seen that Section 50(7B) further provides that the advance tax so collected in accordance with the Section 7A is to form part of the Income Tax paid on behalf of the purchaser which further supports the conclusion that such advance tax is to be paid by the purchaser.

It would also be seen that as per Section 80C(2)(a)(iii), the amount on which tax is deductible under Section 50 (7A), is deemed to be the income of the Plaintiff and consequently under sub-section (3) of Section 80C it cannot claim any refund so collected or deducted under Section 50. Finally, under sub-section (4) of Section 80C the tax so collected is a final discharge by the tax payer's (plaintiffs) liability where there is no other source of income. The above mentioned provisions would, therefore, further fortify the interpretation of Section 50(7A) of the Ordinance that the only charge made by the latter Section is upon the person who purchases public property. As to Learned Counsel's argument that the word used in the said Section is "deductible" and not "collectable", it is instructive to note that the legislature has used these two words interchangeably to convey the same meaning as evident from Section 80C(4). This further strengthens the conclusion that Section 50(7A) qua the seller of Government property merely nominates such seller as a collecting agency for the advance tax payable by the purchaser who remains obligated to pay the same. Consequently, in my opinion, there would be no bar upon the parties to enter into an agreement as they have done whereby the Plaintiff is obligated to pay advance income tax over and above the contractual value. For all the foregoing reasons, I am unable to agree with the proposition formulated by the Learned Counsel for the Plaintiff to the effect that the advance tax contemplated under Section <j(K7A) of the Ordinance is to be paid by the Plaintiff in the circumstances of the case.

Mr. Farogh Nasim's other submission is that since per Para 11 of the first schedule to the Income Tax Ordinance the rate prescribed with regard to advance income tax on the sale price is 5% of the same, therefore, this does not mean in addition to the sale price but means a part of the sale price. I am afraid, this argument is again without any merit as it merely prescribes the rate on tax and does not lay down whether it should be in addition to or in derogation of the sale price. As to Learned Counsel's argument that in any even no advance income tax is payable by the Plaintiff for the months of November and December, 1998 as well as January and February, 1999 since the Plaintiffs entire octroi collections have been deposited with the Nazir of this Court, vide order passed in Suit No. 1102/1998, suffice it to say that the quantum of such tax would be adjudicated when the said suit is decided and consequently at the present time it would not be obligated to pay any advance income tax.

For the foregoing reasons Issue No. 3 is answered in the affirmative.

As regards Issue No. 2 viz. whether the Defendant No. I who u thej Assistant Commissioner of Income Tax, is entitled to demand tht- impugned taxes from the Plaintiff. I have already held that the Plaintiff is in the circumstances of the case obligated to pay advance income tax over and above the contractual value. I have not been able to come across any provision of law, which prohibits the Income Tax Authorities from demanding tax which is payable as a matter of law and neither have the Learned Counsel been enable to suggest any thing to the contrary. Consequently, Issue No.\2 is also answered in the affirmative.

As regards Issue No. 1, the maintainability of the suit itself, it is! settled law that where the impugned order is either connn-von judicial without jurisdiction, mala fide or unlawful then in these amm^'amu. - anclj eventualities non-obstante clauses, which are frequently found ir. "ari;">'us! enactments barring the jurisdiction of the Civil Courts cannot operate so asi to non suit the Plaintiff. In the present case I have already Jieki '("hat the obligation to pay and demand advance income tax by/from the Plaintiff does -not violate any provision of law. Consequently, I would answer Issue No. 1 in the negative.

For all the foregoing reasons this suit is dismissed svith costs, however as observed earlier, the quantum of advance income tax payable by the Plaintiff would be adjudicated in Suit No. 1102/1998.

(A.A.) Suit dismissed.

PL J 2 001 Karachi 311

Present: muhammad moosa K. laghari, J.

PORT QASIM AUTHORITY and another-Applieants

Versus

MISTLE-2 CORPORATION through ITS PROPRIETOR-Respondent

C.R.A. No. 255 of 1998, decided on 6.4.2001.

(i) Administration of Justice-

—-Law favours vigilant and not the indolent.

NLR 1996 (Civil 423; 1991 CLC 291; PLD 1988 Pesh 33; PLD 1985 Lah. 327; PLJ 1987 SC 15; PLD 1995 SC 396; 2001 SCMR 99 and 1996 SCMR 1703.

(ii) Limitation Act, 1908 (IX of 1908)--

—S. 5-Civil Procedure Code (V of 1908), S. US-Dismissal of application under S. 5 of Limitation Act 1908, declining to condone delay in filing appeal and eventually dismissal of appeal being barred by time- Validity Creation of new District caused pending suit to the transferred to cnnrt io new District where the same was dismissed due to non-pro«?-"Ha-:m-- Application for condonation of delay in filing appeal as also appeal against dismissal of suit was dismissed-Original Court on account of transfer by administrative order was required to keep note of particulars of case and of the transferee court, so that when parties appear they should be intimated of the order of transfer-Original Court, thus, had obligation to direct parties to appear before transferee Court-Nothing, however, was on record to show that original court either kept note of particulars of' case or informed parties about transferee Court-Obligation of court with regard to directing applicant/defendants before transferee court was apparently not discharged—As for substitutive service allegedly effected on defendants same should be resorted to when all efforts to effect service in ordinary manner was verified to have failed—Order for substitutive service was passed in mechanical fashion and without proper application of mind-Such order was passed without ascertaining reasons for non- service and without verifying factum as to whether all other modes of service were exhausted and were rendered futile-Substantive service effected on defendants (applicants) being in violation of law same could not be deemed to be valid service—Judgment and decree in question, being perverse have resulted in gross injustice, same were not sustainable-Application for setting aside ex-parte decree was allowed and judgment and decree of Trial Court were set aide—Applicants, however being guilty of gross negligence, cost of specified heavy amount was imposed upon them-Such costs, however, would be deducted from the salary of officer/officers of applicant, due to whose negligence ex-parte order was passed. [Pp. 315 to 317] A, B, C, D & F

Mr. ArifKhan, Advocate for Applicants. Mr. Z.A. Malik, Advocate for Respondent. Date of hearing : 13.2.2001.

judgment

Through this Revision Application, the applicants have called in question the legality of the order dated 12.9.1998 passed by the Learned Additional District Judge, Malir Karachi in Civil Misc. Appeal No. Nil of 1998 whereby the learned Judge while dismissing an application under Section 5 of the Limitation Act 1908, declined to condone the delay in filing the Civil Misc. Appeal, and eventually dismissed the appeal being barred by time.

1. The facts of the case relevant for the disposal of this appeal are that the respondents were granted allotment of Plot Nos. 74-75 in Edible Oil and Molasses area for storage of edible oil by the applicants on certain terms and conditions in the year 1992 which was subsequently re-allocated. It appears that some disputes arose with regard to re-allotment and other terms and conditions which gave rise to the filing of Suit No. 1219/1993 by the Respondents in the Court of 1st Senior Civil Judge, Karachi East. The applicants appeared and filed written statement and counter affidavit to the injunction application. However, during the pendency of the suit Malir District was created and eventually the suit was transferred to the Court of Senior Civil Judge, Malir somewhere in 1994 by administrative orders Since the Applicants/Defendants failed to appear before the transferee Court inspite of publication of notice in newspaper, the suit was decreed exparte, vide Judgment and Decree dated 12.8.1996.

2. After the passing of the judgment and decree, the respondents appear to have filed an Execution Application notice of which was served upon the applicants. The Applicants filed an application under Order K, Rule 13 read with Section 151 CPC before the learned transferee/trial Court and the said application, after being heard, was dismissed.

3. The applicants then filed the aforesaid Civil Misc. Appeal and so also an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. Learned Appellate Court after hearing both the parties, dismissed the application for condonation of delay and simultaneously dismissed the civil misc. appeal holding the same to be barred by limitation.

4. I have heard Mr. Muhammad Arif Khan, advocate for applicants and Mr. Z.A. Malik, advocate for the respondents.

5. Learned counsel for1 the applicants contended that after the transfer of the suit, the applicants who were the defendants before the trial Court were entitled to the Court motion notice but no notice was served upon them. To further elaborate his arguments, he contended that the publication of the notice was made without observing the formalities as were necessary for the substituted service under the provisions of the Order V, Rule 20 CPC. He further submitted that the application moved on behalf of the applicants under Order K, Rule 13 CPC was dismissed by the learned trial Court in an arbitrary manner without considering the circumstances. Learned counsel next argued that the civil misc appeal could not be filed in time because the applicants were not informed about the disposal of their application under Order K, Rule 13 CPC by the Reader of the trial Court. He submitted that there was no intentional delay in filing the civil misc appeal, however, as an abundant caution, application under Section 5 of the Limitation Act was filed. He urged that the delay was not attributable to the applicants, therefore, the learned Appellate Court should have condoned the delay and ought to have heard the appeal on merits.

6. In support of the above contentions, following case-law was relied upon :-

(i) NLR 1996 (Civil) 423;

(ii) 1991 CLC 291;

(iii) PLD 1988 Peshawar 33 ;

(iv) PLD 1985 Lahore 327 ;

1. On the other hand Learned Counsel for the respondent contended that the fact about the transfer of suit to the concerned Court of Malir District was in the knowledge of the applicants, but they intentionally avoided. In any case, it was further contended that in view of the provisions contained under Section 24-A CPC it was obligatory on the part of the applicants/defendants to get themselves informed about the future date of hearing and the Court where the case had been transferred. Even then, a notice was published in the newspaper, Daily Nawai-Waqt dated 19.5.1996 but nobody appeared on behalf of the applicants. Learned counsel contended that the application under Order IX, Rule 13 CPC was rightly dismissed as the same was not maintainable. He also vehemently denied that the applicants were not in knowledge of the dismissal of their application under Order IX, Rule 13 CPC by the trial Court. Learned Counsel for the respondent supports the impugned order on the ground that the application for condonation of delay was rightly dismissed as the same was without force. In support of his contentions, learned Counsel for the respondent has relied upon the following case-law :--

(i) PLJ 1987 S.C. 15. (ii) PLD 1995 S.C. 396.

1. I have considered the arguments advanced and the law cited at the bar, and also examined the record.

2. From the contentions raised by the parties, it is evidently clear that the matter requires consideration with regard to the applicability of the provisions contained under Section 24-A C.P.C. and the provisions of substituted service as postulated under Order V, Rule 20 CPC.

3. With regard to obligation of the Court as well as the parties in respect of cases transferred from one Court to other Court, the law has been settled by the Honourable Supreme Court in the case titled; S. Irshad Hussain and another vs. Azizullah Khan and 3 others (PLJ 1987 S.C. 15) as relied upon by the counsel for the respondents.

4. The Apex Court while discussing the background of the Civil Procedure Code, was pleased to incorporate the extract from the report of the Law Reforms Commission which reads as under :-

"In the event of transfer of cases from one Court to another also, occasionally the parties have to be summoned afresh by the transferee Court for a fresh date. This materially obstructs the progress of the cases Transfer of cases may take place in two ways. A transfer may be ordered by a higher Court on a petition. In that event, the transferring Court should itself fix a date for the appearance of the parties only, before the transferee Court, and this should invariably be a very short date. The parties would then appear before the transferee Court and take the actual date for which it would be convenient for that Court to take up the case.

Where the transfer of a case is ordered for administrative reasons, the parties may not be present when the order is pas.sed. In such a case, again, the parties should be placed under a legal obligation to appear in the Court in which the case was pending, on the date already fixed' there. The Court would have been informed of the administrative order, transferring the case to another Court. The original Court should therefore, keep a note of the particulars of the case and of the transferee Court, so that when the parties appear, they should be intimated of the order of transfer. This Court should direct the parties to appear before the transferee Court, either the same day, if the Court is located at that very place, or after a short interval, if it is situate elsewhere. There considerations would also be germane to work in a Criminal Courts and may well apply to them."

1. Thus from the above it emerges that on account of the transfer by administrative order the original Court is required to keep a note of the particulars of the case and of the transferee Court, so that when the parties appear, they should be intimated of the order of transfer. It has also been made obligatory on the original Court to direct the parties to appear before the transferee Court.

2. In order to appreciate as to whether the compliance of the obligation and duty as having been cast upon the original Court and/or the transferee Court, was made and the above noted dictum was properly followed, it will be convenient to examine the facts of the case as borne out from the record.

3. From the perusal of the case diary it is evident that the matter was fixed before the learned 1st Senior Civil Judge Karachi East on 22.9.1994 when the same was adjourned to 19.10.1994 in presence of the Advocates for the parties.' It seems that in the meantime the case was transferred to the learned District Judge Malir vide order dated 6.10.1994 of learned District Judge (East) Karachi on administrative grounds. It is further revealed from the diary sheet that the first diary of the transferee Court was dated 24.10.1994. On 25.10.1994 only the plaintiff appeared and the suit was adjourned to 8.11.1994. Orders were passed for issuance of Court motion notice and the matter was adjourned to 20.11.1994. Subsequently also orders were repeated for issuance of Court motion notices. However, finally, on the application moved by the plaintiff, the learned trial Court passed orders for publication of Court motion notice in order to procure the attendance of the defendants/applicants. The notice was published in the daily Nawai-Waqt dated 19.5.1996.

4. Foregoing facts clearly reveal that there is absolutely nothing on the record to show that the original Court viz. Learned 1st Senior Civil Judge, Karachi East either kept a note of the particulars of the case, or informed the parties about the transferee Court. The obligation with regard to directing the applicants/defendants to appear before the transferee Court was also apparently not discharged.

5. The only mode whereby the applicants/defendants are claimed to have been informed or served by way of Court motion notice was, thorough substituted service as provided under Order V, Rule 20 C.P.C.

6. It is a settled principle of law that unless all efforts to effect the service in the ordinary manner are verified to have been failed, substitute service cannot be resorted to. There is a series of authorities on this proposition of law. However, the reference can be had to the case law reported in 2001 S.C.M.R. 99 titled Mrs. Nargis Latif vs. Mrs. Feroz Afaq Ahmed Khan and 1996 SCMR 1703 titled Haji Akbar and others vs. Gul Baran and 7 others.

7. Evidently there is only one Court motion notice dated 24.10.1995 on the record, and that too returned unserved containing the endorsement of the Bailiff that he went to the Port Qasim Authorities on 22.11.1995 at 4 O'clock but the Despatch Clerk was not available, hence service could not be effected. No further attempt was made to serve the applicants/defendants till the orders for publication were passed by the learned trial Judge on an application moved by the plaintiff/respondent under Order V, Rule 20 CPC. I have no slightest doubt in holding that the orders for substitute service were passed in a mechanical fashion and without proper application of mind. Such orders were passed without ascertaining the reasons for non-service and without verifying the factum as to whether all other modes of service were exhausted and were rendered futile. In such circumstances, the substituted service being in violation of the law and the rule laid down by the Honourable Supreme Court as referred above, could not be deemed to be valid service.

8. In view of the above facts, I am of the considered view that the provisions of Section 24-A CPC were not complied with. Even then, I was not convinced to grant relief to the applicants as claimed by them, on this count alone. The reason being that there was undoubtedly gross negligence on the part of the applicants. The fact that the applicant is not an individual but is one of the largest organizations in the public sector, cannot be overlooked yet not a single officer cared to keep track of the proceedings. It is one of the ancient maxims of law that the law favours vigilant and not indolent. The Apex Court in the case reported in PLD 2001 S.C. 49 titled Abdul Hamid and 3 others vs. Syed Abdul Qadir and others was pleased to hold that a party who knocks the door of the Court is expected to be diligent and vigilant to keep track of proceedings and not to wait for notice of the Court.

9. There are yet other aspects of the case which require to be dealt with.

10. In consequence of the orders of the learned trial Court, the notice was published in the daily Nawai-Waqt dated 19.5.1996 for appearance of the applicants/defendants, but there was no appearance. Matter was put off to 11.7.1996 with the issues were settled by the Court and the suit was fixed for evidence on 23.7.1996 with the direction for submission of the list of witnesses and documents within 7 days. On 23.7.1996 the plaintiff appears to have filed affidavit in exparte proof, and the matter was put off to 28.7.1996 for judgment. Eventually the judgment came to be passed on 12.8.1996, and decree was prepared on the same day.

11. After obtaining the decree, the plaintiff/respondent filed execution, and the defendant/applicant filed application under Order DC, Rule 13 CPC read with Section 151 CPC. From the close scrutiny of the file, it transpired that the affidavit in exparteproof was sworn by the plaintiff/respondent on 8.7.1996, though till then no orders were passed by the learned trial Court for production of evidence. In fact, the matter was fixed on 11.7.1996, when the same was put off to 23.7.1996 for plaintiffs evidence. It is quite strange that the affidavit of the plaintiff which was sworn on 8.7.1996 in Para No. 12 speaks of proceeding the matter exparte against the Defendants, as if the plaintiff was anticipating every thing in his favour. The affidavit in exparte proof does not bear the initials of the learned Judge. Bare reading of the judgment shows that the same has been written in a mechanical manner. Though the judgment is silent about the date of framing of issues, yet the scrutiny of record reveals that the issues were settled on 11.7.1996, whereas the affidavit in exparte proof was sworn on 8.7.1996 i.e. 3 days before the framing of the issues. It has been mentioned in the decree that the defence of the defendants was struck off the learned trial Judge, and the judgment was passed in an arbitrary and fanciful manner, which resulted in miscarriage of justice.

12. Learned trial Court, while hearing the application u/O. IX, Rule 13 CPC did not take pains to look into the circumstances, under which the case was proceeded and an exparte judgment and decree was passed.

13. The Civil Misc. Appeal, questioning the judgment and decree came to be dismissed by the learned Appellate Court, merely on the ground that the same was barred by time, though the learned A.D.J. Malir observed that the suit was decreed exparte after transfer and the question of the revenue of the appellant was involved, "and on merits appellants have arguable case".

14. In view of the fact that I have arrived at the conclusion that the judgment and decree being perverse have resulted in gross injustice, the same is not sustainable, all the orders passed subsequent thereto have been rendered in valid and untenable. Reliance may be placed on Yousuf Ali's case reported in PLD 1958 SC (Pak.) 104.

15. Accordingly, the application U/O. IX, Rule 13 CPC moved by the Applicants/Defendants stands allowed, the Judgment and Decree dated 12.8.1996 passed by the learned trial Court are set aside. The trial Court is directed to proceed with the suit from the stage of framing of the issues, and conclude the same preferably within a period of six months.

16. Since the Applicants have been guilty of gross negligence, as observed by me in the preceding paras, cost of Rs. 25,000/- is imposed upon the Applicants. This order will be subject to the costs payable to the Plaintiff within four weeks of the passing of this judgment. The amount of costs will, however, be recoverable from the salary, dues etc. of the officer/officers of the Applicant, due to whose negligence the exparte orders were passed. Needless to mention that the Port Qasim Authority will not be precluded from taking any departmental action against the delinquent officials in accordance with the service rules.

Let a copy of this order be .sent to the Secretary Communications, Government of Pakistan and the Chairman Port Qasim Authority.

This Revision Application stands allowed in the above terms. (A.P.) Revision accepted.

PLJ 2001 Karachi 318

Present:ZlA PERVEZ, J.

S. RAZA QULI-Applicant

versus

Miss HYDERI QULI and others-Respondents

Civil Revision Application No. 2/2000, accepted on 19.1.2001.

Civil Procedure Code, 1908 (V of 1908)--

—-0. VII, R. 10 & S. 115-Return of plaint-Trial without jurisidction-Despite the fact that Trial Court had reached the conclusion that Court had no jurisdiction, plaint was not returned to plaintiff rather suit was decreed and judgment was upheld by Lower Appellate Court-Validity--Where at any stage of the suit, Trial Court had arrived at a decision that such should have been instituted in any other Court having jurisdiction, mandatory procedure proceeded under O. VII, R. 10, C.P.C. was attracted-Duty of Trial Court, under the circumstances, was to return plaint for presentation to proper Court-Course prescribed by law had neither been followed by Trial Court nor by Appellate Court-It's a material.irregularity—Judgement and decree passed by lower Appellate Court was set aside and plaint was returned for presentation before the Court of Competent jurisdiction. [P. 321] A

PLD 1982 Kar. 749 relied. PLD 1985 SC 41 and PLD 1996 SC 292 ref.

Mirza Saeed Baig, Advocate for Applicant.

Mr. Hyder Raza Naqvi, Advocate for Respondents Nos. 1, 13 & 14.

Dates of hearing : 20.11.2000, 21,11.2000 and 22.11.2000.

order

This Revision Application is directed against the judgment and decree dated 27.10.1999 passed in Civil Appeal No. 199 of 1996 by Vllth Additional District & Sessions Judge, Karachi East dismissing the appeal against judgment and decree dated 6.8.1996 in Suit No. 1628/1985 by Vlllth Civil Judge, Karachi East.

The facts of the case are that applicant filed Civil Suit Bearing No. 3474/1980 re-numbered as Suit No. 1628/1985 for accounts and injunction Respondents defended the suit and objected to the maintainability of the suit. In addition to other grounds pertaining to facts calling for adjudication evidence laid down by the parties and the finding of trial Court which was also up held in appeal by the learned Appellate Court on the first issue is that subject matter of suit is beyond the pecuniaiy limits of jurisdiction of the trial Court.

On 4.1.2000 following observation was made by this Court.

"Upon perusal of the impugned judgment it has transpired that Issue No. 1 regarding the maintainability of the suit was answered in the negative on the basis of lack of pecuniaiy jurisdiction of the Learned trial Court. In my view once the learned trial Court has itself come to the conclusion that the suit was not maintainable which was upheld by the Learned Appellate Court their they could not be any question answering the other issues on merits. In the circumstances tentatively I am of the view that the Learned trial Court should have returned the plaint under Order 7, Rule 10 CPC for the purpose of filing in the Court having jurisdiction and as it was not done and the matter went in appeal, this was the duty of the Learned Appellate Court. Consequently in my view at this stage let pre-admission notice go to the Respondent for 17.1.2000."

Suit was filed for accounts and injunction pertaining to the extent of share of the plaintiff from the sale proceeds of property Bearing No. 172 PECHS, Karachi gifted to the plaintiff by his deceased father jointly with and utilization of sale proceed thereof towards purchase of Property No. 118 Bahadurabad, Street No. 7, Karachi and for the profits accruing on the balance amount of the sale proceeds of the aforesaid joint property as such the appellant/applicant is legally competent to ask for the account and to join him as Co-owner. The plaint is signed by the brother as next friend of the plaintiff.

The learned counsel for the both parties have argued the case at length. This application can be decided on the short legal point that after arriving at the conclusion that the suit was not maintainable on the ground of jurisdiction by the trial Court, the Court had no jurisdiction to proceed further with the issues and acted beyond its jurisdiction. He further argued that the concurrent findings of the two courts do not bar this Court in cases involving points of law and jurisdiction. In support of his arguments, learned advocate for the applicant placed reliance on the case of Elahi Bux v. Noor Muhammad (PLD 1985 SC 41) where Honourable Supreme Court was pleased to uphold the order of the learned Single Judge setting aside the concurrent finding of Lower Court.

The learned counsel for respondent has supported the impugned judgment and decree and has placed reliance on the law laid down in the case of Muhammad All v. Muhammad Shaft PLD 1996 SC 292. This case involved the point of law pertaining to entertaining of an objection as to jurisdiction of the trial Court or lower Appellate Court founded on the ground of over valuation or under valuation unless such objection in the case of the Court of first instance, was raised by the party at or before the hearing of the case when the issues were settled in the case, and in the case of Lower Appellate Court the objection had been raised in the memo of appeal and the Application of provision of Section 11 of suit Valuation Act under the circumstances. When the Appellate Court arrives at a conclusion that the trial Court had no jurisdiction to proceed with the matter. The Honourable Supreme Court as result of this decision was pleased to remand and restore the decision of First Appellate Court whereby it had remanded the case to trial Court. In the present case it is not the Appellate Court that has come to a different conclusion that subject matter has beyond the jurisdiction of trial Court but the trial Court itself framed an issue as Issue No. 1 and recorded its findings that it had no jurisdiction as the subject matter of the suit was beyond the pecuniary limits of the jurisdiction the Court. These are not disturbed in appeal by the learned Appellate Court.

The action has to be taken under such circumstances is provided under Order 7, Rule 10 of Civil Procedure Code which reads :

"Return of plaint. (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted (2) Procedure on returning plaint. On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it".

It has been held in Twaha v. M.V. Asian Queen, PLD 1982 Karachi 749.

"There is yet another reason for which suit could not have been dismissed. It is that under Order VII, Rule 10, C.P.C. it was the duty of Court to have returned the plaint for presentation to proper Court but it was not returned. It is again settled that a party should not suffer on account of the mistake of the Court."

In view of the above in a case law where the trial Court at any stage of the suit arrives at a decision that suit should have been instituted in any other Court having jurisdiction the mandatory procedure proceeded under Order 7, Rule 10 of the Civil Procedure Code, 1908 is attracted. The duty of the Courts to return the plaint for presentation to the proper Court. This course prescribed by law has not been followed in this case. Nor by the learned Appellate Court. The Court thus acted and exercised jurisdiction beyond that vested by law and with material irregularity.

Accordingly impugned judgment and decree of the trial Court on the remaining points in issue is without jurisdiction.

This revision application is allowed. The impugned judgment and decree dated 27.10.1999 passed in C.A.91/96 is set-aside. It is further ordered that the plaint may be returned for presentation before the Court of competent jurisdiction. With no order as to costs.

(N.R.) Revision petition accepted.

PLJ 2001 Karachi 321

Present: anwar mansoor khan, J.

UNITED BANK LTD., KARACHI-Plaintiff

versus

M/s. GRAVURE PACKAGING (PVT) LTD. KARACHI and 5 others-Defendants

Suit No. 220 of 1995 and Suit No. 493 of 1998, decided on 6.8.2001.

(i) Banking Tribunals Ordinance, 1984 (LVIII of 1984)--

—-S. 2(e)--Cash finance advance to defendant on mark-up basis whereby defendant would sell to plaintiff, the raw material/finished goods machinery etc. for specified amount-Increase in amount of purchase price viz. debt of customer whether permissible-Permissible increases-Connotation-Where amount of mark-up is to be booked by the Banks on accrual basis in each quarter on the basis of outstanding balance and such outstanding balance also includes mark-up for the previous quarters~In such cases banks can be allowed to charge markup debits—At the time of fresh sanctions (renewal) of working capital facilities, sometimes the amount of the facility is enhanced which are used to adjust the outstanding facilities of custom in respect of previous liability-­Grant of a fresh finance facility of similar nature particularly in cases of working capital facilities is not restructuring of facilities-Resturcturing and re-scheduling of over due facilities is re-structured by way of fresh facilities, and by way of a new schedule of payment. [P. 332 & 333] A

(ii) Banking Tribunals Ordinance, 1984 (LVIII of 1984)

--—S. 2-Sale price of goods purchased by the client from the bank-Addition of mark-up how to be included therein-Sale price of goods purchase by client from the bank would be a determined price, on which certain profits by way of addition of mark-up would also be included-Such price could be arrived at, on any sum that may be agreed between the parlies, but after the purchase price has been agreed to between the bank and the customer-Such amount would become debt and would, therefore, be nothing but lending-Transaction of sale and purchase thus, being complete, bank concerned becomes an unpaid seller-Such payment only be a loan or debt re-payable at a future date-Such loan would not carry any interest or mark-up, however, service charges could be recovered. [Pp. 374 & 375] C

(iii) Banking Tribunals Ordinance, 1984 (LXVIII of 1984)--

—S. 2--BCD Circular No. 13 issued by State Bank of Pakistan-Effect-BCD circular No. 13, provides that no mark-up on mark would be charged-Practice of keeping mark-up in a separate amount and principle on the separate account and charging mark-up on the principle and not the mark-up, is not contemplated by the BCD Circular No. 13-Once the principal debt is determined, the debt becomes a finance by lending and no markup, by whatever, name called can be charged-A co-relation has been developed between not charging mark-up and proceeding to recover money instead-There was, thus no question of renewal of a debt by addition of mark-up-Banks, have been restrained from adopting any measure, or practice whereby they, either artificially or temporarily show an ostensible improved position of the bank account-Such practice can not be allowed being against the established principle of law that any contract which is of such a nature that if permitted, would defeat provisions of any law, or which is contrary to public policy is a void agreement, where mark is capitalized and added to the principal amount (sale price) and having arrived at the re-purchase price, any increase by way of renewal, capitalization, booking on account basis or by any means V would be nothing but addition of mark-up on mark-up-Once agreement - has been entered into and re-purchase price determined there can be no renewals by increasing the debt. [Pp. 376, 377, 388 to 390 & 400] D, F, G & M

(iv) Banking Tribunals Ordinance, 1984 (LXVIII of 1984)--

— -S. 2--Debt in respect of one agreement-Effect on other agreement-Once there is debt in respect of one agreement, such would be a debt in respect of other agreement also and a liability-Debt in respect of previous agreement thus, could not be set off by the subsequent agreement. [Pp. 394, 401 & 402] K, N, O

(v) Contract Act, 1872 (IX of 1872)--

— S. 62~Novation of contract-Rights of previous agreement altered through subsequent agreement-Where rights of parties have altered, and a valid contract alters rights of previous agreement, such agreement would be valid-Subsequent agreement, however, do not change previous agreement when there was no mention of previous agreement between the parties would have no nexus with the previous agreement in which debt had been created-Subsequent agreement does not have any stipulation that there could be a set off by a subsequent finance-­ Contention that subsequent , agreement is novation and that once a contract is novated, previous Contract cannot be booked into is not correct in circumstances. [P. 387, 390 & 391] E, H

(vi) Contract Act, 1872 (IX of 1872)--

— S. 2(b)-Agreement when becomes void-Where any part of a single consideration is unlawful, the agreement is void. [P. 393]

(vii) Contract Act, (IX of 1872)--

--- S. 125-Banking Tribunals, Ordinance (LVIII of 1984) S. 2-Guarnator's liability-There being categorical denial by guarantors of having signed contract of guarantee, onus was oh plaintiff to prove that they had signed the same-Such onus having not been discharged, suit against guarantors was dismissed in circumstances. [P. 308] P

S.B.L.R. 2000 Karachi 180; PLD 2000 SC 225; 2001 MLD 78; PLD 1962

Karachi 334; AIR 1943 P.C. 147; 1994 CLC 2272; PLD 1964 SC 337; PLD

1983 Karachi 176; 2000 CLC 1502; PLD 1997 SC 315; 1993 SCMR 745; 2001

CLC 158; PLD 1991 SC 368; PLD 1993 SC 901; PLD 1986 SC 240; PLD 1992

FSC 1 and PLD 1991 SC 777 ref.

(viii) Islamic Jurisprudence--

—Islamic financial system outlived and illustrated. [Pp. 355 & 356] B

(ix) Islamic Jurisprudence--

— Laws in conflict with Islamic provisions-Laws that are in conflict with Islamic provisions would remain valid only upto specified date set up by the Supreme Court of Pakistan. [P. 394] L

(x) Sale of Goods Act, 1930-

— S. 4-Sale and agreement of sale-Explained. [Pp. 391 & 392] I

Mr. Aziz-ur-Rehman, Advocate for Plaintiff.

M/s. Saalim Salam Ansariand Abid Sherazi, Advocates for Defendants.

Date of hearing: 16.5.2001.

judgment

The present suit has been filed by the plaintiff against the defendants for recovery of Rs. 33.081 millions as due on 30-12-1994. The said suit was filed under the Banking Tribunals Ordinance, 1984. The facts are, that the Defendant No. 1 was sanctioned by the Plaintiffs' I.I. Chundrigar Road Branch on 09-07-1987 a sum of Rs. 6.0 million as cash finance on mark-up basis wherefore, the Defendant No. 1 executed an agreement for financing for short-medium-long-term on mark-up basis (IB-6) whereby, it was agreed that the customer namely the defendant would sell to the bank the raw materials/finished goods/machinery etc. for a total sum of Rs. 6.0 million. In pursuance to the said agreement, the various goods were bought and the consideration for purchase was paid to the Defendant No. 1. The second portion of the said agreement provided for purchase by the customer of the same goods at a marked-up price known as the "purchase price" being Rs. 7.2 million calculated by the bank and agreed by the Defendant No. 1. The said amount was repayable in lump sum. The prompt payment bonus of Rs. 0.258 million was also provided in the said agreement. The repayment of the debt thus credited on account of purchase by the Defendant No. 1 from the bank for payment in instalments/lump sum that a subsequent future date was secured by a demand promissory note dated 09-07-1987 for Rs. 7.200 million. In addition to the above, the Defendants Nos. 2 to 5 secured the said amount by guaranteeing repayment thereof under a letter of guarantee dated 09-07-1987 filed as Annexure-D to the plaint and referred to in the affidavit in evidence as Ex-P/4. In addition to the above, according to the plaintiff, the defendants had requested the plaintiffs branch by an application an agreement to open L/Cs which were opened. The payment under the Bill of Exchange were to be made by the plaintiff amounting to Rs. 3.7 million being deferred payment L/C under U.S. aid, Rs. 1.8 million finance against imported merchandise and Rs. 1.5 million in N.I.D.F. plus mark-up thereon. The said amount included the amount of Rs. 7.2 million secured by mortgage of the property of the Defendant No. 1 and confirmed, by the Defendant No. 1 by a memorandum of deposit of title deed as Annexure-H/Ex-P/8 alongwith the affidavit in evidence. The said mortgage is also registered with the Registrar of Joint Stock Companies by a Certificate of Mortgage dated 22-09-1988 Annexure-I/Ex-P/9.

1. The said account was transferred from the I.I. Chundrigar Road Branch to the Corporate Branch of the Plaintiff Company where fresh agreement were entered into which have been filed with the plaint as

Annexure-R and S (Ex-P/18 and Ex-P/19). Under the said agreement the same amount namely Rs. 7.20 million was mentioned as re-purchase price with a prompt payment bonus of Rs. 0.258 million. In the second agreement, however, it seems that the said Bills of Exchange were purchased by the bank for Rs. 1.5 million and sold to the Defendant No. 1 for Rs. 2 million repayable on or before 31-12-1990. Another amount being N.I.C.F. was admitted by the defendant by a letter of admission wherein the liability to the extent of Rs. 9,893,834.86 was admitted. The balance confirmation has been filed alongwith the plaint as Annexure-T (Ex-P/20). The said N.I.C.F. facility was, in 1991. It is stated that further documents were executed whereby, the said N.I.C.F. facility was increased to Rs. 12.453 million being the purchase price on a sale price of Rs. 9.893 million with a prompt payment bonus of Rs. 0.935 million. Such agreement is filed as Annexure-V/Ex-P/22. The said amount under the second agreement of N.I.C.F. facility was guaranteed b a letter of guarantee by the said Defendants No. 2 to 5 Annexures-X, Y, Z and Z-l (Ex-P/24 to Ex-P/27). It is the case that in 1993 the said N.I.C.F. facility was again renewed whereby the amount of Rs. 12.223 million which was the purchase price in Ex-P/22 became the sale price and the purchase price was enhanced to Rs. 16.074 million with a prompt payment bonus of Rs. 1.406 million. The other three being the N.I.D.F,. facilities (forced) after adding together the three various N.I.D.F. facilities into one single N.I.D.F. facility became Rs. 13,953,846 which, was admitted by entering into another agreement Annexure-Z-8/Ex--P/34 which was signed by the defendants. This confirmation only was in regards to the total amount and no additional mark-up or purchase price was mentioned in the said agreement. On account of the various finances given, the plaintiffs have, therefore, claimed a decree against the defendants in the sum of Rs. 39.747 million jointly and/or severally as also a mortgage decree with liquidated damages and future mark-up from 01-01-1995 till realisation as also costs of the suit.

1. The written statement has been filed by the defendants in which preliminary objections as to the maintainability of the suit were taken on the ground that in fact the suit is for rendition of account and not a suit for recovery and that the claim of liquidated damages is unlawful. It was farther stated that the agreements are not witnessed and are violative of Article 17(2) of the Qanoon-e-Shahdat Order, 1984 and that the person filing the plaint had no authority to verify the same. The suit has been filed as a mortgage suit. The objection has been taken that the mortgage per the Islamic financing and the law prevalent could only be that by possession and, therefore, the memorandum of deposit of title deed and mortgage are invalid and cannot be looked into. The objection is also taken that the amount includes exaggerated amount of mark-up and the same cannot be allowed. The execution of the guarantees has also been disputed by the Defendants Nos. 2 to 5 as, according to the said defendants, the same are not actual signatures of the defendants. The same is not decided and cannot be accepted in view of Article 17(2) of the Qanoon-e-Shahadat Order 1984. In addition to the denial of guarantee, the defendants have also denied the payments claimed by the plaintiff on account of L/Cs and according to the defendants, the same had been paid off. However, the plaintiffs have admitted the factum of the payment to the extent of Rs. 6,848,855.00 as, according to them, the same has been admitted in Ex—D/ll. The defendants have filed a statement of account which according to them is under the formula given by the State Bank of Pakistan which as follows:-

"(A) N.I.C.F. ACCOUNT

| | | | | | | --- | --- | --- | --- | --- | | OUTSTANDING BALANCE AMOUNT/O.D ON 30-06-87 | MARK-UP OF 365 DAY 210 DAYS | MARK-UP OF CUSHION PERIOD OF ADJUSTMENT | TOTAL OUTSTANDING BEFORE REPAYMENT | LESS ADJUST­MENT UPTO 30-6-94 | | Rs. Rs. Rs. 400G142/- 878161/- 505243/-NET BALANCE AFTER ADJUSTMENT (S) | | | Rs. 538954G/ | Rs. 4083524/ Rs. 1306022/- |

(B) N.I.D.F ACCOUNT

1234325/- 139726/- 80390/-

NET BALANCE OUTSTANDING AFTER ADJUSTMENTS/REPAYMENTS

(C) U.S. AID l/c Account's OUTSTANDING Rs. 57G8798/-

(D) O.S.P.A.D. l/c Account's OUTSTANDING Rs. 580000/- GRAND OUTSTANDING/BALANCE

1454441/-

135000/-

Rs. 1319441/-

Rs. 3974261/-"

1. The defendants have vehemently contested the addition of mark­ up on mark-up and subsequent agreements, stating that the same is unlawful and cannot be allowed. Infact what has been claimed is that the subsequent agreements are void, not having been acted upon. The plaintiffs has also claimed damage on account of breach of agreement.

2. The following issues were framed:--

3. Whether the plaintiff bank has charged mark-up on mark-up? If so, what is its effect?

4. Whether the suit is bad for non-joinder of necessary party?

5. Whether Defendants Nos. 2 to 5 are liable as guarantors and if so to what extent?

6. Whether the defendants are liable to pay the suit amount?

7. What should the decree be?

6.Before all the issues could be argued, I had asked Mr. Aziz as to how Mark-up on mark-up could be charged in view of the clear circular of the State Bank of Pakistan. I had also asked Mr. Aziz, as to under what law can he take refuge on the agreements, against which no disbursements had, admittedly been marie, and were only for roll over of an existing debt. I had also pointed out, that the agreements do not otherwise disclose that there existed a debt earlier and that the agreements are infact for the purchase by the bank and sale to the borrower. Mr. Aziz was very candid and said that in the even that this Court were to apply the principal of the said the State Bank's Circulars, infact it would be the bank who would have to pay back the amount to the Defendant. It was pointed out that in an order, in the case of Habib Bank Limited versus Qayyum Spinning Limited and others SBLR 2001 Karachi 186 it was held that Mark-up on Mark-up could not be charged. It was also held that agreements which were not acted upon by actual disbursement, and which were meant for the purposes of roll over of an existing debt were void and could not be considered. Infact in the case of Dr. Aslam Khaki vs Syed Muhammad Hashim PLD 2000 SC 225 such also been held. Mr. Aziz stated that notwithstanding the said decisions, he would wish to reiterate his contentions that he had made in the case of Qayyum Spinning and in the unreported case, being Habib Bank Ltd. v. Hafiz Textile Mills Ltd. Suit No. B-153 of 2000.

1. Mr Aziz stated that, with regard to SBP Circular Nos. 13 and 32 dated 20-June 1984 and 26-11-1984 respectively. He stated that the two Circulars are among many which SBP has been issuing from time to time and the two Circulars in actual fact have to be examined. The first Circular No. 13 according to him will not be attracted where renewal of loan is made subsequently, since "renewal" amounts are merely extension and continuation of the earlier agreement between the parties. Circular No. 32 merely pertains to different items of Bank charges and therefore cannot be made basis for striking down the contract between the parties. In other words Circular No. 32 does not have the effect that it over rides Circular No. 13. In the case of UBL Vs. Central Cotton Mills Ltd. reported as 2001 MLD 78 (S.B) deals with the said two Circulars. The learned Single Judge of the High Court of Sindh Karachi came to the conclusion that Circular No. 13 is not overridden by Circular No. 32. He said that in SBP Circular No. BID (Gen) 2470/601-Q4-90 of 17-06-1990 which was addressed to all Banks with regard to the treatment to be given to rescheduled loans and capitalisation of mark-up/interest and the guidelines were given. In Clause 2.1 of the said Circular, the "restructured" loan has been defined as one whose terms and conditions have been modified principally because of deterioration in the borrowers financial condition, in order to provide reduction in interest rate or principal or a cpaitalisation of interest accrued. Clause 2.2 refers to a "rescheduled" loan and defines it as one in which effective interest rate terms remain unchanged from original terms but principal repayment terms have been extended because of project delays and such loan has been defined as not a restructured loan. According to him, Clause 7.1 provided for capitalised mark-up/interest on loans and defined the words as 'uncollected interest' which is added to 'unpaid principal' in accordance with contractual loan agreement.

2. It is his case that in the said Circular and the guidelines attached to the same, the word "interest" has realty been utilized to mean interest and/or mark-up as is evident from line 5 of the Circular itself. He said that on tie date of Circular Le 17-06-1990 fine years had elapsed from the date on which the system of mark-up had been introduced. Guidelines, according to him were issued by HBL to its various officers in order to deals with rescheduling, restructuring and writing off which was contained in the aforesaid Circular of SBP dated 17-06-1990. He said that the guidelines issued by SBP were attached. Circular No. 4 of 17-02-2000 was also issued by SBP under the heading "Rescheduling/restructuring of non-performing loans". The Banks as per Para (i) were required to continue to provide for rescheduled/restructured loans/advances for a period of one year (excluding grace period). Also while reporting to CIB, it was made incumbent that such loans/advances should be shown to SBP as "rescheduled/restructured" instead of, 'defaults'. In other words when Banks finalise rescheduling/ restructruing arrangements with the borrowers/customers SBP does not treat the borrowers/customers as having committed defaults. In actual fact in some cases if rescheduling/restructuring is not carried out, it would create lot more problems for borrowers/customers who actually stand to gain from the new agreements. Additionally he stated that an unreported judgment dated 08.01.1999 was passed by a Division Bench of this Court in Spl. HCA No. 187198 (M/s. Hardware Manufacturing Corporation (Pvt) Ltd. and 5 others vs. UBL). It was held that by executing a Finance Agreement, the Appellants' liability, the original contract/agreement stood extinguished and the earlier agreement was substituted by a later Finance Agreement/ contract. A reference was made in this connection by the Division Bench to two reported cases Le. PLD 1962 Karachi 334 and AIR 1943 P.C. 147. He said that the said Order of the Division Bench is binding on this Court, and therefore, what is decided has to be acted, and no judgment otherwise can be passed.

3. Mr. Aziz argued the position of Novation of Contract and stated that in the unreported judgment of the Division Bench of the High Court of Sindh dated 08-01-1999, the decision which was reached was in line with a number of cases which had mentioned, being 1994 CLC 2272 (Karachi) D.B. and 2000 CLC 1602 (Karachi) S.B. He said that it was held by the Division Bench of the High Court of Sindh Karachi that, where a fresh agreement was entered into and the Defendant acknowledged that a certain sum was due from him which formed consideration under the new agreement, the liability of the Defendant under the original contract was completely extinguished and there was a fresh contract substituting the old contract and which was in the nature of novation of a contract within the meaning of Section 52 of the Contract Act, 1872. The Division Bench has placed reliance for purposes of interpretation of Section 62 of the Contract Act on PLD 1964 S.C. 337. Likewise he said that in the second reported the conclusion of the learned single Judge was that Section 62 of the Contract Act clearly provides that if parties to a Contract agree to substitute a new contract for the old one or to rescind or alter it, the original contract between the parties need not be performed and that, there is nothing in the Contract Act or in any other law which prohibits the parties from altering terms of the original contract or executing a new contract to substitute the old one. It was further held that the subsequent agreement amounted to novation of the old contract, the consideration of which was the agreement of the Bank to extend time for payment of the outstanding liabilities of Defendant No. 1.

4. On of the point of actual disbursement it was argued by Mr. Aziz stating that there need not be any actual disbursements when a Bank allows rescheduling or restructuring of an existing debt. Therefore in rescheduling, the lability to pay to the Bank is amended or recast giving further time for repayment to the Bank. He said that, in this connection the definition of the word "debt" would also be relevant and for the meaning of the word, he has relied on PLD 1983 Karachi 176 (D.B). where it was held that a debt in the hand of a debtor does not belong to him but it belongs to the person to whom it is payable. A debt is something that is owed by one person to another. It is an obligation and lability to pay or return something. He states that similarly in the above referred case reported in 2000 CLC 1502 (Karachi) S.B., the learned Single Judge utilized the words 'outstanding labilities of Defendant No. 1" which was treated as consideration for the new contract. Thus the outstanding liabilities constituted the debt payable to the Bank. Since the acknowledgement of liability contained in the fresh agreement is available, fresh disbursements obviously was not required, as otherwise there would be duplication, and the Bank will be out of pocket by actually disbursing the outstanding amount again to its borrower/customer.

5. Mr. Aziz said that judgment reported in PLD 2000 S.C. 225 is actually the one passed by Shariat Appellate Bench of the Supreme Court consisting of 5 Judges. The Supreme Court has given direction and in any case until 30-06-2001 the present laws will continue to be valid. Therefore the contents of the judgment have not come into force so far. A large number of steps have to be taken by the Federal Government and other agencies including Banks for different phases of transformation which is still to be effected. He had also referred during the arguments to the various Articles of the Constitution of Pakistan, inter alia Article 203-H (I) which provides that all pending proceedings in any Court or Tribunal shall continue and the points in issue therein shall be decided in accordance with the law for the time being in force. He referred to a judgment of learned Single Judge of the High Court of Sindh, Karachi, in Suit 1700/99 where it was held that the said judgment of the Shariat Appellate Bench of the Supreme Court and injunctions of Islam cannot be pressed into service to avoid payment of outstanding liabilities since verse 2.280 does not create a right in favour of a debtor for payment of what is acknowledged as due.

6. Mr. Aziz said that Industrial and Traders make lot of money by borrowing from Bank, etc. and the money really comes from even small depositors who put their money into the hands of the Banks. The interest or mark-up paid by these Industrialists and Traders is included in their accounts and they get benefit of increased prices for their produced/manufactured items and they are allowed to reap benefits by showing interest/mark-up as costs of production which interest/mark-up is allowable expenditure in income tax returns.

7. Mr. Aziz said that therefore rescheduling, restructuring and entering into fresh agreement to renew the facility by adding mark-up is valid. It shall only be effective after the judgment of the Shariat Appellate Bench of the Supreme Court becomes applicable Mr. Aziz adopted the arguments made by Mr. Ejaz advocate in the Qayuum Spinning case and argued that notwithstanding the fact that the said judgment is not applicable, it is necessary to dilate upon the history as to how and what was the actual perspective that the bankers had understood in respect of the said system. He has referred to the judgment in the case of Dr. M. Aslam Khaki (supra). He stated that the said judgment also notices the manner in which the system was to work and referred to a note that has been mentioned in the judgment of Mr. Junejo. He has stated that the State Bank of Pakistan considered that the entire transaction of purchase and repurchase a notional transaction, and that, because it was considered as a a notional transaction where, the mark-up was not serviced, rescheduling was allowed by addition of mark-up on the un-serviced mark-up. Such rescheduling/restructuring was the only way that the banks could save their money, and earn thereon. He stated therefore, renewal by way of entering into a fresh agreement was considered appropriate. He stated that the circulars namely BCD Circular No. 13 and BCD Circular No. 32 did not give any idea how the transactions were to take place and it was therefore a belief that such transaction could be entered into or done. He said that it was common knowledge that national sale and such like transactions were valid transaction. He stated that disbursement for purchase in such notional transaction was not necessary and that the amount of debt on a particular date could be deemed to be proper and appropriate disbursement. Mr. Aziz stated that if a view is taken by this Court that subsequent agreements are invalid agreements it will cause an irreparable injury and harm to the banks whereby, the banks may in fact collapse. In the judgment of Dr. M. Aslam Khaki (supra) a discussion on the concept of Negotiable Instrument Act, 1881 has been referred to Sections 79 and 80 of the said Act have also been cited. Reference has been made to a booklet on markup system by Mr. Justice Moulana Muhammad Taqi Usmani in which a detailed discussion has been held as to the mark-up system as is in vogue and has been in practice in the banks. It has been pointed out that the practice adopted under the garb of mark-up is authoritative of the conditionalities attaching to Bai Moajjal as the permissibility of such a transaction is dependent on fulfillment of the various conditions as enshrined in the Quaranic injunctions in the order of the Court. It has been stated by Mr. Aziz that in BCD Circulars Nos. 13 and 32, the concept of Bai Moajjal or Murabaha, has not been stated and what was categorically said in the notifications of the State Bank of Pakistan, was that mark-up could be charged on a transaction, but mark-up on mark-up could not be charged, in that there was nothing to stop the banks from entering into such fresh agreements for renewal, restructuring or rescheduling. His emphasis lay on the fact that, upon mark-up having been charged under the agreement the same became a debt and such debt became due and payable within the stipulated period. He said that in the books of accounts such was a credit payable by the debtor, therefore, the debtor was in fact using the money of the creditor, namely the bank. According to him, subsequent agreements were nothing but agreements for sale and purchase where, the commodity being sold was notional and that in fact, the debt payable under the first agreement became the notional sale of notional goods at a purchase price of such goods, and markup was added to arrive at a notional repurchase price and so forth. He said that it has now been explained as to how the bank should finance and what is the meaning of 'Riba' or mark-up. He stated that no doubt, now under the new definition that has been given by the case of Dr. M. Aslam Khahi, subsequent agreements would be deemed to be invalid agreements on the account of the fact that the Supreme Court has held that purchase if any, has to be actual purchase and not a notional transaction. Mr. Aziz Advocate further submitted that the question of increase on money was also not understood by the banks, in fact State Bank of Pakistan had also not understood the concept of money which has now been stated in the said judgment of the Supreme Court. He stated that it could not have been even thought of or understood that money could not earn money by way of additional mark-up on a debt. According to him, it is this judgment which has cleared the concept of money and that in doing so it is stated that the money is not a 'commodity' and therefore cannot be traded like a trade of a commodity. He stated that it has been held, therefore, that only commodities could be traded which were in accordance with the principal that "Allah has allowed trade and prohibited Riba". According to him, therefore, in view of the above the Honourable Shariat Appellate Bench of the Supreme Court had given a regulatory timetable whereby, a date of implementation has been given. He stated that under the measures to be taken for the purposes of creating an infrastructure and a legal framework a summary has been given in the order passed by the Court. It was stated that the solution to the economic revival has to be taken into account and that the Federal Government shall cause a board to be created for arranging exchange of information of financial institutions about feasibility of project etc. and all technical assistance with regard to the anomalies emerging in the practical operation of financial institutions or difficulty arising out of the operation of financial practice etc. and that all this was to be done by the

30th June, 2001, whereafter the laws and provisions of laws to the extent that those declared to be repugnant of injunctions of Islam shall cases to have effect from 30th June, 2001.

The question is whether the amount of purchase price (which has been stated to be the debt of the customer) can be increased? And if so in what circumstances?

The answer to this question depends on the meaning ascribed to the word "increase" and accordingly the increase in the amount of purchase price are classified as follows:

(a) In crease which are not permissible.

(A) Mark-up on any overdue installment, where the finance facility is payable in installments and the amounts and due dates of installments are specified in the Agreement.

(B) Mark-up on overdue amounts in cases of lump sum payment agreements.

(b) Increases which are permissible.

(A) Where the amount of mark-up is to be booked by the Banks on accrual basis in each quarter on the basis of outstanding balance and such outstanding balance also includes the mark-up for the previous quarters.

In these cases, the banks can be allowed to charge mark-up the outstanding balance (inclusive of previous mark-up debits) as the bank under its general lien and right to set-off is allowed to apply the credit balance of the Customer to offset the labilities of the Customer. Accordingly any mark-up recovered by the Bank by debiting the account of the Customer should be recognized as a withdrawal by the Customer.

(B) At the time of fresh sanction [renewal] of the working capital facilities, some times the amount of the facility is enhanced. The amount of the frqsh finance facility is used to adjust the outstanding liabilities of the Customer in respect of the previous facility. Naturally the outstanding amount of the facility also includes mark-up. It is sometimes argued that the amount of the second facility amounts to mark-up on mark-up or capitalization of mark­ up or roll over.

Fresh finance facility is granted to the Customer by the Bank. The amount of the facility can be utilized by the Customer for any purpose and the mere fact that the Customer used such amount to pay back its liabilities

which included some amount of mark-up would not make the amount of the fresh facility mark-up on mark-up.

The proposition would be further clarified with the converse argument i.e. the Customer could have paid the outstanding liabilities from its own resources or by obtaining a finance facilities of equal amount from a separate institution. In such a case the argument of the later facility being mark-up on mark-up, capitalization of mark-up or roll-over cannot be sustained.

In such cases the enhanced amount of the facility or the such amount of the facility as has been used to settle earlier liabilities on account of mark-up cannot be termed as increase in the purchase price and is therefore permissible.

(C) It also needs to be clarified that the grant of a fresh finance facility of a similar nature particularly in cases of working capital facilities is not restructuring or rescheduling of the liabilities. Accordingly, any increase in amount of the later facility is not increase the marked-up price of the earlier facility.

(D) A number of times, the overdue facilities (mostly long term) are restructured or rescheduled. Again restructuring and rescheduling of the over due facilities is structured in the following manner: by way of grant of fresh facilities, by way of a new schedule of payment

1. Mr. Aziz-ur-Rehman advocate further argued that under the Banking Companies Ordinance, 1962 the word loans, advances and credit have been defined to include finances as defined in the Banking Tribunals Ordinance, 1984. The Ordinance in Section 2 (e) defines a finance to mean:

"(e) 'finance' includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire purchase, lease, rent-sharing, licensing, charge of fee of any kind, purchase and sale of any property, including, commodities, patents, designs, trade marks and copyrights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika certificate, modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based on non-fund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided, and" (Underlining is mine.)

Mr. Aziz-ur-Rehman states that finance includes "accommodation or facility". According to him an accommodation in terms of the Webster's dictionary means:

"accommodation...!. Act of accommodation or state of being accommodated, specif; a Act of fitting or adopting, or state of being fitted or adapted, adaptation; adjustment;-often followed by to. "The organization of the body with accommodation to its functions," Sir M. Hale: b Adaptation of conduct in order to comply or conform; obligingness, c Provision of what is needful or desirable for convenience; specif, the giving of pecuniary aid."

According to him, the mark-up or interest that is accrued on a loan or finance is capitalised and once it is capitalised it becomes a part of the loan and cannot be separated or distinguished. Mr. Aziz-ur-Rehman refers to the meaning of the word capitalise as contained in Webster's New International Dictionary of the English Language, Second Edition, 1937 which is as under:

"Capitalise.--I-To convert into capital, or to use as capital; hence, to make use of for the sake of profit; to turn to one's immediate advantage."

Mr Aziz-ur-Rehman has also referred to the case of Hashwani Hotels Limited v. Federation of Pakistan and others (PLD 1997 S.C. 315) in which it has been held:

".... One view can be that each amount of disbursement will constitute an accommodation or loan agreement, the other view can be that he disbursements of the various amounts made by the banks were in performance of the above three loan agreements already executed. If we were to prefer the above first view, it will affect the vested right of the banks to recover interest at the rate of 14% under the loans agreement and, therefore, the construction which does not affect the vested right of a party is to be preferred."

In has further bee held:

"A persual of the above quoted definition indicates that it includes loan of money and, therefore, it can be held that the word "accommodation" used in the above Circular of 15.02.1981 refers to loan agreement..... "

Thus, according to Mr. Aziz-ur-Rehman, the agreement entered into between the plaintiff and the defendants is one of accommodation where the loans have been restructured and upon restructuring of loan the banks have accommodated the defendant and, therefore, it is obligatory upon the defendant to pay back the entire amount agreed upon. According to Mr. Azizur-Rehman the word obligation has been defined in the Oxford dictionary to mean:--

"Obligation.--!.The act of obligating, or binding, oneself to a course of action; a putting under a promise, vow, or oath, as in initiation into an organization (see OBLIGATE v. 5).

1. The agreement promise, contract, oath, or the like, by which one is obligated or bound.

2. That which a person is bound to do or forbear; any duty imposed by law, promise, or contract, by the relations of society, or by courtesy, kindness, etc.

3. That which obligates or constrains; the binding power of a promise, contract, oath or, or of law; as, the obligation of conscience of affection, or of ideals.

4. State of being bound 'legally or morally' "Bound in filial obligation.

5. State of being indebted for an act of favor or kindness; also the act itself as, to place others under obligations. Obs. a Binding tie. b Liability, e Civility.

6. Law. A bond with a condition annexed, and a penalty or non fulfilment. In a larger sense, it is a formal and binding agreement or acknowledgement of a liability to pay a certain sum or do a certain thing".

He states that as there was an accommodation it was the obligation of the defendant to have abided by the contract and promise made as, the obligation is in fact a state of being indebted for an act done by the plaintiff him.

1. Mr. Aziz-ur-Rehman further states that under Section 25 of the Banking Companies Ordinance, 1962, the State Bank has exceeded its authority to issue such directions. According to him under Section 25 of the said Ordinance, the State Bank of Pakistan could have issued such a direction as legislation in respect of Islamic modes of financing could only be done by legislation. He refers to Section 21 of the Enforcement of Shariat Act, 1991 and states that under the said provision all laws are to be enacted exclusively by Majlis-e-Shoora (Parliament) and the Provincial Assembly as the case may be and no law shall be deemed to have been made unless it is made in the manner laid down in the Constitution. Mr. Aziz-ur-Rehman states that this is a deeming provision and in view of the definition given of the word "deem" in the case Sirajuddin v. Sardar Khan (1993 SCMR 745) a fiction of law has been created and that any law that is promulgated or devised through a mode other than by an Act of the Parliament or the Provincial Assembly shall be void and not liable to be acted upon. According to him, therefore, the State Bank Circulars are invalid and void thus incapable of being acted upon.

2. Mr Aziz thus concluded the arguments saying that in holding that the banks have unlawfully rescheduled/restructured/renewed by entering into fresh agreement adding mark-up, the banks shall collapse.

3. The Defendants have argued and have filed their Written Arguments in which, they have reiterated the contents of the Written Statement. It is stated that the plaintiff has claimed that (1) NICF (2) NIDF (3) PAD Finance Facilities were allowed/granted to defendant Company. The Defendants have summarized the claim as follows:-

In Million (1) NICF

(a) Principal 9.857 } This liability is claimed

(b) Mark-up 1.874 } on the basis of Finance

(c) Misc. Charges 0.0.88} Agreement i.e.09th May Total: 11.819} 1993. Annexure Z-5 and

Z-34 of the Suit i. e A/C No. 01-670-2164-6 (2). NIDF I

(a) Principal Amount 13.837} Claimed on the basis of

(b) Mark-up 3.691} Agreement dated 13-05-

(c) Misc Charges and 1993 Annexure Z-8 and Exp. 0.141} Bank Statement A/C No.

741-0256-8 Annexure: Z-35. Total. 17.668 (3). NIDF. II

Principal 0.116} Annexure : Z-35

Account No. 741-0237-2 (4). PAD

(a) Amount Disbursed 0.581} Annexure : Z-36

(b) Mark-up 0.158} Account No. 775-0035-9 Total 0.739} Annexure:

1. The Defendants claim that, the plaintiff claimed these outstanding liability on the basis of above documents and prayed for the recovery of the finance by Sale of mortgaged property, by Defendant No. 1, with Mark-up, relying upon the Judgment of Honourable' Lahore High Court reported as 2001 CLC 158 (Lahore) Muhammad Ramzan Versus Citi Bank N.A.

2. It is stated that, the claim could only have been granted in light of Finance Agreement, Annexure 'V to the plaint, dated 01-01-1991 (NICF Accounts) where the purchase price is shown at Rs. 9.893 (M) and Buy-back at Rs. 12.453 (M) and the (Agreement dated 09-05-1993 Annexure: Z-5 where purchase price is Rs. 12.453 and buy back price Rs. 16.074 (m). It is submitted that the amount was never disbursed to Defendant No. 1 under the agreement. It is further stated, that the plaint also does not disclose this fact.

3. It was further stated that, in the NIDF A/c i.e Agreement dated 13.05.1993 Annexures Z-8, no disbursement is shown, but only execution of agreement is mentioned. The Plaintiff witness has not said at any place in his evidence that there was any actual disbursement. In fact, he has admitted that "--Nothing was disbursed in cash to the Defendant No. 1 excepting the amount of Rs. 7.500 million. No explanation has been advanced for the other agreements and the claim.

4. The assertion of the Defendants is that they had in their Written Statement, denied the quantum of amount as claimed by Bank. The defendant's witness in his evidence Exb. No. 6, has submitted the explanation regarding the Loan facility. It is stated by Mr. Abid, that, in the cross-examination, the plaintiff admitted that "the date of execution of Ex. "C" is earlier than the date of purchase of stamp on which letter has been written". It is also argued that the defendant has received the copy of debit note from the Plaintiff bank which is for Rs. 59,83,045, in excess and never deleted after.

5. It was argued that the plaintiff was entitled to recover Rs. 1.2 million, being the difference of selling and buy back price but Defendant has charged the mark-up amounting to Rs. 1,930,451/- on NICF and Rs. 354,638/- on U.S. Aid L.G. totalling to Rs. 2,285,089/- on the following dates Annexure Z-34 (Ex 6/24).

DATE AMOUNT

01-04-1989 ................. Rs. 5,97,840/-

03-05-1989 ................. Rs. 2,15,297/-

A. 31-07-1989 ................. Rs. 0,74,215/-NICF

15-08-1989 ............... Rs. 4,62,653/-

30-12-1989 ........... Rs. 5,80,446/-

Amount debited by the bank to this NICF A/c. on the following dates.

07-03-1989................ Rs. 45,895/-}

29-05-1989 ........... Rs. 46,362/-} Ex.6/24

26-06-1989 ........... Rs. 82,969/-} R/w Annex

B. 07-09-1989 ........... Rs. 45,985/-} Z-34

29-11-1989 ........... Rs.48,362/-}

26-12-1989 ........... Rs. 82,696/-}

Total of A+B Rs. 22,85, 089/-

1. It is stated that since the buy-back agreements contained the amount of prompt payment bonus, and that the bonus was nothing but penalty, the same could not be claimed. The plaintiff bank, therefore ought to have given the relief for Rs. 0.258 being the payment Bonus as per Clause -3 of Annex: R to the Suit, but instead of allowing the relief, (I) excess mark-up amounting to Rs. 7,30,451/- plus Rs. 2,58,000/- (being payment Bonus), making total of Rs. 9,88,451/- has been charged from defendant, by debiting it to Account for the period 1-01-1989 to 31-12-1989. It was due to the excessive charge and compounding mark-up, that the Plaintiff claimed that there was a default in the huge amount that is being claimed. The entire amount is thus liable to be deleted.

2. It was further argued that the second Agreement i.e Annexure" R, no fresh agreement was executed for the year 1990 i.e. 01-01-1990 to 31-12-1990 and A/c remained in operation upto 28-11-1990 when last cheque Bearing No. 00297915 was withdrawn for Rs. 2,50,000/- and thereafter A/c was never allowed to operate, the cheques issued by Defendant were also dishonored on loan facility or withdrawals allowed after that date.

3. It was argued that during the period 01-01-1990 to 31-12-1990, the plaintiff bank charged a mark, up, amounting to Rs. 16,63,308/-on following dates:

01-04-1990 ............. Rs. 86,979/-

09-06-1990 ............. Rs.46, 971/-

30-06-1990 ................... Rs. 6,55,841/-

01-11-1990........... ... Rs. 85,561/-

30-12-1990 ... .............. Rs. 7,87,856/-

Total Rs. 16,63,308/-

1. It was alleged that, on the contrary the amount deposited by the defendant during this period i.e 01-01-1989 to 31-12-1990 is Rs. 1,90,09,483/, against the withdrawal of Rs. 1,81,79,791, net positive deposits balance was Rs. 8,29, 692/-. This, was stated to be the period, when the plaintiff bank started to debit the amount unauthorisedly without issuing any debit voucher to defendant.

2. As to the NICF agreement dated 01-01-1991, it was shown that no transaction was ever allowed by the plaintiff bank to be made and no disbursement were been made nor shown. Annexure Z-34 which is the Bank Statement filed by the plaintiff in Opening Balance is shown at Rs. 98,93,834/- and thereafter, for the entire period debits were created by the bank, however no physical or actual disbursements have been shown. It was further argued that even during the period from 01-01-1989 to 31-12- 1990 the plaintiff bank continued to charge excessive mark-up which was also compounded. This was done despite the fact that the marked-up price was agreed to in the agreement. For the period 01-01-1991 to 30-06-1991 the Plaintiffs charged Mark-up unauthorisedly in the Account. The details of such are contained in Ex. 6/24 to 6/26 showing the unauthorized entries in NICF A/c. These unauthorised amount were again charged by Bank in its NIDF and PAD accounts thereby raising the liability from 65,66,401/- to the suit amount in three years compounding the mark-up and also debited account with no explanation no debit voucher is issued by bank to defendant company. The defendant approached the plaintiff bank vide Ex. 6/29 to 6/42 and asked the plaintiff bank to explain reconcile the amount debited by them in the Account but the plaintiff bank failed to reconcile the same. Vide Ex. 6/29 the defendant demanded the bifurcation of mark-up and Principal amount but there was no response as to such request. Vide Ex. 6/30 the defendant complained to the plaintiff that they were charging excessive mark, but again there was no reply. Vide Ex. 6/31, the defendant pointed out the discrepancy in the account and submitted the calculation to the Bank by calculating the mark-up, but again of no avail. Vide letter dated 24th November, 1993 Ex. 6/32 the defendant informed, that re-scheduling intended to be made incorrect, and denied to accept the liability. Videletter 08th February, 1994 Ex. 6/33 the defendant requested the plaintiff regarding the reconciliation of the amount vide letters dated 16th February, 1994, 28th July, 1994 the defendant again requested and shown their view regarding the quantum of excessive liability continuously shown by the bank.

3. It Is argued that, finally on 4th July, 1994, the defendant again submitted the complete working of NIDF and NICF A/c. to the plaintiff bank. In this Statement the defendant worked out the calculation of mark-up on Daily Product Basis. But the plaintiff bank once again failed to delete or reconcile the entries unauthorisedly/illegally debited to the account. Thereafter the defendant vide their letters Ex. 6/38 to 6/43 reminded the plaintiff bank for the settlement of the Account but to no avail. The plaintiffs claim execution of the agreements only. On the contrary no disbursements were made as per the agreements discussed above, hence the agreements were without consideration and void. Reliance has been placed on the case of UBL V/s. Chaudhary Ghulam Hussain reported as 1999 PTCLR 162 (Lahore) wherein it was held that: "Agreement without consideration would be treated as Void:

"9. The appellant bank, has also placed reliance on two financing agreements:-

(i) Agreement dated 2.7.1986 (page 461) executed by the parties whereunder Respondents Nos. 1 and 2 were to be allowed financial facility of Rs. 80, 80, 434/- for a period ending on 30.6.1987 and in terms thereof Respondents Nos. 1 and 2 were required to pay back Rs. 9,697 Millions.

(ii) Agreement dated 22.9.1987 (page 465) according to which Res­pondents Nos 1 and 2 were to avail of facility of Rs. 98,35,660. This facility was to come to an end on 21.9.1998 and in terms thereof Respondent Nos. 1 and 2 were required to pay the buy back price of Rs. 11.803 Millions on or before 21.9.1988.

It is claimed that though Respondents Nos. 1 and 2 had availed of the above-noted two financial facilities as well, but they have defaulted to clear their dues, arising thereunder.

1. From the perusal of the record, it transpires that there is no sanction advice available for creation of these financial facilities. Significantly, the statement of account filed by the appellant does not show any disbursement whatsoever, under these two agreements which have to be treated as void, being without consideration. The supporting material of these agreements i.eD.P.C. Notes etc, (page 483, 485, 487 and 489) also suffer from the same fatal defect and cannot be looked into for holding that Respondents Nos. 1 and 2 had incurred any financial liability thereunder. We hold accordingly. "(Emphasis in mine).

2. As for the Agreement dated 09-05-1993 Annexure Z-5, it has been argued that the Selling Price was Rs. 12.223 (M) and its buy back price was Rs. 16,074. (M) The expiry whereof was 31-05-1994. There was no disbursement against this agreement and also remained unimplemented. The defendant in his evidence has clearly stated at Page No. 4 of his Examination-in-Chief "the defendant has not owed the further amount after 28-11-1990". Even in cross-examination, it is clearly stated on oath, that no Loan was sanctioned or disbursed to the defendant. The plaintiff has nowhere given details of the disbursement of amount. The entire emphasize has been placed, on the fact that the agreements had been signed, as such are liable to be acted upon.

3. My attention has been drawn to Exhibit 3/18, wherein at Page No. 2 it is stated that, "at our lequest the bank has rescheduled the limit by way of "Renewal and Enhancement" and we, in consideration where of have further agreed to increase the hypothecation charges over Goods e«d Stocks described in the Schedule". Similarly as per Annex: Z-19 and Z-20 of the Suit, while signing agreement for creating floating charges and supplementary Memorandum Deposit of title, it was specifically mentioned that "the rescheduling of the limit by way of renewal and conversion and enhancement of facilities is made valid to the agreement signed between the plaintiff and defendant". Since the agreement dated 09th of May, 1993 and 13 of May, 1993 were executed for the enhancement of the facilities which have not been allowed by the plaintiff and remained unimplemented. The plaintiff bank has miserably failed to produce any sanction advice to this effect, which shows that the amount thus agreed to be enhanced was neither sanctioned by the bank nor ever disbursed.

4. It was thus argued that, under the circumstances the NICF liabilities the defendant is liable to make the payment is only upto 31-12-1990 only where the amount was admitted in the following manners:-

NICF

(1) Amount disbursed into Account Rs. 59,83,054/- No. 2164-6 from 1.1 Chundrigar Road

Branch to Corporate Branch on 21-01-1989 Ex. 6/19

(2) Deposits made by the defendant Rs. 1,90,09,483/ during the period 24-01-1989 to

28-11-1990

(3) Withdrawal during the period Rs. 1,81,79,791 21.01.1989 to 31-11-1990

(4) Excess deposit over withdrawal Rs. 8,29,692/-

Mark-up @ 43 Paisas per 1000 per Rs. 15,72, 896/

day from 01-01-1989 to 31-12-1990 when the operation of the account was frozen as per working given by defendant to plaintiff

(5) Balance of outstanding NICF A/c Rs. 67, 26, 258/- as on 31-12-1990 after appropriating

the mark-up and adjustment of excess amount shown by the defendant the total comes to

1. It has been argued by Mr. Abid that, in the NIDF account the amount has been claimed by the plaintiff on the strength of Annexure Z-8 Le agreement dated 13.05.1993.

2. It is stated that since this agreement was never implemented and nothing was disbursed to the defendant, and no transaction was ever made, therefore the plaintiff Bank is not entitled to claim any of the amount under this agreement. For this Account the plaintiff has produced the Statement bearing Current Account No. 7410256-8 wherein the Opening Entries has been shown at Rs. 77,88,123/- but no cheque numbers have been mentioned to show how the figure has been arrived at by the plaintiff. Nothing has been explained by the plaintiff bank, nor any evidence has been led.

3. It is further stated that the plaintiff bank has also shown certain other debit entries which have also not explained as to how they have been included and no evidence had been led to prove their case. When in the agreement no disbursement has been made, there would be no question of the Principal amount, Mark-up and Central Excise Duty at all. In fact it has been submitted that there was only one NIDF A/c which was transferred from I.I. Chundrigar Road Branch to Corporate Branch i.e Account No. 741-237-2 wherein the amount transferred is shown at Rs. 10,99,325/- as per Ex. 6/20 and after including mark-up this comes to Rs. 13,14,622/- Except this amount the plaintiff has not disbursed any amount to the defendant. The defendant admitted the labilities of NIDF as follows:-

(1) Sanctioned amount (Exb. P/18 Rs. 1.5 Million (Annexures. S)

(2) Amount disbursed/availed as per Rs. 10,99,325/- Ex. 6/20

(3) Mark-up Rs. 2,15,297/-

(4) Total Liabilities Rs. 13,14, 622/

Per agreement for NIDF i.e Annexure 'S' to the Suit dated 25th January, 1989 the total sanctioned amount was Rs. 1.500 million and its buy back price was Rs. 2 million and the expiry whereof was 31-12-1990. The plaintiff is entitled to recover the amount of Rs. 15,55,220.36 on the basis of the sanctioned advice which provides a mark-up @ 0.31/1000/day which comes to Rs. 2,40,598/- upto 31.12.1990.

PAD/OUTSTANDING L.Cs INCLUSIVE US AID L.C.

1. L.C. Amount (Annexure "F" of the Rs. 35,40,000/-Suit)

(a) 10% Cash Margin Paid" Vide Rs. 03,55,000/- Cheque No. 070706 dated 16-05-

1998 drawn at BCCI

(b) 3.4.1990 Rs. 9,19,705/-} Debited in NICF A/c. Annexure Z-34.

(c) 9.6.1990 Rs. 9,67,248/-}

(d) Subsequent payments Rs. 9,84, 334/- (which is shown in Annexure Z-34, when all the facilities were frozen)

(2) Total Rs. 32,26,287/-

Principal Balance outstanding for PAD comes to RS. 03,13,713/-MARK-UP ON P.A.D

(1) 1st Shipment @ 11% for 18 Rs. 92,915.29 months i.e 08-09-1988 to 07-03-1990

(2) 2nd shipment @ 11% for 18 Rs. 1,59,152.42 months i.e 18-11-1989 to 17-05-

1990

(3) 3rd shipment @ 11% for 18 Rs. 2,73,039.51 months i.e 30-11-1998 to 29-05-

1990

(4) Subsequent interest @ 16.425% Rs. 1,87.862.41 from 30-05-1990 to 31-12-1990

(5) Total Mark-up Rs. 7,12,993.00

(6) Total of the principal and mark-up Rs. 10,26,646.63

1. The total liability for which the defendant is liable to pay comes to Rs. 6.56,640/- being the principal amount due upto 31.12.1990 with mark­ up for the period, to arrive at the Repurchase Price is detailed below.

PRINCIPAL MARK-UP TOTAL

NICF A/G 51,53,363.24 15,72,896.20 67,26,259.44

NIDF A/C 10,99,325.45 4,55,895.36 15,55,220.81

P.A.D 3,13,713.00 7,12,933.63 10,26,646.63

TOTAL 65,66,401.69 27,41,725.19 93,08,125.88

1. It had been stated, that, as regard to the execution of Promissory Note the plaintiff bank got blank documents signed as a pre-requisite for the purposes of sanction of the loan amount. It was therefore argued, that when the amount was not disbursed, the negotiable instruments under Section 9 can not be held valid and such documents are also liable to be avoided.

2. Mr. Abid Hussain Shirazi Advocate for the Defendants summed up as follows:

(1) Annexure A, B, C. and D of the suit are forged documents filled in, unauthorisedly, as on the dates shown in these documents the present Management who are Defendants Nos. 2 to 5 were neither the Directors or Shareholders of Defendant No. 1. This according to him is further proved from the evidence of plaintiff, wherein he has admitted as regard to Annexure: "C". that the date shown is earlier then the date of Purchase of Stamps.

(2) As regards to Annexure: "E" of the Suit, itself will show, which is evident from the original document in Court, that original entries have been removed by Blanco and refilled in by Bank without any signature on the mutilated figures.

(3) Annexure: F and G Z-9 to Z-17 certain amount of these U.S. Aid L.C. has been debited by plaintiff in NICF A/c in the year 1989 and 1990 as mentioned at Pages Nos. 4 and 5 above (Last Para) of their Written Argument. For the balance the explanation is given at Page No. 11 under the Head PAD/outstanding L.C.

(4) Annexure: H to T of the suit is admitted. This is the period where the plaintiff bank has charged excessive mark-up on various dates as submitted at Pages Nos. 4 and 5 herein above and also charged the compound mark-up.

(5) Annexure: U to Z-l of the Suit. No lean was disbursed under those documents. The account was struck up/closed on 28-11-1990 when the last cheque was allowed by plaintiff bank to be withdrawn.

(6) Stock Report: as per Annexure Z-2 and Z-3 were submitted.

(7) Annexure Z-4 to Z-8 i.e. the Finance Agreement pro-notes are without consideration. Z-6 is a proposal made by defendant for fresh loan.

(8) Annexure Z-18 to Z-23. These documents were signed by defendant for the purposes of renewal and ENHANCEMENT, but No rule enhancement/renewal was made. No amount was disbursed to defendant company.

Therefore the same cannot constitute Finance Agreement in the light of Judgment reported as NLR-1988 TD 403.

(9) Z-24 TO Z-29: There are the letters written by the defendant for enhanement of Loan Facility and nowhere acknowledged the claim of Bank.

(10) Z-29 to Z-36: There are the documents prepared by the plaintiff bank at their own. For the Bank Statements filed by the plaintiff after 28.11.1990 when no amount was allowed to utilize, therefore, all the amount after 31.12.1991 is the compound mark-up charged by the bank beyond the transaction period. Liquidated damages cannot be claimed in the light of Judgment reported as PLD 1998 Kar. 191.

1. The Defendants have relied on the Judgment of this Court reported as PLD 1998 Karachi 199 UBL Vs. M/S. Novelty Enterprises 1993 MLD 1571 Habib Bank versus Farooq Compost Fertilizer Corporation Limited.

2. It is thus argued that the plaintiff is not entitled for relief as claimed.

3. The Defendants have, in addition to the order in QayoomSpinning (supra) relied on various judgments and have submitted that, on the facts and circumstances it is a Suit for accounts to be determined, as the plaintiff has admitted in his cross-examination disbursement of amount Rs. 7.500 million which is the figure of two sanction advices, which are agreements dated 25-01-1998 Annexure R and S of the suit i.e.

(1) MFC SELLING PRICE BY BANK 6.00 Million 7.200 Million

(2) N.I.D.F.

1.500 Million 2.00 Million

TOTAL 7.500 Million as on 31-12-1989

1. I have perused the pleadings, the evidence and have heard the arguments. I have no hesitation in agreeing with the arguments of the Defendants for the reasons hereafter given.

2. The arguments that were advanced by Mr. Aziz ur Rehman have been dealt with in all details in the said case of Qayuum Textiles (supra). It was held:

"With utmost respect to the learned counsel I disagree with the proposition in the first instance that the said judgment of Dr. Aslam Khaki shall be operative from the date mentioned in it as regards the banking transition. The laws by which the Banking Business was to be conducted was set moving from 1962, and a concrete law was enforced from 1.1.1985. BCD Circular No. 13 categorically states that a transitional period is given to the banks for the purposes of transition from the old system of the banking into the Islamic system of banking. There are two things that are enshrined in the judgment of Dr. M. Aslam Khaki. First being the economy of the country and the other being the financing system of the banks. The Shariat Board was to arrange for exchange of information for the evaluation of the practice and for providing guidance of successfully managing the Islamic economy. Islamic economy is, in its totality the economy of the country and laws in respect of, not only banking, but other aspects which includes interest being charged by other institutions, payment to various banks and other such like transformation. The period of transformation has been given in the said order which reads as under:

"Keeping all these aspects in view, we have decided to appoint different dates for different phases of the transformation. We, therefore, direct that:-

(1) The Federal Government shall, within one month from the announcement of this judgment, constitute in the State Bank of Pakistan a high level Commission fully empowered to carry out, control and supervise the process of transformation of the existing financial system to the one conforming to Shariah. It shall comprise Shariah scholars, committed economics, bankers and chartered accountants.

(2) Within two months from the date of its Constitution, the Commission shall chalk out the strategy to evaluate, scrutinize and implement the reports of the Commission for Islamization of the Economy as well as the report of Raja Zafarul Haq Commission after circulating it among the leading banks, religious scholars, economists and the State Bank and Finance Division, inviting their comments and further suggestions. The strategic plan so finalized shall be sent to the Ministries of law, Finance and Commerce, all the banks and financial institutions to take steps to implement it.

(3) Within one month from the announcement of this judgment, the Ministry of Law and Parliamentary Affairs shall form a task force, comprising its officials and two Shariah Scholars from the Council of Islamic Ideology or from the Commission of the Islamization of Economy, to:

(a) Draft a new law for the prohibition of Ribaand other laws as proposed in the guidelines above.

(b) To review the existing financial and other laws to bring them into conformity with the requirements of the new financial system.

(c) To draft new laws to give legal cover to the new financial instruments.

The recommendations of the task force shall be vetted and finalized by the "Commission for Transformation" proposed to be set up in the SBP, after which the Federal Government shall promulgate the recommended laws."

1. The said direction has to be read carefully. The requirement is that of the Federal Government to Constitution in the State Bank of Pakistan a commission for transforming the existing "financial system" to one conforming to the Shariah and thereafter a strategy was to be chalked out to evaluate, scrutinize and implement the report of the commission for Islamising the economy. In addition, it was the banks who were to take steps to implement it. Laws on Riba were required to be introduced and reviewed and existing financial laws and other laws were to be made out for the purposes of bringing into conformity the requirements of the new financial system. It was, therefore, be seen that there was a distinction between the financial system and system of the Government Financial Institutions. No doubt the financial system includes within it the system of banking which is why a separate period has been given in the said order in respect of preparation of model agreement etc. which reads as under:-

"(4) Within six months from the announcement of this judgment, all the banks and financial institutions shall prepare their model agreements and documents for all their major operations and shall present them to the Commission for transformation in the SBP for its approval after examining them.

(Underlining is mine)

(5) All the joint stock companies, mutual funds and the firms asking in aggregate finance above Rs. 5 million a year shall be required by law to subject themselves to independent rating by neutral rating agencies. All the Banks and financial institutions shall, therefore, arrange for training programmes and seminars to educate the staff and the clients about the new arrangements of financing, their necessary requirements and their effects.

(6) The Ministry of Finance shall, within one month from the announcement of this judgment, form a task force of its experts to find out means to convert the domestic borrowings into project related financing and to establish a mutual fund that may finance the Government on that basis. The units of the mutual fund may be purchased by the public and they will be tradable in the secondary market on the basis of net asset value. The certificate of the existing bonds of the existing Government savings schemes based on interest shall be converted into the units of the proposed mutual fund."

1. The financial system also includes mfr-c-Goverment borrowing as well as borrowing from the State Bank of Pakistan by the Federal Government and 'foreign debt. Such has been separately dealt with in Paras 8 and 9 which reads as under:-

"(8) The domestic inter-Government borrowings as well as the borrowings of the Federal Government from State Bank of Pakistan shall be designed on interest-free basis.

(9) Serious efforts shall be started by the Federal Government to relieve the nation from the burden of foreign debts as soon as possible, and to renegotiate the existing loans. Serious efforts shall also be made to structure the future borrowings, if necessary on the basis of Islamic modes of financing."

1. From the above, it will be seen that various aspects of law for transformation has been given and it is for this, that the Honorable Supreme Court has given a specific time. Certain laws in the judgment have been declared to be repugnant to the injunctions of Islam and ceased to have effect from 31th March, 2000, however, other laws or provisions of laws to the extent that those have been declared to be repugnant to the injunction of Islam would cease to have effect from 30th June, 2001. It will be ngtedthat.BCD Circulars Nos. 13 and 32 have not been declaredjto^be un-Islamic. the said circulars do not cease to have effect from 30th June. 2001. They were in force, since. 1.1.1985 and are valid legislation and continue to remain in force. The concept of BCD Circular No. 13 is that it was for the purposes of Islamisation of banks which was a part of the global change in Pakistan for Islamising the economy in generally. Banks were first to be placed in line for their transformation. It is in line of this, that BCD Circular No. 13 came into existence.

2. For the purposes of looking into the concept as given by BCD Circular No. 13 we may have to look into the history as to why and how such laws were required to be enforced or made. It will not be out of place to mention that Pakistan itself was created to be a religious Islamic State Quaid-e-Azam had expressed the desire to institute an Islamic Financial System in his speech (July, 1984) at the inaugural ceremony of the State Bank of Pakistan. From the Constitution of 1956 to the Constitution of 1973 an express desire has been shown to get rid of Riba. In the Article 38(f) of the Constitution of 1973 it has been categorically stated that the State shall eliminate Riba as early as possible. Article 2 of the Constitution categorically states that "Islam shall be the state religion of Pakistan". Article 2-A was inserted to become a substantive part of the Constitution by Presidential Order No. XIV of 1985 with effect from 2nd March, 1985. All these put together categorically showed and it was in the knowledge of all, that primarily Islam was the guiding factor. The Islamic Advisory Council created in 1962 in its various opinions till 1969 has time and over again stated that the Ribamust be finished in its every form and a system that would work under the Islamic principles to be enforced. It seems that initially such was not enforced. The Council of Islamic Ideology was therefore created with the assignment to formulate an interest free system for banking. The Council in cooperation with its various financial and banking experts initially presented its interim report in November, 1978 and completed their report in June, 1980. .It is in the light of this report that the Government took the first practical step to purge three financial institutions of interest system on 1st of July, 1979. From 1980 onward other reforms were introduced till 1984 but such could not be properly handled.

3. The Constitution of Islamic Republic of Pakistan in Article 227 clearly provides that all existing laws are to be brought in conformity with the injunctions of Islam as laid down in the Quaran and the Sunnah. The important aspect therefore is that there are only two modes in which the laws have to be brought in conformity with, namely, the Holy Quran and Sunnah. Under Article 228 it had become mandatory upon the Government to constitute a Council of Islamic Ideology which was constituted in 1974, thus it was a clear intention of the legislature and the maker of the Constitution that all laws that are made shall be in the line of and exactly what the Quran and Sunnah states. In fact, in the case of Commissioner Income Tax Peshawar Zone vs. Simen AG reported in PLD 1991 SC 368 it has been held that so long as the existing states were not brought in conformity with the injunctions of Islam, their interpretation, application and enforcement where discretionary judicial lements are involved, only that course would be adopted which was in accord with the Islamic philosophy, its common law and jurisprudence. In another case of Kaneez Fatima v. Wall Muhammad reported in PLD 1993 SC 901, it was held that the principles of law and injunctions of Islam have to be kept in view while interpreting the statute and more so in the case where administrative decisions affecting individual's rights and liberties have been challenged. In the case of Maple Leaf Cement Factory Ltd. .v. Collector of Excise and Sales Tax reported in 1993 MLD 1645 it was held that the provisions of Articles 2-A and 227 of the Constitution postulate that the existing laws must be interpreted, as far as possible keeping in view the Islamic principles of interpretation, especially in fiscal statutes Courts are bound to apply Islamic rules to interpretation unless excluded otherwise in preference to the contrary accepted rules of interpretation under other jurisprudential concept and fiscal laws are not exception in that behalf. The functions of Council of Islamic Ideology have also been detailed in Article 230 of the Constitution. One of which is "to make recommendations as to measures for bringing existing laws into conformity with the injunctions of Islam and the stages by which such measures should be brought into effect". The introduction, therefore, of the aforesaid BCD Circulars Nos. 13 and 32 were in fact upon recommendations of the Council of Islamic Ideology. In the case of Pakistan v. Public at large reported in PLD 1986 SC 240, there is a detailed discussion on the meaning of term 'injunctions of Islam'. It has been held that the scope of expression 'injunctions of Islam' has not been left to the discretion of the courts and notions of the individuals but it has been clearly spelt out that, as only those injunctions which have been laid down by the holy Qur'an and the Sunnah of the Prophet (PBUH). In this celebrated judgment of the Shariat Appellate Bench of the Supreme Court it was held that:

"We do feel that while expounding the Injunctions of Islam a possibility of some marginal so called divergences might by visualised. It is a very difficult and perilous exercise. I can lead to proper and improper consequences. Be that as it may, no such expounding of the Injunctions of Islam will be permissible which does not pay attention to the statement of the text of the Holy Qur'an and Sunnah and to its interpretation together with its Khamir and Zamir. Within this framework while "expounding' the Injunctions the Court will remain under a duty in case of need during a new approach or to meet a new situation to keep in view the following essentials, of course, amongst others:—

(i) Whether instead of attempting a relaxation of an Islamic rule, the relaxation may not be made in the required need for which the relaxation is intended to be made. A very simple exercise preliminary though, will be of great advantage to ask oneself: Cannot the society exist or progress without the relaxation and where the answer is negative to ask the further question: cannot it be done with a temporary and mildest one?

(ii) It is often said that modernism (even when used in good sense of: achievement, progress and high attainment for the Ummah), Ijtihad is essential. There can be no cavil with the proposition, but before, doing the same within accepted spheres and under well-recognised rules it should also be asked: whether the same objects cannot be achieved without doing it; and, whether purpose would not be served by doing the similar Ijtihad or making a deviation in the demands of modernism; in other words, cannot be the society change to word Islam?

(iii) Whether a relaxation is approvable on the accented rules and principles ofljtihad and Ijmah, old or new; Zaroorat or Zarar; Tawil or Takhsis; Urf and other recognised methods like Qiyas, Ihsan, Istehsan, Masalah-Mursalah etc.?

(iv) Whether in a case a new principle like the foregoing, is visualised there is support for the same in the Holy Qur'an and the Sunnah?

(v) Whether there has been a need similar to the one in issue earlier-if so, whether attempts were made by those who were qualified to do the exercise and with what result; the same would apply to attempts made in all other lands?

(vi) Whether there are precedents for guidance in the well-known authentic works if so, what are the reasons for not following them. It is pertinent to note here that the Pakistan Courts when interpreting and applying laws do follow the precedents if they are by law, binding. And even when not so binding, help is always sought from good precedents. Not only this but also it is well-known, the judgments and opinions of foreign judges and jurists are accepted as legitimate guide or support for resolution of controversies. If that is treated as permissible, (rather indispensable by some at least for the time being) there should be no hesitation in examining the judgments and precedents from our own masters including Sahaba, Aimma and Ulema, old and new.

(vii) When examining, views and opinions of the old, special place is to be given to Khulafa-e-Rashideen and Companions and Tabaeens in accordance with the Holy Qur'an and Sunnah. It i3 high time, we reduce the dangers of sectarianism and make masterly combination of both (old and new) with gradual elimination of uncalled for criticism and Taboos against the so-called Taqleed and so-called Tajdid, when looking for and following the precedents.

(viii) It would also be necessary when rendering an answer for a new situation to see whether the interests of Islam and Muslim Ummah are advanced in Islamic way. The collective conscience of the Islamic Ummah, past and present, is also to be kept in view in making the answer.

(ix) Whether after doing the necessary exercise and after going through the above stages and others which might be spelt out later, the question when asked from the spiritual and mental faculties of oneself through Nafs Baseera, Nafs Lawwamah and Nafs Mutmainnqh and not the Nafs Ammarah (14) 75 (53) 12 (27) 89 (2) 75 the answer comes in the clear affirmative for the intended attempt or step, (see Foot-notes Nos. 5810 and 5819 of Tex Translation and Commentary on the Holy Qur'an by Abdullah Yusuf Ali (Vols. II, III). If not, it mus be given upon. If it is in doubt even then it must be given up. In other words, it must be beyond all doubts of reason, intellect and spirit.

(x) In unoccupied field, the precedent of Hzr, Moaz Bin Jabbal (r). should be applied with full consciousness of its limitations which can in the present day context, be spelt out from the foregoing points."

It will therefore be seen that no such act of violating the injunctions of Islam will be permissible which does not pay attention to the text of the Holy Qur'an and Sunnah and its interpretation together with its 'khamir' and zamir'.

1. In the present case the Council of Islamic Ideology has given the report which enumerates in details as to which financing has to be entered into under the Islamic system which had to be acted upon by the banks on the instructions of State Bank of Pakistan given under its authority under the Banking Companies Ordinance, 1961. The said report is based on the Quaran and Sunnah and for the purposes of interpreting the said existing laws its 'Kamir' and 'Zamir' has to be looked into and cannot be deviated from. The Honourable Supreme Court of Pakistan in the case of Pakistanv. Public At Large (supra) has held that while expounding the injunctions of Islam the Court will remain under the duty in case of fleed, during a new approach or to meet a new situation to keep in view a number of essentials, which essentials have been narrated above. It is clear that this Court will also have to look into whether, when there was a proper Ijt ehad for the purposes of arriving at a certain principle of law under the Islamic system, could this Court take a view different with the Ijtehadthat has already been taken place. The Ijtehad was by way of consultation, finalized and published as a report of the Council of Islamic Ideology and thereafter when the judgment was announced by the Federal, Shariat Court being PLD 1991 FSC 1. There can be no cavil with the proposition that the position that has been detailed and accepted by the Council of Islamic Ideology acted upon by the Federal Government and State Bank of Pakistan giving direction to the banks to finance under the modes prescribed and thereafter confirmed by the Federal Shariat Court and eventually by the Shariat Appellate Bench of the Supreme Court in the case of Dr. M. Aslam Khaki.

2. It is in pursuance to the long standing act in attempting to change the old banking system into a system of banking, to operate Disenchantment with the value neutral capitalist and socialist financial systems led not only Muslims but also others to look for ethical values in their financial dealings and in the West some financial organisations have opted for ethical operations.

Islam not only prohibits dealing in interest but also in liquor, pork, gambling, pornography and anything else, which the Shariah (Islamic Law) deems Haram (unlawful). Islamic banking is an instrument for the development of an Islamic economic order. Some of the salient features of this order may be summoned up as:--

1. While permitting the individual the right to seek his economic well-being, Islam makes a clear distinction between what is Halal (lawful) and what is haram (forbidden) in pursuit of such economic activity. In broad terms, Islam forbids all forms of economic activity, where are morally or socially injurious.

2. While acknowledging the individual's right to ownership of wealth legitimately acquired, Islam makes it obligatory on the individual to spend his wealth judiciously and not to hoard it, keep it idle or to squander it.

3. While allowing an individual to retain any surplus wealth, Islam seeks to reduce the margin of the surplus for the well- being of the community as a whole in particular the destitute and deprived sections of society by participation in the process ofZakat.

4. While making allowance for the ways of human nature and yet not yielding to the consequences of its worst propensities, Islam seeks to prevent the accumulation of wealth in a few hands to the detriment of society as a whole, by its law of inheritance.

5. Viewed as a whole, the economic system envisaged by Islam aims and social justice without inhibiting individual enterprise beyond the point where it becomes not only collectively injurious but also individually self-destructive.

6. The Islamic financial system employs the concapt of participation in the enterprise, utilizing the funds at risk on profit-and-loss-sharing basis. This by no means implies that investments with financial institutions are necessarily speculative. This can be excluded by careful investment policy, diversification of risk and prudent management by Islamic financial institutions. It is possible, that investment in Islamic financial institutions can provide potential profit in proportion to the risk assumed to satisfy the differing demands of participants in the contemporary environment and within the guidelines of the Shariah. The concept of profit-and-loss sharing, as a basis of financial transactions is a progressive one as it distinguishes good [••. ; lurmance from the \ id and the mediocre.

This concept therefore encourages better resource management. Islamic banks are structured to retain a clearly differentiated status between shareholders' capital and clients' deposits in order to ensure correct profit-sharing according to Islamic Law.

1. Ar-Riba consists of several types of transactions which have been forbidden by Allah. Dealing in riba is one of the greatest sins a Muslim can commit-The greatest sin according to Imam Malik.

All forms of riba fall into two basic categories. A. Riba An-Nasee'a.

This is the most pervasive and well-known. It includes several kinds of transactions.

The "classic" one which was described by the Companions of the Prophet (sas) was where someone owes another money for whatever reason (purchase, loan, etc.) which is due at a certain time. When the time comes, the creditor would say to the debtor: "a taqdhee am turbee?"(Will you pay up. or accept an increase?). It seems that there was no fixed rate set at the beginning of the transaction, rather it was set by "custom" and expectations and what the creditor felt he could demand from the creditor who was unable to pay. In this way, the original debt could easily expand to many times its original size. Allah said:

(Ya ayyuhaa alladhina aamanoo la ta'kuloo ar-riba adh'aafan mudhaa'afatan wa ittaqoo Allahala 'allakum tuflihoon.)

(O you who believe do not consume interest doubling and multiplying and beware of Allah that perhaps you may succeed.) Aal-'Imraan: 130

The question of Exchange of currency for currency or food for food with one side being delayed is explained by the following hadith which explains this and several other issues:

"Gold for gold either ore or pure, silver for silver either ore or pure, wheat for wheat measure for measure, barley for barley measure for measure, dates for dates measure for measure, salt for salt measure for measure whoever increases or seeks an increase has committed riba. There is nothing wrong with selling gold for silver and the silver is more as long as it is hand to hand as for deferred payment, no. And there is nothing wrong with selling wheat for barley and the barley is more as long as it is hand to hand, as for deferred payment, no. In another version, he (sas) said: "When the items are different in these categories, then sell however you wish as long as it is hand to hand." Abu Baud and both narrations are sahih.

Two sales in a sale. The Prophet (sas) forbid a transaction which was "two sales in a sale". This means that at the time of the sale, the two parties agree to different prices corresponding to different times of payment. For example: 90 days like cash but after that, the price goes up by 1% for every month of delay. This transaction is illegal and if a Muslim has engaged in such a transaction before knowing, they only have a right to the least of the prices.

"Whoever transacted two sales in a sale has a right only to the lesser of the two or he commits riba."

A loan which benefits the lender. As we saw in the first point, money cannot be exchanged for money with a delay no matter what the values. There is no business" transaction where money is given and returned later. A "loan" is NOT a business transaction, but is a form of "sadaqa" or charitable transaction and the money returned must be the same as the money given.

".The Prophet (sas) forbid "kulla qardhin yajurru manfa'atan" - any loan which returns a benefit (i.e., to the lender).

RibaAl-Fadhl.

It is forbidden in Islam to exchange currency for currency unless it is done real time - i.e.,no currency "futures" market. It is also forbidden to exchange food items for the same kind of food unless is both real time, and in equal measure. It is forbidden to exchange food items for other food items unless it is real time. Obviously measures do not have to be the same. Exchange of items in different categories e.g., food for money, money for goods, etc. can be done in any quantities per the rule of supply and demand and with or without delay of one of the two sides of the transaction. This category of riba is explained in the sahih hadith from Abi Baud above.

We should note that Islam forbid ihtikaar (monopoly) in foodstuffs and all necessities. In this case, the ruler has the right to interfere with the normal functioning of the "market" (supply and demand) in order to protect the peoples' necessities of life. A monopoly in other necessities say for example diamonds is of no consequence and the ruler is not allowed to interfere with the market.

No dealing in these interest transactions of any kind is allowed. The Prophet (sas) has invoked Allah's "la'na" upon five individuals for a single transaction: the payer of interest, the receiver of interest, the scribe (probably computer programmer in our day) who records it and the two witnesses. The word "la'na", usually translated as "curse" isrmuch more than that. It means distance, i.e., that Allah will put you at great distance from Him on Qiyama. Similarly, Allah said about those who consume people's property with falsehood that He will neither look at them, speak to them nor cleanse them on that day. This is the most severe punishment from Allah and those subjected to it will wish they could be punished by Allah in His fire rather than to be ignored and put away from Him. Also, as Allah said in Sara Taha:

(And whoever turns away from my reminder will surely have a miserable life and we will resurrect him blind. He will say: Lord! Why have you resurrected me blind though I used to see? He said: Likewise my signs came to me and you neglected them and in the same way you, on this day, are neglected.)

Riba may appear to be in increase and a benefit, but it will never bring, any benefit and will only bring those who deal in it the wrath of Allah, a declaration of war from Him and His punishment in the hereafter. Allah said.

(And whatever interest transactions you have made that they may grow in other people's wealth will not grow with Allah. And whatever zakat you have given desiring only Allah's countenance, these surely are the ones whose returns are multiplied.} Ar-Rum: 39.

Riba is one of the seven mubiqaat (sources of ruination) which the Prophet (sas) told us about in the hadith:

"Stay for away from the seven destroyers." They said: O Allah's Messenger, what are they? He said: "Associating partners with Allah, sorcery, killing the one protected by Allah except by right, consuming riba, consuming the wealth of orphans, fleeing from battle and slandering chaste and innocent believing women." Muslim & Bukhari and others.

And never forget the "la'na" of Allah involved by the Prophet (sas) on the five parties involved in any riba transaction.

The Prophet (sas) involved la'na on the receiver of interest, the payer of interest, the scribe and the two witnesses. And he said: "They are the same." Muslim.

Some people are under the misconception that only high rates of interest are prohibited, and that low rates are permissible. This delusion comes from misunderstanding the verse of the Qur'an, (translated), "O you who believe! Do not consume riba, increased manifold." [Qur'an, 3:130] This verse, however does not mean that if the increase is shall it is permissible; it is merely describing the common or usual state of affairs. Interest, as a rule, will be increased and compounded several times, as the debtor repeatedly fails to pay up. This is similar to the statements, "Do not sell My signs for a small price", meaning at any price, for any price is too small to sell the signs of Allah for; and "Do not kill your children out of fear of poverty." which clearly cannot be taken to mean that it is permissible to kill them for any reason besides fear of poverty. Further confirmation that all interest is prohibited is in another verse of the Qur'an. "But, if you repent [from riba] then for you is your principal? [Qur'an, 2.279] so, those who repent may keep only their principal (i.e. the initial amount loaned), and not even one penny or 1% more. Aside from all of this, "little" and "much" are subjective. What one person regards as "a little" interest may be considered "a lot" by some-one else. So, the truth of the matter is that a small amount of interest is prohibited just as is a large amount.

Similarly, the hadith literature confirms this understanding: "if a man extends a loan to someone, he should not accept a gift." [Bukhari] Abdu Burdah ibn Abi Musa said. "I came to Medina and met Abdull ibn Salam, who said. 'You who live in a country where riba is rampant. Hence, if anyone owes you something and presents you with a load of hay, or a load of barley, or a rope of siraw, do not accept it, for it is riba. "[Bukhari].

The unbelievers made a very similar claim. They said, "Trade is just like riba." However, this is an absurd analogy. It is like saying that there is nothing wrong with prostitution, because it is the use of the body to earn money, just like any other kind of work. Moreover, the claim that it is beneficial is invalid. In reality, it brings only a limited, temporal, material benefit to only a certain category of people. On the larger scale, it harms the debtor, especially in the case of his business running into loss. It restricts the wealth among the wealthy, and impedes its free circulation. It can lead to inflation, and other economic woes. It is selfish and unfair.

The Prophet said in the Farewell Pilgrimage, "Every riba of Jahiliwah is abolished under these feet of mine, and the first riba I abolish is that of 'Abbas". It was around this time that Allah revealed the verse, (translated)" This day have I perfected for you your religion, completed My favour upon you and chosen Islam for you as your religion." [al-Ma'idah]The religion was completed, and all the regulations (including riba) had been legislated by that time.

But, this was not the last revelation. A few days after that, approximately nine days before the Prophet left this world, some further verses were sent down. "0 you who believe! Fear Allah, and GIVE UP WHATEVER REMAINS OF RIBA. IF INDEED. YOU ARE BELIEVERS, (my emphasis) And, if you do to do [so], then receive news of a war from Allah and His Messenger. [On the Day of Judgment, the consumer of riba will be given weapons and asked to prepare for war with Allah, and whoever has Allah as an adversary shall surely be overcome.] But, if you repent, then for you is your principal; do not wrong [by taking interest], and you will not be wronged [by deprivation of the principal]. And, if [the debtor] is in dire circumstances, them [give luml reprieve unul case. And, it would be better for you that you [remit the debt as] charity, if only you knew. And, fear a day in which you will be returned to Allah. Then, every soul shall be paid for what it has earned, and they will not be wronged." [Qur'an, 2:278-281] (my emphasis.)

This is something for us to ponder over. The last revelation of the Qur'an at almost the last possible time for revelation-is on riba. This must be to reiterate its severity, and to issue a dire warning to us against it. Not even the dhimmis (non-Muslim citizens) are allowed to deal in riba in the Islamic state. The Prophet wrote to the Christians of Najran.' The person amongst you who deals in interest is not under our protection. [Kanz al-'Ummal]

"On the night I was transported (i.e.the night of Isra and Mi'raj), I was brought to a people whose stomachs were [large] like houses, with snakes inside them which were visible from outside their bellies. I said, 'Who are these, O Gabriel?' He said, 'Consumers of riba'. "[Ibn Abi Hatim, Ahmad].

(part of a long hadith of a dream:)".... then we came to a river, "I (the narrator) think he said: red like blood, "and there in the river was a swimming man, and on the bank of the river was a man who had collected a lot of stones by him. The swimmer would try to emerge [from the river], whereupon the one who had gathered the stones would throw a stone into his mouth [forcing him back in]. "The Prophet conveyed that the swimmer was the consumer of the riba. [Bukhari]

"Allah has cursed the consumer of riba, the one who gives it for consumption, the two witnesses [to the contract] of [riba] and the scribe thereof. "[Ahmad, Abu Ya'la,Ibn Khuzaymah, Ibn Hibban; Muslim, Nasa'i, Abu Dawud, Tirmidhi, Ibn Majah; Bukhari].

"On account of the wrongdoing/oppression of the Jews, We made prohibited for them good/wholesome things which had been lawful for them, and [this was also] for their abundant hindering from the path of Allah, their taking riba although they had been prohibited from it, and their wrongfully consuming the property of people." [Surah al-Nisa]

"The nation amongst whom adultery and interest become common definitely bring the punishment of Allah upon themselves." [Abu Ya'la] According to a narration with Ahmad, interest brings upon drought.

"By He in Whose control is my life! Some people of my ummah will spend the night in the state of pride, haughtiness, play and amusement, and in morning, they will be disfigured as apes and swine, because they made the unlawful lawful, kept (employed) singing girls, drank liquor, consumed interest and wore silk clothes." ['Abdullah ibn Ahmad] (emphasis is mine).

"When you trade in al-'eenah [a round-about transaction intended to circumvent riba, but ending in the same result. A man would buy an article from a needy person at a low price, stipulating that he should buy it back at a future date for a higher price], take hold of the ears of cows, become contented with agriculture, and abandon jihad, Allah will impose upon you a humiliation which He will not remove until you return to you religion" [Ahmad].

It should be quite clear by now that the interest obtained nowadays from banks and the like is Haram without any doubt. The three councils of jurists that meet regularly to discuss contemporary issues, have all declared, with a unanimity of all of their members, that this interest is prohibited by the texts of the Qur'an and Sunnah (i.e. it is not merely a matter of ijtihad), and that it is the very ribawhich Allah and His Messenger have prohibited. One of the former shaykhsof al-Azhar (raHimah Allah) observed. This has become a matter which is necessarily known to be part of the religion, and so it towers above any disagreement.

"So, whoever receives an admonition from his Lord, then for him is what has passed, and his matter is with Allah. But, [as far] whoever returns [to dealing in interest, even after learning of its prohibition, and after hearing the serious and dire warnings against it] - they are the inmates of the Fire: they shall abide therein." "Say: O My servants who have committed excesses against their own selves! Do not despair of the mercy of Allah! Indeed, Allah forgives all sins. Indeed. He is the Most Forgiving, the Most Merciful."

If you have been guilty of consuming riba,then you should repent to Allah sincerely. You should feel regret over your sin, cease it immediately, and resolve never to return to it again. The interest which you have from the past must be disposed of. You cannot keep it, for it is Haram money. [Qur'an, 2:279]. You may not destroy it, because the Messenger of Allah (may Allah bless him and grant him peace) forbade the destruction of money [Muwatta']. Nor should you give it back to the bank, for that would only strengthen it and further institution of riba. Hence, you should give it away for general projects of good, but with the intention of getting rid of Haram money, not with the intention of charity. Having discussed the concept of 'Riba' existent from the earlier days of Islam distorted by the western banking system, I shall proceed to discuss the various aspects that have been stated and detailed in the said judgment of Dr. Mehmood-ur-Rehman Faisal (supra). It is important to narrate some facts which will show that not only the bankers but the entire country as also the international banks remained involved in the transformation and to say, that today, they have been taken by surprise by the judgment of Dr. M. Aslam Khaki is incorrect. Such a stand is taken for the purposes only that having done an act knowingly that the accrued markup became the banks profit and the same was reflected in the balance sheet. The markup thus charged continually be elapse of time was reflected as income. This deemed income showed the huge profits of banks, which was due to the rescheduling and rollovers, where the markup on markup was charged.

1. The discussion on charge of interest/mark-up that is, in the nature of Riba has been in light all over the world in the various Islamic Fiaqah Conference. In the assembly of the Islami Fiqah of India in its seminar of the top scholars were of the opinion that "Interest whether received on the loans for personal expenditure or on commercial and business loans, is in the eyes of Islamic Shariah, forbidden." Additionally, Islamic Fiqah Academy established at the official level by the organization of the Foreign Minister also considered this matter in December, 1985 and arrived at the same conclusion. In the official document of the IMF the position of the Muslim Ummah described it as follows:-

"It seems appropriate that the beginning of the study of Islamic Banking system should be made from the definition of its basic terminology. Riba is an Islamic legal term which is tantamount to an accepted addition before the use of money. Controversy is found in the past whether Riba means interest or usury but now there is a consensus of opinion among the Muslim scholars that this technical term is applicable to every form of Interest and its corroboration is not merely excessive interest. Therefore in the forthcoming discussions riba and Interest will be used as synonyms and the Islamic Banking System will mean the system in which the payment or receipt of Interest will prohibited, whereas an interest giving or conventional bank will mean an institution in which interest is received or given on the use of monetary fund-(International Monetary Fund Staff Papers, Vol xxxiii No. 1 March 1986. Islamic Interest-free Banking, a Theoretical Analysis by Mohsin S. Khan p-4-5).

The dispassionate analysis of the academic discussions of half a century absolutely lays bare the fact that the questions and doubts raised about Interest (Riba) are unreal and the Quran and Sunnah have prohibited Riba in its every form, be it the ancient banking form or the modern banking, be it related to the consumption loans of the needy or commercial and production loans, may they fall within the sphere of private limits or Government, semi-Government limits, and whether provided at a lesser or exorbitant rate. The second great success achieved in the last thirty years covers the principles and rules way of working, financial Instruments of interest-free banking and the proposal and drafting of the strategy of investment. In this connection investigations have been made with great endeavours and a chart of alternative system has been prepared with deep foresight. At least two dozen research books have been published in which the features of the new system have been explained. Among them some of their authors have received the Islamic Development Bank and the King Faisal Awards.

In Pakistan the report of the Council of Islamic Ideology (1980), which is based on the report of the economic and banking experts, occupies the position of a mile-stone. In this report, a very realistic blue print has been presented to purge Pakistan's domestic economy of interest. A Committee of the Central Bank also worked on this subject in 1981 under the Chairmanship of the Governor of State Bank and the blue print provided by it is also very close to the blue print of the Council of Islamic Ideology. The report of the Council of Islamic Ideology was discussed in an International Seminar and its recommendations were, on the whole ratified. Moreover some additional recommenda­tions were made, which were published under the title of "Money and Banking in Islam," by the International Institute of Islamic Economics (Islamabad) and institute of Policy Studies (Islamabad). In 1989 the International Institute of Islamic Economics held a workshop on the subject as to how interest can be eliminated from Government dealings. The report of this workshop (Elimination of Interest on Govt. Transactions) has also been published. After that in June 1992 the commission for Islamization of Economy submitted its interim report, which has, however, not been published so far. It was even not presented in the Senate and National Assembly as required under the law. The Institute of Policy Studies held a Seminar in 1993 which was attended by about one hundred experts. Two editions of its proceedings have been published in 1994 and 1995 entitled "Elimination ofRiba from the Economy". The whole of this work presents a vivid outline of an alternative system in the light of conditions prevailing in Pakistan. Regarding the foreign loans, clear guidance exists in the above mentioned report of the Institute of Policy Studies and the Self-Reliance Committee. Even an outline exists in the Self-Reliance Report (1991) which tells how to execute this job, and on other hand with the help of a proper economic model a complete program has been given to eliminate Riba from the economy in three years. The difficulty is that those demanding an alternative system neither study these reports nor intend to act upon them. It seems that because the recommendations made in this whole assignment, are not in accordance with their taste or desire, they therefore refute the existence of these documents and are continuously harping upon, "where is the alternative?" The matter is not limited only to academic exercise and drawing a sketch of the alternative system. No doubt much work has yet,to be done and many stages have to be covered, but whatever has been attained by way of implementation is sufficient to bow before the prowess of Islamic banking system.

The work of accumulating the savings and provision of resources have always been carried out at the lowest and public levels C individual and institutional. After the first World War, Dr. Muhammad Hamidullah had carried out research work and had shown how investment to the extent of billions of rupees was being carried out through equity-based venture system. During the last forty years the experiments include the Mit Ghamr Bank of Egypt, which had been working from 1963 to 1967 and after that it adopted a new form in the shape of Nasir Social Bank (1971). These institutions continued to work very successfully for ten to twelve years on which studies were carried out which declared them to be successful preliminary experiments (vide: The Research Report of T. Wholus Scharf: Arab Islamic Banks: New Business Partners for Developing Countries, Paris, OECD, 1993)."

1. In pursuance to the International discussion of the Muslims all over the world in 1975, Dubai Islamic Bank was formed to perform the work under the Islamic system. Two major Financial Groups namely Darul Mai Islamia (DMI) and Al-Barka Groups were also formed for the purposes of interest free banking. The Islamic Development Bank formed in Jeddah in 1975. Al these banks are continuing to work under the system of Islamic Banking.

2. For the purpose of understanding the law in force for the time being, and for the purpose of understanding the two important judgments, i.e. the cases of Dr. Mfhmood-ur-Rehman Faisal (supra) and Dr. M. Aslam Khaki (supra), it will be important to reproduces the two most important circulars that have been continued to be relied upon in this respect. The first being BCD Circular No. 13 dated 20th June, 1984 which reads as under:-

"STATE BANK OF PAKISTAN

Banking Control Department

Central Directorate

Karachi.

BCD Circular No. 13 20th June, 1984

All Banks. Dear Sirs, Elimination of 'RIBA' from the Banking System.

As has been announced by the Finance Minister, it is the intention of Government that the Banking System should shift over to Islamic modes of financing during the course of the next financial year. These modes of financing have been described in Annexure I. This shift will take place according to the following programme:--

(i) As from the 1st July, 1984, all banking companies will be free to make finance available in any of the modes of financing listed in Annexure I. However, as a transitional arrangement, they will also be free to lend on the basis of interest, provided that no accommodation for working capital will be provided or renewed on interest basis for a period of more than six months.

(ii) As from the 1st January, 1985, all finances provided by a banking company to the Federal Government, Provincial Governments, public sector corporations and public or private joint stock companies shall be only in any one of the modes indicated in Annexure I.

(iii) As from the 1st April, 1985, all finances provided by a banking company to all entities, including individuals, shall be on the same basis as mentioned in (ii) above.

(iv) The appropriate mode of financing to be adopted in any particular case will be settled by agreement between the banking company and the client. Some possible modes of financing for various transactions have been shown in Annexure II.

(v) As from the 1st July, 1985, no banking company shall accept any interest-bearing deposits. As from that date, all deposits accepted by a banking company shall be on the basis of participation in profit and loss of the banking company, except deposits received in Current Account on which no interest or profit shall be given by the banking company.

1. The instructions contained in items (i), (ii) and (iii) above shall, however, not apply to on-lending of foreign loans which will continue to be governed by the terms of the loans. Likewise, the instructions contained in item (v) above shall not apply to foreign currency deposits.

2. The above instructions are being issued under the Banking Companies Ordinance, 1962. Further instructions, where necessary, will follow.

Please acknowledge receipt.

Yours faithfully, (SIBGHATULLAH) Director"

ANNEXURE-I Permissible modes of Financing

(A) Financing by lending: -

(i) Loans not carrying any interest on which the banks may recover a service charge not exceeding the proportionate cost of the operation, excluding the cost of funds and provision for bad and doubtful debts. The maximum service charge permissible to each bank will be determined by the State Bank from time to time.

(ii) Qard-e-Hasanaloans given on compassionate ground free of any interest or service charge and repayable if and when the borrower is able to pay.

(B) Trade-related modes of financing including the following: -

(i) Purchase of goods by banks and their sale to clients at appropriate mark-up in price on deferred payment basis. In case of default, there should be no mark-up on mark-up.

(ii) Purchase of trade bills.

(iii) Purchase of moveable or immoveable property by the banks from their clients with Buy-Back Agreement or otherwise.

(iv) Leasing.

(v) Hire-purchase.

(vi) Financing for development of property on the basis of a development charge.

The maximum and the minimum rates of return to be derived by the banks from these modes of financing will be as may be determined by the State Bank from time to time.

(c) Trade-related modes of financing including the following:-

(i) Musharika or profit and lossing sharing, (ii) Equity participation and purchase of shares.

(iii) Purchase of participation term certificates and Modaraba Certificates.

(iv) Rent-sharing.

The maximum and minimum rates of profit to be derived by the banks from such transactions will be as may be prescribed by the State Bank from time to time. However, should any losses occur, they will have to be proportionately shared among all the financiers.

ANNEXURE-II Permissible modes of Financing for Various Transactions

Nature of Business Basis of Financing

I. Trade and Commerce Fixed investment

(a) Commodity operations of Mark-up in price, the Federal and Provincial

Governments and their agencies.

(b) Export Bills purchased/ (i) Exchange Rate diff- negotiated under Letters of erential in the case Credit (Other than those of foreign currency under reserve) bills.

(ii) Commission or mark-down in the case of Rupee bills.

(c) Documentary Inland Bills drawn against Letters of Credit purchased/dis counted.

(d) Import Bills drawi> under Letters of Credit.

(e) Financing of exports under the State Bank's Export Finance Scheme and The Scheme for Financing Loc­ ally Manufactured Mach­ inery.

(f) Other items of trade & commerce.

II. Industry

Mark-down in price.

Mark-up in price.

Service charge/Concess­ional Service charge.

Fixed investment

Equity participation, P.T.Cs., Leasing or hire-purchase.

Working Capital

Profit and loss sharing or mark-up.

Fixed investment Equity participation, P.T.C.s., Modaraba Certificates, leasing.

Hire-purchase or mark­up.

Working Capital

Profit & loss sharing or

mark-up.

III. Agricultural and Fisheries (a) Short-term Finance.

Mark-up. In the case of small farmers and small fishermen who are at present eligible for interest free loans finances for the specified inputs etc., upto the prescribed amount may be on mark-up basis. The mark-up amount may however be waived in the case of those who repay the finance within the stipulated period and payment of the mark-up made by the State Bank to banks by debit to Federal Government Account.

(b) Medium and long-term Finance.

(i) Tube wells & other wells.

(ii) Tractors, Trailers and other farm machinery and transport (including fishing boats, solar energy plants etc.)

(iii) Plough-cattle, Milch Cattle & other live stock.

(iv) Fairy & Poultry.

(v) Storage and other farm construction (viz. Sheds for animals, fencing etc.)

(vi) Land Development.

(vii) Orchards, including nur­series.

(viii) Forestry.

(ix) Water Course improve­ment.

Leasing or hire-pur­chase. In addition to ownership of machinery, banks may create charge on the land in their favour as in the case of other loan to the farmers under the Passbook System. Hire-purchase or leasing. Mark-up

PLS/mark-up/hire-pur-chase/leasing. Leasing or rent sharing basis with flexible weightage to the bank's funds. Development charge.

Mark-up, development charge or PLS basis.

Mark-up, development charge or PLS.

Development charge.

And the other being BCD Circular No. .32 dated 26.11.1984 which reads as under:-

"STATE BANK OF PAKISTAN

Banking Control Department

Central Directorate

Karachi

BCD Circular No. 32 26th November, 1984, All Banks and development finance institutions.

Dear Sirs, Elimination of 'RIBA' from he Banking System-Bank Charges.

Please refer to BCD Circular No 13 dated the 20th June, 1984.

1. Vide BCD Circular No. 7 dated the 28th March, 1984 bank charges except charges for home remittances, have been deregulated. The schedules of bank charges received from the banks show that the following items of bank charges are based on interest:

(i) Mark-up in the case of import bills under import letters of credit.

(ii) Mark-down in the case of documentary bills drawn against inland letters of credit.

1. The schedules also provide for levy of overdue/penal interest in case of non-retirement/non-payment of inland cheques, bills etc., purchased.

2. In exercise of the powers vested in it under the Banking Companies Ordinance, 1962, the State Bank of Pakistan is pleased to direct that as from the 1st January, 1985, interest, wherever charged by a banking company/ development finance institution in any of the items of bank charges, shall be replaced by a non-interest mode considered appropriate by it. Moreover, overdue/penal interest or mark-up on mark-up shall not be charged by a banking company/DFI as from that date. Instead, it may take legal steps for recovery of the overdue finance.

3. Please acknowledge receipt.

Yours faithfully, (SIBGHATULLAH) Director"

\

1. An analysis of the said BCD Circular No. 13 is required to be done in the light of the afore-stated discussions that a complete conscience effort was put in by the Government which included the bankers to bring about the transformation in the existing system in the banks for shifting to the Islamic modes of financing. The first paragraph of said BCD Circular No. 13 states that, it was the Government which acted through its Finance Minister, showing the intention of the Federal Government, to transform the banking system into the Islamic mode whereby, the financing done would be in the manner as provided in the Annexures to the said circular. It was not an abrupt transformation. The transformation had actually commenced from 1962 and various committees had been formed. Discussion at the highest level had taken place and naturally upon discussion after numerous position a settled formula came in by way of this circular. No doubt, this circular does not mention the name of the transaction i.e. whether it is Morabaha transaction, a transaction by bai or by Ijarah, Modaraba or any other such means but the annexure to the said notification categorically spelt out, what was to be done and that, these in fact reflected the various transactions that are and continued to be in vogue in other Islamic banks. Though no names were given but it will be seen that these permissible modes were nothing but specified transaction allowed by the Islamic Scholars. BCD Circular No. 13 also speaks of "transitional management" and, after the first of January, 1985 as provided in clause 2(i) of the said circular of finances provided by a banking company. Federal Government, Provincial Government, public sector corporation and public or private joint sectors companies could only be done in the modes indicated in the Annexure-I to the said circular.

2. It cannot by any stretch of imagination be presumed that the meaning of the words 'interest', 'mark-up' or 'Riba'were not understood. When this notification was issued all the transactional aspects had been discussed at the top level by the Government which is why the Finance Minister announced the public of transformation. This announcement was also in the line with the Constitutions of the Islamic Republic of Pakistan.

3. In Annexure-I to the said circular namely BCD Circular No. 13 there were three basic forms of transaction that were allowed viz. The first being, 'Financing by Lending'. From the title, it is clear that though, otherwise in the usual parlance 'financing' and 'lending' would have in fact meant the same, but when 'financing' is used with 'lending' saying, that there is lending, it would mean that there is a 'loan' given to finance some person. The word 'finance' will have to be given a separate meaning and is to be treated to be 'lending' simplicitor. 'Lendings' are loans i.e.the delivery of the money to another person. The money therefore being a 'debt' created by way of lending. In such a situation the question that will arise is that, whether such debt created by lending could attract a levy of further sums on elapse of time for repayment, as wound be done under the normal banking system on any money lent which would carry interest. Under this circular there is a categorical stipulation, that, where there is a 'lending' the 'debt' so created by giving 'money' to another person or financing to other person by way of lending, such would not carry an interest or markup. It is, therefore, provided in sub-clause (i) of Clause A to Annexure-I that such 'loans' shall not carry interest or markup. The banks were only allowed to recover 'Service Charges' which were not to exceed the proportionate costs of operation. The important aspect that needs to

be noted in the first permissible mode, is the use of the words 'excluding cost of funds and provision of bad and doubtful debts'. This phrase needs to be explained. The Shariat Appellate Bench of the Supreme Court in the case of Dr. M. Aslam Khaki has held, that money is not the commodity and in fact, is only a medicum of exchange'. It has also been held, that, in view of it being the medium of exchange and cannot be treated as a commodity wherefore it cannot be traded. It can only used for the purposes it is for, namely the exchange for commodity. The value of the money cannot change, that is, if a currency note is for Rs. 100/- it can only be exchanged with a hundred rupees or for various notes of the value of the

Rs. 100/-, but no addition can be made thereto. Such medium of exchange can get the commodity of the value of Rs. 100/- but, the money cannot be traded. It will be important to note that in the modern world, money is obtained from various sources, which involves cost. If such cost is taken into account, and if that money which is lent, the usual course would have been that the bankers would have charged interest, which would carry his own spread alongwith the cost of funding and provision of bad and doubtful debt, to arrive at a rate of interest that, till such time the money is repaid, the debtor shall continue to pay an additional sum for utilizing the money. Such has been categorically restricted by the said BCD

Circular No. 13 in Annexure-I. The said judgment of Dr. M. Aslam Khaki only reaffirms the same and categorically states that nothing can be added for the purposes of utilization of 'money'. Notwithstanding what has been stated by the Honourable Supreme Court, even if BCD Circular No. 13 is therefore seen, it is clear that by inclusion of this particular phrase, the banks are prohibited to charge except for the service charges, any other amount on a debt, to the extent that the cost of obtaining funds by the lending agency, and provision by such lender of his bad debt and charging interest has categorically been done away with. The service charges are only the cost of the actual banks operation, and the maximum of which was to be determined by the State Bank of Pakistan from time to time. This shows the importance that has been attached to the fact that no 'increase' or addition by elapse of time could be made on a 'debt' or 'loan'. Le. 'on money lent'. 38. The other manner of loans allowed is the 'finance by the lending' as 'Qard-I-Hasana' which is a loan given on coir passionate ground, free from 'interest', markup' or 'service charges' and repayable, 'if and Vhen' the borrower is able to pay, I am not aware whether this has even been acted upon.

1. The next mode of financing that has been dealt with in Circular No. 13 is the Trade Related Modes of Financing', which type is in fact, the basic earner for banks. Various modes have been provided, one of which is, purchase of goods by banks and their sale to the clients at an appropriate markup in price for deferred payment and which is the most utilized manner of 'financing'. We need to analysis this aspect also. It is important to first note that the term 'loan' or 'lending' is missing and it is 'financing' that is being used. The absence of the term 'lending' has to be given a meaning. As discussed above, there was 'Financing by lending', is a 'loan' of money, which may be repayable at a certain time. 'Financing' is not 'lending'. It is a form of a business activity which has been termed in the title as "Trading". Thus the finance is earned by trading, and cannot be termed as a 'Loan' of money. The permissible mode allows he purchase of 'goods' or various commodities by banks. The purchase of goods has to be given a proper meaning. Purchase will never mean purchase of 'money'. As discussed, this would amount to 'lending money', which is not allowed by the said BCD Circular and even if allowed, no addition can be made to it. It is the 'goods' or 'commodity' that have to be purchased. 'Money' is neither 'goods' nor 'commodity'. It is, therefore a categorical stipulation in sub- clause (i) of Clause B of Annexure-I. The banks are allowed to sell goods that are required by their clients. It is the 'sale price' of these 'goods' that shall be the financing. I have already discussed that there is 'financing by lending' and this mode is the other mode Le. financing by sale or 'Bai'. Therefore, money or the 'sale price' fixed and agreed between the 'Seller' and the 'Buyer' is what is payable for the goods purchased. There could be various types of purchase, however the most common being, that the client of the bank sells 'goods' to the bank for a value or the 'purchase price', which is the amount that is actually paid by the bank to the customer. The customer simultaneously, agrees to repurchase the same goods for a 'marked-up price', whith is the agreed 'sale price' or the 'repurchase price'. Thus the purchase and sale is by the same person (though some writers say that this would also amount to lRiba\ but the law for the time being in force, permits such sale and purchase), the money Le. 'the sale price' or the 'repurchase price' is payable on deferred payment basis. It is categorically provided in the said Circular, that in case of default there shall be no markup on markup. Thus 'delay in payment will under no circumstances cause any addition of any sums. This is because of the categorical fact that the 'repurchase price' becomes a 'loan' or 'debt' and nothing could be added thereon. We now also analysis this clause keeping in view Judgment in Dr. M. Aslam Kakhi's case. In the order of the Court it is observed that 'the Holy Quran says: 'and if he (the debtor) is poor he must be given respite till he is well of. (2:280). It is further held in the Order, that if the purchase delays the payment despite his ability to pay, he may be subjected to different punishment, but it cannot be taken to be a source of further return to the seller on per cent, per annum basis as contemplated in Section 79 of Negotiable Instrument Act. The permissible mode of financing by sale and purchase therefore could not carry any mark-up on mark-up and that, such was also not allowed in the event of default. Thus the comparison of the Circular and the judgment of the Supreme Court has the same end result.

2. The sale price of the goods purchased by the client from the bank will therefore be a determined price namely, a price on which certain profits by way of addition of mark-up would also be included. Such price could be arrived at, as also observed by the Supreme Court in the aforestated case, on any sums that may be agreed between the parties, but after the 'purchase price' has been agreed to between the 'bank' and the 'customer' such amount will only become a 'debt' and would therefore be nothing but 'lending'. The transaction of sale and purchase is complete, and the bank becomes an 'unpaid seller', i.e. is only liable to be paid the repurchase price or the amount of 'debt' created by the sale by the bank to the customer. The payment to be made is at a date in the future. Such will only be a 'loan' or 'debt' repayable at a future date. If payment is not made on that future date, it is the money due that is recoverable only, and per the said Circular, no mark-up on mark-up or addition thereto can be made. After it becomes 'loan', such amount will be dealt with in the manner as provided in Clause-A of Annexure-I and would therefore only become loan payable by the purchaser to the bank. Such loan will not carry any interest or mark-up. Only services charges therefore could be recovered. The usual method being applied by the bank for the purposes of recovery of this interest, is the indirect mode and method. What is being done is, that another 'agreement' is entered into under Clause B(i) and the said 'loan' or 'debt' recoverable is translated into the said agreement as the 'purchase price' of the goods and commodity. On this purchase price is added a mark-up in the agreement which will therefore become the 'sale price' or 'repurchase price' i.e. sale by the customer to the bank and an addition of further mark-up is made to the said existing sale price to arrive at a further marked-up price. In the subsequent agreement there is no transaction of sale or purchase of goods but a fictitious act is done, whereby notional goods are transacted and not detailed in the agreement and a sale and purchase price is agreed upon. This is nothing but a fraud on the Constitution, the law and the people of this country. It is a mockery of Islam, and the Islamic Modes of Transaction approved by law. In the case of MianMuhammad Nawaz Sharif v. The President of Pakistan (PLD 1993 SC 473), it has been held that, Vhat cannot be done directly cannot be done indirectly'. This is also a very well settled law, that no one can be allowed to circumvent the law, no one can be allowed to act otherwise than what is provided. It is also settled law, that if a thing has to be in a specific manner, it has to be done in that manner alone and none else. No one can be allowed in the name of their own profitability to cause the existing law to be bypassed, avoided or interpreted, or usage or customs to be developed which are contrary to an existing unequivocal and exact law. BCD Circular No. 13 is very categorical. It clearly states that no mark-up on mark-up shall

be charged. There is not ambiguity surrounding this issue. In the garb of the other agreement such will not be allowed to be taken,' Mr. Aziz-ur-Rehman has referred to the following cases:

(i) Unreported judgment being Spl. HCA No. 187/98, M/s Hardware Manufacturing Corporation (Put.) Ltd. and 5 others Versus U.B.I.

(ii) Banque Indosuez Versus Banking Tribunal for Sindh and Baluchistan and others (1994 CLC 2272) in which according to him, the two division benches of this Court have held that 'roll over' being a 'custom' and 'old practice' can be allowed. According to him, and that has been discussed above, that this Court shall be bound by the judgment pronounced by the division bench. No doubt, all judgments that are not distinguishable do bind on any other Court which may be subordinate to it. I, sitting in the original side as a single judge will be bound by the judgment of divisional bench. I have, therefore, perused the said judgment in some detail. The principle expounded by my brothers is not incorrect. The facts of the said case are however distinguishable from the present case and I say this with all respect and humility at my command. It is apparent that all the facts, details and law were also not discussed by the Honourable Judges of the division bench. The case of Mehmoodur Rehman Faisal (supra) was also not considered which was a judgment of Federal Shariat Bench and binding on the Court. The Honourable Judges of the Federal Shariat Appellate Bench in the aforestated judgment which was the judgment of the full bench held that: 'in view of the above discussion, the rule of Maslaah cannot be invoked in aid to permissibility of 'bank interest'. It was also held that:-

"153. For consideration of other point, whether an increase to offset the depreciation in the value of currency can be justified and considered as an alternate and substitute for interest, in the eye of Shari'ah, we may quote first from the well known works of Economics as to the theory of inflation and indexation, purely from economic point of view, and then we would examine the same on the anvil of the Qur'an and Sunnah.

1. Inflation is a persistent tendency for the prices of most of the goods and services of rise over time. Inflation has been a world-wise problem throughout, much of the 20th century. Nonetheless, inflation has proved to be extremely difficult for economists to define or to distinguish from related problems."

The learned Judges after having discussed the various possible reasons for rise in the price, including inflation and keeping in view the indexation have come to the conclusion that all increase in any manner whatsoever is Riba.It was held that:

"169. Guided by the hadith the fuqaha have opined that in case dirhams or dinars are lent out by counting, they will be paid back by counting not by weight. Similarly in case these are lent out by weight they will be returned by weight not by counting. In respect of the loan of a commodity it is further provided by the fuqaha that it should be returned in the same kind and quantity irrespective of any change in this price at the time of return of the loan."

1. Once it is held that loan of a commodity has to be returned in the same kind and quantity irrespective of any changes in its price, the concept of 'roll over' will also have changed. I am therefore of the view that the concept of 'roll over' though, dominant and an easy method of earning money, had actually been done away with, by the introduction of BCD Circular No. 13 providing that no mark-up on mark shall be charged. The argument that mark-up on mark-up C would actually mean that no mark-up could be charged on the mark­up levied on the principal amount in the first instance has been made, it has been argued that the words 'mark-up on mark-up' will only be read as if there shall not be charged any further sum on the mark-up that was added to the first agreement for the purposes of arriving at a repurchase price, but it could be charged on the actual purchase price namely, the purchase of the goods from customers. I am afraid, I shall also not subscribe with this view. The position is very clear that the mark-up is charged for the purposes of arriving a a repurchase price and as discussed above, the said mark-up i merged and becomes a part of the debt. Such amount cannot deal with separately as, the entire amount will form a debt and it is thi debt that shall be payable by the borrower. The practice of keepin, mark-up in a separate amount and principal on the separate accoun and charging mark-up on the principal and not the mark-up is no contemplated by the said notification namely BCD Circular No. lc Once the principal debt is determined as discussed above, the deb becomes a finance by lending and no mark-up, by whatever nam called, can be charged. If one were to presume that such mark-up on the mark-up could not be charged, but could be charged on the principal money lent, the outcome would in fact be the same. Al payments made would be, (in fact are) adjusted towards mark-up and then mark-up would be charged on the principal. This will be purposively' avoiding the law. Interest has been defined as an increase on money by elapse of time i.e. that a sum that is continued to be paid till such time the debt remains in place at a certain ruli and for utilization of the monies that may have been given to another person. In the instant case also the arguments therefore that mark-up on the principal can be charged also held no ground The charge of mark-up on mark-up will mean an addition in the existing marked-up price. Mark-up is charged only for the purposes of arriving at a price sale of a commodity, and the addition to arrive at a price is the profit in trade, and which is the only amount a bank can gain. There would be no commodity to sell after the aereemen of sale has been acted upon. The bank, as aforestated shall only be an unpaid seller. In the subsequent agreement it will only be the money (the debt) that is being resold and which cannot be done. In fact, if the said subsequent agreements are read, it will be clear thai the said agreements are in fact sale and purchase of 'goods' and no of 'money' but there are no 'goods', and is a garb to overcome and avoid an existing law.

2. Grant emphasis has been placed on the fact that, in the event an order is passed, that all monies that have been charged under the various financing given by the banks to the customers are stated to be unlawfully done, the banks shall collapse. This may be true but, the question of charging mark-up on mark-up is not one which is new. I have discussed above, that this was being in light and was/ had been taken up and discussed at some length from 1962. Presuming that the bankers did not know of such also and presuming that they had acted bona fide in entering into subsequent agreements and presuming that they were under a bona fide belief that mark-up on mark-up was only the charge on the mark-up and could be added to the principal by subsequent agreement. They will however have to consider that the matter had been taken immediately thereafter and the first judgment of this Court that was in place was the case of Bank of Oman Ltd. v. East Trading Company (PLD 1987 Karachi 404). In this case, it was held that the Courts in Pakistan are bound by the Constitution and any law repugnant to the Constitution is void. It was further held that the principle and the provisions of the Objective Resolution by virtue of Article 2-A are now a part of the Constitution and justiceable subject however to limitation imposed by Article 203-A, B (c), 203-D, 203-G and 203-GG of the Constitution whereby special and specific jurisdiction has been conferred on the Federal, Shariat Court to declare the law as defined by Article 203-B(c) read with Article 203-G or any provision thereof as repugnant to the injunctions of Islam laid down in the Holy Qur'an and Sunnah of the Holy Prophet (PBUH) and that the said law and any provision thereof so declared by it. In another case of Habib Bank Ltd. v. Muhammad Hussain reported as PLD 1987 Karachi 612 whilst dealing with the provision of the Banking Companies (Recovery of Loans) Ordinance, 1979 i.e. before the issuance of BDC Circulars Nos. 13 and 32, it was held that, such interest cannot be awarded but, because of binding view in the case reported as Muhammad Bachal Memon v. Government of Sindh (PLD 1987 Karachi 296) interest was allowed.

3. In the case of Aijaz Haroon v. Inam Durrani (PLD 1989 Karachi 304) the entire position was again discuss agreeing with the position of Dr. Justice Tanzil-ur-Rehman, J. in the above referred cases:

"I am of the view that all laws whether they be constitutional or sub-constitutional must yield to the Sovereignty of Allah as reflected in the Holy Qur'an and Sunnah and if there be a clear commanding that behalf it is that command alone which has to be given effect to and all other legislation applicable in this Islamic Republic of Pakistan must be construed as subordinated thereto. Sovereignty over the entire universe vesting, as it does, in Almighty Allah, is the cornerstone of the Constitutional edifice of this Republic and the Injunctions of Islam, meaning thereby Injunctions of Qur'an and Sunnah, as interpreted by a particular sect in Islam in relation to the personal law of that sect and subject to the status and personal laws of non-Muslims, are enforceable, as such."

In this case it was also held that:

"The law of Allah does not brook injustice of any kind and, therefore, whenever a case for payment, for refund or return of money, comes before a Court of law in Pakistan it has to be the endeavour of that Court to order the payment, refund or return, as the case may be, of so much of current legal tender to the person entitled as is equal, in terms of buying power or other intrinsic value, to the amount initially, loaned out contracted to be paid or deposited."

However, Mr. Wajihuddin Ahmed, J. held that as the legal tender had lost value, the amount to be paid would be calculated based on the depreciation of the value of the Rupee as compared with a basket of foreign currencies.

It was further observed:

"63. This brings me to the crucial question as to how equity is to be done between the parties. For obvious reasons no rule of thumb is available to determine the extent of erosion, which the principal sum due, and earlier decreed in this case, has suffered till the date of payment, if any, or the decree. Such matter, as a rule involves application of detailed accounting procedures, based on official data on the subject. Simple decree on the basis of the afore quoted statistics may not do. The case, therefore, in principle, calls for a Preliminary Decree, if one can be passed under law. This, however, does not imply that where smaller amounts or periods are involved a given case cannot be disposed of on approximations.

1. The relevant provision regarding Final and Preliminary Decrees is contained in Section 2(2) of the Code of Civil procedure, 1908, which provision defines such decrees. It is true that there are specific provisions for Preliminary Decrees in Order XX, Rules 12 to 16 and 18 and in Order XXXIV, Rules 2 to 5 and 7 to 8 C.P.C., but the same, in my view contain only examples in which Preliminary Decrees may be passed and such Decrees can be passed, wherever the requirements of a case so dictate, under Section 2(2), C.P.C., which is the basic provision in the Code in that behalf. I am fortified in this view by the decisions in Dattatraya Purshotam Parnekar and others v. Radhaba Balkrishna AIR 1921 Bom. 220, (Raja) Peary Mohan Mookerjee v. Mdnohar Mookerjee AIR 1924 Cal. 160 and a Travancore Full Bench decision reported in AIR 1953 T.C. 220.

2. I would, therefore, grant in this case to the plaintiff a decree of a Preliminary nature for assessment as to what was the equivalent real worth of the money which was initially borrowed that is to say of the sum of Rs. 5,00,000 as payable on 20.5.1984, the amount and date reflected, as they are, in the Promissory Note in suit. For this purpose and in order to make accurate assessment. I would appoint a Commissioner to do the needful and for that purpose the Commissioner would be entitled to seek assistance from the relevant functionaries of the State Bank of Pakistan. Mr. A.K.M Idris, Advocate, of this Court is appointed such Commissioner and his fees, tentatively, shall be Rs. 5,000/-, which would be included in the Bill of Costs. The Commission shall be returnable within three months from the date this Preliminary Decree is transmitted to the learned Commissioner."

3. Subsequently, however, a Division Bench of this Court, one of the member of which was Mr. Wajihuddin Ahmed, J. in the case of Habib Bank Ltd. v. M/s Farooq Comport Fertilizer Corporation Ltd. and 4 others (1993 MLD 1571) held that:

"Word 'finance', within the meanings of Section 2(e) of the Banking Tribunals Ordinance 1984 does not involve any equivalent of interest and by its own force does not carry returns beyond the stipulated period unless emanating in due course of law or expressly covenanted, again within the framework of law. In the relevant agreement, envisaging sale and purchase of goods, no such term (finance) nor perhaps a term to that effect could be improvised, the reason being that such on improvisation may have exposed itself as a degenerative, relegating the transaction to one, carrying interest. Patently, a provision for sale and repurchase of the goods within period specified (Bail Muajjal), culminating on repurchase, was calculated to advance the concept of trade and to forestall the extension of interest Such agreements were to be construed in the light of Islamic Fiqh. The enforcement of Shariah Act, 1991, lends support to such observations because that legislation declares the Qur'an and Sunnah as the Supreme Law of the land and, if more than one interpretations be possible, enjoins upon all Courts to interpret statute-law in a manner consistent with Islamic principles and jurisprudence. Relevant to the present case trade and commerce is to be encouraged and Riba, correspondingly, eliminated. Banking Tribunal thus, acted in accordance with law and within the parameters of the agreed stipulations, when it disallowed any mark-up beyond the period of the contract, extending it only for the cushion period of specified days, which covered the period between demand and default as well as period likely to be consumed in the institution and conclusion of proceedings for recovery."

1. The next question that has been raised is that BCD Circular No. 32 does not strike down BCD Circular No.
2. This was never the case of any other person. However, Mr. Aziz-ur-Rehman tried to distinguish the two whereby, he states that Circular 32 relates to charges by the bank. He states that the said circular speaks of charges and that therefore there is no nexus between BCD Circular No. 13 and BCD Circular 32. He states, that it is stated therein that interest shall not be charged on bank charges. I do not agree with the proposition of Mr. Aziz-ur-Rehman. A careful perusal of the said circular shows that it is in addition and furtherance to BCD Circular No. 13 dated 20th June, 1984. There is a clear stipulation in the preamble to BCD Circular No. 32, that "Please refer to BCD Circular No. 13 dated the 20th June, 1984". The only thing that it changes is in Clause 3 of Circular 13 which gives the date of 1st April, 1985 to be a cut off date for financing to individual whereas such date had been modified to 1st of January, 1985 in para 4 clause-4 of the Circular No. 32. The power has been exercised by the State Bank of Pakistan under the Banking Companies Ordinance, 1962 stating that from the 1st of January, 1985 interest wherever is charged by a banking company/Development Financial Institutions in any of the item of the bank charges would be replaced by non-interest mode considering to the proper. It is this, 'bank charges' that Mr. Aziz-ur-Rehman contends is to be 'other charges'. The entire clause has to be read for the purposes of understanding the provision. The bank charges has been used in conjunction with replacement of an interest free mode, here the bank charges would imply, all amounts charged to the account which also included interest. It is thus, that the subsequent portion of the said notification says, that overdue or penal interest or mark-up on mark-up shaft not be charged by a banking company as from that date instead the bank shall take legal steps to recovery the finance. There are two implications of this notification, first being that of mark-up on mark-up and interest in any form charged by a banking company shall cease from the 1st January 1985, the cut off date. Secondly, that no future mark-up on mark-up would be charged The effect of this is that, where a default has been made, the bank was required to take legal steps. A co-relation has been developed between not charging mark-up and proceeding to recover money instead. Therefore, there was no question of renewal of a debt by addition of mark-up. It is important, therefore, to note that the State Bank of Pakistan has taken a categorical view in this regard and which is in fact a correct issue, that the banks in financing, and where debt is created, cannot take any additional amount on such debt. In taking additional amount it shall be deemed to be Riba which is prohibited. It is thus, that the State Bank of Pakistan instructed to the banks to institute proceeding for recovery. If the banks chose to give additional time then, it will do so without charging any amounts. The law when promulgated was very clear. Mr. Aziz-ur-Rehman says if this Court were to take a view that all mark-up on mark-up charged from the first day has been unlawfully done, it shall be detrimental to the banks. No doubt, such difficulty may arise, but then once the banks are required to act in accordance with law, specially when the change of law is so great that the entire system has been modified and that, numerous discussions had been taken place which included banks to arrive at the notification issued it will not lie in their mouth to say that they were unaware of the correct prospect of the law. Even if they were not aware from 1987 onwards the Court had otherwise held that such transactions to be unlawful. The banks should have been taken cognizance of the judgments. Mr. Aziz-ur-Rehman has referred to the SBP Circular No. BID (Gen) 2470/601-04-90 and said that BID Circular No. 3 dated 20.2.1989 regarding Prudential Regulations for loan classification etc. was taken into account and that in connection with treatment that was to be given to rescheduled loans and capitalization of mark-up, the State Bank had given guidelines. Instead in the guidelines the mark-up on mark-up, according to him were required to be capitalized ad such is provided according to him in Section 6.2.4 of the rescheduling and restructuring debts. Mr. Aziz-ur-Rehman has however chosen not to read the first paragraph of the said guidelines. The entire regulation has to be read to understand the import of the regulation. It reads as under:

"6.1 Introduction

The bank's borrowers may, at times, face financial distress due to a number of reasons. This, in turn, may lead to a situation where they are unable to service their debt obligations as they fall due. In instances of this manner, the Bank may, at its sole discretion, decide to offer financial reprieve to such customers, with the sole aim of safeguarding its (the Bank's) own best interests.

After evaluation of available options, it may be decided to grant reprieve in the form of rescheduling or restructuring of the financial obligations of customers. One of the prime considerations should be that:

'The discounted expected monetary value (EMV is the amount of cash flow times its estimated probability) of inflows accruing to the Bank, in the event that financial

reprieve is granted, significantly exceeds the net (i.e.net of legal and other expenses) present value of cash flow arising from liquidation of available securities.

The reprieve (or accommodation) referred to, herein above, may involve modification of the terms of the loan by:

Extending/amending the repayment schedule Reducing the rate of mark-up Reductien the amount of accrued mark-up and/or principal Extending further credit

And/or settlement of part of debt outstanding by foreclosing on or transferring certain assets to the Bank.

Normally such accommodation/reprieve would be considered (by the Bank), if the borrower and/or sponsors offer additional security, thereby strengthening the Bank's position."

1. It will be seen from these guidelines that the banks were allowed to reschedule or restructure of financial obligations and the method was given i.e. extending or amending the repayment schedule, reducing the rate of mark-up reducing the amount of agreed mark­up and/or principal and extending the correct facility. Nowhere in the said circular has it been stated that an additional mark-up could be charged on a debt for extending the time for payment. It is the mark-up that has already been charged for the purposes of arriving at a marked-up price which was allowed to be capitalized. Capitalization only brings it in the line of the accounting system. Such was advised to the banks only for their accounting purposes and nothing else. This circular has been issued by the Central Directorate and relates only for the purposes of classification of account else, if it is not allowed to be capitalized a provision will be required to be made by the bank, that may cause further loss to the banks.- In the same guidelines, the restructured loan has been defined as under:

"2.1 A "restructured" loan is one whose terms and conditions of loan have been modified, principally because of a deterioration, in the borrower's financial condition, to provide for a reduction in interest rate or principal, or a capitalization of interest accrued.

2.2 A 'rescheduled" loan in which effective interest rate terms remain unchanged from original terms, but principal repayment terms have been extended because of project

delays, is not considered a "restructured' loan, as loan as interest continues to be serviced on time."

1. A careful analysis of this will also show that it provides a reduction in rate or capitalization in the interest accrued. Accrual of interest is in relation to the agreement entered into and nothing can be read beyond such position. A perusal of clause 2.3 will show that a troubled debt restructure has also been defined and various situations have been catered for. In this also, there is no increase in the sums. Reliance therefore by Mr. Aziz-ur-Rehman on this aspect will be a farce. Had the State Bank not intended and the Government not wanting to proceed under the Islamic System of Banking, the choice was open. If they had opted to proceed, they cannot be allowed to beat about the bush. Reliance therefore on the said regulation of the State Bank is not only incorrect but seeking an interpretation which otherwise is not available. Mr. Aziz-ur-Rehman also refers to BPRD Circular No. 9 dated 27th April, 2000 namely the Prudential Regulations. He has referred to clause 3 of the same stating that the rescheduling/restructuring of non-performing loans shall not change the status of classification of a loan/advance etc. unless the terms and conditions of rescheduling/restructuring are fully met for a period of at least one year (excluding grace period, if any) from the date of such rescheduling or restructuring. This is only in respect of placing a defaulter on the list of GIB and is nothing to do with the increase or decrease modes. Mr. Aziz-ur-Rehman has placed reliance on the case of Hardware Manufacturing Corporation (Pvt.) Ltd. v. United Bank Ltd. in the Special High Court Appeal No. 187/1998 in which it has been held that:

"By execution of the finance agreement dated 30.6.1994 original appellant's liability on the basis of original contract/ agreement was extinguished and the same was substituted by another finance agreement/contract through the valid documents wherein the appellants acknowledged the stated sum therefore under the new finance agreement \Jie appellants -would be liable under the law of contract. Reference may be made to Abdul Qayoom v. Ziaul Haq and another (PLD 1962 (W.P.) Karachi 334) and Gouri Dutt Ganesh Loll Firm v. Madho Pras$d and others (AIR 1943 P.O. 147)."

1. This position has been discussed by me above, in which I had said that this judgment is distinguishable from the present case. The facts of the case no doubt relate to a 'roll over' of the facility but there is no discussion as to whether the said agreements were in respect of sale and purchase of commodity and if it were whether such subsequent agreements carried a clause of such extension. Mr.

Aziz-ur-Rehman referred to the discussion in the said judgment stating that where the arguments were that roll over was in practice on interest base hanking and prohibited by BCD Circular 13 dated 20.6.1984 issued by the State Bank of Pakistan, the Court had held that the parties having agreed or entered into an agreement, the terms of the subsequent agreement will be applicable notwithstanding the fact that it was a roll over and roll over in fact, is an accepted custom.

1. In another unreported case which has been cited by him is in the Special High Court Appeals Nos. 186 and 187/1998, Mr. Aziz-ur- Rehman stated that the same position was taken up and the Division Bench of this Court and had decided the matter that the old method of roll over was in practice and therefore allowed. I am otherwise bound by the judgment of the Federal Shariat Court as also the Appellate Bench of the Supreme Court notwithstanding the distinction that I have drawn, and therefore hold otherwise. In this I may refer to a judgment of a division bench of the Lahore High Court being United Bank Ltd. v. Ch. Ghulam Hussain (1998 CLC 816) where it has been held that:

"Significantly, the statement of account filed by the appellant does not show any disbursement, whatsoever, under these two agreements which have to be treated a void, being without consideration. The supporting material of these agreements i.e., D.P.C. Notes etc. (pages 483, 485, 487 and 489) also suffer from the same fatal defect and cannot be looked into for holding that Respondents Nos. 1 and 2 had incurred any financial liability there under. We hold accordingly."

1. Mr. Aziz-ur-Rehman has referred to a judgment in the case of United Bank Ltd. v. Central Cotton Mills Ltd. (2001 MLD 78) where according to him, the said judgment allowed the interest. Mr. Aziz- ur-Rehman probably has not understood the import of the said judgment. The import of the said judgment is that all transactions that were entered into prior to the first day of January, 1985 were required to be converted into Islamic mode of financing as such, the same was allowed. Mr. Aziz-ur-Rehman has referred to the discussion on the subject where Mr. Mushtaq Ahmed Memon, J. (as he then was) had stated that the renewal of loans subsequently also cannot attract the applicability of the above referred circular issued by the State Bank of Pakistan since renewal merely amounts to extension and the continuation in force of the earlier agreement. No doubt such could be correct. This does not say 'increase in the quantum of loan', but is an extension in the time for payment of the initial agreement. He also places reliance on this judgment to say that BCD Circular No. 32 does not strike done BCD Circular No. 13. Mr. Aziz-ur-Rehman should have read the last portion of that notification where Mr. Mushtaq Ahmed Memon, J. (as he then was) has held that "in the circumstances, the contention to the effect that the fixed loan was granted on mark-up basis does not inspire confidence." Likewise the assertion that the interest based facility could not be continued or renewed after BCD Circular No. 13, is equally without force. True, that the interest based facility could be renewed and such is provided in Circular 13 but this judgment does not say that an amount could be added to the said debt that is, due and payable. The contention therefore also does not have any force. In fact the same learned Judge in an Order passed in Suit No. 1659 of 1999 observed:

"Having considered the submissions of the learned counsel, I cannot resist expressing doubt about the validity of the fresh agreement between the parties as is asserted by the learned counsel for defendant on the basis of correspondence. Even if the parties had settled fresh terms in novation of agreement dated 23.5.1996, the same appear, tentatively speaking, to be violative of the Quaranic Injunctions restraining a 'creditor from taking advantage of a debtor to make repayment within the agreed time."

1. Mr. Aziz-ur-Rehman has referred to the novation of the contract. The contract stand novated according to him after a new contract has been entered into. There is no cavil to this proposition, but in the present case this is not what is being sought. What actually has been sought is that whether such an agreement could at all be entered into and if so. whether any amount could be added. In my view it is only the extension by addition of mark-up by the bank to arrive a.t a restructured documents. Mr. Aziz-ur-Rehman has relied on the judgment of Bank Indosuez v. Banking Tribunal for Sindh and Baluchistan and other reported in 1994 CLC 2272 and states that when there is a novated contract, that contract has to be looked into as a fresh contract to determined whether the same was in conformity with the definition as given under Section 2(c) of the Banking Tribunal Ordinance, 1984. He refers to the following passage of the said judgment:

"... A fresh agreement was entered into by a document

whereby the defendant acknowledged that a sum of Rs. 10,000 was due from him to the said firm which formed the consideration of the agreement entered into between him and the plaintiff. It was held by a Division Bench of this Court that under the new agreement the liability of the defendant under the original contract was completely

extinguished and there was a fresh contract substituting the old contract by introducing new business and it was in the nature of novation of a contract within the meaning of Section 62 of the Contract Act. In S. Sibtain Fazli v. Star Film Distributors (PLD 1964 SC 337) the above principle was re-affirmed by Hamoodur Rehman, J. In the following words:

"It is an essential element of novation, when new contracting parties are substituted, that the rights and obligations of original contractors shall be extinguished and the right and the liabilities of new contracting parties accepted in its place."

He states that the old contract by introducing the new agreement was in the nature of novation of contract within the meaning ol Section 62 of the Contract Act. There is no cavil to this we! established principle but the question that has to be looked into, is whether any act has been done by the bank whereby, an existing law

has been avoided. Where the rights of parties have altered, and a valid contract alters rights of a previous agreement, the arguments would have been valid. This is not the case here. Subsequent agreements do not change the previous agreements. There is no mention or reference of the previous agreements. The only document shown is a Sanction Advice, which is an internal document of the bank. The document could be seen only to what was approved by the bank. The agreement overrides all arrangements. The sanction advice, in the presence of the agreement, uiz-a-vizthe customer cannot be construed to be adverse disadvantage to the customer. The agreement is the document signed by both, the contents of which have to be seen. The question whether where a law categorically disallows mark-up on mark-up, can an agreement cause it to be charged, or could any act be done by the parties to the agreement by which mark-up is added, or mark-up on mark-up is included to a marked-up price. If not, could this agreement be a valid contract. Mr. Aziz-ur-Rehman has referred to the Prudential Regulation in Regulation No. XVI prohibits window dressing which reads as under:

"REGULATION-XVI WINDOW DRESSING

1. All banks are directed to refrain from adopting any measures or practices whereby they would either artificially or temporarily show an ostensibly improved position of banks accounts as given in their Balance Sheets and Profit £.nd Loss Accounts specially in relation to its deposits and profit Particular care shall b taken in showing inter-branch and inter bank accounts accurately and strictly according to their true nature."

2. A careful perusal will show that the banks have been restrained from adopting any measures or practice whereby they, either artificially or temporarily show an ostensibly improved position of the bank account. The addition of mark-up is added towards the

assets of the bank which gives an ostensible improved position of the bank accounts which cannot be allowed. Otherwise also, it is established principle of law that what cannot be done directly cannot be done indirectly. It is also a very established principle of law that any contract which is of such a nature that, if permitted it would defeat the provisions of any law, or which is contrary to public policy is a void agreement.

1. It will thus have to be seen as to what provisions of law would be defeated if such an agreement is entered into. The law in the notification by way of circulars, being BCD Circulars Nos. 13 and 32 issued in 1984. The Circulars have been discussed above. Suffice to mention that the agreement which seeks to add and cause an additional amount to be paid in respect of some previous agreement is nothing but a manner to avoid the restrictions imposed by BCD Circulars Nos. 13 and 32. It is clear that no mark-up on the marked price could be charged on the said agreement entered into initially. If it could be, the banks could have utilized the provisions of Section 79 of the Negotiable Instruments Act. The same has since 1985 never been invoked. The new documents approved and utilized by the bank, utilize the D.P. Note where no rate of mark-up is mentioned. It is only the repurchase price that is stated. The new subsequent agreement is nothing but to avoid the restriction imposed by law. The other question which needs to be elaborated is the validity of subsequent contracts that have been entered into where the actual sale has not been made. I shall discuss this subsequently herein.

2. The other question is as to what is the 'public policy', and such will have to be looked into. The Constitution of the Islamic Republic of Pakistan is the basic document on the touched stone of which all laws have to be looked into. The preamble of the Constitution WHEREUNDER "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed". Article 2 states that Islam shall be State religion of the Pakistan. Article 2-A incorporates Objective Resolution as reproduced in the annex to the Constitution. Article 38 also clearly stipulates that the State shall eliminate Riba a early as possible and Article 227 clearly state that the existing laws have to bring in conformity with the injunction of Islam as laid down in the Qur'an and the Sunnah. In view of the provisions of the Constitution in fact, even prior to this, right from the days when this country achieved independence that it was clear that all laws were liable to be promulgated which were and ought to have been in accordance with the Holy Qur'an and the Sunnah. I have already dilated at length on this issue and shown the quantum of work that has been carried out for such purposes. The policy has always been that, all laws, practices and procedures would be in accordance with what is provided in the Qur'an and Sunnah. In fact, BCD Circular No. 13, the preamble also states that the banking system was to shift over to the Islamic modes of financing, such is the public policy. After the law has been brought in conformity with the Holy Qur'an and Sunnah, way and methods are being employed by the bank to continue the previous usurious Banking Practice, despite the fact that the law has been Islamised in accordance with the Constitution of the Islamic Republic of Pakistan. Such a practice that is sought to be developed by the banks is a fraud on the Islamic provisions. No one can be allowed to play a fraud on the existing law by trying to avert the existence of such law that prescribes that mark-up on mark-up cannot be charged. The act of entering into a future transaction admittedly is in respect of renewal of financing and does not contain any aspect of actual disbursement or payment. Such contracts are contracts that are against the public policy.

3. When one is talking of novation of contract it will be seen as to what is the aim for novating the same. The position will have to be seen in its true, proper and correct perspective. The agreement for financing as is termed by the banks is nothing but an agreement of sale and purchase of tangible properties, goods or commodities. Once the goods are purchased by the bank, the bank makes a payment for the purchase of the goods which according to the agreement is termed as the 'sale price'. The goods are thereafter sold to the customer and such sale is the resale/repurchase on a market-up price. There are, therefore, two distinct transactions under the said single agreement. The first being the purchase by the bank for consideration. It is at this juncture that the 'sale price' is disbursed to the seller namely, the customer. This is the amount that the bank say is the 'finance' or the amount to be paid to the customer. The second is in respect of resale by the bank to the customer but such is the actual Murabaha transaction/Bai Muajjal. Thus before entering into this transaction, the bank has to be the owner of the goods/property being sold to \ecustomer. It is thus the first transaction that is entered into. After sale to the Bank, and the bank paying the sale price, being the 'consideration' of purchase by them of a defined good property commodity, they can by the 'Bai Muajjal' transfer that title to the customer, that they have acquired by purchase of the said property. It is a ell established principle of law that no one can transfer a title, better that what he has. Thus the sale is concluded between the bank and the customer upon such purchase price as may be agreed, the repurchase price. It is this price, which is liable to be paid by the customer on deferred payment. After the second transaction, i.e. the sale by the bank to the customer is concluded, the contract of sale and purchase is finalized, the bank becomes an unpaid seller whereby the purchaser is liable to pay the repurchase price. This the purchaser (customer) is indebted to the bank for the repurchase price payable within the period prescribed. Thusrepurchase price becomes the debt. Thus the only thing required under the said agreement is recovery of debt, the goods having been sold and consumed by the customer. Such is the loan or debt. Therefore, a clear distinction between the agreement entered into and the debt paid or payable therefor is to be looked into. Once the debt has been determined the contractual obligation under the agreement is concluded and it is the debt now that becomes payable. The amount will be the liability of the customer and such cannot be increased by addition of any mark-up. A perusal of Section 23 of the Contract Act categorically states that consideration or object of an agreement is lawful unless it is of such a nature that if permitted, would defeat to provision of any law. A subsequent agreement whereby, there is a settlement of previous debt or is renewal thereof shall in fact amount to defeating the irovision of the specific law available. Such will not be novation but an independent agreement contemplating an actual sale and purchase. Such an agreement entered into only for renewing the previous debt shall be a void agreement. The position in law is absolutely clear. I had also referred to the dear instructions of the State Bank in Regulation XVI above. Such renewal will only be Window Dressing and that all profits shown will be nothing but added mark-up. Mark-up cannot be allowed to be added on an existing debt', as there can be no agreement between the parties in respect of that 'specific debt' except that there could be enlargement of time, and that too without increase in the debt payable.

4. The subsequent agreement technically would have no nexus with the previous agreement in which a debt had been created. It is a fresh agreement An agreement by which fresh commodities, goods or articles are to be sold or purchased, therefore, when goods are sold under the fresh contract there shall be consideration by actual and physical payment in the statement of account and not merely adjustment stating that an amount is due and therefore, the bankers can exercise lien. A lien can only be exercised on a credit in the account of the bank to set off a liability and not by additional credit to set off to the previous debt. A debit will not be a credit of the customer and where it is not a credit of the customer, Section 171 of the Contract Act shall not apply. Section 171 clearly stipulates that a banker in the absence of a contract shall have right to retain a security for such balance goods (bailed to them). A loan or finance or debt given to a customer shall not be an amount or goods bailed to the banking company as such, no right can be claimed.

5. The subsequent agreement does not, have any stipulation that there could be a set off by a subsequent finance. Even if it were there, the question would be that such an amount could be where a mark-up has been added thereon for the purpose of adjustment of marked-up price. I am of the considered view that such cannot be done. The argument therefore that the subsequent agreement is a novation and that once a contract is novated the previous contract cannot be looked into is not correct in the present scenario.

6. If it is presumed for the sake of argument that the last agreement that had been entered into is the agreement on the basis of which the amount due is payable by the defendants/customers then we will have to look into the contract itself. Admittedly, the contract is one of sale and purchase of commodities. In the circumstances it shall be governed by the Sales of Goods Act, 1930. Sale is defined in Section 4 which reads as under:

"4. Saleand agreement to sell.--(l) A contract of sale of goods is a contract whereby the seller transfer or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.

(2) A contract of sale may be absolute or conditional.

(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred."

It will be seen that a distinction is created in 'Sale' and 'Agreement of Sale'. A contract of sale is, where the seller transfers or agrees to transfer the property ui the goods for a price and such could be absolute or conditional. Sub-section (4) of Section 4 of the Sales of A Goods Act above states, that the 'Agreement of Sale\ becomes a 'Sale' when the time, elapses or conditions are fulfilled subject to which the property in the goods has to be transferred. It clearly implies that there has to be conclusion as to the transfer of property in the goods which is the principal element of sale. This Act also came under scrutiny by the Shariat Appellate Bench of the Supreme Court in the case of Islamic Republic of Pakistan v. Public At Large (supra) and in the judgment in the case of Federation of Pakistan v. Awamunnas(1988 SCMR 2041) that, a contract of 'Sale' or 'Ijarah' of a commodity shall only be valid where the 'commodity' is in existence and that there has to be a transfer of such property. Whilst dealing with the concept of 'agreement of sale' it was stated that where the goods did not exist, the Islamic Injunctions do not recognize such agreement. Sale cannot take place, but an Agreement of Sale can be entered into and this agreement is not a complete 'Sale' of 'Goods'. The sale will only accrue when the commodity is transferred to the purchaser or consideration thereof has been paid. From the principle laid down we see that the agreement which is a subsequent one does not have the ingredients of a sale and at best be treated an 'Agreement to Sell', such agreement can possibly be specifically enforced whereby, the purchaser may seek direction against the seller upon payment of actual consideration to sell his property, but if such is not done the purchase price/repurchase price mentioned in the said agreement will not, be taken to be a debt payable by the purchaser. If money has actually been transferred or handed over to him there are only two possibilities, one is the transfer of the property for which money had been given, or the return of the money that had been given to him. The customer will therefore only be liable to the extent that was actually paid to him. If there was damage caused due to the refusal to sell the commodity if there was one, then such shall be required to be proved. The judgment of the Supreme Court was delivered in 1988 has also been reaffirmed in the judgment of Dr. M. Aslara Khaki. I am also of the same view and either where the resultant would be that it is the principal amount that was actually paid would become due but where there is a sale, the sale price has been transmitted and resale is made, the resale price will be payable by the defendants to the plaintiff. It is well settled principle of law that parties cannot contract out of the provisions of the Act. See in the case of Woman Shriniwas Kini v. Ratilal Bhagwandas and Co. (AIR 1959 SC 689) it has been held that an agreement to waive an illegality is void on the ground of public police. Similar views have been taken in the case of Anayat Ali Shah v. Anwar Hussain (1995 MLD 1714).

1. We now come to another question, i.e.,whether an agreement without consideration is a valid agreement. Section 25 of Contract Act reads as under:

"25. An agreement made without consideration is void unless--

(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless;

(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless;

(3) it is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any these cases such an agreement is a contract."

The subsequent agreements of finance are not covered by the exception to the general principle, that an agreement without consideration is void. Section 24 of the Contract Act reads as under:

"24. If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void."

It will be seen that if any part of a single consideration is unlawful the agreement is void.

1. I have discussed the unlawful act. Thus the agreements made subsequently with an aim to avoid and defeat the provisions of the law of not charging mark-up on mark-up is void.

2. The question of disbursement has also been dealt with above. It was argued that there is no need of actual disbursement and that debt could be deemed to be disbursement. Reliance is placed on the Judgment of Moudood Ahmed Farooqui v. Ameen Fabrics (PLD 1983 Karachi 176), in which it has been held that 'debt' means an obligation and liability to pay or return something owed by one person to another. There is no cavil to this very settled principle that a debt is liability of the person .and the reliance on this judgment is not incorrect. The position is what hi s been stated is that such is liable to be paid to the creditor as such a fresh loan which is given will be that of the customer and from which he clears a previous debt. One is amazed at this argument. This is nothing but a fraud on the statute. Once it is a debt in respect of one agreement it will be a debt in respect of the other agreement also and a liability, therefore, saying that from a finance obtained, it being a debt a previous debt can be set off has no place. In the said judgment the question was in respect of the dividend declared and not paid to the shareholder, dividend declared becomes the property of the debtor. Debt does not become the property of the shareholder. In the circumstances the case is distinguishable from the present case.

3. The last point that was argued by Mr. Aziz-ur-Rehman was that the judgment in the case of Dr. M. Aslam Khaki v. Muhammad Hashim reported in PLD 2000 SC 25 is operative from 30.6.2001 and the present laws will continue to be valid till that date. There can be no cavil to the proposition that all laws that are in conflict with the Islamic provisions shall remain valid only upto 30.6.2001. BCD Circulars Nos. 13 & 32 have not been declared to be in conflict with the Islamic provisions. What has been said by the said judgment of the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan is that all laws or part thereof that have been declared to be against the injunctions of Islam shall be changed and modified by 30.6.2001 whereafter they shall become invalid and not be acted upon.

4. Further to the question that has now been raised is that the judgment of Dr. M. Aslam Khaki shall apply prospectively and not retrospectively. High Court is bound by the decision of the superior Courts under Article 189 of the Constitution of the Islamic Republic of Pakistan which reads as under:

"189. Decision of Supreme Court binding on other Courts. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.''

Thus, it is clear that the decision of the superior Courts namely the Supreme Court is binding on the High Court. In fact, the order of the Shariat Court is also, under Article 203-GG subject to Article 203-D and 203-F binding. The judgment by the Federal Shariat Court was announced in 1992, however, such remained stayed during the period of appeal which was finally decided in 2000. The argument is that as the appeal had remained stayed therefore, it is the judgment by the Supreme Court from which date, it shall be acted upon. What the learned counsel have not looked into is that there are two specific points in the said judgment, be it before the Federal Shariat Court or the Honourable Supreme Court. One is that reliance to the specific laws that were being discussed and admittedly, the laws of banks except Section 79 of the Negotiable Instruments Act. Section 25 of the Banking Companies Ordinance, Rule 9(2) & (3) of the Banking Companies Rules, Section 22(1) of the State Bank Act, 1956 and Section 8(2)(a) & (b) of the Banking Companies (Recovery of Loans) Ordinance, 1979 were before the Court. None of these except Banking Companies (Recovery of Loans) Ordinance, 1979 related to the charge of mark-up and mark-up on mark-up. In that law namely, the Ordinance, 1979 there was only the charge of 'interest' and was prior in date when the BCD Circulars Nos. 13 and 32 came into existence. In fact, BCD Circulars Nos. 13 and 32 changed the entire law, its perspective and modes and methods of banking converted them into trade related modes. Loans were only treated to be given without any mark-up and increase except for service charges. BCD Circular No. 13 categorically states that no mark-up on mark-up shall be charged and it is well settled principle that nothing can be done indirectly what cannot be done directly. In this regard, Mr. Aziz-ur-Rehman had cited two latest judgment that this indirect process namely, entering into future mark-up in the case of Mst. Aisan v. Manager, Agricultural Development Bank of Pakistan, Chunian (2001 CLC 57) and Muhammad Ramzan v. Citibank N.A. (2001 CLC 158). The first one being the judgment of the learned Single Judge of the Lahore High Court and the other being a judgment of a Division Bench one of which Judge was the same as who delivered the first judgment. Both the aforesaid judgments are in fact distinguished in that, they are dealing with Section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which provides for mark-up on decree from the date of the institution of the debt till payment. What their lordships had observed is that the judgment of the Supreme Court in the case of Dr. M. Aslam Khaki will for that purpose act retrospectively. In fact a history of the introduction of the provisions of mark-up during the period it remained in the Court it seems would be, that such was in Court and the delay could not be ascribed to the creditor who could not be penalized because of delay of the Court. Such had not been considered by the Council of Islamic Ideology as such, it was not provided in BCD Circulars Nos. 13 & 32 these provisions not being there, their lordships were absolutely correct in holding that the provisions of Section 15 in the Act, 1997 will only be applicable from the date of the judgment and not retrospectively. The difference and distinct feature in the application of the judgment of the Supreme Court to the present case is that, the said two Circulars having not been declared to be void or ultra vires they, therefore, having been held to be intra vires, will remain in force from the date they were promulgated. According to the doctrine of stare descisis the precedent in the case of Dr. M. Aslam Khaki gives the authority of established law. The cases earlier decided by the High Court and upon application of the same doctrine would result into the effect that it would be presumed that the Courts gave decisions with all possible care and consideration and had not acted per incuriam. What is binding on the other Courts under the present Article 189 is the ratio of the decision of the Supreme Court and not any finding or conflict of opinion of the Court or any question which was not required to be decided in a particular case. In the present case also a similar situation has occurred whereby the decision of the Court is in respect of certain laws that have been specified and will not effect the laws that are in existence but the ratio of the decisions which is based on the Qur'an and Sunnah and its application will remain binding. For the purposes of looking into as to what is the scope of the jurisdiction of the Federal Shariat Court we need to read sub-Article (a) of Article 203-D which reads as under:

"203-D. The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or provincial Government, examine and decide the question whether or not any law or provisions of law is repugnant to the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah of the Holy Prophet (PBUH) (hereinafter referred to as the 'Injunctions of Islam')." (underlining is mine)

Thus, the Federal Shariat Court will examine only such question of law or provisions of law that are repugnant to the injunctions of Islam. Reasoning or ratio for arriving at the same will however, remain applicable. The banking system had been converted into Islamic form in 1985. It was not held to be against the injunctions of Islam. This Court has to only see that whether the manner in which an agreement had been entered into or otherwise is within four corners of laws laid down by the BCD Circulars Nos. 13 & 32. This Court for the purposes of looking into the law which is valid and existing shall remain bound by the ratio given in the case of Dr. M. Aslam Khaki. It shall not be that such case is being acted upon retrospectively. In the case of Sakhi Muhammad v. Capital Development Authority (PLD 1991 SC 777) it was held that "decision would not have the effect of altering the law from the date of its announcement/commencement so as to render void all decisions made by the subordinate Courts or authorities made in the light of the earlier interpretation. The position is that application of interpretation continues to be on the basis of earlier judgment which were announced as early as 1987. Dr. M. Aslam Khaki's case (supra) confirms the earlier view.

1. The position is that BCD Circulars Nos. 13 & 32 are the consequences of the reports of the Council of Islamic Ideology provided for the furtherance of Islamic financing where mark-up on mark-up has been stated to be un-Islamic and usurious. Riba was disallowed and that because of such disallowance it was in the line with the arguments put forward for the purposes of Islamic financing. In fact, the judgment of the FSC as also the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan have not in any manner held that the law as was enacted is against the injunction of Islam. What has been said is that the bankers have not acted in accordance with law in force. It has also been said that the manner in which Murabaha/Bcu Muajjal transaction though lawful transaction have been misapplied by the banks. Misapplication of the law was by the banks. Even if it is held that the said judgment shall be applicable from the date provided therein, the ratio of the case for the purposes of determined and deciding cases shall be applicable on a valid and operative law from the date of the enactment. The definition shall remain applicable from the date when the law came into force. It is not a case where any law has been declared to be ultra vires. I am aware of the well settled principle that where a law has been declared to be ultra vires, the declaration shall act prospectively and not retrospectively. This is a case where the law has been held to be valid, proper and intra vires. In such a situation where a law has been declared to be intra vires.It is only the interpretation of the specified law that has to be taken into account. It cannot be said therefore that this judgment will act prospectively. This judgment only acts to clarify an existing valid law. Even otherwise, this appeal is from the judgment in the case of Mehmoodur Rehman Faisal (supra). This case decided alongwith many other cases the point in issue. However, in the Supreme Court the leading case came to be the case of Dr. M. Aslam Khaki as such there the case is known by that name. The banks should have anticipated nations and should have protected themselves after the earlier judgment. Appeals may been filed, but any decision could have been forthcoming. The banks were aware of the factum from 1987 onwards when mark-up on mark-up was declared against the injunction of Islam by the High Court. Taking refuge therefore, behind the judgment that it shall be applicable from June, 2001 is not correct. No one can be allowed to make a mockery of a legal process, the Islamisation and the provisions of the Islamic modes of transactions/financing. It seems that the law introduced in 1985 was taken by the banks as only a change in the name and as such, continued as if they were charging interest. The banks had thus made a mockery of the law by avoiding and creating legal fictions. The concept never changed. Even today during the course of arguments the question of lending on mark-up basis is being spoken. From this it is clear that even today the law is being utilized only as a garb or screen to protect themselves. Laws having been Islamised one needs to understand tli-it they have to be interpreted and acted upon in the manner as they are. They have to be acted upon in the manner they are required to be acted upon and cannot be extended or transformed. In fact it has been observed that "the Superior Courts of Pakistan have in large number of cases applied the Islamic teachings and philosophy, when the statute law is silent about a situation, the field is unoccupied, so to say, statutory void is to be filled, or the Court has discretion to follow one of the several courses, one of which is more in accord with Muslim jurisprudence. Such was held by the Hon'ble Supreme Court has held in the case of Muhammad Bashir versus The State (PLD 1982 SC 139), that such a void has to be filled up by Islamic Common Practice and provisions. The banks chose otherwise. In the case of Fazal Ghafoor v. Chairman Tribunal Land Disputes (1993 SCMR 1073), it has been held "when there is a vacuum on question of law left by statutory silence, the prevailing mode having full Constitutional support, would be that of Islamic Common Law."

2. Mr. Ejaz Ahmed has also argued in detail, most of which have been dealt with and covered by the discussion above. However, the important aspect that needs to be seen is with regard to the argument that has been advanced by Mr. Ejaz Ahmed about the concept of mark-up on mark and the renewal. Mr. Ejaz states that the marked-up price is an agreed consideration and that if such price is not paid the remedy available to the bank to seek recovery. This is a correct proposition. He further says that mark-up on marked-up amounts to recovering the opportunity cost of money which is not permissible under the Islamic mode of financing. This is also correct. On the basis of this, subsequently, Mr. Ejaz Ahmed dealt with the question of renewal and distinguished the renewal by way of adjustment and continuing facility on a revolving basis. As far as the adjustment is concerned, he states that the amount of sale price is credited to the customer's account and is set off against the existing liability of the customers on account of the facility originally granted and therefore accounts operates on a revolving basis. As far as continuing facility, he states that the adjustment as stated above, does not take place and the account continues to operate on a revolving basis and in fact, he states that this is an established practice in the banking industry and the customer are aware of this mechanism. He states that such a mechanism is beneficial for customers and it allows to customers to withdraw the amount within the amount of facility at any time and repay the sale as and when the excess money is available to him during the currency of the facility. He states therefore customer benefits from the fact that the mark-up is charged only on the outstanding. He states that if the mark-up facility is strictly construed to mean that the bank is only obliged to disburse once, then according; to him the finance becomes more expensive for the customers » sice the full amount of finance

facility is availed the customer will be charged mark-up on the full amount. The excess liquidity of the customer will remain lying in the current account with no profit. I do not agree with this proposition. This proposition presupposes dealing in money and mark-up on the money. The concept that has been evolved is that the purchase is made by the bank and it is the sale price which is actually disbursed, the repayment is the repurchase price and it is the price that is fixed. There is no concept of addition of further sums by elapse of time. The consideration for the actual sale has to be made by the bank to the customers and has to be done so in its entirety. The customers will be in his right to withdraw the entire amount or to leave any sum in his account. He will be in his right to transfer this amount to saving account or otherwise. Money being the consideration for sale would therefore be required to be transferred to the customer. The second portion of the agreement as discussed above, is the actual finance agreement which in fact is a Bai Muajjal. 'Bai' meaning sale and 'Muajjal' meaning upon deferred payment. This Bai Muajjal or Murabaha transaction is that, the bank having purchased as resold this commodity at a higher price to the customer. At this point, the customer is not required to pay the sale consideration but what is required is to do so within the specified period at an agreed repurchase price. The consideration for the sale of the commodity by the bank to the seller cannot be adjusted against this repurchase price as, it is Bai Muajjal the payment is deferred. The consideration for the resale by the bank to the customer is a contract between the two and such becomes a debt. This debt is therefore only liable to be paid by the customer. There is therefore no question of a revolving facility. It is the amount that is available with the customer being the sale consideration of the sale made to the bank. This amount can be utilized at the wish and whims of the customer. I am therefore not convinced that the transactions as stated by Mr. Ejaz are in true spirit the financing as provided under BCD Circulars Nos. 13 and 32.

1. The next question therefore is whether the purchase price can be increased and which has been answered by Mr. Ejaz saying that it depends on the meaning ascribed to the word 'increase' and accordingly the increase in the purchase price has been classified as (a) where the increase is not permissible; (b) where increase has been permissible. In the first classification he states that mark-up on overdue instalment where the finance facility is payable in instalment and due dates of instalments are specified in the agreement and where mark-up on overdue amounts in the cases of lump sum payment agreements no increase can be allowed. He states that however increase would be permissible in specific transactions namely the mark-up is to be booked by the banks on accrual basis or where there is a fresh sanction or the renewal of the working capital or where there is a restructuring or rescheduling of liability. I will also not subscribe to this view. What cannot be done directly cannot be done indirectly. It is also a well settled principle that if a certain thing has to be done in a certain manner it has to be done in that manner and no other. I have already discussed above, that mark-up in itself is only restricted for the purposes of arriving at the repurchase price and once such is arrived at the amount of repurchase price becomes the debt, therefore, there could be no question of separation of mark-up. The mark-up has to be capitalized which is also provided in the Prudential Regulation. Unless such mark is capitalized the repurchase price cannot be determined. Thus, if the mark is capitalized and added to the principal amount (principal meaning the sale price) and having arrived at the repurchase price any increase by way of renewal, capitalization, booking on accrual basis or by any means will be nothing but addition of mark-up on mark-up.

2. In a Hadis narrated by Abdullah-ibn-Abu Qatadah reported in Book 9, Number 3795 of Sahi Muslim the following was said:

"Ab'i Qatadah demanded (the payment of his debt) from his debtor but he disappeared; later on he found him and he said: I am hard up financially, whereupon he said: (Do you state it) by God? By God. Upon this he (Qatadah) said: I heard Allah's Messenger (PBUH) said: He who loves that Allah saves him from the torments of the Day of Resurrection should give respite to the insolvent or remit (his debt)."

The concept of increase in money rational to time cannot be allowed. In another Hadis narrated by Uthman-ibn-Affan reported in Book 8, Number 3849 of Sahih Muslim the following was said:

"Allah's Messenger (PBUH) said: Do not sell a dinar for two dinars and one dirham for two dirhams."

In another Hadis narrated by Abu Sa'id al-Khudi in Book 9, Number 3854 of SahihMuslim the following was said:

"Allah's Messenger (PBUH) said: Gold is to be paid for by gold, silver by silver, wheat by wheat, barley by barley, dates by dates, salt by salt, like by like, payment being made hand to hand. He who made an addition to it, or asked for an addition, in fact dealt in usury. The receiver and the giver are equally guilty."

In another Hadis on this subject narrated by Abu Hurayrah in Book 9. Number 3856 is as follows:

"Allah's Messenger (PBUH) said: Dates are to be paid for by dates, wheat by wheat, barley by barley, salt by salt, like for like, payment being made on the spot. He who made an addition or demanded an addition, in fact, dealt in usury except in case where their classes differ. This hadith has been narrated on the authority of Fudayl-ibn-Ghazwan with the same chain of transmitters, but he made no mention of (payment being) made on the spot."

1. From the above, it will be clear that any increase or difference in the value thereof will be usurious and will come within the definition of 'Riba'.I am not inclined to grant such increase.

2. In view of the above, I am of the considered opinion that once the agreement has been entered into and the repurchase price determined there can be no renewals by increasing the debt. If there is a renewal or restructuring nothing can be added to arrive at extended figure. The question that needs therefore to be answered 'is what will be the amount payable by the defendant/customer of the banks. If they have entered into a subsequent agreement or addition of mark-up thereon, I have already held that subsequent agreements are void. The bank can only seek recovery of the amounts of the marked-up price under the first agreement. However, if the bank is able to establish the fact that the amount has been actually disbursed under the subsequent agreement and it is not for the purpose of adjustment of the previous debts and that there has been a defacto sale and purchase in commodity in that situation all agreements that may have been entered into for such purposes and independent of the previous agreements can be looked into and money shall be recoverable there-against. Every agreement will therefore have to be proved. For this evidence needs to be led. If the bank has chosen to extend the time for repayment of the amounts given it cannot increase the sum. Naturally if extension is given there is a consideration that he is unable to pay at that point of time. If there is delay in the repayment of the debt, the banks shall be free to proceed to recover the amount of loss caused to them by such delay. This however shall be required to be proved. In the case of Dr. M. Aslam Khaki the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan has observed that:

"... If the purchaser could not pay at the due date because of his poverty, the Qur'anic command is very clear that he should be given more time till he is able to pay. The Holy Qur'ansays:

And if he (the debtor) is poor, he must be given respite till he is well-off. (2:280).

However, if the purchaser has delayed the payment despite his ability to pay, he may be subjected to different punishments, but it cannot be taken to be a source of further 'return' to the seller on per cent per annum basis as contemplated in Section 79."

1. What has been stated is that agreements that have been entered into on a subsequent date will be the only agreement that can be looked into and all agreements that have concluded by elapse of time shall be deemed to be past and closed transactions. I do not agree with this view. Admittedly, the bankers have chosen to reform or rename the transactions though, it continues to emanate from one single account. If the account is the same it will be seen that the certain amount was due and payable on a certain date and remained unpaid. It is this debt that continues in the subsequent agreements. The sanction letters clearly show that they are renewal of facility and such renewal of facility by way of subsequent agreement is only a garb to get out of the legal restrictions imposed on them by BCD Circulars Nos. 13 & 32. Such cannot be allowed. A valid law being acted upon shall have to be acted in the manner as it prescribes. When its says mark-up on mark-up cannot charged, the same cannot be charged in any form or manner whatsoever. When it says that in the vent of a default being committed, recovery has to be made and no mark-up on mark-up or penalty an be charged, it specifically implies and assumes without ambiguity that no mark-up even if restructured can be allowed. It is my considered view that the first agreement continues to be effective for the recovery of the debt by the unpaid seller, the Bank, despite the fact that new agreement may have been entered into. The said agreements are nothing but a continuance of the first agreement and only for the purposes of enhancement and charge of mark-up by elapse of time. I am, therefore, of the view that such will not be deemed to be a past and 0 closed transaction and shall continue till such time the payment of the debt caused by the first agreement is made over or the agreement is extinguished by being fully acted upon or that by a concluded case decided by any Court of law. All pending proceedings in respect of any finance on the basis of the 'Murabaha' or 'Bai' Muajjal' shall continue to be current."

2. On this question of 'finance', 'accommodation' and 'obligation', I do not agree with the arguments of Mr. Aziz-ur-Rehman. The definition of 'finance' as contained in the Banking Tribunals Ordinance, 1984 categorically states that "Finance includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark-up or mark-down in price." The word accommodation or facility has to be read in conjunction with the words "not based on interest" and in reading the fact that it is not based on interest, reference will have to be made to the provisions of BCD Circular No. 13 issued by the State Bank of Pakistan in respect of" the finances to be granted in terms of the Islamic system of banking.

3. It will be of importance to note that the Banking Tribunals Ordinance, 1984 was a law promulgated by the Parliament and the word 'finance' was defined to mean an accommodation or facility under a system not based on interest. By Ordinance LVII of 1984 the Banking Companies Ordinance, 1962 was amended and the definition of "loans advances and credits" included finance and the definition as contained in the Banking Tribunals Ordinance, 1984. Thus by incorporation the 'finance' was brought within the purview and scope of Sections 2^ and 25 of the Banking Companies Ordinance, 1962. In addition to the above, by the promulgation of the Ordinance LVII of 1984 being the "Banking and Financial Services (Amendment of Laws) Ordinance, 1984 many other amendments were brought about, so that the State Bank of Pakistan could enforce the Islamic System of Banking in Pakistan. In Section 7 of he Ordinance of 1962, the words, ''participation term certificates, term finance certificates, and such other instr iments as may be approved by the Suite Bank" were inserted. In Section 7 a new cU use (aa; was inserted, "(aa) the providing of finance as defined in the Banking Tribunals Ordinance, 1984;"

It is thus clear from the insertion, that the Act was amended to bring in the Islamic provisions of law. The State Bank of Pakistan in terms of Section 25 of the Banking Companies Ordinance, 1962 issued directions giving details as what is, 'finance in the system not based on interest'. In view of the above, under Section 3A of the Banking Companies Ordinance, 1962 and in view of Hashwani's case afore referred the provisions contained in Section 25 allows the State Bank of Pakistan to give directions to the Banking Companies and the Non Banking Financial Institutions (NBFIs) also to act, in accordance with such directions. Such directions are binding on all the banks NBFIs. In view of the above, it is clear that the directions are as a consequence of promulgation of the Statute or an Act of the Parliament. Otherwise also under Section 25 the State Bank can give directions to the bank whenever it is satisfied that it is necessary or expedient in public interest. It has done so therefore. Infact the agreements entered into subsequently by banks are the sale and purchase of commodities. The concept is one which is contemplated by BCD Circular No. 13 of 1984. The banks can therefore not take a place otherwise. The State Bank have acted within their authority in issuing the said circulars. I do not, therefore, agree with the proposition of Mr. Aziz-ur-Rehman in this respect also.

1. It has been argued with some vehemence that as the levy of interest has continued and that, if such levy that has already been made is not allowed such shall amount to in fact serious loss and prejudice to the bank. I have already said that no doubt there may be a loss, but then, the law that had been settled in fact has been that the banks were required to proceed in the manner that, they would not charge any interest and will act in accordance with law, i.e., banking in the Islamic system of financing.

2. In the case Zaheeruddin and others v. The State and others (1993 SCMR 1718) which appeal was dismissed by a majority view. In the majority judgment it has been observed:

"The contention, however, has not impressed us at all. The term 'positive law", according to Black's Law Dictionary, is the law actually enacted or adopted by proper authority for the Government of an organized jural society. So that term comprises not only enacted law but also adopted law. It is to be noted that all the above-noted cases were decided prior to the induction of Article 2A in the Constitution, which reads as under:

2A. Objectives Resolution to form part of substantive pwvisions.-The principles and provisions set out in Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."

It was for the first time in the Constitutional history of Pakistan, that the Objectives Resolution, which henceforth formed part of every Constitution as a preamble, was adopted and incorporated in the Constitution, in 1985, and made its effective part. This was an act of the adoption of a body of law by reference, which is not unknown to the lawyers. It is generally done whenever a new legal order is enforced. Here in this country, it had been done after every martial law was imposed or the Constitutional order restored after the lifting of martial law. The legislature in the British days had also adopted the Muslim and other religious and customary laws, in the same manner, and they were considered as the positive laws.

This was the stage, when the chosen representatives of people, for the first time accepted the sovereignty of Allah, as the operative part of the Constitution, to be binding ton them and vowed, that they will exercise only the delegated powers, within the limits fixed by Allah. The power of judicial review of the superior Courts also got enhanced.

The above mentioned Constitutional change has been acknowledged and accepted as effective by the Supreme Court. Mr. Justice Nasim Hasan Shah, considering the changed authority of the representatives of the people, in the case, Pakistan v. Public at Large, (PLD 1987 SC 304 at p. 356), stated as follows:

"Accordingly unless it can be shown definitely that the body of Muslims sitting in the legislature have enacted something which is forbidden by Almighty Allah in the Holy Qur'an or by the Sunnah of the Holy Prophet or of some principle emanating to be.unlslamic."

Mr. Justice Shafi-ur-Rehman, in his judgment in the same case, also relied on the Article 2A (Objectives Resolution), in forming his view at pages 361 and 362, of the above judgment, as follows:

"The concept of delegated authority held in trust enshrined in verse 58 has invariably and consistently been given an extended meaning. Additionally all authority being delegated authority and being trust, and a sacred one for that matter, must have well-defined limits on its enjoyment or exercise. In the Holy Qur'an more so, but also both in the Western and Eastern jurisprudence delegated authority held in trust has the following attributes:--

(i) The authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect, preserve, effectuate and advance the object and purpose of the trust, (ii) All authority so enjoyed must be accountable at every stage, and at all times, like that of trustee, both in hierarchical order going back to the ultimate delegator, and at the other end to the beneficiary of the trust, (iii) In discharging the trust and in, exercising this delegated authority, there should not only be substantive compliance but also procedural fairness."

This aspect was made absolutely clear by the Supreme Court in Federation of Pakistan v. N.W.F.P. Government (PLD 1990 SC 1172 at page 1175) in the following words:

"It is held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H. the said provision would nevertheless cease to have effect on 12th Rabi-ul-Awwal. In such state of vaccum, vis-à-vis , the statute law on the subject, the common Islamic law the Injunctions of Islam as contained in Qur'an and Sunnah relating to offences of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforesaid."

It is thus clear that the Constitution has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet as the real and the effective law. In that view of the matter, the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet are new the positive law. The Article 2A, made effective and operative the sovereignty of Almighty Allah and it is because of that Article that the legal provisions and principles of law, as embodied in the objectives Resolution, have become effective and operative. Therefore, every man-made law must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). Therefore, even the Fundamental Rights as given in the Constitution must not violate the norms of Islam."

1. I am also of the same view. The BRD Circulars (supra) are also on the same term and cannot be deviated from. Interest is unlslamic and cannot be allowed. Rollover, as discussed is also unlslamic and cannot be allowed. The discussion in the case of Qayum Spinning (supra) is the reply the arguments of Mr. Aziz. I have given an anxious thought and reconsidered my earlier view in light of the argument of Mr. Aziz, but have been unable to convince myself otherwise. I therefore hold that all agreements that have been entered into and not be acted upon, as no disbursements have been made, are void. No claim can be made by the banks on the basis of the said agreements. All documents, whether negotiable instruments or otherwise are as a consequence are also void. I also hold that no roll over can be allowed, and that the amount payable shall be the amount on the basis of the agreement against which disbursement has been made. The statement/Break-up of liability filed by the plaintiff is from 9.5.1993 and not from the date of the actual disbursement. I, do not find force in the argument of the Plaintiff. I find force in the arguments of the defendants.

2. Having gone through the pleadings I agree with the accounts filed by the counsel for the Defendant No. 1 as under:--

A. NICF

1. Amount transferred into A/C 2164 Rs. 59,83,054.00

from I.I. chundrigar Road to Corporate Branch on 24.1.1989 EXB. 6/19

| | | --- | | 2. |

Deposit made by defendants during the Period 24.1.1989 to 28.11.1990 i.e. Last Date of Operation of A/Cs. Thereafter plaintiff bank did not allow any operation.

Withdrawals during 24.1.1989 to 31.11.1990.

Mark-up @ 0.43/1000/Day from 1.1.1989 to 31.12.1990 upto the date when operation of Account was frozen.

Balance of outstanding NIFC A/C as on 31.12.1990 (After appropriating Mark­up) NIDF

Sanctioned amount as per transferred date 25.1.1989 Annexures: "S" (Exb P/19) Expiry on 31.12.1990

Actual amount disbursed/availed Evident from Exhibit 6/20 P-131 Inclusive M-Up Amount) Mark-up from 25.1.1989 to 31.12.1990 @ 0.31/1000/Day (Sanction Rate) PAD/Outstanding L.Cs. Inclusive US Aid L.C. Amount (Annexure F of Suit)

(ii) Less; 10% Cash Margin Paid

Vide Cheque No. 070706 dated Drawn at BCCI

Less: Payments

(i) 03.4.1990

(ii) 9.6.1990

(iii) Subsequent payments

TOTAL

Principal Balance Outstanding Mark-up for the purposes of Repurchase Price:

(1) 1st shipment @ 11% for 18 months i.e. 8.9.1988 to 7.3.1990

L.C.

Rs. 1,90,09,483.00

Rs. 1,81,79,791.74, Rs. 15,72,896.18

Rs. 67,26,258.00 Rs. 1.5 Million

Rs. 10,99,325.00 Rs. 02.15.297.00 Rs. 13,14,622.00

Rs. 02.40.598.36

Rs. 35,40,000/-Rs. 03,55,000/-

Rs. 09,19,705/-Rs. 09,67,248/-Rs. 09.84.334/-Rs. 32,26,287/-Rs. 03,13,713/-

Hs. 092,915.29

(2) 2nd shipment @ 11% for 18 months i.e.Rs. 159,152.42 18.11.1988 to 17.5.1990

(3) 3rd shipment @ 11% for 18 months i.e.Rs. 273,039.51 30.11.1988 to 29.5.1990

(4) Subsequent interest @ 16.425% From Rs. 187,862.41 30.5.1990 to 31.12.1990.

(5) TOTAL MARK-UP Rs. 712,993.00 Total Liability of A,B,C is summarized as follows:

| | | | | --- | --- | --- | | PRINCIPAL | MARK-UP | TOTAL | | 51,53,363.24 | 15,72,896.20 | 67,26,259.44 | | 10,99,325.45 | 4,55,895.36 | 15,55,220.81 | | 3,13,713.00 | 7,12,933.63 | 10,26,646.63 |

NICF NIDF PAD

TOTAL 65,66,401.69 27,41,725.19 93,08,125.88

1. Having agreed with the contention of the Defendant No. 1, the amount admitted by them being a sum of Rs. 9,308.125.88 is liable to be paid by the Defendant No. 1 to the plaintiff.

2. I now come to the question whether the Defendants Nos. 2 to 5 are liable as guarantors. It is the case of the plaintiff that the Defendants Nos. 2 to 5 are guarantors. Whereas in the written statement the same has been denied that, the Defendants Nos. 2 to 5 never executed any guarantee as annexed with the plaint and that, the property shown to be mortgaged with the bank belongs to the Defendant No. 1 and not Defendants Nos. 2 to 5. It is stated that the signatures on the guarantee are not the signatures of defendants and that no document was executed by the Defendants Nos. 2 to 5 by themselves or on their behalf. It is also stated that on the dates mentioned on the guarantee the Defendants Nos. 2 to 5 were not directors of the company in 1987. There being a categorical denial, the onus lay on the Plaintiffs to prove that the guarantees were signed by the Defendants 2 to 5. No evidence has been led by the plaintiff to prove that the signatures contained on the guarantee is, in fact the signatures of the said Defendants Nos. 2 to 5. In view of the above, I hold that the defendants Nos. 2 to 5 are not liable. The suit is dismissed as against the said Defendants.

3. The suit is, therefore, decree against the Defendant No. 1 in the sum of Rs. 9,308,125.88 with costs. Suit is also decreed for sale of the mortgaged properties. The suit is decreed with mark-up on the decretal amount at the rate of 11% chargeable once and shall not be compounded in any manner whatsoever.

(A.A.) Suit decree.

PLJ 2001 Karachi 409

Present; muhammad mujibullah siddiqui, J.

RECKITT & COLMAN OF PAKISTAN LIMITED, KARACHI and others-Petitioners

versus

COMMISSIONER, SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION, AWAN-E-MEHNATKASH GULSHAN-E-IQBAL, KARACHI and others-Respondents

Misc. Appeals Nos. 5 to 7, 10 to 16, 36, 50 of 1995, 48, 49 of 1996, 9, 13, 16, 17, 18, 27 of 1997, 3, 4 and 12 of 1999, decided on 11.12.2000.

(i) Interpretation of Statutes-

—Amendment/change in law—Effect of amendment/change in law was always required to be considered by Court and it was incumbent on Court to consider if the amendment made by Legislature, should have the effect of changing entire complexion of issue under consideration. [P. 418] B

(ii) Interpretation of Statutes-

—Provisions of a statute ought to be construed in first instance according to its plain grammatical meaning. [P. 421] C

(iii) Interpretation of Statutes--

—Question of strict or beneficial construction of statutory provision, could only arise if otherwise an ambiguity exists regarding scope and meaning of said provision. [P. 421] D

(iv) Interpretation of Statutes­'

—Prospective and retrospective operation of \sw--Please see. [P. 422 to 424] E & G

Crawford's Interpretation of Laws, published by Pakistan Law House, p. 105, para. 73 and (1890) 24 QBD 557 ref.

(v) Interpretation of Statutes-

—"Declaratory" and "remedial Acts"~Distinction-P/eose see [Pp. 423 & 424] F & H

Craies on Statute Law, 7th End., p. 58 and PLD 1964 SC 616 ref.

(vi) Interpretation of Statutes--

-—Court to lean towards purposive interpretation of statute and for that purpose form was not material, but substance of law was to be seen-Any Act which purported to have been enacted for a declaration, was not to be taken as declaratory law in its entirety notwithstanding that an enactment was purported to be a declaratory law-Some of provisions contained in Act could not be of a declaratory nature-Law could be declaratory in nature because of its substance although it was not stated that it was declaratory in nature—Enactment on a particular subject, normally contained substantial, procedural and declaratory-Definitions in enactment were normally declaratory in nature as definitions contained in a statute assigned special meaning to terms and expressions used by Legislature in a particular enactment-Definitions given in one statute were not to be considered for purpose of any other statute- Definitions as given in a particular statute were declaratory of intention of Legislature pertaining to connotation and scope of terms and expressions used in a particular enactment. [P. 424] I

(vii) Interpretation of Statutes-

—Proviso added to section or subsequent to an Act-Proviso was taken to be an exception and was interpreted to narrow effect of preceding words- Proviso was taken as means to create exception from section to which it was added and to except and deal with a case which otherwise would fall within general language of main enactment and it was not an absolute rule as proviso was some time used a precautionary measure, to explain general words or section and to exclude some ground of misinterpretation which would extend same to cases not intended to be brought within its operation or purview. [Pp. 424 & 425]

(viii) Interpretation of Statutes-

—Principle of purposive interpretation required that an enactment or amendment was not to be interpreted merely in a particular from by following formula that an explanation was to be understood as explaining meaning of provision to which it was added and explanation clause could not enlarge or limit provision of that proviso to section was always an exception to general rule—Instead of interpreting a provision of law on basis of concept attributed to form of legislation, it would be more appropriate to consider contents and substance of provision itself instead of following conceptual interpretation. [P. 425] K

(ix) Interpretation of Statutes-

-—Interpretation by Court-Purpose-Purpose of interpretation of statute by the Court was to ascertain intention of Legislature and object of enactment. [P. 425] L

(x) Interpretation of Statutes­ '—Remedial Acts were those enacted in order to improve and facilitate remedies already existing for enforcement of rights and for redress of wrong or injuries as well as to correct defects, mistakes and omissions in a former law. [P. 425] N

(xi) Interpretation of Statutes­ '—Where a statute had been enacted for benefit of affected persons, in interpreting such statute, there was no room for taking a narrow view, but Court was entitled to be generous toward persons on whom benefit had been conferred-Court could not construe a beneficial statute in such a way that it could violate its provisions nor Court could place beneficial interpretation on a provision contrary to its language merely on the ground that its literal construction could cause hardship or would not be beneficial to class for whose benefit same was enacted—Courts, however, while construing a beneficial enactment, could take into consideration objection for which it was enacted-If two possible constructions of statute were possible, one which favoured class of persons for whose benefit statute had been enacted would be preferred. [Pp.'428 & 429] P

1994 SCMR 881 and PLD 1964 SC 616 ref.(xii) Interpretation of Statutes--

—Declaratory Act was an Act to remove doubts existing as to meaning or effect of a statute—Usual reason for passing such Act was to set aside what legislative body deemed to have been a judicial error-Declaratory Act, ordinarily had retrospective effect unless a contrary intention was clearly indicated by Legislature, and was applicable to cases pending at the appellate stage. [Pp. 429 & 431] Q, T & V

AIR 1926 All. 725; AIR 1931 Mad. 83 and AIR 1956 Hyd. 75 ref. (xiii) Interpretation of Statutes-

—Act would be given retrospective effect unless there were words to that effect or such a retrospective effect has to be given by necessary implication—Exception to said principle had been made in case an enactment having regard to the nature of the statute-Where statute and its intendment partook of characteristics of a declaratory law, it would be considered to have retrospective effect. [P. 430] R

(xiv) Interpretation of Statutes—

—Object of scheme of an Act was to be considered while interpreting words "are employed" instead of interpreting words according to rules of grammer as law was not an exercise in linguistic discipline. [P. 430] S

(xv) Provincial Employees' Social Security Ordinance, 1965 (X of 1965)--

—S. 2(8)(f)--"Employee"~Definition--Exclusion of person from definition of "employee"-Legislature after insertion of proviso to S. (8)(f) of Ordinance, 1965 had laid down the principle of once an employe always an employee for the purpose of said section irrespective of wages remaining below Rs. 3,000 per mensem or exceeding same—Once status of an employee was acquired by a worker, that would never cease for the reason of increase in monthly wages-If person once acquires status of employee there should be no exclusion on account of any amount of wages per month received by said employee. [Pp. 417 & 418] A

(xvi) Provincial Employee's Social Security Ordinance, 1965 (X of 1965)--

—S. 2(8)(f), proviso-Interpretation of proviso to S. 2(8)(f) of Provincial Employee's Social Security Ordinance, 1965-Proviso was not to be interpretated narrowly, but had to be interpreted in wider sense more particularly because the entire Ordinance was in the nature of beneficial legislation-Proviso to S. 2(8)(f) of Provincial Employee's Social Security Ordinance, 1965 did not have the effect of excepting anything provided in the main section or narrowing the effect and scope thereof-Proviso had clearly envisaged to remove any doubt having the effect of excluding any employee from the definition of the term, after exceeding the ceiling of wages (Rs. 3,000 per mensem) provided in the main enactment and enlarging the main provision. . [P. 425] M

(xvii) Provincial Employees' Social Security Ordinance, 1965 (X of 1965)--

—Preamble & S. 2(8)(f)~Provincial Employee's Social Security Ordinance, 1965 was enacted to introduce the Scheme of Social Security for providing benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death and for matters ancillary thereto-Ordinance being a beneficial and remedial statute, should be liberally interpreted so that benefits could be conferred on employees. [P. 426 & 427] O

(xviii) Provincial Employee's Social Security Ordinance, 1965 (X of 1965)--

—-S. 2(8)(f)--Nature and interpretation-Provisio to S. 2(8)(f) of Provincial Employee's Social Security Ordinance, 1965 in effect and in substance, was not in the nature of a proviso only, but was a leading provision-­ Proviso generally was an exception to the section preceding the proviso and being in the nature of an exception, it was to be interpreted very narrowly and strictly. [Pp. 430 & 431] U

PLD 1964 SC 616 ref.

(xix) Provincial Employees' Social Security Ordinance, 1965 (X of 1965)--

—-Ss. 2(8)(f), 20, 57, 59 & 64-"Employee", meaning and scope-Ceiling of wages of employee Rs. 3000/- -Once a worker was included within the definition of "employee" under Provincial Employees' Social Security Ordinance, 1965, he would continue to be so, notwithstanding crossing the ceiling of wages-Proviso to S. 2(8)(f) of the Ordinance, being a part of definition section of Ordinance was declaratory and at the same time beneficial, curative, remedial and welfare legislation and had to be given retrospective effect-Authorities, in circumstances, had rightly found that the employees who had crossed ceiling would continue to be employees and Authorities were justified in demanding contribution in respect of such employees from employers in accordance with provisions contained in the Ordinance. [P. 431] W

Mr. Gulzar Ahmed, Advocate for Appellant (in Miscellaneous Appeal No. 5 of 1995).

Mr. Khalid Habibullah, Advocate for Respondent (in Miscellaneous Appeal No. 5 of 1995).

Mr. Mehmood Abdul Ghani, Advocate for Appellant (in Miscellaneous Appeal No. 6 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 6 of 1995).

Ch. Rasheed Ahmed, Advocate for Appellants (in Miscellaneous Appeal No. 7 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondents (in Miscellaneous Appeal No. 7 of 1995).

Mr. S.M. Yaqoob, Advocate for Appellant (in Miscellaneous Appeal No. 10 of 1995).

Mr. Khalid Habibullah, Advocate for Respondent (in Miscellaneous Appeal No. 10 of 1995).

Mr. S.M. Yaqoob, Advocate for Appellant (in Miscellaneous Appeal No. 11 of 1995).

Mr. Khalid Habibullah, Advocate for Respondent (in Miscellaneous Appeal No. 11 of 1995).

Mr Muhammad Humayun, Advocate for Appellant (in Miscellaneous Appeal No. 12 of 1999).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 12 of 1995).

Mr. Muhammad Humayun,Advocate for Appellant (in Miscellaneous Appeal No. 13 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 13 of 1995).

Mr. Muhammad Humayun,Advocate for Appellant (in Miscellaneous Appeal No. 14 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 14 of 1995).

Mr. Muhammad Humayun,Advocate for Appellant (in Miscellaneous Appeal No. 15 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 15 of 1995).

Mr. Muhammad Humayun, Advocate for Appellant (in Miscellaneous Appeal No. 16 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 16 of 1995).

Mr. Siddiq Mirza, Advocate for Appellant (in Miscellaneous Appeal No. 36 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 36 of 1995).

Dilawar Hussain, Advocate for Appellant (in Miscellaneous Appeal No. 50 of 1995).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 50 of 1995).

Mr. Muhammad Humayun, Advocate for Appellant (in Miscellaneous Appeal No. 48 of 1996).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 48 of 1996).

Mr. Muhammad Humayun,Advocate for Appellant (in Miscellaneous Appeal No. 49 of 1996).

Mr. Khalld Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 49 of 1996).

Mr. S.M. Yaqoob, Advocate for Appellant (in Miscellaneous Appeal No. 9 of 1997).

Mr. Khalid Habib Ullah, Advocate for Respondent 'in Miscellaneous Appeal No. 9 of 1997).

Mr. Muhammad Humayun,Advocate for Appellant (in Miscellaneous Appeal No. 13 of 1997).

Mr. Khalid Hahib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 13 of 1997).

Mr. Abdus Samad, Advocate for Appellant (in Miscellaneous Appeal No. 16 of 1997).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 16 of 1997).

Mr Abdus Samad, Advocate for Appellant (in Miscellaneous Appeal No. 17 of 1997).

Mr. Khalid Habib Ullah, Advocate fcr: Respondent (in Miscellaneous Appeal No. 17 of 1997).

Mr. Muhammad Humayun,Advocate for Appellant (in Miscellaneous Appeal No. 18 of 1997).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 18 of 1997).

Mr. Gulzar Ahmed, Advocate for Appellant (in Miscellaneous Appeal No. 27 of 1997).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 27 of 1997).

Mr. Mehmood Abdul Ghani, Advocate for Appellant (in Miscellaneous Appeal No. 3 of 1999).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 3 of 1999).

Mehmood Abdul Ghani,Advocate for Appellant, (in misc. Appeal No. 4 of 1999)

Mr. Khalid Habib Ullah, Advocate for Respondent (in Misc. Appeal No. 4 of 1999)

Mr. Khalid Javed, Advocate for Appellant (in Miscellaneous Appeal No. 12 of 1999).

Mr. Khalid Habib Ullah, Advocate for Respondent (in Miscellaneous Appeal No. 12 of 1999).

Dates of hearing: 24 and 25.10.2000.

judgment

These appeals arise out of common set of facts and a common question of law is involved, therefore, all these appeals have been heard together and are disposed of by this common order. The common issue involved in all these appeals is whether the Provincial Employees Social Security Ordinance, 1965 is applicable to those employees whose wages exceeded Rs. 1,500 per month.

As already observed the facts and circumstances are almost similar. For the sake of convenience the facts are given as contained in the impugned order in M.A. No. 5 of 1995. The appellant Reckitt & Colman Pakistan limited filed an appeal Bearing No. 24 of 1992 before the First Sindh Labour Appellate Court under Section 59 of the Sindh Social Security Ordinance, 1965. The appellant had assailed issuance of notice by the Director Sindh Employees Social Security Institution, Karachi before Commissioner of Sindh Employees Social Security Institution. The appeal was decided against the present appellants and they assailed the order before the First Sindh Labour Court Karachi, taking plea that the employees of the appellant whose wages exceeded Rs. 1,500 per month ceased to be a secured worker, and thus, the management was not liable to pay contribution to the Institution. The plea of the Sindh Employees Social Security Institution (hereinafter referred to as the Institution) was that the employer was absolved to pay the contribution for the amount which an employee was getting in excess of Rs. 1,500. So far the amount of Rs. 1,500 is concerned the management was still bound to pay the contribution. Lengthy arguments were addressed pertaining to the connotation of the expression 'employed' as used in Section 2(8)(f) of the Ordinance. Learned First Sindh Labour Court Karachi, ultimately held that the Institution is entitled to recover the contribution from the establishment for the workers up to the limit of Rs. 1,500 and not on excess amount.

Without going into the details it would be appropriate to trace out the development and amendments in Section 2(8)(f) of the Provincial Employees Social Security Ordinance, 1965. At present Section 2(8)(f) reads as follows:

2(8) (f) 'employee' means any person working, normally for at least twenty four hours per week, for wages, in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied but does not include:-

(a) ..............................................................

(b)

(c)

(d)

(e) any person employed on wages exceeding (three thousand) rupees per mensem. Provided that an employee shall not cease to be an employee for the reason that his monthly wages exceed three thousand rupees."

The original amount of wages mentioned in Section 2(8) (f) of the Ordinance was Rs. 500 which was substituted for Rs. 1,000. It was enhanced to Rs. 1,500 and lastly by Labour Laws Amendment Act, 1994 to Rs. 3,000. The proviso was also added by Labour Laws Amendment Act, 1994. In the present appeals the question whether an employee earning wages exceeding Rs. 1,500 shall continue to be an 'employee' or shall ceased to be an 'employee' within the meaning of the terms contained in Section 2(8)(f) of the Ordinance, pertains to the period prior to the insertion of proviso by the Labour Laws Amendment Act, 1994. However, a question has been raised whether the proviso added by Labour Laws Amendment Act, 1994 is retrospective in effect and shall be applicable to the proceedings pending at the time of insertion of the proviso or it shall have prospective effect. Prior to the insertion of proviso to Section 2(8)(f) of the Ordinance, the point of controversy between the institution and employers was on the interpretation of the word "employed" used in Section 2(8)(f) of the Ordinance. The plea of the Institution was that the term "employed" denotes to the initial employment of an employee meaning thereby that if a person was initially employed at wages above the ceiling provided in Section 2(8)(f) of the Ordinance, he shall not be deemed to be an employee for the purpose of said provision, however, if a person was employed at a wages lower than the ceiling, he shall continue to be an employee even after crossing the ceiling. On the other hand the plea of the employers was that the term "employed" merely denotes the commencement of a contract of employment and creation of the relationship of employer and employee, meaning thereby that not only a person employed initially at the wages falling beyond this ceiling but a person employed for wages beneath this ceiling shall be ceased to be an employee for the purpose of Section 2(8)(f) of the Ordinance if by revision of pay, promotion, increment or otherwise becomes entitled to wages exceeding the ceiling. However, with the insertion of proviso by the Labour Laws Amendment Act, 1994 the situation has undergone a change, and now the legislature had declared/carlified its intention. The ambiguity if any has been removed, with the result that after the insertion of proviso one meaning only can be attributed to the provisions contained in Section 2(8)(f) of the Ordinance, i.e. exclusion contained in the provision is applicable to the person who is initially employed on wages exceeding ceiling (Rs. 1,500 Rs. 3,000) per mensem and the exclusion is not applicable if a person was initially employed at wages below the ceiling and thereby falling within the purview of term employed as defined in Section 2(8)(f) of the Ordinance, irrespective of the increase in subsequent wages beyond the ceiling provided in the said provision. In other words it can be said that the legislature has settled the controversy by laying down the principle of once an employee always an employee, for the purpose of Section 2(8)(f) of the Ordinance, irrespective of the wages remaining below the ceiling or exceeding the ceiling. Once the status of an employee is acquired by a worker it shall never be ceased for the reasons of increase in the monthly wages. Thus, in the case of a person once acquiring the status of an employee there should be no exclusion on account of any amount of wages per month received by the said employee.

The learned Advocates for the parties have addressed very lengthy arguments giving various meanings of the word "employed", taking assistance from English grammar dictionaries and use of the term in other laws including the effect of other provisions contained in the Ordinance pertaining to the formula of contribution to be made by an employer in respect of an employee and the various judgments of Hon'ble Supreme Court and the High Court. I am of the opinion that the effect of amendment/ change in law is always required to be considered by the Court, and therefore, it is incumbent to consider if the amendment made by the legislature shall have the effect of changing the entire complexion of the issue under consideration. It is, therefore, imperative to consider if the amendment made by the insertion of proviso to Section 2(8)(f) of the Ordinance, has retrospective or prospective effect. If it is concluded that the proviso has prospective effect then the very learned, elaborate and eruditely arguments addressed by all the learned Advocates shall be considered and dilated in depth and detail. However, if in the ultimate analysis I find that the proviso inserted by the Labour Laws Amendment Act, 1994 is retrospective in effect then notwithstanding the pains taken by the learned Advocates, their industry and labour, the issue shall be decided in accordance with the effect of amendment as discussed above.

Learned Advocates for the appellant and the respondent have placed reliance on two Single Bench judgments of this Court. First, in the case of Messrs Jupiter Textile Mills Ltd., Karachi v. Director, Hyderabad Directorate, Hyderabad and another (1997 PLC 473). A contention was raised in this case which is similar to the point in issue in these appeals to the effect that no payment can be demanded in relation to the employees whose wages by virtue of agreement exceeded beyond Rs. 1,500 p.m. It was pleaded that the moment an employee who was initially covered within the term employee (as his wages were up to Rs. 1,500 p.m.) receives wages exceeding Rs. 1,500 p.m., can no longer be termed as employee as referred to in Section 2(8)(f) of the Ordinance.

Mr. Khalid Habibullah, learned Advocate appearing for the respondents in those appeals argued in the cited case that the word 'employed' denotes the initial engagement and has reference to the concept of master and servant i.e. it declares the relationship between employer and the employee. In support of his contention he had placed reliance on the judgment of Supreme Court of India reported in the case of Workmen of the Food Corporation of India v. Food Corporation of India (AIR of 1985 SC 670). He had further placed reliance'on a judgment reported in (1000 Pacific Reporter 2nd series page No. 222) by the Supreme Court of New Maxico wherein it was held that word employed is synonymous to hire or appoint.

On the other hand Mr. Khursheed Anwar Shaikh, learned Advocate for the employers had taken plea that the word employed means, to appoint and to engage. It was held by Mr. Justice M.L. Shahanai, after considering the point urged by the parties I would hold that the concept of employment/ engagement/appointment is an initial appointment. In case a person is employed initially with salary more than Rs. 1,500 per month the employer is not liable to pay the contribution in respect of such employee. The conclusion is in consonance with the judgment of Hon'ble Supreme Court reported in (PLD 1988 SC 1). The employer is liable to pay the contribution up to the sum of Rs. 1,500 when he was covered under the net of social security, he shall continue to remain under the cover even after, his wages exceed Rs 1,500 by virtue of normal increment in the ordinary course of rendering services for the employer. In respect of proviso to clause (f) of Section 2(8) of the Ordinance, it was observed that proviso is to be strictly construed as it is exception to the general concept conveyed by the Legislature. It was further observed that the reason that it was not included by the Legislature earlier, was that now the Legislature has brought more workers under the net of Social Security i.e. employees drawing wages up to Rs. 3,000 per month or Rs. 120 per day. The Legislature felt the need that such employees needed protection of the Social Security benefit, therefore, expressly now, it has been provided that even though they may draw wages exceeding Rs. 3,000 and, therefore, would not be deprived from the benefit under the beneficial legislation i.e. under the Social Security Ordinance. It was further observed that another reason that may be for inclusion of such proviso is that the legislature knows the existing state of law which may be gathered from the judgments delivered by the Hon'ble Supreme Court. The law expressly declared by the Supreme Court in PLD 1988 SC 1, is given express contours in the form of the proviso which was added by the Legislature to confer express approval on the law declared by the Supreme Court.

The second judgment is in the case of Messrs Agfa Gevaert Pakistan Ltd. v. Sindh (Provincial) Employees Social Security Institution, 2000 PLC 62 (Karachi High Court). In this case plea of appellants (employer) was that they were making contribution under the Ordinance on the basis of wages of persons falling within the definition of employee in terms of Section 2(8) of the Ordinance to the mandate of Section 20. In the year 1989 the definition of employee, inter alia, excluded persons employed on wages exceedings Rs. 1,500. Pursuant to a revision of salaries of employees in the appellant company effective from 1.8.1989 the minimum wages payable in the appellant establishment were raised to Rs. 1,545 and hence, no contribution was required to be made. The respondent was accordingly informed by letter, dated 31.7.1989 and admittedly thereafter no payment was made. However, more than five years later the appellant received a letter from a Director of the respondent alleging that they were liable to make contribution, and directed them to do so together with statutory increase within 10 days failing which, recovery will be made by way of arrears of land revenue. The appellant preferred a complaint against the aforesaid demand before the Commissioner of the respondent under Section 57 of the Ordinance which was rejected. An appeal to the Labour Court under Section 59 was also dismissed and thereafter appeal was preferred before the High Court under Section 64 of the Ordinance. In the present appeals also the facts are almost similar. The same point came for consideration before Mr. Justice Sabihuddin Ahmed. He observed that it was not necessary to go in so much details and controversy would be resolved prior to 25.9.1993 and the effect of the amendment enacted on such date. It was held by my learned brother Mr. Justice Sabihuddin Ahmed, as follows:

"As is evident from the preamble to the Ordinance that it seeks to provide some benefits to certain employees and not every person receiving remuneration for service rendered. Section 2(8) defines the expression employee and clauses (a) to (f) thereof exclude certain persons who otherwise, fall within the broad import of the expression. Clause (f) as it stood at the relevant time excluded persons employed on wages exceeding Rs. 1,500 from the ambit of the expression employee."

1. The effect of the amendment brought about through the Labour Laws Amendment Ordinance, 1993 (which was subsequently adopted as an Act of (Parliament) was to hold from the stand point from expanding the definition of an employee. In the first instance the words 1,500 were substituted to read 3,000. In other words contribution became payable in respect of person drawing wages not exceeding Rs. 3,000 from the date of enforcement of the Ordinance. Secondly, it was apparently realised that under the law existing prior to the amendment a person in respect of whom contributions were payable and who was allowed certain social security benefits would cease to enjoy such benefits the moment the quantum of his wages, crossed the amount specified in the clause (as appears to have happened in the instant case). To rectify this situation and to ensure that an employee does not lose such benefits a proviso was added stipulating that an employee shall not cease to be an employee for the reason that his monthly wages exceed 3,000 rupees. In other words once a person was entitled to social security benefits and contributions were required to be made on his behalf, he would continue to remain so irrespective of the increase in his wages to an amount exceeding Rs. 3,000. It is indeed settled law that a provision of a statute ought to be construed in the first instance according to its plain grammatical meaning and the unamended clause clearly showed that a person drawing wages exceeding the amount specified could not be treated as an employee for the purpose of the Ordinance. The amendment further fortifies the appellant's case inasmuch as it shows that a proviso (which is an exception to the general rules) had to be enacted to ensure benefits for the liability to make contribution in respect of those who would otherwise not be entitled thereto.

2. Mr. Khalid Habibullah, learned counsel for the respondents, however, vociferously argued that the Ordinance was a beneficial statute and must be liberally construed in favour of employees." Indeed there can be no cavil with its proposition but the question of strict or beneficial construction could only arise if otherwise there was an ambiguity regarding the scope and meaning of a statutory provision.

9.. Mr. Khalid Habibullah then attempted to argue that clause (f) of Section 2(8) only intended to exclude those persons who joined employment at wages exceeding the specified amount. (Rs. 1,500 or Rs. 3,000) or as the case may be and not those whose wages came to exceed such amount. Quite frankly I find no substance in such contention in view of what has been discussed above. Learned counsel then attempted to contend that the 1993 Amendment was only a piece of declaratory legislation enacted by way of abundant caution and ought to be given retrospective effect. In support of his contention he referred to various observations from Craies Statutory Construction. I regret I cannot agree, to hold so would nullify the very basis on which proviso to the aforesaid clauses was added. At best it could only be treated as a piece of remedial legislation and when the legislature itself gave it prospective effect the Court cannot make its application retrospective."

A perusal of the above findings of my learned brother Mr. Justice Sabihuddin Ahmed, contained in para. 10 of his judgment shows that the issue pertaining to retrospective effect of the amendment inserting proviso to Section 2(8) (f) could not be considered elaborately, probably for want of proper assistance with the result that the point was decided by very short finding. I, would, however, like to consider the issue of retroactive application of the amendment in some detail. It is provided in para. 73 of the Crawford's Interpretation of Law, published by Pakistan Law House at page 105 as follows:

"Curative statutes are those which attempt to cure or correct errors and irregularities judicial or administrative proceedings, which seek to give effect to contracts and other transactions between private persons which otherwise would fail to produce their intended consequences on account of some statutory disability or a failure to comply with some technical requirement. Remedial acts are those enacted in order to improve facilities and remedies already existing for the enforcement of rights and for the redress of wrongs or injuries as well as to correct defects, mistakes and omissions in a former law."

It is stated in para. 74 (page 107) as follows:

"Generally speaking, declaratory statutes can be dividend into two classes: (1) those declaratory of the common law, and (2) those declaring the meaning of existing statute. Obviously, those declaratory of the common law should be construed according to the common law. Those of the second class are to be construed as intended to lay down a rule for future cases, and to act retrospective. They closely resemble interpretation clauses, and their paramount purpose is to remove doubt as to the meaning of existing law, or to correct a construction considered erroneous by the legislature."

In the same treatise there is an elaborate discussion on the prospective and retrospective operations of law. It is stated at page 279 as follows:

"But consideration of public good; and public justice have been regarded as sufficient reason for upholding retroactive legislation of a curative nature, even though certain vested rights were, thereby impaired:--

'The retrospection of the act is indisputable, and equally so if its purpose is to change the legal rights of the litigating parties.'

v

"On the other hand, laws of retrospective nature, affecting the rights of individuals, not adverse to equitable principles, and highly pro motive of the general good, have often been passed, and as often approved."

The subject has been dealt with in the Criaes on Statute Law, as well dealing with the point of distinction between the declaratory and remedial acts. It has been observed at page 58 (Seventh Edition) that" For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such acts are usually held to be retrospective.

It has been further observed that "the usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes, usually, if not invariably, such an Act contains a preamble, and also the word "declared" as well as the word "enacted"."

"Thus, the declaratory Acts and the remedial Acts are in fact similar in nature, but are differentiated with reference to the system of law prevailing in U.K., where common law is also practised and recognized alongwith the statute law. The removal of any doubt pertaining to common law is categorized as a declaratory Act and when any doubt is removed or any explanation is added to statute law it is called remedial Act. Thus, with reference to the system of law prevailing in Pakistan, the declaratory Acts and the remedial Acts are in fact, of the same nature and the two expressions are loosely used to describe the same nature of enactment. With reference to the system of law in Pakistan, any amendment or enactment of law primary purpose of removing the doubt, clearing an ambiguity or adding an explanation would in fact be a remedial Act. It is further observed at page 60 that:

'Remedial Acts are subdivided by Black Stone into 'enlarging' and 'restraining' Acts, the former widening the common law where it was too strict or narrow, the latter taking away or cutting down rights existing at common law.'

It is further observed that both terms are in truth purely relative. The same statute may be 'enlarging' as to one set of persons 'restraining' as to others."

In the same book while dealing with the subject of retrospective enactment it has been stated at page 395, that, "where a statute is passed for the purpose of supplying an obvious omission in a former statute, or, to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed." It is further observed that "where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable. A reference has been made to the case of Ahgcn v. Theobald (1890) 24 Q.B.D. 557, wherein a proviso was held retrospective although limitation in which it terms had commenced before it was passed. It is further stated at page 396, that "If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right".

Since the proviso under consideration was added by the legislature to a section containing definition, therefore, it would be appropriate to consider the nature of definition in a clause or section. While dealing with the subject it has been held by Hon'ble Supreme Court of Pakistan in the case of The Punjab Cooperative Bank Limited v. The Republic of Pakistan and 128 others (PLD 1964 SC 616), as follows:

"The object of incorporating a definition clause or section in a statute is generally to declare what certain words and expressions used in that statute shall mean. The definition thus is, as a rule, of a declaratory character and normally applied to all cases which come within its ambit whatever might have been the position before."

The learned Advocates for the appellant have submitted that the proviso inserted by the Labour Laws (Amendment Act, 1994) is not declaratory in nature as according to them a declaratory law is that which specifically contains the words "it is hereby declared" and there are no such words contained in the Act inserting the proviso to Section 2(8)(f) of the Ordinance. I am not impressed with the contention for the reason that by now the Courts have leaning towards the purposive interpretation of the statute. For this purpose the form is not material but the substance of law is to be seen. It is also established by now that any Act which purports to have been enacted for a declaration is not to be taken as declaratory law in its entirety. Notwithstanding that an enactment is purported to be a declaratory law, some of the provisions contained in the Act may not be a declaratory nature. Likewise a law may be declaratory in nature because of its substance although it is not stated that it is declaratory in nature. Moreover, normally an enactment on a particular subject contains provisions which are (a) substantial (b) procedural and (c) declaratory. The definitions are normally declaratory in nature as the definitions contained in a statute assigned special meanings to the terms and expressions used by the legislature in a particular enactment. For this reason the definitions given in one statute are not considered for the purpose of any other statute because the meaning are assigned/declared to particular terms and expression for the purpose of the particular enactment. It has, therefore, been held that the definitions given in a particular statute are declaratory of the intention of legislature, pertaining to the connotation and scope of the terms and expressions used in a particular enactment.

At this juncture I would like to deal briefly with the scope of proviso added to the section or subsequent to an Act. Generally the proviso is taken to be an exception and is interpreted to narrow the effect of preceding words. It is also taken as means to create exception from the section to which it is added. Its function is treated to exclude and take out certain cases from the rule to which it is added and to except and deal with a case which would otherwise fall within the general language of the main enactment. However, it is not an absolute rule as proviso is some time used as a precautionary measure, to explain the general words or section and to exclude some ground of misinterpretation which would extend it to cases not intended to be brought within its operation or purview. The old view was that the proviso cannot be interpreted to enlarge the scope of enactment, however, with the adoption of purposive interpretation of statute the view has undergone change and it has been held that though while in many cases a proviso limits or qualifies what preceded it yet, it is the substance and content of the enactment, not its form, which has to be considered and that which is expressed to be a proviso may itself add to and not merely limit or qualify that which precede it. In the modern legislation instances are not wanting when leading enactments have been made through explanations or the provisos. Thus, the principle of purposive inter]) retation requires that an enactment or amendment is not to be interpreted merely in a particular form by following the formula that an explanation is to be understood as explaining the meaning of the provision to which it is added and that explanation clause cannot enlarge or limit the provision and that a proviso is always an exception to the general rule. Thus, instead of interpreting a provision of law on the basis of concept attributed to form of legislation it would be more appropriate to consider the contents and substance of the provision itself instead of following the conceptual interpretation. T purpose of interpretation of statute by the Court is to ascertain the intention of the legislature and the purpose of enactment. A bare perusal of the proviso under consideration shows that it does not have the effect of excepting any thing provided in the main section or narrowing the effect and scope thereof. It clearly envisages to remove any doubt having the effect of excluding an employee from the definition of the term, after exceeding, the ceiling of wages provided in the mean enactment and enlarging the main provision. Thus, the proviso under consideration is not to be interpreted narrowly but it has to be interpreted in wider sense and more particularly because the entire act is in the nature of beneficial legislation and the M particular proviso under consideration is on its plain reading meant to remove a wrong which was likely to be committed to the employees on narrow interpretation of the main enactment and thus, clearly the amendment is beneficial in nature.

My view that the proviso is not always meant for making exception and that it is not necessarily has limited operation is supported with the following observations, in the treatise Maxwell on the Interpretation of Statute, 12th Edition, page 190:

"If, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect."

It is stated in Craies on Statute Law, Seventh Edition page 219, that "But sections, though framed as provisos upon preceding sections, may exceptionally contain matter which is in substance a fresh enactment, adding to and not merely qualifying what goes before".

It has been observed in Crawfords Interpretation of Laws, published by Pakistan Law House, page 604 as follows:

"Even though primary purpose of the proviso is to limit or retain the general language of a statute, the legislature, unfortunately, does not always use it with technical correctness. Consequently, where its use creates an ambiguity; it is the duty of the Court to ascertain the legislative intention, through resort to the usual rules of construction applicable to statutes generally, and give it effect even though the statute is thereby enlarged, or the proviso made to assume the force of an independent enactment, and although a proviso as such has no existence apart from the provision which it is designed to limit or to qualify."

Now I come to another aspect to which the rules of interpretation pertaining to the curative and remedial acts relating to retroactive effect. It has been observed in Crawford's Interpretation of Law, page 105, that "Remedial Acts are those 'enacted in order to improve and facilitate remedies already existing for the enforcement of rights and for the redress of wrongs or injuries as well as to correct defects, mistakes and omissions in a former law".

I will now examine whether the entire law under consideration namely the Provincial Employees Social Security Ordinance, 1965, is a beneficial and Remedial Act as well as a welfare Act and thereafter, I will consider the rules pertaining to the interpretation of remedial, beneficial and welfare legislation. A preamble of the Provincial Employees Social Security Ordinance, 1965 shows that the law was Acted to introduce the scheme of social security for providing benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death, 0 and for matters ancillary thereto. The nature of enactment came for consideration before Hon'ble Supreme Court of Pakistan, in the case of National Embroidery Mills Ltd., and others v. Punjab Employees Social Security Institution (1993 SCMR 1201) and his lordship Mr. Justice Saleem Akhtar, speaking for the Full Bench of the Supreme Court, held as follows:

"Mr. Sarwana contended that as the Ordinance is a beneficial and remedial statute it should be liberally interpreted so that benefits may be conferred on large number of employees. The learned counsel referred to Kohinoor Chemical Co. Ltd. and another v. Sindh Employees Social Security Institution and another PLD 1977 SC 197 and Messrs MacDonald Layton Constain Ltd. v. Punjab Employees Social Security Institution PLD 1991 SC 1055. In the last case it was observed that under the Islamic dispensation interpretation which uphold the rights of the workers should be accepted. There can be no cavil with the proposition that the Ordinance is a beneficial legislation intended to provide benefit to the workers of a particular group measured with the salary."

After examining the nature of relief needed to be provided to the employees under the enactment it was held "In these circumstances, the accepted principle of interpretation that beneficial statutes are to be interpreted liberally must be applied".

In the case of Kohinoor Chemical Co. Ltd., and another v. Sindh Employees Social Security Institution and another, which has been referred to in the judgment cited above it was held by Full Bench of the Hon'ble Supreme Court as under:

"There is no doubt that we are dealing with a beneficial or remedial legislation conceived as a means of ameliorating the lot of the working class, and as such it would in keeping with the accepted principle of interpretation, as observed in Divisional Superintendent, P.W.R., Karachi v. Bashir Ahmed (PLD 1973 SC 589) that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent. It would appear, therefore, that, in keeping with the object of ttye legislation, as wide an Interpretation should be placed on the terms 'employee' and establishment as permissible within the language employed in the statute."

The question whether the provincial Employees Social Security Ordinance, 1965, is a beneficial legislation was raised before my learned brother Mr. Justice Sabihuddin Ahmed, in the case of M/s. Agfa Gevaert Pakistan Ltd., (2000 PLC 62) but the issue was not examined in detail for the reason that there was no ambiguity regarding the scope and meaning of the said statutory provisions. The Hon'ble Supreme Court of Pakistan has

granted leave to appeal against the said order on 26.7.2000, in C.P.S.L.A. No. 680-K, 685-K and 688-K of 1999, to consider the following: ~

"(i) To examine the scope clause (f) of sub-section (8) of Section 2 of Provincial Employees Social Security Ordinance, 1965, with reference to the object of the Ordinance.

(ii) Whether the dictum laid down by this Court in the case reported as Sindh Employees Social Security Institution v. Dawood Cotton mills Ltd. (PLD 1988 SC 1) is attracted to the circumstances of this case."

After concluding that the Provincial Employees Social Security Ordinance, 1965 is a beneficial legislation, I will advert to the principle governing the interpretation of such acts/provisions. It has been held by Punjab High Court (India) in the case of Kanpur Textile Finishing Mills v. Regional Provident Fund Commissioner (AIR 1955 Punjab 130) that "where in keeping with the policy of the State, i.e.to establish a welfare State with the directive principles of State policy as contained in part IV of the Constitution, a statute is enacted by Parliament for the benefit of the workers, a beneficial construction must be given to it." It has been further held that as the object of the Employees Provident Fund Act, 1952, is to provide for a provident fund for workers, it is the duty of the Court to interpret the Act in such a manner as to give effect to the intention of the Legislature and- not to put a very narrow construction which may defeat the object of the Act".

The Calcutta High Court has held in the case of A Bus Associations v. Assistant Labour Commissioner and other (AIR 1967 Calcutta 371) that "it has been generally recognised that Statute like the Minimum Wages Act should be given a beneficial interpretation, because such Acts are meant for the social welfare of the masses".

There is no dearth of judgments from the superior Courts in Pakistan as well. It has been held by Mr. Justice Qaiser Ahmed Hamidi of this Court in the case of Muhammad Ibrahim v. Province of Sindh and another (1991 MLD 90) that "where a statute had been enacted for the benefit of affected persons, in interpreting such statute, there was no room for taking a narrow view but Court was entitled to be generous towards persons on whom benefit had been conferred".

The Hon'ble Supreme Court of Pakistan in the case of Shaheen Airport Services v. Sindh employees Social Security Institution (1994 SCMR

881) while dealing with the provisions contained in the enactment under consideration, held that "the Court cannot construe even a beneficial statute in such a way that it may violate its provisions nor the Court can place beneficial interpretation on a provision contrary to its language merely on the ground that its literal construction will cause hardship or would not be beneficial to the class for whose benefit the statute in question was enacted However, at the same time, the Court while construing a beneficia enactment, can take into consideration the object for which it was enactec and the mischief which it intended to suppress, and if two possible constructions of a provision of such a statute are possible, one which favours the class of persons for whose benefit the statute has been enacted, would be preferred." It has been further held that "The West Pakistan Employee: Social Security Ordinance, 1965 is a specie of statute which was to be enacted by, the State with the object of promoting social and economic well being of the people and, therefore, it is a beneficial enactment intended to provide social security to the workmen covered by the provisions of the same and, hence, it is to be construed liberally and if two constructions are possible, net which extends the benefit of the Ordinance to more workmen and the other which limits such benefit, the former is to be preferred." In this case the Hon'ble Supreme Court of Pakistan preferred the extendec definition of the term employee with reference to U.S.A. and English Cases.

I have already referred to the judgment of Hon'ble Supreme Court o: Pakistan (PLD 1964 SC 616), wherein it has been held that "the part of enactment containing definition is declaratory in nature".

I will, therefore, refer to some judgments from Indian jurisdiction in which the rules pertaining to the effect of declaratory enactments have been considered.

It has been held by Allahabad High Court, in the case of Muhammadi Bibi v. Kashi Upadhya and others (AIR 1926 Allahabad 725) that "A delecatory Act is an Act to remove doubts existing as to the meaning or effect of a statute, and the usual reason for passing a declaratory Act is to set aside what the legislative body deems to have been a judicial error. Declaratory Act, like judgments, decides cases pending when the judgments are given but do not reopen decided cases." It has further been held that if an appeal is pending it is not a decided case, and therefore, declaratory Act is applicable to cases pending at the appellate stage.

It has been held by Madras High Court, in the case AT. Pannirselvam v. A. Veeriah Vendayar and another (AIR 1931 Madras 83) that "no doubt it is possible that a provision of an Act not in its general character declaratory may be declaratory in effect, though not in form. "It has further been held that "a declaratory Act ordinarily has retrospective effect."

It has been held by Hyderabad High Court, in the case of Varalakhsmi v. Virmulu (AIR 1956 Hyderabad, 75) that "It is needless to state that the well-accepted principle and canon of construction is that an Act shall be given retrospective effect unless there are words to that effect or such a retrospective effort is to be given by necessary implication. But under p the law an exception to this principle has been made in case an enactment having regard to the nature of the statute. Where therefore, the statute and its intendment partake of the characteristics of a declaratory law then it would be considered to have retrospective effect".

It has been held by the Allahabad High Court, in the case of Ramesh Metal Works and another v. State (AIR 1962 Allahabad 227) that "the object of scheme of an Act is to be considered while interpreting the words "are employed" instead of interpreting the words according to rules of grammar." It was further held that law is, however, not an exercise in linguistic discipline. It is emerging as an important Therapy in disorder of social metabolism. It is complex process, and can be fully understood only by an attentive regard to its therapeutic function and its synthesis there is accordingly growing recognition by Courts that a statute should be construed, rather than interpreted, with due regard to its avowed object and to its character." It was ultimately held that "the avowed object of the Act is to provide adequate security to the worker in old age and infirmity. It is a welfare legislation land it should be construed as to give necessary effect to that object".

It has been held by Kerala High Court, in the case of Narayana Pattar v. State of Kerala and others (AIR 1979 Kerala 139) "A declaratory Act means to declare the law, or to declare that which has always been the law, and there having been doubts which have arisen, Parliament declares what the law is and enacts that it shall continue what it then is. It has further been held that "where a statutory provision is in its nature declaratory it will be presumed to be retrospective unless a contrary intention is clearly indicated by the legislature, the reason being that its underlying purpose of explaining or clarifying the existing law will be effectively served only by giving it such a retrospective construction".

Consequent to the above discussion it is held that although amendment has been made in Section 2(8)(f) of the Ordinance, in the form of proviso but a bare perusal of the provision leaves no scintilla of doubt, that in effect and in substance it is not in the nature of proviso. In substance it is

| | | --- | | U |

a leading provision. The reason being that the proviso is generally an exception to the section preceding the proviso and being in the nature of an exception it is interpreted very narrowly and strictly. A bare perusal of the proviso under consideration shows that 'it has enlarging effect. It is further held that the provision under consideration is part of section containing definition and therefore, it is declaratory in nature as held hy Hon'ble Supreme Court of Pakistan, in the judgment reported as (PLD 1964 SC 616).

As already held by the Hon'ble Supreme Court of Pakistan in the judgments cited above, the entire law contained in the Ordinance is beneficial in nature; therefore, the provision under consideration is also a beneficial and welfare legislation and thus, is required to be interpreted liberally and in a way which has the effect of advancing the relief and suppressing the mischief. It is further held that the provisions contained in proviso are explanatory in nature and an explanation added by the1 legislature is deemed to be a note of caution indicating the real intention of the legislature and purpose of the enactment as well as removal of any doubt. Thus, the provision is clarificatory as well. The presumption is that the legislature while enacting any law or making any amendment is conscious of the circumstances prevailing at the time of enactment/ amendment/substitution, and therefore, it is held that the legislature was aware that question were being raised about the exclusion of a worker from the purview of the terms employee used in the Ordinance as defined in Section 2(8)(f) and a view was prevailing which was prejudicial to the interest of worker and was not in consonance with the avowed object and purpose of legislation, therefore, an amendment was inserted whereby it was clearly provided without any ambiguity that once a person/worker is included within the definition of employee under the Ordinance, he shall continue to be so, notwithstanding crossing the ceiling of wages. Thus, the law curative in nature as well. Thus, the proviso to Section 2(8)(f) of the Ordinance being a part of definition Section is declaratory and at the same time it is beneficial, curative, remedial and welfare legislation and has to be given retroactive effect.

As a result of above findings, it is held that the proviso to Section 2(8)(f) of the Ordinance, being retroactive in effect, the respondents have rightly' held that the employees who have crossed the ceiling continue to be employees and therefore, the respondents are justified in demanding contribution in respect of such employees from the appellant in accordance with the provisions contained in the Ordinance.

For the foregoing reasons it is held that the learned First Sindh Labour Court/First Sindh Social Security Court, has rightly held that the provisions contained in Provincial Employees Social Security, Ordinance, 1965, are applicable to the employees, whose wages have exceeded the ceiling and that the institution is entitled to recover the contribution in respect of the said workers from the appellant. The impugned findings on the point of continuance of the workers within the definition of employee even after exceeding the ceiling and continuing to be secured persons and thus, ontinuance of liability of employer for paying contribution under the Ordinance is hereby upheld.

Consequence to the above findings, all the appeals stand dismissed with no order as to costs.

(A.P.) Appeals dismissed.

PLJ 2001 Karachi 432 (DB)

Present: S. ahmed sarwana and ghulam rabbani, JJ.

NAGINA BAKERY-Petitioner

versus

SUI SOUTHERN GAS LIMITED and 3 others-Respondents

Constitutional Petition No. D-310 and Miscellaneous Application

No. 1145 of 2000, decided on 8.8.2000.

(i) Advocate-

-—Duty of Advocate towards Court and client-Failure to prepare brief properly—Effect—Advocate is an officer of Court and is concerned in proper administration of justice and owes an overriding duty to Court, to standards of his profession and to public, to ensure that it is achieved-Where Advocate has not prepared his briefly properly and has not placed relevant law before Court, such counsel has failed in his duty by not maintaining standards expected of an Advocate-Where counsel does not come to Court ready with facts and law on legal propositions, such lapse on his part would show disrespect to standards of profession, duty to Court in administration of justice and negligence of his duty to client-Such counsel has not only committed breach of Injunctions of Islam but has also committed breach of promise to his client-Remedy for client-Such counsel is liable for the loss or injury suffered by his client. [Pp. 440 & 441] I, J & K

(ii) Constitution of Pakistan (1973)--

—Art. 199-Service Tribunals Act (LXX of 1973), S. 2-A-Constitutional petition-Maintainabiity-Employees of Sui Southern Gas Company Ltd.-Status-Insertion of S. 2-A in Service Tribunals Act, 1973, does not in any way make employees of Company Civil servants or public functionaries to make them amenable to Constitutional jurisdiction of High Court-Constitutional petition was not maintainable against employees of Sui Southern Gas Company in the circumstances. [P. 435, 436 & 439] A, B & E

(iii) Constitution of Pakistan (1973)--

—Art. 199-Expression 'performing functions in connection with the affairs of Federation or Province'—Scope—Company which was transmitting supply or sale of natural gas could not be said to be performing functions in connection with affairs of Federation or Province. [P. 436] C

(iv) Constitution of Pakistan (1973)--

—Art. 199-Constitutional petition--Maintainability--Sui Southern Gas Company is a public limited company quoted on stock exchange and has not been entrusted by the Government with control or management of a municipal or local fund as such Company cannot be regarded as a local authority against which writ can be issued under Art. 199 of Constitution of Pakistan, 1973. [P. 437] D

(v) Constitution of Pakistan (1973)-

—Art. 199-Contractual obligation-Such obligation cannot be enforced by filing petition under Art. 199 of Constitution of Pakistan, 1973. [P. 440] F

(vi) Constitution of Pakistan (1973)--

—-Art. 199-Constitutional petition-Maintainability-Constitutional petition was not maintainable against designations and titles of officers of Company who were not legal or natural persons. [P. 440] G

(vii) Constitution of Pakistan (1973)--

—Art. 199-Constitutional malafide-Where no relief was sought against Government and it was impleaded just to make.petition maintainable, High Court deprecated such act of petitioner as same was prima faciemala fide-[P. ]

(viii) Constitution of Pakistan (1973)--

—- Art. 199-Filing of vexatious petition-Where petition was vexatious to knowledge of counsel, he should not have filed the same even if his client insisted on the same-Counsel should never allow himself to be tempted by financial gains to commit a breach of his duty to the Court-which has precedence over his duty to client-High Court dismissed petition with costs to be paid by counsel in circumstances. [P. 442] L

Mr. Shoaib Shibli, Advocate for Petitioner.

Mr. Abdul Sattar Kazi, Advocate for Respondents Nos. 1 to 3.

Date of hearing: 8.8.2000.

order

S. Ahmed Sarwana, J.--The brief facts as available from the pleadings are that Nagina Bakery through its proprietor Muhammad Nasir (Petitioner), a consumer of Sui Southern Gas Company Limited (SSGC/ Respondent No. 1) has filed this petition challenging the demand of Rs. 1,74,826 made by SSGC. The facts giving rise to the petition as stated in the petition are that on 23.5.2000, some representatives of SSGC came to premises of the petitioner, took away his Gas meter for testing in the laboratory after replacing it with a new one. The following observations were made in the Testing Report dated 23.5.2000 relating to the Meter:

"Meter is physically checked and proved in presence of vig. rep. As the portion of upper case was found removed meter found the carbon in to valve/valve seal and Chamber. It was observed that meter found slow. Meter found-50% should be bill charge from consumer, (sic) On the basis of the report, the Chief Engineer of SSGC (Respondent No. 2) ordered that recovery be made accordingly. Consequently, SSGC by letter dated 14.7.2000 demanded Rs. 1,74,826 as arrears and informed the petitioner that if this was not done> the said amount would be included in the following bill for the month of July, 2000. The petitioner requested the respondents to withdraw the aforesaid letter arid demand but in vain. It is alleged that on 3.8.2000 some staff members of SSGC came to the petitioner's premises and threatened to disconnect his gas suoply: consequently, the petitioner immediately filed the present Petition against (i) Sui Southern Gas Company Limited (SSGC) through Chief Manager as Respondent No. 1. (ii) The Chief Engineer, SSGC as Respondent No. 2. (iii) Deputy General Manager (Marketing and Billing), Sui Southern Gas Company as Respondent No. 3 and (iv) Government of Pakistan through Ministry of National Resources, Islamabad, as Respondent No. 4, seeking the following relief:-

"The petitioner, therefore, humbly prayed that demand of Rs. 1,74,826 as arrears by the respondents from the petitioner may kindly be declared illegal, mala fide, baseless, void ab initio, without justification, without lawful authority and without jurisdiction. Because the petitioner had paid all the previous bills issued by the respondents and the petitioner is not in arrears. And the respondent may kindly be restrained from receiving said amount and they may kindly also be restrained from disconnecting the gas supply of the petitioner due to non-payment of said demanded amount, (sic)

1. On 4.8.2000, the Court issued pre-admission Notice to respondents for 8.8.2000. Today, Mr. Abdul Sattar Kazi, Advocate filed power on behalf of Respondents Nos. 1 to 3 and requested for time to file a counter-affidavit/comments to challenge the maintainability of the petition. We asked Mr. Shoaib Shibli, learned Counsel for the petitioner to satisfy the Court as to how the Constitutional petition was maintainable. In reply, he submitted as follows:

(i) Sui Southern Gas Company Limited is owned and controlled by the Government of Pakistan and as such it is a department of the Government of Pakistan. Alternatively, it is a local authority, and therefore, its working and conduct is amenable to the jurisdiction of the High Court under Article 199 of the Constitution.

(ii) Respondents Nos. 1 to 3 being employees of Sui Southern Gas Company are public officers/functionaries whose mala fide action is subject to correction by the High Court under its Constitutional Jurisdiction.

(iii) SSGC letter dated 14.7.2000 demanding arrears of Rs. 1,74,826 is mala fide and liable to be set aside.

1. We asked Mr. Shibli to support his arguments with reference to the relevant provisions of law or by any reported judgment, he submitted that there was substantial law in support of his contentions and Mr. Kazi should be directed to file a counter-affidavit or comments on the petitioner whereafter he would submit the relevant law. We informed him that on 4.8.2000 on his request Pre-admission Notice was issued to the respondents for 8.8.2000 and consequently the matter was fixed for Katcha Peshi today and he should satisfy the Court as to how the Constitutional petition was maintainable as apparently there are several judgments of the superior Courts against the propositions he had advanced. He did not place any law in support of his contentions and asked the Court to decide the petition on the basis of the legal contentions/arguments advanced by him.

2. We have researched the law ourselves and have found several judgments of the superior Courts relating to the issues raised by Mr. Shibli, the learned Counsel for the petitioner, some of which are as follows:-

(i) The contention of Mr. Shibli that SSGC is owned and controlled by the Government of Pakistan and as such, it is a department of the Government is incorrect. Admittedly, SSGC is a public A limited company incorporated under the Companies Act, 1913 (now the Companies Ordinance, 1984) and is quoted on the Karachi, Lahore and Islamabad Stock Exchanges. We1 confronted Mr. Shibli with a copy of the Karachi Stock Exchange Report published in the daily Dawn of 8.8.2000 which quoted the price of shares of SSGC at Rs. 14.80 per share. It is obvious that the shares of SSGC are freely sold and purchased at the various Stock Exchanges of Pakistan. In these circumstances, we fail to understand how Mr. Shibli can argue that SSGC is a department of the Government of Pakistan. On further research we found that the President of Pakistan owns majority shares in SSGC. Even the fact that the majority shares in SSGC are held by the President of Pakistan does not make it a Department of the Government of Pakistan. In this connection, we may mention here that after nationalization of Pakistani Banks in 1974, the entire share capital of all the banks vested in the Government of Pakistan; nevertheless, in the case of Badruddin H. Mawani v. Messrs Commerce Bank Ltd.PLD 1975 Karachi 182 wherein a question arose whether the banks after nationalization under the Banks Nationalization Act, 1974, continued to exist as legal persons, the Honourable High Court of Sindh, after considering the provisions of the Banks Nationalization Act, 1974, observed that the banks continued to exist after nationalization as legal entities independent of the Federal Government though they might be subject to the directions of the Federal Government directly or indirectly through the Banking Council. Again in the case of Darab Shah B. Dalai v. Muslim Commercial Bank, PLD 1977 SC 457, the Honourable Supreme Court of Pakistan held that after the Banks Nationalization Act, 1974, the corporate status of the banks was not affected and their rights and obligations continued to subsist as before. Therefore, SSGC which is a public limited company cannot by any stretch of imagination be regarded as a department of the Government.

(ii) Under Article 199 of the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of an aggrieved party may make an order declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or local authority has been done or taken without lawful authority. It is not the function of the Government of Pakistan to transmit and supply/sell gas to the public. SSGC, a company incorporated under the Companies Ordinance, 1984, which is carrying on the business of transmission and supply/sale of natural gas cannot by any logic be said to be performing functions in connection with the affairs of the Federation or the Province of Sindh.

(iii) Under Section 3(28) of the General Clauses Act, 1897 "local authority" means a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund.

Admittedly, SSGC is a public limited company quoted on the Stock Exchange and has not been entrusted by the Government with the control or management of a municipal or a local fund, n SSGC, therefore, cannot be regarded as a local authority against which a writ can be issued under Article 199 of the Constitution.

(iv) The term "Public Servant" has been defined in Pakistan Penal Code as follows:--

"21. 'Public servant'.--The words 'public servant' denote a person falling under any of the descriptions^ hereinafter following, namely:--

First- Every covenanted servant of the State;

Second— Every Commissioned Officer in the Military, Naval or Air Forces of Pakistan while serving under the Federal Government or any Provincial Government;

Third- Every Judge;

Fourth-- Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth-- Every juryman, assessor, or member of a panchayatassisting a Court of Justice or public servant;

Sixth- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh-- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth- Every Officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to make any survey, assessment or contract on or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the ' pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty;

Tenth- Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town, or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh- Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election."

The argument of Mr. Shibli, learned counsel for the petitioner that the Chief Manager (Respondent No. 1), the Chief Engineer (Respondent No. 2) and the Deputy General Manager (Marketing and Billing) (Respondent No. 3) are public servants/functionaries is not bona fide. These persons cannot by any stretch of imagination be deemed to be public servants as discussed above. It appears that Mr. Shibli learned counsel for the petitioner, while advancing this argument had in mind Section 2-A which has been added in the Service Tribunals Act, 1973, on 10.2.1997 whereby service under any authority, company, corporation or organization owned and controlled by the Federal Government has been declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for purpose of Service Tribunals Act, 1973. The deeming clause was added in the statute to provide a convenient and speedy remedy for the redress of the grievances of employees of companies owned or controlled by the Government of Pakistan e.g., Pakistan Industrial Development Corporation, Karachi Electric Supply Corporation, Nationalized Banks and Sui Southern Gas Company Limited, etc. The amendment does not in any way make such employees civil servants or public functionaries to make them amenable to the writ jurisdiction of the High Court. Mr. Shibli, learned counsel for the petitioner, can only be complimented for his fertile imagination for advancing such an argument.

(v) The argument of Mr. Shibli that SSGC letter dated 14.7.2000 demanding arrears of Rs. 1,74,826 is mala fide and liable to be set aside is not tenable. According to the statements made in the petition by the petitioner himself, the gas meter on physical examination was found defective and running slow by-50% (sic-actual defect was to the extent of 45% only). Consequently, in the circumstances, the demand of SSGC for arrears is justified as the defective meter had been recording lower consumption by 45%.

(vi) Further, the petitioner has alleged that he is a consumer of SSGC through Meter No. 00174485 for the last six years and has been paying the bills regularly. The gas is obviously being supplied under a contract between the parties which lays down the terms and conditions of supply, the rights and obligations of SSGC and the consumer (petitioner) and the circumstances in which the petitioner would have the right to demand supply of gas and SSGC has the right to disconnect the same and consequences of breach of contract committed by either party. In the present case, the petitioner has prayed for declaration that the demand of Rs. 1,74,826 as arrears by SSGC is illegal and mala fide and an injunction to restrain SSGC from disconnecting the gas supply to the petitioner allegedly in hreach of the provisions of the agreement between them. The petitioner is thus, seeking enforcement of obligations arising from the contract between himself and SSGC. It is well established that a party cannot procure enforcement of purely contractual obligations by filing a petition under Article 199 of the Constitution (See M. Muzaffar-ud-Din Industries Ltd. v. Chief Settlement and Rehabilitation Commissioner, 1968 SCMR 1136 and Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh, PLD 1992 Karachi 283). Consequently, this petition is not maintainable and liable to be dismissed in limine.

It is settled law that legal proceedings can be filed by or against natural or legal person only and cannot be filed against official designations or titles. The petitioner has filed the petition against the designations and titles of officers of SSGC who are not legal or natural persons and, therefore, the petition to that extent is bad in form and not maintainable. [Secretary, B & R Government of West Pakistan v. Fazal Ali Khan, PLD 1971 Karachi 625].

The petitioner has also sued the Government of Pakistan through the Ministry of Natural Resources, Islamabad, as Respondent No. 4, but has neither made any allegation nor sought any relief against it in the petition. It appears that the learned Counsel impleaded Government of Pakistan as a party/respondent to overcome any objection that might be raised by the Writ Branch on the maintainability of the petition and thereby justify the petition by misleading the clerks of the Writ Branch. The action of the learned counsel in making the Government of Pakistan Respondent No. 4 is, prima facie, mala fide which act cannot but be disapproved by this Court.

1. It is well-established that an Advocate is an Officer of the Court and is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession and to the public, to ensure that it is achieved. We regret to note that Mr. Shibli, learned counsel for the petitioner failed in his duty by not maintaining the standards expected of an Advocate as an officer of this Court in the Administration of justice by not preparing his brief properly and placing the relevant law before the Court. The petition was fixed for Katcha Peshi and it was his bounden duty to come ready with the facts and law on the legal propositions he was going to advance which he failed to do. Such lapse on the part of the Counsel shows disrespect to the standards of the profession, duty to the Court in the administration of justice and negligence of duty to client.

2. We may add here that wherein Mr. Shibli accepted the brief of his client, petitioners herein, he under took to prepare and file the petition on behalf of his client as a gentleman and an honest advocate. When he charged his fee for professional service he promised his client that he shall draft the petition, research the law and present the arguments to the best of his ability for the benefit of his client at the time of Katcha Peshi and thereafter handle the matter responsibly until its conclusion. He was duty bound to fulfil his obligations to his client In Surah 5. Al-Maida, Ayat 1 the Holy Qur'an ordains:-- "0 you who believe; Fulfil (your) obligations" In Surah 17, Al-Isra, Ayat 34, it is enjoined: "And fulfil (every) covenant."

As a Muslim and as an Advocate, it was obligatory on the part of Mr. Shibli to prepare and present his clients case to the best of his ability when the matter was fixed for Katcha Peshi. From his conduct and the manner in which he argued the case before us, it is evident that he not only committed breach of the Injunctions of the Holy Qur'an but also committed a breach of promise to his client.

1. It would not be out of place to mention here that when an Advocate enters into an agreement with a client to represent him in Court and charges his fee, he contracts with that client to be skilful and careful. It is his duty to fulfil his obligation and undertaking of carrying out extensive research and argue the case to the best of his ability. If he does not do so, he not only violates the Canons of Professional Ethics but is also guilty of \ professional misconduct and if his client suffers injury because of his negligence he would be liable for the loss or injury suffered by his client. In Halsbury's Laws of England, 4th Edition. Volume 44, Paragraph 134 the responsibilities and conduct of counsel is discussed as follows: "135. Liability for negligence.--A solicitor holds himself out to his clients as having adequate skill and knowledge properly to conduct all business that he undertakes, whether contentious or non-contentious. He woves a duty to his client both in contract and in tort, and he may be liable to a third person for the tort of negligence. Where the solicitor is in breach of his, contractual duty to his client or where he fails to use proper care to his client or a third person, where he owes a duty of care to that third person, suffers loss as a result, he is liable in damages even if the claim in negligence is for purely financial loss."

Further, in the case of Bashir Ahmed v. Government of Punjab, 1985 SCMR 333, the Honourable Supreme Court has observed as follows:

"In a case of gross negligence of law or negligence on the part of the counsel, the client has to seek a redress against the counsel...."

The above two authorities have been reproduced by us to show the importance of the standard to skill and conduct which is expected from the Advocates in a civilized society.

1. In view of the above discussion, it is crystal clear that the petition is not maintainable and the counsel should have advised his client not to pursue the same. The petition is patently vexatious to the knowledge of the petitioner's counsel and he should not have filed it even if his client insisted that he should so. A Counsel should never allow himself to be tempted by financial gains to commit a breach of his duty to the Court which has precedence over his duty to the client. It is accordingly dismissed with costs of Rs. 5,000 to be paid by the petitioner's counsel from his pocket to the respondents who have been unnecessarily inconvenienced and harassed and had to engage an Advocate to defend the petition after receipt of notice from the Court. Mr. Abdul Sattar Kazi, learned counsel for Respondents Nos. 1 to 3 states that the costs, instead of being paid to him, may be deposited in the High Court Bar Library for purchase of books. The request made by the Respondents Counsel is commendable and appreciated. Accordingly, Mr. Shibli shall deposit Rs. 5,000 with the concerned officer of the High Court Bar Library and provide a photo copy of the receipt of such deposit to Mr. Kazi within 30 days hereof.

Mr. Shibli shall also provide a photo copy of the receipt to the Additional Registrar of this Court within 30 days. In case of any dereliction by the petitioner's Counsel, the Additional Registrar shall, after notice to Mr. Shibli, bring the matter to the attention of anyone of the members of this Bench.

(AAJS) Petition dismissed.

PLJ 2001 Karachi 443 (DB)

Present:saiyed saeed ashhad, C.J. and sarmad jalal osmani, J.

WAZIR ALI-Petitioner versus

RENT CONTROLLER NO. VIII (EAST), CITY COURTS, KARACHI and 3 others-Respondents

First Rent Appeal No. 869, Constitutional Petition No. D-440 and Miscellaneous Application No. 1653 of 2000, decided on 10.5.2000.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-Ss. 15 & 21-Constitution of Pakistan (1973), Art. 199-Constitutional petition—Maintaibility—Ejectment proceedings—Relationship of landlord and tenant, denied-Tentative rent order was passed by Rent Controller without making inquiry into such relationship between parties-Status-Where Rent Controller neither considered grounds and objections raised by tenant nor satisfied himself about existence of relationship, observations made by Rent Controller were baseless and tentative rent order was unlawful-Such order of Rent Controller could be assailed in appeal under S. 21 of Sindh Rented Premises Ordinance, 1979--Constitutional petition was convected into appeal accordingly, [P. 443 & 444] A & B

1989 SCMR 1892 and PLD 1987 SC 120 ref. 1999 SCMR 394 fol

Kazi Wall Muhammad, Advocate for Petitioner. Date of hearing: 10.5.2000.

order

Saiyed Saeed Ashhad, C.J.--By this Constitutional petition the petitioner has impugned the order passed by the Rent Controller holding that the relationship of landlord and tenant existed. The petitioner, who is the tenant, in his written statement had denied the existence of relationship of landlord and tenant as well as the rate of rent. This necessitated an enquiry by the Rent Controller for determining the existence of relationship of landlord and tenant as unless the relationship of landlord and tenant was established between the aforesaid parties, the Rent Controller could not assume jurisdiction to proceed with the rent case under the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance). The Rent Controller did not enter into any enquiry and without referring to any material on record simply made an observation that relationship of landlord and tenant existed between the parties. The Rent Controller after observing so had unlawfully and without satisfying himself regarding establishment of relationship of landlord and tenant proceeded to make

the tentative rent order. Such observation of the Rent Controller was absolutely baseless as he did not consider the grounds and objections raised by the petitioner/tenant. In the circumstances the Rent Controller had no jurisdiction to pass tentative rent order. The finding with regard to existence of relationship of landlord and tenant being illegal could be impugned in appeal under Section 21 of the Ordinance.

In the cases of (i) Pakistan Burma Shell v. Nasreen Irshad, reported in 1989 SCMR 1892 and (ii) Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema and others reported in PLD 1987 SC 120 it has been held by the Supreme Court that no Constitutional petition lies in respect of any order passed by the Rent Controller exercising jurisdiction under the Rent Laws. However, we may refer to the case of Muhammad Ayub and others v. Dr. Obaidullah and others reported in 1999 SCMR page 394 wherein the Hon'ble Supreme Court pronounced that a revision petition could be treated as a Constitutional petition and vice versa. Placing reliance on the above pronouncement and by way of analogy we are of the view that this Constitutional petition can be treated as an appeal filed under Section 21 of the Ordinance as the same had been filed within the period provided in Section 21 of the Order.

Accordingly, we direct that this Constitutional petition is to be treated as F.R.A. and shall henceforth be placed before & learned Single Judge in accordance with the provisions relating to the F.R.As. Adjourned to a date in office till the next date of hearing the petitioner shall not be ejected from the, premises in dispute.

The petitioner and the office is directed to make the necessary amendments and alteration for effectively treating this Constitutional petition as first rent appeal including payment extra Court-fee, etc.

(AAJS) Order accordingly.

PLJ 2001 Karachi 444

Present: zahid kurban alavi, J.

HABIB SUGAR MILLS LTD. through MANAGER-Petitioner

versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and another-Respondents

Constitutional Petition No. S.-509 of 2000, heard on 22.2.2000.

(i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 8-Act of registration of union is neither mechanical nor automatic-­Registration requires satisfaction on the part of Registrar as on question of compliance of requirements of Industrial Relations Ordinance, 1969- Satisfaction refers to the state of mind—Registration being a conscious act, due satisfaction should be reflected in the act. [P. 449] A

(ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—S. 7(2)-Outsiders under provisions of S. 7(2) of Industrial Relations Ordinance, 1969, should also be in the category of workman-Even employer can from his own Trade Union in his own establishment holding office of President and General Secretary of Union from amongst 25% outsiders' quota.[P. 449] B

(iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—- S. 5-Industrial Relations (Sindh) Rules, 1973, Regln. 3, Form 'A'~ Registration of trade union, application for-Entitlement to such application-Application has to be filed in terms of S. 5 of Industrial Relations Ordinance, 1969 in Form 'A'-Form 'A' under the provisions of Regln. 5, of Industrial Relations (Sindh) Rules, 1973, provides that it is either a Trade Union of workmen or it is a Trade Union of employers.

[P. 449] C

(iv) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—-S. 10-General Clauses Act (X of 1897), S. 21-Registration Certificate-­ Where Registration Certificate has been obtained through misrepresentation, such certificate is liable to be recalled on doctrine of locus poenitentiae. [P.450] D

PLD 1992 SC 207 ref.

(v) Industrial Relations Ordinance, 1969 (XXVIII of 1969)--

....S. 8-Registration Certificate being only a proof that Union has been registered but not a proof that Union has been properly registered-Such Registration Certificate can be challenged. [P. 450] E

1998 PLC 504 and PLD 1968 SC 412 ref.

(vi) Industrial Relations Ordinance, 1969 (XVIII of 1969)--

—- S. 5-Industrial Relations (Sindh) Rules, 1973, Regln. 3, Form 'A'-Dual membership is not permissible under provisions of Regln. 3 of Industrial Relations (Sindh) Rules, 1973. [P. 451] F

(vii) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—S. 13-Registrar Registrar is competent to authorize an officer in writing to perform all or any of his functions.

[P. 452] G

(viii) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—-Ss. 7, 8 & 10-Constitution of Pakistan (1973), Art. 199-Constitutional petition-Thrid trade union was registered on the application of non- workman-Effect-Where General Secretary of disputed union had already been held by Labour Court/Labour Appellate Tribunal and by High Court to be non-workman, such issue could not be re-examined by Registrar of Trade Unions-Registration of disputed union was liable to be cancelled as having been issued by Registrar of Trade Unions in violation of provisions of Industrial Relations Ordinance, 1969, and rules framed thereunder-Order of registration of disputed trade union was set aside in circumstances. [P. 453] H

Mr. Muhammad Abdul Ghani, Advocate for Petitioner. Mr. Ashraf Hussain Rizvi, Advocate for Respondents. Date of hearing: 22.2.2000.

judgment

Briefly the facts of the case are that the petitioner is a Public Limited Company employing 177 permanent workmen. There are 2 unions existing. One union has been certified as a C.B.A. The General Secretary ot Respondent No. 2 was employed as supervisor in the stretching department of the petitioner. He, however, was terminated from service on 26.3.1996. He had challenged his termination under Section 25-A of I.R.O. before the Sindh Labour Court who dismissed the matter observing that he was not a workmen. An appeal was also filed which was also dismissed on the same ground. Being aggrieved against the two findings the same person filed Constitutional Petition No. 1492 of 1999 before this Court. This petition was dismissed in limine on 3.1.2000.

The General Secretary of Respondent No. 2 on 19.8.2000 submitted an application before the Respondent No. 1 for registration of a 3rd union. According to the petitioner once 2 unions are already in existence a 3rd union cannot be registered unless this union has its members not less than l/5th of the total number of workmen employee. According to the petitioner the Registrar without applying his mind especially as regards the credential of the applicant and the list of members supplied in a mechanical manner ordered the registration of the Respondent No. 2 on 5.9.2000. No communication was addressed to the petitioner by the respondent. However, when the petitioner found out he addressed a letter to the Respondent No. 1 and raised objections. The main objection related to the list of members and whether the applicant was a worker. It was pointed out that the 71 persons who were supposed to be the members of the new union out of the total strength of 179 was doubtful as 164 persons were already members of the Azad Labour Union. This was verifiable as the petitioner was deducting monthly union subscription. The Gentlemen whose amounts were deducted had not raised any objection or had not drawn the attention of the employers due to the change of their membership. It was thus, urged to the Registrar that dual membership was not permissible. The Registrar was requested to exercise his jurisdiction under Section 10 of I.R.O. which would ultimately result in cancellation of (the registration of Respondent No. 2 union. According to the petitioner the Registrar has failed to exercise jurisdiction under Section 10. There, being no alternative, efficacious remedy available this petition has been filed with the following prayers:

"That in view of the facts and grounds mentioned hereinabove, it is prayed that this Hon'ble Court be pleased to accept the petition and set aside the impugned order of the Respondent No. 1, Registrar of Trade Unions and be pleased to declare that issuance of the Registration Certificate dated 5.9.2000 was illegal, void ab initio and passed by the Respondent No. 1 in wrongful exercise of his jurisdiction contrary to the provisions of law, denial of natural justice and an abuse of the process of law and is of no legal effect.

That in alternative it is humbly prayed that this Hon'ble Court may be pleased to suspend the operation of the order of registration dated 5.9.2000 of the Respondent No. 2 Union and direct the Respondent No. 1 Registrar of Trade Unions to apply in terms of the provisions of Section 10 of I.R.O. 1969 impleading the petitioner as one of the party alongwith all other registered Trade Unions before the Labour Court for directions for the cancellation of the registration of the Trade Union having been registered contrary to the provisions of law and the rules framed thereunder.

That it is still further prayed in the alternative that this Hon'ble Court may be pleased to set aside the order of Registration dated 5.9.2000 passed by the Respondent No. 1 Registrar of Trade Unions and direct the Respondent No. 1 Registrar of Trade Unions to determine the application for registration of the Union afresh after notice to all the registered Trade Unions in the establishment and the petitioner and to pass appropriate legal order as is permissible in law after hearing the objections of the parties concerned.

It is further prayed that the Hon'ble Court may be pleased to grant such further and/or appropriate relief as the Hon'ble Court may deem fit under the circumstances."

Counter-affidavit has been filed by the Respondent No. 2 who has denied all that has been stated in petition. In fact he has insisted that the Registrar was satisfied and after being satisfied he rightly registered his union. A rejoinder has also been filed. Documents have also been filed by both the sides. Parawise comments have also been filed by the Respondent No. 1 who is the Registrar. Both the sides have argued the matter at length and relied upon various case laws:

They have also filed several document\ which are Supposed to show their respective correct position as regards the membership is concerned. An attempt has been made to try and bring on record as many documents as possible. Possibly the parties have been litigating for a long time. My only objective is to see what has been urged and based upon that to give my findings.

When Habib Supra Mills (Textile Division) Mehnatkash Union (Respondent No. 2) applied for registration no notice was served, no objections were sought for, no affidavits of any nature were filed, no documentary record was collected by the Registrar of Trade Union, no enquiry of any nature was conducted. None has been placed on record by the Registrar nor has the Registrar claimed conducting any enquiry. In fact the Registrar of Trade Union admits that after the registration of the Union they received intimation to the effect that some of the members of the Union have now resigned as members of their earlier Union. The case of Hakim Sons is, therefore, clearly distinguishable. As against the Supreme Court of Pakistan judgment of 1998 PLC relevant observations at page 504 (Para. 5), the Hon'ble Supreme Court has observed that the provisions of Secti-n 7(2) (b) are mandatory in nature and a Trade Union of Workmen cannot be registered by the Registrar unless he is satisfied that conditions laid down therein have been fulfilled by the Union. Under Section 8 of T.R.O. 1969 satisfaction of the Registrar of Trade Union is required. This satisfaction implies proper application of mind. The Registrar cannot act mechanically but must first conduct an inquiry to satisfy himself as to the conditions laid down in Section 7(2) for registration of a Trade Union of workmen. In the case of Essa Cement the Registrar of a Trade Union conducted two separate inquires through his Labour Officer and obtained two separate reports. The Registrar of Trade Union based his decision on these two reports. In fact when the Registrar of Trade Union was not satisfied with the first report he ordered submission/inquiry second report. Thus, the registration in Essa Cement was not effected mechanically but reflected proper application of mind.

In the instant case there is nothing on record to show that Registrar of Trade Unions applied his mind, conducted any enquiry, called for any affidavits, nor issued any notice to any person, neither it has been claimed nor any document has been placed on record. Even the Registrar of Trade Unions has not filed the parawise comments, the minutes of the enquiry if any. It appears that in mechanical manner the registration has been effected which attracts the violation of the guidelines laid down by the Hon'ble Supreme Court in the case of Essa Cement.

It has next been argued by the learned counsel for the petitioner relying on 1992 PLC 23 that neither the employer nor any other Union are to be consulted/informed before the Registrar effects the registration of the Union. There is no cavil to this preposition. Even in 1992 PLC page 23 at page 26 (Para. 4) the Hon'ble High Court have held that the act of registration Union is neither mechanical or automatic. It requires satisfaction on the part of the Registrar as to be observance of the requirement of the Ordinance. This satisfaction refers to state of mind. Registration being a conscious act due satisfaction should be reflected in the act. Registration ought to satisfy the test of objectivity if not it may well be exposed to be scrutiny in exercise of power of judicial review. The General Secretary of the Union who applied for registration of the Union under Regulation 3 need not necessarily be a member of the Union. The position

now taken by the learned counsel is contrary to the earlier position taken at the time of applying for registration. At that time vide Annexure P/8 Mr. Muhammad\ Yousuf Khan filled the membership form of the Union in which in Column 3 he identified his status as that of a worker knowing fully well that he was a non-workman w'.iich was held so by the Labour Court. Labour

Appellate Tribunal and the High Court. The Registrar of Trade Union in his parawise comments in this Hon'ble Court admits that they were not aware of any proceedings of the Labour Court, Labour Appellate Tribunal and the High Court. Now the learned counsel has taken a contrary plea that Muhammad Yousuf meets the requirement of being on office-bearer of the

Union on the basis of Section 7(l)(d) of I.R.O. 1969. This provision only says that 75% of the office-bearers of a Trade Union shall be from amongst the workmen actually engaged or employed in the industry, 25% according to the learned counsel for the Union can be outsiders. According to him this 25% can be any persons even if they are non-workmen. Such an interpretation

would be contrary to the essence and spirit of the law. Some rational interpretation will be that 25% outsiders should also necessarily be in the category of workman though not employed in the employment where the Union is applying for registration. This interpretation will be in consonance with the essence and spirit of the law. Section 7(2) (accused) of I.R.O. 1969

provides a Trade Union of Workmen shall not be entitled to registration under I.R.O. 1969 unless all its members are workmen actually engaged or employed in the industry with which a Trade Union is connected. There is no room under the circumstances for a non-workman being member or holding office in the Union even under 25% Quota for "outsiders". These

outsiders should also be in the category of workmen or else there is nothing to prevent even employer from forming his own Union in his own establishment holding office of President and General Secretary of the Union from amongst 25% outsiders quota and thus, frustrating the very essence and spirit of I.R.O. 1969. Regulation 3 of the Industrial Relations (Sindh)

Rules, 1973 provides that application for registration of a trade union in terms of Section 5 of I.R.O., 1969 shall be in form "A". Form A specially provides that it is either a Trade Union of workmen or it is a Trade Union of employers. There cannot be a combination of a Trade Union both of workmen and employees. This interpretation fits in the definition of the JJ term "Trade Union" as defined in Section 2 (xxvi) which provides that a Trade Union means combination of workman or employers. Section 3 of I.R.O. 1969 provides that workers shall have right to establish a joint I Association of their own choosing. Section 3(b) of I.R.O. 1969 provides that £ employer shall have right to establish their own Association. Thus, there has to he a Trade Union exclusively of employers. In the instant case admittedly Muhammad Yousuf Khan, General Secretary of the Union has been declared to be an employer by all Courts. Apparently the General Secretary applied in terms of Section 5 read with Rule 3 and in Form 'A' of Industrial Relations (Sindh) Rules, 1973 posing himself as a workman without disclosing that he was a non-workman. The Registrar of Trade Unions without conducting any enquiry as to the status of the applicant and without obtaining any affidavit accepted the form and ordered the registration. Even on the doctrine of locus poenitentia as laid down in PLD 1992 SC 207 the Registration Certificate issued by the Registrar of Trade Union should be liable to be recalled having been obtained though misrepresentation. Registration Certificate is only a proof that the Union has been registered. It is not a proof that the Union has been properly registered. Such a registration certificate can be challenged. In PLD 1968 SC 412, the Supreme Court of Pakistan held that the certificate of incorporation by the Registrar of companies registering/incorporating a company can be challenged in the Court of law being contrary to law. In the absence, therefore, of any material placed on record by the Registrar of Trade Unions showing that the parameters laid down by the Supreme Court of Pakistan in 1998 PLC 500 as to registration of the Union in a mechanical manner or as to the subjective satisfaction of the Registrar of Trade Unions having been achieved, the jurisdiction of this Court can be invoked and directions can be given by. this Court to the Registrar of Trade Unions after setting aside the earlier orders for registration of the Union to conduct an enquiiy as held by the Supreme Court of Pakistan in 1998 PLC 500 (relevant observations at page 505 para. 8). Although the Registrar under Section 8 was not duty bound to seek assistance either from the employer or other unions nothing prevents Registrar of Trade Unions from seeking assistance either from the employer concerned or other Unions specially and all the more when in the earlier round Muhammad Yousuf Khan, General Secretary and other office-bearers of the Union misled and misguided the Registrar of Trade Unions in not disclosing their proper status and or outcome of the litigation declaring Muhammad Yousuf-Khan not to be a workman. The decisions of this Court in 1992 PLC 23, is distinguishable as in that case the Court's attention was not drawn to Regulation 3(1) Form 'A' of Industrial Relations (Sindh) Rules, 1973 wherein the General Secretary was required to make statement whilst applying for registration to the effect that the members of applying Trade Union. Apparently Rule 4(1) Form "C" to the Industrial Relations (Sindh) Rules, 1973 has also not been looked into. This is the Form for the application for membership and each individual member applying for membership of the Union is required to give a declaration to the effect that he is not a member of any other trade union in the establishment to which the union relates. From the reading of the Regulations and the forms it is clear that dual membership is not permissible in law.

1. In the case reported in 1992 PLC 7, two Unions were already registered and the third union had applied for registration. When the 3rd union applied for registration, the Registrar of Trade Unions called for information to verify dual membership of the union as required under Section 3-A of I.R.O. 1969, and to check l/5th membership as provided for in Section 7(2)(b) of I.R.O. 1969. The Division Bench of High Court thereafter observed at page 83 of the judgment reported in 1992 PLC that under Section 7(2) a Trade Union of workmen shall not have been entitled to registration under this Ordinance unless all its members are workmen, actually engaged or employed in the establishment, group of establishment or injustly with which the trade union is connected unless it has as its members not less than l/5th of the total number of workmen employed in such establishment, group of establishments or, industry as the case may be. The Hon'ble Division Bench of the High Court at page 84 further observed that the very first sentence of the provision of Section 8(1) of the Ordinance makes the satisfaction of the Registrar necessary in accordance with the requirement of this Ordinance. If a Trade Union violates any of the provisions of the Ordinance it cannot claim the registration. The Division Bench of the High Court observed that the Industrial Relations Ordinance uses the expression "being satisfied". Satisfaction according to the Division Bench is essentially a condition of the mind. There should be substantial ground for conclusion on the material available with the Registrar that the Trade Union has as its members not less than l/5th of the total number of members of the workmen employed in the establishment. In that case it was observed that since the Registrar of Trade Union granted the registration certificate to the 3rd Union without applying his mind the petition was allowed after referring to an earlier unreported decision of the Division Bench of the Karachi High Court in Constitutional Petition No. D-1161 of . 1989 in the case ofHabib Bank Limited Employees Federation v. Full Bench N.I.R.C. It was declared that the certificate of registration was issued by the Registrar of Trade Unions without lawful authority and of no legal effect and the matter was remanded back to the Registrar of Trade Unions to consider and dispose of all objections raised by the parties concerned. It is even otherwise a cardinal principle of law and well-settled by the Hon'ble Supreme Court of Pakistan in 1993 SCMR 1533 at 1542 that when express statutory power is conferred on a public functionary, it should not be pushed to far, for such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably. Excessive use of power is itself unlawful. Similarly in yet another Division Bench case Kamal Ahmed Khan v. National Bank of Pakistan 1991 PLC 834 at 836, it was observed after referring to 1992 SCMR 259 that whether a litigant draws the attention of the Court to it or not it is the duty of the Court to apply the correct law.

2. The learned counsel for the respondent has referred to 1983 PLC 171, to the effect that it is discretionary with the Registrar to declare as to whether he can move the Labour Court for cancellation of the registration of the union. This proposition of law is contrary to the principle well-settled by the Supreme Court of Pakistan in the case of Independent Newspaper Corporation 1993 SCMR 1533 at page 1542. It was observed that when a statutory power is conferred on a public functionary he should exercise it justly and reasonably because excess and wrong use of such a power itself is unlawful. It is, therefore, not open to the Registrar of Trade Unions to adopt an altogether autocratic and despotic approach insisting that he will not "apply for the cancellation of the Registration of the Union and not even give any reason for the same. In this case the Registrar of Trade Unions has filed his parawise comments. No reasons whatsoever have been given by him in his grounds as to why he did not apply for the cancellation of the Registration of the Union. He has not even chosen to place on record any document to show as to what enquiry and in what form or manner it was conducted so that the Court be in a position to conclude that substantial grounds for registration existed with the Registrar of Trade Unions and there was subjective satisfaction on the part of the Registrar of Trade Unions. Reference has been made by the counsel for the respondent to 1986 PLC 535. Even in this judgment the Court has held that it is the duty of the Registrar under Section 8 to see that all the requirements of I.R.O. 1969 has been completed and that there is no contravention of any of the relevant provisions of the Ordinance. Although the Registrar is competent to authorize any officer in writing to perform all or any of his functions, in the parawise comments the Registrar of Trade Unions has nowhere mentioned or claimed that any of such functions was performed on his behalf by any other person.

3. Reference is also made to yet another reported decision of Court in the case of B.P. Industries (Put) Ltd. Employees Union v. Registrar of Trade Unions Sindh and 3 others reported in 1992 PLC 662 wherein it was held that where there are already two registered Trade Unions and a third Union applies for registration it is imperative on the part of the Registrar of Trade Unions to hold a proper enquiry to find out whether the third union has as its members not less than l/5th of the total number of workers employed in the establishment. This having been not done by the Registrar of Trade Unions the petition was allowed and the granting of the certificate and the subsequent holding of the referendum was held without lawful authority.

4. Finally reliance was also placed on a decision given by Mr. Justice S.A. Sarwana in an unreported C.P. No. 93 of 1993 titled.

5. Gandhara Nissan Diesal Ltd. v. Registrar of Trade Unions. In this case out of 10 office-bsarers 4 persons were non-workmen. The Registrar for Trade Unions nonetheless registered the Union. In Constitutional petition it was held that in terms of Section 7(1) of I.R.O. 1969 a Trade Union is not entitled to registration unless the Constitution provides that 75% of office executives are amongst the workmen and four officers of the Executive Committee do not fall within the definition of the term workman. It was the duty of the Registrar of Trade Unions to hold the enquiry and ascertain his fact. Since this was not done the registration certificate was ordered to be set aside and the petition was allowed and the Registrar of Trade Unions was directed to hold the enquiry afresh.

In the instant case the General Secretary of the Union has already been held by the Labour Court/Labour Appellate Tribunal and by the Division Bench of the High Court to be non-workman. This issue cannot now be re-examined by the Registrar of Trade Unions. Under the circumstances the, registration of the Union is liable to be cancelled as having been issued by the Registrar of Trade Unions in violation of the provisions of I.R.O. 1969 and the rules framed thereunder.

In view of the facts and grounds mentioned hereinabove, the petition is allowed, the impugned order of the registration of the Union is ordered to be set aside. A direction is given to the Registrar of Trade Union to apply in terms of the Provisions of Section 10 I.R.O. before the Labour Court for the issuance of notice to all the parties concerned including the other. (A.P.) Petition allowed.

PLJ 2001 Lahore 1

Present: MUHAMMAD NAWAZ ABBASI, J. M/s. SHADMAN COTTON MILLS LIMJTED-Petitioner

versus

FEDERATION OF PAKISTAN through the SECRETARY, MINISTRY OF

FINANCE, FEDERAL SECRETARIAT, ISLAMABAD

& another-Respondents

W.P. No. 505 of 1997, decided on 31.7.2000.

(i) Constitution of Pakistan, 1973--

—- Arts. 25 & 199-Government power of taxation-Basic rule for exercise of discretion and reasonable classification—Scope of judicial review— Governemtn under its legislative authority while enjoying plenary power of taxation is empowered to grant exemption in its discretion through a reasonable classification-Basic rule for its exercise is that all person placed in similar circumstances must be treated alike and classification must be made on reasonable grounds in a particular set of circumstances, but in any case, it must not offend the spirit of Art 25 of Constitution-Following the rule of equal protection of law, person equally placed must be treated alike in the matter of privileges and liabilities-Court has only to judge the reasonableness in the light of conditions for such classification and essential qualification required under law. [P. 12] A

(ii) Constitution of Pakistan, 1973--

—Art 199-Representative Body or Government-Legislative functions of--Judicial interference into-Scope of—Ordinarily judicial nterference into the functions of legislation of representative body or Government is not proper, but as the legislature is presumed not to legislate a law manifestly causing injustice or abuses of the jurisdiction of legislation, therefore in such circumstances, Courts have the exclusive power to examine the validity of such exercise of jurisdiction. [P. 21] F

(iii) Constitution of Pakistan, 1973--

—-Art. 25-Classification of Power Projects-Object of power policy-Whether any change in such policy would operate prospectively or retrospectively-Question of-Purpose of power policy was to meet the shortage of energy in country by establishing power generation projects in private sector and provide electricity to people at low rate-In purpose of this policy, investors in private sectors with attractions of certain financial relaxation imported machinery and equipment for establishment of power projects-­subsequent change in this policy on the basis of classification of power projects with reference to execution of agreement with WAPDA and KESC or Government as the case may be, would be ineffective to existing rights made available to said importers under original policy/notification, who had not signed such agreement, and this classification would ojily be relevant under the policy from the date of change and not retrospectively.

[Pp. 14 & 21] B & G

1999 SCMR 412; 1993 SCMR 1905; 1997 SCMR 641; PLD 1993 SC 341 ref. 1992 SCMR 1652; 1998 SCMR 1404; PLD 1971 SC 252 (306) rel

(iv) Customs Act, 1969 (IV of 1969)-

—-Ss. 18(2) & 19~Regulatory duty-Imposition & exemption of-Regulatory duty being transitory in nature is always imposed subject o imitation contained in Section 18(2)(3)(4) of the Act and existence of conditions essential for such levy, and Government can continue its imposition through a fresh notification after expiry of earlier notification, if such conditions still exist-In absence of specific mention of regulatory duty in an exemption notification issued under Section 19 of the Act, the customs duty would not include regulatory duty leviable under Section 18(2)-- Exemption from regulatory duty cannot be claimed in general under notification giving such exemption beyond financial year during which it is enforced. [Pp. 18 & 21] C & H

(v) Exemption-

—Customs duty, Sales tax or any other tax-Exemption from payment of~ Grant & withdrawal of-Principle of estoppel-Its application-Notification which purports to impair an existing right or imposes new liability or an obligation cannot operate retrospectively, whereas notification which confers benefits can operate retrospectively, but no one can claim exemption from payment of customs duty, sales tax or any other tax as of right without legal sanction as it's grant being discretionary-Authorty granting exemption is also empowered to withdraw it prospectively-This general principle is always subject to exception that if exemption was granted subject to existence of certain conditions and its withdrawal was made conditional, Government on fulfilling such condition would be justified to withdraw it and thus, no estoppel can be placed against law or legislative authority for grant of exemption or withdrawal thereof.

[Pp. 20 & 21] E & I

1992 SCMR 1652 rel. (vi) Sales Tax"

—Exemption in sale tax-Notification of-Duration of-Notification through which exemption is granted remains operative so long it exists-Its withdrawal would not operate retrospectively and exemption already made would remain available till the time, it is not taken away.

[Pp. 18&211D&G

M/s. Raja Muhammad Akram and Salman Akram Raja, Advocates for Petitioner.

M/s, Farhat Nawaz Lodhi and Raja Bashir Ahmad Kiani, Advocates for Respondents.

Date of hearing: 19.5.2000.

judgment

Through this common judgment, I propose to dispose of Writ Petitions Nos. 982 of 1995, 983 of 1995, 1008 of 1995, 1197 of 1995, 1725 of 1995, 70 of 1996, 1223 of 1996, 1731 of 1996, 94 of 1997, 505 of 1997, 506 of 1997, 509 of 1997, 510 of 1997, 511 of 1997, 946 of 1997 and 2305 of 1997.

1. The petitioners through the above writ petitions having questioned the legality of levy of customs duty, sales tax, regulatory duty and the services charges on the import of power generation Plants in pursuance of the power policy (PP) framed by the Government of Pakistan, in 1994, have sought declaration that exemption of customs duty, sales tax and such other taxes on the import of Power Generation Plants given under Notification No. SRO 279<l)/94 dated 2.4.1994 was still available and that the subsequent notifications bearing SRO No. 584(l)/95 dated 1.7.1995, SRO No. 585XD/95 dated 1.7.1995, SRO No. 426(l)/96 dated 13.6.1999 SRO No. 478CD/96 dated 13.6.1996, SRO No. 560(l)/96 dated 1.7.1996 and SRO No. 1198(l)/96 dated 22.10,1996 relating to the 2% service charges under Section 18-B of the Customs Act, 1969, though which the concessions in the payment of such duties arid taxes were withdrawn or reduced be declared to be ineffective quathe power generation Plants imported under the above said SRO dated 2,4.1994.

3, The Government from time to time issued separate notifications under the Customs Act, 1969 and under Sales Tax Act, 1990 for whole or partial exemption of the customs duty and sale tax on the import of power generation Plants and parts to be used in such Plants which are not locally manxifactured. The Government initially issued notification SRO No. 279 (l)/94 dated 2.4.1994 through which the total customs duly and regulatory duty leviable under Section 18(1) and 18(2) of the Customs Act, 1969, and sales tax under Section 13(1) of the Sales Act, 1990, on the import of machinery and the equipment for the use of power generation Projects were exempted. .Later through notification SRO No. 584(l)/95 dated 1.7.1995, the Projects which have, not signed the power purchase agreement with WAPDA and K.E.S.C. were excluded from the purview of above notifications and through SRO No. 585(1)/95 dated 1.7.1995, the exemption on the customs duty available under SRO No. 279(l)/94 dated 2.4.1994 to the Projects which did not sign such agreements was reduced only in excess of 10% leviable under the first Schedule to the Customs Act, 1969. Through SRO No. 773 (l)/95 dated 1.8.1995, the agreement with WAPDA and K.E.S.C. was substituted with implementation agreement with the Government. The exemption on the sales tax given through S.R.O. dated 2.4.1994 was omitted througli SRO No. 426(l)/96 dated 13.6.1996. The Government in exercise of powers under Section 13 (2)(a) of Sales Tax Act 1990, read with Item No. 39 to the 6th Schedule of the said Act through SRO 230(l)/97 dated 29.3.1997 and SRO No. 582 (l)/98 dated 12,8.1998 notified the description of power generating machinery and Plant for the purpose of sales tax. Under SRO No. 279(l)/94 dated. 2.4,1994, exemption of customs duty and sales tax was allowed on the import, of machinery till 30.3.1995 if not manufactured locally and under SRO No. 978(l)/95 dated 4.10.1995 beyond 25% of the customs duty and other taxes were exempted on the goods which were imported under SRO No. 484/(l)92 dated 14.5.1992. These writ petitions involving the question relating to the exemption of customs duty and sales tax and withdrawal or reduction in the percentage in such exemptions were admitted to consider the following questions :—

(a) Whether the general exemptions initially given by the Government oa the Power Plant Projects in the payment of customs duties and sales tax could be withdrawn retrospectively through subsequent notification ?

Cb) Whether the pre-shipment 2% service charges under Section 18-B of the Customs Act, 1969 were not ultra-vires to law and

Were chargeable.

(c) Whether the exemption on customs duty would ipso facto be applicable to the regulatory duty.

1. The customs duty is leviable under Section 18(1) of the Customs Act, 1969, and regulatoiy duty is imposed under Section 18(2) of the said Act whereas sales tax is imposed under Section 13 of the Sales Tax Act 1990. The date of filing Bill of Entry and the establishment of letter of credit respectively are the dates of eibargsability of customs duty and Sales Tax. The Pre-shipment Service Charges at the rate of 20% were imposed underSection 18-B of the Customs Act, 1969.

2. The Government of Pakistan having introduced a policy of establishment of private power generation Projects with the incentive of grant of exemption from certain taxes and duties initially allowed oa the import of Plant's machinery and equipment, which were not being manufactured in Pakistan for setting up such power Projects free of customs duties and sales tax under otification SRO No. 279 (l)/94 dated 2nd April 1: H4 later, it was decided that such exemption on customs duty would only be available to the Projects which signed power purchase agreement with 'WAPDA and KESC and consequently Notification SRO No. 584(l)/95 dated 1.7,1995 was accordingly issued and thus in this way, pow«r Plants were classified into two categories Le. (a) the Projects which signed the agreement with WAPDA and K.E.S.C.; and (b) the power Projects, which were established without entering into such agreements. The power Plants could be farther identified with the following description :--

(i) The power Plants of the capacity of generating the power for sale; asd

(u) The power generation Projects for self-consumption in an Industrial Unit. Under the original scheme, all power Projects without any distinction could avail the benefit of Notification SRO No. 279(l)/94 dated 2.4.1994. However, later through Notification SRO No. 585 (D/95 issued on 1st July 1995, the power Projects of category (ii) supra were allowed to avail such exemption only in excess of 10% of customs duty.

1. The learned counsel for the petitioners in this background raised the following contentions in support of this petition :--

(a) That notwithstanding 'the condition of execution of power purchase agreement with WAPDA and KESC, the power Plants established under the Power generation policy of Government were equally entitled to the benefit of exemption in the customs duties a.nd sales tax, without any distinction and the discriminatory treatment being meted out by the respondents with Power Plants which have not signed the power purchase agreement with WAPDA and KESC was violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

(b) That the withdrawal of exemption of the Power Plants which have not signed the power purchase agreement and grant of exemption on payment of sale tax and customs duty on the import of machinery and equipment for the Projects which have signed such agreement was unfair.

(c) That notwithstanding the withdrawal of concession in the payment of sales tax on the machinery and the equipment through a subsequent Notification SRO No. 426(l)/96 dated 13.6.1996, in case of opening the letter of credit within the target date, the exemption in the sales tax given under SRO No. 279(l)/94 dated 2.4.1994 would be available.

(d) That the respondent while extending incentives of concession in the payment of customs duties and sales tax introduced ower policy and through a legitimate expectation of continuation of such concessions motivated the private sectors for setting up power generation Projects, therefore, the subsequent notification through which the exemption made available under SRO No. 279CD/94 dated 2.4.1994 were withdrawn being violative of principle of promissory estoppel were ineffective to the rights of the petitioners.

(e) That the financial commitments made by the government were not supposed to be altered to the disadvantage of the beneficiaries under the protection of Economic Reforms Act, 1992, and that the power policy falling within the ambit of aid Act, the commitments made thereunder were to be given effect without any change.

(f) That the classification of the Power Projects made by the respondent for the purpose of grant of exemption being unreasonable was violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

(g) That the exemption made available to the Investors for the establishment of Power Plants under SRO No. 279(1 )/94 dated 2.4.1994 could not be subsequently taken away retrospectively.

(h) That the imposition of regulatory duty under Section 18(2) of the Customs Act, 1969, was not legal and retrospectively operation of Section 31-A of the Customs Act, 1969 which was made part of the Act through a subsequent amendment was unconstitutional.

(i) That the service charges under Section 18-8 of the Customs Act 1969, is not legal.

1. Learned counsel appearing on behalf of the respondents contended that the exemption in the payment of customs duties and taxes u always granted in exercise of discretion by the Government under the special circumstances and that neither such exemptions can be claimed as of right nor the withdrawal of the same can be resisted under the law, therefore, the subsequently notifications through which the exemptions allowed under SRO No. 279(l)/94 dated 2.4.1994 were withdrawn were not questionable. The learned counsel, however, have frankly conceded that the pre shipment service charges having declared ultra vires by the apex Court in Collector of Customs and others vs. Ravi Spinning Ltd. and others (1999 S.C.M.R. 412) were not chargeable but still the judgment having no retrospective effect, the payment of such charges levied under Section 19 of the Customs Act, 1969 was not refundable.

2. I have heard the learned counsel for the parties and considered their arguments in support of their respective contentions. The imposition of service charges under Section 19 of the Customs Act, 1969 has been declared illegal by the apex Court in the above-referred judgment and the question relating to the refund of services charges is not subject matter of the present petitions, therefore, only the issue relating to the withdrawal of exemption of sales tax, customs duty and the regulatory duty is required to be examined. Since the provisions of "Section 31-A of the Customs Act, 1969, have been declared by the apex Court as a valid piece of legislation prospectively in M/s. M.Y. Electronic Industries Lid. through Manager and another vs. Government of Pakistan through Secretary Finance and others (1998 S.C.M.R. 1404) and Molasses Trading and Export (Put.) Limited vs. Federation of Pakistan and others (1993 SCMR 1905), therefore, the same needs no debate. SRO No. 279(l)/94 dated 2.4.1994 under which the exemption of sales tax and customs duty leviable under First Schedule to the Customs Act 1969, on the import of machinery and equipment for setting up or for balancing, modernization and extension of power generation was allowed would be read as under:

Notification No. S.R.O. 279(l)/94, dated 2nd April, 1994.--!n exercise of the powers conferred by Section 19 of the Customs Act, 1969 (IV of 1969), sub-section (1) of Section 13 of the Sales Tax Act, 1990, and sub-section (2) of Section 5 of the Finance Act, 1985, the Federal Government is pleased to direct that the machinery and equipment, including coal mining equipment as listed in S.R.O. 525(1)/89S dated 3rd June, 1989, not manufactured locally, shall be exempt from the whole of the Customs duty leviable under the First Schedule to the Customs Act, 1969, regulatory duties leviable under sub-section (2) of Section 18 of the Customs Act, 1969, Sales Tax and Iqra surcharge chargeable thereon, if imported for setting up or for balancing, modernization and extension of power generation i.e, oil gas, hydel, coal wind and wave energy projects, including under construction projects subject to the conditions set out below, namely:-

(1) The importer shall, at the time of import submit a detailed packing list of machinery and equipment specified below in Explanation (i), (ii), (iii), (iv) & (b) and shall also make a written declaration on the bill of entry to the effect that the machinery and equipment and spares have been imported for the aforesaid projects.

(2) The importer shall furnish an indemnity bond in the form set out herein below to the extent of customs duly, regulatory duties, sales tax, Iqra surcharge exempted under tins Notification. The said bond shall not be discharged till the expiry of one year after the commissioning of the project indicated in the sanction or approval letter of the concerned Ministry, and after due verification by the Assistant Collector of Customs and Central Excise in whose jurisdiction the project is located. Such certificate of verification would clearly stated that machinery and equipment imported for the purposes specified in the bills of entry have been duly installed or the machinery and equipment imported temporarily has been duly re-exported.

(3) In the event of non-production of such certificate by the imported to the Collector of Customs shall enforce the indemnity bond and proceed to recover Government dues under Section 202 of the Customs Act, 1969, and the rules made thereunder.

(4) Spares and maintenance parts not locally manufactured required for the project after its commissioning would be subject to customs duty at the rate of twenty per cent ad vol.Explan.ation.~For the purpose of this notification, "machinery and equipment" shall mean :--

(i) machinery and equipment operated by power of any description, such as is used in the generation of power, (ii) apparatus and appliances, including metering and testing apparatus and appliances specially adapted for use in conjunction with machinery and equipment specified in item (i) above;(iii) mechanical and electrical controls and transmission gear adopted for use in or with item (i) above;

(iv) all machinery and equipment imported temporarily for the construction, erection, installation and end-completion of the project including specified equipment for hydle and thermal power and specialized vehicles (4 & 4 non-luxury), but excluding passenger vehicles; and

(v) component parts of machinery and equipment as specified in item (i), (ii), (iii) and (iv) above, identifiable as for use in or with such machinery imported for the project and equipment, including spares for purposes of the project".

1. Under the above notification, the importers in addition to a declaration that the machinery and the equipment mentioned in the Bill of Entry were being imported for the power Projects were also required to furnish an indemnity bond and a certificate as mentioned therein. The spare parts required for maintenance of such Projects, which were not being manufactured in the country, could also be imported subject to the payment of customs duty at the rate of twenty per cent ad valorem. Thus the only condition to avail the benefit under this notification was that the machinery and equipment being imported would be used for power Projects without any requirement of execution of power purchase agreement with WAPDA and KESC or the Government, as the case may be. The benefit given under the above notification remained available without any distinction till its amendment through a subsequent Notification S.R.O. 685 (D/95, dated 1st of July, 1995, which was as under:

"Notification S.R.O. No. 585<l)/95, dated 1st July, 1995.~In exercise of the powers conferred by Section 19 of the Customs Act, 1969 (IV of 1969), the Federal Government is pleased to direct that the machinery and equipment, including coal mining equipment, nor manufactured locally, shall be exempt from customs duty in excess of 10% leviable under the First Schedule to the same Act, if imported for setting up or for balancing modernization, and extension of power generation through oil, gas, coal wind and wave energy projects, including under construction projects, subject to the following conditions, namely :--

(1) The importer shall, at the time of import submit a detailed packing list of machinery and equipment specified below in Explanation (i), (ii), (iii), (iv) and (v) and shall also make a written declaration on the bill of entry to the effect that the machinery and equipment and spares have been imported for the aforesaid projects;

(2) The import shall furnish an indemnity bond in the form set out herein below to the extent of customs duty exempted under this Notification. The said bond shall not be discharged till the production of installation certificate from the Assistant Collector which shall be produced within one year from the date of importation of plant and machinery and after due verification by the Assistant Collector of Customs and Central Excise in whose jurisdiction the project is located. Such certificate of verification would clearly state that the machinery and equipment imported for the purposes specified in the bills of entry have been duly installed or the machinery and equipment imported temporarily has been duly re-exported;

(3) In the even of non-production of such certificate by the importer the Collector of Customs shall enforce the idemenity bond and proceed to recovery government dues under Section 202 of the Customs Act, 1969, and the rules made thereunder, and

(4) Spares and maintenance parts not locally manufactured required for the project after its commissioning would be subject to customs duty at the rate of twenty per cent ad vaL Explanation.-for the purpose of the Notification, "machinery and equipment" shall mean-

(i) machinery and equipment operated by power of any description, such as is used in the generation of power;

(ii) apparatus and appliances, including metering and testing apparatus and appliances specially adapted for use in conjunction with machinery and equipment specified in Explanation (i) above;

(iii) machinery and electrical controls and transmissions gear adapted for use in or with Explanation (i) above;

(iv) all machinery and equipment imported temporarily for the construction, erection, installation and end-completion of the project including specific equipments for thermal power and specialized vehicles (4x4 non-luxury), but excluding passenger vehicles; and

(v) component parts of machinery and equipment as specified in Explanation (i), (ii), (iii) and (iv) above, identifiable as for use in or wjth such machinery imported for the project and equipment, including spares for purposes of the project". 10. Under the above notification, the total exemption of customs duty on the import of machinery and equipment for setting up or use in the power generation leviable under the First Schedule to the Customs Act 1969, made available to Power Projects was withdrawn to the extent of Power Projects which have not fulfilled the condition of execution of power purchase agreement imposed through Notification SRO No. 584(1 )/95 dated 1.7.1995 and such Projects were allowed exemption only in excess of 10% of the total duty leviable. The Federal Government further through another Notification SRO No. 773 (D/95 dated 1st August 1995, substituted condition of signing power purchase agreement with implementation agreement with the Government Notification SRO No. 584(1 )/95 dated 1.7.1995 and SRO No. 773(l)/95 dated 1.8.1995 are as under:--

"Notification SRO No, 584(1 )/95.~In exercise of the powers conferred by Section 19 of the Customs Act, 1969, (IV of 1969), and sub-section (1) of Section 13 of the Sales Tax Act, 1990, the Federal Government is pleased to direct that the following further amendments shall be made in this Ministry's Notification No. SRO No. 279(l)/94 dated the 2nd April, 1994, namely :-

In the aforesaid Notification, in the preamble after the word "projects", occurring for the second time, the commas, words and letters", but excluding those which have not signed power purchase agreements with WAPDA of KESC," shall be inserted".

Notification SRO No. 773(1 )/95 dated 1st August, 1995.--In exercise of the powers conferred by Section 19 of the Customs Act 1969 (IV of 1969), and sub-section (1) of Section 13 of the Sales Tax Act, 1990, the Federal Government is pleased to direct that the following further amendments shall be made in this Ministry's Notification No. SRO 279(l)/94 dated the 2nd April, 1994, namely :--

In the aforesaid Notification in the preamble, for the commas, words and letters ", but excluding those which have not signed power purchase agreements with WAPDA and KESC," the words and comma "which entered into an implementation agreement with the Government of Pakistan," shall be substituted".

The Government also decided to withdraw the exemption on sales tax and, therefore, Notification S.R.O. No. 279(l)/94 dated 2.4.1994 was further amended through a Notification S.R.O. 426(l)/96 dated 13th June 1996, which is re-produced as under :--

Notification S.R.O. 426(1 )/96.--In exercise of the powers conferred by Section 19 of the Customs Act, 1969 (IV of 1969), and sub­section (1) of Section 13 of the Sales Tax Act, 1990, the Federal Government is pleased to direct that the following further amendments shall be made in this Ministry's Notification S.R.O. No. 279(l)/94 dated the 2nd April, 1994, namely :--

In the aforesaid Notification,--

(1) in the preamble,--

(i) The words, brackets, figures and comma "and sub-section (1) of Section 13 of the Sales Tax Act, 1990," shall be omitted;

(ii) the words "and sales tax" shall be omitted;

(2) in condition (2), the words "and sales tax" shall be omitted; and

(3) in the Form of Idemnity Bond,-

(i) in the second paragraph, the words "and sales tax" shall be omitted; and

(ii) in the forth paragraph, the words "and sales tax", occurring twice shall be omitted".

1. The contention raised by the learned counsel for the customs Department that the Government under its legislative authority while enjoying plenary power of taxation is also empowered to grant exemption in its discretion through a reasonable classification and the Court has only to Judge the reasonableness in'the light of the conditions for such classification and the essential qualification required under law is not disputed but the exercise of power of discretion and classification must not offend the principle of equality as embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The exercise of discretion by the Government in s\ich matters in favour of a particular class or group of person is always subject to the fulfillment of essential condition and the requirements of the general principle of equality before law, The basic rule for the exercise of such discretion and reasonable classification is that ail persons placed in similar circumstaaces must be treated alike and the reasoxsable classification must be based on reasonable grounds in a particular set of circumstances, but the same ia any case must not offend the spirit of Article 25 of the Constitution of Mamie Republic of Pakistan, 1973. Following the rule of equal protection of law, person equally placed must be treated alike in the matter of privileges and liabilities. Reference may be made to the case of 'Army Welfare Sugar Mills Ltd., and others vs. Federation of Pakistan and others (1992 S.C.M.R. 1652) and Messrs Gadoon Textile Mills and others vs. WAPDA and others (199? S.C.M.R. 641). The apex Court in Government of Baluchistan through Additional Chief Secretary vs. Aziz Ullah Memon and others (P.L.D. 1993 Supreme Court 341) has laid down the following principle of equality clause under Article 25 of the Constitution of Islamic Republic of Pakistan 1973 --

(i) that equal protection of law does not envisages that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be found on reasonable distinction or reasonable basis;

(iii) that different laws can be validly be enacted for different sexes, persons in different age group, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is aroitrarily and is not founded on any rational basis is not classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all person equally placed be treated alike both in privilege conferred and liabilities imposed;

(vii) that in order to make a classification reasonable it should be based—

(a) on an intelligible differentia which distinguished person or things that are grouped together from those who havebeen left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

Although class legislation has been forbidden, it permits reasonable classification for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguished persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the objects sought to be achieved by the act. There should a nexus between the classification and the objects of the act This principle symbolizes those persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in the violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrarily power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violated of Articles 8 and 25".

1. Thus, the classification of power Projects on the basis of condition of execution of an agreement with WAPDA and KESC having no nexus with the objection of power policy would not be reasonable to undo the effect of Notification SRO No. 279CD/94 dated 2.4.1994 quathe power projects which have not signed such agreements in the light of the principle of equality before law. The purpose of power policy was to meet the shortage of energy in the country by establishing power generation Projects in the private sector and provide the electricity to the people at low rate. In pursuance of this policy, the investors in the private sectors with attractions of certain financial relaxation imported the machinery and equipment for the establishment of power Projects under the said policy. Therefore,notwithstanding the subsequent change in the policy through legislative measures in the form of notification, the right already accrued under the original Notification SRO No. 279/(l)/94 dated 2.4.1994 in favour of such importers would remain available to them till the date of withdrawal of the same. Therefore, the classification of the power Projects with reference to the execution of an agreement with WAPDA and KESC or the Government, as the case maybe, would be ineffective to the existing rights made available to the importers of machinery and equipment for establishing power Projects under the original notification. The classification of the Projects for the purpose of distribution of the energy to the consumers though public functionaries under the direct control of the Government in public interest and for collecting the public revenue may not be objectionable, but this classification would only be relevant under the policy from the date of change and not retrospectively. It was held in Rafi-ud-Din and 6 others us. The Chief Settlement and Rehabilitation Commissioner and 2 others (P.L.D. 1971 Supreme Court 252 at page 306) as under :--

"It is well settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall .pply if it is a mere rule of procedure or if it has been applied retrospective to pending proceedings".

1. Since the condition of execution of power purchase agreement by the importers of equipment and machinery for power generation Projects was not made part of the Notification SRO No. 279 (l)/94 dated 2.4.1994, therefore, the exemption from payment of customs duly, sales tax, regulatory duty and Iqra charges subject to the fulfillment of the conditions contained in the above notification would be available to all those importers of machinery and equipment for power Plant under the power policy of Government, who have filed bill of entry or opened the letter of credit before 1.7.1995 on which date an amendment in S.R.O. No. 279(l)/94 dated 2.4.1994 was made through Notification SRO No. 584(l)/95 dated 1.7.1995 without any discrimination as the amending notification would not be operated retrospectively. Thus, the exemptions allowed under Notification SRO No. 279(l)/94 dated 2.4.1994 would be available to all such importers till 1.7.1995 without any discrimination and after the amendment the said notification in its amended form would take effect from the date of its amendment. The apex Court in M.Y. Electronics Industries (Put.) Ltd., through Manager and others. Vs. Government of Pakistan through Secretary Finance Islamabad and others (1998 S.C.M.R. 1404) held as under :--

"The effect of insertion of Section 31-A in the Act is that when exemption from payment of customs duly granted by the government under Section 19 of the Act is withdrawn, then notwithstanding the fact that while exemption was enforced, the party had opened a letter of credit or concluded the contract with the foreign suppliers, the amount of custc™\: duty payable on the goods will be that which may have become payable as a result of withdrawal of the exemption. It is, therefore, quite clear that the right to claim exemption from customs duty under a notification issued under Section 19 of the Act remains available to a party only as long as the exemption notification holds the field. However, as soon as the exemption notification is withdrawn, the payment of customs duty on the imported articles is to be determined in accordance with the provisions of Section 30 of the Act. The contention of the appellant that Section 31-A was inserted in the Act with the sole object of doing away with the effect of the judgment of this Court in Al-Samrez's case and, therefore, the exemptions granted by the government after insertion of Section 31-A are not controlled by the Section 31-A does not appear to be correct. Section 31-A was inserted in the Act by Section 5(2) of Finance Ordinance II of 1988 which provided that Section 31-A shall be deemed always to have been so inserted in the Act, meaning thereby that it was given retrospective effect from the date the Customs Act, 1969, came into effect. There is nothing in the language of Section 31-A (ibid), to justify the interpretawa that this section applied only to the cases covered by the judgment of this Court in Al-Samrez's case or to those cases only, which did not acquire the character of passed and closed transaction on the date of insertion of Section 31-A in the Act The language of Section 31-A (ibid) is wide enough to include within its ambit all those cases where exemptions have been withdrawn after the insertion of Section 31-A in the Act as well.

At this stage, we may also dispose of another connected argument of Mr. Aitzaz Ahsan relating to interpretation of Section 31-A. Mr. Aitzaz Ahsan contended that 'Surcharge' and 'Iqra surcharge' were levied under Section 2 of the Finance Ordinance 1982, and Section '5' of the Finance Act, 1985, respectively, Section 31-A as originally enacted amongst others, provided that the rate of duty applicable to any goods shall also include the amount of duty imposed under Section 2 of Finance Ordinance 1982, and Section 5 of Finance Act, 1985. However, by Section 2(4) of the Finance Act of 1991, the word "Section 2 of the Finance Ordinance (XI of 1982) and Section 5 of the Finance Act, 1985 (I of 1985) and the anti-dumping or countervailing duty imposed under the Import of Goods (Anti­dumping and Countervailing Duties Ordinance, 1983, (III of 1983)" appearing in Section 31-A were omitted, with the result the withdrawal of Surcharge and Iqra Surcharge through the impugned notifications could not be defended on the strength of Section 31-A of the Act. In reply to the above argument of Mr. Aitzaz Ahsan, Mr.S.M. Zafar, the learned counsel for the respondents contended that on the date the two notifications withdrawing the exemptions from payment of Surcharge and Iqra Surcharge were issued by the Government, the words "Section 2 of the Finance Ordinance, 1982, and Section 5 of the Finance Act, 1985" were very much part of Section 31-A of the Act and as such the withdrawal of 'Surcharge' and 'Iqra surcharge" were fully covered and protected by Section 31-A of Act, The contention of Mr. S.M. Zafar appears to be well founded. The notification withdrawing the exemptions of Surcharge and Iqbal Surcharge were issued by the government on 9th of May 1991 while the Finance Act of 1991, received the assent of the President of Pakistan on 20.6.1991 and it was published in the Gazette of Pakistan, extraordinary, part-I of 27.6.1991. Therefore, on the date the notifications withdrawing the exemptions from payment of 'surcharge' and 'Iqra surcharge' were issued Section 31-A also covered the case of withdrawal of exemptions from payment of Surcharge and Iqra Surcharge. We, therefore, find no force in the above submissions of learned counsel for the appellants.

The next contention of appellants in these appeals is that the observations of the High Court in the impugned judgment is fully established the allegations of appellants that the government held out promises and inducements to the Industrialists by offering them exemptions from payment of various duties and taxes in case they established industries in the under-developed area of GATE. The appellants having acted on the inducements offered by the government invested huge amounts in establishing various Industrial Units in GATE. It is accordingly contended that in these circumstances, the government could not be allowed to withdraw these exemptions on the principle of promissory estoppel.

The doctrine of promissory estoppel is founded on equity. It arises when a person acting on the representation by the government or a person competent to represent on behalf of the government changes his position to his detriment, takes a decisive stop, enters into a binding contract or incur a liability. In such case, the government will not be allowed to withdraw from its promise or representation. However, a general promises without any time limitation cannot bind the government for all times to come. The enforcement of doctrine of promissory estoppel against the government or a government functionary competent to represent on behalf of the government is, however, subject to the foDowing limitations as held by this Court in the case of Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 S.C.M.R. 1652):

"(i) The doctrine of promissory estoppel cannot be invoked against the legislature or the laws framed by it because the legislature

cannot, make a representation;

(ii) promissory estoppel cannot be invoked for directing the doing of thing which was against the law when the representation was made or the promise held out;

(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;

(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducements so as to irrevocably commit the property or the reputation of the party invoking it; and

(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."

In the cases before us, the appellants are invoking the doctrine of promissory estoppel against the government on the basis of alleged inducements and representations contained in the exemption Notification No. 517 (l)/89 dated 3.6.1989, No. 480(l)/88 dated 26.6.1988 and 48KD/88 dated 26.6.1988. These notifications do not contain any time limitation during which these exemptions were to remain operative. The appellants have failed to bring on record any material to establish that the government either before or after issuance of these notifications made any representation to the Industries in GAIE that these exemptions will remain operative for any specified period. In the absence of period having been specified in these notifications regarding their validity, the exemptions under these notifications could be availed by the appellants only during the period these notifications were operative. These exemptions ceased ,to be available from the date the above notifications were superseded or withdrawn. The learned counsel for the appellants have, however, argued that as no time limit was mentioned in the above notifications, they were entitled to reasonable notice by the government before withdrawal of these exemptions. In support of their contention, they have relied on the case of Gadoon Textile Mills u. WAPDA (1997 S.C.M.R. 641)"

1. In addition to the grievance of the petitioners relating to the changes made in the exemption of customs duty and sales tax, they have also challenged the levy of regulatory duty under Section 18(2) of the Customs Act, 1969, as well as constitutionality of Sections 31-A and 18-B of the Customs Act 1969, and Section 3(l)(a)(b) of the Sales Tax Act, 1990. The apex Court subject to the limitations contained in Section 18(3) and (4) of the Customs Act 1969, declared the provisions of Section 18(2) of the ibid. Act valid and held that the regulatory duty would remain enforce from the date of publication of notification till the end of financial year in which it is issued. The regulatory duty being transitory in nature is always imposed subject to the limitations contained in Section 18(2)(3)(4) of the Customs Act, 1969, and also the existence of condition essential for such levy. The government being entitled to exercise the discretion of levying the regulatory duty can continue the imposition of said duty through a fresh notification on the expiry of earlier notification if such condition still exist. Thus the exemption from the payment of customs duty would not by itself exempt the payment of regulatory duty unless it is specifically provided through a notification under Section 19 of the Customs Act 1969, and such notification cannot ipso facto apply to the duty not already enforced. However, an exemption notification in addition to its application to the exiting charge of customs duty can also cover future levy of such duty if it is so provided in the notification. The customs duty is levied under Section 18(1) of the Customs Act, 1969, whereas the regulatory duty is imposed under Section 18(2) of the said Act and, therefore, in absence of specific mention of regulatory duty in an exemption notification issued under Section 19 of the Customs Act 1969, the customs duty would not include the regulatory duty leviable under Section 18(2) of the Customs Act, 1969. The exemption in general terms under Section 19 would only apply to the customs duty leviable under Section 18(1) of the Customs Act 1969, unless exemption from the regulatory duty is specifically mentioned in the said notification. In nutshell, the exemption from the regulator)1 duty cannot be claimed in general under a notification giving such exemption beyond the financial year, during which Jit is enforced.

2. The next question relates to the withdrawal of exemption in the payment of sales tax through notification S.R.O. No.. No. 426(l)/96 dated 13.6.1996. The notification through which the exemption is granted remains operative so long it exists and in ease the exemption is withdrawn, the notification of withdrawal of exemption being prospective in its operation would not operate retrospectively and the exemption already made through an earlier notification would remain available till the time, the same is not taken away. Consequently, the exemption in the sales tax given through Notification S.R.O. No. 279(l)/94 would be given to the petitioners indiscriminately till the same was not withdrawn through a subsequent notification and thus the exemption in payment of sales tax on the import of machinery and equipment which were imported within the target date would be available under SILO, No. 279 (D/94 dated 2.4.1994 and would continue till the issuance of notification of withdrawal. The notification through which the exemptions were allowed was neither issued for a specific time nor the power of the government to withdraw the benefits given under the said notification was restricted by any condition and, therefore, the consignment relating to the contract already entered into for the import of machinery and equipment of power generation Projects, in which the letters of credit were established before the target date would be unconditionally entitled to avail the exemption from the payment of sales tax under S.R.O. No. 279(l)/94.

The apex Court in 1998 S.C.M.R. 1404 at page 1441 further held as under :—

"The next question which arises for consideration in this behalf is, what is the effect of withdrawal of notification dated 9.5.1991 on the vested rights which the appellants acquired under notification dated 3.6.1989 with regard to the exemption from payment of sales tax on raw material and components imported for exclusive manufacturers of goods by recognized industrial units located in GAIE. We have already held that the notification dated 4.6.1989 issued by the Government was not time bound. It is, therefore, quite clear that the exemption from payment of sales tax under the notification dated 3.6.1989 was available till such time the notification was withdrawn by the Government. The withdrawal of notification is dated 9.5.1991. Therefore, the withdrawal of exemptions from payment of sales tax would be applicable only from 9.5.1991. This withdrawal, however, did not effect the rights of the appellants to claim exemptions from payment of sales tax in respect of import of raw material and components for which contracts were already entered into and letters of credit were established in favour of foreign suppliers before the date of withdrawal of notification. The notification issued on 9.5.1991 withdrawing the exemption, however, itself provides that the notification will not affect the raw material and components imported against irrevocable letter of credit opened on or before 8.5.1991. The power to issue a notification included the power to withdraw the said notification and exercise of this power by the Government is unconditional as held by this Court in Azizullah Industries Ltd. 's case, supra. Therefore, to the extent of exercise of that power by the Government, no exemption could be taken. The learned counsel for the appellants has, however, contended that as the appellants have made huge investments in the industries on the representation of the Government, the Government could not withdraw the exemption from payment of sales tax abruptly. In our view, the contention of the learned counsel for the appellants cannot succeed for the reason that the notification dated 5.6.1989 issued by the Government granting exemption from payment of sales tax was not for any specific period. In the absence of period having been specified in the above notification, the power of the Government to withdraw the notification was not circumscribed by any other condition in these circumstances, the effect of withdrawal of the exemption granted by the Government would be that all contracts entered into for import of raw material and components before the date of withdrawal of the exemption and all those consignments in respect whereof irrevocable letters of credit were established before the date of withdrawal of the notification would continue to enjoy exemption from payment of sales tax. Beyond that the appellants will not be entitled to any farther concession in respect of exemption from payment of sales tax", 16. In the light of the legal position as discussed above notwithstanding the execution of power purchase agreement with WAPDA and KESC or government as the case may, the machinery and the power Plants imported under the Power Policy within the target date would be entitled to all exemptions made available under SRO No. 279(l)/94 dated 2.4.1994 indiscriminately till the withdrawal of the said exemptions. This is settled principle that a notification, with purports to impair an existing right or imposes new liability or an obligation cannot operate retrospectively, whereas the notification which confers benefits can operate retrospectively but no one can claim exemption from the payment of customs duty, sales tax or any other tax as of right without legal sanction as the grant of exemption being discretionary, the authority which enjoys the power to grant exemption is also empowered to withdraw such exemption subject to the condition that the exemption, if already allowed would not be withdrawn from the previous date. This general principle is always subject to the £ exception that if the exemption was granted subject to the existence of certain conditions and withdrawal of exemption was also made conditional, the government while fulfilling such condition would be justified in withdrawing the exemption and thus no estoppel can be pleaded against the law or the legislative power of the Government for the grant of exemption or withdrawal thereof. The apex Court in Messrs Army Welfare Sugar Mills Ltd. and others vs. Federation of Pakistan and others (1992 S.C.M.R. 1652) held as under :--

"It may be mentioned that by now, it is well-settled proposition of law obtaining in Pakistan that if an exemption from payment of excise duty, or any other tax, has been granted for a specified period on certain conditions and if a person fulfils those conditions, he acquires a vested right, he cannot be denied the exemption before the expiry of the specified period, through an executive instrument like a notification, but he can be denied bis vested right by a legislative provisions, like Section 31-A, which has been incorporated in the Customs Act iu 1988 nullifying the effect of the judgment of tills Court in the case of Al-Shamrez Enterprises (supra) as has been held by the author of the above judgment, Zaffar Hussain Mirza, J., in the recent unreported majority judgment dated 24th September, 1991, in Civil Appeals Nos. 915-K to 918-K all of 1990 (Molasses Trading and Exports (Put.) Ltd. v. Federation of Pakistan and others.

It is, therefore, evident that the doctrine of promissory estoppel is available in Pakistan against the Government and its functionaries, subject to intcr-alia limitations highlighted by one of us, Shafiur Rahman, J., in the case of Pakistan v. Salahuddin (supra). Howpver, if r-npgnt.'! had passed ob the additional burden of the excise duty after the two impugned SROs were issued, they are not entitled to press into service the doctrine of promissory estoppel and it will be inequitable to deny the State excise duty on the excess quantity of sugar referred to here-in-above, in terms of Section 3-C of the Act. We may observe that doctrine of promissory estoppel has been evolved by the Courts as an equitable doctrine with the object to pre-empt suffering of any loss by a promise and was not designed or intended to provide a windfall profit to him, though Bhagwati, J, in the case of Motilal Padampat Sugar Mills (supra) had held that it was not necessary in order to attract applicability of doctrine of promissory estoppel, that the promisee, acting in reliance on the promise should suffer any detriment, but this view was contrary to the Indian Supreme Court's earlier view and also to the subsequent view taken by Bhagwati, as C.J., in the case of Union of India u. Godfrey Philips India Ltd. (supra)".

1. The judicial interference into the functions of legislation of a representative Body or the Government, as the case may, ordinarily is not proper but at the same time, legislature is presumed not to legislate a law manifestly causing injustice or abuses of the jurisdiction of legislation, therefore, in such circumstances, the Courts have the exclusive powers to examine the validity of such exercise of jurisdiction. The nutshell result of the above discussion is that the exercise of discretion or the grant of exemptions in customs duty, regulatory duty and sales tax as well as withdrawal of such exemptions being subject to certain conditions must not be discriminatory and consequently in the light of the principle of prospective application of the notification the petitioners shall be entitled to get the benefit of SRO No. 279(l)/94 dated 2.4.1994 for the period during which it held the field in its original form quathe imports made before the date of its amendment. Consequently, it is held :—

(a) That the notification withdrawing exemptions from payment of customs duty and sales tax would not operate etrospectively and all exemptions would be available indiscriminately to the petitioners on the import of machinery and equipment for power generation Projects under the policy under Notification SRO No. 279(l)/94 dated 2.4.1994 till it was amended on 1.7.1995.

(b) The regulatory duty being recoverable in addition to the customs duty only on the specified financial year in which it is issued, the exemption of such duty in absence of a specific H notification would not more be available at the expiry of financial year.

(c) Since the notification of withdrawal of exemptions in customs duties and sales tax would not operate etrospectively, therefore, the importers would be entitled to claim refund of the payments made in connection with such duties and taxes which were not chargeable on the date of issue of notification of withdrawal. These writ petitions are accordingly disposed of in the above terms with no order as to costs.

(S.A.K.M.) Disposed of accordingly.

PLJ 2001 Lahore 22 (DB)

Present: nasim sikandar and jawwad S. khawaja, J J.

M/s. KOHINOOR INDUSTRIES, LAHORE-Petitioner

versus COMMISSIONER OF SALES TAX, LAHORE-Respondent

C.T.R. No. 26 of 1978, heard on 26.9.2000.

Income Tax Act, 1922 (XI of 1922)--

—S. 10(2), Second proviso-Sales Tax Act, 1951, S. 17(l)--Tribunal-decision of-Reference against-Whether tribunal was justified in disallowing proportionate interest relating to borrowing capital-Question of-While framing assessments for two years involved, viz. 1967-68 & 1968-69, Assessing Officer made disallowance of interest claimed as expense under Section 10 of Income Tax Act, 1922 after founding that it had been paid on money borrowed to replenish funds diverted to Tax Free Units- Held : Mere fact that borrowing in respect of which interest paid was claimed as an expense was made before introduction of proviso in year 1967 did not make its application retrospective—Held Further : Burden to prove that borrowing was not made to replenish funds delivered to Tax Free Units was certainly on assessee, which it failed to establish-Said proviso did not create any new liability, rather it says that certain expense will not be allowed if some conditions stated therein were answered—According to findings of Revenue and ribunal, these requirement were available, therefore, disallowance was rightly made to assessee during two years under review-Question answered in affirmative. [Pp. 24 & 25] A, B, C & D

1986 (55) Tax-122 ditfg.

Mr. Imtiaz Javed Hashmi, Advocate for Petitioner. Mr. Muhammad Ilyas Khan, Advocate for Respondent. Date of hearing : 26.9.2000.

judgment

Nasim Sikandar, J.-At the instance of the assessee, a Private Ltd. Co., engaged in manufacturing of Textile Sugar and Chemicals etc. the Lahore Bench of the Income Tax Appellate Tribunal has framed following questions of law for our opinion which are stated to have arisen out of their order dated 11.6.1974.

QUESTIONS

(i) Whether in the facts and circumstances of the case the Tribunal was justified in disallowing the proportionate interest relating to borrowed capital.

(ii) Whether the 2nd proviso to Section 10(2)(iii) of the Income Tax Act as introduced by the Finance Act, 1967 with effect from 1st of July, 1967 is applicable to the interest payable on borrowings made by the applicant before 1st of July, 1967.

1. While framing assessments for the two years involved, viz 1967- 68 and 1968-69, the Assessing Officer made a disallowance of interest claimed as an expense under Section 10 of the Late Income Act of 1922. It was found as a fact that the interest claimed as expense had been paid on money borrowed to replenish the funds diverted to Tax Free Units. Reference is this regard was made to second proviso to Section 10(2) of the late Act of 1922 which at the relevant time read as under :--

"Provided further that no allowance shall be made under this clause in any case for so much of the interest as relates to the capital borrowed to replenish the cash or any other asset or assets transferred to a newly set up industrial undertaking or to an expansion of an existing industrial undertaking whose income, profits and gains have been exempted under Section 15-BB notwithstanding the fact that such newly set up industrial undertaking or such expansion of an existing industrial undertaking is a branch of a subsidiary."

1. In the first round the matter was remanded by Income Tax Tribunal for certain factual inquiries. However, since the Assessing Officer repeated the disallowance the assessee again approached the Tribunal. It was contended that the investments in Tax Free Unit namely United Chemicals Limited from 1961 onward were made from the sources available with the assessee and that this position had all along been accepted by the Revenue till the immediate proceeding year and as a result thereof interest on borrowed capital was allowed. Before the Tribunal it was further contended that all investments were made in the Tax ree Unit by 31.12.1963 and that neither any fresh borrowing was incurred nor during the period under assessment any fund was diverted to the Tax Free Unit Rather it was claimed that the statutory- Tax Free period of four years having already gone, no disallowance of interest could be made. Therefore, it was argued that these units having become Taxable, the disallowance of the interest was totally unjustified.

2. However, the learned Tribunal disagreed. In their opinion, the appellant transferred the capital to the tune of Rs. 3,25,27,396/- to Tax Free Unit and therefore, had to resort to borrowing money to that extent in order to run its own business. Further that since the second proviso to Section 10(2)(HI) came on the statute book for the first time in the year 1967, the allowing of interest in earlier years was immaterial. According to them allowing interest in the previous years could not stand in the way of Assessing Officer to disallow it in the two years after introduction of said proviso. The Tribunal also rejected the contention that the roviso placed a bar on allowing of the interest only in respect of the capital that was borrowed to replenish the short fall from the enforcement of the proviso onwards. Accordingly, the contention that the Assessing Officer had given retrospective effect to the proviso was rejected. Mr. Imtiaz Javed Hashmi learned counsel for the petitioner has repeated the arguments earlier put-forth before the Tribunal. Also relies heavily upon a reported judgment of the Supreme Court of Pakistan in re : Commission of Income Tax, Lahore vs. Sheikh Muhammad Ismael & Co. Lyallpur cited as 1986 (53) Tax 122 to contend that the disallowance of the kind could not have been made. Also states that the learned Income Tax Tribunal recorded certain findings of facts with regard to the ctualborrowing and the funds diverted to Tax Free Unit which were not based upon the record.

3. Mr. Muhammad flyas Khan learned counsel for the Revenue supports the disallowance as well as the reasons given by the Tribunal while maintaining the same.

4. Taking the contention with regard to the alleged retrospectively of the afore-said proviso first, we find that the submissions made in this regard are necessarily mis-conceived. Mere fact that the borrowing in respect of which the interest paid was claimed as an expense was made before the introduction of the said proviso does not make its application retrospective. The Assessee claimed an expense in the two years under review which, according to the proviso, could not be allowed in as much as diversion of funds to Tax Free Units and necessitated the borrowings. The findings of fact so recorded by the Assessing Officer and then by the learned Tribunal cannot be ruled upon while considering a reference application. However, the burden to prove that the borrowing was not made to replenish the short fall in working capital was certainly on the Assessee. However, no evidence of the kind appears to have ever been brought on record. Therefore, in absence of any solid reason to the contrary, neither the Assessing Officer not the Tribunal could record a different findings.

5. The reported judgment relied upon at the bar is clearly distinguishable. The Assessing Officer in that case isallowed the expense earlier paid by the Assessee as interest on borrowed capital. The Assessing Officer was of the view that the petitioner Company having advanced interest free load to one of its Directors was not in the need of borrowing for its business and therefore, the interest could not be allowed. That view was disapproved by their Lordships of the Supreme Court of Pakistan. The facts in the present case are however different in as much as admittedly the borrowing had been made and the assesses failed to establish that it was not to replenish the funds diverted to Tax Free Units. It is also not disputed that the said diversion and borrowing has been consecutive in point of time. All the requirements for application of the proviso in the facts and circumstances of the case being available the case of the Assessee was certainly hit by the mis-chief by the proviso. Also it was rightly found by the Tribunal that allowing of interest before the introduction of the proviso in 1967 was not material nor did it estop the department from invoking the proviso against the claim of interest made in the assessment years in question. The language of the proviso does not support the contention of the Assessee that it was only prospective and was meant to hit the replenishment of funds diverted to Tax Free Unit after its introduction. The learned Tribunal for valid reasons and arguments found that the proviso as reproduced above was applicable to all claims of interest made after its introduction and that the time and juncture of incurring of borrowing was not relevant. Also the reliance of the learned counsel for the Assessee at (1995) 71 Tax 48 re. Even-Shine vs. Commissioner of Income Tax is impertinent. In that case a Division Bench of Karachi High Court concluded that explanation added to S. 4(1) of the repealed Income Tax Act, 1922 through Finance Act of 1976 was a substantive provision and therefore, could not be enforced retrospectively. From various judgments interpretting addition of an explanation to an existing provision in a statute, the learned Division Bench concluded that the explanation in question created a new liability for Assessee Companies and that nothing further could be spelt out therefrom to indicate that the legislature intended to give it retrospective Operation. On the other hand, as observed earlier, the proviso under discussion did not create any new liability. It proceeded to say that a certain expense will not be allowed if some conditions stated therein were answered. According to the findings of fact recorded by the Revenue and by the Tribunal, these requirements were available in the case of the Assessee. Therefore, the disallowance as provided for in the proviso was rightly made during the two years under review.

6. That being so, both questions are answered in the affirmative.

7. The Registrar of this Court shall send a copy of this judgment under this signature and the seal or the Court to the oncerned Bench of the Income Tax Appellate Tribunal.

(S.A.K.M.) Reference answered in affirmative.

PLJ 2001 Lahore 26

Present: MUHAMMAD NAWAZ ABBASI, J.

IKRAM-UL-HAQ-Petitioner

versus

PROVINCE OF PUNJAB through SECRETARY, HOUSING & PHYSICAL

PLANNING DEPARTMENT, LAHORE & 7 others-Respondents

W.P. No. 938 of 1999, decided on 4.7.2000.

Cantonment Act, 1924 (II of 924)-

—S. 181(2)--Constitutioii of Pakistan, (1973), Arts. 23 & 24-Open plot-­Raising construction on-Prohibition of-Challenge to—Whether Cantonment Board without being owner of land in cantonment area can prohibits thereon erection of building-Question of-From Housing & Physical Planning Department, petitioner purchased in open auction plot --After payment of full sale price and execution of registered agreement, department delivered him its possession and approved its site-plan for construction of residential house, but since said plot was located in area adjacent to Army House and residents of senior members of Defence Services, therefore, Respondents restrained him from raising construction on plot due to security reasons-Challege to—Held : Under Art. 23 of Constitution, it is the right of every citizen to acquire, hold and dispose of property in any part of Pakistan, subject to any reasonable restrictions imposed by law in public interest, but at the same time, private property of a person can be taken by Government in public interest on payment of compensation as provided under Article 24 thereof-Held Further : Since said plot was located within the limits of Cantonment Board, and no building in cantonment area could be erected without its permission as provided under Chapter XI of Cantonment Act, 1924, therefore, Cantonment Board without being owner of land could in such sensitive cases prohibit erection of a building in exercise of its power under Section 181(1) of the Act-Erection of building in this sensitive area being permanent source of insecurity to senior members of Defence Service could be prevented for public purpose-In pursuance of agreement arrived at between the parties, petitioner surrendered his proprietary rights in said plot on returning him by Department principal amount with 12,1/2% mark-up within 3 months, failing which he shall be entitled to recover it through process of law-Petition disposed of accordingly.

[Pp. 32 & 33] A & B

Mr. Tauhid-ud-Rehman,Advocate for Petitioner.

Sardar Muhammad Ghazi,Advocate/Legal Advisor, Cantonment Board, Rawalpindi.

Lt. Col. Iqhal Hashmi,Assistant Judge Advocate-General, for Ministry of Defence.

Raja Iftikhar Ahmad Jauaid, Standing Counsel.

Raja Saeed Akram, Assistant Advocate-General, with Muhammad Saeed, Deputy Director, Housing & Physical Planning, Rawalpindi.

Date of hearing : 4.7.2000.

order

The present Writ Petition Bearing No. 938/99 and Writ Petitions Nos. 939/99 and 884/99 involving common question of law and facts are proposed to be disposed of through this single judgment.

1. The petitioners namely Ikram-ul-Haq, Khalil Ahmad Khan and Dr. Ehsan-ul-Haq, being purchasee of residential plots of the size of one Kanal each in Block-C, Area Development Scheme (old Central Jail), Khyban-e-Muhammad Ali Jinnak, in the open auction from Housing and Physical Planning Department, Government of the Punjab, filed the present writ petitions against the Province of the Punjab through Secretary, Housing and Physical Planning Department, Government of the Punjab and seven others including the Secretary, Ministry of Defence and President, Cantonment Board, Rawalpindi.

2. The grievance of the petitioners is that they having purchased the residential plots measuring one Kanal each in the above scheme in open auction have paid full consideration of their respective plots to the Housing and Physical Planning Department, Government of the Punjab and in consequence thereto, the department on execution of a registered agreement delivered possession of the plots and also approved site-plans for the construction of the residential houses but since the site was located in the area adjacent to the Army House and residents of senior members of defence Services, therefore, Respondents Nos. 6 to 8 have restrained them from raising construction on the plots allotted to them due to the security reasons. The petitioners have sought a direction to the said respondents not to interfere in their possession or restrain them from raising construction.

3. Lt. Col. Iqbal Hashmi, A.J.A.G. representative of Respondents Nos. 6 and 7 while appearing before this Court on 3.7.2000 stated that no doubt the land in question belonged to the Provincial Government which was purchased by the petitioners in open auction, but the same beingsituated in the most sensitive area of the Cantonment, Rawalpindi, could not be allowed to be utilized for construction of a residential colony. He added that the proposed Area Development Scheme was being established adjacent to the Army House and the residences of the senior members of Defence Service and if the construction of houses by the petitioners would be allowed, it would be a permanent source of insecurity to the Army House. He with reference to the correspondence made on the subject (a) letter dated 11.12.1997 of QMG's Branch G.H.Q., Rawalpindi, sent to the Commissioner, Rawalpindi Division, Rawalpindi; (b) letter dated 17.8.1998 of Director General of Intelligence, I.S.I. Islamabad, and (c) letter dated 15.7.1999 addressed to the Chief Minister of Punjab, by the Secretary, Ministry of Defence, Islamabad, submitted that the matter was taken up with the concerned authorities much before the auction of plots not to establish a Housing Colony in the area with an offer to the concerned quarters in the Government of the Punjab for exchange of this land with the land of Ministry of Defence situated in Dhoke Syedan (left west curtain Redoubt), Rawalpindi, and such other sites namely (1) Nougazi camping ground, (2) Mandara and (3) Gujjar Khan, to accommodate the allottees to the land in question. It was further proposed that the area should be converted into a Park. The contents of the letters dated 11.12.1997, 17.8.1998 and 15.7.1999 are as under :--

Letter dated 11.12.1997.

"Subject-Security/Environmental Aspects-Senior Officers Colony at Golf Road, Rawalpindi.

1. Gold Road, Rawalpindi Cantonment houses residences of Chairman Joint Chiefs of Staff Committee and Chief of the Army Staff. In addition a member of General Officers are residing in the locality. GOR Colony is also part of this area.

2. A vacant space between the National Park Road and Golf Road adjoins the residential area. Reportedly 10 marlas plots have been carved in this area by the Housing and Physical Planning Department (Punjab). The mushrooming of such a colony is likely to bring undesirable people in the area, which could pose a security threat at some stage and have adverse environmental effects.

3. To overcome the above anomaly, it is strongly recommended that the subject area be kept open to serve as a "Lung Space" for which a beautiful Park would serve the dual purpose e.g. security as well as environmental.

4. Your indulgence and cooperation in the matter would be much appreciated".

Sd/-Brig, Muhammad Humayun Khan".

Letter dated 17.8.1998

"Subject:-Security/Environmental Aspects-Senior Officers Colony at Golf Road, Rawalpindi.

1. Reportedly Housing and Physical Planning Department of Punjab is planning to launch a colony comprising of 10 Marias plots in the vacant space between the National Park Road and Golf Club Road, Rawalpinidi Cantonment.

2. This area of the Cantonment houses residences of Chairman Joint Chiefs of Staff Committee/Chief of the Army Staff. In addition, a number of other serving and retired Generals Officers are residing in the close vicinity. GOR colony is also part of this area. The mushrooming of the proposed colony through open auction by Housing and Physical Department of Punjab/Local Administration in this area is likely to pose a serious security threat to this sensitive locality, and will also create adverse environmental effects. It may be mentioned here that sometimes earlier the Rawalpindi Chamber of Commerce and Industries wanted to build a complex at the site but was disallowed for the same reasons.

3. It is, therefore, requested that the subject area be kept open and converted into" a Park which could serve a dual purpose i.e.security as well as environment uplift.

For your kind consideration/action deemed appropriate please".

Sd/-

Major General Shujaat Ali Khan" Letter dated 15.7.1999.

"I wish to seek your personal indulgence in an important matter concerning the Khayaban-e-M.A. Jinnah Area Development Scheme, Old Central Jail, Rawalpindi.

1. A sketch of the area is enclosed and may please be glanced through. As could be seen, part of Old Central Jail Area (Block-A) has been converted into Jinnah Park and Block-B is being used for Police Lines. A small piece of land measuring 11.27 area (Block-C) recoi ded in the Revenue Record of the Government of the Punjab is reportedly planned to be divided into residential plots by theProvincial Housing and Physical Planning Department.

2. In close proximity of Block-C, residences of senior military officers, including Chairman JCSC and COAS, are located. It is elt that conversion of Block-C into a small sized residential colony could pose a security hazard. Moreover, the area is too small for a housing colony and may have related environmental effects. I would like to propose, as also requested by GHQ that the Revenue Department Punjab may be directed to transfer the said land to the Federal Government and place the same under the management of the Rawalpindi Cantonment Board (RGB) in the Ministry of Defence for the purpose of a public Park. Pending formal transfer of land, the management of this land may be transferred to RGB.

3. I may add that transfer/exchange of land between Federal and Provincial Governments is a routine affair. If desired, ederal/ Defence land of equivalent value can be given in lieu of this laud.

4. Lt. General Naseem Rana, former Director General ISI had also discussed this case and you had very kindly agreed with the above contention and had assured to have the whole matter looked into.

5. I hope you will kindly have the matter examined and give a favourable decision on our submission.

Sd/-Lt Gen. (Retd.) Iftikhar All Khan"

1. Learned counsel representing the petitioners submitted that originally the site of the old Central Jail was earmarked for the establishment of the Housing Scheme by the Housing and Physical Planning Department and the plots at that site having auctioned, the possession was also delivered to the allottees but subsequently on the change of the Government, the Housing Scheme was disbanded in the said area and instead a park was established by the C.D.A. under the direction of Federal Government and the allottees of the said site were returned the principal amount with 12 \% mark-up as compensation. He frankly submitted that if the petitioners are treated at par, they are also prepared to surrender their rights in the area Development Scheme on the payment of compensation with 12%% mark-up.

2. The Commissioner, Rawalpindi Division present in person while confirming the above state of affairs has acknowledged the return of the principal amount with payment of 12%% mark-up to the allottees of the plots in the Area Development Scheme stablished at the site of old Central Jail. However, according to him, the Housing and Physical Planning Department, Government of the Punjab, due to non-availability of funds would not be in a position to make payment to the petitioners and that the same should bearranged by the Federal Government. The learned Assistant Advocate- General on instructions from the Deputy Director Housing and PhysicalPlanning Department, Government of the Punjab, who is also present in Court has submitted that a summary has already been moved for the return of the principal amount paid by the allottees with payment of 12%% mark-up to them as compensation. Learned counsel representing Respondent No. 8 and the learned Standing counsel have submitted that the exchange of the land of the site in question with suitable land owned by the Ministry of Defence as described above shall be settled in due course of time with Provincial Government

3. The establishment of Area Development Scheme known as Khayaban-e-Muhammad Ah' Jinnah at old Central Jail, awalpindi, was notified by the Government of Punjab. The scheme consisting upon three Blocks namely (A), (B) and (C) having introduced by the Housing and Physical Planning Department, Government of Punjab for generation of funds, the development of the scheme was in progress when the area of block 'A' and 'B' of the scheme was converted into the Jinnah Park whereas out of the area of Block 'C' a few plots of the size of one Kanal each were auctioned by the Housing and Physical Planning Department, Government f the Punjab and the major portion of said block was still available for sale through auction. On behalf of the Ministry of Defence, Government of Pakistan, it was brought to the notice of Government of Punjab that Block 'C' of the Area Development Scheme being situated in close proximity of Army House and residences of senior members of Defence Service would be a security hazard and a request was made for exchange of this land with the land under the control of Ministry of Defence. In consequence thereto, a joint meeting of the representatives of Government of Pakistan and the Ministry of Defence was arranged on 4th May, 2000, which was attended by the officers namely :—

(1) The Commissioner, Rawalpindi Division, Rawalpindi.

(2) Deputy Director Quart ring, (Col. Aamir Jalees Ahmad), QMG's Branch, G.H.Q., Rawalpindi.

(3) Station Headquarters, (Lt. Col. Shafiq Ahmad Khan, AQ), Rawalpindi.

(4) Lt. Col. Iqbal Hussain Hashmi, Assistant JAG, JAG Branch, G.H.Q., Rawalpindi.

(5) Mr. Muhammad Saeed Chaudhry, Deputy Director, Housing and Planning, Government of Punjab, Rawalpindi.

The following decisions were taken in the meeting :--(?) QMG's Branch will suggest/indicate three alternative sites of defence land for exchange with the provincial Government at old Central Jail Area. Defence land may be offered at Rawalpindi Cantt Area or Murree.

(b) Deputy Director, Housing and Town Planning will visit the sites of Dhoke Syedan alongwith the representative of Qtg Dte GHQ, Station Headquarters and MEO Rawalpindi forassessment/valuation of the land.

(c) The matter would be resolved as early as possible.

It was further decided that the area in question would be kept open as a Park and since provincial Government Housing Scheme was abandoned, the same would not be replaced by a Housing Scheme by the Army.

1. It being a matter of common sense that the establishment of a housing Scheme in such a sensitive area would definitely be a permanent source of insecurity to the area, the Commissioner, Rawalpindi Division, Rawalpindi, and Deputy Director, Housing and Physical Planning Department, Government of the Punjab, who are present in Court on realizing the importance of the matter have frankly conceded that establishment of such a Housing Scheme in such locality being a threat to the security of the area would not be feasible and agreed for the exchange of this land with the land of Federal Government under the control of Ministry of Defence as proposed in the joint meeting of the representative of the Provincial Government and the Ministry of Defence. Learned counsel for the petitioners on instruction from the petitioners, who are present in person have stated that the petitioners are prepared to surrender their rights in the plots subject to the return of principal amount with 12^% mark-up. The learned Standing Counsel for the Federal Government, learned A.A.G. the Commissioner, Rawalpindi Division and deputy Director of Housing and Physical Planning Department, Government of the Punjab, the learned counsel for Cantonment Board, Rawalpindi, and Lt. Col. Iqbal Hashmi, AJAG, the representative of Ministry of Defence have readily consented for the disposal of these petitions in the following terms :--

(a) The petitioners hereby surrender their rights in the plots purchased by them in the Area Development Scheme subject to the return of principal amount with \2-\% mark-up with the option to accept the allotment of a suitable lternate plots in lieu thereof at the substituted site, if any.

(b) The Provincial Government will surrender the proprietary rights in the land of Block 'C' Area Development cheme in favour of Ministry of Defence, Government of Pakistan, in exchange of any of the land owned by the said Ministry in Dhoke Syedan, Rawalpindi, (left west curtain Redoubt),Nougazi camping ground, Mandra and Gujjar Khan.

(c) The control and management of the land of Block 'C' Area Development Scheme with its possession shall vest in the Ministry of Defence and shall be deemed to have always been vested in the said Ministry.

(d) That in terms of the decision taken in the joint meeting of the representatives of Government of Punjab and inistry of Defence, the area in question shall be kept open as a Park and shall be developed as such by the Rawalpindi Cantonment under the Control of Ministry of Defence strictly in accordance with the provisions of Cantonment Act, 1924.

1. As envisaged under Article 23 of the Constitution of Islamic Republic of Pakistan, 1973, it is right of every citizen to acquire, hold and dispose of property in any part of Pakistan, subject to any reasonable a restrictions imposed by law in the public Interest, but at the same time, the private property of a person can be taken by the Government in the public interest with payment of compensation as provided under Article 24 of the Constitution of Islamic Republic of Pakistan 1973, since the property subject-matter of the present petitions is located within the limits of Cantonment Board, Rawalpindi and no buildings in the cantonment area can be erected without the permission of Cantonment Board as provided under Chapter XI of Cantonment Act 1924, therefore, the Cantonment Board without being owner of land can in such sensitive cases prohibit erection of a building in exercise of its power under sub-sectioir (2) of Section 181 of Cantonment Act 1924, which is read as under :--

"181(2) The Board may refuse to sanction the erection or re-erection of any building, either on grounds sufficient in the opinion of the Board affecting the particular building, or in pursuance of a general scheme sanctioned by the Competent Authority restricting the erection or re-erection of buildings within specified limits for the prevention of over-crowding or in the interest of persons residing within such limits or for of any other public purpose."

1. The erection of buildings in this sensitive area being the permanent source of insecurity to the senior members of Defence Service can be prevented for public purpose and since the area is subject to control of Cantonment Board, Rawalpindi, therefore, its management by another authority except the Ministry of defence would undo such purpose and further it is in the public as well as national interest that the said area should not be utilized for establishing the Housing Schemes either by the Provincial or the Federal Government and the concerned department in the Government of the Punjab in the light of the decision taken by the representatives of the Government of Punjab and Ministry of Defence and the agreement arrived at between the parties before this Court in the present petitions, for the return of principal amount with mark-up to the petitioners and the exchange of the land under discussion with the proposed land of Ministry of Defence should take effective steps for an earlyimplementation of the agreement in question.

2. In consequence to the above settlemen t between the parties, it is held that the land of Block 'C' of Area Development cheme in question shall vest to the Ministry of Defence and the said Ministry shall be entitled to manage the land at the spot under the agreement and while giving priority to the matter will make efforts for the completion of the transaction of exchange of land without loss of time. The petitioners having surrender their proprietary rights in the land in question shall not claim any right, title and interest in the said land and shall be returned the principal amount paid by them as the price of the land with 12^% mark-up by the Housing and Physical Planning Department, Government of the Punjab, within three months, failing which the petitioners shall be entitled to recover the said amount from the Provincial Government through process of law. These petitions stand disposed of accordingly with no order as to costs. (S.A.K.M.) Disposed of accordingly.

PLJ 2001 Lahore 34 (DB)

Present: nasim sikandar & jawwad S. khawaja, JJ.

COMMISSIONER OF INCOME TAX, LAHORE-Petitioner

versusM/s, NAWA-E-WAQAT PUBLICATIONS LTD., LAHORE-Respondent

C.T.R. No. 14 of 1978, heard on 25.9.2000.

(i) Assessing Officer--

—Assessing Officer-Duty of-Assessing Officer is required to support his findings by cogent reasons and by brining on record sufficient material, when he has to proceed to reject a claim of assessee that income disclosed by him fell under a particular head. [P. 35] B

(ii) Income Tax Ordinance, 1979--

----S. 136(l)--Tribunmal-Decision of~Reference against-Whether tribunal was right in holding that rental income from properly was not assessable under Section 9, but under Section 10 of the Act-Question of-Assessing Officer treated declared income from property under Section 9 of Act, whereas on appeal, appellate Tribunal with reference to their earlier decision recorded in respect of same assessee proceed to direct that such income should be assessed under Section 10 instead of Section 9 of the Act-Held : Assessing Officer without assigning any reason or recordingr\ any finding proceeded to reject the claim, though it involved factual enquiry, but it was not done-Thus, Tribunal was right in following its earlier decision, which was not assailed further by department-Finding of Tribunal amounted to hold that letting out of properly was part of the business of assessee-Question answered in affirmative. [P. 35] A & C

Mr. Muhammad Ilyas Khan, Advocate for Petitioner. Nemo for Respondent. Date of hearing: 25.9.2000.

judgmen

Nasim Sikandar, J.-The Lahore Bench of the Income tax Appellate Tribunal, at the instance of the Commissioner, Income Tax Lahore, has framed the following question for our answer :--

"Whether on the facts and in the Circumstances of the case, the Tribunal was right in holding that the rental Income from property was not assessable under Section 9 but under Section 10 of the Income Tax Act ?"

1. The assessee, a private limited company for the assessment year 1969-70 and 1970-71, returned income from different sources. The Assessing Officer by way of the assessment order dated 26.6.1973 treated the declared income from property under Section 9 of the Late Act, 1922. On appeal the Income Tax Appellate Tribunal with reference to their earlier decision recorded in respect of the same assessee proceeded to direct that income declared from business property let out should be assessed under Section 10 of the Act instead of Section 9.

2. After hearing the learned counsel for the Department, we are of the view that the answer to the question needs to be in the affirmative. Section 9 of the Late Act provided for assessment of income tax under the head property in respect of bona fide annual letting value of the property comprising of buildings etc. On the other hand, Section 10 of the Act provided that tax shall be payable by an assessee under the head profits and gains of business profession or vocation in respect of the profits or gains of any business profession or vacation carried on by him.

3. It appears that the assessee declared income e from property under the head business showing the letting out of the properties as part of his business. The Assessing Officer without assigning any reason or recording any finding proceeded to reject the claim. Obviously the issue if letting out of property is part of business of assessee necessarily involves factual inquiry. The Assessing Officer while treating the income from property under Section 9 of the Late Act did not repell the claim of the petitioner that letting out of the property was part of his business. The Tribunal with reference to its earlier decision in respect of the same assessee proceeded to allow the relief. The earlier decision of the Tribunal which formed basis of their judgment in the two years under review does not appear to have been assailed further by the Department.

4. An assessing Officer is required to support hi s findings by cogent reasons and by bringing on record sufficient material when he is to proceed to reject a claim of the assessee that income disclosed by him fell under a particular head. Since that was not done, the Tribunal was justified in following its earlier order. The finding of the Tribunal in-fact amounts to holding as a fact that letting out property is part of business of the assessee. Since that finding has not been controverted, our reply to the aforesaidanswer is in the affirmative.

(S.A.K.M.) Reference answered in affirmative.

PLJ 2001 Lahore 36 (DB)

Present:nasim sikandar & JAWWAD S. khawaja, JJ.

M/s.NIDA-I-MILLAT (PVT.) LIMITED, LAHORE-Petitioner

versus COMMISSIONER OF INCOME TAX, ZONE-I, LAHORE-Respondent

C.T.R. No. 24 of 1989, heard on 2.10.2000.

(i) Income Tax Ordinance, 1979--

—S. 136(l)~-Tribunal--Decision of-Refernece against-Whether gratuity calculated by assessee from year to year and provided for in its books of accounts is a deductible business expense, even if a factual payment thereof depended on a future event and it had not actually become payable to an employee in relevant income year-Held : Amount of gratuity payable to employees was admissible as an expense.

[P. 37] A & D

(1992)-65-Tax-254 rel.

(ii) Income Tax Ordinance, 1979-

—S. 136(l)--Whether liability for payment of gratuity is a property charge against income of assessee and as such admissible as expense against the income of relevant years on "incremental value basis—Question of-held: Amount of gratuity payable to employees was a proper charge on the income of assessee and as such was admissible as an expense.

[P. 37] B & D

(iii) Income Tax Ordinance, 1979-

—S. 136(l)-Whether all expenses vouched by Directors of limited company for telephone, traveling, entertainment etc. are deemed to have been incurred and paid for purposes of business of the company and allowable on accunt of commercial expendience-Question of-Held : An expense whether vouched by Director or otherwise must satisfy two statutory requirements : firstly, that it was actually incurred and secondly that it was incurred wholly and exclusively for the purpose of business of assessee-Verification of Director would not dispense with statutory requirements for allowing of an expense.

[Pp. 37 & 38] C & E

Sh. Maqbool Ahmed, Advocate for Petitioner.

Mr. Muhammad Ilyas Khan, Advocate for Respondent.

Date of hearing : 2.10.2000.

judgment

Nasim Sikandar, J.-The Lahore Bench of the Income Tax Appellate Tribunal at the instance of the assessee a private limited company deriving income from publication of newspapers has referred the following questions of law said to have arisen out of a consolidated order recorded on 31.7.1998 by the Tribunal for the assessment years 1977-78 to 1986-87 :--

(1) "Whether in the facts and circumstances of the case the gratuity calculated by the assessee from year to year and provided for in its books of accounts was a deductible business expense even if actual payment of the gratuity depended on a future event and it had not actually become payable to any employee in the relevant income year ?

(2) Whether the liability for payment of gratuity is a proper charge against the income of the assessee and as such admissible as expense against the income of relevant years on "incremental value basis ?

(3) Whether the assessee being a limited company is a person not capable of incurring expenses on its travelling, telephone and the like and disallowance as such is liable to be deleted in computing the taxable income of the assessee ?

(4) Whether all expenses vouched by the Directors of limited company for telephone, travelling entertainment and the like are deemed to have been incurred and paid for the purposes of the businesses of the company and allowable on account of commercial expedience ?

1. While framing assessments in the years under review, the assessing officer disallowed in toto the claimed expense on account of gratuity. Also part of the expense claimed in various heads under the main head of administration and general expenses were disallowed on the ground of their being unverifiable. The assessee failed before the learned First Appellate Authority as well as the Tribunal.

2. Heard the learned counsel for the parties. Both of them agree that the issue if gratuity payable to employees is an allowable expense has finally been settled in affirmative by the Hon'ble Supreme Court of Pakistan in re : Commissioner of Income tax v. Oriental Dyes & Chemical Co, Ltd. (1992) 66 Tax 254. Accordingly, the Srst two questions must be answered in the affirmative to hold that the amount of gratuities payable to employees is a proper charge on the Income of the assessee and as such is admissible as an expense.

3. Question No. 3 as framed does not arise out of the order of the Tribunal. Neither this issue was raised before the Tribunal nor it was discussed by them. The question as framed even otherwise does not arise out of the order of the Tribunal. Therefore, we will refuse to answer the same!

4. Also we entertain no doubt that an expense whether it is vouched by a Director or otherwise must satisfy two statutory requirements. Firstly that it was actually incurred and secondly that it was incurred wholly and exclusively for the purpose of business of the assessee. The issue that petty expenses having been certified by the Directors must be deemed to have been actually incurred for the business of the assessee cannot be accepted on any principal of law. The verification of a Director will not dispense with the tatutory requirements for allowing of an expense. In the case of the assessee dis-allowances of small amounts were made by the Assessing Officer under the heads general repairs, general charges, entertainment, medical expense, car expense and travelling etc. The ground being that these expenses were not fully vouched. These observations by the Assessing Officer were never challenged before the forums below. Also, as we have stated earlier, both the verifiability as well as the admissibility of an expense is to be seen in the light of the relevant provisions of the Ordinance irrespective of the amount of the expense claimed. Secondly verification of a director per se cannot be accepted as a proof of actual incurring of the expense. To be allowed as an expense it must stand the aforesaid test which obviously the assessee failed as far as disallowed amounts of expenses are concerned. Therefore, our janswer to Question No. 4 is in the negative.

5. To sum up, Questions Nos. 1 and 2 are answered in the light of the said judgment of the Hon'ble Supreme Court of Pakistan. Question No. 3 does not arise out of the order of the Tribunal and therefore we will refuse to answer the same while Question No. 4 is answered in the negative.

6. The Registrar shall send a copy of this judgment under the seal of the Court and his signature to the concerned Bench of the Income Tax

Appellate Tribunal.

(SA.K.M.) Reference Answered Accordingly.

PLJ 2001 Lahore 38

Present: SHAIKH ABDUR RAZZAQ, J.

SHAUKAT and another-Petitioners

versus

MUHAMMAD SALEEM-Respondent

Civil Revision No. 257/D of 1999, heard on 19.6.2000.

Civil Procedure Code, 1908 (V of 1908)-

—-S. 115-Suit for possession based on a declaratory decree-Suit dismissed ex-parte, but decreed by Appellate Court-Challenge to—Whether in a suit for possession, trial Court can sit over an earlier decree declaring title of plaintiff with regard to suit Land-Held : Regarding suit land, respondent obtained declaratory decree against predecessor-in-interest of petitioners, which remained upheld in application under Section 12(2), CPC and revision petition filed against it and thus, it attained finality~On the basis of said decree, respondent filed instant suit for possession, which was dismissed exparte by trail Court, but was decreed by appellate Court-Held further: Trial Court could not sit over said decree, which could only be set aside by Court of competent jurisdiction-As decree declaring respondent to be owner of suit land still held field, so trial Court was not justified to dismiss suit of respondent by exparte judgment, which was rightly set aside by appellate Court-Impugend judgment did not suffer from any illegality or mis-reading of vidence- Revision petition dismissed. [P. 40] A

Af/s. Muhammad Fazzil Bhatti and Muhammad Idrees Siddiqui, Advocates for Petitioners.

Malik Ghulam Shabbir, Advocate for Respondent. Date of hearing: 19.6.2000.

judgment

Shaikh Abdur Razzaq, J.-The instant civil revision is directed against the judgment and decree dated 2.4.1998 passed by learned Additional District Judge, Jhelum, whereby the reversed the ex-parte judgment and decree dated 7.3.1995 passed by the learned trial Court dismissing the suit of the plaintiff/respondents against the defendants/petitioners.

1. Briefly stated the facts are that the plaintiff/respondent filed a suit for possession claiming himself to be owner of the suit property on the basis of a declaratory decree dated 17.11.1990. He further asserted that the decree dated 17.11.1990 was challenged by Muhammad Rafique (predecessor-in-interest of the present defendants/petitioners) through an application under Section 12(2) C.P.C. which was dismissed on 2.3.1992. A revision petition filed against the said order of dismissal, was returned to him on 20.4.1994 for presenting the same before a proper forum. However, as Muhammad Rafique predecessor-in-interest of efendants/petitioners) did not agitate the matter any further, the decree dated 17.11.1990 attained finality. The suit filed by the plaintiff/respondent was, however, dismissed vide ex-parte judgment dated 7.3.1995 passed by the trial Court. The plaintiff/respondent challenged the said ex-parte decree dated 7.3.1995 which was consequently set aside by the Appellant Court vide judgment and decree dated 2.4.1998. The defendants/petitioners have felt aggrieved of the said judgement and decree dated 2.4.1998 and filed this revision petition.

2. Arguments have been heard. Record perused.

3. Contentions of the learned counsel for the defendants/petitioners is that as Muhammad Amin was not owner of the suit property so the decree dated 17.11.1990 passed in favour of the plaintiff/respondent has no legal sanctity; that even otherwise the so-called judgment and decree dated 7.3.1995 was an ex-parte one, as such, had no legal force; that had the matter been decided on merits by the trial Court, they would have agitated their claim as incorporated in an application under Section 12(2) CPC; that as such, the impugned judgment and decree dated 2.4.1998 of the Appellate Court be set aside and the suit be remanded to the trial Court for its decision on merits.

4. Conversely, the impugned judgment and decree decree dated 2.4.1998 has been supported by the learned counsel for the plaintiff/respondents. He submits that the instant revision petition is hopelessly time-barred as the same has been filed after lapse of sixteen months whereas a revision petition can only be filed within a period of ninety days. He next argued that the grounds taken in the instant revision petition are the same which were taken in the application under Section 12(2) CPC and were repelled vide order dated 2.3.1992. He next argued that as the judgment dated 17.11.1990 has attained finality, so the trial Court was not justified in ais-regarding the said judgment and decree while passing the ex-parte judgment dated 7.3.1995.

5. Admittedly the plaintiff/respondent obtained a decree for declaration regarding the suit property in a suit filed against uhammad Rafique (predecessor-in-interest of the present defendants/petitioners). The said decree was assailed by Muhammad Rafique through an application under Section 12(2) C.P.C. but it failed as is evident from the order dated 2.3.1992. This order dated 2.3.1992 as again challenged by Muhammad Rafique by filling a revision petition which was returned to him on 20.2.1994 for presenting it before competent forum. Admittedly, Muhammad Rafique (predecessor-in-interest of the defendants/petitioners) did not agitate the matter any further after the return of the revision petition and as such, the judgment and decree dated 17.11.1990 attained finality. It is on the basis of this judgment and decree dated 17.11.1990 that the plaintiff/respondent filed a suit for possession which was dismissed by the trial Court vide ex-parte judgment dated 7.3.1995. The Appellate Court has rightly set aside the ex- parte judgment dated 7.3.1995 as the trial Court could not sit over the judgment and decree dated 17.11.1990 which could only be set aside by a Court of competent jurisdiction. As the judgment dated 17.11.1990 declaring the respondent/plaintiff to be owner of the disputed property still holds field so the trial Court was not justified to pass the ex-parte judgment dated 7.3.1995 dismissing the suit of the plaintiff/respondent. The appellate Court has rightly set aside the said ex-parte judgment vide its impugned judgment and decree dated 2.4.1998. The impugned judgment does not suffer from any illegality or mis-reading of evidence. So, there is no force in this revision petition and the same is hereby dismissed.

(S.A.K.M.) Petition dismissed.

PLJ 2001 Lahore 41

Present: sayed zahid hussain, J.

MUHAMMAD SARDAR KHAN & 3 others-Petitioners

versus

COLLECTOR OF CENTRAL EXCISE & LAND CUSTOMS, LAHORE and 2 others.--Respondente

W.P. No. 4174 of 1983, heard on 26.10.2000..

Custom Act, 1860 (IV of 1969)-

—S. 179-A read with Ss. 156(1) & 89--Provisional Constitution Order, 1981, Art. 9-Import and applicability of S. 179-A of Customs Act-Section 179-A of the Act gives the verdict of Special Judge or Special Appellate Court supremacy over orders passed by the authorities in adjudication proceedings-It is the date of commission of offence and commencement of prosecution, which has relevancy qua applicability of Section 179-A of the Act-Occurrence took place on 3.12.1978, when Section 179-A of the Act was in force and was repealed later on 28.6.1979-In view of the judgment of acquittal of petitioners passed by Special Appellate Court in criminal appeal (PTCL-1988-CL-131), order passed by respondents in adjudication proceedings confiscating their goods etc., could not sustain and were declared as without lawful authority-Petition accepted.

[P. 43 & 44] A PTCL-1997-CL-35 ref. PLD 1989 SC 377; PTCL-1988 CL 131 rel.

Zahir Ahmed Khan, Advocate for Petitioners.

Mr, Khan Muhammad Virk, Advocate, for the Respondents.

Date of hearing: 26.10.2000.

judgment

It was in the night between 3/4 December, 1978 when Truck No. HA. 7055 was seized at Faisalabad by the Officials of Customs Department for the allegations that opium weighing 6 maunds and two pieces of cloth (K.T.) of Japan origin were found from the Truck. FIR No. 276 dated 4.12.1978 with Police Station Nishatabad, Faisalabad was lodged, challan was filed in the Court of Special Judge (Customs), Lahore against Abdul Majid, Abdul Malik and Abdul Shakoor, the drivers and the cleaner of the Truck. After trial, it was -found by the Special Judge (Customs) vide judgment dated 12.11.1980 that the opium was not proved to be of a foreign origin but the accused/petitioners were convicted having been found in possession of doth of foreign origin, under Section 156(1)89 of the Customs Act, 1969. An appeal was filed by the petitioners there against which was accepted by the Special Appellate Court, Lahore and were acquitted vide judgment dated 22.12.1987. The matter is stated to have attained finality in this regard.

1. On the departmental side, a show-cause notice dated 12.3.1979 was issued to the petitioners (Petitioner No. 1 is stated the owner of the Truck), the matter was contested by the petitioners by submitting reply to the same before the Collector who however, vide order dated 11.7.1979 ordered the confiscation of the goods as also the Truck. Personal penalty was also imposed on each of them. An appeal was filed there against which was rejected by the Central Board of Revenue on 6.4.1980. A revision was then filed before the Government of Pakistan which was rejected on 10.5.1983. This writ petition was filed under Article 9 of the then rovisional Constitution Order, 1981 challenging the aforesaid orders as without lawful authority with the further direction that the Truck and Bajri be released to the petitioners.

2. In support of this petition, it is contended by the learned counsel that at the time when the case was registered against the petitioners, Section 179-A of the Customs Act, 1969 was in force, the orders of adjudication are subject to the decision of the Special Judge/Appellate Court. According to him, the petitioners having been acquitted by the Special Appellate Court in appeal which judgment has attained finality, the orders passed by the respondents being contrary to the same are illegal and liable to be declared as such. Reliance has been placed on Government of Pakistan, through Secretary, Finance Islamabad and others vs. Abdul Majeed(PTCL 1997 CL 35). It is contended by him that while admitting the petition on 11.10.1983, the respondents were restrained from disposing of the Truck, the same is liable to be returned to the owner.

3. Mr. Khan Muhammad Virk, Advocate for the respondents contends that Section 179-A ibid was on the Statute Book till 28.6.1979, when it was omitted, the petitioners are not entitled to the benefit of the same. This is the position taken by Respondent No. 1 in the comments as well.

4. The only point that needs to be examined is as to the import and applicability of Section 179-A of the Act. In Federal Government of Pakistan and others vs. Muhammad Sarwar (PLD 1989 SC 377), this provision of law came up for consideration by their Lordships of the Supreme Court. In that case, a Toyota car was intercepted on 29.8.1976 on a secret information that smuggled goods were being transported through the same. The said vehicle, the goods and tvo more vehicles were seized on the pointation of Muhammad Sarwar respondent therein. The adjudication proceedings in regard to the seized goods were initiated by the Deputy Collector of Customs, he found that the goods were smuggled, ordered confiscation of the seized goods i.e. golden watches, currency, vehicles, mare, jackets and waist coats and also imposed personal penalties. In appeal, the Collector modified the order on 20.1.1985 to an extent A revision was filed before the Government of Pakistan which was dismissed on 20.4.1986 with a reduction in the quantum of penally. The said orders were challenged through a petition before this Court. At the same time, proceedings before the Special Judge (Customs) were in process who on 7.2.1979 acquitted them. An appeal was filed against their acquittal which was later withdrawn. The writ petition qua the orders passed by the Customs Authorities was accepted. It was in this context that the applicability of Section 179-A of the Act was considered by their Lordships and it was held that "Section 179-A was enacted to provide relief against double jeopardy. It was therefore, that the order of adjudication under Section 179 was made subject to the decision of the Special Judge and of the Special Appellate Court in appeal or revision, if any, by reason of the non-obstance clause in the opening part of the section, namely "notwithstanding anything contained in Section 179, Section 181 or Section 182 or in Chapter XDL The words "if any" after the words "appeal or revision" are of significance in that the decision of the Special Appellate Court is to prevail over the decision of the Special Judge if an appeal or revision is filed and decided on merits and the order of adjudication shall be subject to it However, if no appeal or revision is filed then the decision of the Special Judge holds the filed and attains finality." Thus, in view of the order of acquittal, it was held that "the order passed in appeal and revision in hierarchy of adjudication proceedings had to be in conformity with the order of acquittal." This view has been followed in a latter judgment by their Lordships of Supreme Court in Government of Pakistan, through Secretary, Finance Islamabad and others vs. Abdul Majeed (supra) and it was observed that "since the offence alleged against the respondent was committed on 27.3.1979, he was fully entitled to the protection provided under Section 179-A of the Act which was part of the Act on the date of commission of the offence. No doubt Section 179-A was deleted subsequently on 28.6.1979 but such deletion could not effect the right of the respondent to be governed by the provisions of Section 179-A ibid as the offence alleged against the respondent was of a date when Section 179-A ibid, was very much part of the statute." It was further observed that "the prosecution of the respondent having commenced at a time when Section 179-A of the Act was very much part of the statute, the repeal of that section subsequently could not effect the right of respondent and the order of adjudication passed on appeal or revision by the appellate Court or revisional authority after the acquittal of the respondent by the Special Judge. Customs had to be in conformity with the order of acquittal."

(underlined by me for emphasis).

1. In the present case, the incident is stated to have taken place on 3.12.1978 when Section 179-A of the Act was in the field and was repealed later on 28.6.1979. The said section gives the verdict of the Special Judge or the Special Appellate Court supermacy over the orders passed by the authorities in adjudication proceedings. The said orders have been made "subject to the decision of the Special Judge and of Special Appellate Court in appeal or revision, if any". The principle deducible from the dictum laid down by the Lordships of the Supreme Court is that it is the date of commission of the offence and commencement of prosecution which has relevancy qua the applicability of Section 179-A of the Act. Thus, repeal of Section 179-A would not make any difference for the present case. The stance of the respondents therefore, has no sound basis and is repelled. Thus, in view of the judgment of acquittal dated 22.12.1987 of this Court in Cri Appeal No. 1295-C/80 titled as Abdul Hamid etc. vs. State (PTC 1988 CL 131), the orders passed by the respondents in adjudication proceedings cannot sustain and are declared as without lawful authority and of no legal effect

The petition is accepted to the extent of the prayer made therein. No order as to costs.

(SA.K.M.) Petition dismissed.

PLJ 2001 Lahore 44[Bahawalpur Bench Bahawalpur]

Present: AMIR ALAM KHAN, J.

ABDUL HAMEED AKHTAR-Petitioner

versus

SECRETARY SMALL INDUSTRIES, GOVT. OF PUNJAB LAHORE and 2 others-Respondents

Writ Petition No. 829 of 2000/BWP, decided on 12.6.2000.

(i) Constitution of Pakistan, 1973-

—Art. 199--Punjab Technical Education and Vocational Training Authority Ordinance, 1999, S. 4(l)--Deputy Director-Transfer-Challenge to~ Petitioner was transferred by Deputy Managing director, PSIC, from Regional Office D.G. Khan to Regional Office Bahawalpur, wherefrom he was transferred to Vocational Training Centre, Sadiqabad vide order dated 19.2.2000--Petitioner contended that said order was without jurisdiction for the reason that administrative control and powers of all Vocational Training Centres vested in Technical Education and Vocational Training Authority w.e.f. 5.7.1999, which were previously exercised by PSIC- -Held : Since Vocational Training Centres were taken out of the administrative control of PSIC and were in turn placed under administrative control of TEVTA, therefore, petitioner could not possibly be transferred from one authority to another authority created and established under a different statute-Therefore, transfer of petitioner by Regional Director of PSIC to a Vocational Training Centre under Administrative control of TEVTA was absolutely without jurisdiction-­Held Further : Factual aspect such as controlling of financial matters and payment of salary of employees of TEVTA by PSIC must yield to legal aspect, for if contention of respondents was accepted, then it would lead to anomalous result as also bickering and conflict between two Government Department-Petition accepted.

[Pp. 46, 47 & 48] B C & D

(ii) Transfer-

-—Private or Government employee-Transfer is an incident of service and every employee big or small is obliged under law to work wherever he issent by his employer, be that it is a case of private employment or Government Service subject of course to rider that transfer of employee can only be made within the domain and administrative control of employer or authority who in turn is vested with powers transferemployee. [P. 46] A

Ch. Muhammad Afzal Cheema, Advocate for Petitioner.

Mr. Saltern Nawaz Abbasi, A.A.G. alongwith Mr. Akhtar Alt Qureshi, A.D. (Legal) PSIC for Respondents Nos. 1 & 2.

Mr. M. Shamsher Iqbal Chnghtai, Advocate for Respondent No. 3. Date of hearing: 11.5.2000.

judgment

The parties are represented and their learned counsel have been heard, therefore, this case is being disposed of as Pacca case.

1. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the legality of order dated 19.2.2000 passed by the Regional Director of the Punjab Small Industries Corporation, Bahawalpur Region, Bahawalpur, whereby the petitioner was transferred from the post of Deputy Director (Tech.) (OPS), PSIC, Regional Office, Bahawalpur and was posted at Vocational Training Centre, Sadiqabad.

2. The relevant facts are that the petitioner being the senior most Workshop Manager was posted as Deputy Director (Tech.) in the PSIC, Regional Office, Dera Ghazi Khan somewhere in 1998, from where he was transferred to the Regional Office, Bahawalpur by the competent authorily i.e. Deputy Managing Director, PSIC. He was again transferred by the Regional Director, Bahawalpur to Vocational Training Centre, Sadiqabad, vide order dated 19.2.2000.

3. The petitioner has proceeded to challenge the above said order on the ground that the said order is without jurisdiction as also without lawful authority for the particular reason that the administrative control of all the vocational institutions had been transferred and handed over to newlycreated authority namely Technical Education and Vocational Training Authority (TEVTA) w.e.f.5.7.1999 and according to notification issued in this regard all the administrative powers of Vocational Training Centres, which were previously being exercised by PSIC have been transferred and vested in the authority i.e. TEVTA. It was submitted that apart from the above said legal aspect even the Regional Director PSIC had shown his inability to deal with the cases pertaining to the domain of TEVTA on the ground that the administrative powers of DMTCs have been transferred and vested in TEVTA by the Chief Secretary's Notification No. CAB-1/2-2/99 dated 5.7.1999.

4. In the report and parawise comments, the Regional Director, Punjab Small Industries Corporation, Bahawalpur, has submitted that although the Government of Punjab has established an authority under the name of TEVTA and through notification dated 5.7.1999 issued by the Chief Secretary the administrative control of all such centres were transferred to TEVTA, but in fact the said centres are still working under the administrative/financial control of PSIC, as these are not yet anded over to TEVTA. It is also submitted that the salary and other financial matters of the employees of such centers are being dealt with by the PSIC and that the petitioner, who is basically an employee of Dehi Mazdoor Training Centre (TEVTA PROJECT) is still benefiting from PSIC in shape of emoluments etc. As far the transfer of the petitioner, it was submitted that transfer from Region to Region can only be made by Deputy Managing Director while transfer within the Region can competently be made by the egional Director in regard to the employees up to BS-16. As far the letter dated 4.1.2000 issued by the Regional Director, ahawalpur Region, expressing his inability to interfere in the matter of Mr. Muhammad Anwar Shah, Es-P, umber (Supervisor) DMBCC. Rahimyar Khan, on the ground that the administrative powers of DMTCs have been transferred to TEVTA by the Chief Secretary's notification dated 5.7.1999, it was specifically submitted that the Head Office had written two letters that the administrative control of the VTCs still vests in the PSIC, therefore, they are competent to resolve any issue including the trnasfer of an employee one VTC to another. The letters afore-referred are appended as Annex. R/5 and R/6 alongwith the comments.

5. Transfer is an incident of service and every employee big or small in obliged under the law to work wherever he is sent by his employer, be that it is a case of private employment or Government Service subject of course to the rider that the trnasfer of the employee can only be made within the domain and administrative control of the employer or the authority who in turn is vested with the powers to trnasfer the employee. Basically the employees of the Vocational Training Centres were performing their duties in the course of their employment in the domain and under the control of Punjab Small Industries Corporation, but since the Vocational Training Centres were taken out of the domain and administrative control of Punjab Small Industries Corporation and were in turn placed under the domain and a administrative control of TEVTA, therefore, the petitioner could not possibly be transferred from one authority to another for the domain of the two authorities are independent and exclusive of each other. This was done by Notification No. CAB-1/2-2/99 dated 5.7.1999. The notification in this regard was issued by the Chief Secretary Punjab in the exercise of powers conferred on him under Section 4(1) of the Punjab Technical Education and Vocational Training Authority Ordinance, 1999. It specifically recited that the administrative control, assets and liabilities of the institutions/offices of the Punjab Government including the Vocational Training Centres stand transferred to the Technical Education and Vocational Training Authority (TEVTA) and in the descriptive part the nomenclature of various Vocational Training Centres are mentioned. There are various papers, which have been brought on the file by both the counsel for the parties, which need to be attended to. First of its kind is the letter dated 16th December, 1999 issued by the Chairman TEVTA to the Principals of all the Vocational Training Centres, wherein he appropriates unto himself the administrative control and supervision of all the institutions. Appended therewith is the schedule showing the names of the different officers, who are supposed to manage the various centres and institutions in the Central Zone, South Zone and North Zone. There is yet another list produced enumerating the nomenclatures of the various institutions of the Vocational Training Centers. The above said documents were presented to establish that TEVTA was really created and established, it had its administrative heads and the various persons named as such were nominated to control the same. Similarly, an order dated 13.10.1999 passed by the Director (Admn.) under the directions of Managing Director PSIC was also placed on the record, wherein it is specifically mentioned and observed as under :—

"It is also worth mentioning that after the creation of TEVTA and issuance of notification regarding transfer of Training and Service Centres of PSIC to TEVTA the PSIC Authorities has lost competency to pass any order regarding fresh promotion of staff of these centres."

At another place it has been observed as under :—

The Government of the Punjab has established an Authority by the name of Technical Education Vocational Training Authority (TEVTA) with the object to run public sector training/technical institutions. The Government of the Punjab has issued a Notification dated 5.7.1999 according to which the PSIC projects stand transferred to TEVTA."

The PSIC Authorities, on the other hand, maintained that the administrative control of the Vocational Centres is still with them. They also control the financial matters such as salary of the various employees of TEVTA and that all the relevant papers pertaining to the services of the petitioner are still with the PSIC. They have in this regard relied on calendar of salary paid to the various employees of DMBCC. Rahimyar Khan and other centres as also letters issued in regard to re-instatement of increment of the petitioner pertaining to the year 1985 and issue of salary slips.

1. It is thus obvious that the petitioner is relying on the legality as to creation and establishment of TEVTA as also certain incidents which go to show that the administrative control thereof is also with the newly created authority which is being exercised by the said authority within its domain. The factual aspect such as controlling the financial affairs and also payment of salary etc. which has been relied by the PSIC must yield to the legal aspect for if the contention of the respondents is accepted it would lead to anomlous result as also bickering and conflict between the two Government Departments, The authority having been created and established under a legislative instrument and the working thereof had been established by way of notification, it could not be set at naught by the opinion of the Managing Director of PSIC who has chosen to opine that the administrative control is still with them. Manifestly, the petitioner having been taken within the folds of the PSIC could not be transferred to another authority created and established under a different statute, therefore, the trnasfer of the petitioner by the Regional Director of PSIC to a Vocational Training Centre under the administrative control of TEVTA is absolutely without jurisdiction and without lawful authority.

2. In result this petition is accepted and the order dated 19.2.2000 passed by the Regional Director of PSIC is declared to be without lawful authority and of no legal effect. However, the parties are left to bear their own costs.

(TA.F.) Petition accepted.

PLJ 2001 Lahore 48

Present: sayed zahid hussain, J.

SUI NORTHERN GAS PIPELINES LIMITED HEAD OFFICER AVAR! PLAZ, LAHORE-Petitioner

versus

GOVERNMENT OF THE PUNJAB through SECRETARY, MINISTRY OF LABOUR & SOCIAL WELFARE, LAHORE and another.-Respondents

Writ Petition No. 4984 of 1984, decided on 17.11.2000.

(i) Statutes-

—Special & General law-Federal & Provincial Law-Conflict or repugnancy between-In case of conflict or repugnancy between, it is the Federal Law, which is to prevail and also the special law as against general law. [P. ] C

PLD 1991 SC 824; 1993 SCMR 941; PLD 1995 Lah. 56 (FB) rel.

(ii) West Pakistan Social Security Ordinance, 1965--

—S. 1(3) read with Ss. 3, 5, 6, 7, 7-A of Pakistan Essential Services (Maintenance) Act, 1952- -Pakistan Essential Services (Maintenance), Rules, 1962-Provisional Constitution Order, 1981, Arts. 9 & 143--Notification u/Section 1(3) of the Ordinance-Issuance of~Challenge to— By virtue of said notification, petitioner establishments were brought within purview of the Ordinance and were issued demand notices for payment of contribution-Contention that employment of petitioner companies had already been declared essential under Pakistan Essential Service (Maintenance) Act, 1952, which took care of the conditions of service of its employees and said law had an over-riding effect, thus, provisions of the Ordinance could not be made applicable to their establishments or employees-Their employees and workers unions were fully satisfied with settlements arrived at between management and employees duly taking care of benefits as could be given them by Social Security Institutions-Held : Conditions of service of employees of petitioners were governed and regulated by rules and regulations approved by special authority, and any deviation therefrom entailed penal action under Act-Held Further : Provisions of Act will have to prevail not only in view of Article 143 of Constitution, but also that field was occupied by a Federal Special Act having over-riding effect in view of its Section 7-A-HeId Further : In presence of declaration by Government in respect of employment of petitioners as essential service under the Act, notification u/S. 1(3) of the Ordinance issued by Provincial Government could not be regarded as lawful exercise of power, thus, it was declared as operative quathe petitioners-Petition accepted.

[Pp. 53, 56 & 57] B, D, E, F, G, H & I

PLD 1978 Karachi 945; PLD 1980 Peshawar 216; PLD 1982 Karachi 35; PLD 1982 SC 113; 1989 SCMR 1549; 1996 PLC (C.S.) 878; Un-reported judgment dated 17.6.1974 passed in Writ Petition No. 1015 of 1971 by Lahore High Court, Lahore ref.

PLD 1977 SC 197; 1993 SCMR 1201 rel.

(iii) West Pakistan Social Security Ordinance, 1965--

—-S. Object of Ordinance is to provide certain facilities and benefits to employee of establishment to which provisions of Ordinance are applied and extended. [P. 53] A

M/s. Azhar Maqbooi and Muhammad Saleem Shahnazi, Advocates for Petitioner.

Iftikkar Ahmad Bar, Advocate for Respondents. Date of hearing: 25.10.2000.

judgment

Notification dated 1.11.1980 was issued by the Governor of Punjab in exercise of powers conferred by sub-section (3) of Section 1 of the West Pakistan Employees, Social Security Ordinance, 1965 (Ordinance No. X of 1965) whereby the establishment of the petitioner at Sialkot was brought within the purview of the said Ordinance and notification dated 15.9.1982 whereby the establishment of the petitioner at Islamabad was also brought within the purview of the said Ordinance was issued under the same provisions of law. In pursuance thereof, Respondent No. 1 issued a demand notice to the petitioner for payment of contribution. The petitioner took up the matter with Respondent No. 1 that Ordinance No. X of 1965 was not applicable to its establishment and also filed complaints before the Director, Social Security, which was dismissed on 7.8.1983 that the said Ordinance was applicable to the petitioner notwithstanding the application of Pakistan Essential Services (Maintenance) Act, 1952. An appeal was filed there against by the petitioner before the Social Security Court, which was dismissed on 8.3.1984 that the same was not competent. An appeal was filed thereafter, before the High Court (FAO No. 96/84), but was dismissed on 9.6.1984, on the ground that in view of the decision in M/s. Standard Printing Press vs. Sindh Employees Social Security Institution (PLD 1978 Karachi 945), the Institution being a Tribunal of limited jurisdiction, cannot adjudicate upon the constitutionality of the notification issued by the Provincial Government under Section 1(3) of the Ordinance. The petitioner has now sought to challenge the above mentioned notifications through this petition under Article 9 of the Provisional Constitution Order, 1981.

1. Through Writ Petition No. 8897/91, Pakistan Burmah Shell Limited has challenged notification dated 22.12.1987 issued by Respondent No. 1 under Section 1(3) of West Pakistan Employees, Social Security Ordinance, 1965 (Ordinance No. X of 1965) whereby its Oil Depot at Mandi Town, Bhakkar was brought within the ambit of Ordinance No. X of 1965. Writ Petition No. 188/88 is also by Pakistan Burmah Shell Limited whereby a similar notification dated 2.7.1986 was challenged.

2. Since all these petitions proceed on common premises as to the interpretation of the relevant laws and vires of notifications issued under Section 1(3) of Ordinance No. X of 1965 and the points arising therein are also common; the same are being disposed of by this single judgment

3. It is the case of the petitioners that employment of petitioners companies have been declared essential under Pakistan Essential Services (Maintenance) Act, 1952 which takes care of the conditions of service of its employees and the said law has an over-riding effect, the provisions of West Pakistan Social Security Ordinance, 1965 (Ordinance No. X of 1965) have noapplication to their establishments or the employees.

4. It is contended by the learned counsel for the petitioners that Pakistan Essential Services (Maintenance), Act 1952 being a special law enacted for a particular class of employees as are of the petitioners has to prevail as against the provisions of Ordinance No. X of 1965, which is of a general nature. It is further contended that former being a Central Law is to prevail over West Pakistan Employees, Social Security Ordinance, 1965, which is a provincial law, Article 143 of the Constitution is invoked in support of this contention. Reference to Section 7-A of the Act is also made to contend that the provisions of the Act have an over-riding effect, therefore, the provisions of Ordinance No. X of 1965 cannot be made applicable to the petitioners. It is also contended by the learned counsel for the petitioners that the conditions of service of petitioners companies are being regulated in pursuance of the provisions of Pakistan. Essential Services (Maintenance) Act, 1952 and the rules framed thereunder i.e. Pakistan Essential Services (Maintenance) Rules, 1962 and the settlements arrived at between the Management and the Employees duly take care of the benefits which could be extended by the Social Security Institutions and its employees and workers unions were fully satisfied with the same. In support of their contention reference has been made to; 1) Kohinoor Chemical Co. Ltd., and another vs. Sindh Employees Social Security Institution and another (PLD 1977 SC 197), Messrs Standard Printing Press itt. Sindh Employees Social Security Institution (PLD 1978 Karachi 945), Messrs Indus River Contractors, Tarbela vs. Mr. Aziz Ahmad, Member, N.I.R.C. and another (PLD 1980 Peshawar 216), Pakistan Burmah Shell Ltd. vs. Central Labour Commissioner and 5 others (PLD 1982 Karachi 35) Karachi Electric Supply Corporation Ltd., vs. National Industrial Relations Commission and another(PLD 1982 SC 113), Pakistan Television Corporation us. M. Babar Zaman and others (1989 SCMR 1549) and Neimat Ali Goraya and 3 others vs. Jaffar Abbas, Inspector/Sergeant Traffic through S.P. Traffic, Lahore and others (1996 P.L.C. (C.S.) 878).

On the other hand, the learned counsel for the respondents contends that West Pakistan Social Security Ordinance No. X of 1965 is a beneficial law for the welfare of employees and can be made applicable under Section 1(3) of the Ordinance to any establishment, which cannot be overridden by the provisions of Pakistan Essential Services (Maintenance) Act, 1952. It is contended that petitioners may be providing benefits and facilities to its employees at its option and discretion whereas as under the Social Security Ordinance, there is compulsory provision for the same. He has relied upon a judgment dated 17.6.1974 passed in W.P. No. 1015/71 that the effect of law could not be avoided simply for the reason that the employees were being provided benefits and facilities.

The points that have emerged for the disposition of these petitions relate to the content, import and application of the two laws i.e. Pakistan Essential Services (Maintenance) Act, 1952 and the West Pakistan, Social Security Ordinance, 1965. In order to determine the extent, field of operation and their scope, the relevant provisions need to be examined. The Pakistan Essential Services (Maintenance) Act, 1952 by virtue of Section 3 applies to every employment under the Federal Government or the class of employment which the Federal Government may be notification in the Official Gazette declare. Such a notification is owever, subject to the provisions of sub-section (2) of Section 3, which is reproduced hereunder :--

(2) No declaration under sub-section (1) shall be made in respect of any employment or class of employment unless the Federal Government is of opinion that such employment or class of employment is essential :--

(a) for securing the defence or the security of Pakistan or any part thereof, or

(b) for the maintenance of such supplies or services as relate to any of the matter with respect to which the parliament has power to make laws and are essential to the life of the community.

Such a declaration however, remains in force for a period of six months. It is the case of the petitioners that they had been notified and declared as such even prior to the notification issued under Section 1(3) of the Social Security Ordinance, 1965 and such notifications have been extended from time to time. By virtue of Section 6 of the Act, the Federal Government is to regulate the wages and other conditions of service of persons or of any class of persons or empower the specified authority for that matter. By virtue of sub­section (2) of Section 6, the violation of the directions given by the authority is treated as an offence under the Act, the penalties for which are provided in Section 7. Section 7-A of the Act gives it an over-riding effect qua all other laws. Rules in exercise of powers conferred by sub-section (1) of Section 6 of the Act have already been framed, called The Essential Services (Maintenance) Rules, 1962. In Karachi Electric Supply Corporation Ltd. vs. National Industrial Relations Commission and another (PLD 1982 SC 113) (supra), some of the provisions of the Act were examined by their Lordships in the context of termination of employee.

1. It may be noted that West Pakistan Employees Social Security Ordinance, 1965 (Ordinance No. X of 1965) is a provincial law and by virtue of Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975) itsmomenclature has been changed to Provincial Employees Social Security Ordinance, 1965. The provisions of the Ordinance have been examined in a number of cases. In the un-report.ed judgment relied upon by the learned counsel for the respondents (W.P. No. 1015/71), application of Social Security Ordinance, 1965 to employees of Pakistan Tabacoo Company Ltd. was considered by a learned Single Judge of this Court observing that the effect of law could not be avoided only "because the antecedent facilities are more beneficial". It was however, not a case where the employment of the said company was declared as essential service nor the provisions of Pakistan Essential Services (Maintenance) Act, 1952 were attracted to that case. In Kohinoor Chemical Co. Ltd and another vs. Sindh Employees, Social Security Institution and another (PLD 1977 SC 197), provisions of the said Ordinance were examined and it was noted that "once a notification has been issued under sub-section (3) of section 1 of the Ordinance notifying the areas, classes of persons and industries or establishments to which the Ordinance is to apply, then the obligations of the employers spelt out in Sections 20 & 21 came into play". It was further observed that "the stringent provisions contained in Section 23 of the Ordinance are supplemented by further penal provision contained in Section 66 thereof, which makes the failure to pay any contribution an offence punishable with imprisonment which may extend to three months or with fine not exceeding Rs. 1,000 or with both. Here again, the penalty is incurred on account of the failure to pay any contribution which the person concerned is liable to pay under the Ordinance. The appeals were accordingly disposed of by their lordships. However, Muhammad Yaqub Ali, C.J. as the late Chief Justice then was added a separate note which is to the following effect :--

"It was stated from the bar by the learned counsel for the Employer, respondent herein, that the workers employed at the Head Office have all along been provided, under an agreement some of the services which the, respondent would have rendered to them had they been registered with it under the West Pakistan Employees Social Security Ordinance. If that be so then the appellant will have no liability to make additional contribution to the fund of the Social Security Institution. A distinction must be made in this respect between a tax and a fee. The contribution which the Employer and the Workers are required to pay to the Social Security Institution is in the nature of a fee for rendition of services enumerated in the West Pakistan Employees Social Security Ordinance and not a tax. There is thus no absolute liability to pay on the part of the Employer as well as the Workers".

(Underlined by me for emphasis)

In National Embroidery Mills Ltd, and others vs. Punjab Employees Social Security Institution (1993 SCMR 1201, also the beneficial nature of the Legislation i.e.Provincial Social Security Ordinance, 1965 was reiterated. It is thus evident that the object of the Ordinance is to provide certain facilities and benefits to the employees of the establishment to which the provisions of the Ordinance are applied and extended.

1. In the present petitions, it is the case of the petitioners that with the declaration of the employment of their establishments as essential services, the wages and conditions of service of the employees are being regulated by the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 and the rules framed thereunder and that the conditions of service so settled by the Employer with the Employees Union have not only the blessing and approval of the specified authority, but also are willingly accepted by the Employees and Employees Union and no such dispute has ever been raised by any of its employee that he has been deprived of any such benefit as could be given by the Social Security Institution. It appears that such a stance of the petitioners is not without a valid basis inasmuch as through out the pendency of even these petitions, none of the Employees or the employees union have agitated the matter before this Court or opposed the petitions. They seem to be well satisfied with their conditions of service.

2. There is a substance in the contention of the learned counsel for the petitioners that Pakistan Essential Services (Maintenance) Act, 1952 is a central law of a special nature covering special eventualities and situations and after every six months, on consideration of the matter a fresh notification is issued extending the application of law in terms of Section 6(1) of the Act. The provincial Social Security Ordinance however, as its nomenclature would show is a provincial law of general application whereas Pakistan Essential Services (Maintenance) Act, 1952 applies only to employments declared as essential services under the law. In case of conflict or repugnancy there is no doubt that it is the Federal law which is to prevail and also the special law as against a general law. In Sardar Muhammad vs. Noor Ahmad through Legal Heirs and others (PLD 1991 SC 824), the provisions of Punjab pre-emption Act, 1913 and para 25(3)(d) of Land Reforms Regulation, (1972 MLR 115) came to be examined before their lordships of the Supreme Court and it was observed that "It is clear that MLR 115 is a federal law and the Punjab Pre-emption Act, 1913, is a provincial law and that under Article 143 of the Pakistan Constitution, 1973, if any provision of an Act of the Provincial Assembly is in conflict with any provision of a Federal law, then the Federal law shall prevail and the Provincial Law shall, to the extent of the repugnancy or conflict, be void", In Cantonment Board through Cantonment Executive Officer Peshawar vs. District Sanitary and Food Inspector, Peshawar and 3 others (1993 SCMR 941), the extent and application of West Pakistan Pure Food Ordinance, 1960 and Cantonment Pure Food Act 1966 came to be considered before their lordships and it was held that "there is a clear cut overlapping of jurisdiction of the functionaries under these laws, likely to result in divergent actions and conflicting orders" and thus applying the rule envisaged by Article 143 of the Constitution, that the Ordinance being a Provincial Statute, so far as Cantonment area is concerned, shall have to give way to the Cantonment Pure Food Act, 1966. In Water and Power Development Authority and others vs. Mian Muhammad Riaz and another (PLD 1995 Lahore 56), a Full Bench of this Court in the light of various precedents held as follows :--

"At this juncture, the question as to whether Section 24(2) as amended by Punjab Ordinance XXIX of 1971 still holds the field and is operative is under discussion. Section 24(2) of the Act as amended by Punjab Ordinance and as amended by Federal Ordinance is in respect of the same matter. Which one of the two is to prevail ? Article 143 of the Constitution of Islamic Republic of Pakistan provides the answer. This Article reads ;

"143. In-consistency between Federal and Provincial Laws.-If any provision of an act of a Provincial Assembly is repugnant to any provision of an act of Majlis-e-Shoora(Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the act of the Provincial Assembly, or, as the case may the existing law, shall, prevail and the act of the Provincial Assembly shall to the extent of the repugnancy, be void".

Thus, by virtue of Article 143, Central law is to prevail where law of the provincial Legislature in respect of matter enumerated in Concurrent List is repugnant to it. Article 143 is attracted only if the provincial law is repugnant to the law of Majlis-e-Shoora(Parliament), which means that the two cannot stand together. (See Zaver Bhatti vs. State of Bombay A.I.R. 1954 SC 752). A Provincial Law may be repugnant in any of the following ways :--

(i) Where there is direct conflict between the two provisions;

(ii) though there may not be any direct conflict between the two statutes, but it is evident that the Parliament intended its legislation to be a complete and exhaustive Code relating to the subject, in such a case it shall be taken that Central law has replaced the Provincial law relating to the said matter. (State of Asam v. Harizon Union AIR 1967 SC 442).

In some cases it has been held that even where Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the Provincial Act. (See Tike Ramji v. State of Uttar Pradesh) (AIR 1956 SC 676) and Deep Chand vs. State ofU.P. (AIR 1959 SC 648).

The two provisions may conflict with each other where one cannot be obeyed without disobeying the other. Even if obedience to each of them may be possible without disobeying the other, yet two enactments may be inconsistent, e.g. when it takes away a right conferred by the other even though the right be one which might be waived or abandoned without disobeying the statute which conferred the right. See Mangtulal v. Radhashayam (AIR 1953 Pat. 14). So it may also arise where both laws operate in the same field and the two cannot stand together. The Supreme Court in the case Chief Secretary, Government of East Pakistan v. Muslahuddin Sakdar (PLD 1957 SC (Pak.) 1(8) observed that, "a reference to sub-Article (2) of Article 110 of the Constitution of 1956 (now Article 143 of the 1973 Constitution) will show, an Act of the Provincial Legislature in the concurrent field is hit to the extent that the subject in question is already covered by legislation. It is not void merely by reason of being an enactment in the concurrent field, it is only void for lack of assent to the extent of repugnancy. Again the Supreme Court in the case of Malhi Khan v. Member, Board of Revenue (PLD 1991 SC 824) noticed the effect of Article 143 of the Constitution as under :--

"It is clear that MLR is a Federal law and the Punjab Pre­emption Act, 1913, is a Provincial law and that under Article 143 of the Pakistan Constitution, 1973 if any provision -of an Act of the Provincial Assembly is in conflict with any provision of a Federal Law, then the Federal Law shall prevail and the Provincial Law shall, to the extent of the repugnancy of conflict, be void."

See also Kashif Nadeem alias Pappi v. The State (1992 PCr. LJ 1799). Applying the criteria and test a repugnancy noted above it is apparent that the provisions of sub-section (2) of Section 24 as contained in the Central Law manifestly supersede the provisions on the same subject contained in sub-section (2) as enforced by the Provincial Law. Both these provisions cannot stand together as the one conferred right of appeal whereas the other took away the said right. Both the provisions as occupy the same field the provision of the Central law have to prevail by virtue of Article 143 of the Constitution".

It has already been noted that conditions of service of the employees of the petitioners are governed and regulated by the rules and regulations approved by the specified authority. Any deviation therefrom entails penal action and is punishable under Sections 5, 6 & 7 whereas the non-payment of any contribution under the Ordinance is also an offence under Section 56 of the same. In view of the over-lapping provisions, the provisions of the Act will have the prevalence not only in view of Article 143 of the Constitution but also that the provisions of the Act are of special and of over-riding nature in view of Section 7-A of the Act. In Pakistan Burmah Shell Ltd. vs. Central Labour Commissioner and 5 others (PLD 1982 Karachi 33), the effect of Section 7-A of Pakistan Essential Services (Maintenance) Act, 1952 was examined and it was held that "so far as Section 7-A is concerned its meanings are plain and clear and admit no ambiguity. The provisions of the Trade Unions Act, 1926, Industrial Disputes Ordinance, 1959 and other enactments have to yield to the provisions of the Act in matters covered by the Act."

1. From the facts and circumstances and the precedents mentioned above, the principle deducible and the conclusion is that;

(i) with the issuance of a notification declaring an employment or class of employment in terms of Section 3, the provisions of Pakistan Essential Services (Maintenance) Act, 1952 get

attracted. It is not disputed or challenged by the respondents that such a notification does exist in respect of the petitioners;

(ii) In pursuance of Section 6 of the Act, for regulating the wages and conditions of service of the employees, rules, called Pakistan Essential Service (Maintenance) Rules, 1962 have been framed by the Federal Government, which apply to every employment in respect of which a declaration under Section 3 of the Act has been made. Rule 3 empowers the Chairman/ Member of National Industrial Relations Commission to regulate the wages and conditions of service of persons to which rules apply. It is the case of the petitioners that conditions of service of its employees are governed by a settlement with the Employees Union which has the approval and sanction of the specified authority and is duly published. Such a settlement or agreement between the Employer and the Employees Union stand on a higher footing than merely a bilateral agreement as it assumes the status of directions of the authority, the non-compliance of which entail penalties envisaged by the Act;

(iii) There is no allegation of non-compliance of the rules, regulations or settlement relating to the conditions of service of the employees either by the Federal Government, Specified Authority or the Employees Union. It also shows that the employees consider the benefits available to them more beneficial than to be given under any other law.

(iv) Pakistan Essential Services (Maintenance) Act, 1952 is a central law applicable to any employment under the Federal Government and to any employment or class of employment to which Act is made applicable. It is a special law, whereas Provincial Social Security Ordinance, 1965 is a provincial law, the latter will have to give way to the former not only in view of Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, but also that the field is already occupied by a Federal special law;

(v) the provisions of Pakistan Essential Services (Maintenance) Act, 1952 are of over-riding nature in view of non-obstante clause 'notwithstanding' appearing in Section 7-A of the Act;

(vi) in the presence of a declaration by the Federal Government in respect of employment of the Petitioners as essential service under the Act, notification under Section 1(3) of Provincial Social Security Ordinance, 1965 by the Provincial Government is not operative qua the petitioners.

1. In view of such a legal position obtaining in the matter, impugned notification applying the provisions of Provincial Social Security Ordinance, 1965 to the establishments of the petitioners cannot be regarded as a lawful exercise of power and is eclared as such.

2. This petition is accordingly accepted. No order as to costs. (T.A.F.) Petition accepted.

PLJ 2001 Lahore 58 [Rawalpindi Bench]

Present: muhammad nawaz abbasi, J.

M/s. MAPLE LEAF CEMENT FACTORY LIMITED LAHORE through its DIRECTOR & 2 others-Petitioners

versus

FEDERATION OF PAKISTAN through SECRETARY FINANCE, GOVERNMENT OF PAKISTAN, ISLAMABAD & 4 others-Respondents

Writ Petition No. 1261 of 2000, decided on 28.8.2000.

Constitution of Pakistan, 1973--

—-Art. 199-Before promulgation of Finance Act, 1997, Government granted exemption from payment of sales tax only to cement industry set up in N.W.F.P. but later on through Finance Act, 1997, this benefit was extended to whole of country on supply of cement-Apprehending withdrawal of said exemption and consequent lose of fair chance of business, petitioners filed writ petition-Held : Petitioners were not aggrieved persons, because neither any order had been passed by Government nor any act was done or proceedings were taken for withdrawal of said exemptions-Held further : Power of judicial review can be exercised by superior Courts against an act done, proceedings taken or order passed by a public functionary, but there is no concept for exercise of such power in the form of a prohibitory order restraining Government or its functionaries from discharging their lawful business-­ Petition dismissed. [P. 67 & 71] A & C

PLD 1957 SC (Pak) 9; PLD 1957 SC (Pak.) 154; NLR 1993 SCJ 524; PLJ

1999 SC 595; Unreported Judgment of Lahore High Court, Rawalpindi

Bench passed on 16.11.1999 in W.P. No. 801/99; PLD 1970 SC 139; PLJ

1999 SC 795; AIR 1954 SC 224; AIR 1989 SC 157; AIR 1989 SC 159; AIR

1981 SC 1960 ; PLD 1997 SC 582 ref.

(i) Constitution of Pakistan, 1973--

—-Art. 199-Legislature on its delegated body-Power of taxation-Exericse of-Judicial review-Levy of tax, grant of exemption and its withdrawal is necessity of State, which powers are always exercised in public interest to create a balanced society--If these powers are exercised in bad faith or for any purpose against the concept of law, then it is an abuse of power and fraud on Statute, and such an act can be struck down by superior Courts equipped with power of judicial review under Constitution-Power of judicial review must be exercised within Constitutional limits and care should be taken not to encroach upon the domain of Constitutional authority of Government-No prohibition and restriction can be imposed on legislative power of Government unless it is established that imposition of liability by Government through a law is seemingly oppressive and inequitable. [P. 71] B

(ii) Constitution of Pakistan, 1973-

—Art. 199-Representative Body or Government-Legislative functions of- Judicial interference into—Scope of-Ordinarily judicial nterference intofunctions of legislation of representative body or Government is not proper, but as legislature is presumed not to legislative a law manifestly causing injustice of abuses of jurisdiction of legislation, therefore in such circumstances. Courts have exclusive power to examine validity of such exercise of jurisdiction, [P. 71] E

M/s. Raja Muhammad Akram and Nauman Akram Raja, Advocates for Petitioners.

Mr. Tanvir Bashir Ansari, Deputy Attorney General, for Respondent No. 1.

Mr. Farhat Nawaz Lodhi, Advocate for C.B.R.

Raja Muhammad Bashir, Advocate for Respondent No. 4.

Date of hearing :: 28.8.2000.

order

For the detailed reasons to be recorded later, the present petition Bearing No. 1261 of 2000 (M/s. Maple Leaf Cement Factory Limited and others vs. Federation of Pakistan and others) connected writ petition Bearing No. 1412 of 2000 (Fecto Cement Limited vs. Federation of Pakistan and others) and Writ Petition No. 1413 of 2000 (Poiner Cement Limited, vs. Federation of Pakistan and others) stand dismissed with the observation that the interim order dated 10.6.2000 passed in Writ Petition No. 1261 of 2000 would be deemed to be not in the field in the interregnum period. Since the legislative powers of the Federal Government was not effected by the said order in any manner, therefore, the petitioner in the present petition as well as in the connected writ petitions would not be entitled to claim any benefit on the basis of the said order.

judgment

The petitioners namely M/s. Maple Leaf Cement Factory through its Director and two others, in the present petition and Fecto Cement Limited through its Manager and Pioneer Cement Limited through its Manager in the connected Writ Petitions Bearing Nos. 1412 and 1413 of 2000 being engaged in the business of manufacturing of cement have filed these petitions against the Federation of Pakistan through Ministry of Finance and C.B.R. as well as private respondents namely M/s. Lucky Cement Limited, Bestway Cement Limited and AWT Cement Ltd., seeking the following directions :--

That Respondents Nos. 1 and 2 be restrained from withdrawing the exemption from sales tax on the supply of ement in a discriminatory manner while putting the petitioners in a disadvantageous position to that of espondents Nos. 2 to 5 their rivals in the cement business;

That the official respondents be restrained from creating an y disparity in the matter of rights and privileges of the manufacturer of cement and monopoly in favour of a Limited class of manufacturers;

That all amendment in the Notification SRO No. 580(1)/91 dated 27.6.1991 through the subsequent notification be declared illegal and ineffective to the rights of the petitioners.

1. This petition was presented before me in my Chamber on 10.6.2000 with the request for its entertainment on the same day and in the light of the urgency shown by the learned counsel for the petitioner as incorporated in the order dated 10.6.2000, this petition was accordingly entertained. The order dated 10.6.2000 was to the following effect :--

"Learned counsel while presenting this Constitution petitioner in Chamber has requested for its entertainment today with submission, that there is imminent threat and danger of the withdrawal of the exemption made available to the petitioner under the Sixth Schedule to the Sales tact Act, 1990, by the concerned department forthwith through discrimination and if this petition is not entertained today, the same will become infructuous and the petitioner will suffer irreparable loss.

For the reasons given therein and shown by the learned counsel, this petition is entertained for today and the office is directed to register the same accordingly.

The learned counsel for the petitioner has submitted that some officials in the Central Board of Revenue, Islamabad, while proceeding in a discriminatory manner have taken effective steps for the withdrawal of the exemption of sales tax made available to the petitioner at the instance of Respondents Nos. 3 to 5 to create monopoly in the business in which they are engaged to the disadvantage of the petitioner. Learned counsel submitted that public functionaries are not supposed to proceed or act in the interest of an individual and are required to treat people equally, fairly and justly in the like situation. He in support of his submissions has placed reliance on PLD 1957 S.C.,(Pak.) 9, Jibendra Kishore Achharyya Chaudhry and 58 others vs. The Province of the East Pakistan, P.L.D. 1957 S.C. (Pak.) 157, Wans Meah. vs. The State, NLR 1993 S.C.J. 525 Govt. of Baluchistan vs. Aziz Ullah Memon. Reliance has also been placed on P.L.J. 1999 S.C. 595 Collector of Customs, Excise and Sales Tax, Peshawar and three others vs. Af/s. Flying Kraft Paper Mills (Pvt.) Limited, and unreported judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi, in writ Petition No. 801/99 in case of Dewan Suleman Fibre (Pvt.) Ltd. vs. Pakistan through Secretary, Ministry of Finance and other, delivered on 16.11.1999.

1. Let a copy of this petition be sent to Respondents Nos. 1 and 2 for their report and comments within ten days and the case shall be listed on 22.6.2000.

C.M. for interim relief.

Subject to notice for the date in the main petition and without prejudice to the generality of the powers of the respondents, they while following the principle of equality as embodied in Article 25 of the Constitution of the Islamic Republic of Pakistan 1973, will not pass any order or proceed in a manner prejudicial to the interests of the petitioner in the matter of exemptions vis-a-vis Respondents Nos. 3 to 5 through a discriminatory treatment meanwhile".

1. The main petition along with the miscellaneous application was adjourned to 22nd of June 2000, but due to my engagement at the Principal Seat, the cause list of my Court on the said date was cancelled and the main petition as well as C.M. No. 2487/2000 meanwhile moved on behalf of Lucky Cement, respondent in the present petition was listed for 27th June 2000 on which date, the following order was passed :--

"The comments called from Respondents Nos. 1 and 2 have not been submitted. The said respondents are also not represented Let a reminder be issued to the said respondents for submission of the report and parawise comments in terms of the order dated 10.6.2000. The Standing Council shall also be directed to appear in the case at limine stage on the next date.

C.M. No. 2487/2000

The Civil Misc. has been moved on behalf of Respondent No. 3 namely M/s. Lucky Cement Ltd. for recall of the interim order dated 10.6.2000 passed in C.M. N. 2389/2000.

Learned counsel representing the applicant questioning the maintainability of the writ petition requested for recall of the order as the same can adversely effect the business of Respondent No. 3. Since no order effecting any right of Respondent No. 3 was passed, therefore, without hearing Respondents Nos. 1 and 2 against whom grievance has been voiced by the petitioners, the interim order cannot be recalled or modified.

Notice in this C.M. be issued to Respondents Nos. 1 and 2 in the main petition as well as to the petitioners for their replies to this C.M. and arguments for an early date.

Meanwhile, the interim relief granted through order dated 10.6.2000 shall remained continue."

•N)

1. M/s. Lucky Cement Limited and Bestway Cement Limited respondents in the present petitions who have sought vacation of interim order through separate miscellaneous application at the same time filed independent Civil Petitions Bearing Nos. 948 of 2000 and Civil Petition No. 955 of 2000 against the above said orders dated 10.6.2000 and 27.6.2000 before the Apex Court which were converted into appeals and were disposed of by the Apex Court through judgment dated 5.7.2000 with the following observations :--

"We have heard the learned counsel for the parties at some length. The learned Judge in Chambers of the High Court has issued an ad-interim injunction to the effect that Respondents Nos. 1 and 2 namely, the Federation of Pakistan and Central Board of Revenue, "while following the principle of equality as embodied in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, will not pass any order or proceed in a manner prejudicial to the interests of the petitioner in the matter of exemptions vis-a-visRespondents Nos. 3 to 5 through a discriminatory treatment meanwhile". It would be noticed that the case was listed for 22.6.2000 for the Respondents Nos. 1 and 2 and comments within 10 days. In so far as interim relief is concerned, no notice was served for a specific date. The phraseology implied by the learned Single Judge in the impugned interim order on the C.M. was "subject to notice for he date in the main petition " It is not for the first time that we have come across such an order ignoring to give notice for a specific date to the respondents in general and to the Federal Government/ Provincial Government or their functionaries in particular which is prima facie in violation of clause (d) of Section 56 of the Specific

Relief Act, 1877 (No. 1 of 1877) prohibiting the grant of an injunction which interferes with the public duties of any Department of the Central Government or the Provincial Government. This Court has been at pains to point out that no ad-interim injunction should be issued against the Federal Government or Provincial Government or any functionary thereof without short notice to them. Reference may be made to Shahzada Muhammad Umar Beg vs. Sultan Mahmood Khan and another (PLD 1970 SC 139). In this context this Court observed as under :--

"The Single Judge in dealing with the bar under Section 56(d) of the Specific Relief Act, 1877 (I of 1877) has relied on a decision on Kaikaus, J., as he then was, in the case of Ahmad Din and others v. Faiz All and others (PUD 1954 Lah. 414), wherein it was held that if the jurisdiction to issue a temporary injunction is referable to inherent power, it cannot be taken away by Section 56 of the Specific Relief Act. With all respect, even if it were to be accepted that Section 56 does not limit the inherent power of a Court to grant temporary injunction, it cannot be said that in the exercise of those inherent powers it will not be a serious matter for the Court's consideration whether it would be right to issue an injunction to a public department which would obviously disturb its working and it would not do so unless compelling reasons demand tht course".

1. Notwithstanding this clear enunciation of the law on the subject, it is to note that some Courts throughout Pakistan grant ad interim injunction to the so called aggrieved party and pass an order restraining the Federal Government/Provincial Government or their functionaries from performing their normal official functions including those of legislating any law which in the instant case, according to the petitioners was "likely to be passed or issued". It may be observed that there was nothing on the record to suggest that there was any law in the offing or the order which was to be passed because nothing was placed on record in support thereof. Obviously such interim orders create enormous problems and difficulties particularly in the case of power of legislation of the Government which is competent to do so, but is stopped to function in accordance with law. The learned High Court was, therefore, required to have given a notice for a fixed date of the arguments of the case and for final disposal of the C.M. after hearing the parties.

2. Having served no notice on the official Respondents Nos. 1 and 2 as to the application for ad-interim injunction for a definite date, we are constrained to covert these two petitions into appeals, allow the same, set aside the impugned order dated 10.6.2000 and remand the case to the learned High Court for passing a fresh order in accordance with law after giving a notice of the application for interim injunction for an exact date to the respondents including the official Respondents Nos. 1 and 2 and on their appearance and filing their replies/comments, decide the application for interim relief afresh within the shortest possible time. This order of the Court shall not, however, prejudice the case of either party set up in the main writ petition pending in the Lahore High Court, Rawalpindi Bench or in any reply filed thereto. The parties are left to bear their own costs."

3. In the light of direction given by the apex Court, a miscellaneous application bearing C.M. No. 3017 of 2000 was moved on behalf of the petitioner for fixation of case which came up for hearing before me on 20.7.2000 in which notice was issued to the Respondents for 27.7.2000 but on the said date, I again being occupied at the Principal Seat was not available at Rawalpindi Bench and the matter was fixed before my learned brother Raja Muhammad Sabir-J and his lordship was placed to pass the following order :--

"The hearing of this petition is not possible in the absence of Respondent No. 5. Moreover, the matter was previously dealt with by my learned brother Muhammad Nawaz Abbasi, J. It would be appropriate that if be placed before his Lordship for final decision.

1. Adjourned. To be listed for a date to be fixed by the office before the aforesaid learned Beech with a notice to Respondent No. 5 as well as his counsel. Preceding order dated 20.7.2000 shall be complied with meanwhile".

2. During the period from 24.7.2000 to 5.8.2000,1 remained busy at the Principal Seat and thereafter I proceeded for summar vocation and resumed my function on 28.8.2000. Meanwhile the Deputy Attorney General while representing espondents Nos. 1 and 2 moved a miscellaneous application Bearing No. 3686/2000 for fixation and disposal of the present writ petition and the connected petitions on 24.8.2000 with the following contents :--

"Although the main interim order in Writ Petition No. 1261/2000 has since been set aside by the Houourable Supreme Court and no benefit can be lawfully claimed by the writ petitioners in Writ Petition No. 1412/2000 and Writ Petition No. 1413/2000, yet this Honourable Court may be pleased to pass an order of vocation of stay in the said writ petitions on this ground.

That as well the three writ petitions i.e. W.P. No. 1261/2000, W.P. No. 1412/2000 and W.P. No. 1413/2000 are admittedly based on the same cause of action and are interconnected, it is in the interest of justice that all the above mentioned three writ petitions alongwith the Civil Misc. applications for the grant of interim order may be fixed together for an early date.

In the judgment dated 5.7.2000 passed by the Supreme Court, it has been observed that the matter may be decided afresh within the shortest possible time. Needless to submit that the observation has been made to avoid any delay in the legitimate functioning of the Federal Government."

1. Despite recalling of an interim order dated 10.6.2000 passed in Writ Petition No. 1261/2000 on the basis of which an interim relief was also allowed to the petitioner in the connected with petitions by the apex Court, the above said application was moved for vacation of order date 10.6.2000. This application came up for hearing before my learned brother Maulvi Anwarul Haq-J on 24.8.2000 and his Lordship was pleased to pass the following order :--

"Pursuant to C.M. No. 3569/2000 in W.P. No. 1412/2000, C.M. No. 3570/2000 in W.P. No. 1413/2000, I have passed an order on 23.8.2000 in terms of the said C.Ms, and in term of the said order all these three cases shall be heard on 15.9.2000 \in the light of the judgment of the Supreme Court passed in CP. 948/2000 and CP 955/2000. As prayed for by the learned Law Officer, the case be fixed at No. 1 in the cause list for the said date".

1. Since I resumed my function at Rawalpindi Bench on 28th August 2000, therefore, the office in the light of the order dated 27.7.2000 passed by my learned brother Raja Muhammad Sabir-J and the direction given by the apex Court through an order dated 5.7.2000 fixed the main petition along with the miscellaneous application before me on 28.8.2000 as motion case.

2. Under the order dated 10.6.2000 passed by this Court, the Ministry of Finance, Government of Pakistan and entral Board of Revenue, Respondents Nos. 1 and 2 herein, were required to submit the report and parawise comments within ten days Le. by 22.6.2000, but despite lapse of a period of two months and eighteen days, the said respondents have neither filed report and parawise comments to this petition and the connected petitions nor any representative of the said respondents attended this case before 27.7.2000 or took any step for compliance of the order dated 10.6.2000 to enable the Court to dispose of these petitions. The learned Deputy Attorney General while representing the Federation in the present case in the light of the order date 24.8.2000 sought an adjournment on the plea that these petitions having already been fixed for 15th September, 2000, by order of the Court should not be heard before that date. The learned counsel representing Bestway Cement Limited, a private respondent in all hese petitions submitted that since Respondents Nos. 3 and 5 are un-represented today, therefore, the case may be adjourned as requested by the learned Deputy Attorney General for any other date convenient to this Court.Learned counsel for the petitioners, on the other hand in the light of the direction of the apex Court, insisted that at least miscellaneous application for the grant of interim relief may be disp9sed of today. The order of the fixation of the main petition was passed by my learned brother Maulvi Anwarul Haq-J, on 24.8.2000 on a miscellaneous application moved by the learned Deputy attorney-General whereas earlier a specific order was passed on 27.7.2000 by my learned brother Raja Muhammad Sabir-J that these petitions should be fixed before me and thus keeping in view the direction of the apex Court, I am not inclined to adjourn these petitions on the request being made by the learned Deputy Attorney General and the learned counsel appearing on behalf of Bestway Cement Limited, a private respondent.

3. The petitioners and the respondents Cement Companies having set up Cement Plants are engaged in the manufacturing and supply of cement throughout the country. The whole sale and retail price of the cement is fixed by the Monopoly Control Board set up by the Government of akistan. The Notification SRO No. 580(1)/91 dated 27th June 1991, issued by the Federal Government under which all Industries which have been set upon North-West Frontier Province between the 1st July 1991 and the 30th June 1996, were exempted from the payment of sales tax payable under the Sales Tax Act, 1990, was to the ollowing effect :--

"Notification No. S.R.O. 580(1)/91 dated 27th June, 1991.--In exercise of the powers conferred by sub-section (I) of Section 13 of the Sales Tax Act, 1990, the Federal Government is pleased to direct that all goods produced or manufactured by such Industries which are set up in the North-West Frontier Province between the 1st July, 1991, and the 30th June, 1996, shall be exempt from the tax payable under the said Act for a period of five years from the date the industry is set up.

Explanation. -For the purpose of this Notification, the expression "set up" shall mean the date on which the industry goes into production including trial production, which date shall be intimated, in writing, by an intending manufacturer to the Assistant Collector of Sales tax having jurisdiction in the area at least fifteen days before commencing such production."

1. Subsequent to the issue of above said notification, a number of other Notifications SRO No, 56KD/94 dated 9.6.1994, SRO No. 612(I)/94 dated 14.6.1994, SRO No. 113KD/94 dated 22.11.1994 and SRO No. 475(I)/ 96 dated 13.6.1996 have been issued by the Federal Government with some additional benefits to the Industry set up in the backward areas of NWFP.

2. The petitioners apprehending encroachment upon their right of business and trade through open competition have hallenged the legality of the above said notifications issued subsequent to Notification SRO No. 580(1)/91 dated 27.6.1991 through these petitions. Precisely the grievance of the petitioners is that before promulgation of Finance Act, 1997, the

Government under a unilateral policy extended the benefit of exemption from payment of sales tax only to the Industry set up in the N.W.F.P. bul under Finance Act, 1997, the Government while framing a uniform policy exempted the payment of Sales tax on the supply of cement throughout the country and the complaint of the petitioners regarding discriminatory treatment stood redressed. The petitioners now under the apprehension that the Federal Government intended to withdraw the exemption from the levy of sales tax on the supply of cement, which was available to them under 6th Schedule to the Sales Tax Act, 1990, through the Finance Act 1997, and in consequence thereto, the position prior to the promulgation of the Finance Act 1997, would revive and the petitioners would be deprived of their legitimate right of availing the exemption have filed the present petitions raising the grievance that in such situation, their rival manufacturers of cement in the North West Frontier Province would create monopoly. The anxiety of the petitioners in the present petitions was that with the equal cost of production, the petitioners would loose equal opportunity of business whereas the private respondent at the same time would enjoy business monopoly in the cement market. In nutshell, the case of the petitioners is that in the same situation, the payment of sales tax by the petitioner and exemption to the private respondents in the present petitions on the supply of cement would defeat their fundamental right of-business and equal protection of law as provided under Articles 8 and 25 of the Constitution of Islamic Republic of Pakistan 1973.

1. On the contrary, the case of the private respondents in the present petitions is that they were enjoying the xemption on the sale tax on the supply of cement, before issue of Finance Act 1997, and their position was not changed on the promulgation of said. Act, therefore, the withdrawal of any concession being enjoyed by the petitioners through change in law would neither be any special favour to the respondents nor discrimination to the petitioners. The case of the Federal Government is that without taking plea of any change in the legal position, the petitioners have no cause of action to file the present petitions.

2. Learned counsel for the petitioners argued that different treatment to the petitioners engaged In the same usiness in the same circumstances being in conflict to the principle of equality before law and equal protection of law as embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, is not permissible and the public functionaries must act fairly and equally to all persons in similar circumstances without any favour or dis-favour to any person or class of persons. Learned counsel, however, contended that on the basis of principle of "reasonable classification" the Government is always empowered to safeguard the interest of a particular section of the people in the public interest but under the rule of ''reasonable classification", the personal interest of individuals cannot be given protection. He argued that the principle of "reasonable classification" must not be applied in departure to the spirit of Article 25 of the Constitution and the public interest. According to the learned counsel, tlxe bifurcation of manufacturers of cement into two classes in the matter of exemption in the payment of sales tax on the basis of "reasonable classification" would tantamount to create monopoly in favour of a few persons and to oust the remaining persons engaged in the same business from the market. Precisely, the learned counsel for the petitioners argued that although Respondents Nos. I and 2 have not yet withdrawn the exemptions available to the petitioners but there being a serious threat of the withdrawal of the same and economic injustice to them, this Court in exercise of its Constitutional jurisdiction can issue a writ of prohibition against the Respondents Nos. 1 and 2 not to do anything which is not permitted by law. He has placed reliance on Collector of Customs, Excise and Sales Tax, Peshawar and three others. Vs. M/s. Flying Kraft Paper Mills (Put.) Ltd. Charsada, District Peshawar (PLJ 1999 S.C. 795) wherein the apex Court while dealing the question of discrimination and economic injustice with reference to Article 2-A, 4 and 25 of the Constitution of Islamic Republic of Pakistan 1973, observed as under :--

"The situation, thus, exhibiting lack of transparency in the process of decision making, the power of judicial revision, under Article 199 of the Constitution, does not extend to see whether or not such had been arrived at by the public functionaries concerned in a manner which did not contravenes the fundamental rights or the Constitutional guarantees. Additionally, while there is a power in the legislature and other taxing Authorities to classify persons or properties into categories and to subject them to different rate of taxes, there is none to target incidence of taxation in such a way that similarly placed persona are dealt with not only this similarly but discriminatory. [See Elahi Cotton Mills Limited vs. Federation of Pakistan, P.L.D. 1997 S.C. 582]. While it remains true that of taxation measure cannot be struck down lightly and even tests of discrimination are rigorous, the rigorous can be softened where the levying authority is a delegated one, coming to be exercised, not by the legislature but by the executive and, at that, with a degree not only of non-concerned but even abandon, thronghing up a case of disregard of fundamental rights and Constitutional safeguard. Even so, the Court cannot assume either the legislative or the executive function. For such reason, and correctly, the High Court left the Company to seek exemption or regulation of the Excise duty from the C.B.R./Federal Government, as also the ultimate working out of equivalence and reduction of the levy generally in the following words, with the same appellants", Learned counsel also placed reliance on Messrs. Dwarka Prasad Laxmi Narain. vs. Slate of Uttar Pradesh and others (A.I.R. 1954 S.C. 224), Fasih Chaudhry vs. Director General, Doordarshan and others (AIR 1989 Supreme Court 157), Jugal Kifilu.-re vs. State of Maharashtra and others

(AIR 1989 Supreme Court 159) and Richpal Singh and another vs. Raj Singh and others (AIR 1981 Supreme Court 1960).

1. Learned Deputy Attorney General on the other hand, argued that the petitioners have filed the present petitions without any genuine grievance and cause of action. He submitted that the exemptions of sales tax on the supply of cement were allowed to the manufacturer under 6th Schedule to the Sales Tax Act 1990, in the Finance Act 1997, and the samehaving not been withdrawn were still available to the petitioners. He ubmitted that no order, circular or notification was issued disentitling the petitioners from getting the exemptions of the sales tax till now. However, it being a legitimate right of the Government to grant and withdraw such concessions in peculiar circumstances in the public interest, the withdrawal of a special concession given to a person or class of persons would not be objectionable. The learned Deputy Attorney General while summing up his arguments contended that the present petitions being misconceived are not maintainable.

2. Learned counsel representing the C.B.R. while placing reliance on Messrs Elahi Cotton Mills Ltd. and others us. Federation of Pakistan through Secretary M/O. Finance, Islamabad and 6 others (P.L.D. 1997 S.C. 582) argued that no restriction can be placed, on the legislative power of the Government to make a law and issue a notification to regulate a matter if the ircumstances so demand. He submitted that the Government without encroaching upon the power of legislative Body recognized in the Constitution can legitimately make laws in exercise of its power as subordinate legislative authority and thus no preventive order to the exercise of such authority can be passed by this Court in the jurisdiction of judicial review.

3. Learned counsel representing Bestway Cement Limited, one of the respondent in these petitions argued that the present etitions have been filed as a preventive measure without any real grievance, therefore, the same are bound to be dismissed as pre-mature. He has submitted that although the order dated 10.6.2000 passed by this Court did not debar the Government from exercising its legislative power and issuing a notification of withdrawal of exemption if any, yet the petitioners while misinterpretingthe said order created an impression in the relevant quarters that the Government has been restrained from exercising its legislative ower. He argued that actually the scope of the interim order was very limited as the same was confined only to the extent of dministrative acts and would not curtail the legislative authority of the Government and consequently there was no bar for the Federal Government or the C.B.R. to exercise thelegislative power under the relevant Statute but unfortunately the functionaries of the Respondents Nos. 1 and 2 took an impression that restrictions have been placed on the legislative power f the Government. Learned counsel has submitted that the Proprietor of Bestway Cement

Limited on the incentive given by the Government has invested a huge foreign exchange for establishing the Cement Plant in the backward area of N.W.F.P. with the understanding of continuation of the incentives in question for a considerable period, He added that since no such incentive was given to the Industry being set up in the Punjab, therefore, the respondents took the risk of investment, in the special area, as such, the petitioners cannot justifiably claim the placement of industry established in developed area to that of the industry in backward area. He argued that withdrawal of exemption given under Finance Act, 1997, would not put the petitioners in disadvantageous position vis-a-vis the private respondents who were enjoying such exemptions much before the promulgation of Finance Act 1997, and thus the petitioners on the basis of principle of equality before law and equal protection of law cannot chum themselves at par to Cement Industry set up in N.W.F.P. and the respondents, who have established the industry in the backward area of N.W.F.P. taking the rise of loss of investment. The learned counsel finally argued that a writ of prohibition is issued only in exceptional and extraordinary circumstances without disturbing the normal functions being discharged by the public functionaries.

1. The main issues canvassed in the present petitions relate to the taxation power of the Government, equality before the law without any discrimination and the principle of "reasonable classification". The preliminary question for determination would be "whether this Court in exercise of its Constitutional jurisdiction can issue direction in the nature of prohibition to Respondents Nos. 1 and 2 aot to exercise its legislative power in matter of such public importance". It is true that the authority to tax under the law cannot be used in an oppressive manner which may destroy the business or create monopoly in favour of a person or class of persons as against the general concept of economic prosperity. The object of levy of tax, grant of certain exemptions and the withdrawal of the same is always in the public interest to create a balance society and if this power is exercised in an arbitrary manner effecting the lawful earning of a person or a class of persons, the very object of the taxation would be defeated and such legislation of course would be violative of the fundamental rights of fair chance of business and to provide equal opportunities to all as guaranteed by the Constitution. The power of taxation, grant of exemption and withdrawal of such exemptions being a necessity of State is essentially and primarily rests on the legislative power of the State, which is either exercised by the legislative Body of the State or by the Government under its delegated power and consequently, this legislative power of the State is always exercised by the Government in the public interest. However, if powers confer on an Authority is exercised in bad faith or for any purpose against the concept of law, it is an abuse of power and fraud on the Statute and in such case, the act of such an authority by issue of an appropriate writ can be struck down by the superior Courts which are equipped with power of judicial review under the Constitution. However, this power of judicial review must be exercised within the Constitutional limits and a care should be taken not to encroach upon the domain of Constitutional authority of the Government. The Constitution confers right, privilege and liabilities on the citizens and also places restrictions on the exercise of powers by the Government not to act in violation to the rights of the people. However, no prohibition and restriction can be imposed on the legislative power of Government unless it is established that the imposition of a liability by the Governmenfythrough a law is seemingly oppressive and inequitable. The imposition of lifhitation upon a person in enjoyment of a right may not be against the public interest but would definitely amount the evasion of such right arbitrarily and would be unreasonable to a civilized society.

2. The petitioners under the apprehension of withdrawal of exemptions of sales tax available to them under law and lose of fair chance of business sought interference of this Court through these petitions whereas the private respondents with the expectations of better prospects of their business strongly opposed these petitions. The learned Deputy Attorney- General informed the Court that no step was taken by the Government for the withdrawal of exemptions or for grant of special concessions to the private respondents. The admitted position is that neither any order has been passed by the Government nor any act was done or roceedings were taken for the withdrawal of exemptions and, therefore, neither thepetitioners were the aggrieved persons to invoke the Constitutional jurisdiction of this Court nor the order prohibiting the Government from doing its lawful business can be issued. The power of judicial review can undoubtedly be exercised by the superior Courts against an act done, proceedings taken or order passed by a public functionary, but there is no concept for exercise of such power of judicial review in the form f a prohibitory order restraining the Government or its functionaries from discharging their lawful business. In Power Project cases decided by me through Writ Petition No. 505 of 1997 and connected with petitions, I observed that "the judicial interference into the functions of legislation of a representative Body or the Government, as the case may be, ordinarily is not proper but at the same time, legislature is presumed not to legislate a law manifestly causing injustice or abuses of the jurisdiction of legislation, therefore, in such circumstances, the Courts have the exclusive powers to examine the validity of such exercise of jurisdiction."

3. In nutshell the petitioners without any substantial cause invited this academic discussion in the interest of their business rospects in future. As earlier observed, the legislative function of Government being not effected by the interim order passed by this Court, Respondents Nos. 1 and 2 could proceed freely and particularly after recalling of said order by the apex Court on 5.7.2000, the position was entirely changed.

4. It is noticeable that the petitioners without any substantial cause raised controversial questions while creating an impression that the officials of Respondents Nos. 1 and 2 at the instance of private respondents have proposed the withdrawal of exemptions of the petitioners whereas the private respondents on the other hand while misdirecting themselves expected extra benefits beyond the scope of law. It is sad that the representative of Respondents Nos. 1 and 2 have not bothered to submit the report and parawise comments to these petitions in compliance of the order dated 10.6.2000 till today. The learned Deputy Attorney General while realizing the omission has made a request for further time to enable him to file the report and comments on behalf of the Federal Government but this exercise at this stage would serve no useful purpose except formal compliance of the order of this Court.

5. The petitioners being apprehensive of withdrawal of exemptions on sales tax and in consequence thereto reduction in profit voiced grievance against Respondents Nos. 1 and 2 whereas the respondents with the expectation of more gain in the business pleaded their individual interest. The gain and loss in profit during the course of business due to an act ofGovernment done in public interest in good faith would not be an economicinjustice as contended by the learned counsel for the petitioners, therefore, none of them can be given any relief in the present petitions.

6. The up-shot of the above discussion is that this petition as well as the connected petitions having been filed without any substantial grievance and cause of action are not maintainable and consequently while treating the short order dated 28.8.2000 as part of this judgement, the same are accordingly dismissed.

(S.A.K.M.) Petition dismissed.

PLJ 2001 Lahore 72 (DB)

Present: amr alam khan and saved zahid hussain, JJ.

NATIONAL BANK OF PAKISTAN-Appellant

versus M/s. Ch. AUTO & TOOLS AGENCY-Respondent

F.A.O. No. 31 of 1986, heard on 4.10.2000.

(i) Civil Procedure Code, 1908 (V of 1908)--

—S. 2(2)-Decree is formal expression of adjudication, which conclusively determine rights of parties with regard to all or any of the matters in controversy in the suit. [P. 75] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

-—S. 47 read with S. 151--Banking Companies (Recovery of Loans) Ordina nce, 1979-Application by judgement-debtor- aintainability-Whether any such application can at all be entertained/maintained without there being an application filed by decree holder-Question of~ During pendency of suit filed by bank for recovery of money, respondents confessed the judgment with rider that if bank returns them pledged goods in species, the suit may be decreed and that pledged goods would only be received on payment of decretal amount, whereupon Banking Court passed • conditional decree—On realising the inability of bank to return pledged goods in species, respondents filed application u/S. 47, CPC for discharge and satisfaction of decree, but it was resisted by ank on the ground that it being premature not maintainable for no execution as such had been filed by bank-Banking Court held the application maintainable-Challenge to-Held : Decree could have been satisfied byexecution thereof, while other mode open to judgment debtor was to obtain discharge by tendering payment to decree holder-In both cases aforenoted matter falls in the do main of execution, satisfaction and discharge of decree-Held Further : Decree being conditional, it was open to judgment debtor to have claimed pledged goods by offering decretal amount and bank was obliged by terms of decree itself to surrender pledged goods on payment of decretal amount, thus, for its execution, discharge and satisfaction, judgment debtor could file and maintain application under Section 47, CPC. [P. 75] C

ILR-23-Madrass-377 rel. on.

(iii) Civil Procedure Code, 1908--

—O. XXVI, Rule 10-Banking Companies (Recovery of Loans) Ordinance, 1979—Local Commission—Necessity for appointment f—Report of local commissioners appointed with consent of parties was upheld by Banking Court, according to which the goods identified and shown by bank did not tally with goods mentioned in letter of pledge-Challenge to—Contention that material issue in case could not be delegated to local commissioner nor his finding should be received as evidence in case—Held : Question being that of condition, quality and quantity of pledged goods could only be determined by appointment of local commissioner, who could go to godown of bank to ascertain the same-It is ordained in Rule 10, Order XXVI, CPC that report of local commissioner shall be evidence in suit and shall also form part of the record-In absence of any objection to report of local commissioners by bank, it had been rightly upheld by Banking Court. [P. 76] D

PUD 1978 Lahore 31 ref.

(iv) Execution--

—In the domain of execution, satisfaction of decree can be obtained by decree-holder by executing it, while judgment-debtor can also satisfy decree by complying therewith. [P. 75] B

Mian Hamid Farooq, Advocate for Appellant.

Nemo for Respondent, Date of hearing : 4-10-2000.

judgment

Amir Alam Khan, J.-This judgment will dispose of F.A.Os. Nos. 31, 32, 33, 34, 35, 36, 37, 38 and 39 of 1986 as common questions of facts and law are involved therein, 2. All the above said appeals are directed against the order dated 23.11.1985 passed by the learned Special Judge Banking, Lahore, whereby the applications of the judgment debtors filed under section 47 CPC was held to be maintainable and the report of the local commissioners appointed during the course of pendency of the main suit was also upheld.

1. The relevant facts for the disposal of the appeals afore noted are that the appellant herein filed suits for recovery of different amounts against the respondents as arrayed in the aforesaid appeals. The suits proceeded and during the pendency thereof local ommissioners were appointed to ascertain as to whether the pledged goods were available and still intact for the purpose of returning the same to the respondents. The local commissioners so appointed did render a report but the same was not considered for the learned Banking Court was of the opinion that it was not a stage to consider the same. However, some times later the parties agreed to the appointment of another commission, which was accordingly appointed, who rendered a consolidated report in the cases afore noted on 4.3.1985. It was reported by the local commissioners that the pledged goods were not available with the bank for the one shown to them did not tally with the goods mentioned in the letter of pledge. The bank, however, insisted that it is in possession of the pledged goods and it would return the same in species to the respondents. It was then that the respondents confessed judgment with the rider that if the bank returns them the pledged goods in species, the suits may be decreed and that the pledged goods would only be received on the payment of the decreetal amount. Consequent thereupon, conditional decrees were passed in all the suits filed by the appellant.

2. In the course that followed the judgment debtors filed applications under Section 47 C.P.C. with the assertion hat the judgment debtors have reason to believe that now the appellant has fully realized its inability to return the pledged goods to the judgment debtors, it has started disputing the true quantity, quality and condition of the pledged goods which has a direct relation to the execution, discharge and satisfaction of the decree, therefore, the Court may determine the same. The applications afore noted were resisted by the decree holder bank inter alia on the ground that the same were not maintainable for no execution as such had been filed by the bank and that the pledged goods were available with the bank for the purpose of handing over to the judgment debtors, but they should first surrender the decreetal amount and then demand the pledged goods. It was also maintained by the decree holder bank that the first local commissioner had reported as to the condition, quantity and quality of the pledged goods, which is available on the file.

3. The question as to whether an application under Section 47 C.P.C. could at all be entertained/maintained without there being an execution application filed by the decree holder and the allied question as to whether in the circumstances the report of the local commissioner could be relied,«had been decided by the Banking Court videits judgment-dated 23.11.1985, whereby the application was held to be maintainable while the report of the local commissioners was upheld.

4. The above said order has been assailed in the present appeals.

5. The main thrust of arguments of the learned counsel for the appellant was to the effect that since no execution pplication had been filed by the decree holder, therefore, the question relating to the execution, satisfaction and discharge of the decree did not arise at all hence the application filed by the judgment debtors was premature and should not have been entertained by the learned Banking Court. This argument has not impressed us. As a matter of fact decree is formal expression of djudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. In the domain of execution, the satisfaction thereof can be obtained by the decree holder by executing the same, while the judgment debtor an also satisfy the decree by complying therewith. In the instant case the decree could have been satisfied by the execution thereof while the other mode open to the judgment debtor was to obtain discharge by tendering the payment to the decree holder. In both the cases afore noted the matter falls in the domain of execution, satisfaction and discharge of the decree. There is yet another aspect of the atter i.e. the decree being conditional, it was open for the judgment debtor to haveclaimed the pledged goods by offering the decretal amount and the bank was obliged by the terms of the decree itself to surrender the pledged goods to the judgment debtors on the payment of the decretal amount, therefore, it was eminently a case which related to the execution, satisfaction and discharge of the decree and judgment debtor could have also filed and maintained an application under Section 47 CPC. We are fortified in this view by the rule laid down in Erusappa Mudaliar vs. Commercial and Land Mortgage Bank Limited (ILK 23 Mad. 377) which has also been followed by the learned Banking Judge. The said rule is instructive and for that reason the same may be reproduced hereunder :

"We cannot construe the words 'a Court executing a decree' as meaning, as contended on behalf of the respondents, that the section only covers cases of proceedings initiated by the decree holder and does not include applications (relating to the execution, discharge or satisfaction of the decree) made by the judgment debtor."

The judgment afore noted has been delivered under the old Section 244 CPC, which in its terms corresponds with the present Section 47 CPC. Obviously the application under Section 47 CPC was competently filed before the Banking Court.

1. Coming to the second report of the local commissioners need it be mentioned here that the same was not objected to by either of the parties. The local commissioners had patently reported that the goods identified and shown by the bank did not tally either the specification or the make as incorporated in the pledge letter, therefore, the same were not ascertained and found to be gdjxls actually pledged with the bank. The learned counsel for the appellant relying on Muhammad Bakhsh vs. Nizam Din (PLD 1978 Lahore 31) argued that the material issue in the case could not be delegated to the local commissioners nor the findings arrived at by the local commissioners should be received as evidence in the case. Both the arguments afore noted are devoid of any merits for the local commissioners were appointed on the statement of the learned counsel for the bank and that too from the Awami Motors, (subsequently came to be known as Sindh Motors) for the experts of the said concern were acknowledged to be the person having technical knowledge about the spare parts. Bank people are definitely estopped from challenging the said report. Needless o add that no objections were filed on the report of the local commissioners, therefore, it was rightly concluded that the bank people have accepted the same. Again the question being that of the condition, quality and quantity of the pledged goods could only be determined by appointment of the local commissioner, who could go to the godown of the bank to ascertain the same. It is ordained in Rule 10 of Order XXVI CPC that the report of the local commissioner shall be evidence in the suit and shall also form part of the record. In the absence of any objection to the report of the local commissioners by the decree holder, the same had been rightly upheld by the learned Banking Court. In the circumstances, the learned counsel for the appellant has failed to point out any vitiative infirmity in the impugned judgment of the Banking Court.

2. In result the FAOs afore noted are dismissed with costs, (S.A.K.M.) Appeals dismissed.

PLJ 2001 Lahore 77

[Multan Bench Multan]

Present: muahmmad akhtar shabbir, J.

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through its CHAIRMAN and 3 others-Appellants

versus

Mst. SAFIA BEGUM-Respondent

R.S.A. No. 23 of 1993, heard on 5-10-2000.

Limitation Act, 1908 (IX of 1908)--

—S. 14 & Art. 86--Civil Procedure Code (V of 1908)-S. 100-Life Insurance Policies-Plaintiffs husband having died in railway accident just one year after taking of Insurance cover, plaintiffs death claim was rejected by defendant corporation on the ground of concealment of material facts i.e. he was patient of hypertension-Plaintiffs suit ,in respect of Insurance policy was decreed by two courts below-Validity-Defendant's only plea against decree and judgment was bar of limitation in that suit having been filed beyond period of limitation, plaintiff was not entitled to judgment and decree against defendant-Plaintiff had been prosecuting her case before Wafaqi Mohtasib which is not a court as per terms of S. 14 of Limitation Act 1908-Proceedings on application of plaintiff before Wafaqi Mohtasib, therefore, would not be deem to be proceedings in wrong court, thus, benefit of S. 14, Limitation Act would not be attracted -Defendants in evidence, however, no where stated that suit was hit by limitation-Defendant was required to establish on record the date when claim of plaintiff was refused by the corporation but no such evidence was produced in court-Date of death of Insured was although the starting point oi limitation under Art. 86-A of Limitation Act, yet where Insurer acknowledged liability to the sum insured by a letter refusing to pay, limitation would start from the date of signing of such letter-Evidence to establish expiry of period of limitation being on defendant, no such evidence was produced by it-Defendant having failed to prove onus of expiry of limitation, presumption would be against that party-Defendant having failed to point out any illegality, material irregularity in impugned judgment and decree, no interference was warranted with the same.

[Pp. 79, 81 & 82] A, B & C

1992 SCMR 424; NLR 1986 Civil 623; 1992 CLC 22; 1980 Law Notes (Karachi) 57; PLD 1984 AJ & K 138.

Mr. Athar Rehman Khan, Advocate for Appellants. Sh. Zia-ud-Din Ahmad, Advocate for Respondent Date of hearing: 5.10.2000.

judgment

This judgment will dispose of RSAs Nos. 23 and 24 of 1993 as both involve identical questions of fact and law.

1. Facts giving rise to the present appeals are that the plaintiff/respondent (herein) Mst. Safia Begum alongwith her husband Late Nawab Din purchased two life policies Nos. 50/3833050 and 50/3833051 for rupees one lac each on 8.2,1993. Nawab Din one of the policy holder died in a railway accident on 12.4.1984 just after one year of taking the insurance cover. After his death, Mst. Safia/respondent lodged a death claim with the appellant-Corporation in respect of the said policy. Since it was the case of early death claim, so the investigations were conducted by the appellant- Corporation and it was found that the insured Nawab Din was patient ofhypertension which he has not disclosed in his proposal form at the time of purchase of policy in question. Hence, the death claim was repudiated on 6.5.1985 on the ground of concealment of material facts.

2. Mst. Sofia Begum/respondent filed a complaint with the Wafaqi Mohtasib, Lahore on 9.8.1986 against the decision of the appellants/Corporation but the Wafaqi Mohtasib decided the case in favour of the State Life Insurance Corporation on 12.6.1988. Thereafter, Mst.Safia filed two separate suits for declaration and mandatory injunction in the Civil Court at Chichawatni against the appellants that she was entitled for a decree of Rs. 2,00,000/- (two lacs) and consequential relief of mandatory injunction. Both the suits were contested by the appellant, controverting the assertions raised in the plaint by filing the written statement. From the factual controversy appearing on the pleadings of the parties the trial court led to frame the various issues.

3. After recording and appreciating the evidence of the parties, pro and contra, the trial court decreed both the suits videconsolidated judgment and decree dated 6.1.1992. The appellant/Corporation preferred an appeal against the said judgment and decree and the appellate court vide impugned and decree dated 22.2.1993 directed the trial court to determine the Issues Nos. 1 to 7 and to record findings thereon separately and then submit the case within one month. After the remand, the trial court decided Issues Nos. 1 to 7 separately and maintained its judgment and decree passed earlier (decreeing the suits) vide judgment and decree dated 21.3.1993. Feeling aggrieved, the appellants/Corporation filed an appeal in the court of learned District Judge Sahiwal which was dismissed vide judgment and decree dated 12.7.1993 upholding the findings of the trial court.

4. Learned counsel for the appellant only objected the findings of the trial court on Issue No. 4 which is as under:

"Whether the suit is barred by limitation ? OPD.

Learned counsel argued that the suit filed by the plaintiff was barred by limitation because the same was filed beyond period of three years from the date of death of the insured Nawab Din. The respondent has been prosecuting her case before Wafaqi Mohtasib therefore, benefit of Section 14 of the Limitation Act would not be available to the plaintiff/ respondent. Further submitted that the suit was brought by the plaintiff on 17.4.1989 while the death of Nawab Din/her husband occurred on 13.4.1984. Relied on the case ofMasud Ahmad and 2 others vs. United Bank Ltd. (1992 S.C.M.R. 424) and Said/Ahmad Khan vs. Syed Altaf Hussain (NLR 1986 Civil 623).

1. On the other hand, learned counsel appearing on behalf of contesting respondent has vehemently opposed the rguments of the learned counsel for the appellants and supported the findings of the courts below. Learned counsel contended that the time spent in the proceedings before Wafaqi Mohtasib shall be deemed to be the proceedings in the wrong forum and therefore, the benefit of Section 14 of the Limitation Act is attracted to the present case. He relied on the case of Muhammad Sharif Khan vs. Mst.Manzooran Begum (1992 CLC 22).

2. I have heard the learned counsel for the parties and perused the record. Section 14 of the Limitation Act has provided as under :

"14. Exclusion of time of proceedings bona fide in court without jurisdiction.-(l) In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceedings is founded upon the same action of section and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."

From the plain reading of Section 14 of the Limitation Act, it reveals that benefit of this section would be given to the case which has been prosecuted with due diligence in the court of first instance or in a court of appeal, against the defendant in good faith which from defect of jurisdiction or other cause of a like nature is unable to entertain the same. The word 'court' has been mentioned in the said section which means that if prosecution has been in progress in a court having no jurisdiction to entertain the same. Office of Wafaqi Mohtasib is not a court as enshrines in Section 14 of the said Act, therefore, proceedings on the application of the plaintiff before Wafaqi Mohtasib would not be deemed to be the proceedings in the wrong court and hence, benefit of Section 14 will not be attracted to the instant case.

Article 86 of the Limitation Act has provided that:--

1. (a) On a policy of Three years. The date of the Insurance when the death of the sum insured is pay- deceased, able after proof of the death has been given to or received by the insurers.

(b) On a policy of (b) The date of the

insurance when the occurrence causing

sum insured is pay- the loss.

able after proof of the

loss has been given to

or received by the

insurers.

The Limitation provided in this Article is three years started from the date of death of the deceased.

1. Section 19 of the said Act envisaged as under :

"19. Effect of acknowledgment in writing.--(l) where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed."

From the above said provision of law, it is manifestly clear that where an acknowledgement of liability in respect of property or right has been -made in writing by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.

In the case in hand, the plaintiff/respondent when disappointed by the appellants/Corporation, approached the Wafeqi Mohtasib where she was asked to resort to the remedy by filing of a suit in a court of competent jurisdiction and then, she again requested the appellant for the payment of insured amount and on the refusal by the Corporation, she filed the suits.

1. Rana Babu Khan Ex-Officer of State Life Insurance Corporation appeared in the trial court as DW-5 and deposed that the claim of the plaintiff was rejected by the Insurance Company on the ground that at the time of purchase of policy, the insured had concealed the facts, regarding his

illness. In the evidence of the defendants/appellants it is nowhere stated that the suit was hit by limitation nor it is on the file of the court that when 'the claim of the plaintiff was lastly refused by the Insurance Company. It was incumbant on the defendants/appellants to establish on record the date when the claim of the plaintiff was refused by the Corporation. No such letter was issued by the Company to the plaintiff. All the evidence available on record pertains to the fact that the insured had concealed the facts at the time of registration for insured persons. Copy of death certificate produced by the plaintiff (Ex. PC) shows that the husband of the plaintiff/respondent had died in Rail accident near Bharia Road Railway Station Sindh.

1. Though, the date of death of insured is starting point for running limitation under Article 86-A of the Act, yet, where insurer acknowledged liability to the sum insured by a letter refusing to pay, the limitation will start from the date of signing such letter. Reference in this espect can be made to the case of M/S State Life Insurance Corp. vs. Mst. Kausar Jehan Begum (1990 Law Notes (Karachi) 57), wherein, Hon"ble Judge of Karachi High Court has observed as under :

"Admittedly, case is governed by Article 86 of the Limitation Act, 1908, which provides that on a policy of insurance, when who sum insured is payable after proof of death has been given to or received by the insurers, period of limitation for filing the suit is three years from the date of the death of the deceased. Ejaz Hussain died on May, 10, 1969. Three years expired on May 9, 1972 but the suit was filed on July 2, 1973, that is, 14 months after the expiry of the period of limitation. However, before the expiration of the prescribed period, that is, before May 9, 1972, appellant-defendant Insurance Company wrote a letter Ex. 2/9 on 15th December, 1970, to the Assistant Accounts Officer, reproduced in para 2 above, in which they refused to pay the claim to plaintiff because deceased had given untrue statement with regard to his health, when he was being examined for life insurance in respect of the Life Insurance Policy, which letter is an implied acknowledgement of liability with refusal to pay the same, felling within Explanation (a) to Section 9 of the Limitation Act."

From the above, it shows that in such a situation, the period of limitation will start functioning from the date of signing the letter of refusal to pay the claim to the claimant.

1. From the scanning of the record of the trial court, it reveals that no such letter was produced by the appellants to prove that on which date the claim of the plaintiff/respondent was refused. It means that important evidence to establish the expiry of period of limitation has not been produced by the appellants and that they have miserably failed to prove the onus on Issue No. 4 (expiry of limitation for filing the suit). The onus to prove the issue lies on the party who alleges. The onus on the issue of limitation was placed by the trial Court on defendants/appellants, therefore, it was the appellant who had to prove by producing sufficient and convincing evidence that the suit is barred by limitation. It is settled proposition of law that he who alleges must prove and in case such party fails to prove the issue, the presumption would go against such party. Reliance in this respect can be made to the case of Muhammad Zaman Khan vs. Sher Afzal Khan (PLD 1984 AJK 138).

2. Learned counsel for the appellants has not been able to point out any illegality, material irregularity in the impugned judgments and decrees of the courts below. He has also not been able to controvert the above discussed arguments.

3. Resultantiy, I see no force in these appeals, hence, the same are dismissed with no order as to costs.

(A.P.) Appeals dismissed.

PLJ 2001 Lahore 82 (DB)

Present: nasim sikandar and jawwad S. khawaja, JJ.

M/s. NARRY SONS, LAHORE (M/s. BARRY BROTHERS, LAHORE)-Petitioner

versus COMMISSIONER OF INCOME TAX, ZONE-A, LAHORE-Respondent

C.T.R. No. 1 of 1999, decided on 10.10.2000.

Income Tax Ordinance, 1979 (XXXI of 1979)--

—-S. 136(1) read with S. 32--Whether assessee's accounts can be rejected while only small part of sales are imverifiable—Question of—According to assessee that he could establish even small proportion of cash sales, had Assessing Officer allowed him an opportunity to do so-Held : Unless unverifiable portion of cash was substantial and such proportion was sufficient to create doubts with regard to genuineness of assessee's account, these could not have been rejected outrightiy, rather Assessing Officer should have confronted assessee with alleged incomplete addresses of cash purchasers. [P. 86] A

(1974) 29 Tax 161; (1984) 50 Tax 223; 1984 PTD 150; (1954) 26 ITR 159 ref. (1974) 29 Tax 120; (1944) 12 ITR 393; (1954) 26-ITR 775 rel. on.

Mr. Ahmed Shu/ah Khan, Advocate for Petitioner. Muhammad Ilyas Khan, Advocate for Revenue. Date of hearing: 10.10.2000.

order

The Lahore Bench of the Income Tax Appellate Tribunal has framed the following question of law stated to have arisen out of its order dated 3.6.1986:

"Whether in the facts and circumstances of the case, the assessee's accounts could be rejected while only small part of sales were unverifiable ?.

1. Earlier it appears that the assessee registered firm engaged in purchase and sale of cotton and woollen cloth on whole sale basis, had requested the Tribunal to refer the following question of law for the opinion of this Court:

"Whether on the facts and the circumstances of the case the Tribunal was justified in maintaining rejection of accounts without discharge of burden of proof in this regard as per section 32 of the Income Tax Ordinance, 1979."

1. In the three years involved viz 1979-80, 1980-81 and 1981-82 the assessee declared sales respectively at Rs. 3784S/-, Rs. 5387G/- and Rs. 135287/-. The declared rate in the three years was 3.1%, 3.22%, and 3.19%. The Assessing Officer after rejecting the returned version proceeded to estimate sales at Rs. 4,00,000/-, Rs. 6,00,000/- and Rs. 13,50,000/- and to subject them to a rate of 6% each in three years. The learned First Appellate Authority/CIT (Appeals) maintained the rejection of accounts as well as the applied rate and estimation of sales. The only relief in the year, 1980-81 being that the estimation of sales was reduced to Rs. 5,75,000/-, as gainst the one made by the Assessing Officer at Rs. 6,00,000/-. Before the learned Tribunal it was vehemently contended that in the three years involved credit sales at Rs. 3,35,412/-, Rs. 4,25,549/-, and Rs. 12,74,737/- having been accepted there was no justification available with the Assessing Officer to reject the returned version only on the ground that part of the cash sales was unverifiable. It was explained that in the three years involved cash sales were made only to the tune of Rs. 3,54,361/-, Rs. 1,12527/- and Rs. 00,30,550/- representing 9.5%, 20.9% and 2.34% of the total sales. It was also contended that even cash sales were completed/properly vouched inasmuch though the addresses given were incomplete yet the assessee could have proved the transaction had the Assessing Officer required him to do so.

2. The Tribunal agreed that whatever addition in sales had been made it was done only in respect of cash sales. Finding these additions to be on the higher side, partial relief was allowed in the form of their reduction in the three years involved. Therefore, indirectly prayer for acceptance of accounts was refused.

3. The question as proposed by the assessee indicates it emphasizes on the fact that even the cash sales could have been proved to the satisfaction of the Assessing Officer if he had properly confronted the assessee for that purpose. On the other hand, the Tribunal has re-framed the question to give it a different colour. Although we can see the different directions of the two questions involved yet do not intend to re-frame the question as referred by the Tribunal. However, we intend to keep in sight the question which was earlier proposed by the assessee.

4. The provisions of law with regard to method and maintenance of accounts as provided for in Section 13 of the late Income Tax Act 1922 remains some what the same in the form of Section 32 of the Income Tax Ordinance, 1979. The principle in both the enactments remains the same that income profits and gains shall be computed for the purpose of various sections of the Act in accordance with the method of accounting regularly employed by the assessee. The original proviso to Section 13 and subsequent addition of another proviso by Ordinance No. XXTV of 1961 were properly reflected in the form of Section 32 of the Income Tax Ordinance, 1979. These provisions were earlier considered in detail by a Full Bench of this Court in the famous case re: Seth Gurmukh Singh and another v. Commissioner of Income Tax Punjab (1944) 12 ITR 393. The four members of the learned Bench agreed with the answers proposed by Din Muhammad, J. which were earlier framed and referred by him as member of the Division Bench to the Hon'ble Chief Justice for Constitution of a larger Bench. Muhammad Munir, J. had reservations qua the answer to Question No. 2 in the second set though he agreed that on the substance of the issue of interpretation of Section 13 he had arrived at the same results as reached by his Lordship. Sale and Abdur Rehman J.J. agreed with Din Muhammad, J. that the I.T.O. could have recourse to the proviso to Section 13 even in those cases where he rejected the accounts on the ground that they were not genuine and thus failed to represent truly his income and profits. Muhammad Munir, J. observed, and Harries C. J, agreed with him that if the books were false the I.T.O. could ignore them but the proviso to Section 13 was inapplicable. In such a case, in the view of his Lordship, the I.T.O. had to discover the probable income of the assessee otherwise than by resorting to the proviso. Other findings of the Bench with regard to framing of an assessment and the powers of I.T.O. were epitomized in the report in the following words :--

"While proceeding under sub-section(3) of Section 23 the Income tax-Officer is not bound to rely on such evidence produced by the assessee as he considers to be fai.se; (b) If he proposes to make an estimate in disregard of the evidence, oral or documentary, led by the assessee, he should in fairness disclose to the assessee the material on which he is going to find that estimate; (c) He is not however, debarred from relying on private sources of information. which sources he may not disclose to the assessee at all (d) In case he proposes to use against the assessee the result of any private inquiries made by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him ample opportunity to meet it, if possible."

1. A five member the Bench of the Supreme Court of India, a decade thereafter on October 29, 1954 in re: Dhakeswari Cotton Mills Ltd. v.Commissioner of Income Tax West Bengal (1954) 26 ITR 775 adopted the ratio settled by this Court in the said case; that rule on the subject had rightly been stated by this Court in the said case. Their Lordships observed:

"In making an assessment under Section 23(3) of the Indian Income Tax Act, the Income Tax Officer is not fettered by technical rules of evidence and pleadings, and he is entitled to act on material which may not be accepted as evidence in a Court of law, but the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessriient under Section 23(3). The rule of law on this subject has been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh v. Commissioner of Income Tax, Punjab (1944) 12 ITR 393".

1. Learned counsel for the asaessee has cited a number of judgments which are in fact a further elucidation of the view taken by this Court in the said case re: Seth Gurmukh Singh (Supra).

2. In the first case re : KB. Jessaram Fatehchand v. Commissioner of Income Tax Bombay City-II (1974) 29 Tax 161 it was inter alia observed that in the case of cash transactions where delivery of goods is taken against cash payment it was not the assesses or the seller to bother about the particulars of the purchaser and therefore, the accounts could not be rejected merely on. that ground.

3. The regularity of maintains of accounts in a particular manner and their impact was considered in re: Commissioner of Income Tax (West Zone) Karachi v. Fateh Textile Mills Ltd. (1984) 50 Tas 223. In that case it was also observed hat, accounts regularly maintained in a particular manner could not be rejected in a summary manner or on the generalized statement like lowness of gross profit. The Karachi High Court in the other case reported as re : Messrs Karachi Textile Dyeing and Printing Works Karachi v. The Commissioner of Income Tax (Central) Karachi (1984 PTD 150) re­ affirmed the rule in re: Seth Gurmukh Singh and another (Supra) that rule of justice demanded that before any adverse order was passed against a party he should be afforded full opportunity to meet the case and rebut evidence used against him even though it was true that technicalities of Evidence Act, 1872 did not fetter powers of an Assessing Officer. .Earlier the Court had noted that assess&e doing business of printing doth and manufacturing silk fabrics was regularly maintaining the registers prescribed by Excise Rules showing production, manufacture and consumption. In the view of the learned Division Bench of the Court an opinion formed by the Assessing Officer that record maintained according to the Excise Regulations did not satisfy requirement of income tax could not be a basis for rejection of accounts unless for cogent and convincing reasons he came to definite finding that from such accounts proper gains and profits could not be deduced. The view of the Karachi High Court as expressed in re: S.M. Yousufand Brothers v. Commissioner of Income Tax (1974) 29 Tax 120 was based upon a judgment of the Supreme Court of India in re: Pandit Brothers v. Commissioner of Income Tax Delhi (1954) 26 ITR 159 wherein their Lordships observed that in all cases which fall under Section 13 of the Indian Income Tax Act 1922 there must be material before the I.T.O. to lead him to

the conclusion that the method employed is defective.............. The learned

Division Bench of the Karachi High Court very aptly observed that in the kind of cases the proportion of un-vouched and unverifiable cash sales to the total cash sales had to be seen before reaching a conclusion that accounts did not inspire confidence. In the view of their Lordships "Unless such proportion is substantial, that is, such proportion as to create doubts with regard to the genuineness of the assessee's accounts, it may not ordinarily be proper to reject outright the results of the books of accounts with regard to unverified cash sales or unverified cash expenses."

1. In the case in hand, as the trend of the question proposed by the assessee indicates the assessee had all along been stressing that even the small proportion of cash sales could be established had the Assessing Officer allowed him an opportunity to do so. It will be seen that the Assessing officer did not make any inquiry outside the books of accounts as submitted by the assessee and proceeded to reject them for the defects pointed out there-from. As earlier said the defects being that some of the cash sales were not properly verifiable. Therefore, irrespective of the claim of the assessee that these transactions were verifiable it is noted that the learned Tribunal found the amount of so called unverifiable cash sales to be "small". From the order of the Tribunal and even while making the reference, the learned Tribunal has not further elaborated their concept of the proportion which could be taken to be large or small in the perspective of the other declared results. Therefore, while respectfully agreeing with the observation of our learned brothers in re : S.M. Yousaf and brothers (Supra) we will conclude that unless the unverifiable portions of the cash sales was substantial and such proportion was sufficient to create doubts with regard to the genuineness of the assessee's account, these could not have been rejected out-rightly. The Assessing Officer never confronted the assessee with the alleged in-complete address of the cash purchasers. Both the C.I.T. (Appeals) as well as the learned Tribunal found the estimation made after rejection of the accounts to be on the higher side. None of them, it appears, gave a serious thought to the contention of the assessee that he was concerned more with the acceptance of the accounts rather than a decrease in the estimation of the sales. The case of the assessee also needed to be considered on the plane that in the earlier as well as in the subsequent years its declared results had been accepted. It has never been the case of the revenue that the assessee adopted a different method of accounting during the three years involved or that it was so different from the earlier and subsequent method that profits and gains for the purpose of various provisions of the Ordinance could not be computed therefrom.

Therefore, our answer to the aforesaid questions is in the negative.

The Registrar shall send a copy of this judgment under the seal of the Court and his signature to the concerned Bench of the Income Tax Appellate Tribunal.

(A.P.) Reference answered in negative.

PLJ 2001 Lahore 87 (DB)

Present:amir alam khan and saved zahid hussain, JJ. SHAFAQAT IQBAL and 3 others-Petitioners

versus

GHULAM RASOOL and another-Respondents C.R. No. 2205 of 1986, decided on 21-11-2000.

(i) ActofCourt-- —Acts or omissions of Courts do not injure a litigant. [P. 91] D

1993 SCMR 434 rel. on. (ii) Appeal--

—-Forum of appeal is determined according to valuation of suit as fixed in plaint unless modified or corrected by Court. [Pp. 90 & 91] A & E

PUD 1976 Lahore 1 rel. on. (iii) Civil Procedure Code, 1908 (V of 1908)--

—S. 115—Return of appeal-Challenge to—Valuation of suit fixed at Rs. 200.00 by respondents was objected to by petitioners, but it was accepted by trial Court, with the result, petitioners filed appeal before District Judge-Appeal was returned to petitioners on the ground that they had asserted in memo of appeal that value of property in dispute was Rs. 1,50,000,00-After receiving memo of appeal, petitioners filed it before High Court, which was dismissed in limine on the ground that it was not competent before High Court-Thereafter petitioners filed revision petition before High Court contending that no party should suffer because of mistakes committed by Court and since an illegality was pointed out, therefore, High Court was not denuded of its power to correct it-Held : Admittedly valuation of suit was fixed Rs. 200.00, which was accepted by trial Court, therefore, appeal before District Judge was competent, but it was erroneously returned to petitioners-Although petitioners had accepted said order, yet it would not make any difference, firstly for the reasons that mistake committed by Court cannot injure any litigant, and secondly acceptance of return by petitioners could not stop them from challenging said order for it is well settled that a suitor cannot be estopped against law-Revision petition was accepted and appeal was remitted to ADJ, to hear and determine it on merits.

[P. 91] F

(iv) Civil Procedure Code, 1908 (V of 1908)--

—S. 115-Revisional power-Sue matu exercise of-If revision filed is obviously barred by limitation, but then revisional power can be exercised suo motu, when patent illegality is brought into notice of Court-In such case, refusal to exercise revisional jurisdiction would amount to refusing relief to a litigant at the portal of justice, who has remained victim of technicalities of procedure or mistakes of Court.

[P. 90] B & C

1992 CLC 771; PLD 1995 Lahore 15; 1991 SCMR 1971; 1992 SCMR 2334; PLD 1975 SC 678 rel. on.

Ch. Rashid Ahmed, Advocate for Petitioners.

Ch. Muhammad Anwar Bhindar, Advocate for the Respondents.

Date of hearing: 2-10-2000.

judgment

Amir Alam Khan, J.-This case has a chequered history of its own for it has shuttled from Court to Court since 1985 while the petitioners, who are aggrieved from the judgment and decree dated 27.2.1980 passed by the learned trial Court are still in Square No. 1.

1. The gimmick started with the decretal of the suit filed by the respondents herein who had claimed that they are owners in possession of land in dispute and that decree dated 2.3.1972 passed by the Civil Court was obtained by fraud and mis-representation, therefore, the same is inoperative against their rights. The valuation of the suit for the purposes of Court fee and jurisdiction was fixed at Rs. 200/-. The value as fixed by the respondents was objected to by the petitioners, resultantiy, Issue No. 3 was framed. Needless to add here that even the plaintiffs-respondents in their para of valuation had submitted that they would make up the deficiency, if directed by the Court. The issue as to valuation, however, was determined in favour of the plaintiffs-respondents with the result that the petitioners filed an appeal before the learned District Judge, who had the jurisdiction to decide the same. The said appeal was, however, returned to the petitioner on an objection being taken that in para-5 of the said appeal, the appellant had asserted that the value of the property in dispute was Rs. 1,50,000/-. The petitioners received the memorandum of appeal without any demur and presented the same before this Court, as the pecuniary jurisdiction in those days obliged the petitioners to file the appeal before this court. A Division Bench of this Court proceeded to dismiss the same in limine on the ground that the same is not competent before this court. The judgment reached in that behalf may be reproduced hereunder for ready reference :

"A preliminary objection was taken that the appeal had been rightly filed before the District Court as the valuation of the suit for purposes of jurisdiction remained the same Rs. 200/- despite contest and that it shall determine the forum of appeal which in this case was the learned District Judge. There is considerable force in the point. The appeal would have been filed here in the High Court only if its valuation for jurisdiction exceeded Rs. 50,000/-. Obviously, the sale price i.e. Rs. 1,50,000/- shown in the pleadings had no relationship whatsoever to the valuation for jurisdiction. Returning the memo of appeal on the part of the learned Addl. District Judge was not correct and the remedy evidently for such a wrong order was a revision. The appellants did not avail it and instead re-filed the appeal here much too against the provisions as to jurisdictional value. It did not lie here, nor could it be returned now for re-filing before the learned District Judge as that forum seems to have been lost to the appellants for their having wrongly accepted the return of the memo. Thus, it is neither here nor there and is dismissed in limine."

It was thereafter that the petitioners filed the present civil revision challenging the order dated 3.9.1984 whereby the memorandum of appeal was returned to them to file it before this Court

1. This civil revision was placed before my learned brother Syed Najam-ul-Hassan Kazmi, J. (as he then was), who having appreciated that the matter has already been heard by a Division Bench of thus Court and although the same has been dismissed in limine on the ground that the appeal, itself, was not competent before this Court, yet directed the office to place the revision before the Hon'ble Chief Justice, so that a larger bench should examine and determine the question for in his considered opinion the question of interpretation of the judgment passed by a Division Bench was also to be considered. In pursuance of the order dated 25.3.1999 passed y y learned brother Syed Najam-ul-Hassan Kazmi, J. (as he then was), the matter has been placed before us.

2. A preliminary objection was raised by the learned counsel for the respondents in that he objected that the matter having been dealt by this Court and that too by a Division Bench, whereby the RFA filed against the judgment and decree was dismissed, therefore, the remedy, if any, of the petitioners lay before the Hon'ble Supreme Court of Pakistan and not by filing a civil revision against the order of return. Learned counsel on the other hand maintained that no party should suffer because of mistakes committed by the Court. He has also relied on the order passed by the Division Bench of this Court whereby the appeal was dismissed in limine. In particular he relied on the following observations :

"Returning the memo of appeal on the part of learned Additional District Judge was not, correct and the remedy evidently for such a wrong order was a revision."

It was maintained that the jurisdiction to revise an order apart from being invoked on the motion of a party can also be exercised suo moto and since an illegality has been pointed out, therefore, manifestly this Court is not denuded of its power to correct the same.

1. It is well settled that the forurn of appeal is determined according to the valuation of the suit as fixed by the plaintiffs. If any authority is A needed, reference may be made to the case of Sadar Din vs. Elahi Bakhsh and another (PLD 1976 Lahore 1). It is also an admitted position of fact on the record that the valuation of the suit for the purposes of Court fee and jurisdiction was fixed at Rs. 200/- and although the same was objected to by the petitioners yet, the learned trial Court proceeded to accept the valuation as fixed by the plaintiffs-respondents and did not change it. In the circumstances, the appeal was competently filed before the District Judge and the same could not have been returned. The learned District Judge, however, erroneously proceeded to return the same to the petitioners presiirnably on the ground that the respondents or the plaintiffs has mentioned the same somewhere ia their pleadings to be Rs. 1,50,000/-. This being not the case, obviously the return of the memo of appeal was illegal. It is no doubt correct, that the petitioners complied with the order without any demur and having accepted the return filed it before this Court with the result that it was placed before a Division Bench of this Court. The Division Bench in turn opined that the revision was the only remedy and that the petitioners should have adhered to the same. The revision filed before this Court is obviously barred by limitation but then, the revisional power can also be exercised suo moto. There is plethora of law available on the subject, which may be referred to with advantage i.e. Water And Power Development Authority and another vs. Messrs Pakistan Associated Construction (1992 C.L.C. 771), Muhammad Din us. Muhammad Amin (PLD 1995 Lahore 15), Muhammad Asiam and another vs. Mtmshi Muhammad Behram and another (1991 S.C.M.l, 1971), Muhammad Yousaf and 3 others vs. Khan Bahadur through Legal Heirs (1992 S.C.M.R. 2334) and Manager, Jammu & Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 S.C. 678). It is because of intervening decision of this Court that my learned brother Sayed Najam-ul-Hassan Kazmi, J. (as he then was) opined that the revision should be heard by a larger beach. Since a patent illegality has been brought to our notice, we would not refrain from exercising our revisional jurisdiction for if we refuse to exercise our jurisdiction, it would amount to refusing relief to a litigant at the portal of justice who have remained victim of the technicalities of procedure or the mistakes of the Court. Needless to add that it is well settled that acts or omissions of Court do not injure a litigant. Reference may be made to Namdar Khan vs. Muhammad Akram Khan and 14 others (1993 S.C.M.R. 434), 6. It is well settled that the valuation as fixed in the plaint unless modified or corrected by the court, determines the forum of appeal and in the instant case the same was fixed at Rs. 200/-, which valuation was accepted by the learned Trial Court, therefore, the appeal as filed before the learned District Judge was competent The said appeal was erroneously returned by the learned District Judge and although the petitioners had accepted the said order, yet it would not make any difference firstly for the reason that the mistake committed by the Court, as observed earlier, cannot njure any litigant and secondly the acceptance of the return by the petitioners cannot also estop them from challenging the said order for it is well settled that a suitor cannot be estopped against the law.

2. In the circumstances, this revision is accepted with no order as to costs, resultantly the appeal is remitted to the learned Additional District Judge, Gujranwala, to hear and determine the same on merits.

(S.A.K.M.) Revision accepted.

PLJ 2001 Lahore 91

(Rawalpindi Bench Rawalpindi)

Present:SHAIKH ABDUR RAZZAQ, J.

Mst.FATIMA (deceased) through LRs and anothers-Appellants

versus

LAL KHAN and 19 others-Respondents

Regular Second Appeal No. 30 of 1976, heard on 24.5.2000.

(i) Inheritauce-

—Declaratory suit-Decreed by trial court, but dismissed by appellate Court-Challenge to-Whether deceased A was Shia or Sunni Muslim-Question of-Burden to prove that deceased was a Shia and not Sunni was lying on appellants, which they failed to discharge-Firstly, law presumes that deceased was Sunni Muslim; secondly, he was adjudged so by Revenue Officer, who attested his inheritance mutation after due deliberation, enquiry and hearing parties-Evidence of appellants being daughter and widow of deceased could not be given credence without independent corroboration as per their statements, if deceased was declared Shia, then his entire estate would go to them-DW-3 claiming to have led funeral prayer of deceased hardly inspired confidence as firstly he was not resident of that village and secondly he had never led any prayer in the past-Impugned judgment of appellate Court was based on correct appraisal of evidence—Appeal dismissed. [Pp. 94 & 95] B

1992 ALD 457 (Lahore); AIR 1933 Lahore 80 ref.

(ii) Muhammadan Law-

—Shia or Sunni Muslim—Presumption of—Admittedly, all inhabitants of Pakistan are presumed to be Sunai Muslims-Whosoever daims otherwise, onus lies on him to discharge said onus. [P. 94] A

Syed Qalb-e-Hassan, Advocate for Appellants.

Ch. Afrasiab Khan, Advocate for Respondents Nos. 1 to 12.

Mr. Mahmood-ul-Hassan Awan, Advocate for Respondents Nos. 15 to 20.

Date of hearing: 24.5.2000.

judgment

Briefly stated the facts are that, land measuring 289 kanals 6 marlas belonged to one Abdullah son of Sahib resident of Tharpal. Upon his death, mutation of inheritance No. 834 dated 4.3.1967 was sanctioned, whereby his widow Mst. Khatoon was given 1/8 share and his daughter Mst. Fatima was given 1/2 share out of the said land. The remaining 3/8 share was given to the residuaries (Respondents Nos. 1 to 14). The plaintiffs/appellants (Mst. Fatima and Mst Khatoon) challenged the said Mutation No. 834 dated 4.3.1967 on the ground that the deceased Abdullah was Shia, as such the widow was entitled to 1/8 share and his daughter was entitled to 7/8 share. This suit was resisted by defendants/Respondents Nos. 1 to 14 who asserted that the deceased was Sunni Muslim and mutation has been sanctioned correctly. Alongwith this suit,'another suit was also Sled by Zaman Khan predecessor in interest of Respondents Nos. 15 to 20, wherein he asserted that he was nephew of the deceased Abdullah and as such was entitled to inherit 3/8 share in the suit lands. This suit was resisted by Respondents Nos. 1 to 14 as well as by Mst. Fatima and Mst. Khatoon appellants and all of them controverted his stand. Both the suits were finally consolidated and proceedings were taken in the suit filed by Zaman Khan (predecessor in interest of Respondents Nos. 15 to 20) Out of the divergent pleadings of the parties, the trial Court framed the following issues :--

1. Whether Mst. Bibi was 'the sister of Abdullah deceased.

2. Whether the plaintiff is the son of said Mst. Bibi.

3. Whether Mst. Bibi died after the death of Abdullah deceased.

4. Whether the plaintiff is estopped by his conduct from filing of

the present suit.

1. Whether Abdullah deceased was a Shia muslimand bis inheritance is to b« governed by the suit land.

2. Who are the legal heirs of Abdullah deceased and what are their respective shares in his inheritance.

7, Relief.

1. In support of their respective stand, plaintiffs/appellants examined DW1 Mst. Fatima, DW2 Mst Khatoon widow, DW3 Fazal Husain, DW4 Niaz Ali, DW5 Khuda Bakhsh, DW6 Muhammad Khan and DW7 Zaman. Similarly, plaintiff Zarnan Khan (predecessor-in-interest of Kespondents Nos. 15 to 20 and appellant in RSA No. 31/76) examined himself as PW1, Muhammad Khan PW2, Sarwar Khan PW3, Muhammad Khan PW4, Mst. Naikan PW6 and Sher Ali PW7. He also brought on record documents Ex. PI to P7 and closed his evidence. In rebuttal, Defendants/Respondents Nos. 1 to 12 (now 1 to 14) examined DW1 Fazal Muhammad, DW2 Lai, DW3 Lai son of Sikandar K an, DW4 Zaman Mehdi, DW5 Karam Dad, DW6 Rehman and DW7 Hassan. They also produced documents Ex. Dl to D4 and thereafter closed their evidence. The trial Court examined CW1 Irshad Hussain, a clerk of District Health Officer Jhelum and CW2 Ahmad Din. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff Zaman Khan (predecessor in interest of Respondents Nos. 15 to 20 and appellant in RSA No. 31/76) and decreed the suit of plaintiffs/appellant Mst. Fatima and Mst. Khatton (RSA No. 30/76). The berendants/Respondents Nos, 1 to 12 (now 1 to 14) and Respondents Nos. 15 to 20 (appellants of RSA No. 31/76) felt aggrieved of the said judgments and decrees and filed appeals. Both the appeals have been deposed of vide a consolidated judgment and decree dated 29.9.1975, whereby the appeal filed by Respondents Nos. 1 to 12 (now to 14) was accepted and that of Respondents Nos. 15 to 20 (appellants in RSA No. 31/76) was dismissed. Hence these RSAs.

2. Arguments have bee/s heard and record perused.

3. Contention of learned counsel for the appellants is that they have examined DW1 Mst. Fatima, DW2 Mst. Khatoon daughter and widow of the deceased Abdullah respectively, DW3 Fazal Husain and DW4 Niaz Ali and all of them have unanimously deposed that the deceased Abdullah was Shia, that besides the daughter and widow of thr Deceased (DW1 and DW2), Fazal Husain DW3 deposed that he had conducted the funeral prayer of the deceased according to Shia Sect, that DW4 Niaz Ah' who is a Sunni as admitted that Abdullah deceased was Shia, that admission of DW4 coupled with the admission of DW3 prove it conclusively that the deceased was a Shia. He further submitted that under similar circumstances, such evidence has been accepted and place reliance upon Mst. Rehmat vs. Mst. Am/ran andothers (1992 ALD 457 (Lahore) & AT. Iqbal Begum vs. Mst.Syed Begum and others (AIR 1933 Lahore 80), 5. Learned counsel for Respondents Nos. 15 to 20 i.e. appellants of RSA No. 31/76 asserted that the Courts below were not justified in depriving them of their share out of inheritance of the deceased Abdullah. He submitted that Zaman Khan was nephew of the deceased Abdullah and even if it is presumed that the deceased was a Sunni, he was entitled to inherit as a residuary of the deceased. He further contended that the appellate Court, was not justified to hold that he was not son of Mst. Bibi sister of the deceased Abdullah as this point was never agitated either before the trial Court or before the appellate Court, that as such findings of the appellate Court be reversed.

4. Conversely, learned counsel for the Defendants/Responcieiiu» Nos. 1 to 14 (initially 1 to 12) contends that presumption of law is that all inhabitants of Pakistan are Sunnis and if anybody claims otherwise onus lies heavily upon him to prove his contention, that as such onus was on the plaintiffs/appellants to prove that the deceased Abdullah was Shia, that to discharge this onus, they examined his daughter Mst. Fatima DW1, his widow Mst. Khatoon DW2, Fazal Hussain DW3 and Niaz Ali DW4, hat statements of DWsl and 2 cannot be made a basis for holding the deceased as Shia, as the said DWs are direct beneficiary of the deceased, that statement of Fazal Hussain DWS cannot be relied upon as he is stranger to the village of the deceased, that it has been admitted by DW 3 that he has never performed any funeral prayer in the past, that this admission of DWS dearly shows that he has been imported ior this purpose, that had DWS been a resident of that village or had been offering funeral prayer in that village regularly, his statement could he taken into consideration, that under the given circumstances bis evidence does not inspire confidence, that there remains the solitary statement of DW4 Niaz Ah' which lacks independent corroboration., as such cannot be relied upon for holding the deceased as Shia Muslim.

5. So tar as stand of Zaman Khan predecessor in interest of 'Respondems Nos. 15 to 20 (appellants in RSA 31/76) is concerned, it is submitted by the learned counsel for the appellants that he neither agitated this stand at the time of attestation of Mutation No. 834 dated 4.3.1967 nor it the time of appeal before the revenue officer, that had Zaman Khan been a nephew of the deceased, he must have agitated his stand before the revenue officer. He thus contended that the appellate Court has rightly returned findings against him, 8. The controversy la the suits relates to the determination of the question if the deceased Abdullah was a Shia or Sunni Muslim. Admittedly, $ presumption is that all inhabitants of Pakistan are Sunni Muslims. Whosoever claims otherwise, onus lies oa him to discharge the said onus. ' Thus the first presumption which goes to prove that the deceased was a | Sunni Muslim is the presumption of law. The other presumption which goes J in his favour is that he was adjudged to be a Sunni Muslim by the Revenue ° Officer who attested Mutation No. 834 dated 4.3.1967 as he attested the 'mutation after due deliberation, enq\iiry and hearing the parties. The third presumption, which goes to prove that the deceased was a Sunni is the rule of preponderance which means that widow and the daughter being directly inheritors of the estate of the deceased have not \« le given credence without any independent corroboration. In the instant case, besides the statements of widow and daughter of the deceased, reliance is being placed upon the statement of Fazal Husain who allegedly conducted the funeral prayer of the deceased and DW4 Niaz Ali who admits the deceased to be a Shia Muslim, though he (DW4) is a Sunni Muslim. If the deceased is declared to be a Shia Muslim, as per statements of Mst. Fatima and Mst Khatoon, then both these ladies get the entire estate of the deceased. If on the other hand the deceased is declared to be a Sunni Muslim, they get 1/2 and 1/8 shares in the estate of the deceased and remaining 3/8 share falls upon Respondents Nos. 1 to 14, Thus under these circumstances the statements of DWs 1 & 2 have to be considered with due care and caution, as they are the direct beneficiaries and as such interested witnesses. The appellants have tried to corroboiate the statements of DWs 1 & 2 with the statements of DWs 3 & 4. However, the statement of Fazai Husain DWS who claims to have led the funeral prayer of the deceassed hardly Inspires any confidence, as firstly he is not a resident, of that village and secondly had never led any such prayer in the past. Thus it appears that he had been imported for this funeral prayer. There remains the statement of Niaz Ali DW4, who claims himself to be a Sunni Muslim and deposed that \,he deceased was a Shia Muslim. In absence of any independent evidence, statement of DW4 Niaz Ali is not sufficient to hold that the deceased was Shia Muslim. Admittedly, the burden to prove that the deceased was a Sfaia is on the person alleging him to be not Sunni but Shia, and this burden has not been discharged by the plaintiffs/appellants. Learned counsel for the appellants has placed reliance upon 1992 ALD 457 Lahore (ibid), wherein statement of Pesh Imam has 'been relied upon -co hold die deceased as Shia. There is no doubt that, in the said authority the deposition of Pesh imam has been relied upon, but in the instant case no such reliance can be placed, as Pesh Imam (DWS Fazal Husain) is not a resident, of that village and is a stranger i.e. resident of 5-6 miles away and had never performed any 'funeral prayer in the past, as per Ms own admission.

6. So far as the stand of Zaman Khan predecessor in interest of Respondents Nos. 15 to 20 (appellants in RSA No. 31/76) is concerned, the findings of the appellate Court are based on correct appraisal of the evidence brought on record. Even otherwise, it is admitted fact that he never agitated Ms claim either at the time of attestation of Mutation No. 834 dated 4.3.1967 cor at the time of appeal. He agitated his claim for the first time, when the appellants/plaintiffs chose to file this suit. It appears that he (Zaman Khan) has been set up by the plaintiffs/appellants so as to get some share out of the estate of the deceased, if he is held to be a Sunni Muslim.

7. The upshot of above discussion is that impugned judgment of the appellate Court has been passed strictly in accordance with law. There is no force in these appeals and the same are hereby dismissed leaving the parties to bear their own costs.

(S.A.K.M.) Appeals dismissed.

PLJ 2001 Lahore 96

(Bahawalpur Bench Babawaipur)

Present:shaikh ABDUR razzaq, J. Mst. HANIFAN BIBI and 5 others-Petitioners

versus

MUHAMMAD SHARIF and 5 others-Respondents

Civil Revision No. 81 of 2000 with C.M. 1 & 2/2000, decided on 28.9.2000.

Civil Procedure Code, 1908 (V of 1908)--

—-O. XXXIX, Rule 1 & 2-Temporary injunction-Petitioners filed suit for declaration claiming to be owners of suit land on basis of oral gift by their father-Petitioners' application for restraining respondents from interfering in their possession was rejected by both Courts below-Petitioners contended that it was yet to ^c seen whether oral gift in their favour was valid transaction or not, so their possession be protected till then-Held : Since there was nothing on record to substantiate contention of petitioners that they had ever been alienated suit land by way of gift, so the basic ingredient for issuing interim injunction was lacking-Both Courts below had passed impugned order in accordance with law, which did not call for interference—Revision petition dismissed.

[P. 97] A

1994 MLD 2019; NLR 1994 UC 619; 1995 CLC 1003 ref.

Mian Muhammad Saleem Akhtar, Advocate for Petitioners. Ch. Abdul Ghaffar Ehuttao, Advocate for Respondents. Date of healing : 28-9-2000.

order

Instant of civil revision is directed against the order dated 20.1.2000 passed by the learned District Judge, Bahawalnagar whereby he has confirmed the order dated 6.6.1998 passed by the Civil Judge 1st Class, Bahawalnagar.

1. Briefly stated the facts are that the plaintiffs/petitioners filed a suit for declaration claiming themselves to be owner of the suit land mentioned therein on the basis of an oral gift by their father Muhammad Ali. Alongwith this suit they also moved an application for interim injunction retraining the defendants/respondents from interferring in their possession during the pendency of that suit. Both, the plaint as well as application for interim injunction were resisted by the defendants/respondents.

2. After going through the record and hearing the arguments of the learned counsel for the parties, the trial Court dismissed the application for interim injunction vide order dated 6.6.1998. The plaintiffs/petitioners felt aggrieved of the said order and filed and appeal before the learned District Judge, Bahawalnagar who was also pleased to confirm the said order vide his order dated 20.1.2000. The plaintiffs/petitioners have felt aggrieved of the said orders and assailed the same through this revision petition.

3. Arguments have been heard and record perused.

4. Stand of the learned counsel for the plaintiffs/petitioners is that it was not mandatory on the part of laintiffs/petitioners to get the gift attested or incorporated, as the said gift stands exempted from attestation under the Transfer of Property Act. He further contends tha the suit land is coming in possession of Abdur Rasheed son of Noor Muliaminad as lessee of Mst. Hanifan and others. He thus submits that as it is yet to be seen if the oral gift claimed by the plaintiffs/petitioners is a valid transaction or not, so their possession over land through their lessee Abdur Rasheed be maintained and protect ed.

5. Conversely, the contentions raised by the learned counsel for the plaintiffs/petitioners have been controverted by the learned counsel for the defendants/respondents. The main stand of the learned counsel for the defendants/respondents is that as plaintiffs/petitioners are not in possession of any documentary evidence regarding their ownership over the suit property, so the very ingredients required for issuing such interim injunction, is lacking in the instant case. In support of his contention he has placed reliance upon (1994 MLD 2019), (NLR 1994 UC 619) and (1995 CLC 1003).

6. Admittedly the suit property belongs to Muhammad Ali on whose death it has devolved upon the defendants vide Mutation No. 466 dated 18.8.1996. The plaintiffs/petitioners now claim themselves to be owner of the suit land to the extent of their own share out of t e knd left by the deceased Muhammad Ah'. Since there is nothing on the record to substantiate the contention of the pl intiffs/petitioners that they had ever been alienated the suit land by way of gift so the basic ingredient for issuing interim injunction is lacking in the instant case. Both the Courts below have passed the impugned orders in accordance with law which do not call for any interference. There is no force in this revision petition and the same is hereby dismissed.

(S.A.K.M.) Petition dismissed.

PLJ 2001 Lahore 98

[Bahawalpur Bench Bahawalpur]

Present: SHAIKH ABDUR RAZZAQ, J.

MUHAMMAD RAMZAN-Appeliant

versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and 3 others-Respondents

R.S.A. No. 22 of 1976, heard on 2.10.2000. Civil Suit-

—Suit for recovery of amount-Appreciation of evidence-Appellant filed suit for recovery of Rs. 14,780/- on account of expenses incurred on construction of mosque with implied consent of Respondent No. 1, under whom Respondents No. 2 to 4 had been working as his agent-Appellant examined witnesses in support of his claim, but respondents did not adduce evidence in rebuttal-Suit was dismissed by trial Court and appeal was also dismissed by District Judge-Contention that both Courts below did not appreciate evidence on record-Held: There was no authorization or permission for raising said const.ruction-Neit.her respondents had given any such consent in writing nor it could be inferred from evidence on record-Appeal dismissed. [P. 98] A

Mr. Muhammad Abdullah Qureshi, Advocate for Appellant Mr. Shamshir Iqbal Chughtai, Advocate for Respondents. Date of hearing: 2-10-2000.

judgment

Instant Regular Second Appeal is directed against the judgment and decree dated 12.12.1975 passed by the learned District Judge, Bahawalpur whereby he has confirmed the judgment and decree dated 25.3.1974 passed by the learned Senior Civil Judge, Bahawalpur dismissing the suit of the plaintiff/appellant.

1. Briefly stated the facts are that the plaintiff/appellant filed a suit for the recovery of Rs. 14,780/- against the efendants/respondents on account of expenses which he had borne in the construction raised on the mosque. The defendants/respondents contested the said suit by filing written statement.

2. From the divergent pleadings of the parties the trial Court framed the following issues :--

3. Whether the plaintiff has raised any construction over the mosque, if so, at what cost ? OPP.

2.If Issue No. 1 is proved, then whether the alleged construction was without sanction of Auqaf Department, if so, with what effect ? OPD.

1. Whether the Defendants Nos. 1 and 2 are entitled to special costs, if so to what extent ? OPD.

2. Relief.

3. In support of his stand the plaintiff/appellant examined PW-1 Wahid Bux, PW-2 Maulvi Abdul Quddous, PW-3 Hafiz Abdul Majeed, PW-4 Manzoor Ahmed and the plaintiff/appellant appeared himself as PW-5. In rebuttal no evidence was adduced by the defendants/respondents.

4. After going through the evidence produced by the plaintiff/appellant, the trial Court dismissed the suit of the plaintiff/appellant vide judgment and decree dated 25.3.1974 which was confirmed by the learned District Judge vide judgment and decree dated 12.12.1975. Hence the instant R.S.A.

5. Arguments have been heard and record perused.

6. Stand of the learned counsel for the plaintiff/appellant is that both the Courts below have not appreciated the evidence adduced by him regarding the construction raised by him on the spot. He further contended that plaintiff/appellant had carried out the construction work under the implied consent of Defendant/Respondent No. 1. He thus submits that as the plaintiff/appellant has incurred the expenses on the construction over the mosque under the implied consent of defendants/respondents, so he is entitled to its recovery.

7. Conversely, the impugned judgments and decrees have been supported by the learned counsel for the defendants/respondents.

8. The only point which requires determination in this appeal is, if the plaintiff/appellant is entitled to the recovery of Rs. 14,780/- which he alleged to have spent on the construction raised on the spot The stand of plaintiff/appellant is that he carried out the work subject to the implied consent of Defendant/Respondent No. 1, under whom the Defendants/ Respondents Nos. 2 to 4 have been working as his agent Even if it is assumed that plaintiff/appellant has raised the construction on the spot with the implied consent of Defendants/Respondents Nos. 1 to 4. The question is if there is any authorisation or permission for raising the said construction. The answer is in negative.

9. Since the defendants/respondents have neither given any consent in writing nor it can be inferred from the evidence brought on record that they had their implied permission for raising the construction. So the Courts below were justified in passing the impugned judgments and decrees.

11 In the light of facts stated above, the appeal fails and is hereby dismissed.

(S.A.K.M.) Appeal dismissed.

PLJ 2001 Lahore 100 [Bahawalpur Bench Bahawalpur]

Present: SHAIKH ABDUR RAZZAQ, J.

MUHAMMAD RASHID-Petitioner

versus

JUDGE, FAMILY COURT, CfflSHTIAN DISTRICT BAHAWALNAGAR and another-Respondents

Writ Petition No, 3022 of 2000, heard on 26.9.2000.

Family Courts Act, 1964 (XXXV of 1964)-

—-S. 5-Constitution of Pakistan, 1973, Art 199-Dissolution of marriage prayed for on ground of option of puberty-Decree on ground of khula- Validity of-Challenge to-Contention that Family Court was not justified to grant decree on ground of khula, because Respondent No. 2 neither sought divorce on such ground nor as a witness she uttered a single word in this regard-Held : No doubt Respondent No. 2 sought divorce on ground of option of puberty, but findings on that score had been returned against her-However, the fact remained that parties were married about 11 years ago, but rukhsatihad not taken place till filing of suit-Since rukhsati had not taken place, so the question of hatred being agitated in her statement did not arise—Fact that parties were married more than0 ne decade ago, but they had not lived together for a single day, and she sought divorce on ground of option of puberty clearly evinced that conscious of the Court was satisfied that parties could not live within imits of God and there was no use to order to continue a hateful union of parties-Petition dismissed. [P. 101] A

LR 1992 Civil 112; PLD 1990 Karachi 239; 1991 CLC 1234 ref.

Mian Muhammad Saleem Akhtar, Advocate for Petitioner. Mr. M. Sultan Wattoo, Advocate for Respondents. Date of hearing: 26-9-2000.

judgment

Briefly stated the facts are that Mst. Bushra alias Bashiran Bibi Plaintiff/Respondent No. 2 filed a suit for dissolution of marriage on the ground of option of puberty against the defendant/petitioner. The defendant/petitioner resisted her claim while submitting written statement. After the failure of pre-trial reconciliation proceedings the learned trial Court framed the following issues :--

1.Whether suit is not maintainable in its present form as the plaintiff was major at the time of her Nikah and now her age is about 30 years ?OPD.

1. Whether the plaintiff is entitled to a decree of dissolution of marriage on the basis of option of puberty? OPP.

2. Relief.

3. In support of her stand the plaintiff examined herself as PW.l and also brought on record the statement of FaJak Sher W.2. In rebuttal the defendant/petitioner recorded bis own statement as DW. 1 and examined Ghulam Muhammad as DW. 2.

4. After going through the evidence produced by the parties the learned trial Court while declining to grant the dissolution of marriage on the ground of option of puberty granted the said relief on the ground of khula. The petitioner/defendant has felt aggrieved and filed the instant petition.

5. Preliminary arguments have been heard and record perused.

6. The main contention of the learned counsel for the petitioner/defendant is that Respondent No. 2/plaintiff never sought divorce on the ground of khula. As such the learned trial Court was not justified to grant the said relief on that score. He next argued that Respondent No. 2/plaintiff while recording her statement as PW.l did not utter a single word for the grant of divorce on the ground of khula. He next submitted that in such cases when ground of khula is neither mentioned in the plaint nor is agitated divorce cannot be granted on the ground of khula and placed eliance upon Muhammad Abbasi versus Mst. SamiaAbbasi (NLB 1992 Civil 112).

7. Conversely the impugned judgment has been supported by the learned counsel for Respondent No. 2/plaintiff that the mere fact that ground of khula has not been agitated in the plaint does not debar the Court to grant the said relief if the conscience of the Court is satisfied that the parties cannot live within the limits of God. In support of his contention he has placed reliance on Syed Dilshad Ahmad versus Mst, Sarwat, Bi (PLD 1990 Karachi 239) and Bashir Ahmad versus Mst. Nasreen and another (1991 CLC 1234).

8. There is no doubt that Respondent No. 2/plaintiff has sought divorce on the ground of option of puberty and a finding on hat score has been returned against her as is evidence from the findings recorded under Issue No. 2, However, the fact remains that the parties were married about 11 years ago and even Rukhstihad not taken place till the filing of the suit on 13.1.2000. Since the Rukhsti had not taken place, so the question of hatred being agitated in the statement of Respondent No. 2/plaintiff does not arise. The fact that the parties were married more than one decade ago and they have not lived for a single day and Respondent No. 2/plaintiff has sough divorce on the ground of option of puberty dearly evinces that conscience of the Court was satisfied that the parties could not live within the limits of God and there was no use to order to continue a hateful union of the parties. The facts enumerated above dearly reveal that it was in the interest of the parties that they should be separated so as to lead their independent aad amicable life. The impugned judgment of the trial Court does not call for any interference. This petition fails and is hereby dismissed.

(A.A.J.S.) Petition dismissed.

PLJ 2001 Lahore 102

Present: SAYJED ZAHID HUSSAIN, J

. SOHANRA and others-Petitioners

versus

MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB LAHORE and 2 others-Respondents

Writ Petition No. 928 of 1986, decided on 19.10.2000.

Constitution of Pakistan, 1973-

—Art. 199-Consolidation of Holdings Ordinance, 1960, S. 13d)-Board of Revenue— Revisions! jurisdiction-Scope of-Whether successor Member can nullify effect of earlier order of another Member, which was upheld by High Court in writ petition-Question of-In earlier round of litigation agitating against confirmation of consolidation scheme, Respondent No. 2 & 3 lost upto Board of Revenue and High Court-Thereafter, a further revision was filed before Board of Revenue, which was accepted by successor Member and substantial changes were made in wandat of parties-Review filed by the petitioners was dismissed by BOR-Chaflenge to-Held : Being a functionary of co-ordinate jurisdiction, it was neither appropriate nor legal for Member, BOR to have sat on judgment over earlier one, particularly when it had been upheld by High Court-If indeed; Judgment of High Court was suppressed by respondents from learned Member, it came to his notice when review was filed by petitioners and he could have rectified mistake by giving effect to Judgment of High Court-Held Further : Judgment passed in writ petition inter-se the parties in earlier round was judgment "in personam", which was binding od them and they could not be allowed to re-open and re-agitate the same matter as it had attained finality, and its efficacy could not be eroded through a subsequent order passed by BOR--Impugned orders were declared to be illegal and writ petition accepted.

[Pp. 104 & 105] A

1987 SC 145 n>l on.

Sh. Naueed Skeharyar, Advocate for Petitioner No. 1. Mr. Farooq Qureshi Ckishti, Advocate for M.B.R. Nemo for other Respondents. Dates of hearing: 18-10-2000 & 19-10-2000.

judgment

Consolidation Scheme of village Jandanwala was confirmed by the Consolidation Officer on 31.12.1981. Feeling aggrieved thereagainst, the petitioners filed an appeal which was accepted by the Collector on 12.1.1983. Mohabat and Ms/, Bakhtan, Respondents Noe. 2 & 3 respectively herein filed an appeal which was disposed of by the Addl. Commissioner (Consolidation), Sargodha Division Sargodha by making certain adjustments in the wandas of the parties. Feeling dissatisfied with the same, a revision was filed before the Board of Revenue which was dismissed by the learned Member (Consolidation) on 6.6.1984 wherein a finding was recorded on the basis of the record that "the disputed Khasra No. 2195/5 was not possessed by the petitioners and as such they had no better claim over it They have been given 1233 kanals15 maiias in terms of class I land as against their previous entitlement of 1233 kanals14 marias in terms of that class. Therefore, no injustice has been done to them." W.P. No. 3793/84 was filed by the said respondents before this Court which was dismissed on 28.8.1984. It is not on record whether the said judgment was challenged any further by the respondents but the petitioners' case is that it was not and the matter had attained fainlity.

1. Mohabat respondent had also filed appeal against the confirmation of the scheme which was dismissed by the Collector on 17.2.1983. He filed a revision thereagainst which was disposed of by the Addl. Commissioner (Consolidation), Sargodha on 14.5.1983 with certain adjustments. A further revision was then filed before the Board of Revenue wherein Mst. Bakhtan, Respondent No. 3 also joined him as the co-petitioner and this petition was accepted by the learned Member, Board of Revenue on 23.1.1985. A review was filed by the petitioners which was dismissed by the same learned Member on 6.10.1985. These orders have been challenged by the petitioners through this petition.

2. It is contended by the learned counsel that having lost a round of litigation against the petitioners upto this Court when Writ Petition No. 3793/84 was dismissed, it was not open either for the respondents or the learned Member, Board of Revenue to reopen the controversy as the dispute concerning the same parties had concluded and become final. It is contended that the learned Member through the impugned order dated 23.1.1985 made substantial changes in the wandas of the parties which could not be done in the presence of the order passed by the Board of Revenue in the earlier round of litigation which order had been upheld by this ourt It is contended that the respondents deliberately suppressed the dismissal of their writ petition by this Court from the Board of Revenue, however, when it was brought to the noticeof learned Member in the review proceedings, he brushed aside the same for no cogent reasons.

3. This is one of the old cases which was listed for hearing on 18.10.2CXW, when a request was made for adjournment on behalf of learned counselfor Respondents Nos. 2 & 3 that he was busy before the HonT)le Supreme Court of Pakistan on the said date. Accordingly the case was adjourned to 19.10.2000. None has however, entered appearance on behalf of the respondents despite calls. The petition therefore, has been heard ex­ ports.

5, There eaa be no dispute that the parties nad an earlier round of litigation which ended with the dismissal of writ petition filed by Respondents Nos. 2 & 3 on 28.8.1984. Thus, the order passed by Mr. A.K. Khaiid, Member (Consolidation), Board of Revenue was maintained. It was a judgment "in personam" between the same parties concerning the same scheme of consolidation and had a binding effect quathe parties. In Pir Bakhsh and others vs. The Chairman, Allotment Committee and others (PLD 198? SC 145), after noticing distinction as to a judgment "in rem" and judgment ''in personam" it was held that an order of Rehabilitation Commissioner concerning the parties and the subject-matter which gave rise toa writ petition decided by the High Court was a judgment "in personam" whereby the parties were bound and the matter could not be later reopened nor its efficacy eroded. Keeping in view the rule so laid down in Pir Baksh' case, it is to b© seen whether the learned Member, Board of Revenue could nullifythe effect of earlier order of the learned Member, which had beenmaintained by this Court la writ petition mentioned above by dismissing the same which had been filed by Respondents Nos. 2 & 3. After that decisionwhen the revision petition filed by the said respondents came up before the successor Member, Board of Revenue (Malik Zawar Hussain), he changed the consolidation scheme in material terms by making substantial alterations in the wandas of the parties, although the earlier order passed by the learned Member, (A.K. Khalid) was before him. He was exercising similar revisional jurisdiction as had already been exercised by bispredecessor. Being a functionary of co-ordinate jurisdiction, it was neither I appropriate nor legal for him to have sat on judgment over the earlier one, I particularly when the same had been upheld by this Court. If indeed the A judgment of this Court was suppressed by the respondents from him, the same came to his notice when a review was filed by the petitioners. He could have rectified the mistake by giving effect to the judgment of this Court but | unfortunately >r an endeavourto maintain his earlier order, he brushed ; aside the sara-e by making certain uncalled for observations. Thus, the I petitioners have « legitimate grievance that the learned Member could not pass an. order contraryto the one passed in the earlier round which had been upheld by this Court, Judgment dated 28.8.1984 rendered by this Court in writ petition mentioned above, inter-se the parties was a judgment "in pfrsonam"it was binding on the parties which had attained finality. The fficacy of the same could not be eroded through a subsequent order passed by the Board of Revenue. The parties were bound by the same and they could not be allowed to re-open and re-agitate the matter over again, otherwise there would be no end to litigation. Such an order therefore, cannot sustain in law.

In view of the above, this petition is accepted, orders impugned are declared to be illegal and of no legal effect No order as to costs.

(S.A.KLM.) Petition accepted.

PLJ 2001 Lahore 105

Present: maulvi ANWAR-UL-HAQ, J.

MUHAMMAD JAMLL-Petitioner

versus

MUNICIPAL COMMITTEE, MANDIBAHAUDDIN

through CHAIRMAN MUNICIPAL COMMITTEE

and another-Respondents

C.M. No. l/C/99 in Civil Revision No. 459 of 1995, decided on 1.11.2000.

Civil Procedure Code, 1908 (V of 1908)--

—S. 12(2) read with Order HI, Rule 4--Compromise--Challenge to-Whether vakalatnama executed in favour of Counsel does contain authority to compromise suit on behalf of bis client-Question of-Contention that petitioner did not authorise his counsel to enter into a compromise on his behalf-Held: Vakalatnamaexecuted by petitioner in favour of his counsel contained words "To appear and act for him as his Advocate for above matter."--Word "act" as used in Order HI, Rule 4, C.P.C., is very wide and includes every conceivable action with relation to proceedings in which Advocate has been authorised to act by a party-Unless there is any provision to contrary in document appointing an Advocate to act, he may withdraw case or enter into compromise regarding subject matter of suit, but not with regard to any matter alien to it-Held further: Petitioner had not alleged that compromise did not strictly pertain to subject matter of suit-Petition dismissed. [P. ] A & B

1971 SCMR 634; AIR 1930 PC 158 ref. 1992 SCMR 876 distg.

Rana Muhammad Sarwar, Advocate for Petitioner. Mr. Shahzeb Masood, Advocate for Respondents. Date of hearing. 1.11.2000.

order

This order shall decide C.M. l-C/99 in C.R. 459/95 and C.M. 2-C/99 in C.R. 460/95 as they involve common questions.

1. C.R. No. 459/95 and C.R. No. 460/95 were decided by me vide judgments dated 23.6.1999. Present C.Ms, have been filed by Muhammad Jamil, petitioner purporting to be under Section 12(2) CPC alleging that he had not appointed Mr. Tafazzal H. Rizvi as a counsel and that he had no authority to enter into a compromise on which my said j udgment is based.

2. Learned counsel for the petitioner argues that in the first instance the said learned counsel had not been engaged by his client and that he had engaged only Mr. Talib H. Rizvi, Advocate. Further contends that even if it be deemed that the said learned counsel was so appointed as a counsel, then the power of attorney executed in his favour by the petitioner does not authorise him to enter into a compromise. Mr. Shahzeb Masood learned counsel for the respondents argues that the said learned counsel was not only appointed as an Advocate but had full authority to enter into a compromise.

3. I have gone through the record. 1 find that the Wakalatnama was executed on 1.3.1995 in favour of M/s. Rizvi and Rizvi and was accepted by Mr. Tafazzal H. Rizvi and Mr. Talib H. Rizvi. This is present in the file of Civil Revision No. 459/95. The Wakalatnama present in the file of C.R. No. 460/95 also stated that Mr. Talib H. Rizvi and Mr. Tafazzal H. Rizvi of Rizvi and Rizvi have been appointed as Advocates and has been accepted by both the said learned Advocates. 1 do not have any doubt in my mind that Mr. Tafazzal H. Rizvi, Advocate was duly appointed as an Advocate by thepetitioner for the purpose of the said Civil Revisions. Coming to the said second contention of the learned counsel, he argues that unlike the Wakalatnama generally provided in vernacular and where all sorts of powers are conferred upon an Advocate, Wakalatnama in hand does not specifically authorise the Advocate to enter into a compromise. I may reproduce here the contents of the said Wakalatnama on record. It states that Advocates have been appointed:

"To appear and act for him as his Advocate for the above matter."

1. The said argument of the learned counsel for the petitioner loses sight of the provisions of Order, HI Rule 4 CPC. The said provision of CPC provides that no person shall "act" for any person in any Couit unless he has been appointed for the purpose by such person by a document in writing signed by such person. In this term "act" is very wide and includes every conceiveable action with relation to the proceedings in which the Advocate has been authorised to act by a party. The consensus of judicial authority is that a counsel has an implied authority to do whatever he considers best for his client and such acts are binding upon the client unless express limitations have been imposed upon his authority. It has accordingly been held that unless there is any provision to the contrary in the document appointing an Advocate to act he may withdraw or compromise or settle the dispute. Learned counsel for the respondents has referred to the case of Dr. Ansar Hassan Rizvi vs, Syed Mazahir Hussain Zaidi and 3 others (1971 SCMR 634). In the said case the Supreme Court with reference to the case of Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC. 158 held that an Advocate has implied authority of his client to enter into a compromise and to settle the dispute unless such authority is expressly denied in the document appointing him as a counsel.

2. Rana Muhammad Sarwar, learned counsel for the petitioner relies on the case of Mst. Noor Jahan vs. Azmat Hussain Farooqi and another (1992 SCMR 876) to argue that Mr. Tafazzal H. Rizvi, Advocate had no authority to enter into a compromise. I am afraid the said judgment does not at all help the learned counsel so far as the facts and circumstances of the present case are concerned. In the said case the apex Court held that an Advocate can enter into a compromise regarding the subject-matter of the suit but not with regard to any matter alien to the same. In the case in hand it has not even been alleged that the compromise did not strictly pertain to the subject-matter of the suit. Both the C.Ms, are accordingly dismissed.

(S.A.K.M) Petition dismissed.

PLJ 2001 Lahore 107

Present:CH. LJAZ AHMAD, J. MUHAMMAD ASLAM and 8 others-Petitioners

versus REHMAT ALI and 8 others-Respondents

C.R. No. 907/96, heard on 20.3.2000. Transfer of Property Act, 1882 (IV of 1882)--

—Ss. 41 & 54-Civil Procedure Code, 1908 (V of 1908), S. US-Transaction of sale—Vendee in possession of land comprised in sale-deed—Vendors' brother challenged sale-deed on the ground that land comprised therein belonged to him on account of partition-Trial Court decreed plaintiffs suit—First Appellate Court on basis of evidence on record dismissed plaintiff's suit-Validity-First Appellate Court had given finding of fact against petitioner after proper appreciation of evidence that plaintiffs suit was filed collusively with his brother (vendor) as was evident from his written statement which was consenting-Even otherwise, conduct of vendor (defendant) was of such a nature that his statement was rightly not believed by First Appellate Court coupled with the fact that he had not challenged illegality and propriety of registered sale-deed-Registered document has sanctity attached to it and stronger evidence was required to cast aspersion on its genuiness-No such evidence was produced by plaintiff to prove sale-deed in question to be forged and fictions-Vendor was thus, estopped by way of his conduct to take any exception qua registered sale-deed on the principle of approbate and reprobate-First Appellate Court was justified to give benefit of S. 41 of Transfer of Property Act to vendee-Finding on question of fact or law, howsoever erroneous recorded by Court of competent jurisdiction could not be interfered with by the High Court in exercise of its revisioaal jurisdiction unless such findings suffered from jurisdiction defect, illegality or material irregularity-Interference in judgment and decree of First Appellate Court was, thus, not warranted. [Pp. Ill & 112] A, B, C & D

PLD 1949 P.C. 26; PLD 1982 Pesh. 172; PLD 1984 Lah. 396; 1986 CLC 2655; 1991 CLC 533; PLJ 1984 Pesh. 278; NRL 1993 SC 148; PLD 1971 SC 376.

Ch. Muhammad Abdullah, Advocate for Petitioners. Sh. Abdul Aziz, Advocate for Respondent No. 2. Mr. Muhammad Sharif Butt, Legal Representative of Respondents Nos. 8 & 9.

Date of hearing: 20.3.2000.

judgment

Brief facts out of which the present revision petition arises are that Faqir Muhammad Predecessor-in-interest of the petitioners and Respondent No. 1 were the real brothers. They were owners of the land measuring 13 Kanals 10 Marias in Sambrial in two equal shares situated in Khasra Nos. 9693 and 9673. Faqir Muhammad predecessor-in-interest of the petitioners and Rehmat Ali Respondent No. 1 executed partition deed on 19.4.1983 inter see. Partition deed reveals specific khaara numbers were allocated to each of them i.e. Kashra No. 9693 was allocated to the predecessor-in-interest of the petitioner Faqir Muhammad and Khasra No. 9673 to Rehmat AM Respondent No. 1. In the khata of the said share-holders some other persons were also share-holders from whom predecessor-in-interest of the petitioners Faqir Muhammad purchased their share through registered sale-deed dated 25.6.1986 and mutation was also sanctioned to this effect on 21.6.1989. Khasra No. 9693 measuring 2 KanaU is in dispute between the parties. Predecessor-in-interest of the petitioner claimed the said khasra number was given to him by virtue of partition deed dated 19.4.1983 but Rehmat Ali Respondent No. 1 sold the area of 1 Kanal 1 Marias in favour of Muhammad Sharif Respondent No. 2, In consideration of Rs. 1,00,000/- vide registered sale-deed dated 27.8.1986. The mutation was also sanctioned on the basis of the aforesaid registered sale-deed on 14.1.1987. Predecessor-in-interest of the petitioner claimed that the said khasra number belonged to his share and the same was in his possession and Respondent No. 1 Rehmat Ali was not competent to sell the same. Petitioners predecessor-in-interest Faqir Muhammad filed a suit for permanent injunction and possession regarding the disputed khasra number on 31.10.1988. Respondent No. 1 filed consenting written statement, whereas Respondent No. filed contesting written statement Out of the pleadings of the parties the trial Court framed the following issues:

(i) Whether the sale-deed dated 27.8.1986 and Mutation No. 2190 is illegal, null and void and thus is ineffective upon the rights of the Plaintiff and Defendants Nos, 7, 8 & 9? OPD, 7, (ii) Whether the suit is not maintainable in its present form? OPD

(iii) Whether the suit is undervalued for the purpose of Court-fee, If so, its effect? OPD

(iv) Whether the plaintiff has no cause of action and locus-standil OPD

(v) Whether the suit is bad for mis-joinder and non-joinder of the parties? OPD

(vi> Whether the description of the suit property has been described incorrectly. If so, its effect?

(vii i Whether the plaintiff has not come to the Court with clean hands? OPD(viii) Whether this Court lacks jurisdiction to try this suit? OPD

(ix) Whether the plaintiff has not thumb-marked the plaint and Vikalat Nama etc.? OPD

(x) Whether the suit is frivolous and the defendants are entitled to special costs U/S. 35-A CPC. if so to what extent? OPD.

(x-Aj Whether the suit is time-barred? OPD

(x-B) Whether the Defendant No. 2 is a bona fide purchaser with consideration & without notice? O.P

(x-C) Whether the Defendant No. 2 has improved the suit property. If so, with what amount and with what effect? OPD

(x-D) Whether this suit is collusive between the plaintiffs and Defendant No. 1? OPD. 2

(xi) Relief.

The trial Court decreed the suit vide judgment and decree dated 27.4.1992. Respondents being aggrieved filed appeal before the Addl. District Judge Daska who accepted the same vide judgment and decree dated 26.2.1996. Learned counsel submits that judgment of both the Courts below are at variance. He further submits that the First Appellate Court did not advert to the reasoning of trial Court. He further submits that judgment of the First Appellate Court is result of mis-reading or non-reading of the record. He further submits that the First Appellate Court was erred in law to take into consideration written statement filed by Respondent No. 1 in another suit and that was not placed on record in accordance with law. He further submits that the suit was not filed collusively by predecessor-in-interest of the petitioner with Respondent No. 1. It is a matter of chance that predecessor-in-interest of the petitioner and Respondent No. 1 was real brothers. He further submits that possession of the land is still with the petitioners and this fact was not noted by the First Appellate Court. He further submits that Respondent No. 2 is not a bona fide purchaser as Respondent No. 2 did not get permission from the predecessor-in-interest of the petitioners before purchasing the land in question. He further submits that petitioners produced documentary evidence to show that the suit was not filed by the predecessor-in-interest collusively with Respondent No. 1. Predecessor-in-interest of the petitioner has also placed evidence on record that Respondent No. 2 did not purchased the land in good faith as the respondents failed to bring on record sufficient evidence to get the benefit of Section 41 of the Transfer of Property Act as the ingredients of Section 41 is not attracted on the basis of the evidence on record. He further submits that the First Appellate Court rejected the partition deed without justification which is result of mis-reading or non-reading of the record.

1. Learned counsel for Respondent No. 2 submits that learned counsel for the petitioner failed to point out any peace of evidence which was mis-read by the First Appellate Court. He further submits that the First Appellate Court gave finding of fact against the petitioner after proper appreciation of evidence that the suit filed by the predecessor-in-interest of the petitioner collusively with Respondent No. 1. He further submits that the First Appellate Court after proper appreciation of evidence gave finding of fact against the petitioner that Respondent No. 2 has purchased the land in question from Respondent No. 1 after proper appreciation of evidence and after informing and checking the revenue record. Learned counsel for the respondents stated that possession of the land in question is with them. He summed up his arguments that partition deed was rightly rejected by the First Appellate Court after proper evidence on record. He further submits that predecessor-in-interest of the petitioner failed to bring on record any evidence that the sale-deed executed by Respondent No. 1 in favour of Respondent No. 2 is result of fraud or mis-representation.

2. Learned counsel of Legal representative of Respondents Nos. 8 and 9 adopted the arguments of the learned counsel for Respondent No. 2 and submits that respondents purchased the land from Respondent No. 2 with consideration through registered sale-deed and the judgment of the First Appellate Court is valid as the First Appellate Court has give finding of fact against the petitioner on the aforesaid issues after proper appreciation of evidence.

3. Learned counsel for the petitioner in rebuttal stated that the judgment of the First Appellate Court is not sustainable in the eyes of law as the First Appellate Court did not advert to the reasoning of the trial Court and is result of mis-reading or non-reading of the record. He further stated that Respondents purchased the land in question from the father of the petitioner.

4. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. The first appellate Court has given finding of fact against the petitioner after proper appreciation of evidence that suit was filed by the predecessor-in-interest of the petitioner collusively with his brother Respondent No. 1 as is evident from his written statement that he had filed consenting written statement and admitted in written statement that partition deed was executed between the two brothers on 19.4,1983 but Respondent No. 1 did not filed consenting written statement in a similar suit filed by the predecessor-in-interest of the petitioners regarding similar transaction. Copy of the plaint with the said suit and written statement were exhibited without objection as Ex.D-7 and D-8. The contents of the written statement reveal that Respondent No. 1 denied the existence of any partition deed. This fact brings the case in the area that it was filed collusively by the predecessor-in-interest of the petitioner with Respondent No. 1. Even otherwise the conduct of Respondent No. 1 is also of such a nature that his statement was rightly not believed by the First Appellate Court coupled with the fact that Respondent No. 1 did not challenge the illegality and propriety of the registered sale-deed. The contents of the sale-deed dearly reveals that Rehmat Ali Respondent No. I had sold the land in question with consideration of Rs. 1,00,000/- to Respondent No. 2. It is pertinent to mention here that Respondent No. 1 got registered a sale-deed while appearing before the Sub-Registrar and received the consideration amounting to Rs. 100,000/- before the Registrar. As mentioned above Respondent No. 1 did not challenge the validity or illegality of the sale-deed that he did not appear before the Sub-Registrar and the sale-deed was not registered hi his presence. It is by now well settled that registered documents has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness as per principle laid down by the Hon'ble Supreme Court in Mirza Muhammad Sharif s vs. Mst. Nawab Bibi (NLR 1993 S.C. 148). It is pertinent to mention here that there is no evidence worth the name on the file to show that the sale-deed was forged and fictitious. Therefore, Rehmat Ah' is estopped by way of bis conduct to take any exception qua the registered sale-deed on the well known principle of approbate and reprobate. In arriving this conclusion I am fortified by the judgment of the Hon'ble Supreme in Ghulam Rasool's case PLD 1971 S.C. 376. First Appellate Court has also reversed the finding of the trial Court after proper appreciation of evidence that partition deed was not genuine on the following reasons:--

(i) Partition deed was executed on 19.11.1983.

(ii) Neither its executant nor its marginal witnesses or its scribe appeared in the witness-box to prove the execution of the partition deed.

(iii) The other share-holders also did not attest the same.

First Appellate Court has given finding of fact against the petitioner in the following terms:

"I am of the view that in the first place, the partition-deed has not been proved on the file and secondly, on account of the absence of other co-sharers as a party to the said document, this document has got no legal effect and it cannot be used against Muhammad Sharif, the vendee, who is bona fide purchaser."

It is pertinent to mention here that during this litigation Respondent No. 1 made no efforts whatsoever to annul acts performed in result of aforesaid sale-deed. Therefore, First Appellate Court was justified to give benefit of Section 41 of the Transfer of Property to Respondent No. 2 as per rule laid down by the superior Courts in arriving to this conclusion I am fortified by the judgment of the Peshawar High Court PLJ 1984 Peshawar 278. This fact alone is sufficient to come to a conclusion that predecessor-in-interest of the petitioner and Respondent No. 1 filed suit with collusion. Collusion means in judicial proceedings was a secret arrangement between two persons that one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose as per principle laid down by the superior Courts in the following judgments:

1991 CLC 563 (Iqbal vs. Mst. Jennan Bibi)

1986 CLC 2655 (Af.A Khan vs. S. Khan)

PLD 1984 Lahore 396 (Zafrullah vs. Civil Judge Hafizabad).

PLD 1982 Peshawar 172 (Raufvs. A.R. Khan)

As regards the findings of the learned Addl. District Judge on the aforesaid issues, it may be noticed that in his capacity a appellate Court, the learned Addl. District Judge possess the jurisdiction to come to its own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly, he could competently reversed the finding of the trial Court on the question of fact involved in issues. It is established proposition of law that finding on question of fact or law, howsoever erroneous the same may be recorded by the Court and competent jurisdiction, cannot be interfered with by the High Court, in exercising of its revisional jurisdiction U/S. 115 CPC, unless such findings suffers from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar and another vs. The Hindu Religious Endowments, Board, Madras (PLD 1949 P.C. 26).

In view of what has been discussed above this revision petition has no merit and the same is dismissed.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 113

Present: maulvi ANWAR-UL-HAQ, J. REHMAT ALI-Petitioner

versus

HASSAN MUHAMMAD-Respondent C.R. No. 1149/86, heard, on 17.11.2000. Punjab Pre-emption Act, 1913 (I of 1913)--

—-Ss. 15 & 28--Land Reforms Regulation 1972, [M.L.R. 115], Para 25--Civil Procedure Code (V of 1908), S. 115-Petitioner's suit for pre-emption based on being owner in estate was decreed by Civil Court while respondent's suit for pre-emption based on being tenant in land in question was decreed by Collector-Petitioners suit for declaration that decree granted to him by civil court would have preference over decree granted in favour of respondent by Collector was dismissed by trial court as also by Appellate Court-Validity-Plain reading of plaint filed by petitioner would show that be had not only admitted that respondent was tenant in suit land but insisted that he had been demanding share of produce from him after getting decree from Civil Court-Appellate court on basis of evidence on record had maintained that respondent was tenant in land in question with effect from statutory period and was still in possession of the same-Such finding of fact interparties Us was supported by the assertion of plaint of petitioner--In suit filed by petitioner against respondent both parties had a chance to face each other and to lead evidence in support of their respective contention-Appellate Court on basis of evidence recorded in case had concluded that respondent had superior right of pre-emption as against petitioner-Petitioner, thus, cannot complain after decision of present suit after parties had gone to trial that any injustice had been done to him-Judgment of Appellate Court being manifestly just, same does not suffer from any of the defects prescribed in S. 115 C.P.C.-Dismissal of petitioner's suit was maintained in circumstances.

[Pp. 116,117 & 118] A, B & C

PLD 1992 SC 573; PLD 1991 SC 824; PLD 1991 SC 153; PLD 1991 SC 1051.

Mian Nisar Ahmad, Advocate for Petitioner.

Mr. Khurshid Ahmad Chaudhry, Advocate for Respondent.

Date of hearing: 17.11.2000.

judgment

One Muhammad Iqbal purchased the suit land measuring 16 kanals 6 marlas vide registered sale deed dated 27.5.1974. The petitioner claiming to be an owner in the estate filed a suit for possession by pre-emption of the suit land on 11.7.1974. The respondent claiming that the land is comprised in his non-occupancy tenancy filed a similar suit on 19.7.1974. The learned Civil Judge dealing with two suits proceeded to make orders under Section 28 of the Punjah Pre-emption Act, 1913 and the parties were impleaded as defendants in each others suits. While the suits were so pending para 25 of MLR. 115 was amended and as a result of the said amendment the suit filed by the respondent stood transferred to the Court of a Collector. As it happened, the suit filed by the petitioner was decreed by the Civil Judge on 18.2.1978 while the suit filed by the respondent was decreed by the Collector on 30.5.1979.

1. On 10.7.1979 the petitioner filed a suit, out of which the present Civil Revision has arisen. In the plaint it was stated that the decree passed in favour of the respondent by the Collector being violative of the aforenoted provision of law is void and it should be declared as such. The respondent contested the suit. Following issues were framed :--

2. Whether the Court has no jurisdiction to try this suit ? OPD.

3. Whether the decree dated 18.2.1978 passed in favour of the plaintiff, is illegal, void and ineffective against the rights of the defendant? OPD.

4. Whether the decree dated 30.5.1979 passed by the learned Collector, Ferozewala, has no effect against the rights of the plaintiff and is invalid ? OPP.

5. Relief.

The evidence of the parties was recorded. The learned trial Court decided Issue No. 1 only and holding that it has no jurisdiction proceeded to dismiss the suit vide judgment and decree dated 10.7.1985. The respondent filed a first appeal which was heard by a learned Additional District Judge, Sheikhupura who dismissed the same on 1.12.1985.

1. Mian Nisar Ahmad, learned counsel for the petitioner contends that the decree passed in favour of the respondent by the Collector in the absence of his client is illegal and ought to have been set aside. Relies on the case of Noor Ahmad vs. Assistant Commissioner/Collector, Gujranwala and five others (PLD 1992 SC 573) to contend that the decree be set aside and the matter be remanded to the Collector to decide the case after impleading the petitioner. Mr. Khurshid Ahmad Chaudhary, learned counsel for the respondent, on the other hand, with reference to the case of Malhi Khan vs. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (PLD 1991 SC 824) argues that the right conferred on a tenant under MLR 115 is not to be fettered by any provision of the Punjab Pre-emption Act, 1913 and as such the decree passed by the Collector in favour of his client cannot be questioned by the petitioner.

4.I have gone through the copies of the records appended by the petitioner with this Civil Revision. The facts as stated by me above are undisputed. It must state that the said case of Noor Ahmad relied upon by Mian Nisar Ahmad, Advocate does support him inasmuch as the proposition propounded by the learned counsel was so laid in the said judgment by the Supreme Court of Pakistan. So far as the contention raised by Ch. Khurshid Ahmad is concerned, the said judgment in the case of Malhi Khan does not lay down as sweeping a proposition as proposed by the learned counsel. Their Lordships in fact held that inasmuch as the substantial provision of para 25(3)(d) of MLR 115 are concerned, they vested the tenant with a first right of pre-emption and that any provision in Punjab Pre-emption Act, 1913 which tends to take away the said right so vested in a tenant shall have to give way as the provisions of MLR 115 are to take effect notwithstanding anything to the contrary contained in any other law. So far as the procedural matters as to the manner in which the right is to be exercised, are concerned, their Lordships did hold that the provisions of Punjab Pre­ emption Act, 1913 would be applicable. Thus the basic judgment on the subject given by the apex Court in the case of Muhammad Khan vs. Abdul Klialiq Khan (PLD 1981 SC 153) stood approved in both the said cases having been cited by the learned counsel for the parties.

1. It remains, however, to be seen as to whether in the facts and circumstances of the present case would it serve any purpose to set aside both the decrees and to order the retrial of both the cases filed by the parties against each other on the ground that the provisions of Section 28 of Punjab Pre-emption Act, 1913 have been violated. I find it appropriate to reproduce here some excerpts from the judgment of Chief Justice Muhammad Afzal Zullah (as his Lordship then was) in the case of Syed Phul Shah vs.Muhammad Hussain and 10 others(PLD 1991 SC 1051) also referred to in the said case of Noor Ahmad before examining the present case in the light of the said principles :--

"Leaving aside technical arguments raised by the learned counsel the fact remains that now both the cases are before the Supreme Court though coming from different original jurisdictions. When they are put in juxta-position to each other, the respondent as compared to the appellant having the superior right of pre-emption, it is not possible for this Court to allow the appellant's appeal. Even if there would have been some force in the technical objection of the learned counsel, justice could not have been sacrificed, at least in this Court, on the altar of the technicality which does not go to the root of the cause, in so far as the fairness thereof is concerned. The Courts in Pakistan combine law and justice under the umbrella of Islamic jurisprudence; which provides harmonious solution for situations like the present one. One amongst other principles which operates is that an obviously unjust and wrong decision which is also against the substantive law of the country, shall be avoided by the Court.

Even a winning party in our society feels embarrassed and sometimes guilty as well; if it has no case under the dictates of justice, but succeeds merely on account of technical failure of the other side. It is so because justice in such a situation does not even appear to have been done. This 'appearance of justice' in Islam is not only for lawyers and intellectuals say in foreign lands; but, they include our own people in general-the litigant parties being in the , forefront.

It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, • burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle: Justice in accordance with law, we will have to keep in rnind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islam come to the aid when, one exerts."

In this suit both the parties were pitted against each other. The petitioner with a decree passed on 18.2.1978 by a learned Civil Judge and the respondent with a decree passed on 30.5.1979 by a Collector in respect of the same land. From the pleadings it does not appear that the respondent questioned the right of pre-ernptiori claimed by the petitioner in his suit i.e. owner in the estate. Now it is to be seen as to whether the petitioner questioned the said right of the respondent on the basis of which he got the decree from the Collector in respect of the same land. The plaint reading of the paint would show that the petitioner not only admitted that the respondent was a tenant in the suit land but insisted that he had been demanding the share of produce from him after getting the decree from the Civil Court. In para 7 the petitioner states as follows : In para 8 of the plaint he states as under :--

In para 9 he makes the following demand:

Although the learned trial Court proceeded to dispose of the suit after holding that it has no jurisdiction, yet I find that the learned Additional District Judge while hearing the appeal of the petitioner delved upon other issues as well. I have already stated above that parties did lead evidence in this case. The learned Additional District Judge on the basis of evidence recorded in the present suit between the parties has held that the respondent was a tenant in the suit land since the year 1971 and is still in possession of the same. This is a finding of fact recorded in this inter parties lis and is supported by no other document than the very plaint of the petitioner himself.

1. Here I would take an opportunity to reproduce a portion of the judgment in Noor Ahmad's case from page 576 of the report:

"Having failed on the main point learned counsel for Noor Ahmad tried to argue that on merits also notwithstanding Noor Ahmad's decree being a consent decree, it would stand the test of scrutiny; and that, the other rival pre-emptor side has not been able to find any flaw with the plea of Noor Ahmed that he had a preferential right on the basis of tenancy. When pointed out that Allah Dad and his successor-in-interest have not been allowed a fair chance of contest including the contest relating to the presumptions attached to the revenue records it will be unfair to them if their plea is rejected without a fair trial. This argument on merits thus also failed."

It will thus be seen that the principle underlying the said Section 28 of Punjab Pre-emption Act, 1913 is that the rival pre-emptors should have to face each other in a fair trial. In the present case, both the pre-emptors had a chance to face each other in the present suit and to lead evidence in support of their respective contentions and the learned Additional District Judge on the basis of evidence recorded in the case has concluded that the respondent has a superior right of pre-emption as against the petitioner. In this view of the matter I find that the interests of justice had been fully met and the petitioner cannot complain at least after the decision of the present suit after the parties had gone to trial that any injustice has been done to him. On the touch stone of the proposition laid down in the case of Syed Phul Shah it cannot be said that the decision given by the learned Additional District Judge is "an obviously unjust and a wrong decision which is also against the substantive law of the country".

1. Although I have tried to approach the case from an angle to see as to whether justice has been done in this case or not, yet I am constrained to refer to a technicality. I am hearing a Civil Revision and the jurisdiction of this Court is clearly defined in Section 115 CPC. I do find that apart from the fact that the judgment of the learned Additional District Judge is manifestly just, it does not suffer from any of the defects prescribed in Section 115 CPC. This Civil Revision is accordingly dismissed leaving the parties to bear their own costs.

(A.P.) Revision dismissed.

PLJ 2001 Lahore 118

Present: CH. IJAZ AHMAD, J.

MUHAMMAD HASEEB-Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through its CHAIRMAN-Respondent

W.P. No. 18847 of 2000, decided on 7.11.2000. EducationalInstitutions­'—Constitution of Pakistan (1973), Art. 199-Petitioner having failed in chemistry Practical of Secondary School Examination, his application for rechecking the same was dismissed-Validity-Action of respondents in dismissing petitioner's application was in accordance with law in as much as general allegation of malice was not sustainable in law-Allegations of malice against sub-examiner was also not sustainable in that he was not impleaded in writ petition as a party-Examiner is the best judge to judge performance of candidate qua paper in question-High Court has no jurisdiction to give direction to respondents qua re-evaluation of paper-Action of respondent being in accordance with law, writ petition against his action was not competent and the same was dismissed.

[P. 119 & 120] A, B

1996 SCMR 676; 1996 SCMR 1872; PLD 1981 Lah. 371; 1984 SCMR 433; 1984 CLC 378; PLD 1992 SC 221; PLD 1971 Lah. 972; PLD 1992 SC 263; 1999 CLC 694; PLD 1990 SC 1092 and PLD 1974 SC 151.

tyazi Muhcmmad Arshad Bhatti, Advocate for Petitioner. Mr. Shahid Wakeed, Legal Advisor for Respondents. Date of hearing: 7.11.2000.

order

The petitioner has filed this writ petition challenging the vires of order of respondent dated 23-7-2000.

2.The petitioner's counsel submits that petitioner appeared in Secondary School Examination 1999 and secured 388 marks out of 850 marks. Subsequently, the petitioner appeared in the Examination held by respondents Secondary School Examination 2000. The petitioner was declared failed in Chemistry ^practical. The petitioner being aggrieved, filed application for re-checking the same but respondents dismissed the application of petitioner vide impugned intimation letter dated 23.7.2000; learned counsel of the petitioner submits that action of respondents is without lawful authority and is based on malice; that petitioner secured 9 marks in the Secondary School Examination 1999 in the practical paper of Chemistry but the petitioner obtained zero marks in the Examination in question which is not possible; that respondents did not re-check the paper of petitioner in accordance with law; that mere comparison of Annex 'A' & 'B' reveals that action of respondents is without lawful authority. The petitioners counsel alleged serious allegation against Sub-Examiner. He further submits that action of respondents is in violation of law laid down by the superior Courts. In support of his contention he relied upon Salma Afroze's case (PLD 1992 SC 263) and (1999 CLC 694) Khurshid Ahmed'scase.

1. The learned Legal Advisor of respondents submits that action of respondents is in accordance with law and is valid.

2. I have heard the learned counsel for the parties and also seen the paper in Court. The action of respondents is in accordance with law as general allegation of malice is not sustainable in the eyes of law as per law laid down in Saeed Ahmad Khan's case (PLD 1974 SC 151) and Aman Ullah Khan's case (PLD 1990 SC 1092). Similarly allegation of malice against Sub- Examiner is not sustainable in the eyes of law as petitioner did not implead the Sub-Examiner as respondent as per principle laid down by superior Courts in the following judgments :

Azhar Ali's case (PLD 1971 Lah. 972) and M. Ramiz-ul-Haq's case (PLD 1992 SC 221).

The petitioner referred Salma Afroze's case (supra) but petitioner did not draft the writ petition in terms of said case, therefore principle laid down in Salma Afroze's case is not attracted. It is also settled proposition of law that Examiner is the best Judge to Judge the performance of candidate qua paper in question as the law laid down in Rana Muhammad Ajmal's case (1984 CLC 378), The judgment of learned Single Judge was upheld by Division Bench of this Court in (1984 CLC 3316) Rana Muhammad Ajmal's case.

The petitioner's counsel failed to point out that respondents violated their Rules and Regulations, therefore, writ petition is not maintainable as held in All Mir's case (1984 SCMR 433). As mentioned above, the petitioner failed to allege any specific malice against respondents, therefore, writ petition is not maintainable as per principle laid down in Saeed Nawaz's case

1 (PLD 1981 Lah 371). This Court has no jurisdiction to give direction to | respondents qua re-evaluation of paper as per principle laid down by the Hon'ble Supreme Court in Salma Afroze's case supra. It is pertinent to mention here that the action of the respondent is in accordance with law laid down by the Hon'ble Supreme Court in the following judgments :--

1996 SCMR 676 (BISE Lahore vs. Saima Azad).

1996 SCMR 1872 (Tahir Saeed Qureshi vs. BISE Sargodha).

In view of what has been discussed above, this writ petition is dismissed.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 120

Present: ch ijaz ahmad, J.

MANAGING DIRECTOR, RAVI RAYON LIMITED, KALA SHAH KAKU, TEHSIL FEROZEWALA, DISTRICT

SHEIKHUPURA-Petitioner

versUs

PROVINCE OF PUNJAB through SECRETARY LABOUR, CIVIL SECRETARIAT, LAHORE and others-Respondents

W.P. No. 667/88, heard on 25.10.2000. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 23-B (lO)-Constitution of Pakistan (1973), Art. 2-A, 25, 203 G & 199- Repugnancy to injunctions of Islam-Provision of S. 23-B (10) whether invalid and void piece of legislation inasmuch as, there was in-built violation of principles of natural justice in the sense that before an order was passed by Provincial Government, no right of prior hearing was provided to company concerned-Petitioner failed to point out that S. 23- B (10) was hit by which principle of injunctions of Islam-High Court, however, in terms of Art. 203-G of the constitution has got no authority to examine the same. [P. 123] A

(ii) Interpretation ofStatutes--

—Industrial Relations Ordinance 1969, being special law excludes the companies ordinance 1984, which is a general law. [P. 123] B

(iii) Natural Justice, Principles of--

-—Principles of natural justice must be read in each Statute unless and until prohibition is expressly specified in the statute itself-Impugned order admittedly having been passed without hearing one of the parties was, thus, not sustainable in law and the same was set aside-Application culminating into impugned order would be deemed to be pending adjudication before respondent official who was directed to decide the same after providing personal hearing to all concerned parties within reasonable time. [P. 124] C, D

PLD 1968 SC 673; PLD 1965 SC 90; 1977 CLJ 314; PLD 1997 Karachi 404;

PLD 1987 Karachi 612; 1981 PLC 380; 1964 PLC 593; 1973 PLC 61;

PLD 1987 Karachi 404 & 412; PLD 1964 SC 673; 1994 SCMR 2232;

PLD 1987 SC 304.

Mr. Vmer Alvi, Advocate for Petitioner.

Malik Akhtar A. Awan. A.A.G. for Respondents.

Date of hearing : 25.10.2000.

judgment

Petitioner has filed this writ petition with the following prayer :--

"It is respectfully prayed that Section 23-B (10) of Industrial Relations Ordinance 1969 may very graciously be declared to be an invalid and void piece of legislation.

It is further prayed that the impugned order as conveyed through Annexure 'B' may kindly be declared to be without lawful authority."

Learned counsel for the petitioner submits that aforesaid Section of I.R.O 1969 creates an inequality before the law between the company and the collective bargaining agent in as much as there is an in-built violation of principles of natural justice in the sense that before an order is passed by the Provincial Government, no right of prior hearing is provided to the Company. Therefore, same is hit by Article 25 of the Constitution. In support of his contention he relied upon the following judgments :—

PLD 1964 S.C 673 (Sayed Abu-ul-Alha 'Madoodi's case).PLD 1965 S.C. 90 (Zakir Ahmad's case) 1997 CLJ 314 (Sheikh Abdur Rashid's case).

He further submits that aforesaid provisions of law is hit by Article 2-A of the Constitution and Courts are duty bound to decide the controversy between the parties in accordance with injunctions of Islam after the addition of Article 2^A in the Constitution. In support of his contention he relied upon the following judgments :—

PLD 1987 Karachi 404 (M/s. Bank of Oman Ltd's case).PLD 1987 Karachi 612 (Habib Bank Ltd'stase).

He further submits that rights of the labourers are protected by the provisions of the Companies profits (workers participation) Act 1968. Therefore, impugned Section is ultra vires and is liable to be struck down. In support of his contention he relied upon the following judgments:

1981 PLC 380 (M/s. Anwar Jamil Ltd's case).1964 PLC 593 (Flour Mill Employees Union's case).

He further submits that the statutory auditors for the company had already submitted their annual audit report which is attached with the writ petition as Annexure-A. He further submits that by virtue of Section 259 of Companies Ordinance 1984, failure to comply with provisions of Sections 252 to 254 and 256 to 258 of the Ordinance has been made punishable and fine upto Rs. 2000/- can be imposed. Therefore, the impugned order Annexure-B dated 20.1.88 is also without lawful authority. The aforesaid action is liable to be set aside.

1. Service of Respondents Nos. 2 and 3 had been effected. They had engaged Mr. M.A. Hamid Awan Advocate who had filed power of attorney on 24.10.89. Office sent notice to the respondents on 30.9.2000 for 25.10.2000 but nobody entered appearance on behalf of the respondents. List of old cases was sent to the respective members of the bar with the following note well in time:

"Old cases will not be adjourned. Adjustment may be solicited, in highly exceptional circumstances with the consent of opposite counsel, through an application to the Addl: Registrar latest by 7 days before the date fixed for hearing."

In this view of the matter ex-parte order is passed against the Respondents Nos. 2 and 3.

1. Learned Addl: A.G submits that the impugned order is valid and Section 23 was promulgated by the competent authority. Respondent No. 1 has passed the order in administrative capacity. Therefore, question of providing of personal hearing does not arise.

2. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the preamble of the National Industrial Relations Ordinance 1969 to resolve the controversy between the parties :--

"Whereas it is expedient to amend and consolidate the law relating to the formation of trade unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto ;

And whereas the national interest of Pakistan in relation to the achievement of uniformity requires (Federal) legislation in the matter;

The aforesaid preamble reveals that special statute regarding the relationship of the petitioner employee and the worker union Respondent No. 2 i.e. National Industrial Relations Ordinance 1969, provides for a new and more effective machinery than hitherto available. The vires of the Industrial Relations Ordinance were challenged in Muhammad Ibrahim's case 1973 PLC 61 and observed as under :

1"National Industrial Relations is law of necessity, hence valid, not withstanding its promulgation during unconstitutional and illegal martial law regime. Sufficient protection has been given to legislative acts of ex-President in the Constitution of Pakistan, 1972 which might have been absolutely necessary on the doctrine of necessity.

Learned counsel for the petitioner relied upon Article 2-A of the Constitution that Section 23 (B) (10) of I.R.O is against the injunctions of Islam but he failed to point out that the aforesaid Section was hit by which principle of injunctions of Islam. Therefore, judgments cited by the learned counsel for the petitioner PLD 1987 Kar. 404 (M/s Bank of Oman Ltd's case) and PI^/ 1987 Karachi 612 (Habib Bank Ltd's case) have no relevancy to decide the present controversy. As far as enforcement of injunctions of Islam is concerned this Court in view of Article 203-G of the Constitution has got no authority under the law to examine the same. In arriving to this conclusion I am fortified by the law laid down by the Hon'ble Supreme Court in Hakim Khan's case PLD 1992 S.C. 595. Contention of the learned counsel for the petitioner that aforesaid Section is hit by principle of natural justice and is liable to be struck down on the basis of the following judgments: has also no force.

PLD 1964 S.C 673 (Sayed Abu-ul-Ahla Madoodi's case).PLD 1965 S.C. 90 (Dr. Ahmad's case)1997 CLJ 314 (Sh. Abdur Rashid's case).

In the cited cases action was set aside by the courts but law was not struck down. Therefore, these judgments are distinguished on facts and law. The provisions of the Companies Ordinance are not in derogation of the provisions of the I.R.O 1969. It is also pertinent to mention here that Companies Ordinance is a general law whereas the Industrial Relations Ordinance 1969 is special law. It is settled principle of law that special excludes the general as per principle laid down by the Hon'ble Supreme Court in Zia-ur-Rehman'scase PLD 1973 S.C. 49. In this view of the matter, Section 23-B (10) is valid piece of evidence. It is better to reproduce Section 23-B (10) to resolve the controversy between the parties :

"(10) The collective bargaining agent for an establishment which is a factory the number of workers employed in which in any shift at any time during a year is fifty or more may apply to the Provincial Government to nominate an Auditor to audit the accounts of the factory once after the closing of every accounting year and for that purpose to inspect the accounts, records, premises and stores of the factory once every year."

The aforesaid provision of law does not contain any prohibition that the Government passed the order on the application of Respondents Nos. 2 and 3 without-providing hearing to the petitioner. It is settled principle of law that principle of natural justice must be read in each statute unless and until prohibition is specified expressed in the statute itself as per principle laid down by the Hon'ble Supreme Court in the following judgments :--

PLD 1964 S.C. 410 (Fazal-ur-Rehman's case).PLD 1961 S.C. 537 (M/s Farid sons Ltd's case).

In this view of the matter, the impugned order Annexure-B dated 20.1.88 is not sustainable in the eyes of law as the same was passed against the petitioner without providing personal hearing to the petitioner as per principle laid down by the Hon'ble Supreme Court in the following judgments :--

1994 SCMR 1299 (Ghulam Mustafa Jato's case).

1998 SCMR 429 (Tariq vs. PIA).

PLD 1959 S.C. 55 (Chief Commissioner's case).

1994 SCMR 2232 (Aneesa Rehman's case).

AIR 1981 S.C. 818 (Swadesh Cotton Mill's case).

PLD 1987 S.C. 304 (Pakistan & others vs. Public at Large).

In view of what has been discussed above, the impugned order Annexure-B dated 20.1.88 is set aside meaning thereby the application filed by Respondents Nos. 2 and 3 before Respondent No. 1 shall be deemed to be pending adjudication who is directed to decide the application of the Respondents Nos. 2 and 3 after providing personal hearing to all the concerned parties i.e. petitioner and Respondents Nos. 2 and 3 with reasons within a reasonable time.

(A.A.) Order accordingly.

PLJ 2001 Lahore 124

Present: MAULVI ANWAR-UL-HAQ, J.

M/s.AL-IBLAGH LIMITED, LAHORE through its MANAGING DIRECTOR-Petitioner

versus

COPYRIGHT BOARD and 2 others-Respondents Writ Petition No. 1079 of 1985, heard decided on 14.11.2000. CopyrightOrdinance, 1962 (XXXTV of 1962)--

—-Ss. 2(d) & 10 (1) (c)-Constitution of Pakistan (1973), Art. 199-Speeches and lectures, delivered by deceased scholar during his life time tape recorded by petitioner and, thereafter, complied into books-Whether petitioner would be deemed to be the author of those books or the deceased scholar would be the author-Labour of re-producing spoken words in writing or print, and for the first tirr.e publishing it into book would make the person who has acted as such author thereof, especially when such lecture, were given in public-Plea that writ petition was not competent in that, no resolution of the petitioner company was appended therewith authorizing petitioner to file the same was mere technical in nature as the person representing petitioner company was Managing Director of the same and had not claimed that petitioner company had not been transferred the right in said work compiled by him-Respondent official, thus, acted without lawful authority in as much as, their impugned orders were not warranted by provisions of Copyright Ordinance, 1962- Impugned orders were, thus, declared to be without lawful authority and of no legal effect-Application for registration of Copyright filed by petitioner would be deemed to be pending and would be disposed of in the light of judgment of High Court. [P. 128] A & B

(1987; Appeal cases 326; 1900 Cr. C. 289, Mr. Irshad Ahmad Qureshi, Advocate for Petitioner, Mr. Azmat Saeed, Advocate for Respondents.

Dates of hearing : 13 £ 14.11.2000.

judgment

In this writ petition filed by M/s. Al-Iblagh Limited through Hafeez-ur-Rehman Ahsan its Managing Director, it has been stated that one Hafeez-ur-Rehman Ahsan had been associated with Jamaat-e-Islami Pakistan as an ardent subscriber to the thought and mission of late Maulana Abul Ala Maudoodi. He used to regularly attending the meeting where late Maulana ivould deliver speeches and lectures. He would tape-record the said speeches and lectures with tacit consent of late Maulana. In the life time of late Maulana, the said person compiled two books from the record, thus prepared by him, and on his application Respondent No. 2 registered the Copyright in the said books; that the said person formed the petitioner-company for the said purpose of carrying on the mission of reproducing of the speeches of late Maulana Abul Ala Maudoodi as also some other scholars; that the petitioner filed 11 application for registration of Copyright in the various Surah of the Holy Quran mentioned in para 5 of the petition, but the respondent refused to accord registration vide order dated 31.3.1982. An appeal filed against the said order was heard by a Bench of Copyright Board comprising 4 members including its Chairman. There was difference of opinion. Two of the members allowed the appeal, while the Chairman and remaining members rejected the same. In terms of Section 46(2) of the Copyright Ordinance, 1962, the appeal stood dismissed.

1. It appears that the present writ petition was earlier dismissed on 23.2.1983 on the ground that this Court had no jurisdiction to entertain the same. However, C.A. No. 42/1983 in favour of petitioner was allowed by the Supreme Court on 13.1.1985 and it was held that the Lahore High Court has illegally refused to exercise jurisdiction in this case and sent back the same for decision on merit.

2. Learned counsel for the petitioner contends that the late Maulana had no Copyright in the speeches and lectures delivered by him and as such the said Mr. Hafeez-ur-Rehman shall be deemed to be the author of the work which comprises of record prepared by him, within the meaning of Section 10(l)(c) of the Copyright Ordinance, 1962. Learned counsel for Respondent No. 3 on the other hand insists that in view of the definition of literary work in Section 2 (c) of the said Ordinance, the speeches and lectures delivered by late Maulana on religious matters constitutes a literary work and as such the late Maulana had a copyright and the said Hafeez-ur- Rehman could not have made record without the consent of late Maulana and otherwise, in the manner prescribed in the said Ordinance as such he cannot be considered to be the author of the said work as defined in Section 2(d) of the said Ordinance. Learned counsel also objects that throughout the petitioner's case had been that it was said Hafeez-ur- Rehamn Ahsan who had made copies and record of the speeches and lectures of Late Maulana. The prescribed contention is that the petitioner has no locus standi to file the present writ petition.

3. Learned counsel for the petitioner has tried to mee t the first argument of the learned counsel for respondent by submitting that no copyright exists in a speech or a lecture and particularly when the same is delivered extempore. The precise contention is that in case, the lecture or speech is delivered from some written material or note prepared by the Speaker then the Copyright would exist in such notes or material but not in the speech or the lecture itself. However, the learned counsel for the petitioner has not been able to meet the second argument which in fact constitutes an objection to the competency of the present writ petition.

4. I have gone through the record, copies whereof are appended with this writ petition, as also the judgment delivered by learned Chairman of the Board and his colleagues on the Bench. I find that the two learned Members of the Bench hearing appeal mainly relied on the provisions of said Ordinance whereas Chairman has made copious reference to the treatise compiled by some foreign writers on the subject and also some foreign judgments mentioned therein and has held that holding opyright in a lecture or speech is possible. Mr. Sultan Rushk Member has stated that the law applicable in the country i.e. the said Ordinance, 1962 does not warrant subsistence of such a Copyright. Mr. Rashid Latif Member is somewhat detailed opinion, analysed Section 10 of the Ordinance to hold that lecture or speech does not find mention as a work wherein Copyright subsists. He has also sought to distinguish the opinion expressed in the work of the foreign writer relied upon by tb^ Chairman and has held that the cases referred provided for limited audience a.4 not a lecture or speech delivered in public.

5. After examining the said opinions of the learned Chairman and Members of the Board in the light of the provisions of said Ordinance 1962 and also having examined the various judgments referred to in the opinion of the Chairman, I find that the opinion expressed by Mr. Rashid Latif Member is in accordance with law applicable in this country. A perusal of the judgment in case of Caird v. Sime (1887 Appeal cases 326) would reveal that a Professor of Scottish University delivered a lecture in his class-room as part of his ordinary course as students of the University who were admitted on the payment of prescribe fee. The question arose as to whether the students of the University has or has not the right to print or publish without Professor's authority. The Sherrif whose position is akin to a Registrar under the said Ordinance, held on a complaint by the said professor that he had Copyright and the respondent had no right to publish the same and directed delivery of copies of the publication. On an appeal, the majority of the learned Judges held that a professor in a University had a right to restrain publication of lecture. Against the said opinion matter was brought to the Privy Council in the House of Lords. It was held that the delivery of lecture in such circumstances was not equivalent to the communication to the Public at large and the appellant was entitled to restrain other persons from publishing them without the consent." In the case of Walter Vs. Lane (1900 Cr. C. 289) some speeches of Lord Rosebery were first reported in the 'Time Newspaper'. Later the said newspaper published the said reports. It was objected that the said magazine had no copyright and thus is not authorised to publish the said speeches. The matter ultimately came up before the Privy Council of the House of Lords. The leading opinion was of Lord Chancellor Halsbury. With reference to the above observations of the Court of appeal that "a man who himself makes a directory and publishes it is the author of the directory, the reporter of speech is not", it was observed by Lord Chancellor that "The judgment goes on to say that "the distinction is all important" but it does not explain what the distinction is. A man goes along a street, collects the names, addresses and occupation of each dweller therein. What is the original composition of which, according to the Court of appeal he is the author? The name of the Street? The numbers of the street? The name of the dwellers in the several houses? What is the distinction which the Court of appeal makes in giving Copyright to the result of this labour when reduced into writing? What is it that makes it an original composition? But further-where do the words "original composition" come from? If the producer of such a book can be an author within the meaning of Act, I am unable to understand why the labour of reproducing spoken words in writing or print, and first publishing it as a book does not make the person who has so acted as much an author as the person who writes down the names and addresses of the person who live in a particular street. The producer of this written composition is to my mind a person who is author of the book within the meaning of the Statute". Majority of their Lordships agreed with Lord Chancellor and the judgment of the Court of appeal to the contrary was reversed.

6. Similarly the case ofNicols us. Pitman was also decided in similar circumstance as the said case of Caird referred to above i.e. it was a lecture delivered to restricted audience admitted on payment of fee by the Committee of the College.

7. There is nothing on record to suggest that a plea was ever raised that the speeches, notes whereof were taken by Hafeez-ur-Rehman Ahsan or which were recorded on tape by him were not given in public In this view of the matter, I do hold that it was said Hafeez-ur-Rehman Ahsan who was the author of the record.

8. Coming to the said objection of learned counsel for respondent, I do feel that on technical basis argument has some force inasmuch as the petitioner has not card to explain in this writ petition as to how it had applied for the Copyright and as to on what basis has filed this writ petition. There is no reference to any resolution or acquisition of the said work by the petitioner, pparently a company, in the said work. However, it is mere technicality. Since Hafeez-ur-Rehman Ahsan himself is representing the petitioner-company, has filed this writ petition and does not claim that the petitioner-company has not been transferred the right in the said work compiled by him.

9. As a result of the above discussions. I find that the Respondent No. 1 as also Respondent No. 2 acted without lawful authority inasmuch as their ultimate orders are not warranted by the provisions of said Copyright Ordinance 1962. This writ petition is accordingly allowed, the impugned orders are declared to be without lawful authority. The result would be that the application for registration filed by the petitioner shall be deemed to be pending and shall be disposed of in the light of the above observations. No order as to costs.

(A.A.) Petition accepted.

PLJ 2001 Lahore 128

Present: MAULVI ANWAR-UL-HAQ, J. SADAN MAI and 7 others-Petitioners

versus

MUHAMMAD and 3 others.-Respondents C.R. No. 2677/2000, decided on 27.11.2000. Civil Procedure Code, 1908 (V of 1908)--

—Ss. 12(2) & 115-Decrees against respondents on the compromising statement of their counsel-Trial Court rejected application of respondents under S. 12(2) C.P.C. wherein allegation of collusiveness was levelled against their counsel in making statement for compromise, without putting parties to trial-Appellate Court, however, directed trial Court to frame issues and decide the matter on basis of evidence-- Validity-Respondents in their application had specifically alleged that their counsel had colluded with opposite party (petitioners) and fraudulently got the suits decided against respondents-Appellate Court had rightly maintained that matter in controversy could not have been decided without framing of issues and recording of evidence-Where allegations had been levelled against counsel, such allegations could not be decided without framing of issues and deciding the matter on basis of evidence produced by the parties-Order of remand of Appellate Court being in accord with precedents of superior courts, no interference was warranted in revisional jurisdiction, [P- 130] A

1999 SGMR 1714; 2000 SCMR 296 and 1999 SCMR 1334, Mian Jaffp.r Ali, Advocate for Petitioners, Date of hearing: 27.11.2000.

order

This order shall decide C.R. Nos. 2677/2000, 2678/2000 and 2679/2000 as they proceed against a common Judgment of a learned Addl: District Judge, Kamalia.

1. Some suits interparts were pending when on a statement made by the learned counsel for the respondents, two of the pre-emption suits wherein the respondents were defendants, were decreed while one suit where the respondents were claiming a declaration as to their title in the suit land, was dismissed. These ofcourse were questioned by the respondents by filing application u/S. 12(2), C.P.C. They primary allegation was that their learned counsel had colluded with the opposite party and keeping them in dark about the progress of the cases had proceeded to get adverse decision. The applications were dismissed by the learned trial Court summarily videorder dated 23.6.1998. Feeling aggrieved, the respondents filed appeals which came-up before the learned Addl: District Judge, Kamalia who proceeded to allow the appeals and to remand back the cases for fresh trial vide impugned orders dated 12.10.2000 as the learned Addl: District Judge was of the opinion that the allegations of the respondents could not have been adj udged without framing of issues and recording of evidence.

2. Learned counsel with reference to the cases of "Mrs. Amina Bibi through General Attorney vs. Nasrullah and others" (2000 SCMR 296) and "Amiran Bibi and others us, Muhammad Ramzan and others" (1999 SCMR 1334) argues that it was the discretion of the learned trial Court to determine as to whether or not a trial is required and since the learned trial Court had not felt the need for framing issues and recording of evidence, the learned Addl: District Judge should not have interfered. Further contends that one of the defendants in the original suits had not challenged the decree and had died prior to the institution of the suits.

3. I have examined the copies of the records appended with these Civil Revisions. I have been taken through the applications that had been filed by the respondents. I find that it has been specifically alleged that the learned counsel had colluded with the opposite party and fraudulently got the suits decided against the respondents and that they were kept in dark about the date of hearing and that they had neither authorised the counsel nor he had consulted them before the decision of the applications. So far as the said defendant/respondent is concerned who had not questioned the decree, it was mentioned in the applications that he had sold way his land through a mutation separately and as such has not joined the respondents in the applications.

5, After examining the records, I find myself in agreement with the learned Addl: District, Judge that this matter could not have been decided without framing of issues and recording of evidence. In similar circumstances, where allegations had been made against the learned counsel representing the applications u/s 12(2), C.P.C. in the main suits, it was held in the case of "Abdur Razaq vs. Muhammad Islam and others" (1999 SCMR 1714) that such allegations could not have been decided without framing of issues and it was directed that the trial Court is to decide the matter after framing of issues and recording of evidence. Since the impugned order is in accord with the said Judgment pronounced in similar circumstances, I do not find it a fit case to be interfered with in revisional jurisdiction. All the Civil Revisions are dismissed in limine.

(A.P.) Revision dismissed.

PLJ 2001 Lahore 130

Present: MAULVI ANWAR-UL-HAQ, J.

MUHAMMAD BOOTA (DECEASED) through LEGAL REPRESENTATIVES-AppeUant

versus

NAZIR AHMAD-Respondent R.S.A. No. 46/1983, heard on 23.10.2000. Punjab Pre-emption Act, (1 of1913)--

—S. 30-Civil Procedure Code (V of 1908), S. 100-Dismissal of suit for pre­emption as being time barred-Validity—Plaintiff had filed suit for pre­emption within one year from the date of attestation of mutation while defendant claimed that he was in possession of land in question under the sale before attestation of mutation-Defendant, however, produced document in proof of his such claim-Entry in Khasra Girdawari showed that for the first time defendant came into possession of land in question with effect from Kharif 1975, i.e., on 31.10.1975 while suit was filed on 31.6.1976, and thus, the same was well within time—Defendant's plea that entry in Kharif has to be related back to Rabi 1975 was repelled, in as much as, entries in Khasra Girdawari would reflect position existing on the date they were made and they could not be related back-­ Defendant's further plea that 1976 being leap year suit filed by plaintiff was on 366th day and was time barred was also repelled, in that, term "year" used in S. 30 of Punjab Pre-emption Act, 1913 would mean calendar year, whether the same was of 365 days or a leap year of 366 days-First Appellate Court had, thus, misread evidence in treating plaintiffs suit as being time barred-Judgment and decree of First Appellate Court was set aside while that of Trial Court decreeing plaintiffs suit was restored. [Pp. 133 & 134] A, B, C & D

NLR 1981 Rev. 125.

Ch, Hafeez Ahmad, Advocate for Appellant Mr. Ali Ahmad Awan,Advocate for Respondent Date of hearing: 23.10.2000.

judgment

Nazeer Ahmad respondent filed a suit against Mst. Muhammad Bibi wife of Shukar Din on 5.5.1973 stating that the land has been sold by the said Mst. Muhammad Bibi to him for a consideration of Rs. 42.500/- three weeks before the institution of the suit and that a declaration be granted accordingly. On the same date, Mst. Muhammad Bibi filed a written statement admitting the suit and also got recorded a statement that the suit be decreed. Consequently, the suit was decreed on the same date i.e. 5.5.1973. Mutation No. 921 was attested on 30.6.1975. On 30.6.1976, the appellant filed a suit for possession of the suit land by pre-emption stating that the land had been sold by Mst. Muhammad Bibi to the respondent for a consideration of Rs. 2,000/- and has fictiously got recorded a sum of Rs. 42,500/- in the said mutation. The right claimed was that he is an owner in the estate. The suit was contested by the respondent. In his written statement, he objected that the suit is barred by time; that the suit is not correctly valued for purposes of Court fee and jurisdiction; that the suit is bad for partial pre-emption and; that the appellant had waived his right. On merits, he asserted that he had purchased the suit land for Rs. 42.500/-. The following issues were framed :—

Issues :••

1. Whether the suit is barred by time? OPD

2. Whether the valuation of the suit for the purposes of Court-fee is not correct, if so, what is the correct valuation? OP. Part

132 Lah. muhammad boota v. nazir ahmad PLJ

(Maulvi Anwarul-Haq, J.)

1. Whether the suit is bad for partial pre-emption? OPD

2. Whether the plaintiff has waived his right of pre-emption ? OPD

3. Whether the plaintiff has a superior right of pre-emption ? OPP

4. Whether the sale price of Rs. 42500/- was fixed in good faith or actually paid ? OPD

5. What is the market value of the suit land ? OPP.

6. Relief.

Evidence of the parties was recorded. The learned trial Court decreed the suit vide Judgment and decree dated 17.3.1977 subject to payment of Rs. 42,500/-. Feeling aggrieved the respondent filed a first appeal which was heard by a learned Addl: District Judge, Sialkot. Before the learned Addl: District Judge, only the findings of learned trial Court on Issue No. 1 were challenged. The learned Addl: District Judge found the suit to be barred by time. Consequently reversed the finding of the learned trial Court on Issue No. 1 and resultantly the suit was dismissed on 31.10.1982.

1. Learned counsel for the appellant contends that this was a case where the sale had been effected by means of a mutation attested on 30.6.1975 and the suit filed on 30.6.1976 was well within time prescribed by Section 30 of the Punjab Pre-emption Act, 1913. Further contends that the evidence on record has been mis-read by the learned Addl: District Judge. Learned counsel for the respondent, on the other hand, argues that even if the said argument of the learned counsel is accepted, the year 1976 was a leap year and as such the suit having been filed on 366th day instead of the 365th day, is barred by time. The learned counsel supports the impugned Judgment and decree of the learned Addl: District Judge.

2. I have gone through the trial Court records with the assistance of the learned counsel for the parties.

I find that in the first instance, the suit was filed by the respondent against the said vendor vide plaint Exh. D-4. On the same day, written statement Exh. D-5 was filed and statement Exh. D-6 was recorded and the decree Exh. D-2 was passed. Mutation No. 921 is available on record as Exh. P-4. As per entries in column No. 14, the mutation was entered on 28.6.1975 on the report of respondent. The mutation was attested on 30.6.1975. As per Roznamcha Exh. D-l, the mutation was entered vide Report No. 387 dated 28.6.1975. The learned Addl: District Judge has relied on the statement of Muhammad Sharif DW-1 who is the recorded tenant of the land to hold that the possession of respondent dates back prior to the attestation of mutation Exh. P-4. DW-2 Faqir Hussain has also stated that since February, 1975, the land is being irrigated from his tubewell and that sharif cultivates the land. DW-4 is the attorney of the respondent who has stated that the respondent had obtained the possession from the vendor under the sale and had cultivated some crops and thereafter Sharif had started cultivating the land. The appellant appeared as PW-1 and denied that the respondent had been cultivating the land three years prior to the sale. The learned trial Court has also referred to document Exh. P-2. This is the copy of Register Khasra Girdawari for the period Kharif 1975 to Rabi 1976. The entry for Kharif 1975 was made on 31.10.1975 showing respondent to be in self-cultivating possession while entry for Rabi 1976 was made on 11.3.1976 showing Sharif as a tenant under the respondent. No document had been brought on record by the respondent to support the plea that he was in possession of the suit land at any time before the attestation of the mutation. He himself produced Exh. D-l which is the report Roznamcha Waqiati and it was not narrated by him even at that time that he had taken-over the possession of the land. The document Exh. P-2 goes to show that for the first time, the respondent came into possession of the land w.e.f. Kharif 1975 i.e. on 31.10.1975.

1. The learned counsel for the respondent tried to argue that theentry in Kharif 1975 has to be related back to Rabi 1975 i.e. a point of time prior to attestation of mutation Exh. P-4.1 am afraid this is not possible. By now it is well settled that entries in the Khasra Girdawari reflect the position existing on the date they are made and they cannot be related back. Reference may be made to the case of "Khadim Hussain etc. vs. Muhammad Nawaz Khan" (NLR 1981 Revenue 125).

2. The learned Addl. District Judge has obviously failed to read Exh. P-2. Had he read the same, he would have found that both the respondents as well as their tenant Sharif had made incorrect statements which are not supported by Exh. P-2 as otherwise observed by the learned Addl: District Judge in his impugned Judgment

3. Coming to the said first contention of the learned counsel fo the appellant. He has sought support from the eaning/definition of the term Tear" in Wharton's Law Lexicon. I am afraid, the said definition does not at all help the learned counsel for the respondent when he tries to argue that the year 1976 being a leap year, the suit filed on 30.6.1976 was barred by time. I only need to reproduce here the definition from the said Lexicon to answer the argument of the learned counsel.

"Year: 365 days, twelve calendar months, fifty-two weeks and one day or in Leap Year, 366 days i.e. fifty-two weeks and two days".

This means that whether it is a year of 365 days or a Leap Year of 366 days, it is a year and the prescribed period of limitation for filing of suit for pre­emption is one year from the date of attestation of mutation. Section 2(59) of the General Clauses Act, 1897 (Federal) defines a year to mean a "year\ reckoned according to the British calendar. S. 2 (70) of the General Clauses Act, 1956 (Provincial) defines a 'year' to mean the year reckoned according to the Gregorian calendar. Needless to state that the term British and Gregorian with reference to the calendar are synonymous. It also need not be stated that normally in Pakistan, we go by the said British calendar. Thus the term 'year' used in S. 30 of the Punjab Pre-emption Act, 1913 would mean a calendar year, whether it be a year of 365 days or a Leap Year of 366 days. Nothing, therefore, turns on the said argument of the learned counsel for the respondent.

1. Having discussed the evidence available on record, I find that the learned Addi: District Judge has mis-read the evidence while recording his impugned Judgment. I, therefore, reverse the finding of the learned Addl: District Judge on Issue No. 1 and restore those of the learned trial Court The R.S.A. is accordingly allowed, the Judgment and decree dated 31.10.1982 of learned Addl: District Judge, Sialkot is set-aside while that dated 17.3.1977 of the learned trial Court is restored. The parties are left to bear their own costs.

(A.A.) Appeal accepted.

PLJ 2001 Lahore 134

Present:maulvi ANWAR-UL-HAQ, J. MALIK TOLKIES DISTRIBUTORS and another-Appellants

versus

KHAWAJA MAHBOOB ELAHI and 3 others-Respondents S.A.O. No. 56 of 1997, heard on 24.11.2000.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-Ss. 5-A & 13-Ejectment of tenant, on the ground that they had not paid statutory increase in rent-Rent Controller granted such application and ordered ejectment of tenant-Validity-Rent Controller was required to examine in each case whether default in payment of statutory increased rent was wilful or otherwise-Landlord (respondent) in his evidence had stated that he had not demanded increased rent either orally or through written communication-Tenant, however, tendered increased rent when he became aware of intention of landlord to lodge ejectment petition on that ground, which was declined by the landlord-There was, thus, no default, in payment of increased rent by tenant wilfully-Order of ejectment ordered by Rent Controller was set aside in circumstances.

[Pp. 136] A & B

PLD 1997 SC 564; 2000 SCMR 207. Mr. Muhammad Saeed Mirza, Advocate for Appellants. Mr. Shoaib Saeed,Advocate for Respondents. Date of hearing: 24.11.2000.

judgment

The respondents filed an application for ejectment of the appellants on 31.7.1993. The ejectment was sought on the ground that the appellants have not paid statutory increase in the rent under Section 5-A of the Punjab Rent Restriction Ordinance, 1959. The appellants filed a reply and stated that neither they are aware of the said statutory provision nor the respondents ever demanded rent with the said increase. However, the moment they acquired the knowledge of the ejectment petition, wherein the first time a demand for the said increase was made, they deposited the payable amount in Court after the respondents had refused to receive the same when they sent the same through money order. Following issues were framed :--

1. Whether respondents have made default in the payment of

rent, if so, its effect? OPA.

1. Whether petition is outcome of mala fide ? OPR.

2. Whether Lahore is not an urban area in view of Section 2(3) of Urban Rent Restriction Ordinance, if so, its effect ? OPR.

3. Whether present Court is not a Rent Controller ? OPR.

4. Whether notice under Section 13-A of Rent Restriction Ordinance was not served upon the respondents, if so, its effect ? OPR.

5. Relief.

E%fidence of the parties was recorded. The learned Rent Controller proceeded to allow the application and passed an ejectment order on 31.7.1993. The appeal filed by the appellants was heard by a learned Additional District Judge, Lahore, who dismissed the same vide order dated 6.5.1997.

1. The learned counsel for the appellants contends with reference to the case of National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others (P.L.D. 1997 S.C. 564) that the appellants should not have been ordered to be ejected on the said ground in the absence of notice for demand by the respondents. Learned counsel for the respondents on the other hand supports the impugned order.

2. I have gone through the record. I may state here that in a later

judgment in the case of Muhammad Irfan vs. Muhammad Zahid Hussain Anjum(2000 S.C.M.R. 20?) the said view expressed in N.D.F.C.'s case has been modified. Their lordships have held that service of notice under Section 6-A of the said Ordinance by a landlord to a tenant for statutory increase of rent is not condition precedent to invoke jurisdiction of the Reat Controller. However, their lordships have been farther pleased to observe that a duty was enjoined upon Rent Controller to examine in each case whether default in payment of statutory increased rent is wilful or otherwise\ . 1 have

ined evidence in this case in the light of the said observation of the Apex Court. I find that Kh. Mehboob Elahi respondent entered the witness-box as AW.l, He was cross-examined. In reply to a question in the cross-examination he states that"

Learned counsel for the respondents is not in a position to controvert the factual position that immediately after their service in the ejectment petition, the appellants had tendered the rent to the landlord with statutory increase and then had deposited the same in Court. In fact, both the learned Courts have so observed in their respective orders. Although the ignorance of law pleaded by the appellants has, is of-course no excuse, yet the said statement as a statement of fact, has to be considered in the light of attending circumstances of the case as are apparent on the face of the record, i.e. absence of any demand by the respondents over a period of several years to claim the statutory increase in the rent and the prompt efforts on the part of the appellant to pay or deposit the increased rent in Court. Even in respect of agreed rent a default may not result into the ejectment as would be evidence from very words of Section 13(1) of the said Ordinance itself. The Rent Controller is vested with a discretion, of course to be decided in a lawful manner.

1. In the present case, the learned Rent Controller has not performed his duty enjoined upon him by law to examine the said matter.

2. As a result of the above discussions, I do not find any willful default on the part of the appellants in their failure to pay the amount of statutory increase in the rent. I, therefore, allow this S.A.O. set aside both g the impugned orders and dismiss the ejectment petition filed by the respondents, leaving the parties to bear their own costs.

(A.P.) Appeal accepted.

PLJ 2001 Lahore 136

[Rawalpindi Bench Rawalpindi]

Present:MAULVI ANWAR-UL-HAQ, J. KOHINOOR MILLS LIMITED GUJAR KHAN -Petitioner

versus

ISLAMABAD ELECTRIC SUPPLY COMPANY through its CHIEF EXECUTIVE and another-Respondents

Writ Petition No. 137 of 2000, heard on 24.8.2000. (i) Electricity Act, 1910 (IX of 1810)-

—S. 24(l)--Any other premises-Electricity connection of-Powers of licensee to disconnect-Scope of-Under S. 24(1), Electricity Act, 1910, licensee can adopt following process against consumer for neglecting to pay sum assessed against him in respect of supply of energy to his premises subject to service of written notice of not less than 7 clear days :

(i) To recover the amount by filing a suit, (ii) To recover the amount as otherwise directed in the Act, (iii) To cut off supply of energy to such premises, and

(iv) Any other premises other than domestic premises running distinctly in the name of such consumers.

—Under last mentioned powers, apart from premises in respect whereof any charge for energy or any other sum has been assessed against consumer, supply of energy to any other premises can be discontinued provided it is running distinctly in the name of such consumer, that is to say that same consumer in the same name had obtained electric connection in two different premises and in case there is default in respect of one such premises, then as a result of such default, electricity supply of said other premises can also be disconnected. [Pp. 140 & 141] A

Am 1937 PC 279; PLD 1963 SC 564; PLJ 1982 Lahore 445; 1987 MLD 2277 ref.

(ii) Electricity Act, 1910 (IX of 1910)-

—-S. 24(1) read with S. 2(c)-Constitution of Pakistan, 1973, Art. 199-Two premises owned by separate consumers-Whether amount assessed in respect of supply of energy to one consumer can be demanded from other consumer-Question of-Respondents debited in the account of petitioner company amount due against Kohinoor Textile Mills, Rawalpindi on the ground that both belonged to same group of industries-Challenge to-­ Held : It was the case of two different consumers altogether as would be evident from definition of the term in Section 2(c) of the Act, because consumer in the case of premises at Rawalpindi was Taufiq Saigal, while consumer in the premises at GOUDA Khan was Tariq Saigal, thus, it could not be said that premises of petitioner's company was running distinctly in the name of consumer, Taufiq Saigal against whom amount in question had been assessed by respondents—Held Further : For invoking provisions of Section 24(1) of the Act, it was not enough merely that Taufiq Saigol was signatory of electric connection forms for premises at Rawalpindi as well as one of the Directors of petitioner company-Writ petition accepted. [Pp. 141 & J43] B, C, D & E

PLD 1963 SC 564; PLD 1983 Lahore 326 rel. on.Rqja Muhammad Akram, Advocate for Petitioner. Syed Moazzam All Rizvi, Advocate for Respondents. Dates of hearing: 22-8-2000 & 24-8-2000.

judgment

Feeling aggrieved of the addition of an amount of Rs. 1,08,79,240/-in the electricity bill for the month of January, 2000 in respect of its premises, the petitioner had filed the present writ petition claiming that the addition of the said amount is without lawful authority as all the bills in respect of the electricity consumed in the said premises had been duly paid. The writ petition was entertained on 25.1.2000 when the Respondent No. 2 was directed to appear in person and to file a report and parawise comments on 11.2.2000. Meanwhile, it was directed that the electricity connection of the petitioner shall not be discontinued for non-payment of the said outstanding amount. On 11.2.2000 the matter was adjourned to 28.2.2000 and the interim order dated 25.1.2000 was ordered to continue subject to furnishing of a security in the sum of the disputed amount. On 28.2.2000 comments were filed and the matter was adjourned for filing of a rejoinder. On 24.7.2000 C.M. No. 2950/2000 was put up before my learned brother Raja Muhammad Sabir, J. with a prayer by the petitioner that the main writ petition be heard as the statutory six months period provided in Article 199 of the Constitution was about to expire. The case was ordered to be heard on 25.7.2000. On this date the case was adjourned on the request of learned counsel for the respondents to 2.8.2000. On 2.8.2000 learned counsel for the petitioner was not available and the case was adjourned to 18.8.2000. It appears that sometime after the said date the electricity connection of the petitioner was disconnected and C.M. No. 3431/2000 was filed. Since the case had already been ordered to be heard on 18.8.2000 it was adjourned to the said date. On 18.8.2000 vide order in C.M. No. 3500/2000 the respondents were allowed to file some documents on the file and the case was adjourned to 22.8.2000. The matter was accordingly heard on the said date. Since both the learned counsel wanted to file some more documents the case was adjourned for today. The said documents have been filed and the arguments were concluded today.

1. It will be appropriate to refer here to the comments filed by the respondents. The plea taken in the comments is that the aforesaid amount is outstanding against Kohinoor Textile Mills Ltd. Rawalpindi on account of less charging of hydel and fixed charges and since the petitioner is one of the units of the same group of industries the amount is debited in its account under Section 24(1) of the Electricity Act, 1910 and this has been done because the said Kohinoor Textile Mills is no more consumer of WAPDA. A reference has also been made that a refund of Rs. 16,52,400/- was received by the petitioner while the said amount constitutes security of the said Kohinoor Textile Mills, Rawalpindi. In the rejoinder it has been stated that Kohinoor Textile Mills, Rawalpindi is a public limited Company and the petitioner Company i.e. Kohinoor (Gujar Khan) Mills Ltd. is an independent public limited company and both are different entities. It has further been elaborated that in the case of Kohinoor Textile Mills Ltd. two Directors have been nominated by the National Investment Trust whereas in the case of the petitioner company one Director has been nominated by the Investment Corporation of Pakistan. The two companies have separate share-holders and as such they are totally independent of each other and each company has a distinct legal entity of its own. Reference has also been made to an earlier demand against the said Kohinoor Mills Ltd. Rawalpindi which was disallowed by the Electrical Inspector as also Advisory Board of Appeal where-against W.P. No, 2137/97 filed by the WAPDA was dismissed.

2. Learned counsel for the petitioner contends that neither the amount in question is due or even stated to be due from the petitioner company nor is it recoverable from the petitioner company in terms of Section 24(1) of the Electricity Act, 1910, Relies on the case of E.B.M. Company, Ltd. vs. Dominion Bank (AIR 1937 PC 279), some observations in the cases of Ik ram Bus Service and others vs. Board of Revenue, West Pakistan etc. (PLD 1963 SC 564) and Tariq Saeed Saigal vs. The District Excise & Taxation Officer, Rawalpindi (PLJ 1982 Lahore 445). Learned counsel for the respondents, on the other hand, contends that the petitioner and the person against whom the said amount is allegedly due are one and the same. To elaborate his argument he has drawn my attention to several documents appended with C.M. 3500/2000. According to the learned counsel the applicant for the electricity connection at Kohinoor Textile Mills Ltd. Rawalpindi is one Mian Taufiq Saigal. For this contention he relies on the applications for electric connection (which are Annexures, A & B to the said (C.M). He, with reference to Annexure G, contends that the applicant for the electric connection at Rachna Textile Mills, Gujar Khan (it is an admitted position that the former name of the petitioner company was Rachna Textile Mills and was later changed to Kohinoor (Gujar Khan) Mills Ltd. vide Annexure M to the C.M. No. 3500/2000) is also the said Taufiq Saigal. The precise contention of the learned counsel is that Taufiq being a common factor in the two applications it should be presumed that the consumer at Rawalpindi and Gujar Khan is the same. Thereafter the learned counsel refers to an application filed on behalf of Kohinoor Textile Mills Ltd. Rawalpindi before the learned Ombudsman and the order passed thereon. Learned counsel, particularly, has drawn my attention to the fact that in the said application a prayer was made for refund of meter security amount in respect of the account of Kohinoor Diaper Plant, Peshawar Road, Rawalpindi which stood permanently disconnected on 19.2.1996 and an offer was made in the application that either the amount be refunded to the said applicant or in the alternate the same be adjusted against the account of Kohinoor Textile Mills at Gujar Khan. The learned Ombudsman while directing the respondents to refund the amount ordered that if the security amount is not returned to the consumer directly, it may be utilised against the account of Kohinoor Textile Mills, Gujar Khan. According to the learned counsel this fact also shows that the consumer at the two premises is the same. Learned counsel relies on the case of M/s. Pak Ice Factory vs. WAPDA and others (1987 MLD 2277). Finally it is argued that this petition has not been filed by the competent person. In response to this last mentioned contention learned counsel for the petitioner has placed on record copy of the resolution passed by the petitioner company authorising Mr. Arshad Mehmood to file this petition.

3. I have gone through the several documents placed on record by the parties from time to time and even today. Before proceeding further I find it necessary to reproduce here the provisions of Section 24(1) of the Electricity Act, 1910 as the primary question involved in this writ petition is as to whether the respondents while purporting to act under the said Section can recover the amount admittedly not due from the petitioner under the provisions of the same and to disconnect the electricity connection of the petitioner. Section 24(1) reads as under :--

"Discontinuance of supply to consumer neglecting to pay charge:

(1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days notice in writing to such consumer and without prejudice to his right recover such charge or other sum by suit or otherwise, cutt off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but not longer."

A reading of the afore-reproduced provision of law would show that where any consumer neglects to pay any sum assessed against him by a licensee in Wespect of supply of energy to his premises, then the licensee can adopt the {following process subject to service of a notice of not less than seven clear days in writing :--

(i) To recover the amount by filing a suit, (ii) To recover the amount as otherwise directed in the said Act, (iii) Cut off the supply of energy to such premises, and

(iv) Any other premises other than domestic premises, running distinctly in the name of such consumers.

It is this last mentioned power that has been exercised by the respondents while purporting to act under the said Section 24(1).

1. It will be noted that the terminology used in the Section vis-à-vis the said power to disconnect the premises otherwise than the one in respect whereof any sum is assessed against a consumer is somewhat unusual. There is no reference to ownership of the premises or its occupation by the consumer. The insistance is that the said other premises should be running distinctly in the name of such consumer. To my mind the only meaning that can be placed on the said wording is that apart from the premises in respect whereof any charge for energy or any other sum has been assessed against a consumer, the supply of energy to any other premises could be discontinued provided the said other premises is running distinctly in the name of such consumer that is to say that the same consumer in the same name had obtained electric connection in two different premises and in case there is a default in respect of one such premises then as a result of such default within the meaning of Section 24(1) of the said Electricity Act, 1910, the said other premises can also be disconnected.

2. In the light of the provisions of the said Section 24(1) the respondents have to demonstrate that the consumer Kohinoor Textile Mills Ltd. Rawalpindi and at the premises of the petitioner company is the same. I have already referred to the contention of the learned counsel for the respondents in some details above. I have examined the said documents which have been relied upon by the learned counsel. In Annexure A against part B in the column requiring mention of name of the applicant is the name of Mian Taufiq Saeed Saigal. In Para C the address at which the electric connection is required is mentioned as Kohinoor Textile Mills Ltd., Peshawar Road, Rawalpindi. In Annexure C in part B the name of applicant is mentioned as Taufiq S. Saigal. In part C the address at which the electric connection required is mentioned as Diaper Plant of M/s. Kohinoor Textile Mills Ltd. Rawalpindi. In Annexure G which is the application for electric connection of the petitioner company against the column requiring mention of name of the applicant, name of Tariq S. Saigal is mentioned. There is yet another column requiring the mention of the name of the Directors in the case of a company, where the name of Taufiq S. Saigal is mentioned. In the column requiring mention of the address of the premises where the electricity is required is mentioned the name of Rachna Textile Mills, Gulyana Road, Gujar Khan. The application is signed for the said Rachna Textile Mills. It is witnessed by the Mills Secretary of Kohinoor Textile Mills Ltd. It will thus be seen that even going by the argument sought to be pressed by the learned counsel for the respondents that the applicant for electric connection should be deemed to be the consumer the consumer in the case of the premises at Rawalpindi is Taufiq Saigal while the consumer in the premises at Gujar Khan is Tariq Saigal and thus it cannot be said that the premises of the petitioner company is running distinctly in the name of the consumer, namely, Taufiq Saigal against whom the amount in question has been assessed by the respondents.

3. I may, however, state here that I am not in agreement with the said line of arguments of the learned counsel for the espondents. According to the comments filed by the respondents the amount in question is due against Kohinoor Textile Mills Ltd. Rawalpindi. It is not even the case of the respondents that the amount is due against the said Taufiq Saigal. The relevant part B of the application forms (Annexures B & C) provide in vernacular that in case of a company the name of the competent officer be mentioned. At the foot of the form Annex. C, the applicant in fact is Kohinoor Textile Mills Ltd. Rawalpindi. The possibility, therefore, cannot be entirely ruled out that the applications were in fact filed on behalf of the said company by Mian Taufiq Saigal.

4. Coming to the second contention of the learned counsel for the respondents based on the application to the learned Ombudsman and the order passed thereon, I find that the petitioner was not a party to the said proceedings and the learned Ombudsman allowed the amount to be adjusted against the account of the petitioner on an offer made by Kohinoor Textiles Mills Ltd. Rawalpindi who was the petitioner before the learned Ombudsman. This circumstances can also not be stretched so as to attract the provisions of said Section 24(1) of the Electricity Act, 1910 by assuming that the consumer in both the cases is the same.

5. Reverting back to the argument of the learned counsel for the petitioner I find that the petitioner in fact is a duly incorporated public limited company and so is Kohinoor Textile Mills Ltd. Rawalpindi. In the case of E.B.M. Company Ltd. relied upon by the learned counsel for the petitioner it was observed at page 284 :

"Their Lordship believe it to be of supreme importance that the distinction should be clearly marked, observed and maintained between an incorporated company's legal entity and its actions, assets, rights and liabilities on the one hand, and the individual shareholders and their actions, assets, rights and liabilities on the other hand."

The said observations were followed by the Supreme Court of Pakistan in the case of Ikram Bus Service and others vs. Board of Revenue, West Pakistan etc. (PLD 1963 SC 564). In the case of Pakistan vs. Pak. Chrome Leather Company Ltd. (PLD 1983 Lahore 326) a D.B. of this Court in somewhat similar circumstances, while following the said case of E.B.M. Company Ltd. rejected following submission made on behalf of the Federal Government:

"It was further submitted that the respondent company and Messrs Sindh Tanneries Limited were the sister concern. The Directors of the two companies were the same. One family was running the two companies. The respondent owes more than one crore to the appellant".

I may point out here that the last mentioned case has arisen out of a civil suit wherein it was established that both the companies had the same Directors. On the other hand, I find that the case of M/s. Pak Ice Factory relied upon by the learned counsel for the respondents is squarely against the proposition sought to be propounded by the learned counsel. In the said case the consumer was the owner of the premises which was leased out to some other party. The case of the consumer was that WAPDA should follow the lessee who was in fact consumer of electricity. His Lordship rejected the said contention and held that WAPDA was well within its rights to follow the consumer for payment of electricity charges. The present is the case of two different consumers altogether as would be evident from the definition of the term in Section 2(c) of the said Act.

1. In the said state of law the contention of the learned counsel for the respondents that the said Taufiq Saigal being the signatory of the electric connection forms for the Kohinoor Textile Mills Ltd. Rawalpindi and being mentioned as one of the Directors of the petitioner company in the electric supply application form is enough reason to invoke the provisions of Section 24(1) of the Electricity Act, 1910, is not tenable.

2. Towards the end of his arguments learned counsel for the respondents has brought to my notice that the said Taufiq Saeed Saigal was served with a notice for payment of the said amount on 18.10.1999 and the amount still remains unpaid. He has further drawn my attention to some correspondence with the National Accountability Bureau. Steps are being taken to refer the matter to the said Bureau under the provisions of Federal Ordinance XVIII of 1999 and that the matter is under inquiry by the Inter Services Intelligence. This may be so I want to make it dear that nothing discussed herein above shall have any effect on any lawful proceedings against the consumer against whom the said amount has been allegedly assessed i.e. Taufiq Saigal or Kohinoor Textile Mills Ltd. Rawalpindi. In fact the learned counsel for the petitioner has drawn my attention to Sections 54A & 54-B of the Electricity Act, 1910 which gives ample power to the respondents to recover the said amount from the consumer against whom it has been assessed, as arrears of laud revenue in accordance with the said provisions of law.

3. In view of the above discussion I find that the respondents had no lawful authority to recover the amount in question from the petitioner company or to discontinue its electric supply in terms of Section 24(1) of the Electricity Act, 1910. I, therefore, allow this writ petition subject to the observations made in para 11 above and direct the respondents to restore the electricity to the premises of the petitioner. No orders as to costs.

(S.A.KLM.) Writ petition allowed.

PLJ 2001 Lahore 144

Present: MAULVI ANWAR-UL-HAQ, J. PEHLWAN and 3 others-Petitioners

versus

AHMAD KHAN and 4 others-Respondents W.P.No. 23232 of 2000 decided on 15.12.2000. Civil Procedure Code, 1908 (V of 1908)--

—S. 12(2)-Constitution of Pakistan (1973), Art. 199-Decree in suit by means of compromise-Decree in question, being for specific performance, the same was executed and sale deed registered in favour of vendee respondent-Petitioner's application under S. 12(2) C.P.C. against decree in question was dismissed by two courts below-Validity—Courts below had dismissed application under S. 12(2) C.P.C. on basis of evidence on record-Except allegation in pleading that decree in question, was based on fraud and misrepresentation, no evidence was produced in support of such allegations-Pleadings do not constitute evidence and whatever is pleaded has to be proved, unless admitted by other party-In absence of any proof in support of allegations of fraud and misrepresentation and their failure to appear in Court in support of allegations in pleading, allegation in pleadings cannot be taken as evidence-Constitutional petition against concurrent findings of courts below being frivolous was dismissed as not maintainable. [P. 145] A

Mr. Ghulatn Muhammad Sajhara, Advocate for Petitioners. Date of hearing: 15.12.2000.

judgment

Pleading an agreement dated 25.5.1981 for sale of suit land by Respondents Nos. 2 & 3 in his favour Respondent No. 1 filed a suit for specific performance of the same. The suit remained pending for several years and ultimately it was decided by means of a compromise on 24.2.1986 when it was decreed. The decree was put into execution and a deed was executed and registered in favour of Respondent No. 1 on 5.4.1988.

1. On 19.5.1991 the petitioners filed an application under Section 12(2) CPC. In the application it was alleged that Respondents Nos. 2 & 3 had executed an agreement dated 11.10.1985 in their favour and thereafter had proceeded to execute a sale-deed transferring the suit land to them on 16.4.1990. It was stated that the decree is result of fraud and misrepresentation. Respondent No. 1 resisted the application. However, in a written reply alleged to have been filed by Respondents Nos. 2 & 3 it was stated that they had never appeared in the suit and had never engaged any counsel and that there was no compromise. However, it was not stated as to what they have been doing after 24.2.1986 for a period of more than 5 years. Be that as it may, the learned trial Court proceeded to frame issues and recorded evidence of the parties. The learned trial Court dismissed the application vide order dated 4.7.1995. A Civil Revision filed by the petitioners was dismissed by a learned Additional District Judge, Jhang on 12.10.2000.

2. Learned counsel contends that Respondents Nos. 2 & 3 had specifically alleged that they had not appeared in the main suit and had not engaged a lawyer or have made a statement of compromise. Further states that Hidayat Shah, Respondent No, 2 has put Ms thumb-impression on all other documents but the statement dated 24.2.1986 bears Ms signatures. According to the learned counsel the said defect constitutes enough reason for setting aside the decree dated 24.2.1086.

3. I have gone through the record.! find that there is a written reply on the record purporting to have been filed by Respondents Nos. 2 & 3 but that is all. They have not turned up to appear in the witness box to support the said allegations made by them or in the written reply allegedly filed by them. Similarly Hidayat Shah has neither entered the witness-box at bis own nor has the petitioners made any attempt to summon him and to produce him as a witness. It is by now well settled that pleadings do not constitute evidence and whatever is pleaded has to be proved, unless admitted by the other party. In the absence of any proof in support of the allegations in the alleged written reply of Respondents Nos. 2 & 3 and their failure to enter into the witness box, the contents of the written reply cannot be taken as evidence. Reference be made to the case of Abdul Mqjid vs. Syed Muhammad All Shamim and 10 others (2000 SCMR 1391). This writ petition is frivolous and is accordingly dismissed in limine.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 145

Present: ch. ijaz AHMAD, J. WALLYIAT ALI-Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others-Respondents W.P.No. 7971 of 1989, heard on 8.12.2000.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968)--

—S.O. 12(3)-Constitution of Pakistan (1973), Art. 199-Termination of services of workman-Labour court and Labour Appellate Tribunal dismissed workman's grievance petition as being time-barred-Validity-­Labour Appellate Tribunal had decided workman's case without dverting to S.O. 12(3) of West PaMstan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 and even did not discuss evidence on record- Respondent did not produce any witness to prove service of dismissal order upon petitioner-Labour Appellate Tribunal was required to decided controversy between the parties with reason but no reasons were recorded by Tribunal-Order of Labour Appellate Tribunal did not properly appreciate evidence on record-Order of Labour Appellate Tribunal was, thus not sustainable in law-Case was remanded to Labour Appellate Tribunal for decision afresh after ppreciation of evidence: on record, . [P. 147] A

PLD 1964 SC 829; PLD 1970 SC 173.

Sh. Sfmhbir Ahmed, Advocate for Petitioner. Nemofor Respondents.Date of hearing: 8.12.2000, judgment

Brief fects out of which the present writ petition arises are that the petitioner was appointed as a operator by the respondents in January 1970. Respondents sent a show-cause notice qua the mis-appropriation of Diesel to the petitioner on 21.2.87. Petitioner submitted reply of the notice controverted the allegations levelled in the notice on 7.3.87. Petitioner sent grievance notice to Respondent No. 3 on 15.4.87 and thereafter petitioner filed grievance petition before the Punjab Labour Court No. 1 Lahore. The respondents filed reply controverted the allegations levelled in the petition and the learned Labour Court dismissed the grievance petition vide order dated 22.3.89. Petitioner being aggrieved filed appeal before the Punjab Appellate Tribunal Lahore who dismissed the same vide judgment dated 25.6.89. Hence the present writ petition.

1. Learned counsel for the petitioner submits that both the tribunals below wrongly dismissed the grievance petition of the petitioner as time-barred. He further submits that both the tribunals below have decided the case on surmises and conjectures rather evidence on record. The Respondent No. 2 failed to appreciate that it was for Respondent No. 3 to prove the service of termination order upon the petitioner. He further submits that both the tribunals below have decided the case against the petitioner by mis-reading or non-reading of the record. He further submits that both the tribunals below have decided the case without adverting to the Order 12(3) of West Pakistan Standing Order 1968 which is mandatory in nature. The grievance notice as well as grievance petition were filed by the petitioner well in time in accordance with Section 25-A of IRO 1969 but both the courts below did not consider this aspect of the case at all. He further submits that the termination order was never served upon him. He further submits that no evidence was recorded against him in presence of the petitioner after notice to the petitioner. This fact was accepted by the R.W-2 in his statement in cross-examination. He further submits that judgment of both the courts below are in violation of the law laid down by the superior courts. In support of his contention he relied upon the following judgments :-

1992 PLC 918 (Agricultural Engineer etc. vs. Abdul Razzak etc.).1974 PLC 205 (Guftar Shah's case).

PLD 1975 Karachi 312 (Dost Muhammad Cotton Mills td. 's case).

1990 PLC 706 (Abdul Shakoor's case).

1988 PLC 582 (HadaitAli and 11 others'case).

1984 PLC 1169 (Muhammad Rafiq's case).

PLC 462 (M/s. Allied Bank of Pakistan Ltd. 's case).

SCMR 603 (Alamgir's case).

PLD 1974 S.C. 393 (Muhammad Siddique's case).

1. Learned Addl: A.G. submits that both the Courts below have given concurrent finding of fact against the petitioner and this Court has no jurisdiction to disturb the same in a Constitutional jurisdiction. He further submits that this Court has no jurisdiction to substitute its own decision in place of the decision of the tribunal below. He further submits that judgment cited by the learned counsel for the petitioner is distinguished on facts and law. He urged that both the courts below after proper appreciation of evidence have given concurrent finding of fact against the petitioner that petitioner did not sent grievance notice and did not file grievance petition within the prescribed period under the provision of the Industrial Relations Ordinance 1969. Therefore, writ petition is liable to be dismissed.

2. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. The Punjab Appellate Tribunal has decided the case without adverting to the Order 12(3) of West Pakistan Standing Orders Ordinance. Even otherwise the Punjab Appellate Tribunal did not discuss the evidence on record. Respondent produced the order of dismissal Ex. R/4 through his witness. RW/2 in his cross-examination admitted in the following terms :

"The termination of the service letter of the petitioner was not posted directly from our office to the petitioner. It is sent to his immediate Incharge who had sented to him. I have no prove of this order having been served upon him."

The respondent did not produce any other witness to prove that dismissal order was served upon the petitioner or not. This fact brings the case in the area that the learned Punjab Appellate Tribunal countersigned the order of the Punjab Labour Court No. 1 which is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in Ghulam Mohy-ud-Din's case PLD 1964 S.C. 829. It is the duty and obligation of the tribunal below to decide the controversy between the parties with reasons. The judgment of the Punjab Appellate Tribunal below did not properly appreciate the evidence on record. Therefore, same is not sustainable in the eyes of law as per principle laid down by the Hon\ble Supreme Court in PLD 1970 S.C. 173. Mollah EjaharMi's case.

la view of what has been discussed above, the judgment of the Punjab Appellate Tribunal is set aside and the case is remanded to the Punjab Appellate tribunal to decide afresh after appreciation of evidence on record. Meaning thereby appeal filed by the petitioner shall be deemed to be pending adjudication before the learned Punjab Appellate Tribunal. Parties we directed to appear before Respondent No. 2 on 12.1.2002 who is directed to decide the same in accords ace with law.

(A.A.) Case remanded.

PLJ 2001 Lahore 148

Present: maulvi anwar-ul-haq, J. INAYAT ALJ-Petitioner

versus GHULAM MUSTAFA and anothers-Respondents

C.R. No. 878 of 1987, heard on 1.11.2000. Specific Relief Act, 1877 (1 of 1877)--

—S. 42~Civil Procedure Code (V of 1908), S. 115-Suit for declaration by plaintiff that he was owner in possession of land in question, on basis of exchange was decreed by two courts below-Validity-Sporadic entries in column of "Lagan" i.e., on basis of exchange would be of no help to plaintiff for the reason that entries in the column of Lagan, unlike the entries in the column of ownership and column of possession do not enjoy presumption of correctness and unless and until it is proved as a fact that possession is relatable to title is being claimed, presumption would be that person recorded in column of possession as a tenant was in fact a tenant-Statement made by defendant in court and his witnesses was fully supported by documentary evidence produced by both the parties-Plaintiff being tenant under defendant was proceeded against for recovery of produce and competent authorities in revenue hierarchy exercising jurisdiction vesting in them under the law decreed such claim-Oral statements made by plaintiff and his witnesses stood duly rebutted by the statement of petitioner and his witnesses-Onus to prove title in property in question, being on plaintiff he failed to discharge the same-Plaintiff and his witnesses in their evidence did not even state that defendant had got any land in exchange for the land in question-Even otherwise it was not believable that defendant would give his exclusive and defined land in exchange for plaintiffs undefined and un-specified land-Courts below, thus, had acted with material irregularity in exercise of their jurisdiction while passing judgments and decrees in question-Judgments and decrees of courts below decreeing plaintiffs suit were set aside and plaintiffs suit was dismissed in circumstances.

[Pp. 152 & 153] A, B & C

PLD 1086 SC 91.

Mr. Jari Uttah Khan, Advocate for Petitioner.

Rana Abdul Jabbar Khan, Advocate for Respondent No. 1.Nemo for other Respondents.

Date of hearing: 1.11.2000.

judgment

On 23.9.1981 the-respondents filed a suit against the petitioner. In the plaint it was alleged that the parties are very close relatives; whereas the Respondent No. 1 is owner of 9 kanals 3 marlasof land in Khewat No. 174 of Chak. No. 73/JB, the petitioner is owner of 9 kanals 2 marlas of land in Square No. 80/2. According to the respondents the two lands were exchanged in the year 1960 and possessions were delivered unto each other; that the petitioner got the respondent recorded as a tenant in the said land in Square No. 80/2 and filed suit for produce. This suit was dismissed by A.C.-I on 29.1.1976 but the Collector allowed the appeal on 29.3.1981 and the Commissioner upheld the same on 10.9.1981. These orders of the Revenue Officers were termed as illegal and without jurisdiction. With these averments a declaration was sought that the respondent is the owner of suit land measuring 9 kanals 2 marlas in exchange for his land in Khewat No. 174 and is in possession thereof; that the entries in the Khasra Girdawariare illegal; in the alternative it was prayed that since he is in adverse possession for more than 12 years he be declared as owner; that the said orders of the Revenue Officers are illegal and void. A permanent injunction was also sought restraining the petitioner from interfering with his possession.

1. In his written statement the petitioner specifically denied the said allegations of the respondent; that the lands were never exchanged; that in the column of Laganan illegal note was got entered which is of no legal effect. It was also specifically denied that the petitioner had ever been in possession of the land allegedly given in exchange. Following issues were framed by the learned trial Court :--

2. Whether the plaintiff got the suit land in exchange with Defendant No. 1 ?

3. Whether the plaintiff has matured his title over the suit land by way of prescription ?

4. Whether the defendant is entitled to recover special costs from the plaintiff, if so, to what extent ?

5. Relief.

150 Lah. inayat ali v. ghulam mustafa PLJ

(Maulvi Anwar-ul-Haq, J.)

Evidence of the parties was recorded. The suit was decreed by the learned trial Court videjudgment and decree dated 21.2.1985. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Faisalabad who proceeded to dismiss the same on 28.2.1987.

1. Learned counsel for the petitioner contends that the judgments and decrees of the learned lower Courts are not supported by any evidence or material on record; that the evidence has been misread and the learned Courts below have proceeded on an erroneous premises while passing the impugned judgments and decrees. Learned counsel for the respondent, on the other hand, has tried to support the judgments and decrees under revision.

2. I have gone through the copies of the record appended with the Civil Revision, with the assisstance of the learned counsel for the parties. he plea of the respondent as noted above is that in the year 1960 the two lands were exchanged and possession was delivered. As it turned out in the course of evidence the exact description of the land belonging to the petitioner is 9 kanals 2 marlas in Killa No. 2 of Square No. 80 of Chak No. 73/ JB, while the description of the land allegedly given by the respondent to the petitioner is 9 kanals 3 marlas in Killas Nos. 11/1, 13/1 and 12/2 of Square No. 74 of the said Chak. The earliest revenue record available on the record is the Jamabandi for the year 1965-66 (Ex. P. 10). According to this document Inayat All, petitioner is recorded to be an owner in possession of the said land in Square No. 80. The next record is for the year 1969-70 (Ex. P. 1). In this record the petitioner is entered as the owner while in the column of possession the respondent is entered as " jXtf?\% " However, in the column at Lagan it is noted " ^p'.^Jjjff. e^ "• Ex- D-l is the Jamabandi for the year 1973-74 in which the petitioner is recorded as an owner while the respondent is recorded as a tenant at will under him. Ex. D. 2 is Jamabandifor the year 1977-78, wherein the Respondent No. 2 is recorded as an owner while the respondent is recorded as tenant at will under him paying half share of produce. Khasra Girdawari for the period Kharif, 1966 to Rabi, 1970 is Ex. P. 2, In this document the petitioner is recorded as an owner while the respondent is recorded to be in possession t^JvV^jtiJ^". Khasra Girdawari for Kharif, 1970 to Rabi, 1974 is Ex. P. 3. Till Rabi, 1972 the said entries in Ex. P. 2 are repeated and in Rabi, 1973 it is entered

These entries stood corrected in Girdawari for Kharif, 1974 onwards where Ghulam Mustafa respondent is recorded

These entries continued till Kharif, 1980 i.e. before the date of filing of the suit.

1. Thus so far as the revenue record is concerned, the petitioner is recorded as an owner in column of ownership while the respondent is recorded as his tenant in the column of possession. So far as the saidsporadic entries in the column of Lagan i.e. ,Jj ^^^are concerned, the same entries per ae would be of no help to the respondent for the simple reason that entries in column of Lagan, unlike the entries in column of ownership and column of possession do not enjoy presumption of correctness and unless and until it is proved as a fact that the possession is relatable to title as being claimed, it shall be presumed that the person recorded in the column of possession as a tenant is in fact a tenant in the present record in the column of ownership. Reference be made to the case of ShadMuhammad vs. Khan Poor (PLD 1986 SC 91).

2. Now it is to be seen as to whether the respondent had been able to prove the exchange as pleaded by him in bis plaint which was the burden of Issue No. 1. P.W. 1 Mubarak Ali states that during the consolidation proceedings in the year 1966 the parties went to Patwari at the shop of Mushtaq and told him that Killa No. 2 (Square No. 80) be given to the respondent and Square No. 74 be given to the petitioner; that the respondent cultivates the land. This is his entire examination-in-chief, 7. Without reference to cross-examination a plain reading of the statement would show that the witness has contradicted the pleaded case of the respondent i.e. the exchange was made ia the year 1960 (para 3 of the plaint refers). There is no mention at all by this witness as to whether the possession of the land, allegedly given in exchange to the petitioner, was delivered to him or not as pleaded by the respondent in his plaint. In cross- examination this witness again asserted that the exchange took place during the consolidation proceedings. He admitted that no proceedings took place pursuant to the said alleged exchange before any officer during the course of consolidation.

3. Piran Ditta is P.W.2. He has made a statement inline with P.W.I. Now in his cross-examination he has stated that the consolidation proceedings started a long time after the alleged exchange. The learned trial Court intervened with a question on which the witness corrected himself and said that/the consolidation proceedings were in prop-ess when the matter of exchange was negotiated. P.W. 3 is Ghulam Mustafa, respondent. He states that he obtained the land in Square No. 80 from the respondents and proceeded to give the share he obtained in the inheritance of one Fazal Din in Square No, 74 to the petitioner. Now the respondent states that a writing was made at the Baithak of Mushtaq Dogar when the agreement of this exchange was made. He further admits that it was as a result of the consolidation that Square No. 80/2 fell to the lot of the petitioner and he did not file any appeal against the said order of the Consolidation Officer; that Square No. 74 fell to his lot during the consolidation and was mutated in his favour and that he did not file any appeal.

4. The respondent appearing as P.W. 3 has obviously belied his own witnesses P.W.I &P.W.2. It is simply not nderstandable as to how before finalization of the consolidation proceedings the parties agreed to exchange with each other the land which came to vest respectively in them as a result of the consolidation proceedings.

5. The said oral evidence led by the respondent was duly rebutted by the petitioner. He appeared as D.W. 2 and denied the factum of exchange, he stated that his land came to him as a result of the consolidation proceedinp and that the respondent is cultivating the same on hah7 share of produce. He categorically denied that he is or has been in possession of any land of the respondent. As is the case with all the P.Ws. it was not at all suggested to the petitioner that he was given Sq. No. 74 or that he is or has een in possession of the same as a result of the said alleged exchange. The petitioner also put in Munshi Khan D.W. 1 to support his version. Another fact which needs to be mentioned is that it came out in the course of cross- examination of the petitioner that even otherwise he owned land in the said Square No. 14.

6. Ex. P. 7 (Jamabandi for the year 1965-66) pertains to the said Square No. 74, According to this document whereas Inayat petitioner has 4038/11120 share, Ghulam Mustafa, respondent alongwith his brothers and sisters has 5136/11120 share. There are other co-owners as well and the land is recorded to be in possession of all the co-owners.

7. Coming to the impugned .judgments both the learned Courts below have placed implicit reliance on the said entry in the column of Lagan. In fact they have treated the said entry in the column of Lagan by itself to be the evidence of the plea of the respondent Thus they have proceeded to read the documentary evidence on record in a manner which runs contrary to the dictum of the Supreme Court of the country on the subject. Both of them have proceeded to rely on an answer given in reply to a suggestion by the petitioner by P.W. 1 which gives an impression that a positive suggestion was given to the witness and he admitted it that the parties made a statement of exchange before Jaffar Patwari at the shop of Mushtaq. To my mind the said alleged suggestion does not at all derrogate from the overall impact of the evidence both documentary and oral on the record. The statement made in the witness-box by the petitioner and bis witnesses is fully supported by the documentary evidence produced by both the parties. The respondent was a tenant under the petitioner, he was proceeded against for recovery of produce and the competent authorities in the revenue hierarchy exercising jurisdiction vesting in them under the law decreed the aid claim. On the other hand, the oral statement made by the respondent and his witnesses stand duly rebutted by the statement made by the petitioner and his witnesses. The onus to prove Issue No. 1 was upon the respondent and he miserably failed to discharge the same. In ultimate analysis it is a case of oath against oath and the trite law is that one who has the burden to prove on his shoulders fails in such an eventuality. In the present case the entire revenue record on the file supports the version of the petitioner.

8. A very significant aspect of the case has been completely lost sight of by the learned Courts below i.e. that even the witnesses of the respondent or for that matter the respondent himself did not even dare to state in the witness box that the land in Square No. 74 was delivered unto the petitioner. Even otherwise, it does not at all appeal to the prudence that the petitioner would hand over the land specifically defined and exclusively owned and possessed by him to the petitioner for an undefined share in Square No. 74. It might have been or some consequence if the only share­ holders in Square No. 74 were to be the petitioner and the respondent but it is a matter of record that Square No. 74 is owned by several persons. Rules of evidence applicable to the Courts in the country are in fact the rules of prudence. This would be evident from Article 2(4) of Qanun-e-Shahadat Order, 1984 which ordains that a fact is said to be proved when after considering the matter before it, the Court either believes it'to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. It is not the question of forming of a different opinion but to my mind the respondent miserably failed to prove the fact of exchange alleged by him.

9. The result of the above discussion is that both the learned Courts below have acted with material irregularity in the exercise of their jurisdiction while passing the judgments and decrees under revision which cannot be sustained. This Civil Revision is accordingly allowed. The judgments and decrees of both the learned Courts below are set aside and the suit of petitioner is dismissed with costs throughout.

(T.A.F.) Revision accepted.

PLJ 2001 Lahore 153

Present: ch. uaz ahmad, J.

BARKAT All-Petitioner

versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 5 others-Respondents

W.P. No. 4375 of 1987, heard on 27.10.2000. (i) Civil ProcedureCode, 1908 (V of 1908)--

—S. 144-Principle of restitution—Essentials-Restitution must be in respect of decree which has been varied or reversed; party applying for restitution must be entitled to benefit under the reversing decree; and the relief must be properly consequential on reversal and not be opposed to any other principle of equity-Paramount duty of the court is to take care that the act of Court should not prejudice any party-­ Court must undo the wrong and re-instate wronged party to the position to which he is/was entitied-Right of restitution is not derived from S. 144 of C.P.C.; that section merely specific, one of the methods by which that right can be enforced-Object underlying S. 144 of C.P.C. is to redress the wrong and re-instate the wronged party to the original position to which he was entitled under varied decree of court-Principle of restitution is inherent in the exercise of judicial authority so that status quo ante can be restored [P. 156 & 157] A, B & D

<ii) Civil Procedure Code, 1908 (V of 1908)--

—S. 47—Suit to be treated as application under S. 47 of C.P.C.-Provisions of S. 47 C.P.C. although bars suit yet sub-section (2) thereof, enables executing court to treat such suit as an application. [P, 157] C

(iii) Civil Procedure Code, 1908 (V of 1908)-

----S. 144-Constitution of Pakistan (1973), Art. 199-Suit for specific performance of agreement of sale was decreed by two courts below but the same was dismissed by the High Court in earlier round of litigation-­Petitioners application for restoration of possession on the basis of judgment of High Court was accepted-District Court in exercise of its revisional jurisdiction set aside order of Trial Court-Validity-Order of Trial Court in restoring possession of petitioners (defendants) was in accordance with law while that of District court was not in accordance with law especially when in earlier round of litigation, plaintiffs (respondents) suit had been dismissed by the High Court. [P. 159] E

PLJ 1980 Lah. 128; AIR 1944 Lah. 169; AIR 1934 Lah. 322; AIR 1928 Lah. 7.

Mr. S. M. Masud, Advocate for Petitioner.

Mr. Jehanzeb Wahla, Advocate for Respondents.

Date of hearing: 27.10.2000.

judgment

The brief facts out of which the present writ petition arises are that the land in question originally owned by petitioner and one Din Muhammad. The petitioner and Din Muhammad executed agreement to sell qua the land in question in favour of Sher Muhammad and deceased Fateh Muhammad. Now represented by his legal heirs Respondents Nos. 2, 5 and 6 in the present writ petition. The dispute arose between the parties. Late Fateh Muhammad and Sher Muhammad filed a suit for specific performance against the petitioner. The suit was decreed in favour of late Fateh Muhammad and Sher Muhammad respondent vide judgment and decree dated 8.11.1969. The petitioner being aggrieved filed appeal which was dismissed by the learned District Judge, Faisalabad vide judgment and decree dated 13,11.80. The petitioner being aggrieved filed Regular Second Appeal No. RSA No. 71/1981 which was accepted as the matter had been settled between the parties by way of compromise videorder dated 4.5.81. The sale-deed was compulsorily registered on 7.12.80 by the Sub-Registrar Sammanduri on the basis of the decree passed by Civil Judge dated 8.11.1969. The petitioner after the order of this Court filed application before the trial Court for cancellation of the sale-deed. The learned trial Court accepted the application and cancelled the aforesaid deed vide order dated 23.12.1985. Respondents Nos. 2 and 3 had also filed suit for pre-emption before the Civil Judge Sammundari qua the land in question. Respondents No. 2 and 3 were not party in the original suit for specific performance and also the proceedings were finalised upto this Court in which the decree of the trial Court was reversed. Respondents Nos. 2 and 3 being aggrieved by the order of the trial Court dated 23.12.85 filed revision petition before the Addl. District Judge, Faisalabad who accepted the same videorder dated 13.7.1987. The petitioner being aggrieved filed this writ petition.

1. The learned counsel for the petitioner submits that order of the trial Court was in accordance with Section 144 CPC whereas the impugned order of the Addl. District Judge is in violation of Section 144 CPC and was erred in law to hold that petitioner had to file suit under section 9 of the Civil Procedure Code. He further submits that revisional Court was erred in law to rely on Section 47 of the CPC. He further submits that order of the Trial Court is in accordance with Order 21, Rule 11 (j)(v) of the Civil Procedure Code but the revisional Court was erred in law to set aside the same without dverting to this aspect of the case. He further submits that revisional Court reversed the order of the trial Court without adverting to the reasoning of the trial court., therefore, the impugned order is not sustainable in the eyes of law. He further urges that impugned order is in violation of the law laid down by the Superior Courts. In support of his contentions he relied upon the following judgments :--

\PLJ 1980 Lahore 128 (Mst. Zubaida Begum's case). A.I.R. 1944 Lahore 165 (Alfred Sahir's case). A.I.R. 1934 Lahore322 (Bern Parshad's case). A.I.R. 1928 Lahore 7 (Ghanaya Lai's case).

1. The learned counsel of the respondents submits that Respondents Nos. 2 and 3 filed application in the pre-emption suit after the order of this Court in RSA No. 71/1981 dated 4.5.1981 to implead the petitioner as respondent which was accepted. The petitioner being aggrieved filed revision petition before the revisional Court which was dismissed. He further submits that ingredients of Section 144 CPC are not attracted. The petitioner has to file application for execution of the decree or separate suit as the trial Court was Functus officio after deciding the suit He supported the order of Addl. District Judge in tooth and nail and submits that application of the petitioner was not maintainable before the trial Court and the revisional Court set aside the order of the trial Court with reasons. The learned counsel of the petitioner failed to point out any material illegality or irregularity in the impugned judgment, therefore, writ petition is not maintainable. He further submits that this Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunals below.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce Section 144 CPC to resolve the controversy between the parties :--

"Application for restitution, (i) Where and in so far as a decree is varied on reversed the Court of first instance, shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as well, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose the Court may make any order, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1)."

A plain reading of the aforesaid Section reveals that principle of Restitution is applicable or attracted where the applicant fulfils the following conditions:-

(a) The restitution must be in respect of the decree which had been varied or reversed;

(b) The party applying for restitution must be entitled to benefit under the reversing decree.

(c) The relief must be properly consequential on reversal and variation of decree and is not opposed to any other principle of equity. The aforesaid provision of law reveals that this embodies the principle that no body shall be prejudiced by the act of the Court. Meaning thereby it is the paramount duty of the Court is to take care that the act of Court does not injury to suiter and when such injury is found by the Court on account of subsequent event of variation or reversal of the decree then it is the foremost duty of that Court to undo the wrong and reinstate the wronged party to the position to which it is entitled as per principle laid down in AIR 1940 Calcutta 260 Birendra Nath Basu Thakur's case. It is settled proposition of law that Section 144 of the Civil Procedure Code only embodies the Doctrine of restitution and does not confer any new substantive right which an aggrieved party does not possess under the general law. The right of restitution is not derived from Section 144 of the Civil Procedure Code. That section merely specifies one of the methods by which that right can be enforced. The aforesaid provision of law was interpreted in AIR 1943 P.C. 189 Rohani Raman Dhwqja Pershad Singh's case and the relevant observation is as under :--

"When a decree is varied or reversed in the circumstances giving rise by way of restitution, the right arises automatically and is claimable under Section 144 CPC before the trial Court."

The aforesaid provision of law is also interpreted in Safarddi's case 16 Indian Cases 966 and laid down the following principle :

"Section 144 of the CPC and in the inherent powers of the Court do not confer on anyone new substantive right they merely provide a more convenient Procedure. The right to restitution is not derived from Section 144 of the CPC and the power of the Court to direct restitution is inherent in the Court itself."

It appears the basis objective underlying Section 144 CPC is to redress the wrong and reinstate the wrong party to (he original position to which it is entitled under varied decree of the Court. Meaning thereby restitution of possession to a party who succeeds in getting the adverse order reversed in appeal is nothing more than retracing the steps to nullify the proceedings whereby the party who was not entitled to the benefit had obtained it from the Court under the false colours. In arriving to this conclusion I am fortified by the judgment of this Court in Alfred Zahir's case AIR 1944 Lahore 165. The aforesaid proposition of law is also considered in Abdur Razzaq's case NLR 1997 Civil 169 by this Court and laid down the following principle :

"The restitution of the possession, in the circumstances, should have followed as a matter of course, and should not have been put off till the decision of the application under Section 12(2) CPC as for allowing consequential relief on account of suspension of the warrant Dakhal Malkana, nothing else was to be done. The aforesaid provision was considered by the Hon'ble Supreme Court in M/s. Rafique Industries's case 1984 SCMR 807 and the relevant observation is as follows :--

"Jurisdiction to make restitution is inherent in every Court and should be exercised whenever the justice demands."

It is pertinent to mention here that Section 47 CPC barred a suit but Sub­section (2) thereon contained a pregmatic Provision which enables an Executing Court to treat such a suit as an application. Examining the case from this angle, there was nothing to prevent the Court from treating the same as an application. The aforesaid section was considered by the Sindh

High Court in Biruji Hazariji's ease AIR 1944 Sindh 233 and relevant observation is as under :--

"The jurisdiction of a Court to grant restitution does not merely rest on Section 1-44 but is part of the inherent powers of a Court. Section 144 applies to cases where decree had in fact been set aside by a decree pass in another suit.

j The principle of restitution is inherent in the exercise of judicial authority so that status quo ante can be required to be restored this

| | | --- | | 0 |

precise principle is contained in the provision of Section 144 of the

CPC and even Section 151 thereof avails for such a purpose.

In arriving to this conclusion I am fortified by the following Judgments:

NLR 1997 Civil 169 (Abdur Razzaq's case). 1995 SCMR 851 (AbdulBan's case).

The aforesaid section also interpreted by the Dacca High Court in Abdul Haq's case P.L.D. 1960 Dacca 452 and laid down the following principle :--

"Coming to the first branch of the first contention of the learned Advocate, though I agree with the learned Advocate that Section 144 of the Code of Civil Procedure in terms does not apply, as the order setting aside the sale does not come within the terms of that section, yet I cannot agree with him because there are authorities where it has been held that Section 144 is not exhaustive and the principle of Section 144 can be extended to cases which do not strictly come within the wordings of Section 144. In the case of Hamejaddi Howladar and another v, Maminaddi Shaikh and another PLD 1959 Dacca 304 to the decision of which I am a party, it has been held that, "The power of a Court to direct restitution on a Court sale being set aside is inherent in the Court and is not confined to Section 144 of the Code of Civil Procedure, and rests upon the principle that a Court of justice has duty to repair the injury done to a party by its act."

The Indian Supreme Court also considered the aforesaid proposition in AIR 1966 SC 948 Binayak Swain's case and laid down the following principle :--

"The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to th'e other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties, so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from.

The Indian Supreme Court subsequently considered the aforesaid provisions in Kavita Trehan's case (1994 (5) S.C. cases 380) and laid down the following principle:

"The jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144".

la the present case the decree was passed by the Civil Court in suit for specific performance on 8.11.1969. Petitioner's appeal was dismissed by the District Judge vide judgment dated 13.11.1980. Sale-deed was compulsorily registered on 7.12.1980. RSA No. 71/1981 was decided and reversed the decree of the trial Court vide order dated 4.5.1981. In case the aforesaid facts are put in juxta-position then order of the trial Court is in accordance with the law laid down by the superior Courts but the impugned order of the Addl. District Judge is not in accordance with the law laid down by the superior Courts, therefore, impugned judgment is set aside and the order of the trial Court is upheld. The writ petition is accepted with no order as to costs.

(A.A.J.S.) Petition accepted.

PLJ 2001 Lahore 159

Present: MAULVI ANWAR-UL-HAQ, J. KHUSHI MUHAMMAD and another-Petitioners

versus

MUHAMMAD SIDDIQUE etc.-Respondents Civil Revision No. 1133 of 1985, heard on 4.10.2000. (i) Limitation-

—Void ab-initio orders are nullity in the eye of law, and in regard to such orders, plea of limitation cannot be pressed into service. [P. 162] C

(ii) Limitation Act, 1908--

-—Arts. 14 & 120-Declaratory suit-Limitation for-Whether suit was barred by time-Question of~Land allotted to Respondents No. 1 to 3 as J & K refugees was illegally confirmed in favour of Respondent No. 4, who then transferred it to Respondent No. 5, who in his turn sold it to petitioners-Appeal filed by Respondents Nos. 1 to 3 before DSC was dismissed on 12.3.1978-Then on 19.4.1978, they filed suit for declaring said confirmation and consequent transfer of land as illegal and void, which was dismissed by Civil Court, but was decreed by appellate Court-­Challenge to-Petitioners contended that land had been cancelled by DSC on 21.9.1964, and thereafter it was transferred to Respondent No. 4 on 12.9.1966, thus, suit field on 19.4.1978 was time-barred--Held : Article 14 of Limitation Act would not apply to an order found to be without jurisdiction but only Article 120 would apply to it-Held Further: From record, it revealed that appeal was taken against order of confirmation in favour of Respondent No. 4, which was dismissed on 12.3.1978--Since Respondent No. 1 to 3 had been availing their remedy, and they had to approach Civil Court against final order, thus, suit filed on 19.4.1978 was within time both under Article 120 and 14 of Limitation Act, 1908--

[P. 161] A

1978 SCMR 367 and PLD 1973 SC 238 rel (iii) Settlement and Rehabilitation Matters-

—Land temporarily allotted to a J & K refugee goes out of compensation pool, and infact it stands sold to Ministry of Kashmir Affairs. [P. 162] B

PLD 1977 Lah. 202; 1976 SCMR 112; PLD 1991 SC 391; 1989 SCMR 323 and 1991 MLD 2167 rel.

Mr. Irshad Ahmad Chatha, Advocate for Petitioners. Nemo for Respondents. Date of hearing: 4.10.2000.

The admitted facts of this case are that the suit land was temporarily allotted to the father of the respondents as J&K refugees in lieu of Rathan/maintenance. After consolidation the suit land was transferred to the respondents on 30.7.1965. The suit was filed with the grievance that D.S.C. (L) had illegally confirmed the said land on the RL.II Khata of Respondent No. 4 who then proceeded to transfer the land to Respondent No. 5 vide Mutation No. 197 attested on 23.5.1967 who in his turn sold the land to the present petitioners vide Mutation No. 201 attested on 20.10.1967. In the plaint it was stated that Respondents Nos. 1 to 3 had filed an appeal before the Settlement Commissioner, Lahore which was dismissed on 12.3.1978. Present suit was filed on 19.4.1978, seeking a declaration that the confirmation of the land in favour of the said Respondent No. 4 and the consequent further transfers including the one in favour of the present petitioners are illegal and void. The suit was contested only by the present petitioners who objected to jurisdiction of the Civil Court to try the suit; that the suit is barred by time as according to the petitioners the land had been cancelled by the D.S.C. on 21.9.1964 and thereafter it was transferred to Respondent No. 4 on 12.9.1966. Issues were framed. Evidence of the parties was recorded. The learned trial Court proceeded to dismiss the suit vide judgment and decree dated 24.11.1981. Feeling aggrieved Respondents Nos. 1 to 3 filed an appeal which was heard by a learned Additional District Judge, Gujranwala who allowed the same and decreed the suit vide judgment and decree dated 25.10.1984.

1. Learned counsel contends that the suit was barred by time and that the learned Additional District Judge has wrongly roceeded to decree the suit. No one has turned up for the respondents.

2. I have gone through the record of the case, with the assistance of the learned counsel present. I may point out here that the issues framed on merits were Issues Nos. 1 & 2 which are reproduced here:--

3. Whether the orders in question passed by the D.S.C. and subsequently confirmed in appeal by the Settlement Commissioner on 12.3.1978 are mala fide, illegal, void and without jurisdiction? O.P.P.

4. Whether the Mutations Nos. 197 and 201 are fictitious, collusive, without consideration and illegal? O.P.P.

Both these issues were found in favour of the respondents by the learned trial Court. However, Issue No. 4 which encompassed the objection of limitation was found in favour of petitioners. Before the learned Additional District Judge the petitioners did not question the findings on Issues Nos. 1 & 2. However, the learned Additional District Judge found that not only the orders sought to be challenged were illegal and without jurisdiction but were in fact declared to be so by the learned trial Court. He, therefore, came to the conclusion that since the proceedings/orders were void, there was no question of limitation and as such proceeded to reverse the findings on Issue No. 4 and to decree the suit.

1. Learned counsel insists that the matter is governed by Article 14 f the Limitation Act, 1908 which provides a period of one year for filing a suit in case a person feels aggrieved of an order passed by an officer of the Government in his official capacity.

2. To my mind Article 14 would not be applicable to an order which is found to be without jurisdiction. Learned counsel then refers to the cases of S. Sharif Ahmad Hashmi vs. Chairman, Screening Committee, Lahore and another (1978 SCMR 367) and Nawab Syed Raunqq Mi etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 236). There is no cavil with the proposition laid down by the apex Court in the said judgments but it has to be seen as to what would be the period of limitation. Article 14being inapplicable the only other Article attracted would be Article 120 of the Limitation Act, 1908. It is a matter of record that an appeal was taken against the order of confirmation in favour of Respondent No. 4 and it was decided only on 12.3.1978 (Ex.D. 2). Since the Respondents Nos. 1 to 3 were availing their remedy, they had to come to the Civil Court against the final order and to my mind the suit filed on 19.4.1978, in the circumstances of the case, is within time, both under Article 120 as also Article 14 of the Limitation Act, 1908.

3. Although the crucial findings on the merits of the case recorded by the learned trial Court, whereby it was held that neither the land was cancelled from the name of Respondents Nos. 1 to 3 nor could it be transferred to Respondent No. 4, have not been challenged in the appeal, yet the learned counsel made an attempt to attack the same in the course of his arguments.

4. It is by now well settled that the land allotted temporarily to a J&K refugee goes out of compensation pool and in fact it stands sold to the Ministry of Kashmir Affairs. It was so held by this Court in the case ofMst. Sakina Bibi and another vs. Mamla and 2 others (PLD 1977 Lahore 202). To similar effect is the judgment in the case of Dost Muhammad and others vs. Mst, Badal Jan and others (1976 SCMR 112), Ghulam Muhammad and another us, Ahmad Khan and another (PLD 1991 SC 391) and Muhammad Younas and 6 others vs. Allah Lok and three others (1989 SCMR 323). It would be appropriate to quote some observations from the judgment in the case ofNihal Din alias Lai Khan and 2 others vs. Muhammad Hussain and 3 others (1991 MLD 2167) by Mr. Justice Allah Nawaz (as his Lordship then was). His lordship after recapitulating almost the entire case law on the subject proceeded to hold as under:--

"10. The ratio deducible from the examination of aforenoted law and the authoritative pronouncement in the aforementioned authority, is that evacuee agricultural land allotted to ration-card-holders/refugees from Jammu and Kashmir, stands transferred to the Ministry of Azad Jammu and Kashmir and is excluded from compensation pool for the purposes of settlement in favour of then refugees from Jammu and Kashmir with verified claims. Judged from this angle it is quite clear that the allotment in favour of the petitioners by the Deputy Settlement Commissioner was without any legal sanction. It was coram nonjudice and was a mere nullity in the eye of law. As such the Additional Settlement Commissioner was well within his right to adjudge this allotment as having been made without any lawful authority. The impugned order, therefore, is eminently just and in consonance with the provisions of law.

. As regards the question of limitation it is well-settled principle of law that the orders which are ab initio void, are nullity in the eye of law. The plea of limitation cannot be pressed into service in regard to such orders. The contention of the learned counsel for the Respondents Nos. 1 to 3 that the appeal filed by Allah Rakha was barred by time is accordingly found to be untenable and is repelled."

1. It is a matter of record as held by the learned trial Court and confirmed by the learned Additional District Judge that there is no evidence whatsoever on the record that the temporary allotment made to Respondents Nos. 1 to 3 was ever cancelled validly. In this state of affairs the several judgments referred to by me above are squarely applicable to the facts of the present case. I find that the impugned judgment of the learned Additional District Judge is not only valid and legal but is eminently just. This Civil Revision is without any force and is accordingly dismissedjeaving the parties to bear their own costs.

(S.A.K.M) Petition was dismissed.

PLJ 2001 Lahore 163

Present:malik MUHAMMAD QAYYUM, J. Mst. TABASSAM NAZIR and another-Petitioners

versus

LIAQAT HAYAT and 5 others-Respondents C.R. No. 1927 of 2000, decided on 7.12.2000. Civil Procedure Code, 1908 (V of 1908)--

—-O.XLVIII, R. 1 & S. 115-Revision against order of Trial Court whereby petitioner's application for temporary injunction was dismissed- Maintainability--Objections of respondents to maintainability of revision that order in question, being appealable under O.XLJI, R. 1, revision against the same was not competent; and that if at all revision was to be filed, the same should have been instituted in the Court of District Judge as the valuation of subject matter for purposes of jurisdiction was fixed at Rs. 400/- were well founded-In exceptional circumstance although revision was maintainable, not withstanding remedy of appeal being available, yet no where in revision petition it had been explained as to what were the circumstances which had obliged petitioners to initially file constitutional petition and subsequently revision petition against order of rial Court wherein temporary injunction was refused in favour of petitioners-By-passing the forum prescribed by law was not warranted- Even if it be assumed that petitioner had filed revision without first invoking appellate jurisdiction of District Judge, even the revision would not be in High Court as admittedly valuation of subject matter for purposes of jurisdiction was fixed at Rs. 400/- Revision was thus, not maintainable against order of Trial Court. [Pp. 164 & 165] A, B

1993 SCMR 64.

Ch. Muhammad AshrafWahlah, Advocate for Petitioners. Mr. Jariullah Khan, Advocate for Respondents. Date of hearing: 7.12.2000.

order

The dispute in this petition arises out of a suit for declaration and injunction filed by the petitioners against the respondents, during the course of hearing of which the petitioners applied for the grant of temporary injunction restraining the respondents from alienating the land in dispute and from raising the construction thereon. The application was dismissed by the learned trial Court on 3.6.2000.

1. Surprisingly the petitioaers instead of challenging that order i appeal under Order 43, Rule l(viii) CPC filed a Constitutional petition in this Court which was registered as Writ Petition No. 13053/2000. Subsequently an application was filed by the petitioners (C.M. No. 889/2000) for permission to withdraw the aforesaid petition with liberty to file a fresh petition, if need be. That application is still pending in the aforesaid petition. However, on 1.9.2000 the petitioners filed this revision petition challenging the order of the trial Court dated 30.6.2000 whereby the petitioners application for temporary injunction had been dismissed.

2. Two preliminary objections have been raised by the learned counsel for the respondents, firstly; that the order being appealable under Order 48, Rule 1 CPC the revision petition was incompetent and, secondly; that if at all revision petition was to be filed, it should have been instituted in the Court of District Judge Faisalabad, as the value of the subject matter for the purposes of jurisdiction was fixed at Rs. 400/- by the petitioners.

3. Both these objections are well taken. There is nothing on the record to show that as to why the petitioners instead of filing an appeal against the order of the trial Court before the District Court, firstly came in writ petition and then in the revision before this Court, Confronted with this proposition the learned counsel for the petitioners has relied upon an authority of the Supreme Court in Naseem Ahmad etc. vs. Air Botswana (PTY) Ltd. etc. (1993 SCMR 64) to contend that in exceptional cases revision petition was maintainable notwithstanding that the remedy of appeal being available. There cannot be any cavil with the legal proposition advanced by the learned counsel for the petitioners. It is to be seen that no where in this petition it had been explained that what were the circumstances which have obliged the petitioners to file the Constitutional petition before this Court. The only explanation given is that earlier the plaint was rejected by the Lower Appellate Court and the revision against that order was dismissed by this Court and it was only the Supreme Court which had passed an order for revival of the plaint. This hardly furnishes any ground for by-passing the forum prescribed by law. The mere fact that an earlier occasion the Supreme Court of Pakistan had interferred in the matter does not confer any right upon the petitioners to approach this Court directly by by-passing the provision of law.

4. Even if it be assumed that the petitioners could filed the revision without first invoking the appellate jurisdiction of the District Court, even then this petition would not lie in this Court as admittedly the valuation of the subject matter for the purposes of jurisdiction was fixed at Rs. 400/- by the petitioners/plaintiff himself. No reason has again been stated as to why the revision was not filed before the District Court, In view of the above this petition has no force. It is dismissed in limine.

(A.A.T.) Petition dismissed.

PLJ 2001 Lahore 165

Present: SAYED ZAHTD HUSSAIN, J.

ABDUL GHANI and others-Petitioners

versus

MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB LAHORE and 9 others-Respondents

Writ Petition No. 710 of 1987, heard on 1.11.2000. Consolidation of Holdings Ordinance, 1960-

—-S. 13(l)(a)-Constit,ution of Pakistan, 1973, Art. 199~Board of Revenue-Revisional Jurisdiction-Sue motu exercise of—Scope of—Against order passed by Additional Commissioner, respondents invoked revisional jurisdiction of Board of Revenue, but their revision petition as well as review petition were dismissed, and matter was not further agitated-Later on, Member, BOR, in exercise of suo motu revisional jurisdiction set aside the order of Additional Commissioner—Challenge to—Held: An officer of co-ordinate jurisdiction is not vested with revisional power-­Once an order has been passed by BOR itself in revisional jurisdiction under Section 13 of the Ordinance, it could be open to review, but no further revisional jurisdiction could be exercised qua its own order—Held further : Learned Member failed to notice that he was indeed revising two judicial orders passed by BOR, one passed in revisional jurisdiction and other passed in review jurisdiction—Such a power did not vest with learned Member, BOR under Section 13 of the Ordinance-Impugned order was declared as illegal and writ petition was accepted.

[P. 168] A & B

NLR 1982 Revenue 87 and PLD 1983 Revenue 11 rel on.

Mr. G.H, Khan, Advocate for Petitioners. Nemo for Respondents, Date of healing : 1.11.2000.

judgment

Consolidation operation in Mouza Dhool Rukhna Tehsil Depalpur District Okara commenced in the year, 1981 and the scheme was confirmed on 26.12.1981. Majority of land holders were not satisfied with the said scheme who filed a petition before the Addl. Commissioner (Consolidation), Lahore Division Lahore. After noticing a number of irregularities therein and the report of the Collector (Consolidation), he ordered the annulment of the scheme in exercise of powers under Section 13 of the Consolidation Holding Ordinance, 1960 and remanded the matter to Consolidation Officer for fresh consolidation with certain guidelines provided by him. This was vide order dated 25.6.1985. Noor Muhammad, Muhammad Sarwar, Muhammad Ashraf, Fakhar Hayat and Muhammad Shaft, some of respondents herein filed a revision petition before the Board of Revenue which was dismissed on 19.12.1985. A review was then filed by them which was dismissed on 30.9.1986. It is stated by the learned counsel for the petitioners that the matter was not agitated any further, however, suo motu revisional jurisdiction was later exercised by a learned Member on 21.1.1987 who proceeded to set-side the order of the Addl. Commissioner (Consolidation), Lahore dated 25.6.1985 and restored the scheme dated 26.12.1981. This order of the learned Member, Board of Revenue has been challenged through this petition under Article 199 of the Constitution.

1. It is contended by the learned counsel that against the order of the Addl. Commissioner dated 25.6.1985, the respondents had invoked the revisional jurisdiction which was dismissed by the Board of Revenue as also their review thereagainst; it was not permissible under Section 13 of the Ordinance to have invoked the suo motu revisional powers to set-aside the judicial orders already passed by the Board of Revenue.

2. Respondents Nos. 2 to 9 had been served and were represented by a learned counsel whose name appears in the cause list. The case has also been listed for hearing after notice to the parties for today. Still none has entered appearance today. The case has thus, been heard ex-parte.

3. It cannot be disputed that after the order had been passed by the Addl. Commissioner (Consolidation) on 25.6.1985 annulling the consolidation scheme, a revision petition was filed thereagainst by the respondents which was dismissed by Mr. Muhammad Saeed-ul-Hassan, Member (Consolidation), Board of Revenue, Punjab, Lahore on 19.12.1985. After hearing the parties concerned, it was observed by him that "the perusal of the impugned order shows that there were numerous irregularities defects in the scheme such as Darja Bandi of land has not been done in the village, work of consolidation was started in the village without obtaining the consent of atieast 51% of the right holders and out of 227 khatadars only 52 right holders proposed Tareeqa Taqseem, These are obviously such type of irregularities which could not be rectified by way of filing appeals etc. Further, mushtati munadani had also been conducted in the village about the time of the visit of the Addl. Commissioner (Cons), therefore, the excuse of the petitioners being unheard is unwarranted. The Addl. Commissioner (Con.) has passed just and proper order." Dis-satisfied with the same, the respondents filed a review petition which was dismissed by Mr. ManzoorAhmed Khan Leghari, Member (Consolidation), Board of Revenue, Punjab, Lahore on 30.9.1986. It is after that the above said judicial remedies had been availed and exhausted that suo motu revisional power was exercised by Mr. Sajjad-ul-Hassan, Member, (Consolidation), Board of Revenue, Punjab, Lahore who by accepting the revision petition set-aside the order of the Addl. Commissioner dated 25.6.1985.

4. In order to Judge the tenability of the contention of the learned counsel for the petitioners that no such power was available with the learned Member, Board of Revenue in the circumstances of the case in view of Section 13(l)(a) of Consolidation of Holdings Ordinance, 1969, the said provision of law needs to be perused. It is as follows :--

S. 13. Power of call for and examine record.

(1) The Board of Revenue may --

(a) at any time of its own motion call for the record of any proceedings under this Ordinance pending before, ordisposed of by any Revenue Officer or Consolidation Officer; or

(b) on an application made to it in that behalf by a person aggrieved within 90 days of the passing of an order in any proceedings under this Ordinance by any Revenue or Consolidation Officer, and after giving such person an opportunity of being heard, call for the record of such proceedings.

(2) A Commissioner or Collector may call for the record of any case under this Ordinance pending before, or disposed of by any Revenue Officer or Consolidation Officer under this control.

(3) If in any case in which a Collector has called for the record under sub-section (2) he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner.

(4) The Board of Revenue may in "any case called for under sub­ section (1) and a Commissioner may in any case called for by him under sub-section (3), pass such order as it or he thinks fit.

The Additional Commissioner while passing order dated 25.6.1985 had exercised power available to him under sub-Section (2) ibidwhereas the suo motu revisional jurisdiction was exercised by the Learned Member, Board of Revenue which could be available under Section 13(l)(a). The reading of clause (a) of sub-section (1) ibid would show that the Board of Revenue can exercise this power and "call for the record of any proceedings under this Ordinance pending before or disposed of by any Revenue Officer or Consolidation Officer." Undoubtedly extensive and wide power vests in the Board of Revenue if the proceedings under the Ordinance are "pending or disposed of by any Revenue Officer or Consolidation Officer." Clause (e) of Section 2 of the Ordinance defines "Consolidation Officer" which means an officer appointed by the Board of Revenue or by any officer specially empowered by the Board of Revenue in this behalf to perform all or any of the functions of a Consolidation Officer under this Ordinance." It does not include within its ambit the Board of Revenue itself. There seems to be a rational behind the above provision of law that once an order has been passed by the Board of Revenue itself in revisional jurisdiction under Section 13 of the Ordinance, it could be open to review but no further revisional A jurisdiction could be exercised qua its own order. An officer of co-ordinate jurisdiction is not vested with the revisional power. Section 13 of the Ordinance came up for consideration in Sufaid Khan etc. vs. M.B.R. (Consolidation) etc. (NLR 1982 Revenue 87) and it was observed by a learned Single Judge of this Court "that the Board of Revenue acts in a dual capacity. On the administrative side, it controls the consolidation proceedings and on the judicial side it deals with the matter arising out of it. But once a matter has been decided on the judicial side, the exercise of executive authority to nullify the effect of judicial, decisions will be an improper exercise of authority." Such a view was even taken by the learned Member (Consolidation) Board of Revenue in Noor Khan vs. Lai Khan and 2 others (PLD 1983 Revenue 11) that after the dismissal of a revision petition, inquiry under suo motu powers could not be ordered.

1. In the present case, however, while exercising this power, the learned Member, Board of Revenue ignored the material aspect that the order of the Addl. Commissioner dated 25.6.1985 had merged into the revisional order dated 19.12.1985 passed by Mr. Saeed-ul-Hassan, Member (Consolidation), Board of Revenue, Punjab, Lahore against which even a review petition had been dismissed by Mr. Manzoor Ahmad Khan Leghari, learned Member (Consolidation), Board of Revenue, Punjab, Lahore. The learned Member, Board of Revenue failed to notice that he was indeed revising two judicial orders passed by the Board of Revenue, one passed in revisional jurisdiction and the other passed in review jurisdiction. Such a power did not vest with the learned Member, Board of Revenue under Section 13 of the Ordinance. While passing order dated 21.1.1987, the learned Member, Board of revenue has over stepped the jurisdictional sphere which order is not sustainable in law.

For the above reasons, order dated 21.1.1987 is declared as illegal and of no legal effect. This petition is accepted. No order as to costs.

(S.A.K.M.) Petition accepted.

PLJ 2001 Lahore 169

Present: sayed zahid hussain, J.

LIAQAT ALJ--Petitioner

versus

SENIOR MEMBER/MEMBER (REVENUE) BOARD OF REVENUE, PUNJAB, LAHORE and another-Respondents

W.P. No. 19708 of 1998, heard on 15.12.2000. West Pakistan Board of Revenue Rules, 1968-

—R. 19(2)--ConstitutioD of Pakistan (1973), Art. 199--Apppintment of Lam&ar<iar--Essentials--Petitioner being the eldest son of deceased Lambardar was appointed as Lambardar by Collector and said appointment was maintained by Commissioner-Board of Revenue, however, set aside petitioner's appointment and instead appointed respondent as Lambardar~Validity--Peiiiioner is though admittedly son of deceased Lambardar was, however, employee of Agricultural Development Bank-Keeping in view nature of duties and responsibilities, Board of Revenue did not endorse his appointment as Lambardar on the ground that for all practical purposes, he was absentee and that his absence from said revenue estate was not of temporary" nature—Petitioner being in service could be transferred even further away-Even institution ofSarbrah Lambardar was not meant to cover such permanent absence-­Absence from revenue estate is a fatal disability-Board of Revenue being at the helm of hierarchy, it found petitioner to be not a fit person for appointment as Lambardar and appointed respondent to that post-­Appointment of Lambardarrests exclusively in the domain of revenue authorities who because of their experience and training are in a better position to make suitable choice than Courts of general jurisdiction-Choice made by Board of Revenue in facts and circumstances of case does not warrant interference by High Court in writ jurisdiction.

[P. 172] A & B

PLD 1999 SC 484; PLD 1957 Lah. 940; 1976 SCMR 75; 1972 SCMR 253;

1982 SCMR 202; 1971 SCMR 719; 1986 SCMR 1368; PLD 1973 Lah. 359;

1982 CLC 357; 1987 MLD 2269; 1996 SCMR 1581; 1994 MLD 1480;

1984 CLC 2973.

Mr. Jari Ullah Khan, Advocate for'Petitioner. Syed Farooq Hassan Naqvi and Mr. Muhammad Aslam Buttar, Advocates for Respondent No. 2.

Date of hearing: 13.12.2000.

judgment

Muhammad Shafi, father of the petitioner was Lambardarof Chak No. 680/21 G.B. Tehsil Kamalia District T.T. Singh. On his death, the said post fell vacant and the issue of appointment of Lambardar arose. The Deputy Commissioner/Collector, T.T. Singh invited applications. The petitioner and number of other persons made applications. The matter was processed by the Tehsildar who recommended the petitioner. In this process, number of other candidates withdrew their candidature in favour of Abdul Salam, Respondent No. 2. After hearing the parties concerned, the Deputy Commissioner/Collector appointed the petitioner on 24.4.1995 that he being the eldest son of the deceased Lambardar had a preferential right 'over others. Abdul Salam, Respondent No. 2 challenged that order by filing appeal thereagainst which was dismissed by the Commissioner, Faisalabad on 8.4.1996. He then filed a revision petition before the Board of Revenue which was accepted by the Senior Member/Member (Revenue) Board of Revenue on 3.8.1998 for the view taken by him that the petitioner herein being an employee of Agriculture Development Bank of Pakistan cannot devote his full attention in performing the duties of Lambardar who is liable to be transferred from one place to the other. This order has been assailed by the petitioner through this petition under Article 199 of the Constitution.

1. It is contended by the learned counsel that the service of the petitioner in A.D.B.P. does not in any way disqualify him from being appointed as Lambardarand that despite the declaration by the Shariat A.pr dlr ;«i Bench of Supreme Court as to rule of rimogeniture in Maqbool Aii.H'.'-J Qureshi vs. The Islamic Republic of Pakistan (PLD 1999 SC 484), the petitioner being the eldest son of the deceased Lambardar was entitled to preference and appointment. He has placed reliance upon Nawab Sajjad Ali Khan v. Ch. Fazal tlahi, Speaker Legislative Assembly etc. (PLD 1957 Lahore 940) and few other precedents of the Board of Revenue of the period prior to the judgment of Shariat Appellate Bench.

2. The learned counsel for Respondent No. 2, on the other hand, supports the view taken by the learned Member, Board of Revenue and contends that rule of primogeniture having been found as repugnant to injunctions of Quran and Sunnah in Maqbool Ahmad Qureshi's case (supra), the petitioner cannot seek preference in the matter of appointment as Lambardar and that in any case such rule was of a directory nature and had no imperative force and that he being in the service of A.D.B.P. is liable to transfer from one place to other, the view taken by the learned Member is amply justified by the circumstances. According to him, the findings recorded by the learned Member, Board of Revenue that Respondent No. 2who owns more land in the village can perform the duties effectively his appointment cannot be interfered with in writ jurisdiction. It is further contended that Liaquat Ali had even defaulted in the payment of land revenue and is thus, disqualified for the post. In support of his above contentions, reliance is placed on Ghulam Hussain vs. Ghulam Muhammad and another (1976 SCMR \75), Muhammad Shaft vs. Member (Revenue), Board of Revenue, Punjab Lahore and 2 others (1972 SCMR 253), Abdul Ghafoor vs. The Member (Revenue), Board of Revenue and another (1982 SCMR 202), Abdul Wahid vs. The Member, Board of Revenue and another (1971 SCMR 719), SIiarafDin us. Qazi Abdul Jalil and another (1986 SCMR 1368), Allah Ditto vs, Mian Nasir Ahmad and another (PLD 1973 Lahore 359), Masood Ahmad vs. Member (Revenue), Board of Revenue and others (1982 CLC 857), Nazir Ahmad vs. Roshan Din and others (1987 MLD 2269) and Muhammad Yousaf vs. Member, Board of Revenue and 4 others (1996 SCMR 1581).

3. Although, Rule 19(2) of West Pakistan Land Revenue Rules, 1968 concedes some preference in favour of the eldest son yet the said rule has always been considered of a directory nature in its effect. In Ghulam Hussain's case (supra), it was observed by their ordships that "on its proper construction far from conferring any right much less a legal right, the rule at best is directory which provides a guideline for the choice of the successor Lambardar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligible under Rules. It would be wrong to impart greater efficacy to the above rule. Moreover itness cannot be judged by any objective standard; it is primarily a subjective process, in which the opinion of the appointing authority is the crucial factor. Even on general principles, the appointment rests in the discretion of the graded hierarchy of Revenue Officers created by the West Pakistan Land Revenue Act, who because of their experience and training are better qualified to make the choice than the Courts of general jurisdiction." In NazirAhmad's case (supra), the claim of the petitioner based on primogeniture rule was rejected and repelled observing that "the office of Lambardar is an administrative arrangement to serve as a link between the villagers and the ocal administration. The petitioner had therefore, no vested right to get the appointment." Even prior to the declaration by the Shariat Appellate Bench of the Supreme Court in Maqbool Ahmad Qureshi's case (supra), in Muhammad Younus vs. The Member (Judicial-I), Board of Revenue, Punjab Lahore and others (1994 MLD 1480), the view taken by a learned Judge of this Court was that the appointment of Lambardar like other appointments must be made on merits. Thus, being son of the Lambardarcannot be accorded a primacy in the matter of appointment and other factors are also to be kept in view by the revenue authority.

4. It has also been the consistent view of the superior Courts that no one has a right to claim appointment on the basis of any preference and the main criteria is the fitness of the person qua the responsibilities and duties. In Abdul Wahid's case (supra), it was observed that matter of appointment of Lambardar was essentially of an administrative nature and claim to that office could not be laid as of right. In Muhammad Shaft's case (supra), the same principle was reiterated. In Allah Ditta's case (supra), the petition was dismissed by following the above mentioned principle. In Masood Ahmad's case (supra), again, following the above mentioned rule, the petition wasdismissed. In Ch. Ghulam Ullah vs. Board of Revenue, West Pakistan Lahore and 4 others (1984 CLC 2973), the petition was dismissed by reiterating the aforesaid rule. In Muhammad Yousufs case (supra), order of the learned Member Board of Revenue was set-aside by the High Court in writ jurisdiction which was reversed by their Lordships that the Board of Revenue had acted lawfully in the matter and that "Law was fairly well settled that appointment of Lambardar rests in the discretion of the Revenue Authorities and as a general rule, an absentee is not to be appointed as a Lambardar particularly when a suitable candidate is available. The view taken by the learned Member was in accord with the settled law and based on correct appreciation of legal and factual position and the learned Judge was not quite right in taking the contrary view and holding that the respondent is not to be discarded simply because he had his permanent abode in the Chak."

5. In the present case, the petitioner is admittedly though a son of deceased Lambardar,is employed with Agricultural Development Bank of Pakistan. On consideration of the matter, keeping in view the nature of the duties and responsibilities, the learned Member did not endorse his appointment as Lambardar that "for all practical purposes, he is an absentee. Further his absence from the said revenue estate is not of temporary nature. Being in service, he can be transferred even further away. Even the institution of 'Sarbrah Lambardar' is not meant to cover such permanent absence. Absence from the revenue estate, to my view, is a fatal disability. The petitioner owns more land in the village and can perform the duties " effectively." He thus, ordered the appointment of Abdul Salam, Respondent No. 2. Being at the helm of the hierarchy, he found the petitioner to be not a fit person for appointment as Lambardar and appointed Respondent No. 2. The contention of the learned counsel for the petitioner that being a Government servant is not a disqualification by itself for the appointment as Lambardar may have some merit but all the circumstances in determining the fitness of the person for the post become relevant. The assessment of these considerations pursuaded the learned Member, Board of Revenue to make appointment of the Respondent. In Muhammad Yousufs case (supra), the appointment of the person who was likely to be absent from the village was not approved by the Board of Revenue. The said order was interfered with by this Court but on appeal, the order of the learned Member, Board of Revenue was restored by their Lordships of the Supreme Court that the matter "rests exclusively in the domain of the revenue authorities who because of their experience and training are in a better position to make a suitable choice than the Courts of general jurisdiction."

The choice made by the Board of Revenue in the facts and circumstances of the case does not warrant interference by this Court in writ jurisdiction.

For the above reasons, this petition is dismissed. No order as to costs.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 173 [Multan Bench, MuitanJ

Present:muhammad akhtar shabbir, J. KHAN MUHAMMAD-Appelknt

versus

MAHMOOD and 2 others-Respondents R.F.A. No. 35/2000, heard on 10.10.2000. Civil Procedure Code, 1908 {V of 1908)-

—-O.VI, R. 11, Ss. 115 & 96--Rejection of plaint by revisional Court in exercise of its revisional jurisdiction-Competency to file appeal against rejection of plaint-Plaint having been rejected in exercise of revisional jurisdiction and not in exercise of original jurisdiction, appeal against impugned order in terms of S. 96 C.P.C. was not maintainable-Appellant however, would have option to avail alternate remedy under the law-­Appeal being incompetent was dismissed in circumstances. [P. 174] A

Ch. Abdul Ghani, Advocate for Appellant.Ch. Muhammad Hussain Jahania, Advocate for Respondents.

Date of hearing: 10.10.2000.

order

This R.F.A. has been filed to call in question the judgment and decree dated 2.10.1999 passed by Addl. District Judge, Khanewal whereby, the application of the respondents under Order 7, Rule 11 CPC was accepted and the suit filed by the appellant for possession through pre-emption rejected.

1. The facts giving rise to the present appeal are that Khan Muhammad appellant has filed a suit for possession through pre-emption on a sale of land measuring 8 Kanals situated in Chak No. 133/16-L, Tehsil Mian Chanu against the defendants/respondents. During the trial, the respondents filed an application under Order 7, Rule 11 CPC before the trial Court. The Court obtained reply of the application. Two applications under Order 1, Rule 10 CPC and Order 6, Rule 17 CPC were filed by the plaintiff and the trial Court vide order dated 8.5.1999 dismissed the application filed by the respondents under Order 7, Rule 11 CPC and accepted both the applications under Order 1, Rule 10 & Order 6, Rule 17 CPC filed by the plaintiff/appellant (herein).

2. Feeling aggrieved the respondents preferred a revision petition which came up for hearing before the District Judge who vide the impugned order accepted the application under Order 7, Rule 11 CPC filed by the defendants/respondents (herein) and rejected the plaint.

3. At the very outset, learned counsel for the respondents objected that the judgment impugned has been passed in revisional jurisdiction of the District Court, therefore, the appeal in the present form against the revisional judgment is not maintainable. He relies on case of Abdul Razaq vs. Custom Authority (1995 CLC 1435).

4. On the other hand, learned counsel for the appellant opposed the arguments of learned counsel for the respondents contending that the Addl. District Judge has passed the judgment in exercise of its original jurisdiction, therefore, appeal under Section 96 CPC against the rejection of a plaint is maintainable. He referred Sections 17 and 18 of the Civil Court Ordinance, 1962.

5. I have heard the arguments of the learned counsel for the parties and perused the record.

6. The application under Order 7, Rule 11 CPC was filed by the respondents in the trial Court which was dismissed and that order of dismissal was assailed by the respondents in revision and the Addl. District Judge in exercise of its revisional jurisdiction rejected the plaint under Order 7, Rule 11 CPC. Under Section 96 CPC, appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. The appeal to the High Court would lie only if the Court by exercising original jurisdiction has passed the judgment. In the instant case the Addl. District udge has rejected the plaint in exercise of his revisional jurisdiction and not in exercise of his original jurisdiction because the trial Court had dismissed the application filed by the respondents for rejection of plaint under Order 7, Rule 11 CPC. The arguments advanced by the learned counsel for the respondents having force, therefore, in agreeing with the dictum laid down in the case of Abdul Razaq (supra)by the learned counsel for the respondents 1 am of the view that the present appeal is not maintainable against the judgment passed by the Addl. District Judge in exercise of its revisional jurisdiction, hence the same is dismissed. However, the appellant may avail of the alternate remedy under the law and the office is directed to return the original documents/certified copies of he annexures to the learned counsel for the appellant after retaining the photo-stat copies of the same.

(A.A. J.S.) Order accordingly.

PLJ 2001 Lahore 175

Present: MAULVI ANWAR-UL-HAQ, J. Kh. IRFAN HAMID-Petitioner

versus Kh. AZIZ ALAM and 13 others-Respondents

C.R. No. 87 of 1987, heard on 11.12.2000. Specific Relief Act, 1877 (I of 1877)--

—S. 42-Civil Procedure Code (V of 1908), S. 115-Execution of sale-deed in favour of petitioner in collusion with attorney of respondent lady in violation of terms of agreement-Such sale-deed was set aside by two courts below-Validity-Specific performance has to be in accordance with law-Partial performance of contract in the form of impugned sale-deed could not be sustained-Sale in favour of petitioner being not in terms of agreement to sell was wholly without lawful authority-Document has to be strictly construed, therefore, its recitals could not be stretched to cover the plea to the effect that power of attorney could be utilised for artial sale in favour of original purchaser or his successors-Judgments and decrees of courts below in decreeing suit on behalf of respondent lady (Plaintiff) being in accordance with law, no interference would be warranted in the same. [Pp. 178 & 179] A, B &

1993 SCMR 804; PLD 1965 SC 651. Ch. Khurshid Ahmad, Advocate for Petitioner. Ch. Musthaq Ahmad KhanAdvocate for Respondents Nos. 12 & 13. Mian Nisar Ahmad, Advocate for Respondent No. 14. Respondents No. 1 to 11 proceeded ex-parte. Date of hearing: 11.12.2000.

judgment

Mst. Abida Khatoon, the predecessor-in-interest of Respondents Nos. 1 to 11 filed a suit against the petitioner and one Syed Sakhawat Ali. In the suit it was alleged that the said Abida Khatoon was the owner of land measuring 24 kanals 4 marlasin Tehsil and District Sialkot; that she agreed to sell the land to Major (R) Abdul Hamid. The price was fixed at Rs. 325/-per marla; that Abdul Hamid was to pay Rs. 40,000/- as earnest out of which Rs. 20,000/- were paid at the time of execution of agreement. The balance of Rs. 20,000/- was to be paid till 15.11.1971 failing which the agreement was to stand cancelled; that the agreement was to be performed within a year and six months; that during the said period Abdul Hamid could sell the land wholly or severally and in such an eventuality 2/3rd of the sale price was to be retained by Abida Khatoon; that to carry out the performance of agreement, a power of attorney was executed in favour of Sakhawat Ali; thatAbdul Hamid died about 7 months prior to the institution of the suit and the power of attorney stood revoked; that the petitioner a son of the said Abdul Hamid, in collusion with the said attorney got a sale-deed in respect of 3 kanals 2 marlas of land registered in his favour and has thus committed a fraud on the said plaintiff. She alleges that the sale was without consideration and the document is otherwise illegal and void. It was further alleged in the plaint that the petitioner was asked to treat the document as void and not to interfere in her ownership and possessory rights, whereupon he handed over the original sale-deed to the said plaintiff but later had again started interfering with the said rights. With these averments a declaration was sought that the sale-deed dated 12.5.1971 executed by the attorney in favour of the petitioner be declared to be illegal and ineffective upon the rights of the said plaintiffs. A permanent injunction was also sought restraining the petitioner from alienating the suit land. In his written statement the petitioner took the plea that Rana Muhammad Abdullah Advocate was paid from time to time a sum of Rs. 98.000/- by the petitioner and his late father. After the death of the said Abdul Hamid the petitioner requested Rana Muhammad Abdullah and the said Sakhawat Ah' to transfer the entire land in his name. However, Rana Muhammad Abdullah pursuaded him to buy only the suit land and that as and when he will be procuring the buyers they will be executing the sale-deeds directly in their favour and in this way the petitioner will save a lot of money. It was under the said advice that the sale-deed was executed. Regarding the original sale-deed he states that Rana Muhammad Abdullah being his Legal Advisoi has taken away the sale-deed. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 19.12.1975. A first appeal filed by the petitioner was heard by a learned Additional Distt. Judge, Sialkot who dismissed the same on 23.11.1986.

1. Learned counsel for the petitioner contends that the evidence on record has been misread by the learned Courts below particularly complains that the agreement and the power of attorney admittedly executed by Abida Khatoon had not been construed properly. Learned counsel for the respondents supports the impugned judgments and decrees passed by the learned Courts below.

2. I have gone through the copies of the record appended with theCivil Revision, with the assistance of the learned counsel for he parties. There is no denial in the plaint of the deceased lady that she had executed the agreement dated 21.2.1971 which is on record as Ex. P. 5 as also the power of attorney of the even date in favour of Sakhawat Ah' on 23.2.1971 which is Ex. P. 1 on the record. I have been taken through the agreement Ex. P. 5 by the learned counsel for the parties. I find that 24 kanals 4 marlasof land described in the agreement was agreed to be sold by Abida Khatoon to Major (R) Abdul Hamid. The consideration was settled at Rs. 325/- per marla. Abdul Hamid was to pay an earnest of Rs. 40,000/-. Out of this amount he had paid Rs. 20,000/- through a cheque dated 21.2.1971. The balance of Rs. 20,000/- of earnest money was to be paid upto 15.11.1971. The balance amount of consideration i.e. Rs. 1,17,300/- was to be paid on 15.9.1971 when the sale-deed was to be executed by Abida Khatoon in favour of Abdul Harold and it was to be registered. It was stipulated that in case the purchaser could not get the sale-deed registered then the earnest money shall stand forfeited in favour of the said lady on the cancellation of the agreement and in case she could not get the sale-deed registered then she would pay Rs. 40.000/- over and above the amount of Rs. 40,000/- received by her by way of earnest. The agreement then proceeds further. It states that in case within the said period of time if the purchaser (reference is to Abdul Hamid) enters into an agreement with some one for part of the land, then the lady will herself get a sale-deed executed in favour of the said purchaser (reference is to the person to whom the sale had been arranged to be made by Abdul Hamid). It was further agreed that the consideration that would be paid by the said purchaser would be retained by Abida Khatoon to the extent of 2/3rd while l/3rd shall be retained by Abdul Hamid. It has further been stated in the agreement that the subsequent sale shall also be subject to the same terms as are applicable to Abdul Hamid under the agreement, and in case the said subsequent purchaser would not get the sale-deed registered during the said period, then his advance amount shall also stand forfeited.

3. It will be pertinent here to refer to the said power of attorney as well at this stage. According to the power of attorney Ex. P. 1 Abida Khatoon proceeded to appoint Sakhawat Ah' as her attorney. The document recites that she had agreed to sell 24 kanals 4 marlasof land to Abdul Hamid. The attorney was authorised to sell the land to Abdul Hamid or on the instructions of Abdul Hamid to sell the land as a whole or in parts to such person or persons as Abdul Hamid directs and to collect the consideration after adjustment of earnest money. The power of attorney then further proceeds to state that Rana Muhammad Abdullah, Advocate who is a general attorney of the lady under the instructions of Abdul Hamid settles the transaction of the whole of suit land or a part thereof under instructions of Abdul Hamid. Then Sakhawat attorney shall act on the instructions of said Rana Muhammad Abdullah.

4. The said Abdul Hamid had died on 14.4.1971. On 1.5.1971 the said Sakhawat Ali proceeded to execute the impugned sale-deed in favour of the petitioner which was got registered on 12.5.1971. Copy on record is Ex. P. 2. The sale has been made in respect of 3 kanals and 2 marlasof the land.

5. A reading of power of attorey Ex. P.I and the agreement Ex. P. 5 together would show that Abdul Hamid had agreed to enter into a contract for sale of 24 kanals 4 marlasof land with Abida Khatoon on terms and conditions settled there. It is also apparent that Abdul Hamid was to get the entire land transferred in his favour. He was permitted to split up the bargain only tf he was himself not to purchase the land but was to sell the same to some third party. In such an eventuality the matter was to be settled with the lady who was to be paid 2/3rd of the price to be received from such a third party. The attorney was also either to sell the entire land in favour of Abdul Hainid and it was only in terms of the agreement that if the land was to be sold to a third party; that, the bargain was to be split up and the attorney was to act in the matter under the instructions of Rana Muhammad Abdullah, Advocate. Learned counsel for the petitioner argues that being an heir of Abdul Hamid the purchaser, the petitioner had a right to seek specific performance of the contract. There cannot be possibly any cavil with the proposition being so propounded by the learned counsel. However, the specific performance has to be in accordance with law of the land. Learned

. counsel has not been able to explain as to on what principle of law or equity can the partial performance of contract in the form of the impugned sale-deed be sustained in favour of his client. Proceedings on the same analogy

. the attorney namely, Sakhawat All had no authority to execute or to get a sale-deed registered in favour of Abdul Hamid and consequently to any of his heirs of only a portion of the land. Under the agreement and the power of attorney the land so far as its sale to Abdul Hamid was concerned, had to be of the whole land and not of a part thereof. On this account the sale in favour sf the petitioner is wholly without lawful authority.

1. As to the performance and right to seek performance of the contract is concerned, suffice it to say that under the agreement Abdul Hamid was to pay a sum of Rs. 4Q,000/- as earnest money and then he was to pay the balance amount of Rs. 1,17,300/- upto 15.9.1972. The balance of the earnest money i.e. Rs. 2Q,OOQ/- was to be paid upto 15.11.1971. A are look on the agreement would show that the operation was to start after the payment of the said earnest amount. It was after the payment of the earnest money that upto 15.9.1972 Abdul Hamid could have either get the land transferred in his own name on payment of the agreed price or within the same stipulated period to arrange the sale of knd in parts to a third party. In the present case learned Courts below have very rightly concluded that the transaction smacks of fraud and malafides being based on

collusion with the said attorney of the petitioner who have tried to deprive j the deceased lady of the land without even paying any consideration.

1. Ch. Mushtaq Ahmad Khan, learned counsel for the respondents has drawn my attention to cases of Razia Sultana Bano and 4 others vs. Muhammad Sharif and 9 others (1993 SCMR 804) and Wall, Jahania and Allah Dad us. Manak Ali, Lai and Murad (PLD 1965 SC 851) to urge that the sale in question was a partial performance which is not permissible under 'the law. So far as the power of attorney is concerned, by aow it is well settled | that document has to be strictly construed and as such its recitals cannot be stretched to cover the arguments of the learned counsel for the petitioner to the effect that power of attorney could be utilised for partial sale in favour of the original purchaser or his successors.

2. In view of the above discussion no case has been made out for interference with the impugned judgments and decrees within the four corners of Section 115 CPC. This Civil Revision is accordingly dismissed with

costs. '

i AA. J.S.) Revision dismissed.

PL.J 2001 Lahore 179

Present: SAYED ZAHID HUSSAIN, J. ABDUL JABBAR-Petitioner

versus PUNJAB LABOUR APPELLATE TRIBUNAL 4 and others-Respondents

W.P. No. 6206 of 1989, decided on 15.12.2000. Industrial Relations Ordinance,1969 (XXIII of 1969)--

—- S. 25-A--Ldmitation Act (LX of 1908), Ss. 5 & 14-Constitution of Pakistan (1973), Art. 199--Grievance petition-Condonation of delay by Labour Court-Dismissal of grievance petition by Labour Appellate Tribunal on the ground of bar of h'mitation--Validity~When forum concerned condones delay, same is not to be interfered with by higher forum unless exercise of such discretion by lower forum was found to be illegal and arbitrary-Where Labour Court had for sufficient reasons condoned delay in filing grievance petition by petitioner, there was no illegality nor the approach of Presiding Officer of Labour Court was arbitrary which could warrant interference in appeal by Labour Appellate Tribunal-Labour Appellate Tribunal on consideration of limitation point alone had ordered dismissal of grievance petition while Labour Court had considered point of limitation along with merits of case in the light of evidence on record-Order of Labour Appellate Tribunal dismissing grievance petition was thus, not sustainable-Labour Court had rightly not granted back benefits to petitioner on the ground that he had succeeded only on technical ground and not on merits-Order of Labour Court accepting petitioners grievance petition on the ground that his dismissal by an incompetent person was illegal, was maintained in circumstances.

[Pp. 182 to 184] A, B & C

PLD 1988 SC 53; 1995 SCMR 1655; PLJ 1997 SC 967; PLD 1990 SC 787;

1991 SCMR 2087; 1992 SCMR 2169; 1992 PLC (C.S.) 133; 1990 SCMR 1713;

1993 SCMR 2177; 1996 SCMR 315; 1980 SCMR 722; 1994 SCMR 960; 1995

SCMR 1655; 1991 SCMR 2087.

Mr. S. M. Tayyab, Advocate for Petitioner.

Mr. Mushtaq Ahmad Khan, Advocate for Respondents.

Date of hearing: 11.12.2000.

judgment

The petitioner, who was Cashier with the respondent Bank was dismissed from service, which order was challenged hy him before the Punjab Labour Court No. 4, Faisalabad and was ordered to be reinstated vide order dated 27.4.1989 without back benefits. Both the parties challenged that order by filing appeals before the Punjab Labour Appellate Tribunal. On 26.9.1989, the appeal filed by the petitioner was dismissed whereas the appeal filed by respondent/Bank was accepted by the learned Labour Appellate Tribunal. This is a writ petition against the same, which arises in the background brief.}' stated below :--

1. A case FIR No. 37/81 was registered on 25.3.1981 against the petitioner attributing breach of trust. He was arrested, confined to jail, was sent up for trial before the Special Military Court No. 46 but was acquitted on 22.2.1984. He was however, released from jail on 15.4.1985. On 8.7.1981 he had been charged sheeted by the respondent/bank and was dismissed on 10.12.1981 observing that his explanation was not satisfactory. It is stated that on his release from jail, he submitted a departmental appeal dated 23.4.1985, having not favourable response to the same filed a civil suit, which was dismissed on 28.1.1987. He then filed an appeal, which was withdrawn on 12.11.1987 from the Court of Additional District Judge in view of the judgment of the Supreme Court that the Labour Court had the jurisdiction in the matters of redressal of grievances of employees of Banks. He then served a grievance notice and filed a petition before the Labour Court accompanied by an application under Sections 5 and 14 of the Limitation Act The petition was tried and heard by the Labour Court, which accepted the same on 27.4,1989 directing reinstatement of the petitioner but declined the back benefits to him. As mentioned above, both the parties appealed against that order, when the appeal filed by the petitioner that he was entitled to the back benefits was dismissed and the appeal of respondent/bank against his order of reinstatement was accepted by the Punjab Labour Appellate Tribunal on 26.9.1989. The learned Labour Tribunal decided the matter mainly on the ground that he had approached the Labour Court much after the limitation, which could not be condoned.

2. It is contended by the learned counsel for the petitioner that soon after the registration of the case, the petitioner was arrested and sent to jail and on his release without wasting time, he placed his grievance petition before the Employer and as the position with regard to the jurisdiction^of the Labour Court in such matters at, that time was not dear, he filed a civil suit and soon after when the judgment in Iftikhar Ahmad and others v, President, National Bank of Pakistan and others (PLD 1988 SC 53), came to light and knowledge, appea! pending before the Additional District Judge was withdrawn and petition was filed before the Labour Court, which Court for adequate reasons condoned the delay. It is contended that the order of the Labour Court condoning the delay was not open to interference by the Punjab Labour AppeEate Tribunal. Relies in this respect upon Naxeem Ahmad Chaudhry vs. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others (1995 SCMR 1655). It is further contended that dismissal of the petitioner was illegal inasmuch as no inquiry was conducted into the allegations against him and that the order of dismissal was passed by the Vice-President of the Bank whereas the competent authority in his case was Senior Executive Vice-President. It is contended that the order passed by the Labour Court reinstating him in to service was perfectly justified and valid, which has been set aside by the learned Labour Appellate Tribunal on erroneous and illegal premises. Reliance is placed on Muslim Commercial Bank Ltd. v. Mahmood Ahmad Butt etc. (PLJ 1997 SC 967). It is also contended that the petitioner was and is entitled to the back benefits on reinstatement into service. In support of this contention, the learned counsel relies on Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another(PUD 1990 SC 787), Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087) and General Manager, National Radio Telecommunication Corporation, Haripur District Abbotabad v. Muhammad Aslam and 2 others (1992 SCMR 2169).

3. On the other hand, the learned counsel for the respondent/Bank supports the order of the Labour Appellate Tribunal and contends that grievance petition was barred by time and the delay could not be condoned by the Labour Court, which order has been rightly interfered with by the Labour Appellate Tribunal. It is further contended that mere fact of acquittal from a criminal case does not wash away the allegation of mis-conduct as both proceedings can be taken independent of each other. According to him, the finding of fact recorded by the learned Labour Appellate Tribunal cannot be interfered with by this Court. He relies on Muhammad Bahsir v. Auditor General, Pakistan (1992 PLC CS 133), Allied Bank of Pakistan Limited v. Ejaz Ahmad Abbasi and another (1990 SCMR 1713), Talib Hussion v. Anar Gul Khan and 4 others (1993 SCMR 2177) and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others (1996 SCMR 315).

4. Un-doubtedly if condonation of delay in filing the petition beforthe Labour Court was not allowed by the Labour Court, the petition would have been time barred. The petitioner bad remained in jail till he was released therefrom on 15.4.1985, whereafter, he took up the matter with his employer and then filed a civil suit. While his appeal against the dismissal of civil suit was pending before the lower appellate Court, judgment in the case of Iftikhar Ahmad and others (supra) was delivered by their lordships (15.4.1987), which gave right to the bank employees for approaching the Labour Court. This prompted the petitioner to withdraw the appeal and to approach the Labour Court by filing a petition under Section 25-A of Industrial Relations Ordinance, 1969. An obj©eik» had been raised before the Labour Court that the petition was time barred. The Labour Court conscious of the same and taing note of the events preceding the filing of the petition by the petitioner condoned the delay in instituting the same. It also came to the conclusion that the order of dismissal of the petitioner was void ab initio not having been passed by the competent authority. In Irtiqa Rasool Hashmi v. Water and Power Development Authority and another (1980 SCMR 722) it was observed that "the question whether limitation should not be condoned lies within the discretion of the authority before whom a matter is agitated and this discretion cannot be interfered with unless it has been exercised illegally or arbitrarily". In Water and Power Development Authority v. Zahoor Ahmad (1994 SCMR 960) the deiay in filing the appeal was condoned by the Service Tribunal and it was observed by their lordships that "the Tribunal had the jurisdiction to condone the delay, which it did" and the Court does not generally examine the question of condonation of delay. In Naseem Ahmad Chaudhry's case (1995 SCMR 1655), in which case the implication of the judgment of Supreme Court in Iftikhar Ahmad and others case (supra) came to be considered, it was observed that the conclusion of the Appellate Tribunal that "the delay was wrongly condoned by the Labour Court is not sustainable in law" and while allowing the appeal of the appellant/employee, the matter was remanded to the learned Tribunal for decision on merits.

5. From the above mentioned precedents, the principle deducible is that when a forum concerned condones the delay, it is not to be interfered with by the higher forum unless the exercise of such a discretion by the lower forum is found to be illegal and arbitrary. In the present case, the learned Labour Court had for sufficient and adequate reasons condoned the delay in filing the appeal by the petitioner. There was no illegality nor the A approach of the Presiding Officer of the Labour Court was arbitrary which could warrant interference in appeal by the learned Labour Appellate Tribunal. Needless to mention that position with regard to the forum for grievances was somewhat obscure prior to the case of Iftikhar Ahmad (supra).

6. It was found by the Labour Court that the petitioner being Cashier had been dismissed without inquiry into the allegations and that too by the Vice-President who was not the competent authority. Admittedly the petitioner was a Cashier in the Bank. In Muslim Commercial Bank's case (supra) Mahmood Ahmad Butt who was a Cashier in the same Bank had been dismissed from service. He approached the Labour Court. His petition however, was dismissed, but succeeded before the Labour Appellate Tribunal, when his appeal was accepted, reinstating him without back benefits. The said judgment of the Tribunal was challenged by both the parties in writ petition before this Court, which was dismissed. The parties then took up the matter before the Supreme Court. The contention of the learned counsel for Mahmood Ahmad Butt before their lordships was that Vice-President/Zonal Chief was not competent to dismiss him from service and accordingly it was held that" if the person who has signed the dismissal letters, was not competent to dismiss the employees in question, such disability cannot be removed by authorising him under a power of attorney to exercise the power of dismissal". This is how the Labour had viewed the matter and ordered the reinstatement of the petitioner but without back benefits. There was thus no good justification to have interfered with such an order of the Labour Court by the Labour Appellate Tribunal.

7. There is no cavil with the proposition that criminal prosecution and the departmental proceedings can be taken independent of each other and such a contention does find support from the case of Muhammad Bashir (supra) (1992 PLC CS 133), Talib Hussain (supra) (1993 SCMR 2177) and Mir Nawaz Khan (supra) (1996 SCMR 315). In the present case, it is not acquittal of the petitioner by the Special Military Court itself for his reinstatement. The learned Labour Court had examined the matter on its merits and ordered his reinstatement. As mentioned above, the Labour Appellate Tribunal mainly considered the question of limitation and set aside the order of the Labour Court that the limitation should not have been condoned and did not advert to the question of competency of the person concerned in ordering dismissal of the petitioner. The order of the learned Labour Appellate Tribunal is therefore, not sustainable.

8. The contention of the learned counsel for the petitioner that the Labour Court should have allowed the back benefits to the petitioner however, is not tenable in the facts and circumstances of the case. In Qadeer Ahmad's case (supra),it was observed that "where however, the order of reinstatement is conditional, as was in the case of the appellant that an enquiry could still be made into his conduct and his conduct was considered such as to call for a departmental enquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct If he was found at fault then the competent authority could justifiably deny him part of the back benefits. Mere setting aside of the order of dismissal irrespective of whether it is set aside conditionally or unconditionally, would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the enquiry on the same charges would also disentitle him, till the conclusion of the enquiry and the determination of the responsibility, to back benefits". The same principle has been followed in MuhammadBashir and others's case (supra) (1991 SCMR 2087) and General Manager, National Radio Telecommunication Corporation, Haripur District Abbottabad (supra) (1992 SCMR 2169). In the present case, the Labour Court on consideration of the facts and circumstances of the case had taken the view that the petitioner had succeeded on technical points and was not entitled to back benefits. Such a view is eminently just and in consonance with the above precedents. He was thus rightly declined back benefits. Much reliance was placed by the learned counsel for the petitioner on the judgment of their lordship in the case of Muslim Commercial Bank Ltd. (supra). Keeping in view the identity of the matter to a great extent, I am inclined to pass a similar order as in the cited case that "if the authorities of the bank are still anxious to proceed against the petitioner according to law, it would be open to them to take action against him by giving a reasonable opportunity of defending himself."

9. This petition is accepted declaring the order of Punjab Labour Appellate Tribunal as illegal and without lawful authority and restoring that of the labour Court No. 4, Faisalabad leaving it open for the respondent/bank to proceed against the petitioner in accordance with law if so desired. No order as to costs.

(A.A.J.S.) Petition accepted.

PLJ 2001 Lahore 184

Present:dr. munir ahmad mughal, J.

MUHAMMAD YOUNAS KHAN--Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE SIALKOT and 8 others-Respondents

W.P. No. 1490-7 of 2000, decided on 8.12.2000. Criminal Procedure Code, 1898 (V of1898)-

—Ss. 154 & 173- Constitution of Pakistan (1973), Art. 199~Non- registration of criminal case-Remedy-Duty of Police-When a person comes to Police Station and makes statement relating to commission of an offence, station House Officer is bound to record his version at verbatim and thereafter if from the contents it appears that non cognizable case is made out to inform or notify the same to informant so that he can seek his remedy before competent Court and if cognizable case is made out from contents of F.I.R. to take further proceedings in accordance with law-Where however, as a result of investigation F.I.R. was found to be false, then matter should be presented before competent Magistrate to seek order of cancellation of the same and if contents were found true, report under S. 173 of Cr.P.C. is to be submitted to competent Court within a fortnight-Police having not acted in accordance with law, respondent was directed to record statement of petitioner at verbatim and proceed further strictly in accordance with law. [P. 190] A

Ch. Muhammad Yaqoob Sabir, Advocate for Petitioner. Sh. Shahid Hussain, A.A.G. for Respondents. Date of hearing: 29.11

order

The petitioner seeks that non-arrest of Respondents Nos. 2 to 8 by the DSP City Sialkot and not investigating the matter is illegal, without lawful authority and of no legal effect and that the Respondent No. 1-A be directed to arrest Respondents Nos, 2 to 8 and to investigate the matter in accordance with law and to challan them in the Court in case FIR No. 184 dated 23.7,1997 under Section 302 PPC registered with P.S. Sialkot Cantt:

1. The grievance is based on the allegation that the petitioner is father of Naukheez Anjum alias Chand, who was very disobedient to the petitioner and inspite of repeated requests made by the petitioner joined a very bad and ill reputed society and refused to leave the said society and that his son Naukheez Anjum alias Chand alongwith Adil, Bilal, Faisal and Essai Mithu were taken by the police for appearance in the Court of Dlaqa Magistrate P.S. Cantt : Sialkot. The three accused Naukheez Anjum alias Chand, Adil and Bilal dodged the local police and went away and the local police declared them as proclaimed offenders, and that the local police arrested the petitioner on the ground that he helped the accused persons dodging the local police and that the Respondents Nos. 2 to 8 made a plan and prepared conspiracy to murder my son Naukheez Anjum alias Chand and his friend Bilal and for this purpose they pursuaded them and invited them in a room situated at Godhpur and Respondents Nos. 2 to 8 due to pre­planned murdered both and their dead-bodies were thrown at road side at Godhpur and at the direction of Respondent No. 2 Tariq Hafeez Joyia, the then D.S.P City the dead-bodies from the road side to Khawaja Safdar Road which was in the territorial jurisdiction of the Respondent No. 2 and then to fulfil their evil designe and to complete their plan a false case was registered by Nawab Khan, the then S.H.O. P.S. Cantt Sialkot vide FIR No. 184/97. During investigation Respondents Nos. 2 to 8, who were very influential persons, tried to involve one Adil another friend of this son Naukheez Anjum alias Chand and Bilal illegally and during investigation it was shown that Naukheez Anjum alias Chand and Bilal were murdered by Adil which is absolutely illegal and false and that his son was murdered through a plan hatched by the Respondents Nos. 2 to 8 and conspiracy made between Respondents Nos, 2 to 8 for murder of his son and Bilal and during investigation it was shown that his son and Bilal were murdered by Adil who was a close friend of his son and that the said Respondents Nos. 2 to 8 after showing Adil as accused person in the murder of his son Naukheez Anjum alias Chand and Bilal was also murdered by them and he was shown murdered in police encounter and that the Respondents Nos. 2 to 8 were very clever persons. They very cleverly got the petitioner arrested in the false allegation that he helped the three accused proclaimed offenders who went away after dodging the police and thereafter they murdered his son and his friend Bilal and a false case of murder was registered and during investigation they, due to their influence, succeeded in writing "zimni" that Adil is accused of case of murder of Naukeez Anjum alias Chand and Bilal and thereafter Adil was also murdered in a police encounter and that the petitioner had no concern with this son when he became disobedient with the petitioner and petitioner made him "Aaq" and refused to allow him to come to his house and the petitioner did not want to see him neither in jail nor on any date of hearing of his case and that now his son Naukeez Anjum alias Chand and Bilal have been murdered by the Respondents Nos. 2 to 8 so he being aggrieved person made application to the G.O.C 15 Div. Headquarter Sialkot Cantt: and have requested the said Agency to do complete justice with the petitioner and accused Respondents Nos. 2 to 8 be arrested and they be investigated by the police for the murder of his son Naukheez Anjum alias Chand and his friend Bilal and that the petitioner moved application before S.S.P. Sialkot but all in vain. The Military authority directed the petitioner to go and see the D.S.P. City Sialkot on 18.7.2000. In compliance the petitioner appeared before the D.S.P. City Sialkot on 23.7.2000 and have narrated whole story and deposed that the son of the petitioner and Bilal were murdered by the Respondents Nos. 2 to 8 and deposed that it is absolutely false that the petitioner's son and Bilal were murdered by one Adil. This conspiracy has been planned only to save the skin of the Respondents Nos. 2 to 8 and that the D.S.P. City Sialkot advised the petitioner to go and file writ petition in the Hon'ble High Court and get arrested those persons. He also advised that the respondents are very influential and can only put hand on them with the order of the Hon'ble High Court, otherwise he cannot take any action against them or arrest them and to investigate the matter against them, and that the petitioner is greatly aggrieved by the illegal acts of the Respondents Nos. 2 to 8 that they have murdered his son and his friend Bilal and also they managed to illegally send the petitioner in jail and through a hatched plan and conspiracy murdered his son and they are the only real culprits, who have done such a crime and involved one Adil who was also friend of his son and Bilal and thereafter murdered the said Adil in a police encounter, and that the petitioner requested the D.S.P. and S.S.P. to arrest the accused persons but they have shown their inability and have not done their duty to arrest the actual accused persons and instead they have advised the petitioner to go to the Hon'ble High Court. In fact both the police officers are bound under the law to arrest the real accused persons and investigate the matter and ehallaned them before the Court but they have illegally refused to do so, and that the Respondents Nos. 2 to 8 are the actual persons who murdered the petitioner's son Naukheez Anjum alias Chand and Bilal, they should be arrested and investigated by the police and ehallaned and sentenced from the concerned Court and thai the act of Respondent No. 1 (S.S.P.) and Respondent No. 1-A (DSP City) is illegal, without lawful authority and is of no legal consequence and that the Respondent No. 1 and 1-A are competent to arrest the Respondents Nos. 2 to 8 and can investigate the matter to do complete justice but they have refused to do so, hence the act of respondent No. 1 and 1-A is illegal, without lawful authority and of no legal consequence.

2. Comments were called fr|om respondents and the same has been received from Respondent No. 1, in Vhich it has been stated that the factual position is that on 23.7.1997 at about 5.45. A.M. Inspector Nawab Khan SHO Police Station Cantt: Sialkot had lodged a complaint that during patrol duty he received a wireless message that two un-identified dead-bodies are lying on the side of the road and it appears that they have been done to death through violence. Accordingly he went there and found the dead-bodies lying. The persons who had assembled at that place identified the dead- bodies to be of Naukheez Anjum alias Chand and Muhammad Bilal who stood involved in a number of criminal cases.

3. On the written complaint of Malik Nawab Khan SHO Police Station Cantt Sialkot, Case FIR No. 184 dated 23.7.1997 under Section 302 PPC was registered against unknown culprits. The investigation was taken up by the local police. On 7.9.1997 SI Malik Nadeem the then SHO PS Kotwali informed SHO PS Cantt Sialkot that he arrested accused Adil Mehmood in Case FIR No. 318/96, who during interrogation disclosed that he had committed the murder of Naukheez Anjum alias Chand and Bilal.These facts were incorporated by SI Malik Nadeem in case Diary No. 36 dated 7.9.1997 in case FIR No. 318/96 PS Kotwari Sialkot. On the basis of confession of said accused Adil Mehmood, he was arrested in case FIR No. 184/97 PS Cantt Sialkot. Later on said accused Adil Mehmood was killed in an police encounter for which case FIR No. 238 dated 8.9.1997 u/S. 324/353/324/225/395 PPC was registered at PS Civil Lines. After due investigation, challan against Adil Mehmood was prepared on 10.9.1997 in case FIR No. 184/97 u/S. 302 PS Cantt Sialkot and the same was submitted in the Court of learned Sessions Judge, Sialkot, who vide order dated 26.2.1998 ordered as under :--

"This Court has recorded the statement of Muhammad Anwar LHC No. 1528 PS Cantt evidencing the death of solitary accused Adil Mehmood alias A'adla in this case. As such the case against the accused stands abated and is disposed of accordingly. File be consigned to the Record Room, after due completion."

It has also been stated in Para 8 of the comments that correct to the extent that an application of Muhammad Younis Khan (Petitioner) was received in this office vide letter No. 500/13/12/K/IS dated 11.7.2000 of Headquarters 15 Div. Sialkot Cantonment. This application was sent to DSP/Cily for enquiry and report. DSP City Sialkot conducted the enquiry and concluded that the contents of the application were not substantiated. The allegations against Respondents Nos. 2 to 8 were found false. Further it has been stated that on his application received through the Headquarters 15 Div: Sialkot Cantonment, DSP City Sialkot was directed to hold an enquiry. He concluded that the version of the petitioner is incorrect. The petitioner, during the course of enquiry, failed to produce any sold evidence in support of his version and that it is totally incorrect. DSP City Sialkot did not give any advice regarding filing of any writ petition in the Honourable Court. The petitioner's version that DSP City had told him that the Respondents Nos. 2 to 8 are very influential persons, is totally incorrect and that it is incorrect as per FIR No. 184 dated 23.7.1997 u/s 302 PPC PS Cantt, Naukheez Anjum alias Chand and Bilal were murdered by unknown accused persons. During the investigation of this case, it transpired that they were murdered by Adil Mehmood (who was subsequently killed in Police encounter vide FIR No. 238 dated 8.9.1997 u/S. 224/225/324/363/395 PPC PS Civil Lines Sialkot and that during enquiry conducted by DSP City Sialkot, the version of the petitioner was found false. He could not produce any solid evidence against the Respondents Nos. 2 to 8 for registration of case against them and that during the investigation of case FIR No. 184 dated 23.7.1997 u/S. 302 PPC PS Cantt Sialkot, accused Adil Mehmood was found guilty for the murder of Naukhez Anjum aliasChand and Balal. It may be submitted that during the investigation of this case, the petitioner or any member of his family had not deposed anything against Respondents Nos. 2 to 8. Even the I.O. had visited their house but they did not disclose before him against any police officials.

1. This shows that the version of the petitioner was duly received and found false by the police, the question is as to whether when a report of an evidence is made to the police, a formal FIR is to be recorded under Section 154 Cr.P.C. or not and an enquiry could be conducted by the police without such recording of FIR. The answer is no. The law is clear on the point that when a person comes to a Police Station and makes a statement relating to commission of an offence, SHO is bound to record his version at verbatim and thereafter if from the contents it appears that cognizable case is made out to inform or notify the same to the informant so that he may seek his remedy before the competent Court and if cognizable case is made out from the contents of the FIR, to take further proceedings in accordance a Iwith law. If in the investigation the FIR is found false, then the matter is to be presented before the competent Magistrate to order the cancellation of the same and if the contents are found true, a report under Section 173 Cr.P.C. is to be submitted to the competent Court within a fortnight.

2. In the present case, the police has not acted in accordance with law. As such, Respondent No. 1 is directed to record the statement of ;he petitioner at verbatim and proceed further strictly in accordance with aw.

3. The writ petition stands disposed of in the above terms. (A.A.T.) Orderaccordingly.

PLJ 2001 Lahore 189

Present: sayed zahid hussain, J, Ch. MUHAMMAD WASI and 9 others-Petitioners

versus

MEMBER (Colonies) BOARD OF REVENUE PUNJAB LAHORE--

Respondent

W.P. No. 740 of 1990, decided on 14.12.2000. Colonization of Government Lands (Punjab) Act/1912 (V of 1912)--

-—S. 30(2)-Constitution of Pakistan (1973), Art. 199--Grant of proprietary rights to petitioners-Petitioner paid price and got the conveyance deed registered-Board of Revenue, thereafter, re-opening that matter-Validity-Board of Revenue having recorded finding on due consideration of matter, the same had attained finality as the said ordered had not been challenged further-No basis for re-opening the matter, thus, existed- Assumptions of jurisdiction by Board of Revenue in such matter was, thus, not warranted by facts and circumstances of case-Transaction in question, having been matured and having come into existence as a result of judicial orders passed in the heirarchy was not open to scrutiny over again by Board of Revenue on the same allegation already dealt with property-Assumption of jurisdiction of Board of Revenue being illegal and without lawful authority, order impugned herein was setaside in circumstances. [P. 190] A

1986 CLC 2859; 1986 MLD 997; 1994 CLC 904; PLD 1966 SC 639; PLD 1975 SC 355 ref.

Mr. Skehzad Shaukat, Advocate for Petitioner. Mr. Muhammad Hanif Khatana, Addl.A.G. Date of hearing: 14.12.2000

judgment

Some state land was allotted to the petitioners under Grow More Food Scheme. They were put into possession. They claimed to have made huge investment, made the same culturable and tubewells installed for that purpose. It was in the year, 1962 that toe Government decided to grant proprietary rights to such allottees, the petitioners made their applications which, according to them, were scrutinized, processed and after due consideration the Collector of the District granted them the proprietary rights in the year, 1966. One Asghar AH Bhatti felt aggrieved of the same, filed an appeal which was dismissed by the additional Commissioner on 8.10.1966. He then challenged that order before the Board of Revenue by filing a revision petition which was rejected on 5.5.1967. It appears that the same person had made some application to the Governor of West Pakistan whereupon a report, was sent for from the Additional Commissioner, Faisalabad, the matter was than considered by the Board of Revenue and on considering the comments of the District Collector, declined to proceed in the matter and "filed" the same on 20.1.1967. Long thereafter, the Board of Revenue appear to have reopened the matter and directed to issue notice to the parties. Learning about the same, the petitioners made an application before the Board of Revenue objecting to the proceedings that the same were illegal and without jurisdiction, however, their application was rejected on 1.2.1990. The petitioners then challenged the assumption of jurisdiction by the Board of Revenue in the matter through this petition.

1. It is contended by the learned counsel for the petitioners that the matter had been examined and decided on judicial side up to the Board of Revenue, it was not open to the Board of Revenue to reopen the same purporting to act under S. 30(2) of the Colonization of Government (Land) Act, 1912 nor can exercise suo moto power under the law. According to him, the matter had become final on all aspects and there was no basis whatsoever to reopen the matter as the findings recorded in the earlier round and the report of Chairman Municipal Committee was that the land was out of Municipal Committee limits. Relies on Ghous Muhammad v. Member (Colonies), Board of Revenue, Punjab, Lahore (1986 MLD 997), Mat. Abeda Begum v. Government of Pakistan and others (1986 CLC 2859) and Shameer and others v. Member, Colonies Board and others (1994 CLC 904) to contend that assumption of jurisdiction in the matter by the Board was wholly unwarranted.

2. The learned Additional Advocate General, Punjab has entered appearance and has been heard in the matter.

3. There is no denial of the fact that the petitioners were granted proprietary rights. They had paid the price and registered conveyance deed was executed in their favour on 2.8.1967, after the matter had concluded in proceedings up to the Board of Revenue in the hierarchy. In his order the learned Member, Colonies had specifically noted that :—

"The learned Collector has mentioned in his order that the land in dispute are situated beyond the prescribed limits. He has based his finding on the certificate of the Vice-Chairman, Municipal Committee, Nankana Sahib and the Tehsildar. The learned counsel has produced nothing to support his version that the area is situated within five miles of the Municipal limits."

This was a finding recorded by the learned Member on due consideration of .he matter and had attained finality as the said order was not challenged urther. Even in the report, submitted by the Collector, and the Chairman of the Municipal Committee, the same position had been affirmed. There thus appear to be no valid basis for reopening of the matter by the Board of levenue.

1. The sanctity of the conveyance in favour of a party was noted by their lordships in Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and other (PLD 1966 SC 639) and The Majlisi-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abua Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 SC 355). In Ghous Muhammad's case (Supra) as well initiation of an inquiry after the registered conveyance had been executed was declared as without lawful authority. In Shameer's case (supra)also resumption of land which order was passed on erroneous assumption that the land was situated within the municipal limits as declared illegal. In Mst. Abeda Begum's case (supra) it was observed that once the Federal Government had dismissed the civil revision petition, the matter could not be reopened thereafter by exercising suo moto revisional jurisdiction available to it under the Evacuee Trust Property (Management and Disposal) Act, 1975. In this view of the matter, the assumption of jurisdiction by the Board of Revenue in the matter was not warranted by the facts and circumstances of the case. A transaction which had mutured and come into existence as a result of judicial orders passed in the hierarchy was not open to scrutiny over again by the Board of Revenue on the same allegations already dealt with properly.

In view of the above, this petition is accepted declaring the assumption of jurisdiction by Ret,,: indent No. 1 as illegal and without lawful authority. No order as to costs.

(A.A.T.) Petition accepted.

PLJ 2001 Lahore 191 (DB)

Present: amr alam khan and saved ZAHID hussain, JJ.

WATER AND POWER DEVELOPMENT AUTHORITY through its CHAIRMAN, WAPDA HOUSE LAHORE and 3 others-Appellants

versus

TAHIR SALEEM and 4 others-Respondents R.F.A. No. 32 of 1999, heard on 15.11.2000. Land Acquisition Act, 1894 (I of 1894)--

—- S. 23-Coinpensation for acquired land-Essentials-Compensation determined by Referee Judge was assailed by Appellants—Essential factors for determining market value for acquired land would be its vicinity to developed area/housing colonies and its distance from the centre of the city-Where acquired land was located near the developed housing societies and was about 5 miles from the centre of the Metropolitan City, and the same was in the process of development for residential colony, its price fixed by Referee Court could not at all be regarded on a higher side-Price fixed by Referee Judge being reasonable, no interference therein was warranted. [P. 196] A

1996 CLC 1193; 1&97 MLD 2568; 1999 SCMR 1615; 1999 SCMR 1647 ; 2000

CLC 870; 2000 CLC 99.

Ch. Mukammafl Hussain Naqshbandi, Advocate for Appellants. Mr. M. Saleem Sheikh, Advocate for Respondents. Date of hearing: 15.11.2000.

judgment

Sayed Zahid Hussain, J,--Judgment of the learned Senior Civil Judge, Lahore dated 24.10.1998, whereby, he dealt with the references filed by the parties, under S. 18 of the Land Acquisition Act, 1894 and determined the rate of compensation at Rs. 10.000/- per marla with 15% compulsary acquisition charges has been challenged through this appeal. Since there were seven references before the learned Senior Civil Judge, who dealt with the same through a common judgment, the appeals arising therefrom i.e. RFA No. 29/99, RFA No. 30/99, RFA No. 31/99, RFA No. 32/99, RFA No. 33/99, RFA No. 34/99 and RFA No. 35/99 are being disposed of through this judgment. The appeals have common features as to the quantum of compensation for the land acquired which arise in the circumstances briefly stated below :--

1. The land subject-matter of acquisition was situated in Jhugian Nagra, Tehsil & District Lahore which was acquired for the construction of a Grid Station at Band Road, Lahore by Water & Power Development Authority (WAPDA). The land had already been under development by a Housing Society for residential purposes. But request of WAPDA that it was required for a public purpose viz the construction of 200 KV Grid Station, was acceded to and notification dated 28.5.1983 under S. 4 of the Land Acquisition Act, 1894 was issued. For assessing the cost of the land, the matter was referred to Tehsildar, Lahore, who proposed its market value at Rs. 6,000/- per marla,however, later on, fresh recommendations were made at Rs. 1500/- per marlaand the case was sent to the Commissioner, Lahore. The aggrieved parties submitted a petition before the Commissioner, Lahore for its enhancement, the demand of the owners was that the land was worth Rs. 10,000/- per marla. They also filed a civil suit against acquisition. In the meanwhile, the Commissioner Lahore Division recommended the cost of the land at Rs. 6000/- per marlaand sent the case to the Board of Revenue, whereas, the plea of the WAPDA before the Board of Revenue was that it should be at Rs. 1500/- per marla. The learned Member, Board of Revenue, however, approved the estimated cost of the land at Rs. 6000/- per marlawith 15% compulsory acquisition charges. The estimated cost of the land was deposited by the WAPDA whereafter, notification under S. 17(1) of the Land Acquisition Act was issued on 28.11.1983 and notification under S. 6/7 of the said Act was published on 8.12.1983. The possession was delivered to WAPDA on 23.12.1983. On 19.12.1983, the Land Acquisition Collector (WAPDA) announced the award, fixing the compensation at the rate of Rs. 3800/- per marla. Being not satisfied with the quantum of compensation references under S. 18 of the Land Acquisition Act, as mentioned above, were filed which came up to be decided by the learned Senior Civil Judge, Lahore through the impugned judgment.

2. Learned counsel for the appellants contends that the learned Senior Civil Judge has erred in fact and law in fixing the compensation at the rate of Rs. 10,000/- per marlawhich is neither reasonable nor fair. According to the learned counsel, the evidence on record supported only the rate of compensation which was fixed by the Collector in the award and there was no material in support of the findings, recorded by the learned Senior Civil Judge. It is submitted that even the respondents had claimed compensation at the rate of Rs. 6000/- per marla, the grant of the same higher than that was not warranted-.lt is further contended that the learned Senior Civil Judge has not kept in view the location and other attending circumstances in enhancing the rate of compensation.

3. On the other hand, the learned counsel for the respondents contends that the land had been purchased by the respondents in small pieces for the construction of houses, situated in residential colony being developed for that purpose. His case is that it is within the limits of Lahore Metropolitan, adjacent to developed modern colonies such as Sabza Zar Housing Scheme, Awan Town, Peco and Maraghzar Scheme and in view of its location there was a continuous trend of appreciation in its value when it was acquired. It is further contended that mutations and sale-deeds would not reflect the correct value of the land as generally in order to save heavy expenses, duties and fees, the trend is to disclose the price on lower side. It is submitted that even Tehsildar and Board of Revenue had approved the rate at Rs. 6000/- per marla. He supports the findings recorded and conclusion drawn by the learned Senior Civil Judge that the determination of compensation made by the Collector in the award was not realistic or fair. The learned Senior Civil Judge was thus justified in the facts and circumstances to fix the compensation @ Rs. 10,000/- per marla. Relies on Collector, Land Acquisition, Nowshera and others vs. Abdur Rashid and others (1996 CLC 1193) and Province of Punjab and others v. Muhammad Rashid and others (1997 MLD 2568) in support of his contentions.

4. It has come on record and cannot be disputed even that the land is situated where a Housing Society namely Shaheen Town Co-operative Housing Society had been founded for residential purposes. The owners had been opposing the acquisition of this land for WAPDA that the same was to be utilized for their residential houses and had even filed a suit. This aspect had even been noted by the Collector in his award which shows that the owners were not willing for the acquisition of this land and they were deprived of the same by acquiring the same compulsorily. It is in this context that it was to be determined by the Referee Judge as to whether the compensation being given to the owners was adequate, fair and just or not. The Referee Judge, therefore, framed issues as to whether the value of the land assessed in the award was inadequate and what should be the fair and proper valuation of the land. Evidence was produced before the Referee Judge to show that the rate of compensation fixed by the Collector in the award was highly inadequate and unreasonable. On consideration of the nature of the land and its location that it was meant for a residential colony i.e. Shaheen Town Housing Society, it was situated at a distance of about 5 miles from the centre of the city i.e. District Courts; that it had become a residential area surrounded by Sabza Zar Housing Scheme and Allama Iqbal Town, other residential colonies and keeping in view its potential use and value, the learned Referee Judge came to the conclusion that compensation @ Rs. 10,OOQ/- per marla would be adequate and fair. The view so formed by the learned Referee Judge is not without a basis in as much as it had come on record that the land was within the urban area, 5 miles away from the District Courts, surrounded by the Housing Scheme such as Sabza Zar etc. linked with roads. Besides the deposition of the other witnesses Abdul Aziz, RW1, Superintending Engineer (WAPDA) admitted that the owners were developing the land for a housing scheme and it was on the insistence of the WAPDA that it was notified for the construction of a Grid Station. It was also admitted by him that Sabza Zar Housing Scheme of L.D.A. was adjacent to it and is situated within the Municipal Limits of Lahore and that Awan Town and Peco Scheme were also in its neighbourhood. Ch. Muhammad Ali, the Land Acquisition Collector, RW2 also stated certain important facts that the members of the society had appeared before him not to acquire their small pieces of land meant for the construction of their residences and that if, in case, the same is to be acquired, they should be paid the compensation of Rs. 10,QOO/~ per marla as had been paid to the owners of adjacent Mauza Ram Krishan Wala. He also stated that the land was surrounded by the housing colonies such as Sabza Zar Scheme of L.D.A., Awan Town, Maraghzar and Peco Town and was near to Allama Iqbal Town. It was also admitted that in order to avoid stamp duty, Corporation Taxes and Gains Taxes etc., the people do not disclase correct price of the land in the sale-deed, particularly, when there is no right of pre-emption within the limits of Corporation. On a suggestion put to him, be, however, was unable to say that the value of the land per marlain the Sabza Zar Scheme was Rs. 20,000/- to Rs. 25,000/~ per marla.

5. The preponderance of the evidence thus certainly establish that the land acquired on account of its location had great potential use and value. For the determination of compensation there are various factors which the Court is obliged to keep in view. In Collector Land Acquisition, Nowshefa's case (supra) it was observed 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 notification under Section 4 of the Land Acquisition Act or any period prior to it but can also relate to the period in future, i.e. after the issuance of notification under Section 4 of the Act. It is for this reason that the potential value of the land i.e. the use to which it can be put in future has in a large number of cases being held to be a relevant factor."

In Land Acquisition Collector. Rawalpindi and others v. Dina and others (1999 SCMR 1615) the land situated near Rawalpindi was acquired for the proposed use as 'Dhamial Air Field'. On the question arising as to the adequacy of compensation, this Court had kept in view that "the acquired land was situate in the revenue estates which were situate within the limits of Rawalpindi Cantonment. These were accessible to urban amenities like roads, supply of gas, electricity, telephone, etc. It is also not in dispute that at. the relevant time of the notification, some portion of the land was under occupation of the Air Field while the other was under crops. We have, therefore, no difficulty in saying that the acquired land was urban agricultural land with a potential of being used for residential purpose" The approach adopted by this Court was upheld by the Supreme Court, lit die instant case, however, it has been established beyond any doubt that the owners had small pieces of land meant for the residential purposes m the Housing Society under development. In Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (199S SCMR 1647) after taking note of number of precedents on the subject, various factors relevant for determining the amount of compensation were stated including the one that the previous sales of the land cannot always be taken into consideration for determining the price of land intended to be acquired and that the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a milling purchaser and that, it must not be valued only with reference to its condition at the time of the notification, its potential value must be taken into consideration. The compensation was thus fixed with reference to that "the disputed land is adjacent to Khyber Colony and the construction of Bungalows was in progress around the land during the period 1978 to 1981" and that it was at a little distance from the University Road to Takhail Payan. In Government of Sindh through Deputy Commissioner, District Dadu and another vs. Ramzan and others (2000 CLC 99), one of the factors in determining the compensation was "the proximity of the land with urban area and its potential use to which the same could be put to use in future". Quite recently, the criteria for determination of fair compensation has been elaborated by the Hon'ble Supreme Court in Province of Punjab through Collector, Attack vs. Engr. Jamil Ahmad Malik and others (2000 SCMR 870), The land in the cited case was for the extension of residential colony of Kamra rebuild factory. There are number of factors stated in the judgment to be considered for the determination of the Mr compensation including as to what a willing purchaser would pay to the willing seller, the value of the land in the vicinity, the use to which the land is capable of put, present or future, the value of the land in the open market the complexion and the

character of the laud. It is also stated that "only the past sales should not be taken into account but the value of the land with all its potentiality may also be determined."

We consider having regard to the situation of the land, its vicinity that it was surrounded by the housing colonies/scheme such as Sabza Zar Housing Scheme, Awan Town, Maraghzar and Peco Colony, at a distance of only 5/6 miles from the District Courts and quite dose to Multan Road and a colony like Allama Iqbal Town and that the land in fact had been in the process of development for a residential colony, its price fixed by the Reference Court at Rs. 10,000/- per marla cannot at aU be regarded on a higher side. We are, therefore, inclined to maintain the view formed by the Referee Judge and affirm his findings.

As a result of the above, this appeal is dismissed. No order as to costs.

(A.A.) Appeal dismissed.

PLJ 2001 Lahore 196

Present: CH. IJAZ AHMED, J.

MUHAMMAD NAZIR and 140 others-Petitioners

versus

COLLECTOR/DEPUTY COMMISSIONER, LAHORE and 2 others-Respondents

W.P. No. 850 of 1983, heard on 13.12.2000. Punjab Acquisition of Land (Housing) Act, 1973--

—Ss. 4, 5, 6 & 7-Constitution of Pakistan (1973), Art. 199-Acquisition of petitioner's land for graveyard—Non-service of statutory notice to petitioners-Effect-Respondents could not refer to any provision which permits framing of any scheme exclusively for graveyard under the provisions of Punjab Acquisition of land (Housing) Act 1973 and the Rules framed thereunder-Respondents did not specifically deny non-service of notice upon petitioners which is a statutory requirement-­Omission to serve such notice renders proceedings as invalid, moreso, in a case relating to compulsory acquisition of property-Action of respondents was thus, without lawful authority and of no legal effect.

[P. 198] A

PLD 1972 Lah. 458; PLD 1982 Quetta 63; PLD 1983 SC 151; PLD 1981 Lah.

696; PLD 1971 Kar. 514; PLD 1970 Lah. 320; PLD 1972 Lah. 452;

and 1973 L.N. 178.

Mr. M. Saeed Ahmad, Advocate for Petitioner. Malik Akhtar H. Awan, AAG and Mian Muzaffar Hussain, Legal Advisor, LDA for Respondents.

Date of hearing: 13 12.2000.

judgment

The brief facts out of which the present writ petition arises are that the respondents acquired the land of the petitioners under the Provisions of the Punjab Acquisition of Land (Housing) Act, 1973 and rules framed thereunder. The respondents issued notification under Section 4 of the aforesaid Act on IS. 11.1981 which was published in the Official Gazette on 27.5.82. Notices were issued to the petitioners. The notification was issued in public notice in 'Daily Mashraq' dated 9.6.82. The petitioners being aggrieved filed application before the Director General LDA, pointed out the alternate land for the said purpose, through their application. The respondents issued the notification under Section 13 of the aforesaid Act on 6.2.83. The petitioners being aggrieved filed this writ petition.

1. The learned counsel of the petitioners submits that the land in-question is being acquired only for graveyard and not Housing Scheme. The Act of 1973 will not apply. He further submits that provisions of the LDA Act and Acquisition of Land Housing Act 1973 did not contain any provision of law which authorities respondents to acquire the land of the petitioners to frame any scheme exclusively for graveyard. He further submits that aforesaid Act was declared ultra vires by the Hon'ble Supreme Court is Syed Muhammad Khurshid Abbas Gardezi's case (PLD 1983 S.C. 151). He further submits that petitioners did not receive any notice from the respondents under Sections 4 and 5 of the aforesaid Act, therefore, action of the respondents is without lawful authority. In support of his contention he relied upon the following judgments:--

PLD 1972 Lahore 458 (Mst. Sardar Begum vs. Lahore Improvement Trust).

PLD 1982 Quetta 63 (Abdul Ghani's case).

He further submits that respondents have no authority to issue notification under Section 13 of the aforesaid Act without deciding the objections of the petitioners. In support of his contentions he relied upon the following

judgments:-

PLD 1981 Lahore 696 (The Province of Punjab and two others vs. Zahoor Elahi & three others).

PLD 1971 Karachi 514 (Haji Hashmatullah etc. vs. Karachi Municipal Corporation etc.).

He further submits that Section 9 of the aforesaid Act is inconsistent with the other Provisions of the Act. He further submits that parties were directed to maintain status quo vide order dated 9.3.83. He further submits that petitioners had already constructed houses over the disputed land more than 50 percent of the land in question. He has already handed over list of the houses constructed by the petitioners to the learned Legal Advisor of the respondents on 6.12.2000, He further submits that respondents are not in a position to deny this ground reality that the petitioners have constructed the houses over the disputed land.

1. The learned Legal Advisor of the respondents submits that action of the respondents is in accordance with law. The espondents have issued proper notification under the provisions of the aforesaid Act He further submits that specifically does not mention in the Provisions of IDA Act, 1975 and Punjab Acquisition of Land (Housing) Act 1973 that respondents have authority to frame scheme for graveyard but respondents have authority to frame such type of Schemes in public interest in their inherent power.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that parties were directed to maintain status quo vide order dated 9.3.83. During the pendency of the writ petition the petitioners had constructed 50 per cent houses over the land in question. This Court has ample power to look into the subsequent events as per principle laid down by the Division Bench of the Karachi High Court in 1990 CLC 1069 Nasir Jamal's case coupled with the fact that the Act has already declared ultra vires by the on'ble Supreme Court in Syed Muhammad Khurshid Abbas Gardezi's case (PLD 1983 S.C. 151). The learned counsel of the respondents is not in a position to refer to any provision which permits framing of any scheme exclusively for graveyard under the provisions of aforesaid laws i.e. LDA 1975 and Punjab Acquisition Land (Housing) Act 1973. The petitioners have taken a specific stand that petitioners were not personally served the notice aor cared to be served particularly under Sections 4, 5, 6 and 7 of the Punjab Acquisition of Land (Housing) Act, 1973 -read with Rule 3 framed under the Act. Which was not specifically denied by the respondents in the report and parawise comments. As regards the fact of aon-serviee of the statutory notice and law is well settled that the omission to serve such a notice renders the proceedings as invalid, more so, in a case relating to compulsory acquisition of property. If any authority is needed reference maybe made to Col. Bashir Hussain and others vs. Land Acquisition Collector etc. PLD 1970 Lahore 320 Mat. Sardar Begum vs. Lahore Improvement Trust Lahore PLD 1972 Lahore 452 and Mst Maryam Bibi vs. The Lahore Improvement Trust 1973 Law Notes 178. In this view of the matter the action of the respondents is without lawful, authority and is in violation of the law laid down by the Hon'ble Supreme Court in Syed Muhammad Khurshid Abbas Gardezi's case. In view of what has been discussed above this writ petition is

accepted, with no order as to costs.

(A.A.) Petition accepted.

PLJ 2001 Lahore 199

Present: SAYED ZAHID HUSSAIN, J.

Mrs. AZRA StJALEH-Petitioner

versus

GOVERNMENT OF PUNJAB IN MINERAL DEVELOPMENT

DEPARTMENT through its SECRETARY, CIVIL SECRETARIAT

LAHORE and 3 others-Respondents

W.P. No. 12285/1996, heard on 1.12.2000. Punjab Mining Concession Rules, 1986-

—-R. 15-Constitution of Pakistan (1973), Article 199-Grant of prospecting licence-Petitioner claimed that her application for grant of licence being prior in time, she was entitled to the grant of the same in terms of S. 15 of Punjab Mining Concession Rules 1986--Perusal of R. 15 of Punjab Mining Concession Rules would show that it gives discretion to ignore rule of first come first served for reasons to be recorded—Respondents had reason to ignore rule of priority and preferential treatment and licence was granted to public sector organization fully equipped to undertake requisite prospecting/developing work who had ambitious plan for such purpose-Non grant of licence to petitioner was not in any way arbitrary or un-reasonable rather the same had valid-Petitioner, thus, lacked right to compel respondents for grant of licence-No such absolute direction can be issued to respondents as has been prayed for.

[Pp. 201 & 201] A, B PLD 1969 Dacca 293; PLD 1975 SC 667.

Mr. Aslarn Hayat,Advocate for Petitioner. Mr. Fouzi Zafar,A.A.G. for Respondents. Date of hearing: 1.12.2000.

judgment

An application for the grant, of prospecting licence made by the petitioner was rejected on 8.1.1996 by Respondent No. 2, whereagainst an appeal was filed by the petitioner which was dismissed by Respondent No. 1 on 14.3.1996. This is a writ petition against the same.

1. It is contended by the learned counsel for the petitioner that the application of the petitioner for the grant of licence was prior in time than of Respondent No. 4,she was entitled to the grant of licence in view of the Rule 15 of the Punjab Mining Concession Rules, 1986. It is farther contended that in view of the previous record of Respondent No. 4, the grant of 'licence to Respondent No. 4 was also illegal.

3, The learned Assistant Advocate General, Punjab supports the order passed by the respondents.

1. It is not disputed that an application had been made by the petitioner for the grant of prospecting licence which was still pending when as per report submitted by the respondents, the Mines Committee ;

"approved the grant of prospecting licence for iron ore in favour of M/s. Punjab Mineral Development Corporation over an area of 3977.68 acres keeping in view the national importance of iron ore deposits to be prospected/developed by M/s. Punjab Mineral Development Corporation under the Annual Development Programme."

This is also the reason mentioned in the order of Respondent No. 1 whereby the appeal, filed by the petitioner was dismissed. By invoking Rule 15 of the Rules ibid, the petitioner thinks that an absolute right accrued to her by making application which was prior in time. This is not supported by the content of Rule 15 which is as follows:

Triotity:--In case there are more applications than one for the grant of a licence or a lease in respect of the same mineral or area, unless the Licensing Authority in its discretion decides otherwise, by recording reasons therefore, the principle of first come first served shall apply."

. The perusal of the above rule would show that it gives discretion to ignore the rule of first come first served for reasons to be recorded by it. In Messrs Kohinoor Aluminium v. Province of East Pakistan and others (PLD 1969 Dacca 293) such a rule appearing in Pakistan Mining Concession Rules, 1960 came to be considered before a Division Bench of Dacca High Court and it was observed that:

"In spite of the fact that Rule 20 speaks of the preferential treatment in respect of the first comer, yet the provision of discretion made in that rule takes away the force of the preferential treatment that the first applicant can claim."

Accordingly, it was held that -

"we find no right vesting in the petitioner to challenge the impugned orders under Article 93 of the Constitution and also that on merits the petitioner has not been able to make out any case in his favour."

In Govt of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmed Khan (PLD 1975 SC 667) it was held that :--

"Grant of licence remains a privilege until it is actually granted and is accompanied by a grant."

In the present case, the respondents had the reason to ignore the rule of priority and preferential treatment and the licence was granted to a public sector organization fully equipped to undertake the requisite prospecting/developing work who had an ambitious plan for this purpose. I do not consider the reason for non grant of licence to the petitioner was in any way arbitrary or unreasonable rather it had a valid foundation. The petitioner thus lacks right to compel the respondents for the grant of licence. No such absolute direction can be issued to the respondents as has been prayed for. The petition thus fails. No order as to costs.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 201

Present: maulvi anwar-ul-haq, J. MUHAMMAD RAUF KHAN-Petitioner

versus MAHMOOD KHAN and 14 others-Respondents

C.R. No. 873 of 1990, heard on 16.11.2000. Specific Relief Act, 1877 (1 of 1877)-

-s. 42-Civil Procedure Code (V of 1908)~S. 115-Predecessor in interest of respondents claimed 1/2 share of land in question to have een gifted to her by her deceased husband before his death—Claim of respondent's predecessor was accepted by courts below and she was granted judgment and decree to that extent-Validity-Evidence on record would show that alleged gift in favour of predecessor-in-interest of respondents was not proved-No witness had stated that deceased land owner had made declaration of gift in favour of his wife i.e., predecessor-in-interest of respondents and that she had accepted such gift or that possession of the gifted property was handed over to that lady-Admission of alleged donee proved that on the death of deceased landowner, half of his property was mutated in favour of petitioner as his son and half of the same was mutated in favour of alleged donee being his childless widow-On the death of childless widow, petitioner as son of last male owner would get 7/8 share of land in question while to the extent of 1/8 share, of deceased land owner, heirs of deceased lady would succeed-Judgments and decrees of courts below decreeing suit of predecessor-in-interest were set aside. [Pp. 203 to 205] A & BMr. Taqi Ahmad Khan, Advocate for Petitioner.

Ch. Muhammad Rafiq Warraich, Advocate for Respondent Nos. 4 to 14.

SyedAftab Sherazi, Advocate for L.Rs. of Respondent No. 2. Nemo for other Respondents. Date of hearing: 16.11.2000.

judgment

On 13.10.1985 Mst. Aisha Bibi, the predecessor-in-interest of Respondents Nos. 1 to 3 fileri a suit. In the plaint it was stated that Karam Dad owned some land in a village in India. He had two wives, namely, the said Aisha and Zohra. He proceeded to gift away his land to his two wives in equal shares. The petitioner is the son of said Karam Dad from the said Mst. Zohra. The plaint further alleges that when the two ladies came to Pakistan, Mst, Aisha got the suit land allotted against the said land gifted to her whileMst. Zohra got land allotted in village Pindorian, Tehsil Daska which was ultimately transferred to the petitioner; that the petitioner filed a suit claiming 7/8 share in the suit land which was tried by a learned Civil Judge who dismissed the same on 22.7.69; that the petitioner thereafter made an application to the Settlement Officer, Sialkot who proceeded to order mutation of 7/8 share in the suit land in favour of the petitioner on 8.4.1975. An appeal filed by the said Aisha Bibi was dismissed by an AdditionalCommissione r on 6.4.1980. With these averments she sought a declaration that the said orders passed by the Settlement Officer and the AdditionalCmmissioner be declared to be illegal and she be declared to be the full owner of the suit land. The suit was contested by the petitioner who took up

the plea that Karam Dad had never made any gift. In fact on the death of said Karam Dad half of the land was mutated in favour of isha Bibi as achildless widow while the half was mutated in favour of the petitioner as son; that Aisha Bibi was holding a limited estate and in that capacity she filed a fform and was transferred the suit land. He also denied that Mst. Zohra got any land allotted in village Pindorian. It was the petitioner who got the land allotted against 1/2 share of Karam Dad's estate which was mutated in his favour on his death. Regarding the said decree of dismissal of a suit he took the plea that the same stood annulled vide Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975. Following issueswere framed :--

1. Whether this Court has no jurisdiction to try this suit ?

2. Whether the suit property has not been correctly described. If so, what is the correct description ? OP. Parties.

3. Whether the suit is within time ? OPD.

4. Whether the suit is not maintainable in its present form ? OPD.

5. Whether the impugned order of S.O. Sialkot dated 8.4.75 and of

6. Addl. Commissioner (Revenue) dated 8.4.80 are illegal, void and ineffective upon the rights of the plaintiff ? OPP.

7. Whether the plaintiff the owner of the suit properly? OPP.

8. Relief.

Evidence of the parties was recorded. The learned trial Court, decreed the suit of Mst 'Aisha Bibi vide judgment and decree dated 2.11.1985. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Narowal who dismissed the same on 27.2.1990.

1. I may state here that the present Respondents Nos. 1 to 3 are the caildren of said Mst Aisha Bibi from another husband and they were impleaded as L.Rs. during the pendency of the first appeal. Respondents Nos. 4 to 14 were impleaded a defendants in the suit by Aisha Bibi as her transferees vide sale-deed dated 27.4.1967.

2. Learned counsel for the petitioner contends that the impuned judgments and decrees passed by the learned Courts below are wholly without jurisdiction. According to the learned counsel there is no evidence on record of any gift having been made by Karani Dad, an admitted last male owner of the suit land, in favour of Aisha Bibi. Further contends that the decree dated 22.7.1969 dismissing the suit filed by the petitioner ceased to exist upon the promulgation of the said Act of 1975 and the learned Courts below have committed a serious error of law in relying upon the same. Learned counsel for Respondent No. 2 does not oppose the Civil Revision. However, learned counsel appearing for Respondents Nos. 4 to 14 has tried to support the impugned judgments and decrees.

3. I have gone through the copies of the records appended with the Civil Revision, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the plaint It is manifest in the plaint itself that the last male owner of the suit properly was Karani Dad, admittedly the father of petitioner and husband of Aisha Bibi. The plea raised by Aisha was that Karani Dad had gifted the land in India, to the two widows in equal shares and it was on the basis of the said alleged gut that Aisha claimed to be the full owner of the suit land. After examining the record I find myself in complete agreement with the learned counsel for the petitioner that there is no evidence in support of the said alleged gift. Abdur Rehman, P.W. 1 is the son-in-law of Aisha Bibi. All that he has stated is that Karam Dad had said that he will transfer the land in favour of Aisha Bibi and Zohra Bibi in equal shares and 3/4 years before independence of the country he transferred the land; that Aisha. Bibi got allotted the suit land while Mst.Zohra got allotted land in Tehsil Daska. In his cross-examination he admits that mutation of the land was not effected in his presence; that he had not even seen the mutation. The second witness is Shah Muhammad, P.W.2 who has stated that he had heard the residents of the village saying that Karam Dad had transferred his land in Savour of his wives. He has stated in his examination-in-chief that he had never met Karam Dad. In his cross-examination he states that he had never talked to the said Aisha Bibi on the subject This is the entire evidence in support of the said plea apart from the statement of Aisha who has appeared in the witness-box as P.W. 3.She does state that Karam Dad transferred his land in equal shares in her favour and in favour of Zohra. In her cross-examination she admits that regarding the other half of the land the claim was filed by Rauf i.e. thepetitioner.

4. A bare perusal of the.said evidence would show that the gift has not been proved. No witness has stated that Karm Dad made a declaration of gift that the two ladies accepted the gift and that Karm Dad delivered possession of the land to the ladies under the gift. On the other hand, the entire plea is belied by the admission of Aisha, P.W. 3 that Rauf filed the claim in respect of the other half of the land. This latter admission goes to prove the plea of the petitioner that on the death of Karam Dad the land was mutated under custom half in favour of the son and one half in favour of the son less widow. There is no evidence at all that she had a daughter, as alleged by her, from Karam Dad.

5. An examination of the impugned judgment of learned trial Court would reveal that the question of gift has been deliberately by-passed. In fact it would be evident from reading of the findings recorded under Issue No. 6 that even the learned trial Court did not dare to hold that a gift by Karam Dad in favour of Aisha Bibi had been proved. The learned trial Court had after zigzagging hither and thither ultimately referred to the order of Civil Judge (Ex. P. 9) and proceeded to declare that the plaintiff (Aisha Bibi) shall be deemed to be a full owner.

6. The learned Additional District Judge faced with the said situation proceeds to state that although there is no evidence in support of the gift, yet since in the revenue record she is recorded as the full owner, the learned trial Court has rightly declared Aisha Bibi to be full owner. In the process the learned Additional District Judge has attributed to the learned trial Court that the oral evidence led by Aisha was found to be confident inspiring by the learned trial Court.

7. The revenue record referred to by both the learned Courts below isJamabandifor the year 1964-66 (Ex. P. 1), 1975-76 (Ex. P. 2) and 1977-78 (Ex. P. 3). Both the learned Courts below obviously forgot that all these records were based on the allotment made to Aisha Bibi in Pakistan and what they were required to find out was as to whether she owned the land in India which was otherwise admitted to be lastly owned by Karam Dad or not There is no gain saying the fact that the said post partition record was hardly of any avail in resolving the controversy.

8. Both the learned Courts below have placed implicit reliance on the judgment dated 2.7.1969 of the learned Civil Judge (Ex. P. 9). Learned Additional District Judge complains that instead of filing an appeal against the said judgment, the petitioner went to a Settlement Officer for relief. I cannot help but to express regret on the said finding of the learned Additional District Judge. He has proceeded to reproduce Section 2 of the said Act XXV of 1975 in his judgment but apparently did not care to read the same. The learned Additional District Judge also failed to read Section 3 of the said Act. To my mind the said Section 3 provides an independent remedy to a person in a case of instant nature to call in question an order ofsuccession in a Court or before any other authority, within one year of the commencement of the said Act. The application before the Settlement Officer was filed within the said period and he proceeded to pass the order accordingly. The said judgment, therefore, was of no legal effect and was not even relevant to decide the controversy in the present suit.

9. As stated by me above, Karam Dad being the admitted owner of the land and the gift having not been proved as alleged by Aisha Bibi, the land had been mutated in favour of Aisha and the petitioner under custom as is reflected in the pedigree-table (Ex. D. 1). Ex. D. 2 proves that Zohra Bibi had died on 27.11.1964 i.e. more than 14 years after 1947 and Aisha Bibi herself admitted that the other claim was filed by the petitioner. The order Ex. D. 9 was correctly passed by the Collector by mutating 1/8 in favour of Aisha and 7/8 in favour of the petitioner in the suit land.

10. The learned lower Courts h ave grossly misread the evidence on record and have also failed to take note of the correct legal provisions while decreeing the suit filed by Mst. Aisha. The impugned judgments and decree, therefore, cannot be sustained. This Civil Revision is accordingly allowed. Both the judgments and decrees passed by the learned Courts below are set aside and the suit filed by Mst. Aisha plaintiff is dismissed leaving the parties to bear their own costs.

(A.P.) Revision accepted.

PLJ 2001 Lahore 205

[Multan Bench Multan]

Present:muhammad akhtar shabbir, J.

ABDULLAH and others-Petitioners

versus

DEPUTY SECRETARY, BOARD OF REVENUE, LAHORE etc.-Respondents

Writ Petition No. 29/R of 1988, heard on 11.10.2000. Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958)-

—Ss. 10 & ll--Constitution of Pakistan (1973), Art. 199-Mukhbar'sentitlement to allotment of land, which was resumed on his information-­Land in question was not allotted to persons proceeded against under Displaced Persons (Land Settlement) Act, 1958—Such property had not been declared to be evacuee properly when the same was mutated in favour of alleged allottees-Land in question, however, was declared as concealed property after cancellation of mutation and the same had never been allotted by Settlement Authorities under Settlement Laws when mutation in question, was made-Settlement Authorities had validly declared that petitioner was not entitled for the allottment of land in question as informer-Petitioner's earlier constitutional petition against such order had been dismissed-Second mukhbari application having been filed after repeal of evacuee laws, petitioner was not entitled to allotment of the same on that basis-Constitutional petition against dismissal of petitioner's claim for allotment was, thus, not competent.

[P. 207] A

Syed Murtazo Mi Zaidi, Advocate for Petitioners.

Syed Mohtishamul tiaq Pirzcda, Advocate for Respondents.

Date of hearing : 11.10.2000.

judgment

The Constitutional jurisdiction has been invoked by the petitioner to call in question order, dated 26.9.1984 and 9.7.1985, passed by Chief Settlement Commissioner and the Deputy Secretary Settlement, respectively.

1. Facts giving rise to the present writ petition are that the land in dispute situated in Village Yakka Tehsil Kabirwala, was elonging to one Mango Mai, a non-Muslim/Mehr Amir and Mehr Fareed, sons of Mehr Qasim Shabbir caste Rajput resident of Village Mohri Wala, Tehsil Kabirwala vide mutation of Sale No. 20 dated 9.2.1949, purchased the same from Mango Mai, the original owner of the land.

2. That on 4.11.1972, the present petitioner made a Mukhbari application u/Ss. 10 and 11 of the Displaced Persons and Land Settlement Act 1958 before Respondent No. 2 on the ground that the land mutated in favour of Mehr Amir and Mehr Fareed is result of fraud and mis­ representation, Sardar Hayat Ullah Khan Mokal, the Settlement Commissioner (Land) Punjab vide his order, dated 11.1.1974, resumed the land. Mehr Amir etc. instituted a writ petition against the resumption of the land which was ultimately dismissed. The Chief Settlement Commissioner videhis order, dated 26.9.1984, observed that the petitioner is not entitled to the allotment of the land as an informer. The petitioner filed a Writ Petition No. 22-R of 1987 which was dismissed on 21.6.1987 with the observation that the writ petition has been directed against order, dated 26.9.1984, for which no explanation for such a long delay has been given. During the pendency of the writ petition the petitioner had filed another application for the allotment of the land resumed on his application and this application was declined on 9.7.1985 and the order was intimated to thepetitioner.

3. Learned counsel for the petitioner contended that the petitioner being informant of the land is entitled for the allotment of the resumed land. He further submitted that while passing the order dated 30-12-1984 on his application he has not been heard. Contentions were opposed by the Legal Advisor, present in Court.

4. I have heard the argument of the learned counsel for the parties and perused the record.

5. Mehr Amir and Mehr Farid obtained the land vide Mutation No. 20 dated 9.2.1949. The land was not allotted to them under Displaced Persons and Land Settlement Act 1958. The Custodian had issued a notification declaring the properties left by the non-Muslims as Evacuee Properly and when this land was mutated in favour of Mehr Amir and Mehr Farid the said land was not declared as evacuee. Although the mutation in favour of the vendees Mehr Farid etc. has been cancelled but this land was declared as concealed property, The land in favour of Mehr Farid etc. had never been allotted by the Rehabilitation Settlement Authorities under the Settlement Law when the mutation in dispute was made. There was no law prevailing for the allotment of the evacuee land. The evacuee property was declared by the Custodian on 1.1.1957 and thereafter the allotment of the evacuee properties was made to the evacuees from India against theirverified caims. Therefore, the Settlement Authorities validly observed that the petitioner is not entitled for the allotment of the land as informant. Against order, dated 26.9.1984, the earlier Writ Petition No. 22-R of 1987, filed by the petitioner has been dismissed. The second mukhbari application was filed by the petitioner after the repeal of the Settlement Laws, therefore, if the Board of Revenue has dismissed the application of the petitioner and declared that he is not entitled for the allotment of the land, committed noillegality.

6. For the afore-going rtisons I see no force in this writ petition which is dismissed.

(A.A.) Petition dismissed.

PLJ 2001 Lahore 207

[Multau Bench Multau]

Present: maulvi ANWAR-UL-HAQ, J. Syed MUBASHAR ALJ etc.-Petitioners

versus

Mst. RAZIA BIBI-Respondent C.R. No. 60-D of 2000, decided on 22.5.2000. Civil Procedure Code, 1908 (V of 1908)--

—0.1, R. 10 & S. US-Specific Relief Act (I of 1877), S. 42-Suit for specific performance of agreement to sell decreed in favour of plaintiff (respondent) and decree, of Trial Court was maintained in appeal-­Validity-Defendant's (petitioners) plea, that earlier decree in favour of third party, would hot entitle plaintiffs to obtain subsequent decree relating to the same property, was of no consequence in as much as, such decree was ex-parte and plaintiff in that decree did not deposit the requisite amount in compliance of Trial Court's order and thus, suit of third party failed in terms of decree-Third party's application to be impleaded in suit having been dismissed by Trial Court, order of dismissal attained finality for non-pursuing of matter in appeal or revision-Plea raised by defendant, petitioners) that third party had already obtained decree and as such present suit could not have been decreed was, thus, without legal and factual basis. [P. ] A

Syed Murtaza All Zaidi, Advocate for Petitioner. Date of hearing : 22.5.2000.

order

C.M.2-C/2000.

For orders to be passed in the main case no order needs to be passed in this C.M. The same is accordingly disposed of. This is an application for condonation of delay in filing of this Civil Revision. Since I am taking up the Civil Revision today no order needs to be passed in the C.M. Disposed of accordingly.

Main case.

Respondent No. 1 filed a suit against the petitioners on 6.4.1993. Her case was that the suit knd was originally owned by Mst. Muhammadi Begum and ultimately devolved upon Mst. Umatur Rasool, mother of Petitioners Nos. 1 to 3 and Syed Muhammad All Naqvi, the predecessor-in-interest of Petitioners Nos. 4 to 9; that Mst. Umatur Rasool had appointed her husband Syed Shaukat Ali as a general attorney who agreed to sell l/3rd share in the suit house and received a sum of Rs. 10,000/- by way of earnest money vide receipt dated 27.10.1986 from Abdul Latif the husband of the respondent. Later on the said Syed Muhammad Ali Naqvi also appointed the said Syed Shaukat Ali as a special attorney who upon receipt of Rs. 25,000/-from the said husband of the respondent executed an agreement dated 12.11.1988 in favour of respondent and promised that upon execution of general power of attorney by Petitioners Nos. 4 to 9 he shall transfer the suit property to her. However said Syed Shaukat Ali died and the respondent had been requesting the petitioners to transfer the suit property to her but of no avail. With these averments a decree for declaration or in the alternate for specific performance of the said agreement was sought. In their written statement the plea raised by the petitioners was that they had heard that said Abdul Latif wanted to purchase the suit house for his brother Muhammad Shafiq and to transfer the same to him after receiving the price from him. It was further averred that the petitioners are not aware if Abdul Latif had paid some amount after taking the same from said Muhammad Shafiq. A reference was also made to a suit filed by Muhammad Shafiq and its being decreed against the predecessor-in-interest of the petitioners. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of the respondent vide judgment and decree dated 5.3.1996. An appeal filed by the petitioners was heard by learned District Judge, Layyah who dismissed the same on 19.4.1999.

2.Learned counsel for the petitioners contends that the property had been sold by them to Shafiq and he has a decree in his favour against the petitioners. Further contends that the impugned judgments and decrees of the learned Courts below are not sustainable.

1. I have gone through the copies of the record appended with this Civil Revision. I find that from the first day the petitioners had been fighting the case of said Shafiq who according to the petitioners has obtained a decree against the petitioners for specific performance. Copy of the plaint of the said suit is on record as Ex. P. 9 while the judgment is Ex. P. 10. According to this document an ex pane decree was passed on 15.10.1985 in favour of the said Shafiq subject to the condition that he shall deposit Rs. 8,000/- upto 30.10.1988 in the Treasury and in case he fails to do so the suit shall stand dismissed.

2. Learned counsel for the petitioners admits at the Bar that the said Shafiq never deposited the said amount in accordance with the terms of the said decree. The result is that the said suit stood dismissed.

3. Learned counsel also informs that the said Shafiq and his wife Mst. Anwari Begum filed an application under Order I, A Rule 10 CPC which was opposed by the respondent. Through this application the said applicants prayed that they be impleaded as a party to the suit as they have obtained a decree for specific performance. The application was heard by the learned trial Court and while rejecting the said application it was held that the said applicants had nothing to do with the suit house as neither the term of the said decree was complied with nor the same was put into execution. The said Shafiq or his wife did not challenge the said order any further. In this view of the matter the sole plea raised by the petitioners that Shafiq had already obtained a decree and as such the present suit could not have been decreed, is without any legal or factual basis. There is no force in this Civil Revision which is accordingly dismissed in limine.]

< A.A.) Revision dismissed.

PLJ 2001 Lahore 209 (DB)

Present -. malik muhammad qayyum and raja muahmmad sabir, JJ.

Mst. GHULAM FATIMA-Petitioner

versus

MEMBER FEDERAL LAND COMMISSION, ISLAMABAD and 5 others-Respondents

W.P. No. 3032 of 1979, decided on 16.10.2000. Land Reforms Regulation 1972 (M.L.R. 115)--

—-Para 25--Constitution of Pakistan (1973), Art. 199-Gift made to petitioner by her brother was deemed to be not valid by Land Commission Authorities-Validity-Donee must be given opportunity to lead evidence in order to prove factum of gift before being deprived of his/her valuable property-Gift deed in question, having been attested by two witnesses, petitioner on her request should have been allowed to produce them in order to prove factum of gift-Mere fact that transaction of gift was not reported to Revenue Officer was not conclusive of controversy in as much as validity of gift was not dependent upon the same having been given effect to in revenue record-Petitioner, thus, should have been allowed to produce evidence which was shut down by relevant official of Land Commission—Impugned orders of Land Commission Authorities whereby petitioner was not allowed to prove factum of gift were set aside and case was remanded to relevant official of Land Commission to record evidence of petitioner and thereafter, decide the matter in accordance with law.

[P. 211] A

1989 SCMR 1924.

M/s. S.M. Zafar, Bashir Ahmad Ch. and Haider Zaman Qureshi, Advocates for Petitioner.

Mr. Muhammad HanifNiazi, Advocate for Respondents. Date of hearing: 3.10.2000.

judgment

Malik Muhammad Qayyum, J.--This petition under Article 199 of the Constitution of Islamic Republic Republic of Pakistan, 1973 arises out of the following circumstances. Respondent No. 6 Khan Muhammad Iqbal Khan was the owner of considerable land. On the promulgation of the Land Reforms Regulation No. 115 he submitted from LR-I and LR-n for scrutiny and determination of his holding. It was indicated in the form that a gift of a parcel of land measuring 1000 Kanals-14 Marias had been made on 23.7.1971 to the petitioner who is declarant's unmarried sister and who has not received her due share in the inheritance. The Deputy Land Commissioner processed the case of the declarant but did not say anything about the gift in favour of the petitioner. Same was the position before the Land Commissioner, Multan. However, during the pendency of the proceedings before the Additional Chief Land Commissioner the petitioner applied for being impleaded as a party and for determination of her title on the basis of gift made to her by her brother Khan Muhammad Iqbal Khan. The Additional Chief Land Commissioner examined the documents filed by the petitioner in support of the gift and came to the conclusion that no valid gift had been made in favour of the petitioner. It was observed that the transaction of gift was not given effect to in the revenue record nor is the petitioner shown to be the owner in the revenue record. It was also observed that the gift has not been properly described in the form LR-I and LR-II filed by Respondent No. 6. It was, however, observed that the counsel for the petitioner offered to substantiate the gift deed through oral evidence of the persons who witnessed this document. This request was declined on the basis that this evidence cannot be called impartial evidence and cannot be accepted in the circumstances of the case. The Additional Chief Land Commissioner, therefore, proceeded to hold that no gift had been made in favour of the petitioner. The matter was then taken to the Federal Land Compaission but the revision filed by the petitioner was dismissed and the order of Assistant Land Commissioner was upheld.

1. Mr. S.M. Zafar, learned counsel for the petitioner has contended that the order of the Additional Land Commissioner as also that of the Member Federal Land Commission is based upon conjectures and surmines and not any legal evidence. It was further argued that the petitioner has been condemned unheard inasmuch she was not allowed permission to lead evidence when she appeared before the Land Reform Authorities.

2. There is considerable merit in this contention of the learned counsel. The Supreme Court of Pakistan in Mst. Aqeedat Jabeen v. Muhammad Aslam Khan Sangi and others (1989 SCMR 1024) has laid down that before being deprived of his valuable property the donee must be given an opportunity to lead evidence in order to prove factum of gift. The gift-deed in this case is attested by two responsible persons. The Additional Chief Land Commissioner himself noted that the petitioner wanted to produce them as witnesses but for wholly untenable reasons refused to record their statements. The mere fact that the transaction was not reported to the Revenue Officer is not conclusive of the controversy inasmuch as the validity of a gift is not dependent upon the same having been given effect to in the revenue record.

3. We feel that in the circumstances of the case the petitioner should have been allowed to produce evidence which was shut down by the Additional Chief Land Commissioner as also the Member Federal Land Commission.

In view of the above, this petition is allowed, the impugned order dated 13.6.1974 of the Additional Land Commissioner and order dated 7.1.1975 of the Member Federal Land Commission are declared to be without lawful authority and of no legal effect and the case is remanded to the Additional Chief Land Commissioner Punjab for a decision afresh after allowing the petitioner an opportunity to produce evidence.

No order as to costs. (A.A.T.) Case remanded.

PLJ 2001 Lahore 212

Present:khawaja muhammad sharif, J.

MIAN MUHAMMAD ASIF--Petitioner

versus

S.H.O. POLICE STATION LYTTON ROAD, LAHORE and 4 others—Respondents

W.P. No. 2924 of 2000, decided on 14.4.2000.

Criminal Procedure Code,1898 (V of 1898)-

—-S. 195(l)(c)-Constitution of Pakistan (1973), Art. 199--Quashing of F.I.R.--Criminal case was registered against petitioner that he being fully aware of the fact that Power of Attorney earlier executed in his favour had been cancelled, had sold property of his principal after cancellation of the same thus, committing fraud upon complainant-Petitioner's contention that S. 195 Cr.P.C. creates bar against registration of case was repeEed on the ground that S. 195(1)(C) of Cr.P.C. has nothing to do in present case in as much as, dispute before Civil Court was not between complaint and petitioner, therefore, no bar could be pleaded against registration of case against petitioner-Petitioner on query of Court, refused to return the sale amount to complainant-Case was still under investigation and allegations levelled against petitioner, prima facie, appear to be true-Petitioner inspite of cancellation of Power of Attorney in his favour had sold land in question to the detriment of petitioner-No case was made out for quashing of proceedings. [P. 214] A, B

Dr. Abdul Basit, Advocate for Petitioner. Mr. Sultan Mehmood Dar, Advocate for Complainant Muhammad Azmat Saeed, Legal Advisor L.D.A. Date of hearing: 14.4.2000.

order

This order will dispose of W.P. No. 2924 of 2000, through which Mian Muhammad Asif seeks quashment of FIR No. 29/2000 registered on ir.2.2000 U/Ss, 420, 468, 471, PPC with P.S., Lytton Road, Lahore.

1. Brief facts of the case as disclosed in the FIR registered on the statement of Muhammad Amin Pasha were that on the basis of general power of attorney executed by Mst.Taj Begum, Muhammad Ishfaq, Mst. Furkhanda Anwar, Mst. Naseem, Mst. Shagufta and Mst. Khalida Shakoor, widow, sons and daughters of Mian Muhammad Sharif, Mian Muhammad Asif entered into an agreement to sell two plots on 16.9.1996 for a consideration of Rs. 16,50,000/- through Shahbaz Estate Agency. Out of the total consideration, Rs. 15.50.000/- were paid in cash while Rs. One Lac was paid through cheque drawn on National Bank of Pakistan Samanabad Branch, Lahore. In fact, it was alleged in the FIR, that the General Power of Attorney in favour of Mian Muhammad Asif had been get cancelled by Mst.

Furkhanda on 29.5.1996. On coining to know about this, Muhammad Amin Pasha, complainant tried to see Mian Muhammad Asif but met with success. It was also alleged in the FIR, that Mian Muhammad Asif had earlier sold two plots in September, 1995 to Muhammad Shakeel and Khalid Azeem for a consideration of Rs. 16,50,000/- for which & ease vide FIR No. 86 dated 4.3.19&S was registered with Police Station Sanda, Lahore for cheating, Grievance of the complainant was that Mian Muhammad Asif knowing fully well that the General Power of Attorney in Ms favour having been cancelled, he carried the complainant and played fraud upon. him.

1. Learned counsel for the petitioner in support of this petition submits that the controversy whether Mian Muhammad Asif was competent to sell the plots in favour of complainant on the relevant date having been finalized by the Civil Court, criminal roceedings could not have been initiated against the petitioner. He elaborates that both the documents, that is, the General Power of Attorney and the cancellation thereof by Mst. Furkhanda having been produced in Court in Civil Suit No. 367-1-1995, in which final Judgment had been rendered and now FAO having been decided by the High Court, Section 195<l)(c) creates bar against registration of a criminal case. According to the learned counsel if the complainant Amin Pasha had any grievance, as alleged in the FIR, the only remedy available with him (SIC) the concerned Civil Court to draw & written (SIC) he appropriate Investigating Authority. He submits that the bar against cognizance taken by Court also applies to criminal investigation because no challan can be submitted before any criminal Court on the basis of impugned FIR. Learned counsel next submits that complainant had purchased four plots. He received back the amount of two plots which fact has been suppressed hi the FIR. The price of plots having decreased in the market, complainant is not entitled to put the machinery of law into motion to exert pressure to obtain refund of the amount He lastly, submits that title of the plots sold to the complainant being dear, petitioner is not responsible for any fraud or cheating.

2. On the other hand, learned counsel for the complainant submits that the petitioner knowing fully well that General Power of Attorney having been cancelled in his favour, fraudulently, sold the plots to the respondents. He reiterated the provision of Sections 420, 468, 471 PPC & submits that from a bare reading of the FIR, offences mentioned in the FIR fully attracted. Learn/! counsel also referred to FIR No. 86/98 registered with P.S., Sanda to demonstrate that Mian Muhammad Asif is ifo the habit of doing such acts, Further states that quashment of FIR No. 86/98 was sought through writ petition which was disposed of as Mian Muhammad Asif had returned the cheated amount to the eftectees. Adds, that petitioner having not come to the Court with clean hands, is not entitled to any discretionary relief.

3. On 8.3.2000, in the presence of learned counsel for the parties, I had asked Mr. Azmat Saeed, Senior Legal Advisor, L.D.A. to ascertain as to whether the title of disputed plots was dear or not Today, Mr. Azmat Saeed, Learned Lepd Advisor appeared and submits that writ petition challenging acquisition proceedings with regard to the land in Mustafa Town is pending adjudication in the High Court and that in such an eventuality he is not in a position to state that title of the disputed plots are clear.

B, I have heard learned counsel for the parties. The contentions raised by learned counsel for the petitioner as to facts of the case and also on kw are not relevant in the instant case. Section 195(l)(c) Cr.P.C. has nothing to do with the present case because the dispute before the Civil Court is between Asif and Furkhanda, complainant being not a party to the Civil Suit has nothing to do with that suit and the fact of the matter is that the General Power of Attorney given to Mian Muhammad Asif on 17.3.1991 was cancelled on 29.5.1996 but he knowing fully well that the power has been cancelled, sold two plots on 16.9.1996 to the complainant, four months after cancellation of the said power. The statement of Legal Advisor for the L.D.A is very much important and relevant in this case. It may also be mentioned here, that Muhammad Shakeel and Khalid Azeem were also cheated by Mian Muhammad Asif for which FER No. 85/98 was registered with P.S., Sanda, Lahore. Writ Petition No. 4895/98 seeking quashment was disposed of by my learned brother Faqir Muhammad Khokhar, J. on the assurance of Mian Muhammad Asif that he was ready to pay the amount which he had received from the aforesaid defrauded persons. I have also tasked if Mian Asif is ready to pay the amount to the complainant but he did not agree and submitted that if it is done, it will amount to opening of "Pandora Bos".

1. The case is still under investigation, the allegation levelled in the FIR, prims facie appears to be true. It was the duty of the petitioner to have informed the complainant before selling the plots that the General Power of Attorney in his name had already been cancelled but he did not do so. No case for quashment of the FIR is, thus, made out and writ petition is accordingly dismissed.

(A.A.) Petition dismissed.

PLJ 2001 Lahore 214

Present: ch. ijaz ahmad, J.

JINNAH SPORTS CLUB (Regd.) through its GENERAL SECRETARY, WAZIRABAD DISTT. GUJRANWALA-Petitioner

versus

PAKISTAN CRICKET BOARD, GADDAFI STADIUM LAHORE through its CHAIRMAN and others-Respondents

C.R. No. 1495 of 1999, decided on 10.4.2000. Civil Procedure Code, 1908 (V of 1908)--

-—O. XVII, R. 3 & O. IX, R, 13—

Dismissal of suit for non-prosecution and non-production of evidence-Application for condonation of delay in time barred application for restoration of suit was dismissed as also the appeal against the same--Validity~Transferee Court had adjourned case in presence of counsel of petitioner, therefore, notice to petitioner/counsel was presumed—Even otherwise, it is the duty aad obligation of party to find out date when the case was fixed before the Court or when case was fixed before the Court to whom case was entrusted to some other court- Clerk's presence in court in absence of his counsel would be deemed presence of the counsel, therefore, non-prosecution of case resulting in dismissal of suit was justified-Petitioner however hr.d brought sufficient . material on record for his non-appearance on specified date—Respondent could not bring on record any rebuttal of that material produced by plaintiff-Courts below thus were not justified in not condoning delay in filing application for restoration-Dismissal of suit was set aside and case was remanded for roceeding afresh in accordance with law on payment of specified costs-In default of non-compliance of payment of costs, remand order would not operate. [Pp. 217,218 & 219] A, B, C & D

PLD 1956 Lab, 439; 1988 MLD 984; 1982 SCMR 1229; 1976 SCMR 399; 1994 SCMR 162; 1989 SCMR 883; 1976 SCMR 179; 1989 SCMR 532;

1993 SCMR 363.

Mr. Abdur Rashid, Advocate for Petitioner.

Mr. Naveed Rasool Mirza, Advocate for Respondent No. 1.

Mr. Muhammad Usman Subhani, Advocate for Respondent No. 5.

Date of hearing: 10.4.2000.

order

Brief facts out of which the present revision petition arises are that the petitioner filed suit for declaration against the respondents before the Civil Judge 1st Class Wazirabad on behalf of the Club. On 12.5.98 the ex pane order was passed against Respondents Nos. 1 to 4. Subsequently defence of Respondents Nos. 5 and 6 was struck off by the trial Court vide order dated 16.8.98 and the case was adjourned for recording ex pane evidence for 27th June, 1998. On 27.6.98 petitioner failed to bring evidence and the case was adjourned for recording exparteevidence for 1.7.98. On 1.7.98 case was adjourned due to the transfer of the Presiding Officer till 2.1.99, when the case was entrusted to Mr. Badar-ud-Din, Civil Judge First Class. On 4.2.99 Ch. Badar-ud-Din, Civil Judge First Class adjourned the case for recording exparte evidence in presence of the learned counsel of the petitioner for 5.3.1999. On 5.3.1999 the petitioner failed to bring the evidence and the case was adjourned with last opportunity to the petitioner to bring evidence and the case was adjourned for 22.3.1999. The petitioner failed to bring the evidence and the case was decided exparte and dismissed for non-prosecution on 27.3.1999. The petitioner being aggrieved by the aforesaid order filed application for restoration of the caw on 1.5.99 alongwith the application for condonation of delay under Section 5 of the limitation Act The learned Civil Judge dismissed both the applications videorder dated 19.5.99. The petitioner being aggrieved filed appeal before the Addl. District Judge, who dismissed the same videorder dated 26.5.99, hence the present revision petition.

1. The learned counsel of the petitioner submits that it is the duly and obligation of the transferee Court to send fresh notice to the petitioner for appearance but the transferee Court did not do this, therefore, basic order is without lawful authority and in violation of principle of natural justice. He further submits that presiding officer was erred in law to mark the presence of the clerk of the petitioner on 5.3.99. He further submits that petitioner is a General Secretary of the dub and was injured on 28.10.98 and was admitted in the hospital. The petitioner filed application under Section 5 of the Limitation Act for condonation of delay which was backed by FIR and affidavit of the petitioner and Medical Certificate of the doctor but both the courts below did not consider this aspect of the case. He further submits that the trial Court did not dismiss the suit for non-prosecution but dismiss the same under Order 17, Rule 3 CPC which is not in accordance with the spirit of Order 17(3) of the CPC as there was no material on the record. He further submits that it is the duty and obligation of the trial Court to frame the issue and then decide the application of the petitioner after recording the evidence of the parties. He further submits that case was adjourned on various dates due to the non-availability of the Presiding Officer from 1.7.98 to 2.1.99 but both the Courts below did not consider this aspect of the case.

2. The learned counsel of the Respondent No. 1 submits that the suit was dismissed for non-prosecution on 22.3.99 and the petitioner filed application for restoration of the same on 1.5.99 which was highly time barred. He further submits that petitioner failed to file affidavit of the advocate and both the Courts below were justified to dismiss the application of the petitioner. He further submits that the suit was filed by the club but nobody entered appearance on behalf of the dub to inform the counsel of the petitioner or the Court that the Secretary was injured in the aforesaid incident on 28.10.99. He further submits that both the courts below have given concurrent finding of fact against the petitioner and this Court has no jurisdiction to disturb the finding of fact while exercising power under Section 115 CPC.

The learned counsel of the petitioner in rebuttal submits that superior courts insisted that cases must be decided on merits instead of technicalities.

1. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record yself. It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties :--

(i) Petitioner filed suit for declaration with permanent injunction on 9.2.98.

(ii) Ex-parte order was passed by the trial Court against Respondents Nos. 1 to 4 on 12.5.98.

(ill) On 16.6.98 defence was struck oft qua Respondents Nos. 5 and 6 by the trial Court.

(iv) Case; was adjourned for ex-parte evidence for 27.6.98.

(v) On 27.6.98 case was adjourned due to transfer of the Presiding Officer.

(vi) Subsequently case was adjourned for the said reason till 2.1.99.

(vii) On 2.1.99 case was entrusted to Ch. Badar-ud-Din Civil Judge 1st Class and case was adjourned for recording ex-parte evidence for 4.2.99.

(viii) On 4.2.99 case was adjourned for recording ex-parteevidence in presence of the counsel of the petitioner for 5.3.99.

(ix) Oa 5.3.99 clerk of the petitioner was present and case was adjourned for recording ex-parte order and provided last opportunity to the petitioner to bring his evidence and the case was adjourned for 22.5.99.

(x) On 22.3.99 case was dismissed in the following terms ;--(si) Petitioner filed application for restoration of the suit on 1.5.99 alongwith application for condonation of delay u/S. 5 of the Limitation Act.

(xii) The contents of para 2 for the application for condoned that petitioner could not appear on the said date of hearing because he sustained injuries through fire-arms and case was also registered in this respect vide FIR No. 549-98 on 30.10.98 at Police Station Wazirabad.

(xiii) Application was also backed by the medical certificate.

(xiv) The application was dismissed by the trial Court vide order dated 19.5.99.

(xv) Appeal filed, the same was also dismissed vide order dated 26.5.99.

The aforesaid facts are put in juxtaposition then it shows that case was entrusted to Ch. Badar-ud-Din Civil Judge 1st Class and petitioner's counsel was present on 2.1.99 before the learned Presiding Officer and case was adjourned in bis presence for 4.2.1999. Therefore, contention of the learnedcounsel for the petitioner that petitioner has no notice that the case has been entrusted to Ch. Badar-ud-Din Civil Judge 1st Class has no force. Even otherwise after the Law Reforms Ordinance 1972 it is the duty and obligation of t22222222he party to find out a date when the case is fixed before the Court to whom the case was entrusted as per principle laid down by the Hon'ble Supreme Court in the following judgment:

198,7 SCMR150 (S. Irshad Hussain & another vs. Azizullah Khan & another).

Order dated 5.3.1999 also reveals that clerk of the petitioner's counsel was present on 5.3.99 when the case was adjourned for 22.3.99. It is settled proposition of law that a lawyer is fuUy responsible for the acts of his clerk. in arriving to this conclusion I am fortified by the following judgments :--

PLD 1950 Lahore 439 (In the matter of Sh. Abdul Karim and Advocate).

1988 MLD 984 (National Bank of Pakistan vs. Champhar (Pakistan Ltd.).

Therefore, contention of the learned counsel for the petitioner that learned Presiding Officer was erred in law to mark the presence of the petitioner's counsel is not sustainable in the eyes of law. It is no doubt that petitioner has irought sufficient material on record to justify his non-appearance but the petitioner failed to bring on record any material for non-appearance of his counsel on the said date. It is also settled principle of law that petitioner has to explain the cause of non-appearance of his counsel as per principle laid down by the Hon'ble Supreme Court in the following judgments: ~

1982 SCMR 1229 (Rafiq Ahmad vs. Abdul Haleem).

1976 SCMR 399 (Chiragh Din & 4 others vs. Mst. Jannat Bibi etc.)

1974 SCMR 162 (ZulfiqarAli vs. Lai Din & another).

The word sufficient cause mentioned in Section 5 of the Limitation Act is also interpreted by the superior Courts and defined the word sufficient cause means a cause beyond control of party. It is a question of fact that varies from case to case and ultimately it rests on the decision of the Court and it should receive liberal construction so as to advance cause of substantial justice. The aforesaid facts dearly reveal as mentioned above that the petitioner did not bring on record any sufficient material for non-appearance of his counsel on 22.3.99 but the petitioner has brought sufficient material for his non-appearance on the said date. The application was supported by the medical certificate affidavit and FEB.; the respondents failed to file counter affidavit. The para-meter of each case would primarily be its own facts, which would have to be taken into consideration for determining as to whether the sufficient cause is shown or not The Hon'ble Supreme Court in Mst. Begum and others vs. Mst. Begum Kaniz Fatima Hayat (1989 SCMR, 883) has laid down the following principle:

"This Court has also emphasized that the rules of procedure are not to be too technically applied but are construed to foster the cause of

justice."

It is established that the appellant sustained injuries by fire-arms on 28.10.98 and remained under treatment till 5th May 1999. This fact brings the case in the area that the possibility cannot be ruled out that petitioner did not receive intimation well in time from his counsel. It is a sufficient cause for non-appearance in arriving this conclusion I am fortied by the judgment of this Court in Muhammad Sharif vs. Settlement Department (NLR 1989 U.C 419). As mentioned above, the respondents failed to file any counter affidavit to challenge the authenticity of the medical certificate and in rebuttal of the affidavit. In absence of that both the courts below were not justified in not condoning nine days delay in filing the application for restoration. In a judgment reported in 1976 SCMR 79 (Abdul Karim vs. Muhammad Ibrahim), the Hon'ble Supreme Court held as follows:

"Limitation Act (IX of 1908), S. 5, Condonation of delay. Respondent filing affidavit explaining reason preventing him from filing appeal withintime and such allegation not refuted by a counter-affidavit. Delay, held, rightly condoned."

After Addition of Article 2-A in the Constitution, the Hon'ble Supreme Court insisted that cases must be decided on merits instead of technicalities in Sher Muhammad's case PLD 1989 S.C. 532. The relevant observation m as follows:

"A party should not be denied a relief on account of technicalities in the procedural law as the same is formed for the purpose of regulating the legal proceeding through their design extended and design of foster the cause of justice rather than to defeat it.

Subsequently, the aforesaid judgment was also considered in Mst. Sardaran's case (1993 SCMR 363) and followed the same principle.

In view of what has been discussed above, the revision petition is allowed. The impugned decisions are set-aside and the case is remanded to the original Court with direction to proceed with its trial in accordance with law. Petitioner-plaintiff shall deposit amount of costs Rs.. 5000/- in the trial Court within two months and shall also pay Rs. 1000/- as costs of this revision to the respondents within the same period as per Principle laid down by the Hon'ble Supreme Court in 1989 SCMR 883 (Mst. Begum and others vs, Mst. Kaniz Fatima Hayat). In default of compliance as to the payment of above sets of costs, the remand order shall not operate and the revision shall be deemed to have been dismissed with costs. Parties are directed to appear before the trial Court on 18.4.2000. The trial Court is directed to conclude the trial as expeditious as possible.

(A.A.) Case remanded.

PLJ 2001 Lahore 220

Present: SAVED ZAHID HUSSAIN, J.

MAJOR MUHAMMAD NAWAZ KHAN-Petitioner

versus

JAMAAT-E-AHMEDIYA through ABDUR REHMAN AMIR JAMAAT-E-AHMEDIYA JARANWALA DISTT. FAISALABAD and 5 others-Respondents

W.P. No. 3613 of 1994, decided on 14.12.2000.

Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958)--

—S: 2(4)--Constitution of Pakistan (1973), Art 199-Allotment to petitioner of portion 'C' of the house alongwitb three times the plinth area after remand proceedings-Validity-Petitioner being in possession of 'C' portion of house fought for the whole of the property but did not succeed- -Matter of entitlement stood clinched by judgment of Supreme Court when his petition for leave to appeal was dismissed taking the view that petitioner having been transferred main Bungalow, the maximum he was entitled to was certain portion of plinth are of the Bungalow in addition to the Bungalow-Petitioner, thus, could not claim over and above three times the plinth area of the house transferred to him in terms of S. 2(4) of Displaced Persons (Compensation and Rehabilitation) Act, 1958- Settlement Commissioner's impugned direction to Deputy Settlement Commissioner to carryout measurement of the area and to work out surplus for disposal in accordance with law was valid and in accordance with law-There being no illegality with impugned order so as to warrant interference by High Court in equitable jurisdiction under Art 199 of the constitution. [Pp. 222 & 224] A, B

1972 SCMR 545; PLD 1983 SC 143 and PLD 1991 SC 1.

M. Iftikhar Ahmad Mian, Advocate for Petitioner. Ch. Aamar Rehman, Advocate for Respondent No. 1. Nemo for others Respondents. Date of hearing: 8.12.2000.

judgment

House No. 3-5 situated in Jaranwala, an evacuee properly consisted of three independent units described as portion A, B & C. On 7.3.1960, the Deputy Settlement Commissioner transferred portion C to the petitioner, portion A to Fateh Muhammad and others and the transfer of portion B was deferred by making reference to the Additional Settlement Commissioner, which was stated to be occupied by Jamaat-e-Ahmadia, An appeal was filed by the petitioner which was disposed of by the Additional Settlement Commissioner accepting the same to the extent of portion A by giving the same to the petitioner. However, his appeal with regard to portion B w.as rejected on 19.8.1960 by observing that the same was being used by Anjaman-e-Ahmadia as a Jamaat Khana. Fateh Muhammad challenged this order by filing revision, which was dismissed by the Settlement Commissioner. His second revision also was dismissed. He filed Writ Petition No. 473-R/62, which was accepted by a learned Single Judge (Late Anwarul Haq, J as he ten was) remanding the matter to the Additional Settlement Commissioner. LPA No. 82/66 was filed by the petitioner, which was dismissed on 25.2.1974. The matter was then taken up by Agha Nasir Durrani, Settlement Commissioner on 23.9.1981, who rejected the petitioner's claim for the transfer of portion A with the direction to the Deputy Settlement Commissioner to work and determine the entitlement of the petitioner for the land attached to bungalow as per policy.

2, As to portion B, the learned Settlement Commissioner vide his order dated 9.8.1961 remanded the matter to the Additional Settlement Commissioner for fresh decision in the light of scheme promulgated by the Central Government on 19.5.1961, which dealt with such like properties. On remand, the Additional Settlement Commissioner on 9.6.1964, found portionB being used by Jamaat-e-Ahmadia Respondent No. 1 for their religious purposes and directed its transfer to them. The petitioner challenged that order by filing a revision petition, which was accepted by the Settlement Commissioner on 26.11.1965, who was of the view that portion B was part of the bungalow which had been allotted to the petitioner, it should also be transferred to him. This order was challenged by Respondent No. 1 by filing Writ Petition No. 356-R/66. The said petition was disposed of on 21.11.1968 by remanding the matter to the Settlement Commissioner for fresh decision in accordance with law. On remand, the Settlement Commissioner on 13.11.1973 found that the petitioner could not claim transfer of portion B. As to the entitlement of Respondent No. 1 for the transfer of the same, he remanded the matter to the Deputy Settlement Commissioner. The above order was challenged by the petitioner by filing Writ Petition No. 981-R/73,which was dismissed by the same learned Judge (Late K.E. Chauhan, J as he then was) on 13.12.1973, who had decided Writ Petition No. 356-R/66. This order was challenged by the petitioner by filing C.P.S.L.A No. 154/74, which was dismissed by the Hon'ble Supreme Court on 3.7.1974. In this way the contest of the petitioner concluded with the judgment of the Supreme Court.

1. The same order of the Settlement Commissioner dated 13.11.1973 was challenged by Respondent No. 1 in Writ Petition No. 490- R/74, which petition was accepted on 30.9.1974 by M.S.H. Qureshi, J (as he then was) and the order of the Settlement Commissioner was found suffering from certain defects directing the Settlement Commissioner to decide the matter afresh in accordance with law. In pursuance of this remand order Mr. Muhammad Khalil Bhatti, Additional Commissioner (Revenue) Faisalabad Division Faisalabad exercising the powers of Settlement Commissioner took up the matter, inspected the spot and found that Jamaat-e-Ahmadia was in possession since 1952 of portion B and the area between this building and the path leading to the portion 'C'. and observed that portion B the description of which was given by Mm shall stand transferred to Jamaat-e-Ahmadia. He further observed that the petitioner was entitled to the allotment of portion C alongwith three times the plinth area. The operative part of his order is as follows :

"So DSC Faisalabad is directed to measure the area which is left out from portion \A' and 'B' and then take into account the built up area of portion "C' as on 20.12.1958 ignoring the constructions made thereafter. Then three times of the plinth area will be given to Major Muhammad Nawaz Khan on the northern side of the path and if further area is required in the south of the path, it will adjacent to portion 'C'. The surplus area will be carved out adjacent to portion 'A' between the 20 feet path and there street on the southern side. This surplus area should be clearly demarcated and will be put to auction according to the rules for disposal of residual properties".

The petitioner felt aggrieved of this order and filed the present writ petition.

1. It is contended by the learned counsel for the petitioner that Transfer Order (TO) having already been issued in favour of the petitioner on 20.6.1983, interference with the property transferred to the petitioner was neither warranted nor permissible under the law. It is contended that after the matter of transfer had become final with the order dated 23.9.1981, no modification could be made by the Settlement Commissioner as to the extent of his entitlement.

2. On the other hand, the learned counsel for Respondent No. 1 contends that the impugned order has been passed by the Settlement Commissioner in pursuance of long litigation pertaining to the entitlement of the parties and the Settlement ommissioner has passed the order after spot inspection in the presence of the parties concerned ; no grievance can be made by the petitioner about the same. It is contended that order dated 3.9.1981 relied upon by the petitioner is ineffective qua the rights and entitlement of Respondent No. I, which had been passed by the Settlement Commissioner in the absence of Respondent No. 1. It is further contended that any measurement carried out in pursuance thereof and transfer docu­ ments issued are of no effect as at that time the matter was still subjudice in pursuance of remand order passed in Writ Petition No. 490-R/74.

3. From the above mentioned background of the case, it is evident that the petitioner had been in possession of main bungalow described as portion C. He fought for the whole of the property but did not succeed. The matter of his entitlement stood clinched by the judgment of the Supreme Court in CPSLA No, 154/74, when his petition was dismissed taking the view that "the petitioner_.has_been transferred the main bungalow and the maximum that he is entitled to is a certain proportion of t^e plinth area,of the main bungalow in addition to the bungalow. If the gate-houses or the superstructures at the gate are beyond this limit he can in no event be entitled to the same". The petitioner thus could claim a certain portion of the plinth area in addition to the main bungalow. The extent to which a person is entitled under the law is three times the plinth area. This is so in view of Section 2(4} of Displaced Persons (Compensation and Rehabilitation) Act, 1958, which defines the expression 'House' and has come to be considered in a number of judgments. In Muhammad Aslam Khan v. Chief Settlement Commissioner (1972 SCMR 545), it was held that transferee was not entitled to more than three times of plinth area of house transferred to him. In Muhammad Bashir vs. Settlement and Rehabilitation Commissioner (PLD 1983 SC 143) it was observed that "a house within the meaning of the Act would only be an evacuee residential premises alongwith three times its plinth area and the remaining land would be an area which was no longer a part and parcel of the house and therefore, could not be transferred in connection with the transfer of the house. In Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1), the matter was again dealt with by their lordships quite elaborately and it was held that in case the land attached to the house transferred to a person exceeds three times its plinth area, no claim could be laid to the excess land by virtue of transfer documents issued by the Settlement Department.

4. In the present case, reliance is placed on a report which was approved by the Deputy Settlement Commissioner on 16.4.1983 and T.O. was issued in pursuance thereof. Such an exercise was undertaken by the Deputy Settlement Commissioner in pursuance of order dated 23.9.1981 of the Settlement Commissioner, Rawalpindi Camp at Faisalabad, the operative part whereof is as follows:

"The revision petition filed by the petitioner therefore, finds no merits so far as his claim for transfer of portion A aJongwith the portions C main bungalow is concerned and as such it is rejected. However, the order of the learned Deputy Settlement Commissioner so far it relates for resumption of the land attached with the main bungalow in favour of Government is concerned, those remarks need to be modified to this extent only that the entitlement of the petitioner for the land attached with the bungalow be worked out and determined by the Deputy Settlement Commissioner in accordance with the instructions and policy prevailing at the time of filing this appeal/revision." The matter then came to the Deputy Settlement Commissioner. He appeared to have entrusted it to an official of the Department for measurement and demarcation, who reported that total area of the property was 11 Kanals and 13 mar-las and worked out the entitlement of the petitioner to 8 Kanals 10 marlasand 179 Sq by adding four times the plinth area. The said report was approved by the Deputy Settlement Commissioner and to issued accordingly thereafter. The report shows that none-else was associated with the process of measurement and demarcation except the petitioner and his entitlement was worked out by including four times the plinth area whereas the entitlement under the law was only to the extent of three times the plinth area. The Deputy Settlement Commissioner approved the same without application of his own mind ignoring the legal position as to the extent and entitlement to the plinth area. The petitioner cannot therefore, legitimately base his claim on such a report or the TO issued in pursuance thereof.

1. The learned counsel for Respondent No. 1 contended that in any ase any such determination would not bind Respondent No. 1 who had not een associated in the process by the Deputy Settlement Commissioner. The binding force and effectiveness of such an order or the TO issued in pursuance thereof was considered in the case of Muhammad Din and others (supra). In that case PTD for the property had been issued by endorsing the report of the patwari that, there was no land beyond three times of he covered are, in the year 1962. On the initiation of certain persons that the transferee was holding area much in excess of his entitlement, it was reopened by the Settlement Commissioner and on inspection by the Deputy Settlement Commissioner of the site it was found that PTD had been issued for the excess than the entitlement of three times the plinth area. The order of the Deputy Settlement Commissioner was challenged by the transferee before this Court, which was declared to be without lawful authority in iew of the PTD having already been issued. An ICA against the order of the earned Single Judge failed and the matter reached before their lordships of Supreme Court. The argument that after issuance of PTD, it was not permissible for the Department to reopen the matter was repelled by their lordships and it was held that "Respondent No. 1 cannot lay a claim to this area under the transfer documents issued in his favour, as such it has to be treated as still available for disposal". It was further observed at page 11 hat" in the proceedings held by the Deputy Settlement Commissioner, the legality or propriety of the transfer of the house to espondent No. 1 was not in any way in issue. The inquiry was confined to the question whether there was an excess area which could not under the law be treated as part of the house and for that reason did not stand transferred to Respondent No. 1 under the transfer documents issued in his favour". The appeal was accordingly accepted by their lordships with a direction to the Board of Revenue to dispose of the excess land in accordance with the relevant scheme.

2. This being the legal position obtaining in the matter, the petitioner cannot lay claim over and above three times the plinth area of the house transferred to him. What has been transferred in excess of his entitlement is not sanctified by law and has to be dealt with in accordance q with law. That is what the Settlement Commissioner has done through the impugned order by issuing a direction to the Deputy Settlement Commissioner to carry out measurement of the area and to work out the surplus for disposal in accordance with law. The petitioner cannot have any legitimate grievance qua the same. There is no illegality with such an order so as to warrant interference by this Court in equitable jurisdiction .under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is however, observed and expected that while carrying out measurement and demarcation, the functionary concerned shall associate the parties concerned with the process and keep their requirements in view while demarcating the excess area.

3. This petition is dismissed accordingly with the above observation. No order as to costs.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 225 [Multan Bench Multan]

Present:maulvi ANWAR-UL-HAQ, J. AMIR HUSSAIN SHAH (deceased) through L. Rs. and others-Appellants

versus

RANJHA and others-Respondents R.S.A. No. 25 of 1982, heard on 30.5.2000. Punjab Tenancy Act, 1887 (XVI of 1887)--

—-S. 5-Civil Procedure Code, 1908 (V of 1908), S. 100-Appellant's claim to be occupancy tenants of land in question was rejected by Courts below- Validity-Appellant's did not even claim that they or their predecessors had been in possession of land in question, at the time of commencement of Punjab Tenancy Act, 1887, which is the requirement to claim occupancy tenancy-Provisions of S. 5(l)(a) and S. 5(2) of Punjab Tenancy Act, 1887, would lead only to one conclusion that person claiming occupancy tenancy must prove that he had been in possession for a period of 30 years prior to the date of commencement of said Act i.e. 1.11.1887— Presmption in such case would be that the person claiming such possession was in fact in possession for two generations in male line of descent through grandfather or granduncle-Appellants and their predecessors being not in possession on the commencement of Punjab Tenancy Act, 1887 i.e. 1.11.1887, could not claim to be occupancy tenants-Courts below had rightly denied to petitioners relief claimed by them, therefore, judgments and decrees of Courts below would not warrant interference in second Appeal. [P. 227] A

Mr. Muhammad Khalid Alvi, Advocate for Appellants.

Ch. Muhammad Jamal, Advdcate for Respondent No. 1.

Mr. Mushtag Ahmad Hashmi, Advocate for Respondents Nos. 1 to 5.

Mr. Khizar Hayat, Advocate for Respondents Nos. 6, 8 and 10 to 15.

Date of hearing: 30.5.2000.

judgment

On 6.5.1974, the appellants filed a suit seeking a declaration that they are owners of the suit land being its occupancy tenants which occupancy tenancy having been abolished and under the provisions of Law, they have become the owners of the land and in the alternate it was prayed that they have become owners of the land by way of adverse possession. According to the plaint, Bisharat Shah, the predecessor of the appellants dug a well and made the land culturable somewhere in the year 1903 and the fact was recorded in "Short Wqjib-ul-Ars" by the Settlement Officer on 13.8.1904 whereafter the said Bisharat Shah had been occupying the land and so are the appellants. There is an allegation in the plaint also that the occupancy started in the year 1898 and that the appellants or their predecessor had not been paying any rent other than the Government dues. The suit was contested by the respondents who stated that the appellants are occupying the suit land as non-occupancy tenants under them. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide a Judgment and decree dated 11.6.1978. A first appeal filed by the appellants was heard by a learned Addl. District Judge-I, Muzaffargarh who dismissed the same on 16.1.1982.

2» Learned counsel for the appellants contends that the appellants had proved that they had been in possession of the land for over 30 years and as such they shall be deemed to be occupancy tenants within the meaning of Section 5 of the Punjab Tenancy Act, 1887.

Learned counsel for the respondent\ support the impugned Judgment and decrees.

1. I have gone through the records of the learned trial Court. To my mind, this matter can be decided on the basis of the allegation in the plaint itself read in the light of the provisions of Section 5 of the said Act. In view of the plea taken by the learned counsel, the relevant portions of Section 5 applicable would be Section 5(l)(a) and Section 5(2) of the said Act. The terms for acquisition of a right of occupancy according to Section 5(l)(a) are as follows-

(a) the person concerned must be in possession of the land at the commencement of the said Act;

(b) the possession must relate back to two generations in the male line of descent through grand-father or grand-uncle; and

(c) the period of possession must not be less than 20 years on the said date.

The date of commencement of the said Act is 1.11.1887.

1. Sub-section (2) of Section 5 of the said Act provides that

"If a tenant proves that he has continuously occupied land for 30 years and paid no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon it may be presumed that he has fulfilled the conditions of clause (a) of sub-section (1) of Section 5 of the said Act."

It is this sub-section (2) of Section 5 of the said Act which has been sought to be pressed into service by the learned counsel for appellants. I have already referred to the contents of the plaint It is not even the case of the appellants that they or any of their predecessors had been in possession of the land at the time of commencement of the said Act i.e. 1.11.1887. By no stretch of imagination can the interpretation sought to be placed by the learned counsel on the said Section 5(2) of the said Act is possible or even plausible. A combined reading of sub-section (l)(a) and sub-section (2) of Section 5 of the said Act can lead only to one conclusion i.e. if the person claiming right of occupancy can prove that he had been in possession for a period of 30 years prior to the date of commencement of the said Act i.e. 1.11.1887 then the presumption would be that he is so in possession for two generations in the male line of descent through a grand-father or grand-uncle. It would forder on absurd if it was to be held that any person at any time may walk into the Court and simply by alleging and proving that he is in possession of the land for 30 years be held to be a holder of occupancy rights in the suit land. On the other hand, the plain reading of Section 5 of the said Act leaves no manner of doubt that a plaintiff in the case must prove that the person whose successor-in-interest he claims to be must be in occupation of land on 1.11.1887. There is no way that this intention can be attributed to the framers of the Punjab Tenancy Act, 1887 that they intended to allow acquisition of the rights under Section 5(l)(a) of the said Act after the passing of the Punjab Tenancy Act, 1887.

1. No other point has been urged. This R.S.A. is without any force and is accordingly dismissed with costs.

(A.A.) Appeal dismissed.

PLJ 2001 Lahore 227 [Muitan Bench Multan]

Present: maulvi anwar-ul-haq, J. RASHID AHMED-Petitioner

versus

MANZOOR MAI and another-Respondents W.P. No. 4042 of 2000, decided on 3.5.2000. Family Courts Act, 1964 (XXXV of1964)--

—S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Suit for recovery of maintenance-Respondent taking special oath in the manner offered by petitioner-Respondent's suit was decreed on basis of special oath offered by petitioner-Validity-Petitioner's plea that Court should not have acted on his offer and should have instead given him chance to lead evidence and that provisions of Oaths Act, 1873 were not applicable to proceedings before Family Court was repelled-Petitioner had not denied in his writ petition that he did not make offer of his own free will or that the same was not accepted that the oath as taken in accordance with law-No prohibition was spelt out in any law including Family Courts Act, 1964 and Oaths Act, 1873 that provisions of latter Act were not applicable to proceedings in the former Act-Judgment and decree rendered by Trial Court warranted no interference. [P. 229] A

1984 CLC 368;

Syed JavaidAli Eukhari, Advocate for Petitioner. Date of hearing: 3.5.2000.

order

C.M. No. 1/2000

This application for dispensing with filing of copies of unspecified documents is dismissed.

C.M. No. 2/2000

For orders to be passed in the main case, no order need be passed in this C.M. Disposed of.

Main Case.

Respondent No. 1 is the wife of the petitioner. She filed two suits: one for recovery of maintenance allowance and other for recovery of her prompt dower against the petitioner. Regarding the dower, the case of the petitioner was that the petitioner had her dower. So far as the claim of Respondent No. 1 for maintenance for herself and her children, he admitted that he had contracted a second marriage. He did not even alleged that he is paying any maintenance to the children. On 1.4.2000 the petitioner put in appearance alongwith his learned counsel and made a statement that he is prepared to pay maintenance to his wife and children @ Rs. 400/- per person per month. Respondent No. 1 accepted the said statement, although she had claimed maintenance @ Rs. 2,100/- per month for the three plaintiffs w.e.f. four years and 7 months prior to the filing of the suit. Consequently the suit for recovery of maintenance was decreed in accordance with the statement of the petitioner. On the same date, the suit for recovery of dower was taken up wherein the petitioner made an offer that in case the Respondent No. 1 takes a special oath on Holy Qur'an that she had not given up her claim to the dower, the suit be decreed. This offer was also accepted by Respondent No. 1 who took the special oath in the manner offered. Consequently this suit was also decreed and the Judgment and decrees in both the suits were passed on 4.2.2000.

2,Learned counsel for the petitioner contends that the learned Respondent No. 2 should not have acted on the offer of the petitioner, and should have instead given him a chance to lead evidence. According to the learned counsel the provisions of Oaths Act, 1873 are not applicable to proceedings before the Family Court.

1. I am afraid the said arguments of the learned counsel are absolutely without force and do not even merit any consideration. In his Writ Petition, the petitioner has not even denied that he did not make the offer of his own free will or that it was not accepted or that the oath was not taken in accordance with the same. So far as the second argument of learned counsel is concerned, the same is also without any force. There is no prohibition spelt out in any Law including the Family'Courts Act, 1964 and Oaths Act, 1873 that the provisions of latter Act are not applicable to proceedings in the former Act. Reference be made to the case of "Janat Bibi vs. Maula Bakhsh" (1984 CLC 368). No other point has been urged. The Writ Petition is dismissed in limine.

lA-A.) Petition dismissed.

PLJ 2001 Lahore 231

Present: SAVED NAJAM-UL-HASSAN KAZMI, J.

MASHREQ BANK-Petitioner

versus

M/s. INVESTMENT CORPORATION OF PAKISTAN

through its MANAGER SHALIMAR HOUSE, LAHORE

and another-Respondents

Writ Petition No. 8092/1998, heard on 6.101998.

Punjab Urban Rent Restriction Ordinance, 1959 (W.P. Ord. IV of

1959)--

—S. 13—Constitution of Pakistan, Art. 199-Ground of personal need--Whether during ejectment proceedings on ground of personal use, Rent Controller can compel landlord to agree for new terms and conditions of lease or tenant can ask for enforcement of new terms of tenancy-­Question of-While keeping pending ejectment proceedings. Rent Controller on respondent's application directed petitioner to take partial possession of tenanted premises as vacated by it voluntarily and its rent should be taken as reduced to that proportion—Challenge to—Held: It was not a case of determination of fair rent-Rent Controller was expected to record evidence and determine as to whether rented premises was required in good faith by petitioner bank for need of its staff, but instead of determining this issue, it entertained application for rateable reduction in rent, though no such issue was pending—If tenant had opted to vacate a part of rented premises voluntarily and not in terms of any compromise or agreement, Rent Controller could not compel landlord to agree for new terms and conditions of lease-Tenant had either to vacate the premises in totoor it could claim variation in terms of tenancy on basis of any subsisting valid agreement-Held further: Ordinance does not authorise Rent Controller to issue direction for reduction in rate of rent, which had effect of variation in terms and conditions of lease-­ Petition was accepted and direction of Rent Controller was held as illegal and without jurisdiction. [P. 233] A

Rashdeen Nawaz, Advocate for Petitioner. Mr. Bashir Ahmed,Advocate for Respondents. Date of hearing: 6.10.1998.

judgment

Petitioner filed an application U/S. 13 of Punjab Urban Rent Restriction Ordinance for seeking eviction of Respondent No. 1 from the premises in issue, on the grounds of personal use. It was pleaded that the existing premises in occupation of the petitioner was not sufficient to cater the needs of bank employees and, therefore, the rented premises was required to accommodate the staff of the petitioner-bank.

1. Respondent No. 1 resisted the ejectment petition, denied the plea of personal use and challenged the authority of Saleem Khan to institute the ejectment petition on behalf of the bank. It was alleged that the ejectment petition was filed with mala fide intentions.

2. During the pendency of the ejectment petition, the respondent filed an application for determination of rent wherein it was alleged that the respondent had vacated fourth floor of the building and the petitioner could take possession thereof. The application was resisted by the petitioner. The learned Rent Controller vide order, dated 31.3.1998, observed that the agreement of lease was admitted document, the rate of rent was not in issue and since the respondent had allegedly vacated fourth floor of buildings, therefore, the rent should be reduced. Accordingly, the Rent Controller, directed that the petitioner should take possession of fourth floor while the rent should be reduced proportionately. Against this order, the present Constitutional petition has been filed.

3. Learned counsel for the petitioner, argued that the ejectment petition is still pending, the case is at evidence stage and, therefore, the learned Rent Controller could not proceed in piecemeal nor had any jurisdiction to reduce the monthly rent. In defence, learned counsel for the respondent argued that the petition was not filed competently, the respondent had offered the petitioner to take possession of the fourth floor and, therefore, the rent could be proportionately reduced. It was added that the respondent could at any stage ask for the reduction in rent by offering return of a portion of the rented premises.

4. The proceedings before the Rent Controller were initiated U/S. 13 of Punjab Urban Rent Restriction Ordinance, 1959 which contemplate, that if on inquiry, it is found that the tenant has committed default, or that the rented premises is required in good faith and bona fide manner by the landlord or that the other grounds available for eviction are proved, a direction for eviction of the tenant from the rented premises is to be issued by the Rent Controller. It was not a case of determination of fair rent. Rather, it was a petition seeking eviction on the ground of personal use. The Rent Controller was expected to record evidence and to determine as to ^whether the rented premises was required in good faith and bona fide manner for the petitioner bank for the needs of his staff and if the requirement was established, he had to pass an order of eviction. Instead of determining the issues arising in this case, the learned Rent Controller adopted a novel way to deal with the matter. The application for rateable reduction of the rent was entertained, though no issue of determination of rent was pending before the Rent Controller. If the tenant had opted to vacate a part of the rented premises voluntarily, and not in terms of any compromise or agreement, then it could not compel the landlord to agree for any new terms and conditions of lease. The premises was rented out on agreed terms and conditions. Either the tenant had to vacate in toto by

accepting the plea of personal use raised by the landlord or it could claim variation in terms of tenancy on the grounds of any subsisting valid agreement The tenant could not unilaterally determine the terms and conditions or ask for reduction in rate of rent nor the Rent Controller could at the initial stage issue any direction for the reduction of rate. No doubt the tenant could accept the claim of the landlord and on such acceptance, the Rent Controller could direct straightaway ejectment without further inquiry but the tenant could not ask for enforcement of new terms of tenancy, during the pendency of the ejectment proceedings on the ground of personal use. There was no provision in the Ordinance, authorising the Rent Controller to issue direction for the reduction in rate of rent, which had the effect of variation in the terms and conditions of lease. The learned Rent Controller, therefore, acted illegally and without jurisdiction, while issuing a direction for variation in terms of the lease during the pendency of the main ejectment petition.

1. For the reasons above, this writ petition is allowed and the impugned order is set aside. The Rent Controller is directed to decide the application on merits after recording the evidence of the parties. No order as to costs.

(S.A.K.M.) Petition allowed.

PLJ 2001 Lahore 234

Present:muhammad akhtar shabbir, J.WAPDA-Petitioner

versus

AMIN ICE FACTORY-Respondent Civil Revision No. 1309 of 1999, decided on 16-9-1999. Electricity Act, 1910 (IX of 1910)--

—S. 54-C read with Ss. 24, 39-A-Civil Procedure Code, 1908, S. 115, 0. 39, R. 1 & 2-Without show cause notice-Disconnection of electric supply for non-payment of detection bill-Trial Court ordered restoration of electric supply to respondent on condition of its depositing Rs. 10 lac in cash and furnishing surety bond for remaining amount-Petitioner's appeal was dismissed by A.D.J., but respondent was directed to deposit Rs. 15 lac-Challenge to--Petitioner contention that injunctive order could not have been issued without deposit of all outstanding amount-Held : If u/Section 24(1) of Electricity Act, licensee has given 7 days clear notice to consumer prior to disconnection of electric supply for non-payment of amount assessed against him, then by virtue of Section 54-C of the Act, Court cannot prohibit disconnection of electric supply without deposit of assessed amount-If no such notice is issued, then Court has jurisdiction to pass an order for restoration of electric supply without deposit of assessed amount-Held Further Before disconnection of electric supply, respondent was neither issued any such notice, which was must nor he or his representative was associated by petitioner while preparing detection bill-High Court refused to interfere in impugned orders of Courts below-Petition dismissed.

[Pp. 238 & 240] A & B

1999 CLC 492; 1999 CLC 1198; PLD 1990 Peshawar 105; 1986 MLD 680 ref. PLD 1988 Lahore 511 rel. on.

Mr. Khurshid Mam Ramay Mian, Advocate for Petitioner. Mr. Rashideen Nawaz, Advocate for Respondent. Date of hearing: 2-9-1999.

judgment

This revision petition under Section 115 CPC has been filed by the defendants-petitioners to call in question the order dated 28-5-1999 passed by the learned Additional District Judge, Lahore, dismissing the appeal of the petitioner, whereby, the order dated 21.5.1999 passed by the learned Civil Judge, Lahore, allowing the application for temporary injunction filed by the respondent/plaintiff in a suit titled as: Amin Ice Factory vs. WAPDA etc. was upheld.

2.Briefly stated the facts of the case are that the respondent/plaintiff instituted a suit for declaration with mandatory injunction challenging therein a detection bill for a sum of Rs. 56,42,473.81. for the period from April, 1997 to August 1998 issued by the petitioners against consumption of electricity. It was claimed that the respondent has been receiving electric energy for an Ice Factory being run in the name and style of Amin Ice Factory, Shamnagar Chauburji, Lahore, against Reference No. 9252 00015001. It was also claimed that the electricity connection was a seasonal connection which commenced every year in the month of May until middle of October of the same year and that in January, 1999, while the factory was closed, the Defendants/Petitioners Nos. 3 and 4 alongwith Army Personnels inspected the factory of the plaintiff without associating him or any of his representative to bserve that MDI meter was bye-passed and that the FIR was registered against the respondent/plaintiff under Section 39-A of the Electricity Act 1910. The detection bill for the aforesaid period had been issued and the meter was removed from the premises. The plaintiff claimed that the detection bill issued in his name was illegal and without lawful authority. It was prepared in an arbitrary manner for creating harassment to him. Alongwith the suit the plaintiff had filed an application for mandatory temporary injunction for the restoration of the electricity connection. The trial Court allowed the application with the observation that the plaintiff shall deposit Rs. 10,00,000/- in cash under protest, whereas for the remaining amount he shall furnish surety bond, if his suit is dismissed vide order dated 21.5.1999. Feeling aggrieved, the petitioners preferred an appeal and the learned Addl. District Judge, Lahore, vide order dated 28-5-1999 dismissed the same upholding the orders of the trial Court but directed the respondent to deposit rupees fifteen lacs.

1. Learned counsel for the petitioners contended that both the Courts below passed the impugned orders and issued interim injunctions without deposit of outstanding amount in violation of the principle laid down in the cases of WAPDA through it Chairman and 5 others vs. Messrs Kashmir Steel Furnace alias T.I Steel Furnace (1999 C.L.C. 492) and Muhammad Akbar vs. WAPDA through Chairman, WAPDA House, Lahore and 3 others (1999 CLC 1198).

2. On the other hand, learned counsel for the respondent vehemently opposed the arguments of the learned ounsel for the petitioners. He contended that the electricity connection of the respondent was disconnected and the detection bill was issued without issuing the show cause notice and in such circumstances the deposit of amount before issuing the temporary mandatory injunction is not a pre-condition, therefore, both the Courts below committed no illegality.

3. I have heard the learned counsel for the parties and also perused the record. The real contest is not against the grant of injunction, but against the grant of injunction without deposit of the amount of disputed bill. Proviso to Section 54-C of the Electricity Act, 1910 provides that:

"Bar of Jurisdiction.(1) Where a licencee gives a notice referred to in sub-Section (1) of Section 24 or discontinues supply of energy to a premises under the provisions of this Act, no Court shall make an order prohibiting the licencee from discontinuing supply of energy to the premises, or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect:

Provided that nothing contained herein shall apply to a case in which the plaintiff, applicant or appellant, within a period of thirty days of the aforesaid date or at the time of fiiingthe suit, application or appeal, as the case may be, deposits with the Court the amount assessed against him by the licencee and all further charges of the licencee as and when they become due; and in the event of his failing to do so, any order prohibiting the licencee from discontinuing the supply of energy to the premises, if already made, shall cease to have effect.

(2) Where an amount has been deposited under sub-section (1), the Court, shall direct it to be deposited in a scheduled bank in the name ef the licencee on an undertaking being furnished by the licencee to the effect that in case the suit or appeal is decided against him, he shall repay the said amount to the plaintiff or appellant, as the case may be, with such reasonable return at the Court may determine."

This provision of Section 54-C of the Electricity Act, provides, that provisions of this act shall not apply if the plaintifif deposits in the Court the amount assessed against him by the licencee and by other due charges of the licencee as and when they become due, and if the amount is deposited, the same shall be directed to be kept in the scheduled Bank in the name of the licencee; and that if the suit shall be decided against him he would re-pay the said amount to the plaintiff. This provision of Section 54-C was discussed in the case of WAPDA vs. Messrs Kashmir Steel Furnace noted (supra) wherein the HonTale Judge of this Court relying on a case of Mst. Raeesa Bibi vs. SDO WAPDA (PLD 1990 Peshawar 105) observed, the operative part of the judgment is reproduced as under :

"Again a reference to Section 54-C of the Electricity Act (IX of 1910) as amended by the Electricity (Amendment) Ordinance (LXII of 1979) would indicate that as per its proviso, a plaintiff is required to deposit with the Court the amount assessed against him and in the event of his failing to do so any order, prohibiting the licensee from discontinuing the supply of energy to the premises, shall cease to have effect Such being the case, I find that the temporary injunction restraining the defendants to discontinue the supply of electricity to the petitioner, if not made contingent by way of directing the petitioner to pay the outstanding electricity charges, shall be dearly violative of the express provisions as contained in Section 54-C of the

Electricity Act, 1910. The only flaw which I notice with the impugned order of the learned Appellate Court is that instead of ordering the outstanding amount to be deposited in Court, the learned District Judge, Mansehra vide Iiis order, dated 4.3.1989 seems to have directed the petitioner to make the payment presumably to the respondents, which needs to be corrected."

This view was adopted in case of Messrs Kashmir Steel Furnace noted (supra) and the Hon'ble Judge of the Lahore High Court observed as under:

"In view of the rule laid in the judgment noted supra, the order of the learned Additional District Judge, allowing injunction subject to furnishing of security and not requiring the deposit of amount of disputed bill, is violative of the provisions of Section 54-C of the Electricity Act, 1910. Without deposit of the amount the injunctive order could not have been issued."

This provisions of Section 54-C was also discussed in case of Haji Sher Muhammad us. WAPDA through its Chairman and 2 others (PLD 1988 Lahore 511) and Naeem Oil Mills vs. WAPDA(1986 MLD 680). In case of Naeem Oil Mills, in the month of November, 1982, the respondent/WAPDA issued a bill of Rs. 35,237.55 for 17590, the actually consumed units plus 20,000 units on the basis of average without assigning any reason, wherein the Hon'ble Judge of this Coui\ held as under:

"It is, now, well settled that before creating a charge against a consumed on account of electric energy consumed but not accounted for service of show cause notice is a condition precedent and that before preparing a 'detection bill' on account of unaccounted for consumed electric energy, it is necessary on the part of the WAPDA to associate the consumer at the time of checking and calculation of the units and afford him an opportunity to meet the charge of theft/tainpering with the meter."

Section 24 of the Electricity Act provides as under :—

"Discontinuance of supply to consumer neglecting to pay charge.(1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licencee in respect of supply of energy to bis premises, the licencee may after giving not less than seven dear days notice in writing to such consumer and without prejudice to his right recover such charge or other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licencee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but not longer.

(2) Where any difference or dispute as to any matter connected with any charge or other sum included in the bill of a licencee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licencee, the licence shall not exercise the powers conferred by sub-Section (1) until the Inspector has given his decision:

Provided that the prohibition contained in this sub-section shall not apply in any case in which the licencee has made a request in writing to the consumer for a deposit with the licencee of the undisputed charges and other sums and with the Electric Inspector of fifty per cent of the disputed charges and other sums and for the deposit with the licencee of further charges for supply of energy, as they accrue and the consumer has failed to comply with such request within a period of fifteen days from the date of such request or, as the case may be, from the date of receipt of bills in respect of further charges for supply of energy."

The provisions of Section 24 of the Act make it manifestly, clear that if the consumer neglects to pay any charge for energy or any sum other than a charge for energy assessed against him by a licencee in respect of the supply of energy to his premises. The licencee may after giving 7-days clear notice in writing to such consumer without prejudice to his right recover such charge or other sum by suit or otherwise cut off the supply or disconnected any electric supply line, being the property of the licencee but without the issuance of the notice to the consumer no such action can be taken.

1. The Section 24 of the Act provided issuance of the notice prior to the disconnection of the electric supply and Section 54-C of the Act contemplates that if the licencee has given the notice to the consumer referred to in sub-section (1) of Section 24 then without the deposit of the amount assessed against the consumer, the Court shall not make an order prohibiting the licencee discontinuing supply of energy to the premises of the consumer and if, notice is not issued under the provisions of law referred to above, then, there is no bar in issuing the injunction without deposit of the assessed amount in the court. In case of Hqji Sher Muhammad noted (supra) this point was discussed and the Hon'ble Judge of the Lahore High Court observed as under:

"The petitioners in the suit has raised substantial question of law regarding non-observance of mandatory provisions of Section 24 and 26 of the Electricity Act, before disconnection of their electricity supply which are to be tried in the suit and they are entitled to adduce evidence to establish that the impugned action of the respondents was not permitted by law. Prima facie, the petitioners case gains support from judgments reported as Dr. Muhammad Rafiq Chaudhry vs. WAPDA etc. (NLR 1983 Civil 133) and Firdous Oil Mills vs. WAPDA and another (NLR 1978 Civil 142). In the former reported case it has been held that Section 54-C of the Electricity Act baring jurisdiction of the Court to entertain suit and pass an order far restoration of supply of energy unless the plaintiff had deposited with the Court the amount assessed against him by the licencee was not applicable where the licencee had not been given notice as provided in sub-section (1) of Section 24 of the said Act and in the later reported case, rule has been laid down that before disconnection of supply of energy a written notice was necessary to be given without which the vary action of disconnection of supply of energy was unlawful. Learned counsel for the respondents vaguely that Section 54-C is applicable also where the supply for energy has been discontinued by the licencee even without issuance of notice under sub-section (1) of Section 24.

According to him the word 'Section 24' the Legislature has used the word 'or' which makes the following part of the section independently as such the case of mere disconnection of supply for energy would be covered by Section 54-C and a plaintiff is required to deposit the disputed amount before he could maintain the suit. In my view, the argument has wrong angle. It has been specifically provided by the said provision of law referred to by the learned counsel that disconnection of supply of energy must be under the provision of the act and the main objection of the petitioners was that the electric connection has been cut off in violation of the mandatory requirements of the act itself, therefore, the said reported judgment would be fully attracted to the case and can be passed into service in order to establish existence ofprima facie case in favour of the petitioner. It is a case where the supply of energy to the industrial premises of the petitioners has been discontinued which has resulted in bringing their business to a halt therefore, it could justifiably be maintained by them that balance of convenience was also in their favour and it was they who were to suffer irreparable loss in case of refusal to pass temporary mandatory injunction as prayed for. It was the illegal act of respondent itself which she created a circumstance where the petitioners were put in such a situation that they could not file a suit before disconnection of supply of energy has taken place. Had the respondents act as provided in Section 24(1) and issued a notice, the petitioners would have approached the Court seeking a relief in the form of temporary injunction for maintenance of status quo before the actual disconnection of electricity has taken place. Since the respondent itself directly proceeded to discontinue the supply of energy without compliance with the provisions of law, therefore, the situation was created in which the petitioners could only approach for temporary mandatory injunction. While raising a plea that the Court was debarred from passing an order of temporary mandatory injunction, the respondent actually was trying to get premium over its own wrongful act which was prima facie violative of the provisions of law. A party to plitigation due to its illegal acts cannot be allowed to deprived the Court oi? its jurisdiction to pass order to do justice when the matter is brought before it. Keeping in view the circumstances as noted above and applying the above mentioned principles regarding issuance of both kinds of temporary injunctions the case n» h?"d is exceptional and therefore, requires special treatment. In these circumstances, it can safely be concluded that exceptionally the case is one in which withholding a mandatory interlocutory injunctions would in fact carry a greater risk of justice (if the plaintiffs are wrong) than granting it. It is difficult to see how the restoration of supply of energy to the plaintiff would cause uncompensatable loss to the respondents whereas failure to restore the electric connection at this stage would certainly cause loss to the petitioner which might be very difficult to quantity and shall have the consequence of not only closing down his industry, but also depriving him to earn livelihood as such in the circumstances of this case there is a much greater risk of injustice being caused to the petitioner if the injunction was withheld than if the injunction was granted and the petitioner did not succeed at trial, therefore, in my view it would in all circumstances be right to make such an order".

1. In the instant case, the petitioners/WAPDA had not issued any notice to the respondent, nor associated him or his epresentative while preparing a detection bill and, therefore, the notice to the consumer before disconnection of supply of energy is must. It cannot be allowed to be avoided.

2. I am in agreement with the view settled in case of Haji Sher Muhammad (supra) and constrained to hold that where a licencee has not issued notice to the consumer to dis-continue his supply of energy due to the non-payment of amount assessed against him by the licencee, the Court has 0 the jurisdiction to entertain and pass an order for restoration of supply of energy without the order for deposit of amount. Therefore, in the circumstances mentioned above, I am not inclined to interfere in the impugned orders of the courts below.

3. Resultantiy, this petition having no force is dismissed. There shall be no order as to costs.

(S.A.KM.) Petition dismissed.

PLJ 2001 Lahore 241

[Multan Bench Multan]

Present:BASHIRA. MUJAHID, J. MUHAMMAD RAMZAN and 5 others-Petitioners

versus

ABDUL AZIZ and another-Respondents W.P. No. 311 of 1986, decided on 16.2.2000. Specific Relief Act, 1877 (I of 1877)--

—S. 9-Constitution of Pakistan (1973), Art. 199--Legal representatives of deceased plaintiff were allowed to be brought on record in suit under S. 9 Specific Relief Act, 1877 by the order of Trial Court-Appellate Court, however, set aside order of impleading legal representatives-Validity-­Person who has some interest in property can be substituted after bis death by his legal representatives-Deceased had lost his claim over property in question, upto the level of Supreme Court—Claim of deceased, thereafter, "was that his thumb-impressions on certain documents were put under coercion to prove that he.had not delivered possession with his free consent-Deceased had no claim or interest in property therefore, his legal representatives had nothing to inherit in property in question-In absence of any legal right in property, legal representative (petitioners) could not be allowed to proceed with suit under S. 9, Specific Relief Act 1877, merely on the ground that their predecessor-in-interest was dispossessed without his consent-Appellate Court had rightly maintained that petitioners had no right to be impleacled as legal representatives of deceased plaintiff-No interference was warranted in judgment/order of Appellate Court in exercise of writ jurisdiction.

[Pp. 244 & 245] A, B

PLD 1973 Lah. 655; 1969 DLC 545; 1982 SCMR 741.

Ch. Habib Ullah Nahang, Advocate for Petitioners.

Rana Muhammad Aslam Javaid, Advocate for Respondents.

Date of hearing: 8.2.2000.

judgment

Ghulam Farid predecessor in interest of the petitioners was in occupation of Property No. 24/B situated in Mohallah Islam Abad, Sahiwal City. He filed form CH-267 to the Dy. Settlement Commissioner, Sahiwal on 28-10-1959 for allotment of the said property which was rejected. The appeal filed by Ghulam Farid was also dismissed. He alleged that he had deposited Rs. 3342/- as price of the property. The revision petition filed by Ghulam Farid was allowed. The Settlement Commissioner Multan Division, vide his order dated 10-8-1962 auctioned the same property to Abdul Aziz respondent, on which Ghulam Farid ffled writ petition Bearing No. 4525-. R/1962 in the Lahore High Court which was allowed videorder/judgment dated 23-12-1965 and the case was remanded to the Settlement Commissioner. The Settlement Commissioner summoned both the parties and after hearing them the revision petition of Ghulam Farid was dismissed. The special leave to appeal filed by Ghulam Farid was also refused. Subsequently Ghulam Farid predecessor in interest of the petitioners was objected from the property in dispute by respondent Abdul Aziz.

1. Ghulam Farid alleged that he had been dispossessed from the property in dispute illegally and without due course of law, after summoning him to the police station. It was further alleged that his signature/thumb impression were also obtained forcibly on certain papers. He filed two separate suits. One under Section 39 of the Specific Relief Act for seeking cancellation of some agreement showing that he had handed over the possession of the property in dispute after receipt of Rs. 8,000/- and the second suit filed by him was under Section 9 of Specific Relief Act for delivery of the possession to him as he was dispossessed without due course of law. During the pendency of these suits Ghulam Farid died. His legal heirs Muhammad Ramzan, Ata Muhammad, Muhammad Sheban, Zainab Bibi and Sharifan Bibi being sons and daughters respectively of Ghulam Farid while Niamat Bibi widow of Ghulam Farid moved an application to be impleaded as party to both the suits. The applications were resisted by the present respondents. The learned trial Court allowed both the applications.

2. In case suit under Section 39 of Specific Relief Act issues were framed from the pleadings of the parties and the case was fixed for evidence of the plaintiffs. Despite successive adjournments the present petitioners plaintiffs failed to adduce evidence on which the trial Court proceeded to dismiss the suit under Order 17, Rule 3 CPC for non-production of evidence.

3. In second suit under Section 9 of Specific, Relief Act the order allowing the legal heirs to be brought on record by the learned Civil Judge was challenged in revision petition. The revision petition was allowed by the learned Addl. District Judge, Sahiwal vide impugned order dated 17-11-1985 by holding that on the death of Ghulam Farid the suit had abated and the right to sue did not service for devolve on the legal heirs as the suit was for restoration of possession under Section 9 of the Specific Relief Act. Order dated 17-11-85 has been impugned through the instant petition.

In support of the present writ petition the learned counsel for the petitioners has raised the following contentions :--

1. That under Section 9 of Specific Relief Act a suit is filed for restoration of possession if some one is dispossessed :--

(a) without due course of law.

(b) withou his consent.

In the present case Ghulam Farid predecessor in interest of the petitioners was dis-possessed without due course of law and also without his consent.

(2) The right to sue did survive in favour of the legal representatives. The word 'legal representative' has been defined in Section 2 Clause 11 of the CPC which reads as under:

'Legal Representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on when the estate devolves on the death of the party so suing or sued.

It has been argued by the learned counsel that the right to sue survive in the present case, therefore, legal heirs were the legal representative under the law and were rightly impleaded party by the learned trial Court and the learned Addl. District Judge had committed illegality by allowing the revision petition.

(3) Learned counsel has made a reference on Malik Nasim Ahmad vs. Malik Rasool Bakhsh and another (PLD 1973 Lahore 655) to maintain that suit for possession under Section 9 of the Specific Relief Act includes the actual possession as well as constructive possession. The tenant dispossessed by trespasser, suit by landlord for restoration of possession is competent. It provides that if any person is dis-possessed with out his consent on immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover the possession thereof notwithstanding any title that may be set up in such suits. Learned counsel has further placed reliance on Karamat Mi Fakar us. Safiruddin SK. and others (1969 DLC 545) which provides that Section 9 of the Specific Relief Act not confined to deprivation of actual physical possession, but also covers cases of constructive possession. Suit can be brought by a person dis-placed or any person claiming through him. The landlord if entitled to possession of the property can bring a suit for possession. Reliance has also been made to Jamnabi wife of Hoondraj vs. Jetha Mai and others (Sindh Judicial Commissioner's Court) (Reference No. 133 of 1935) wherein it was held that a Hindu legatee can institute a suit even prior to obtaining a letter of administration.

(5) Learned counsel for the petitioner has finally argued that the petitioners being legal heirs were to be considered as legal representative of deceased Ghulam Farid and they were entitled to be impleaded as a party and could seek restoration of the possession of the property in dispute and prayed for setting aside the impugned order. Ghulam Farid should have been

served with a notice under Section 80 of the Displaced Persons (Land Settlement) Act, 1959 before his ejectment, Learned counsel for the petitioners has made a reference to Riaz and others vs. Razi Muhammad (1982 SCMR 741) where in it has been laid down that under Section 9 of the Specific Relief Act, following points are to b« seen:--

1. Person suing must have been dis-possessed.

2. Such dispossession must be of immovable property.

3. Dispossession should be without his consent

4. Dispossession should be otherwise than in due course of law.

In the present case dispossession is without consent of Ghulam Farid predecessor-in-interest of the petitioners and so also without due course of law.

1. On the other hand learned counsel for the Respondent No. 1 has argued that the suit under Section 9 of the Specific Relief Act was of a summary nature. It was a personal right of Ghulam Farid deceased, if any. The legal heirs had no estate to inherit and they cannot claim the possession as their predecessor-in-interest had lost his claim over the property in dispute to the level of HonTjle Supreme Court of Pakistan. The petitioners had also failed to prove their case for cancellation of Iqrar nama executed by Ghulam Farid in which he had received an amount of Rs. 8,000/- for delivery of the possession. Through said Iqrar nama Ghulam Fareed had voluntarily surrendered the possession of the property in dispute. He had filed a false case and since it was a personal right, the present petitioners ave no interest left in the property in dispute. He has made reference to PLD 1975 Lah. 1205 to argue that the legal representative is a person who in w represents the estate of the deceased person. He may not be natural heir of the deceased. He has further referred Muhammad Aslam vs. Wazir uhammad (PLD 1985 S.C. 46) which is a case under Sec. 13 of West Pakistan Rent Restriction Ordinance for the ejectment of the tenant on the ground of personal need and on the death of landlord it was personal right to sue was held does not service.

2. I have considered the contentions raised by the learned counsel for the parties and have gone through the record of the file and the case law referred to at the bar.

3. The consensus of the case kw referred to at the bar is that the legal representative who can be impleaded as party after the death of the plaintiff is a person who has some interest in the estate of the deceased. He may be a legal heir or some one else interested to maintain his claim. The same proposition is the application under Sec. 9 of the Specific Relief Act. The word used' the person claiming through him means' the person who has some interest in the property can be substituted after his death. Applying this principle to tlie circumstances of the present case, It is clear that deceased Ghulam Farid had lost his claim over the property in dispute upto the level of Hon'ble Supreme Court of Pakistan. Thereafter it is claimed by him in the plaint that he was forced to sign/put Ms thumb impression on certain documents under coercion to prove that he had not delivered the possession with his tree consent. The suit was filed by Ghulam Farid admittedly on the basis of some right over the property but only to get cured the wrong done by the respondents. If Ghulam Farid had no claim or interest in the property then of course his legal heirs/present petitioners had nothing to inherit in the disputed property. In absence of their any legal right in the property, they cannot be allowed to proceed with the suit merely on the ground that their predecessor-in-interest Ghulam Farid was dispossessed without his consent. Particularly whom the suit filed for cancellation of documents was dismissed of noa-production of evidence by the present petitioners.

Resultantiy 1 can safely conclude that even under Section 9 of the Specific Relief Act the legal representative is a person who has some interest in the property of which the restoration of possession is claimed by the deceased. They cannot claim for restoration of possession on merely on the basis of some wrong done by the respondent, as in the present case the learned Add! District Judge has also dismissed the application of the present petitioners finding that the petitioners had no interest in the properly in dispute. Had the petitioners any interest in the estate of deceased Ghulam Farid, they had a right to be impleaded as legal representatives to continue that suit. Since it is a civil matter and the parties are in litigation for a period of more than 40 years, therefore, I do not find any ground to interfere in the impugned order in exercise of writ jurisdiction. Dismissed having no force. The parties shall bear their own costs.

(A.A.) Petition dismissed.

PLJ 2001 Lahore 245 (DB)

Present:malik muhammad qayyum and saved zahid hussain, JJ. MUHAMMAD MAQBOOL--Appellant

versus TAHIR NAEEM and 10 others.-Respondents

R.F.A. No. 384 of 1999, heard on 7.6.2000. Qanun-e-Sb.ab.adat Order, 1§84 (10 of 1984)--

-—Art. 33-Civil Procedure Code (V of 1908), S. 100--Appointment of refereee by Court during pendency of suit on joint statement of parties-­Decree in suit on basis of statement of referee-Appellant's application two days before statement of referee ia Court for cancellation of his appointment was rejected and suit was decreed in terms of his statement-Validity-Appellant did offer and agreed for appointment of referee for "faisala"on oath before Trial Court, although he had made application for revocation of Ms authority on alleged partisan-ship yet when referee made statement before Court in his presence, he was not examined or questioned by him-Appellant must stand by his commitment, honour his own statement made on oath and accept the decision gracefully-No interference was warranted in judgment and decree rendered by Trial Court on basis of statement of referee. [P. 249] A

PLD 1977 Lah. 672; PLJ 2000 SC 513; PLD 1970 SC 241; PLD 1988 Lah. 250; 1990 SCMR 763; PLJ 1996 Lah. 1465; PLJ 1999 Lah. 1179.

Khawaja Abdul Hamid Butt, Advocate for Appellant. Syed Kaleem Ahmad Khurshid, Advocate for Respondents. Date of hearing : 7.6.2000.

judgment

Sayecf, Zahid Hussain, J.-The appellant, who is an advocate, was successful in obtaining a decree dated 2.3.1980 in bis favour in a suit for pre­emption qua tike suit land. The defendants therein filed an appeal there-against which vas dismissed on 26.7.1989. They filed second appeal before this Court, during the pendency of which the appellant is stated to have entered into an agreement to sell with Respondent No. 1 on 9.6.1993, for a consideration of Rs. 8,35,000/- out of which, Rs. 5,00,000/- were paid. The balance of Rs. 3,35,OOO/- had to be paid after the decision of the appeal. The said appeal was dismissed on 4.12.1993. It was the case of Respondent No. 1 that he asked the appellant for completion of the sale on receipt of Rs. 3,35,000/- but he refused. Respondent No. 1 thereafter succeeded in obtaining the possession of the suit property and filed a suit for confirmation of possession through specific performance of agreement dated 9.6.1993. The appellant contested the said suit and denied the agreement. The learned trial Court framed issues emerging from the pleadings of the parties. Partial evidence of Respondent No. I/plaintiff had been recorded when on 24.4.1999, the parties made a statement before the trial Judge that Ch. Muhammad Hussain, he appointed as referee whose decision shall be acceptable to the parties and the suit be decided accordingly. The statement were signed by both the parties and the case was adjourned for appearance of the referee. On 15.5.1999, Ch. Muhammad Hussain appeared before the Court, who made a statement and also produced his report Ex. Cl before the Court, that the suit be decreed in favour of Respondent No. I/plaintiff. It may be noted that on 13.5.1999, the appellant had made an application before the trial Judge for revocation of the reference terming the appointment of Ch. Muhammad Hussain as illegal and that he had become partisan and declared his mind. The said application was rejected by the learned trial Judge on 15.5.1999 and the suit filed by Respondent No, I/plaintiff was decreed in view of the statement of the referee with the direction to the Plaintiff/Respondent No. 1 to deposit the remaining amount of Rs. 3,35,000/- in Court. This appeal has been filed by the appellant against, the same.

2.It is contended by the learned counsel for the appellant that the appointment of referee was illegal as the jurisdiction of the Court could not be delegated to the referee. It is contended that the referee did not act as such but assumed the position of an arbitrator as he heard the parties and the decision was given thereafter by him. It is further contended that the appellant was entitled to revoke the authority of the referee at any time before his statement was acted upon by the Court. Reference has been made by him to Muhammad Akbar & another v. Muhammad Aslam and another (PLD 1970 SC 241), Muhammad Hanif Khan and another v. Ghulam Farid Khan and others (PLD 1988 Lahore 250), Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990. SCMR 763), Muhammad Jameel v. Allah Ditta (PLJ 1996 Lahore 1465) and Rao InayatALi v, Diwan Mi (PLJ 1999 Lahore 11 79).

1. The learned counsel for Respondent No.l contends that the appellant had agreed for the decision by the referee and was thus bound by the same. He has supported the judgment of the learned trial Court and has cited Syed HashmatMi v. Qamar Begum & 6 others (1999 Law Notes (S.C.) 946), to support his contention, 4. We have perused the record with the assistance of the learned counsel for the parties and find that while the trial of the suit was in progress the parties opted for a mode of resolving the controversy and decision of the suit by appointing Ch. Muhammad Hussain as referee. The statement made by the parties on 24.9.1999 is as follows :--

The above statement was signed by the parties in token of its correctness and acceptance. It shows that the decision of Ch. Muhammad Hussain had to be accepted by the parties and the suit was to be decided accordingly. He appeared in Court and made the following statement on 15.5.1999 :—

What he had produced before the Court in the envelope is as follows :-

The learned trial Court accordingly, as mentioned above, decreed the suit in favour of Respondent No. 1 and rejected the application of the appellant for revocation of the appointment of Ch. Muhammad Hussain.

1. The learned counsel for the appellant made reference to the judgments, mentioned above, to bring out the distinction between a refereee and arbitrator and that, even if, the appointment of Ch. Muhammad Hussain be treated as referee, with the filing of the application by the appellant for revocation of his authority, his appointment came to an end and the trial Court acted illegally in passing a decree on the basis of his decision/statement. In Rao Inayat All's case (supra) relying upon Sher Zaman Khan v. Noor Zaman Khan and another (PLD 1977 Lahore 672), it was observed that a party could revoke the appointment of a referee before his statement That was a case in which the entire evidence had already been recorded and the matter could be decided on merits instead of the decision by the referee. That was one of the circumstances which prevailed in that matter. We, however, find the latest trend of the Supreme Court attaching much importance to such a mode of decision being followed as was adopted in the present case. In Syed Hashmat All's case (supra) it was noticed by their lordships:

"That the petitioner while appearing as PW3 had himself offered that if Muhammad Shahbaz Khan, brother-in-law of Respondent No. 7 states on oath that the suit instituted by the petitioner was false, the suit should be dismissed. Muhammad Shahbaz Khan appeared in Court as DW1 and stated that they knew the parties; he had seen the land; there did not exist any agreement of sale, oral or written between the parties Mansoor Ahmed Khan, Respondent No. 7 had never made agreement, oral or written with regard to the sale of the land and that the suit was false. After such a statement, obviously the petitioner could not insist to claim that his suit was genuine and he was entitled to any relief."

In Nazir Ahmed and another v. Muhammad Din and another (PLJ 2000 SC 513) a joint statement had been made by the parties for referring the case to one Din Muhammad for his decision and the matter was decided as per decision/statement of Din Muhammad by the Court which judgment had been affirmed in appeal and revision and the leave was granted by their lordships to consider:

"That even though he was described as referee the appointment of Din Muhammad was in fact that of an arbitrator for he was required to give a faisala'. The trial Court asked him specifically to give his faisala' and then proceeded to record its judgment in accordance therewith. His 'faisala' was thus an 'award' and the parties should have been given an opportunity to file objections thereto in accordance with the provisions of the Arbitration Act"

The contention was repelled finally by their lordships that there was no "need to go into the academic question as to whether Din Muhammad acted as arbitrator or referee". It was noted that "the appellant is estopped to challenge the effectiveness and binding nature of the statement of Din Muhammad" for the reason that "he had been appointed with his own free consent" whose statement was not challenged before the Court Keeping in view the conduct of the appellant, it was observed that "he could not be allowed to raise any objection to the decision given by Din Muhammad" which will amount to "placing premium on blowing hot and cold in one breath if the appellant was allowed to take shelter under certain legal technicalities which have always been considered to create no hurdle in the way of substantial justice," This is the expression of the recent trend in the approach by the apex Court in matters of this nature.

1. In the present case, undeniably, the appellant did offer and agreed for the appointment of Ch. Muhammad Hussain as referee for faisala' on oath before the Court, although he had made an application for the revocation of his authority on the allegation of partisan-ship yet when Ch. Muhammad Hussain made a statement before the Court in his presence on 15.5.1999, he waa not examined or questioned by him. He should stand by his commitment, honour his own statement made on oath and accept the decision gracefully.

In view of the above, we find no merit in this appeal which is dismissed accordingly.

(A.A.) Appeal dismissed.

PLJ 2001 Lahore 249 [Multan Bench Multan]

Present:maulvi anwar-ul-haq, J. FATEH MUHAMMAD-Petitioner

versus

Mst.JANTAN and 2 others-Respondents C.R. No. 368-D, of 1990, heard on 24.2.2000. Specific Relief Act, 1877 (I of 1877)--

—S. 42--Civil Procedure Code (V of 1908), S. 115-Exclusion of respondent ladies from inheritence of their father-Petitioner (defendant) denied that plaintiff ladies were daughters of deceased-Plaintiffs (respondents) suit was decreed by courts below-Validity-Ladies names were although not mentioned in Pedigree table, yet nothing would turn on such omission, in as much as, female's names were not mentioned in Pedigree table according to custom-Evidence on record however, would indicate that respondent ladies were daughters of deceased—Non-appearnce of any of such ladies in witness box would not benefit petitioner in view of the fact that their attorney who had been representing them made statement on behalf of ladies-As far suit having been filed beyond period of limitation, respondent, had explained that they had come to know of such mutation only about 2% years before filing of suit-Moreover, parties being Muslim Law heirs, Respondents would be deemed to be in joint possession of land in question-Suit was thus, not time barred-Judgments and decrees of courts below being based on cogent evidence, no interference was warranted therein in exercise of revisional jurisdiction.

[Pp. 251 & 252] A, B & C .

PLD 1976 SC 767; PLD 1990 SC 1.

Mr. Kanwar Iqbal Ahmad Khan, Advocate for Petitioner. Mian Arshad Latif, Advocate for Respondents. Date of hearing: 24.2.2000.

judgment

Respondents Nos. 1 & 2 filed a suit against the petitioner and Respondent No. 3. It was stated in the plaint that Tagia s/o Muhammad was the last male owner of the suit land and was survived by the petitioner as son and the said respondents as daughters; that Tagia died in the year 1954. The petitioner, however managed to get a Mutation No. 539 attested on 22.6.1954 in his favour to the exclusion of the said respondents; that when they acquired knowledge of the said mutation they filed proceedings in the revenue hierarchy for relief, whereupon a mutation of Correction No. 184 was attested on 31.7.1985 but the Additional Commissioner cancelled the same in appeal directing the parties to go to the Civil Court. The petitioner filed a written statement and stated that the said respondents are not his sisters. Issues were framed and evidence of the parties was recorded. The learned Trial Court decreed the suit of the said respondents vide judgment and decree dated 31.7.1989. An appeal filed by the petitioner was heard by a learned Additional District Judge, D.G. Khan who dismissed the same on 6.2.1990.

1. Learned counsel for the petitioner contends that there is no evidence on record to support the plea of the respondents-ladies that they are daughters of the said Tagia. Further contends that the suit having been brought after 30 years after attestation of the mutation was barred by time. Learned counsel for Respondents Nos. 1 and 2 supports the impugned judgments and decrees.

2. I have gone through the copies of the record appended with the Civil Revision, with the assistance of the learned counsel for the parties. I find that after coming up with a denial of the relationship alleged by the respondents-ladies with Tagia, the petitioner sought to lead evidence to the effect that co-incidentally father of the respondents ladies also happens to be one Tagia s/o Muhammad but that he was some other Tagia. Learned counsel for the respondents rightly contends that such a plea was not taken in the written statement and as such evidence on the same has rightly been ignored.

3. I find that sufficient evidence has been led by the said ladies to prove that they are the daughters of Tagia. It is true that the ladies are not mentioned as such in pedigree-table for the year 1974-75 (Ex. D.2) but nothing turns on the said omission as even in these days and times when the ancient custom stood dead to hurried, it is not a practice to mention the names of female decedents in the pedigree table prepared by the revenue officials. However, the evidence in the form of Amir Muhammad P.W.2 is very important. This witness is admittedly the son of real brother of the said Tagia and has stated on oath that the respondents ladies are his daughters. Nothing has been suggested to him as to why would be make a false statement. On the other hand I find that it has been suggested to him that Mst. Jantan respondent is married to his brother. To my mind instead of derrogating anything from his statement the said feet further adds to the relevancy of the statement of the said witness under Article 64 of Qanun-e- Shahadat Order, 1984. Similarly P.W.I is also from the tribe of the deceased. He was aged 60 years on 24.1.1989 when his statement was recorded, and he stated on oath that he knew Tagia and that the said ladies are his daughters. He has also stated the names of the brothers of Tagia. Nothing much has been brought out in his cross-examination.

4. Learned counsel for the petitioner vehemently urges that none of the two ladies entered the witness box, rather Rab Nawaz, P.W.3 son of,Mst. Jantan deposed as their attorney. Relying on the case of Shah Nawaz and another vs. Nawab Khan (PLD 1976 SC 767) urges that it will be deemed that the respondents ladies did not enter the witness box and the statement of their attorney P.W. 3 is o be excluded. The argument is misconceived on two counts. First, the age of P.W. 3 is stated to be 48 years on 24.1.1989. Tagia is stated to have died in the year 1954. He was thus quite of age in the life time of Tagia and is a competent witness in his own rights. econd, the said case of Shah Nawaz was decided on the principle that a party may enter the witness box through an attorney but if the attorney shows ignorance to material questions then his statement cannot be said to be a substitute for the statement of a party. I have gone through the statement of P.W. 3 and I find that he answered all the questions put to him in examination-in-chief as well as in cross-examination and did not express ignorance as was done by the attorney in the said case of Shah Nawaz Khan.

5. So far as the question of limitation is concerned, it is the case of the respondents ladies that they acquired knowledge of the mutation about 2% years prior to the institution of the suit. Besides in view of the finding that the parties are brother and sisters, they are Muslim Law co-heirs and shall be deemed to be in joint possession of the suit land. There is no question of the suit becoming barred by time. Reference be made to the case of Ghulam Mi and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). No other point has been urged. No grounds have been made out to enable this Court to interfere with the impugned judgments and decrees in exercise of revisional jurisdiction. The Civil Revision is accordingly dismissed with costs throughout.

'(A.A.) Revision dismissed.

PLJ 2001 Lahore 252 [Multan Bench Multan]

Present:MAULVI ANWAR-UL-HAQ, J. Mst. SHEEDAN ete.-Petitioners

versus ABDUL GHAFOOR ete.-Respondents

C.R. No. 483/86, heard on 3.5.2000. Muhammadan Law—

—Gift-Gift of land by father to his minor children to the exclusion of his major sons-Respondents having been deprived of inheritance filed suit after death of donor on assertion that gift in question was invalid for non­delivery of possession-Respondent's suit was dismissed by Trial Court-Appellate Court, however, decreed respondent's suit-Validity-Appellate Court had lost sight of the fact that petitioner, (donees) were minor sons of donor while their mother was widow of donor-Where gift was made to minor children or wife then physical departure of donor from land in question and delivery of actual possession was not necessary-Appellate Court had acted with material irregularity in exercise of his jurisdiction while setting aside judgment and decree passed by Trial Court in as much as, its findings were based on misreading of evidence as also of failure on his part to take note of the precedent, on the subject-­Judgment and decree of Appellate Court was set aside while that of Trial Court dismissing respondents suit was restored. [Pp. 253 & 254] A, B

1978 SCMR 264; 1984 CLC 1712; PLD 1984 SC 392.

Malik Muhammad Afzal, Advocate for Petitioners. Ranwar Akhtar Ali, Advocate for Respondents. Date of hearing: 3.5.2000.

judgment

The respondents filed a suit against the petitioners on 10.5.1979. It was stated in the plaint that the suit land was owned by Allah "Bakhsh son of Qamar to died on 19.5.1978. He had two wives and children from both the wives. One set is the petitioners while the other set is the respondents; that the respondents came to know that vide a registered gift deed dated 21.7.1977, the land stands transferred to the petitioners and Mutation No. 81 has also been attested on 15.10.1977. It was alleged in the plaint that the gift is void as Allah Bakhsh has lost his senses two years before his death. It was also averred that the possession was not delivered to the donees under the alleged gift, It was also alleged that the gift having been made during 'Marz-ul-Maut' cannot take effect as such. The petitioners in their written statement denied the said allegations and stated that a valid gift was made by the deceased Allah Bakhsh. Issues were framed. Evidence of the parties was recorded. The learned Trial Court dismissed the suit of the petitioners vide a Judgment and decree dated 23.7.1985. Feeling aggrieved, the respondents filed an appeal which was heard by learned District Judge, Vehari who proceeded to allow the same and decreed the suit of the respondents declaring them to be the owners of 7/24 share in the suit land vide a Judgment and decree dated 26.6.1986.

1. Learned counsel for the petitioners contends that the sole point which weighed with the learned District Judge was that according to him possession was not delivered to the donees under the gift. According to the learned counsel, the said finding of the learned District Judge is bad both in Law as well as in fact and is a result of misreading of the evidence, on record.

Learned counsel for the respondents, on the other hand, supports the impugned Judgment and decree of the learned District Judge.

1. I have gone through the certified copies of the records appended with this Civil Revision.

I find that the learned trial Court after examining the evidence on record which comprises inter alia of the marginal witnesses of the gift deed DW-1 and DW-2, found that the gift deed was validly executed. He also found that the deceased was not suffering from 'Marz-ul-Maut' or any other disability at the time the gift was made. He also found that in accordance with the Islamic Law, the declaration and acceptance was made and the possession was delivered. The learned District Judge has not disagreed with any of the said finding except that according to the learned District Judge, the possession of the land was not delivered under gift. He has particularly insisted that the petitioners had not produced copies ofKhasra Girdawari for Kharif 1977 and Rabi 1978 to prove that the possession was so transferred. I find that as per entries in Register Haqdaran-e-Zameen for the year 1977-78 (Exh. P-5) petitioner donees are recorded to be the owners and in possession thereof through a tenant.

1. The learned District Judge has also lost sight of the fact that two of the donees i.e. Petitioners Nos. 2 & 3 were minors while the third donee i.e. Petitioner No. 1 was the wife of the donor. It is by now settled that where the gift is made to the wife or the minor children then the physical departure of the donor from the suit land and delivery of actual possession is not necessary. Learned counsel for the petitioners has cited the case of "Mehr

Din through Legal. Heirs vs. Azizan and another" (1994 SCMR 1110); "Chief Land Commissioner & another vs. Maula Dad and others" (1978 SCMR 264); "Mst. Talawatun Nisa and two others vs. Officer on Special Duty, Land Commission, Karachi & another" (1984 CLC 1712) and; "Murid Hussain and others vs. Ghulam Ahmad alias Ghulam Muhammad & another" (PLD 1984 S.C. 392). The said Judgments do support the said contention of the learned counsel for the petitioners.

1. In view of the above discussion, I find that the learned District Judge has acted with material irregularity in exercise of his jurisdiction while setting aside the Judgment and decree passed by the learned trial Court as his findings are based on misreading of the evidence as also of failure on bis part to take note of the Law declared by the superior Judiciary on the subject. This Civil Revision is accordingly allowed. The Judgment and decree dated 26.6.1986 of learned District Judge is set-aside while that dated 23.7.1985 of the learned Trial Court is restored without any orders as to costs.

(A.A.) Revision accepted.

PLJ 2001 Lahore 254

[Multan Bench Multan]

Present:maulvi anwar-ul-haq, J. MUHAMMAD SULTAN and 9 others-Petitioners

versus NOOR MUHAMMAD-Respondent

C.R. No. 439-D of 2000 and C.M. Nos. I.C. and 2-C of 2000, decided on 6.6.2000.

Specific Relief Act, 1877 (I of 1877)--

—S. 12~Civil Procedure Code, (V of 1908), S. 115--Denial of execution of agreement to sell-Plaintiff produced marginal witness, scribe of the agreement in question, and respondent in proof of execution of the same-­Plaintiffs also produced expert who made statement in Court that disputed thumb impression resembled to admitted thumb-impressions-Nothing was brought out in cross-examination of marginal witness and scribe to doubt thumb impression, of vendors on agreement to sell-Agreement in question, thus, was proved to have been executed by vendors—Provision of S. 19 of Colonization of Government Lands (Punjab) Act, 1912 would not be a bar to conveyance of sale in as much as agreement in question, contained a clause therein the conveyance deed would be enforced on attaining ownership right, by vendors (petitioner) where suit for specific performance of such agreement was filed when ownership rights were conferred on them-Court, below, thus, had rightly decreed plaintiff's suit, judgment and decree whereof, was affirmed in circumstances. [P. 256] A, B

1990 SCMR 28; PLD 1982 Lahore 716.

Rana Muhammad Nazeer Saeed, Advocate for Petitioners. Date of hearing: 6.6.2000.

order

C.M. No. 1/2000

This application for dispensing with filing of certified copy of annexures "G" to the C.R. is allowed and disposed of.

C.M. No. 2/2000

For orders to be passed in the main case, no order need be passed in this C.M. Disposed of.

Main Case.

On 20.10.1991, the respondent filed a suit against the petitioners for Specific Performance of agreement to sell dated 29.3.1989. According to the plaint, the petitioners had agreed to sell a suit plot to the respondent for a consideration of Rs. 25,000/- and he paid as an advance Rs. 20,000/- while the balance of Rs. 5000/- was to be paid at the time of completion of the sale by means of registered sale-deed, which was to be done upon conferment of proprietary rights upon the petitioners by means of a Conveyance Deed. According to the plaint, the possession was also delivered. Later, the petitioners did obtain the requisite conveyance deed but refused to transfer the suit plot to the respondent and consequently the suit was filed. In the written statement the case set-up was that the suit has been filed in collusion with one Muhammad Siddique with whom the petitioners had a long litigation ending in the Supreme Court of Pakistan. It was also objected that the agreement is not specifically enforceable and is otherwise hit by Section 19 of the Colonization of Government Lands Act (Punjab), 1912. On merits, the execution of the agreement was denied. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit of the respondent vide a Judgment and decree dated 17.12.1996. A first appeal filed by the petitioners was heard by a learned Addl: District Judge, Khanewal who dismissed the same on 13.4.2000.

1. Learned counsel contends that agreement Exh. P-l is not specifically enforceable as according to the learned counsel, it was not signed by the respondent and as such it was only a proposal that had not ripened in the evidence. Relies upon the case of "Mst. Barkat Bibi and others vs. Muhammad Rafique and others" (1990 SCMR 28). Also objects that the agreement was hit by the bar contained in Section 19 of the said Act of 1912. Refers to the case of "Wajid Alt and 2 others vs. Board of Revenue, Punjab and 2 others" (PLD 1982 Lahore 716). Further argues that the learned Appellate Court did not decide all the issues and as such the Appellate Judgment is violative of the provisions of Order XX, Rule 5, C.P.C. Finally says that evidence on record has been mis-read by the learned Courts below.

2. Taking the last argument first, I have examined the record. The execution of the agreement was proved through production of Baqir PW-1 who is a marginal witness. Abdul Hafeez Qureshi, scribe appeared as PW-2 while the Respondent No. 3 appeared as PW-3. Taking no chances, the matter was referred to an expert who compared the thumb impressions of the petitioners on the agreement Exh. P-l with his admitted thumb impressions and concluded that they bore resemblance to his admitted thumb impressions. Apart from the fact that nothing was brought out in the cross-examination of the said marginal witness as well as the cribe, it may . be stated here that it is now well settled that unlike the scribe of comparison of handwriting, the scribe of comparison of thumb impressions is perfect. The expert was examined as PW-4. In support of his report, he has squarely answered all the questions in his cross-examination. There is thus no misreading or non-reading of evidence by the learned Courts below, while holding that the agreement was executed by the respondents. Coming to the argument based on said case of Mst. Barkat Bibi etc., the same is also misconceived. In the said case, the document under consideration was an alleged promise to reconvey the property. It was infaet nilateral proposal by the executant that he had purchased the land from somebody and he would reconvey the same to that somebody, in case, he raises the price and pays the same to him. This offer ofcourse was not accepted by that particular somebody to whom the land was offered to be reconveyed and in this background, the apex Court concluded that this was only a proposal sans acceptance and as such not being covered by the definition of an agreement cannot be enforced.

3. So far as the argument based on Section 19 of the Colonization of Government Lands Act (Punjab), 1912 is concerned, nothing turns on the same. It is specifically mentioned in the agreement itself that the sale would be completed only when the conveyance had been made in favour of the B respondent by the Provincial Government and it is nobody's case that the enforcement of the agreement was sought prior to the said conveyance.

4. I have examined the Judgment of the learned Addl: District Judge. He has reconsidered each and every piece of evidence on record, and stated reasons for agreeing with the various findings of the learned Trial Court In this view of the matter, simply because issue-wise findings have not been recorded, it cannot be said all the points raised before the learned Addl: District Judge had not been decided. No other point has been urged. The Civil Revision is dismissed in limine.

(A.A.) Revision dismissed.

PLJ 2001 Lahore 257 [Multan Bench Multan]

Present: maulvi ANWAR-UL-HAQ, J. ALLAH DITTA and 21 others-Appellants

versus MALIK AMER MUHAMMAD KHAN and 11 others-Respondents

R.S.A. No. 36 of 1990, heard on 10.4.2000. Specific Relief Act, 1877 (I of 1877)-

—S. 12-Civil Procedure Code (V of 1908), S. I00--Suit for specific performance of agreement to sell was dismissed by Trial Court but the same was decreed by First Appellate Court-Validity-Agreement to sell was got executed by alleged attorney on basis of power of attorney-Original power of attorney was not produced in Court and in its place photo-copy of the same was produced which was however, aot exhibited in Court for having not been proved in accordance with law-Evidence on record would indicate that apart from the fact that there was no proof that alleged attorney was validly appointed attorney of respondent (land owner) and was duly authorised to enter into agreement to sell land in question, even execution of the same was not proved—Signatures of alleged vendor on admitted document and on disputed document did not tally-Document in question, was thus, nothing but a crude attempt to commit forgery-Impugned judgment of First Appellate Court was contrary to law and was not sustainable, therefore, the same was set side and that of Trial Court dismissing suit was restored. [Pp. 259 & 260] A, B

1998 SCMR 96; 1998 CLC 2006; PLD 1993 Kar. 520; 1998 MLD 1908;

1996 SCMR 575.

Ch. ImdadAli Khan, Advocate for Appellants.

Kh. Muhammad Asghar, Advocate for Respondents Nos. 1 to 10.

Nemo for other Respondents.

Date of hearing: 10.4.2000.

judgment

The suit land was admittedly owned by Respondent No. 11, Malik Amir Muhammad Khan and Ghulam Ah', the predecessor-in-interest of Respondents Nos. 1 to 10 filed a suit against Respondents Nos. 11-12. It was stated in the plaint that Respondent No. 11 through her husband and general attorney Respondent No. 12 entered into an agreement for sale of suit land in their favour for a consideration of Rs. 1,20,000/-. Out of this amount a sum of Rs. 5,000/- was paid as advance while balance amount was to be paid at the time of registration of sale-deed which was to be executed, one month after conferment of proprietary rights on Respondent No. 11; that the conveyance deed has been executed and registered in favour of Respondent No. 11 by the Provincial Government on 20.8.1979. It was alleged that Respondent No, 11 is making attempt to transfer the suit land to some other person. With these averments a prayer was made for a decree for specific performance of the said agreement to sell dated 17.1.1979. Later on it was disclosed that the land was sold by Respondent No. 11 to present Appellants Nos. 13 to 22 vide registered sale-deed, dated 20.8.1979. This sale was pre-empted by Appellants Nos. 1 to 12 and & decree was passed in their favour in the said suit Consequently all the appellants were impleaded as a party to the suit. Respondents Nos. 11 and 12, in their written statements, denied execution of any agreement to sell in favour of the Respondents Nos. 1 to 10 and further took the plea that Respondent No. 12 was not an attorney of Respondent No. 11 on 17.1.1979 Le. the date the alleged agreement was stated to be executed by Respondent No. 12 on behalf of .Respondent • No. 11 To similar effect was the defence of the two sets of appellants. Issues in the suit were framed. Evidence of the parties was recorded. The learned trial Court vide judgment and decree, dated 30.3.1989 dismissed the suit of Respondents Nos. 1 to 10. An appeal filed by the said respondents was heard by learned District Judge Khanewal who allowed the same and decreed the suit of Respondents Nos. 1 to 10.

1. Learned counsel for the appellants contends that the learned District Judge has grossly misread the evidence on record. According to the learned counsel there is no evidence on the record that Respondent No. 12 was the attorney of Respondent No. 11 on the day the alleged agreement was executed. It was also averred that what to speak of proving a valid agreement, even the original agreement was not produced and instead a photo copy was allowed to be produced without any proceedings or order under Article 76 of the Qunoon-e-Shahadat Order 1984. Also contends that a bare look on the signatures appearing on the alleged agreement and other un-disputed signatures of Respondent No. 12 would show that the original of the agreement was an out and out forgery. Learned counsel also argues that the alleged special power of attorney was produced out of the blue without any nexus with the pleadings and without any proof whatsoever but the learned District Judge placed implicit reliance on the same. Learned counsel for Respondents Nos. 1 to 10, on the other hand has tried to support the impugned judgment and decree of the learned District Judge.

2. I have gone through the records of the learned two courts below, with the assistance of learned counsel for the parties.

3. I find that the agreement, dated 17.1.1979, (photo copy) is Exh. P-l on the record. It states that Raja Qamar-uz-Zaman, Respondent No. 12, is executing the said agreement acting as general attorney of Respondent No. 11. No particulars of the said general power of attorney are mentioned in Exh. P-l. So much so, even a date is not available. To prove this document Respondents Nos. 1 to 10 produced Abdul Ghaffar Stamp Vendor PW-1. His testimony is of no help at all to the said respondents as he stated that he cannot say on an examination of Exh. P-l as to whether he sold the stamp for the same or not. PW-2 is Malik Aurangzeb Khan Advocate, who is a marginal witness of Exh. P-l. This witness has categorically stated that Raja Qamar-uz-Zaman was general attorney of Respondent No. 11 and he executed the agreement in that capacity. He claims that Raja Qamar-uz-Zaman was known to him but states that he does not know his address, does not know even his father's name and neither does he know particulars of his brothers and sisters. He admits that he did not see any general power of attorney at the time of alleged execution of Exh. P-l. The third witness is Amir Anwar PW-3, he is the second marginal witness of Exh. P-l. He also categorically stated that Raja Qamar-uz-Zaman was the attorney of his wife. In response to the cross-examination conducted on behalf of Respondents Nos. 11 and 12 he admitted without any demur that on 17.1.1979 Raja Qamar-uz-Zaman had no power of attorney in Ms favour from Respondent No. 11. Next in line in Shaukat Ali scribe PW-5. This witness also states that Raja Qamar-uz-Zaman was the general attorney of Respondent No. 11. In his cross-examination he states that he did not know Raja Qamar-uz-Zaman personally; that Qainar-uz-Zarnan despite his asking did neither produce a power of attorney nor his identity card. Malik Amir Muhammad one of the deceased plaintiff appeared as PW-8 and he also stated that Qamar-uz-Zaman was the general attorney of Respondent No. 11. In his cross-examination he changed his stance and stated that Qamar-uz-Zaman was a special attorney and produced from his pocket a photostat copy which was marked as 'A'. To rebut, Ahmed Din special attorney of Respondent No. 11 entered the witness-box and denied on oath that Qamar-uz-Zaman was not an attorney of Respondent No. 11 on 17.1.1979 and that it was on 1.8.1979 that for the first time Respondent No. 11 appointed Respondent No. 12 as her attorney; that no agreement was entered into by Respondent No. 11 with Respondents Nos. 1 to 11 and that Respondent No. 12 had no authority to entered into such an agreement This witness was not confronted with the alleged special power of attorney mark 'A'. It will be interesting to note that it was suggested to this witness that Respondent No. 11 herself entered into the agreement and executed the same which of course was denied by the said witness.

4. No attempt was made to prove the document mark 'A'. The cumulative effect of the evidence, on its proper reading is that it was the case of Respondents Nos. 1 to 10 as also of their witnesses that Respondent No. 12 was a general attorney of Respondent No. 11 but they failed to either produce the said power of attorney or to prove the same. The photo copy Mark 'A' would be of no help to the Respondents Nos. 1 to 10 as the same had not been proved in any manner prescribed by law and the document by itself is inadmissible in evidence and that is why it was not exhibited.

5. On a reading of the said evidence the only possible conclusion is that apart from the fact that there is no proof on record that Respondent No. 12 was a validly appointed attorney of Respondent No. 11 and was duly authorised to enter into an agreement to sell the suit land in favour of

PLJ 2001 Lahore 261 (DB)

Present: sayed jamshed An and mian muhammad najam-uz-zaman, JJ.

. M/s. GULF PACIFIC FERTILIZER, 700 CHESTNUT STREET SAN CARLOS C.A. 9407, CALIFORNIA, U.S.A. through M. SALEEM SHAIKH (AUTHORIZED AGENT/ATTORNEY LAHORE-Appellant

versus

M/s. ALI AKBAR ENTERPRISES through its CHIEF EXECUTIVES MANAGING DIRECTOR and 2 others-Respondents

R.F.A. No. 24 of 2000, heard on 21.3.2000. Civil Procedure Code, 1908 (V of 1908)-

—-O.VII, R. 11 & S. 96-Rejection of plaint by Trial Court on sole ground that according to admitted document, dispute between parties has to be settled through arbitration-Validity-Rejection of plaint on the ground that contract contained arbitration clause was un-sustainable-Effect of arbitration clause in agreement was that defendant could claim stay of proceedings in suit under S. 34 of Arbitration Act, 1940—Defendant's plea that Appellate Court could substitute reason for rejection of plaint with another reason was although correct yet his further plea that there being no concluded contract between parties, plaint should be rejected on that ground, could not be accepted in as much as, question of contract being concluded would have to be decided on basis of evidence-Impugned order to the extent of suit for permanent injunction was maintained while to the extent of suit for damages was set aside-Suit to the extent of damages was remanded to Trial Court to be tried and disposed of in accordance with law. [Pp. 262 to 264] A, B, C & D

v AIR 1924 Nag 80 and PLD 1993 Lah. 183.

Mr. Ahmad Awais, Advocate for Appellant

M/s. Wasi Zafar and Zahid Humid, Advocates for Respondent No. 1.

Date of hearing: 21.3.2000.

judgment

Syed Jamsibed All, J.-This is plaintiffs first appeal. Plaint in the suit for damages for breach of contract and permanent injunction has been rejected vide order dated 11.12.1999.

1. The plaintiff is a U.S. based firm. The case set up in the plaint was that the appellant offered to supply to Respondent No. 1, 30000 Metric Tons of DI-Ammonium Phosphate (DAP) and after necessary correspondence, a duly concluded contract came into existence through the proforma invoice of the plaintiff duly accepted by Respondent No. 1. The appellant claimed to have made arrangements for the supply of the aforesaid goods. It was further averred that Respondent No. 1, however, backed out.

2. In the suit, the appellant had claimed damages to the tune of 1.252 Million U.S. Dollars on various counts, the details of which have been given in Paragraph 10 of the plaint. A permanent injunction was also claimed in the following terms:-

(i) Defendant No. 1 is restrained to take the delivery, to sell or to alienate or to transport or to hand the possession over to any body else of 5700 Metric Tons, Fertilizer from the ship namely MV AUTUMN discharging on 15.11.1999, may be passed.

(ii) The Defendants Nos. 2 and 3 may graciously be directed to withhold 5700 Metric Tons Fertilizer from the above mentioned ship and be restrained from handing it over to any body including the Defendant No. 1 or to give possession for any purposes to any body except under the order of this Honourable Court."

1. On 26.11.1999, Respondent No. 1 made an application under Order VH, Rule 11 of the Code of Civil Procedure seeking rejection of the plaint on the grounds that the appellant-plaintiff had no cause of action because there was no concluded contract between the parties, that the suit was not filed through a duly authorized person and that the so called contract contained an arbitration clause. It may also be noted that thereafter on 29.11.1999 written statement was also filed by Respondent No. 1.

2. Vide order dated 11.12.1999, the learned trial Court rejected the plaint on the sole ground that according to the admitted document (the proforma invoice) Annexure 'G' to the plaint, the dispute between the parties is to be settled through arbitration.

3. The learned counsel for the appellant contends that the plaint could not have been rejected on the basis of the arbitration clause in the contract and therefore, the impugned order is plainly unsustainable.

4. On the other hand, the learned counsel for Respondent No. 1 have submitted that the plaint has rightly been rejected. They further contended that the documents produced by the plaintiff with the plaint, even if accepted on their face value, do not constitute a concluded contract and therefore, the plaintiff-appellant had no cause of action. They further asserted that they could defend the impugned order on the ground other than the ground on which it is based. They canvassed that this Court was competent to reject the plaint on the ground other than the one on which the judgment of the learned trial Court is based.

5. We have considered the submissions made by the learned counsel for the parties. As far as the rejection of the plaint on the ground that the contract contained an arbitration clause is concerned, it is unsustainable. The effect of an arbitration clause in an agreement is that the defendant can claim stay of the proceedings in the suit under Section 34 of the Arbitration Act. It appears that the learned trial Court was totally unmindful of the aforesaid provision. In fact, the learned counsel appearing for Respondent No, 1, did not defend the impugned judgment on this particular reason.

6. A perusal of the impugned judgment shows that the ground to reject the plaint is that the plaintiff-appellant had no cause of action and the reason in support thereof, was the arbitration clause. The learned counsel for Respondent No. 1 canvassed that the reason for holding that the plaintiff- appellant had no cause of action should be substituted by this Court with the reason that there was no concluded contract between the parties. This is seriously contested by the learned counsel for the appellant. He contends that if the ground to reject the plaint is found to be unsustainable, the plaint cannot be rejected on any other ground by this Court.

7. The learned trial Court has not specifically dealt with this aspect of the case i.e, the existence of a concluded contract, or otherwise but observed as follows about the proforma invoice:

"About proforma invoice it is observed that from the record as produced on the file it reveals that it is the valid document which indicates the terms and condition as allegedly settled between the parties. Therefore, the objection of the petitioner about authorized agent and proforma invoice is hereby rejected."

1. The first question that attracted out attention was whether a Court of appeal could substitute a reason for rejection of the plaint with another reason. Our answer is in the affirmative because appeal is coatinuation of the suit and under Section 107 of the Code of Civil Procedure the Court of appeal has all the powers which are vested in the trial Court. This power is adequately supplemented by the provisions of Rule 33 of Order XLI of the Code of Civil Procedure. We may also refer to Vithoba Yadeo versus Suryobha and another (1824 Nagpur 80). In the said precedent case the plaint was rejected on the ground of insufficiency of the Court- fee. This was reversed by the learned First Appellate Court but the plaint was rejected on the ground of limitation. This was upheld by this Court. We, therefore, proceed to consider the submission of the learned counsel for Respondent No. 1 that the plaint was liable to rejection for the reason that there did not exist any concluded contract between the parties.

2. The precise submission of the learned counsel for Respondent No. 1 is that the offer of the appellant was contained in the proforma invoice (Annex. G to the plaint) according to which the price quoted by the appellant •was 202 U.C. Dollars per Metric Ton. This proforma invoice carries a note of acceptance in the following words:

"Received and accepted by U.S. Dollar 200/M.Ton CNF Karachi." This note also bears the stamp of Respondent No. 1. According to the learned counsel for Respondent No. 1, the plaintiff had offered to supply the goods at the rate of U.S. Dollar 202 per metric ton and the acceptance (Even if proved to have been recorded by a duly authorised person on behalf of Respondent No. 1) at the rate of 200 U.S. Dollars Per Metric Ton was a counter offer and unless it was shown that this counter offer was accepted by the plaintiff-appellant, a concluded contract did not come into existence. This is disputed by the learned counsel for the plaintiff on the basis of letter dated 20.8.1999 (Annex. 'H' to the plaint).

1. We are not persuaded to agree with this contention at this stage. The plaintiff has alleged a concluded contract and its reach and he is entitled to an opportunity to prove his case. The plaintiff is relying on a number of documents, interpretation of which particularly the letter dated 20.8.1999, of the plaintiff will be required in the light of the evidence ' produced oa the record to find out whether there has been a concluded contract between the parties? This question cannot be determined summarily as convassed by the learned counsel for Respondent No. 1.

2. We may now attend to the miscellaneous applications pending disposal. Through C.M. l/C/2000 filed under Rule 10 of Order XLJ of the Code of Civil Procedure, Respondent No. 1 seeks a direction to the plaintiff- appellant for furnishing security for the costs of the appeal and the suit. Since the appeal is being disposed of by us and the case is being remanded to the learned trial Court, no order on this application is called for. Respondent No. 1 will be at liberty to move the learned trial Court under Rule 1 of Order XXV of the Code of Civil Procedure.

3. C.M. No. 2/C/2000 and 124/C/2000 have also been moved by Respondent No. 1 for recalling the order dated 23.12.1999 directing release of goods to Respondent No. 1 on furnishing third party security for the suit amount It may be noted that vide order dated 28.11.1999, the learned trial Court had directed that the disputed quantity of the fertilizer Le. 5700 M.T. shall not be delivered, sold, or transferred by the defendants. This interim order was extended till 4. 12.1999 vide order dated 29.11.1999 of the learned trial ourt However, the plaint was rejected on 11.12.1999 with the result that the said interim injunction ceased to be operative. However, on C.M. 1509 of 1999 moved by the appellant, status-quowas directed to be maintained vide order dated 15.12.1999 passed by this Court. Respondent No. 1 moved C.M. No. 3 of 1999 for vacation of the order dated 15.12.1999 on which order dated 23.12.1999 was passed.

4. The learned counsel for Respondent No. 1 contends that a permanent injunction could not be claimed in a suit for damages and to this extent the order of rejection is perfectly justified and therefore no temporary injunction could be granted to restrain Respondent No. 1 from obtaining delivery of the consignment imported by Respondent No. 1, without involving the appellant. Therefore, according to him, the condition of furnishing third party security for release of the goods could not be imposed. There is merit in the contention of the learned counsel for Respondent No. 1. The consignment in question has undisputedly been imported by Respondent No. 1. The plaintiff-appellant did not lay any claim on the goods in question. The appellant is claiming damages for the breach of the contract and in our view, if the appellant is able to establish his case, pecuniary compensation will afford adequate relief. According to clause (c) of Section 54 of the Specific Relief Act, a perpetual injunction is granted "where the invasion is such that pecuniary compensation would not afford adequate relief. Apart from the said provision, Clause (f) of Section 56 of the Specific Relief Act, provides that an injunction is to be refused to prevent the breach of a contract the performance of which would not be specifically enforced". We axe of the view that by virtue of the illustrations to clause (a) of Section 21 of the Specific Relief Act, agreement for sale of goods cannot be specifically enforced. Therefore, the suit to the extent of permanent injunction was not maintainable and no injunctive order could be passed to restrain Respondent No. 1 to take the delivery of the goods, in question. We, accordingly, recall the order dated 23.12.1999 to the extent that it imposed a condition of furnishing third party security by Respondent No. 1 for the release of his goods.

5. For what has been stated above, the impugned order to the extent of suit for permanent injunction is maintained while to the extent of the suit for damages it is set aside. In maintaining the order of rejection partly, we are fortified by the judgment of this Court in Mst. Iqbal Begum versus Farooq Inayat and others (P.L.D. 1993 Lah. 183). Resultantiy, the suit to the extent of damages is remanded to the learned trial Court to be tried and disposed of in accordance with law. No order as to costs.

(A.P.) Case remanded.

PLJ 2001 Lahore 265 (DB)

Present: malik muhammad qayyum and sayed zahid hussain, JJ.

GHULAM JILLANI EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DIVISION, SIALKOT-Appellant

versus

GOVERNMENT OF THE PUNJAB through the CHIEF SECRETARY

GOVT. OF PUNJAB AND CHAIRMAN PROVINCIAL SELECTION

BOARD and another-Respondents

I.C A No. 401 of 1992, decided on 14.6.2000. Punjab Civil Servants Act, 1974 (VIII of 1974)--

—Ss. 8 & 9--Law Reforms Act, 1972 (XH of 1972), S. 3~Civil servant-­Fitness for promotion--Jurisdiction of High Court to determine fitness for promotion-Extent of—Appellant claimed that he had not been promoted while others had been promoted-Appellant's writ petition was dismissed being not competent-Validity—Matter relating to promotion of Civil Servant is within the exclusive domain of competent authoity to determine fitness or otherwise of a civil servant on basis of subjective evaluation of record of Civil ervant-Interference by any other forum including the High Court, as for as possible, was not visualized-Civil Servant can at the most claim that he was entitled to be considered for promotion but has no right to be declared by the Court that he was fit for promotion; that being the domain of Competent authority alone-­ Appellant's case for promotion was considered by Provincial Selection Board but on basis of his record he was not recommended for promotion-­ There being no allegation of bad faith, malice or mala fide against any of the members of the Board or the Competent Authority, it cannot be successfully claimed that he had been illegally superseded-Selection Board's view, thus, could not be substituted by the Court-No interference was, therefore, warranted in such matter. [P. 269] A

PLD 1960 SC 164; 1985 SCMR 774; PLD 1988 Lah. 533; 1986 SCMR 64; 1987 SCMR 598; 1991 SCMR 1129; PLD 1994 SC 539.

Sh. Ziaullah, Advocate for Appellant.

Ch. Muhammad Ashraf, Asstt. A.G. for Respondents.

Date of hearing: 8.6.2000.

judgment

Sayed Zahid Hussain, J.-This is an Intra Court Appeal against the judgment of a learned Single Judge passed in Writ Petition No. 4404-S of 1991, which was disposed of with certain observations on 7.11.1992.

1. The appellant, who was an Executive Engineer (BS-18) in the Public Health Engineering Department, felt aggrieved of his supersession when some other officers of his Department were promoted as Superintending Engineer, and filed a petition before this Court that he had wrongly been superseded, which petition, as mentioned above, was disposedof that the matter pertains to terms and conditions of his service and that:

"The petitioner shall be at liberty to approach the appropriate Service Tribunal at appropriate stage for the redress of his grievance.................. "

The petition was disposed of that the grievance raised in the petition shall be looked into before passing of the final order.

1. It is contended by the learned counsel for the appellant that in view of the recommendations of the Selection Board dated 8.10.1990, a Notification dated 13.4.1991 was issued by the Government of Punjab, which was a final order. It is further contended by the learned counsel that the matter of fitness of a civil servant as to a particular post does not fall within the jurisdiction of the Service Tribunal and only a petition before this Court is the remedy for him. It is contended that the Selection Board has wrongly and illegally declined to recommend him for promotion although he was fully fit for the same.

2. The learned Asstt. Advocate-General, Punjab, on the other hand, contends that the Selection Board rightly declined to recommend the appellant for promotion and he was not found fit on the assessment of his record, as such, this Court cannot interfere with such an order of the competent authority.

3. The appellant, who was one of the Executive Engineers, his case was submitted for selection and consideration for the rank of Superintending Engineer before the Provincial Selection Board, but was not found fit for promotion on consideration and assessment of his service record. In view of the fact that the recommendations of the Selection Board, which had been challenged by the appellant, had merged into a final order when Notification dated 13.4.1991 was issued, it was a final in the matter. We have, therefore, heard the case on merits.

4. In order to determine the fitness of a person, to hold a particular post and to be promoted, the competent authority is vested with the power and jurisdiction to make assessment of the material. Such an assessment has been regarded by the Courts as subjective one. In Muhammad Aboo Abdullah v. The Province of East Pakistan and another (PLD 1960 SC (Pak) 164), it was observed that:

"So far as suitability for promotion to a particular post is concerned, the sole judge is the Government and Courts are unable to interfere except possibly in a case of proved mala fides."

In Aish Muhammad and 68 others v. Pakistan and 75 others (1986 SCMR 774), it was held that fitness is essentially a matter of subjective assessment by the promoting authority. In Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lahore 553), the rule laid down in Muhammad Aboo Abdullah (supra) was followed and it was observed by noting clause (b) of the proviso to Section 4 of the Punjab Service Tribunals Act, 1974 that as the matters of promotion were not justiciable before the Courts prior to the enactment of the Service Tribunals Act, 1974 recourse to the Service Tribunal in such matters was excluded. It was accordingly held that it could not have been the intention that the matter though excluded from the jurisdiction of the Service Tribunal "yet they should be within the Constitutional jurisdiction of this Court"

1. The three cases mentioned above had arisen out of writ petitions filed by the civil servants before the High Court and were dismissed by the Courts for the above view.

2. In Secretary, Government of Sindh, Education Department and another v. Syed Riyazul Hassan Zaidi and another (1986 SCMR 64), it was held:

"That a civil servant has no vested right to promotion and prospects of promotion cannot be included in conditions of service, was a settled proposition of law even before the enforcement of the Civil Servants Act, 1973. However, the provisions of Section 9 of the said Act dearly postulate that promotion to a selection post can be made on the basis of selection on merit and to a non-selection post, on the basis of seniority-cum-fitness. On the plain reading of the section the criteria for making promotion to the higher grade implies a decision by the competent authority according to the individual judgment of such authority. The underlying principle seems to be that seniority alone is not the determining factor for judging the suitability or fitness of civil servant for discharging the functions attaching to a post in the higher grade. An outside forum in the very nature of thing cannot sit in appeal and review the judgment of the competent authority regarding the fitness for promotion of a civil servant. This seems to be the philosophy underlying the embargo contained in clause (b) of the proviso to Section 4 of the Sindh Service Tribunals Act. 1973. which provides that no service appeal shall lie to the Tribunal against such order of a departmental authority for purposes of promotion to higher post or grade."

The case of Syed Noorul Hassan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others (1987 SCMR 598) had come up before the Supreme Court as a result of dismissal of appeal of the civil servant by the Service Tribunal qua his supersession. Relevant portion of the judgment is quite instructive and is reproduced hereunder:

"Accordingly, it is not the element of seniority alone which is to be considered. Fitness is also an important consideration and has to co­exist with seniority. We may emphasize that promotion cannot be demanded as of right and seniority by itself cannot confer any absolute right of promotion irrespective of other considerations. It will be for the competent authority to determine the suitability after an assessment of all relevant considerations such as seniority, competence, rectitude, annual confidential reports and none of which is less important than the other for the preservation of purity and efficiency in public service."

(For emphasis some portions have been underlined by us)

By noting that the case of the civil servant had been considered by the Selection Board and he was not found fit on the basis of his past service record, the appeal was dismissed.

In Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129), distinction between eligibility and fitness was noted by their lordships, and it was observed:

"What is barred from the jurisdiction of the Tribunal is the question of fitness of a civ!] servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction _of the competent authority nor shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification."

(Portion underlined by us)

In Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539), it was reiterated after elaborate discussion on the subject that "the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court" The trend of the judicial authority on the subject, therefore, is fairly indicative that in a matter relating to the promotion of a civil servant it is the competent authority alone which has the exclusive authority to determine the fitness or otherwise of a civil servant on the basis of subjective evaluation of the record of the civil servant and interference by any other forum (Tribunal or Court) as for as possible is not visualized. That appears to be the reason that the same has been kept out of purview of the appellate jurisdiction of the Service Tribunal even. What at the most a civil servant can claim is that he is entitled to be considered for promotion but has no right to be declared by the Court that he is fit for promotion; that is a domain of the competent authority alone.

1. In the present case, the case of promotion of the appellant was considered by the Provincial Selection Board, manned by senior civil servants, but they did not favourably recommend his promotion. There is no allegation of bad faith, malice or mala fide against any of the members of the Board or the competent authority, it, therefore, cannot be successfully argued that he has been illegally superseded. Their view of the assessment of the record, cannot be substituted by the Court In view of the dictum of the Supreme Court, there is no scope for interference with the decision of the Selection Board or the competent authority, by this Court when there is not even a semblance of mala fide in the matter.

As a result of the above, this appeal is dismissed with no order as to costs.

(A.P.) Appeal dismissed.

PLJ 2001 Lahore 270

[Multan Bench Multan]

Present: maulvi anwar-ul-haq, J. ASHFAQ AHMAD-AppeUant

versus GHULAM HUSSAIN and 2 others-Respondents

R.S.A. 910 of 1978, heard on 7.6.2000. Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 15~Land Reforms Regulation 1972 [M.L.R. 115], Para 25~Civil Procedure Code, 1908 (V of 1908), S. 100-Composite suit for pre-emption being an owner in estate, relationship with vendor and on basis of being tenant of land in question-Trial Court decreed pre-emptor's suit-­ Appellate Court however, maintained that pre-emptor having daimed right of pre-emption on basis of being tenant of land in question, suit stood automatically transferred to Court of Collector and, therefore, Civil Court had no jurisdiction to deal with such matter-Vaudity-Pre-emptor admittedly never pressed plea of tenancy during course of trial, therefore, his such plea stood abandoned-Vendee's plea that claim of pre-emptor should first be sent to Collector where he should abandon his plea of tenancy and then should come back to Civil Court for trial de-novo was not warranted-Judgment and decree of Appellate Court dismissing pre- emptor was set aside while that of Trial Court decreeing the suit was restored. [P. 272] A

PLD 1987 Lah. 268 ref.

Mr. Athar Rehman Khan, Advocate for Appellant Kh, Muhammad Akram, Advocate for Respondents. Date of hearing: 7.6.2000.

judgment

This judgment shall decide R.S.A. No. 910/78 and R.S.A. No. 1036/78 as they involve common questions of law and facts.

1. Respondents Nos. 1 & 2 (appellants in RSA No. 1036/78 herein after to be referred to as the vendees) purchased the suit land by means of registered sale-deeds dated 12.9.1973 and 26.3.1973 respectively. Ashfaq, appellant (Respondent in RSA No. 1036/78 herein after to be referred to as the pre-emptor) filed suits for possession of the suits land by pre-emption. In the plaint it was stated that the said vendees are strangers, whereas the pre-emptor is an owner in the estate and has superior right of pre-emption. It was further stated that the said pre-emptor was a non-occupancy tenant in the suit land at the time of sale. The suits were contested. The learned trial Court framed issues and recorded evidence of the pre-emptor. The vendees Respondents Nos. 1 to 10, even the execution of the- so-called agreement Exh. P-1 by him has not been proved. I have also, with the assistance of learned counsel, made a comparison of the signatures of Respondent No. 12 on Exh. P-1 with document Exh. D-1 as also Exh. P-6, Exh. P-11, Exh. P-12, Exh. P-13 and Exh. P-14 (the plaintiffs exhibits have been also relied upon by the learned District Judge) and I find that even to a naked eye it appeal's that the Exh. P-1 does not bear the signatures of the person whose signatures appear on the said documents referred to above. The word " t>^? j " i8 written as " ii> Wi " in Exh. P-1 whereas in all the said documents referred to by me above the said word is written as" (t>k»J ". Exh. P-1 is nothing but a crude attempt at forgery and to my mind this explains the reasons for withholding the original document.

2. I am also not in agreement with learned District Judge that Respondent No. 11 could be presumed to be the attorney of Respondent No. 11 as he had been conducting some proceedings on her behalf so as to be authorised to enter into the agreement in question with Respondents Nos. 1 to 10.

3. Ch. Imdad Ali Khan Advocate has cited the case of "Muhammad Ibrahim through Legal Heirg and others vs. Mst. Basri through Legal Heirs and others" (1998 SCMR 96) to support the plea that failure to produce the original power of attorney on the basis whereof the agreement was allegedly executed would lead to drawing of an adverse presumption against Respondents Nos. 1 to 10. Also refers to the case of "Zardad Khan vs. Mst. Sofia Begum" (1998 CLC 2006), for the proposition that sale of wife's property by husband without lawful authority to sell the same was not valid. To similar effect is the case of "Syed Sajid Ali Asif hrough Legal Heirs vs. Mumtaz Ahmed and 3 others" (PLD 1993 Karachi 520). In order to support the exercise undertaken by the learned Trial Court in comparing the disputed signatures of Qamar-uz-Zaman on Exh. P-1 with the un-disputed signatures learned counsel cites the case of "Syed Gul Muhammad Shah vs. Choudhry Naseer Ahmad and 4 others" (1998 MLD 1908), which judgment f the High Court of Smdh at Karachi is supported by the judgment of the Supreme Court in the case of "Sirbaland v. Allah Lake and others" (1996 SCMR 575).

4. In view of the above discussion I find that the impugned judgment of the learned District Judge is contrary to law and cannot be - sustained. Accordingly this RSA is allowed, the judgment and decree, dated 14.5.1990 of learned District Judge hanewal is set aside and that dated 30.3.1989 of the learned trial Court is restored with costs throughout. (A.P.) Petition dismissed. failed to produce any evidence and the same was dosed. The pre-emptor, however, in both the cases admitted the ostensible sale price of the land. Consequently, both the suits were decreed vide judgment and decree dated 17.1.1977 and 5.5.1977 respectively. Feeling aggrieved the vendees filed appeals. Both the appeals were heard by Malik Muhammad Ramzan, Additional District Judge-H, Sahiwal, whereas the appeal filed against the judgment and decree dated 17.1.1977 of the learned trial Court was allowed vide judgment and decree dated 27.9.1978. The appeal filed against the judgment and decree dated 5.5.1977 of the learned trial Court was dismissed vide judgment and decree dated 6.12.1978. I may state here that vide judgment and decree dated 27.9.1978 the learned Additional District Judge, proceeded to hold that since the pre-emptor had claimed a right of pre­emption on the basis of being a non-occupancy tenant, the suit stood automatically transferred to the Court of Collector on the enforcement of Land Reforms (Amendment) Ordinance, 1976 and as such the learned Civil Court had no jurisdiction to deal with the matter.

5. R.S.A. No. 910/78 has been filed by the pre-emptor while R.S.A. No. 1036/78 has been filed by the said vendees.

6. Learned counsel for the pre-emptor/appellant argues that the judgment and decree of the learned Addl. District Judge is contrary to law as the pre-emptor had not based his suit on the right conferred by para 25 of MLR 115 alone but had also claimed to be an owner in the estate in one case and being brother of vendor in the other and in fact the learned trial Court only found pre-emptor to be an owner in the estate and brother of vendor respectively and vendees to be strangers and thus passed the decree in hisfavour. Learned counsel for the vendees opposes the appeal filed by the pre- emptor and supports the appeal filed by his client with the rgument that upon promulgation of the said Amendment Ordinance, the suits stood transferred to the Court of Collector automatically and as such the Civil Courts had no jurisdiction in the matter. He relies on the case of Muhammad Ramzan and 2 others vs. Noor Muhammad and four others (PLD 1987 Lahore 268).

7. I have gone through the record with the assistance of the learned counsel for the parties. There is no dispute as to the superior right of pre­ emption and the amount to be paid to the vendees. The only point raised is the one recorded by me above. I have also gone through the judgment in the case of Muhammad Ramzan and 2 others reproduced by the learned counsel for the vendees. His Lordship had opined in para 5 of the said report that in case of composite nature where the right is claimed both on the ground of tenancy as also on the grounds recognised by the Punjab Pre-emption Act, 1913, the case should be taken to the Collector first because in view of sub- paragraph (3) of Paragraph 25 of MLR 115 the qualification of tenancy supercedes all other qualifications. If the plaintiff fails before the Collector the case should be sent back to the Civil Court for decision on the basis of other qualifications claimed by him because of such a suit was pending before a Civil Court at the time of coming into force of the said Ordinance, it automatically stood transferred to the Collector concerned by virtue of para 25(5) of MLR 115. It was also opined that abandonment of plea of tenancy during the course of appeal would not help the pre-emptor.

8. I have examined the facts of the present case in the light of the said judgment being relied upon by the learned counsel. I find that the suits were filed on 21.3.1974 and 12.9.1974 respectively in the said two R.S.As. I also find that the evidence of the pre-emptor was recorded on 31.3.1975 in R.S.A. No. 910/78. This comprises of documents Ex.P.A. to Ex.P. 5 and the statement of one Hakim Ali S/o. Umar Hayat who slated that the pre- emptor is an owner in the estate and also a tenant in the suit land. Thelearned trial Court in its judgment while recording its findings on the issue pertaining to the superior right of pre-emption has not even made a slightest reference to the plea of tenancy and on the other hand has found the pre- emptor to be an owner in the estate.

9. In R.S.A. No. 1036/78 documentary evidence in the form of Ex. P. 1 to P. 3 was led on 14.7.1976 on the basis whereof it was held by learned trial Court in its judgment that the pre-emptor is a real brother of vendor and an owner in the estate. In this judgment also under the issue in question there is not even &slightest reference to the plea of tenancy.

10. In view of the said state of affairs on record it stands established that the pre-emptor never pressed the plea of tenancy during the course of trial and it can be safely assumed keeping in view the tenor of the judgment of the learned trial Court that the plea stood abundoned in both the cases even before promulgation of the said Ordinance. I may here point out that his Lordship while recording the judgment in the said case of Muhammad Ramzan and two others did observe that the case of abandoment of plea of tenancy before coming into force of said Amendment Ordinance would be treated on different touch stone and such & case would not stand transferred to the Collector. This observation has also been made in the same para 5 of the report already referred to by me above.

11. In view of the above facts and circumstances I am not inclined to agree with the learned counsel for the vendees that the claim of the pre- emptor should first be sent to the Court of Collector where he should abandone his plea of tenancy and then should come back to the Civil Court for a trial de novo.

12. Resultantiy R.S.A. No. 910/78 is al lowed. The judgment and decree of the learned Additional District Judge dated 27.9.1978 is set aside and that dated 17.1.1977 of learned trial Court is restored. For the same reasons R.S.A. No. 1036/78 is dismissed. The parties to bear their own costs.

(A.A.T.) Order accordingly.

PLJ 2001 Lahore 273

Present: CH. LlAZ AHMAD, J.

MALIK MUHAMMAD TUFAIL and another-Petitioners

versus

M/s. FAUJI FERTILIZER COMPANY LTD. through its ATTORNEY GENERAL AND MARKETING MANAGER-Respondent

C.R. No. 1045-D/1999, heard on 2.6.2000. Civil Procedure Code, 1908 (V of 1908)--

.—-O.XLJ, R. 31 & S. US-Judgment of First Appellate Court decreeing plaintiffs suit was assailed to be in violation of mandatory provisions did not decide specific issues at all and did not give any finding either to reverse finding of Trial Court or uphold the same on those issues-­ Judgment in question, itself was, thus, not sustainable in the eyes of law- -Specific issues not decided by First Appellate Court were material issues, however, no finding were recorded thereon, thus, such Court failed to apply its judicial mind to the extent of such issues-Remand of case can be .made in exercise of inherent residuary powers under S. 151 C.P.C. where material issues have not been decided by Courts below—Appellate Court was required to set out points for determination, record decisions thereon and give its own reasons for decision in terms of O.XLJ, R. 31 C.P.C.-First Appellate Court decided the case without adverting to reasoning of Trial Court at all, therefore, same was not maintainable in the eyes of law-Case was remanded to First Appellate Court for decision afresh in accordance with law- [Pp. 274,275 & 276] A, B & C

PLD 1969 SC 617.

Mr. M. M. Mam Chaudhery, Advocate for Petitioners. Ch. Abdur Rob, Advocate for Respondents. Date of hearing: 2.6.2000.

judgment

Brief facts out of which the present revision petition arises are that the respondents filed suit for recovery of Rs. 39,968.67/- against the petitioner before the Civil Judge 1st Class Lahore. Petitioner filed written statement controverted the allegations levelled in the plaint Out of the pleadings of the parties the trial Court framed the following issues:--

(i) Whether this Court lacks the jurisdiction to try this suit? OPD.

(ii) Whether the suit is time-barred? OPD

(iii) Whether the suit is not maintainable in its present form? OPD

(iv) Whether the plaintiff has no cause of action to file this suit? OPD

(v) Whether the plaintiff has filed this suit with a mala fide intention and has not come to the Court with clean hands? If so, to what effect? OPD.

(vi) Whether the defendants owe the suit amount to the plaintiff? OPP

(vii) Whether the suit is had for mis-joinder of parties? If so, to what effect? OPD.

(viii) Whether the defendants are entitled to the set off of Rs. 17,731.33? OPD.

(ix) Relief.

The trial Court dismissed the suit of the respondents vide judgment and decree dated 1.2.1996. The respondents being aggrieved filed appeal before the Addl. District Judge who accepted the same vide judgment and decree dated 31.3.1999. Learned counsel for the petitioners submits that judgments of both the Courts below are at variance. He further submits that the First Appellate Court did not advert to the reasoning of the trial Court He further submits that First Appellate Court did not give any finding on Issues Nos. 3 to 5 inspite of the fact that the same were decided against the respondents by the trial Court. He further submits that judgment of the First Appellate Court is not sustainable in the eyes of law as the same is in violation of the mandatory provisions of CPC i.e. Order 41, Rule 31 CPC.

1. Learned counsel for the respondents submits that judgment of the First Appellate Court is in accordance with the law. The material issues between the parties are Issues Nos. 6 and 8 and First Appellate Court decided the same after proper appreciation of evidence against the petitioner. Therefore, judgment of the First Appellate Court is in accordance with law.

2. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record. It is dmitted fact that First Appellate Court did not decide the Issues Nos. 3 to 5 at all. Learned 1st Appellate Court did not give any finding either to reverse the finding of the trial Court or upheld the finding of the trial Court on theaforesaid issues. Therefore, judgment itself is not sustainable in the eyes of law. The judgment of the First Appellate Court is not in accordance with law laid down by the Hon'ble Supreme Court in PLD 1969 SC 617 "Madan Gopal & 4 othersx case"

It is pertinent to mention here that Issues Nos. 3, 4 & 5 are material issues but the 1st appellate Court as mentioned above did not give any finding qua the aforesaid issues meaning thereby the 1st Appellate Court failed to apply its judicial mind to the extent of aforesaid issues. It is settled proposition of law that remand can also be made in exercise of inherent residuary powers under Section 151 CPC where material issues have not been determined by the Courts below. In arriving to this conclusion I am fortified by the judgment of this in Fateh Muhammad's case (2000 CLC 695). The aforesaid proposition of law is also supported by the kw laid down in the following judgments:

Haji Sardar All's case (PLD 1952 Baghdad-ul-Jadid 30).

M/s. Mine Development Corporation's case (1991 C.L.C. Note 359).

It is settled proposition of law that the appellate Court is required to set out points for determination, record the decision thereon and give its own reasons for the decision in terms of Order 41, Rule 31 CPC as per Rule laid

down in the following judgments:--

(1992 CLC 1022) "Juma Khan's case"

(1992 CLC 1407) "Bagh Mi's case"

(1987 CLC 2281) "Syed Hassan Shah's case

(1996 S.C. Judgment 359) "Syed Iftikhar-ud-Din Haider Garden's case

In the present case the contentions of the parties with regard to these eight issues have been recorded in Paras 4 & 5 of the impugned judgment by the First Appellate Court but findings on each issue separately have not been given. Issue No. 3 was with regard to the maintainability of the suit while Issue No. 4 was with regard to the cause of action. Like-wise Issue No. 5 was also important issue settled by the trial Court, but no finding at all is recorded on these issues as required under Order 41, Rule 31 CPC. Thus the judgment of First Appellate Court in view of the aforesaid cited cases, cannot be sustained in the eyes of kw. The findings of the trial Court have been set aside by the appellate Court without setting aside or upholding finding on the aforesaid issues even no reasons have been shown for such decision.

It is pertinent to mention here that 1st appellate Court decided the case without adverting to the reasoning of the trial Court at all, therefore, same is not sustainable in the eyes of law as per law kid down in Madan Gopal's case supra.

1. In view of what has been discussed above, the judgment and decree dated 31.3.1999 is set aside and the case is remanded back to the 1st appellate Court to decide it afresh after hearing the parties and deciding the appeal in accordance with provisions of Order 41, Rule 31 CPC. I myself do not want to give finding on the aforesaid issues so that either parly shall not be deprived one remedy of the revision before this Court Parties are directed to appear before the 1st appellate Court on 19.6.2000. Since it has become an old appeal, the appellate Court is expected to dispose of appeal expeditiously. There is no order as to costs. Disposed of.

(A.A.T.) Case remanded.

PLJ 2001 Lahore 276 (DB)

[Multan Bench Multan]

Present: MUHAMMAD AKHTAR SHABBIR AND NASIM SlKANDAR, JJ.

M. SULEMAN-Appellant

versus

HABIB BANK LIMITED and 4 others-Respondents F.A.O. No. 38 of 2000, decided on 30.3.2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--

—S. 21-Decree for recovery of loan amount having been passed against appellant, he was ordered to deposit specified amount on the date mentioned in that order and remaining be paid in 12 equal instalments- Appellant failed to comply with the order of Banking Court and filed writ petition which was dismissed as withdrawn and thereafter filed fresh application before Banking Court that remaining amount be recovered in 24 equal instalments instead of 12-Appellant's such application was dismissed-Validity-Appellant could not refer any law empowering High Court to make instalments of decretal amount-Appellant had .himself admitted in Trial Court to make payment in 12 equal instalments-No case being pending before Banking Court and that Court being functusofficio, rightly dismissed application of appellant-Appellant was dismissed in circumstances. [P. 277] A

Mr. Tariq Muhammad Iqbal, Advocate for Appellant Date of hearing: 30.3.2000.

order

This appeal under Section 21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 has been filed to call in question order dated 4.3.2000 passed by the Judge Banking Court Sahiwal.

1. The facts giving rise to the present appeal are that the appellant and Respondents Nos. 2 to 5 had obtained a loan of Rs. 4 Lacs on 23.11.1992 from Respondent No. 1. Respondent No. 1 instituted a suit for the recovery of loan amount in the Court of Banking Judge, Sahiwal which was decreed vide judgment and decree dated 3.11.1999, in favour of Respondent No. 1. The Judge, Banking Court ordered the appellant vide judgment dated 4.3.2000 to deposit a sum of Rs. 1,25,000/- on 16.11.1999 and remaining amount to be paid in 12 equal monthly instalments. The appellant failed to comply with the order of Banking Judge. Thereafter the appellant filed Writ Petition No. 84 of "2000 in the High Court which was dismissed as withdrawn to file a fresh application before the Banking Judge.

2. The appellant ad Respondents Nos. 2 to 5 filed an application before Banking Judge praying therein that the remaining amount be recovered in 24 equal monthly instalments instead of 12. The learnedBanking Judge, vide impugned order, dismissed the application.

3. Learned counsel for the appellant contended that due to financial hardships the appellant and Respondents Nos. 2 to 5 failed to deposit the amount in 12 monthly instalments. The appellant is willing to make the payment provided the appellant is allowed to make the payment in 24 easy instalments.

4. When confronted with the proposition, learned counsel for the appellant has not been able to refer any law empowering this Court to make the instalments of the decretal amount. The appellant and Respondents Nos. 2 to 5 have themselves admitted in the Court to make the payment in 12 equal monthly instalments. No case was pending before the Banking Court, being functus officio rightly dismissed the applications of the appellant Learned counsel for the appellant has not been able to point out any illegality in the impugned order.

For the foregoing reasons, We are constrained to dismiss this appeal in limine. Order accordingly. (AA.) Appeal dismissed.

PLJ 2001 Lahore 277 [Multan Bench Multan]

Present:MUHAMMAD AKHTAR SHABBIR, J. ABDUL HAYEE-Petitioner

versus

WAHID BAKHSH-Respondent C.R. No. 113 of 1983, heard on 16.10.12000. Punjab Tenancy Act, 1887 (XVI of 1887)-

—-S. 4(5)--Transfer of Property Act (IV of 1882), S. 58~Civil Procedure Code (V of 1908), S. 115~Suit for pre-emption decreed by Trial Court, was dismissed by Appellate Court-Validity-Vendee claimed to be the tenant of land in question, but tenancy can only continue if there were some set of conditions between the tenant and the landlord-Most important condition of tenancy is liability of tenant to pay rent of the land under his cultivation-If there was no .payment of rent or lease money to landlord then relationship of landlord and tenant would not exist between the parties-Vendee claiming to be mortgagee of land in question, could not be recognized as a tenant under S. 4(5) of Punjab Tenancy Act 1887-Mortgagee is not to pay share to landlord of crop, sown by him-Mortgagee is, thus, not included in the definition of "tenant"-Vendee who contested superior right of pre-emption had failed to prove his superior or equal right of pre-emption at the time of institution of suit, at the time of sale or at the time of decree of suit-Plaintiff/pre-emptor, however, had established Ms superior right of pre-emption as per requirement of law-Judgment and decree of Appellate court whereby plaintiffs suit for pre­emption was dismissed was set aside while that of Trial Court decreeing plaintiffs suit was restored in circumstances. [Pp. 280 & 281] A, B & C

Mr. Tahir Mehmood, Advocate for Petitioner. Mr. Kanwar Akhtar All, Advocate for Respondent. Date of hearing: 16.10.2000.

judgment

This revision petition u/S. 115 CPC has been filed to call in question the judgment and decree, dated 26.2.1983, passed by Addl: District Judge, Multan whereby, the judgment and decree, dated 22.2.1981, passed by Civil Judge, Lodhran was set aside and the suit of the pre-emptor/plaintiff/petitioner was dismissed.

1. Facts giving rise to the present revision petition are that Abdul Salam, father of Abdul Hayee, present petitioner had sold his agricultural and measuring 23 kanals 2 marlas situated in village of Kotia Rajwah Tehsil and District Lodhran in favour of Wahid akhsh, the respondent herein, for a consideration of Rs. 22,000/-. The sale was effected through a registered sale-deed, dated 1.11.1977.

2. The above said sale was pre-empted by Atta Elahi and Muhammad Yousuf on the ground that they are owners of the estate wherein the suit land is situated. Abdul Hayee, present petitioner, had alsofiled a separate pre-emption suit to pre-empt the said sale claiming to be the collateral/Yak Jaddi/perspective heir of the respondent/real son of the vendor. Both the pre-emptors alleged that the vendors are strangers in the village. Ine vendee/respondent filed his separate written statement in both the suits denying the averments of the pleadings ard the superior right of pre-emption of the pre-emptors claiming to tenants of the suit land. From the factual controversy appearing on the pleadings of the parties the trial Court led to frame the various issues.

3. After recording and appreciating the evidence of the parties, the trial Court decreed the suit of the plaintiff-Abdul Hayee. Both the suits of the pre-emptors were decreed. Feeling aggrieved Wahid Bakhsh vendee filed two separate appeals and the Appellate Court vide consolidated judgment and decree dated 26.2.1983 accepted both the appeals and set aside the impugned judgment and decree passed by the trial Court and dismissed both the suits filed by the rival pre-emptors.

4. Learned counsel for the petitioner contended that Abdul Salam vendor of the property previously had mortgaged his property vide mutation No. 292 dated 3.10.1976 in favour of the vendee/respondents and thereafter he sold the property vide sale-deed dated 1.11.1977. He further contended that till 3.10.1976 to 1.11.1977 the vendee Wahid Bakhsh was a mortgagee of the land and seized to be tenant of the property. He further contended that the factum of mortgage of the property is admitted by the parties in the sale deed, wherein, it has been mentioned that from today i.e. sale of the property shall be deemed to have been redeemed. He further contended that in record of rights of the property in dispute a note with red ink is given by the Patwari to the effect that the property is mortgaged with the vendee. He further contended that the Appellate Court has based his judgment, misread the documentary as well as the oral evidence produced by the petitioner and thus the judgment of the Appellate Court suffers from illegality and infirmity.

5. On the other hand, learned counsel for the respondent vehemently opposed the argument of learned counsel for the petitioner and supported the judgment of the lower Appellate Couirt by contending that the property was redeemed on 1.11.1977 when the sale in dispute was executed in writing and that the mortgagee is also a tenant of the land. He further contended that the mortgage of land would not discontinue the tenancy in any manner and after the redemption of the mortgage he would continue to hold his status as a tenant of the suit land.

6. 1 have heard the arguments of learned counsel for the parties and perused the record.

7. The case of the vendee is that he ban a superior right of pre­ emption qua the plaintiff being the tenant of the land. The definition of the tenant has been defined u/S. 4 Sub-section (5) off the Punjab Tenancy Act which contemplated that :--

"Tenant" means a person who holds land ander another person, and is, or but for a special contract would be, li able to pay rent for that land to that other person; but it does not include ~

(a) an inferior land-owner, or

(b) a mortgagee of the rights of a land-owner, or

(c) a person to whom a holding has been let in farm under the Punjab Land Revenue Act, 1887, for the recovery of an arrear or land revenue or of a sum recoverable as such as an arrear, or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of sub-letting it."

Sub-section (8) of Section 4 of the Tenancy Act has further provided that:

"Tenancy" means a parcel of land held by tenant of a kndlord under one lease or one set of conditions.

1. From the plain reading of the above provisions of law it is clear that it is an essential condition for a tenant to pay rent for that land to other person whose land he holds on tenancy and the tenancy is a parcel of landheld by a tenant under landlord in one lease or on one set of condition. It ould mean that the tenancy can only continue if there are some set of conditions between the tenant and the landlord. Most important condition of the tenancy and the liability of the tenant is to pay rent of that land meaning thereby, the share of the crops or out put to the landlord. If there is no payment of rent or lease money to the landlord, then the relationship of landlord and tenant would not exist between the parties. A mortgagee of the rights of a land owner is not recognized as a tenant under Section 4 Sub­ section 5(b) of the Punjab Tenancy Act. A mortgage has been defined underSection 58 of the Transfer of Properly Act which envisaged that:

"A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage money and the instrument (if any) by which the transfer is effected is called a mortgaged-deed :"

1. The mortgagee has to make the payment to the mortgagor in advance or to be advanced by way of loan, an existing or future debt. The mortgagee is not to pay the share to the landlord of the crops sown by him. It is the payment of the share or batai is the liability of the tenant only. From the above discussion it is manifestly reveal that a mortgagee is not inherited in the definition of the tenant.

2. In the instant case the sale deed has been produced in evidence as Annex. P-2 and D-l wherein it is stated as under:--

It is further stated in the sale-deed that :--

12-The above mentioned facts in the sale-deed have established that the property was already mortgaged with the vendee which was deemed to have been redeemed on the date of execution of the sale-deed i.e. 1.11.1977, It is an admitted position which need not to be proved that the property was mortgaged with the vendee prior to the execution of the sale- deed. In the Column No. 10 of the record of rights for the year 1974-75, a note with the red ink was given by the Patwari, which shows that videMutation No. 494 the property had been mortgaged. The said entry in the Khasra Girdawari for the crops of Rabi, 1977 and Kharif 1977 was written with the red ink by the Patwari that Wahid Bakhsh son of Elahi Bakhsh caste Dhudhi is mortgagee of the suit property. The mutation under the sale- deed in dispute has also been sanctioned but before the sanctioning of this mutation another mutation for redemption of the property was attested. The first Appellate Court has not adverted to the above referred aspect of the case and thus the judgment has been passed by the Appellate Court by mis­ reading or non-reading of the most important documentary evidence produced by the petitioner which is sufficient to prejudice the fate of the case. Learned counsel for the respondent has not been able to controvert the legal proposition that the mortgagee is not inherited in the definition of a tenant as enumerated in Section 4 Sub-section (5) of the Punjab Tenancy Act. The vendee who contested the superior right of the pre-emptor has to prove his superior or equal right at the time of sale, at the time of institution of the suit and at the time of decree of the suit The plaintiff-petitioner Abdul Hayee has established Ms superior right as son of the vendor Abdul Salam continuously at three different stages as required by law. The judgment of the Appellate Court suffered from illegalities and infirmities therefore, cannot sustain in law. For the fore-going reasons this revision petition is accepted.Resultantly the judgment and decree dated 26.2.1983 passed by the Additional District Judge, Multan is set aside and judgment and decree passed by the trial Court 22.2.1981 is restored and the suit of Abdul Hayee plaintiff-petitioner is decreed. He will deposit the total sale amount of Us. 22,000/- less zar-e-panjum if already not deposited or if deposited not withdrawn till 16.12.2000 from the date of passing of this judgment. There shall be no order as to costs.

(A.A.) Revision accepted.

PLJ 2001 Lahore277

[Multan Bench Multan]

Present: MUHAMMAD AKHTAR SHABBIR, J. ABDUL HAYEE-Petitioner

versus

WAHID BAKHSH-Respondent C.R. No. 113 of 1983, heard on 16.10.12000. Punjab Tenancy Act, 1887 (XVI of 1887)-

—-S. 4(5)--Transfer of Property Act (IV of 1882), S. 58~Civil Procedure Code (V of 1908), S. 115~Suit for pre-emption decreed by Trial Court, was dismissed by Appellate Court-Validity-Vendee claimed to be the tenant of land in question, but tenancy can only continue if there were some set of conditions between the tenant and the landlord-Most important condition of tenancy is liability of tenant to pay rent of the land under his cultivation-If there was no .payment of rent or lease money to landlord then relationship of landlord and tenant would not exist between the parties-Vendee claiming to be mortgagee of land in question, could not be recognized as a tenant under S. 4(5) of Punjab Tenancy Act 1887-Mortgagee is not to pay share to landlord of crop, sown by him-Mortgagee is, thus, not included in the definition of "tenant"-Vendee who contested superior right of pre-emption had failed to prove his superior or equal right of pre-emption at the time of institution of suit, at the time of sale or at the time of decree of suit-Plaintiff/pre-emptor, however, had established Ms superior right of pre-emption as per requirement of law-Judgment and decree of Appellate court whereby plaintiffs suit for pre­emption was dismissed was set aside while that of Trial Court decreeing plaintiffs suit was restored in circumstances. [Pp. 280 & 281] A, B & C

Mr. Tahir Mehmood, Advocate for Petitioner. Mr. Kanwar Akhtar All, Advocate for Respondent. Date of hearing: 16.10.2000.

judgment

This revision petition u/S. 115 CPC has been filed to call in question the judgment and decree, dated 26.2.1983, passed by Addl: District Judge, Multan whereby, the judgment and decree, dated 22.2.1981, passed by Civil Judge, Lodhran was set aside and the suit of the pre-emptor/plaintiff/petitioner was dismissed.

1. Facts giving rise to the present revision petition are that Abdul Salam, father of Abdul Hayee, present petitioner had sold his agricultural and measuring 23 kanals 2 marlas situated in village of Kotia Rajwah Tehsil and District Lodhran in favour of Wahid akhsh, the respondent herein, for a consideration of Rs. 22,000/-. The sale was effected through a registered sale-deed, dated 1.11.1977.

2. The above said sale was pre-empted by Atta Elahi and Muhammad Yousuf on the ground that they are owners of the estate wherein the suit land is situated. Abdul Hayee, present petitioner, had alsofiled a separate pre-emption suit to pre-empt the said sale claiming to be the collateral/Yak Jaddi/perspective heir of the respondent/real son of the vendor. Both the pre-emptors alleged that the vendors are strangers in the village. Ine vendee/respondent filed his separate written statement in both the suits denying the averments of the pleadings ard the superior right of pre-emption of the pre-emptors claiming to tenants of the suit land. From the factual controversy appearing on the pleadings of the parties the trial Court led to frame the various issues.

3. After recording and appreciating the evidence of the parties, the trial Court decreed the suit of the plaintiff-Abdul Hayee. Both the suits of the pre-emptors were decreed. Feeling aggrieved Wahid Bakhsh vendee filed two separate appeals and the Appellate Court vide consolidated judgment and decree dated 26.2.1983 accepted both the appeals and set aside the impugned judgment and decree passed by the trial Court and dismissed both the suits filed by the rival pre-emptors.

4. Learned counsel for the petitioner contended that Abdul Salam vendor of the property previously had mortgaged his property vide mutation No. 292 dated 3.10.1976 in favour of the vendee/respondents and thereafter he sold the property vide sale-deed dated 1.11.1977. He further contended that till 3.10.1976 to 1.11.1977 the vendee Wahid Bakhsh was a mortgagee of the land and seized to be tenant of the property. He further contended that the factum of mortgage of the property is admitted by the parties in the sale deed, wherein, it has been mentioned that from today i.e. sale of the property shall be deemed to have been redeemed. He further contended that in record of rights of the property in dispute a note with red ink is given by the Patwari to the effect that the property is mortgaged with the vendee. He further contended that the Appellate Court has based his judgment, misread the documentary as well as the oral evidence produced by the petitioner and thus the judgment of the Appellate Court suffers from illegality and infirmity.

5. On the other hand, learned counsel for the respondent vehemently opposed the argument of learned counsel for the petitioner and supported the judgment of the lower Appellate Couirt by contending that the property was redeemed on 1.11.1977 when the sale in dispute was executed in writing and that the mortgagee is also a tenant of the land. He further contended that the mortgage of land would not discontinue the tenancy in any manner and after the redemption of the mortgage he would continue to hold his status as a tenant of the suit land.

6. 1 have heard the arguments of learned counsel for the parties and perused the record.

7. The case of the vendee is that he ban a superior right of pre­ emption qua the plaintiff being the tenant of the land. The definition of the tenant has been defined u/S. 4 Sub-section (5) off the Punjab Tenancy Act which contemplated that :--

"Tenant" means a person who holds land ander another person, and is, or but for a special contract would be, li able to pay rent for that land to that other person; but it does not include ~

(a) an inferior land-owner, or

(b) a mortgagee of the rights of a land-owner, or

(c) a person to whom a holding has been let in farm under the Punjab Land Revenue Act, 1887, for the recovery of an arrear or land revenue or of a sum recoverable as such as an arrear, or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of sub-letting it."

Sub-section (8) of Section 4 of the Tenancy Act has further provided that:

"Tenancy" means a parcel of land held by tenant of a kndlord under one lease or one set of conditions.

1. From the plain reading of the above provisions of law it is clear that it is an essential condition for a tenant to pay rent for that land to other person whose land he holds on tenancy and the tenancy is a parcel of landheld by a tenant under landlord in one lease or on one set of condition. It ould mean that the tenancy can only continue if there are some set of conditions between the tenant and the landlord. Most important condition of the tenancy and the liability of the tenant is to pay rent of that land meaning thereby, the share of the crops or out put to the landlord. If there is no payment of rent or lease money to the landlord, then the relationship of landlord and tenant would not exist between the parties. A mortgagee of the rights of a land owner is not recognized as a tenant under Section 4 Sub­ section 5(b) of the Punjab Tenancy Act. A mortgage has been defined underSection 58 of the Transfer of Properly Act which envisaged that:

"A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage money and the instrument (if any) by which the transfer is effected is called a mortgaged-deed :"

1. The mortgagee has to make the payment to the mortgagor in advance or to be advanced by way of loan, an existing or future debt. The mortgagee is not to pay the share to the landlord of the crops sown by him. It is the payment of the share or batai is the liability of the tenant only. From the above discussion it is manifestly reveal that a mortgagee is not inherited in the definition of the tenant.

2. In the instant case the sale deed has been produced in evidence as Annex. P-2 and D-l wherein it is stated as under:--

It is further stated in the sale-deed that :--

12-The above mentioned facts in the sale-deed have established that the property was already mortgaged with the vendee which was deemed to have been redeemed on the date of execution of the sale-deed i.e. 1.11.1977, It is an admitted position which need not to be proved that the property was mortgaged with the vendee prior to the execution of the sale- deed. In the Column No. 10 of the record of rights for the year 1974-75, a note with the red ink was given by the Patwari, which shows that videMutation No. 494 the property had been mortgaged. The said entry in the Khasra Girdawari for the crops of Rabi, 1977 and Kharif 1977 was written with the red ink by the Patwari that Wahid Bakhsh son of Elahi Bakhsh caste Dhudhi is mortgagee of the suit property. The mutation under the sale- deed in dispute has also been sanctioned but before the sanctioning of this mutation another mutation for redemption of the property was attested. The first Appellate Court has not adverted to the above referred aspect of the case and thus the judgment has been passed by the Appellate Court by mis­ reading or non-reading of the most important documentary evidence produced by the petitioner which is sufficient to prejudice the fate of the case. Learned counsel for the respondent has not been able to controvert the legal proposition that the mortgagee is not inherited in the definition of a tenant as enumerated in Section 4 Sub-section (5) of the Punjab Tenancy Act. The vendee who contested the superior right of the pre-emptor has to prove his superior or equal right at the time of sale, at the time of institution of the suit and at the time of decree of the suit The plaintiff-petitioner Abdul Hayee has established Ms superior right as son of the vendor Abdul Salam continuously at three different stages as required by law. The judgment of the Appellate Court suffered from illegalities and infirmities therefore, cannot sustain in law. For the fore-going reasons this revision petition is accepted.Resultantly the judgment and decree dated 26.2.1983 passed by the Additional District Judge, Multan is set aside and judgment and decree passed by the trial Court 22.2.1981 is restored and the suit of Abdul Hayee plaintiff-petitioner is decreed. He will deposit the total sale amount of Us. 22,000/- less zar-e-panjumif already not deposited or if deposited not withdrawn till 16.12.2000 from the date of passing of this judgment. There shall be no order as to costs.

(A.A.) Revision accepted.

PLJ 2001 Lahore 282

[Multan Bench Multan]

Present: MAULVI ANWAR-UL-HAQ, J. NAZER AHMAD-Petitioner

versus ADDITIONAL DISTRICT JUDGE, D.G. KHAN and another-Respondents

W.P. No. 6695 of 1997, heard on 18.4.2000. Family Courts Act, (XXXV of 1964)--

—S. 5 of Sched.-Constitution of Pakistan (1973), Art. 199~Suitfor recovery of prompt dower-Suit was dismissed by Trial Court-Appellate Court in appeal, however, decreed plaintiffs suit-Validity—Defendant sought to take advantage of the principle of "As-Sumat", however, apart from non- production of evidence in proof thereof, he failed to make proper pleadings to press into service such principle-Prompt dower to the extent of specified amount was recorded in "Nikahnama", which being duly filled up and registered in accordance with law is a public document-Parties were bound by the recital, contained in "Nikahnama"--There. was no plea or vidence that any amount was privately fixed as dower other than the dower mentioned in "Nikahnama"-Dower publicly announced and evidenced by register deed would be accepted while provisions of Articles 101 and 102 of Qanun-e-Shahadat 1984, would render oral vidence to prove dower to be fictitious one in admissible-No interference was, thus, warranted in the judgment and decree of Appellate Court whereby plaintiffs suit was decreed. [Pp. 283 & 284] A, 8

PLD 1969 SC 194.

Mr. Zahid Khan, Advocate for Petitioner.

Mr. Tariq Usman Joyia, Advocate for Respondent No. 2.

Date of hearing: 18.4.2000.

judgment

Respondent No. 2 filed a suit for recovery of Rs. 30,000/- against the petitioner. According to the plaint she was married to the petitioner on 2.5.1992 and a sum of Rs. 30,000/- was fixed as a prompt dower. She having demanded the dower and the same having not been paid she filed a suit for recovery of the same. In his written statement the petitioner took the plea that although the said amount of dower was fixed at the time of marriage but the parties had an understanding that the same shall not be payable by the Petitioner to Respondent No. 2. Issues were framed and the evidence of the parties was recorded. The learned Judge, Family Court dismissed the suit of Respondent No. 2 vide judgment and decree dated 15.9.1996. Feeling aggrieved she filed an appeal which was heard by a learned Additional

District Judge who allowed the appeal and decreed the suit of Respondent No. 2.

1. Learned counsel for the petitioner argues that the learned Additional District Judge has misread the evidence on record hile setting aside the judgment and decree of the learned Judge, Family Court and thatthe law on the subject has also not been properly construed. Learned counsel or Respondent No. 2, on the other hand, supports the impugned judgment and decree.

2. 1 have gone through the record of the case, with the assistance of the learned counsel for the parties. I find that the petitioner sought to take advantage of the principle of "As-Sumat". However, what to speak of theevidence he even failed to make proper pleadings to press into service the said principle. The matter came up before the Supreme Court of Pakistan in similar circumstances in the case of Nasir Ahmad Khan vs. Asmat Jehan Begum(PLD 1969 SC 194). The matter was put to rest as follows :--

"The principle of As-Sum'at recognizes that when a real dower has been fixed privately, but publicly a second dower is fixed in inflated amount for enhancement of the prestige of the family of the bridegroom or for its glorification and the intention was never to enforce the publicly fixed dower then the dower payable is that which was fixed privately. It is stated in Fatawa-i-Alamgiri: "If a man were to marry a woman for a certain sadak (dower) settled privately and announced a large amount in public the subject assumes two aspects; first when a dower is settled in private, and the parties then enter into the contract (of marriage) in public for a large amount; if the dower agreed to in public is of the same nature (Jins) as that settled privately, the difference being only in respect of the one stated in public being more than the one settled in private, and the parties are agreed in its settlement (viz., the private arrangement), or the man has called evidence to prove against her (the woman) or her guardian (if she be a minor) that the dower was that specified privately and the larger amount was Sum 'at' (for glorification), in that case the dower will be that which was settled in private. If, however, they differ as to the amount settled privately, and the man alleges that it was 1,000 (Dirhems) and the woman denies that amount, her allegation will be accepted and the dower will be that specified in the contract, unless the husband can adduce proof (of his allegation)", Where there is no averment of any privately fixed dower, which is essential for the application of the principle of As-Sum'at, the dower publicly announced and evidenced by a registered deed would be accepted and Sections 91 and 92 of the Evidence Act, 1872 would render oral evidence to prove dower to be a fictitious one inadmissible."

It is by now a settled proposition that a Nikahnama duly filled up and registered in accordance with law is a public document. The parties are bound by the recitals contained therein. In the present case there is no plea or evidence that any amount was privately fixed as dower other than the dower mentioned in the said public document and as such the principles laid down by the Supreme Court in the said judgment are fully applicable to the present case. This writ petition is without any force and is accordingly dismissed with costs.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 284 [Multan Bench Multan]

Present: MAULVI ANWAR-UL-HAQ, J. Mst.SHARIF BIBI-Petitioner

versus MUNIR HUSSAIN SHAH and 7 others-Respondents

W.P. No. 2375 of 1995, decided on 29.5.2000. Muhammadan Law--

—Inheritence-Parties being Governed by "Fiqa Jafaria", petitioner as a childless widow was excluded from estate of her deceased husband which admittedly comprised of agricultural land-Shia scholars and Shia community to have been universally following ever since the days of Imam Jafar Sadat, the principle of exclusion of childless widow from inheritence of her husband's immovable property~To depart from such rule of succession would not be warranted as laid down by Supreme Court of Pakistan in Syed Muhammad Munir's case (PLJ) 1972 SC 346)-- Impugned mutation whereby petitioner was excluded from husband's agricultural property did not suffer from any legal or jurisdictional defects so as to warrant interference in writ jurisdiction. [P. 286] A

PLD 1972 SC 346; DLR 25 All. 297; 120 W.R. 297.

Mr. Muhammad KhalidAlvi, Advocate for Petitioner.

Khan Dil Muhammad Khan Alizai, Advocate for Respondents.

Date of hearing: 29.5.2000.

judgment

The petitioner is widow of Muhammad Akbar having no issue from him. Apparently, the parties are governed by Fiqah Jafaria, The petitioner feels aggrieved of her exclusion from the estate of said Muhammad Akbar which admittedly comprises of agricultural land.

1. Learned counsel for the petitioner contends that there is no law that warrants exclusion of the petitioner from inheriting agricultural land belonging to late husband. Also relies on Articles 4 & 25 of the Constitution in support of this writ petition. Learned counsel for the respondents, on the other hand, argues that under the Fiqah Jafaria a childless widow does not inherit agricultural land.

2. The matter has been brought to rest in the case of Syed Muhammad Munir (represented by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346). In the said case, inter alia, the Supreme Court of Pakistan dealt with following contention raised on behalf of the widow:

"Learned counsel for the respondents also contend that the Shia Rule of inheritance relied upon by the appellants for the exclusion of a "childless widow" should not be accepted, as it is not in conformity with the text of the Holy Quran."

1. After reference to some decided cases, particularly the case of Faiz Rob vs. Khatoon Bibi and others (ILR 25 All 297) Mst. Asloo v. Mst. Umdutoonnissa (120 W.R. 297) and the original text of Shia scholars particularly Syed Amir Ali, the Supreme Court observed as follows :--"In view of this difference in the interpretation of the Quranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of commentators of such great antiquity and high authority. To depart from a rule of succession which the Shiacommunity has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shaijurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of Ijma behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community. We can only point out that the Urdu translation given by Allama Mufti Syed Tyeb Agha Musavi Jazairi does not tally with the English translation given by S. V. Mir Ahmed Ali, another eminent Shia scholar.

This rule has, it appears, also been consistently followed by the Courts in this subcontinent since the decision of the Calcutta High Court in Mst. Asloo v. Mst. Umdutoonnissa. It was affirmed by the Privy Council in 1897 in the case of Agha Muhammad Jaffer Bindaneem v. Koolsom Bee Bee. The Allahabad, Madras and Patna High Courts have also followed it in Umardaraz Ali Khan v. Wilayat Ali (1), Durga Das v. Nawab Ali (2), Mir Ali Hussain v. Sajuda Begum (3) and Syed Ali Zamin vs. Syed Muhammad Akbar Ali Khan (4). Indeed no decision to the contrary has been brought to our notice."

In view of the said legal position emanating from the said judgment of the apex Court of the country I do not find that the impugned mutations suffer from any legal or jurisdictional defects. This writ petition is accordingly dismissed leaving the parties to bear their own costs.

(A.P.) Petition dismissed.

PLJ 2001 Lahore 286

[Multan Bench Multan]

Present: MAULVI ANWAR-UL-HAQ, J. GHULAM RASOOL-Appellant

versus MUHAMMAD RAMZAN and another-Respondents

F.A.O. No. 9 of 1998, heard on 13.4.2000. Civil Procedure Code, (V of 1908)--

—O. XLJ, R. 19 & O. XI.ni, R. 1-Dismissal of application for restoration of appeal which had been dismissed in default of non-appearance of appellant and his counsel-Validity—Cause shown for absence of appellant was that he misunderstood date of hearing-Respondent's objection was that such application was not supported by affidavit of counsel of appellant explaining his absence-Appellate Court had framed issues and recorded evidence of parties wherein appellant's counsel did not appearas witness in support of restoration of appeal-Even brief of counsel's diary was not produced to prove allegation made by appellant in bis application-Impugned order of First Appellate Court in not restoring appeal was thus, correct and in accordance with law-No interference waswarranted by the High Court in order in question. [P. 287] A

Mr. Tariq Muhammad Iqbal, Advocate for Appellant. Nemo for Respondents. Date of hearing: 13.4.2000.

judgment

The respondents filed a suit for recovery of Rs. 12,000/- against the appellant The suit was decreed ex-parteon 24.2.1988. The appellant filed an application for setting aside of the ex-partedecree. This application was dismissed by the learned trial Court on 23.5.1989. Against the said order the appellant filed an appeal which was entrusted to a learned Additional District Judge, Pakpattan. While the appeal was so pending on 15.4.1990 the learned Additional District Judge recorded an order that the learned counsel for the appellant before him is not turning up for argument despite several opportunities. He gave a final opportunity and fixed the case for arguments on 3.6.1990. On this date no one appeared for the said appellant while learned counsel for the respondents before the learned Additional District Judge was present. The appeal was dismissed in default. On 1.7.1990 an application was filed by the appellant for re-admission of the appeal. The application was resisted by the respondents. Issues were framed. Evidence of the parties was recorded. The application was dismissed vide order dated 17.10.1997.

1. Learned counsel for the appellant contends that the application was filed within time and the learned Additional District Judge has acted illegally while dismissing the same. No one has turned up for the respondents.

2. I have gone through the record. 1 find that the cause shown for absence was that the appellant understood the date of hearing to be 30.6.1990 instead of 3.6.1990 and told the said date to the learned counsel and that is why no one turned up on 3.6.1990 for them. I find that the very first objection of the respondents in the written reply was that the application is not supported by the affidavit of the learned counsel for the appellant explaining his absence. The learned Additional District Judge had framed issues and recorded evidence of the parties. I find that what to speak of the said learned counsel appearing as a witness to explain his absence or at least to file an affidavit of the said fact, even his brief or his case diary was not produced to prove the said allegation made by the appellant in his application. In this view of the matter I do not find anything wrong with the impugned order. This F.A.O.,. is accordingly dismissed with no order as to costs.

(AA.) Appeal dismissed.

PLJ 2001 Lahore 287 [Multan Bench Multan]

Present: maulvi ANWAR-UL-HAQ, J.

ABID HUSSAIN and another-Petitioner

versus

GOVERNMENT OF THE PUNJAB SERVICE through SECRETARY

HEALTH DEPARTMENT CIVIL SECRETARIATE PUNJAB LAHORE

and others-Respondents

W.Ps. Nos. 4822 and 4838 of 2000, decided on 18.5.2000. Drugs Act, 1976 (XXXI of 1976)--

—S. 5--Constitution of Pakistan (1973), Art. 199~Application, for grant licence to store and to sell drugs under the provisions of Drugs Act, 1976--Petitioner's grievance was that such applications were not receiving attention of District Health Officer concerned-Petitioner's writ petition disposed of with direction to District Health Officer concerned that in case any application, complete in all respects has been filed grant of licence, then the same should be considered and decided by him in accordance with provisions of Drugs Act, 1976 and the Rules framed thereunder preferably within four weeks of the receipt of High Courts order. [P. 288] A

Mr. Tariq Muhammad Iqbal, Advocate for Petitioner. Mian Muhammad Jamal, Advocate. Date of hearing: 18.5.2000.

order

C.M. No. 1/2000

This application for dispensing with filing of certified copies of annexures "A to G" to the W.P. is allowed and disposed of.

Main Case.

This order shall dispose of W.P. Nos. 4838/- 2000 and 4822/2000. In both these petitions, the grievance of the petitioner is that they have filed an application for grant of licence to store and to sell drugs under the provisions of the Drugs Act, 1976 but the application is not receiving the attention of the District Health Officer concerned. Both these Writ Petitions are disposed of with the directions to the District Health Officer concerned that in case an application, complete in all respects, has been filed or is filed for grant of said A licence then the same shall be considered and decided by him in strict accordance with the provisions of Drugs Act, 1976 and the Rules framed thereunder preferably within four weeks of the receipt of this order.

(A.A.) Order accordingly.

PLJ 2001 Lahore 288 [Multan Bench Multan]

Present:MAULVI ANWAR-UL-HAQ, J. MUHAMMAD WARYAM and others-Appellants

versus NATHAY KHAN and another-Respondents

R.S.A. No. 24 of 1987, heard on 12.4.2000. Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 15~Colonization of Government Lands (Punjab) Act, (V of 1912), S. 4-Suit for pre-emption decreed by Trial Court-First Appellate Court concluded that land in question was not subject to pre-emption and dismissed plaintiffs suit-First Appellate Court's finding, that village wherein land in question, was situate was owned by the Government before Kharif 1905, therefore, the same was not subject to pre-emption, was erroneous in as much as, land in question after Kharif 1905, became private ownership-Colonization of Government Lands (Punjab) Act, 1912, therefore, from its very inception the Act of 1912 did not and could not apply to suit land which had become private ownership with effect from Kharif 1905 i.e. several years before enactment of the Act of 1912—Finding of First Appellate Court was thus against the very words of the statute itself sought to be pressed into service in nonsuiting plaintiffs-­ Judgement and decree of First Appellate Court in non-suiting plaintiffs was set aside and that of Trial Court decreeing plaintiffs suit was restored. [P. 291] A, B

Mr. Muhammad AsifRa.fi Shah, Advocate for Appellants. Mian Mushtaq Ahmad, Advocate for respondents. Date of hearing : 12.4.2000.

judgment

The respondents purchased the suit land vide registered sale-deed dated 20.7.1968 for a consideration of Rs. 85,000/-. The appellants filed a suit for possession of the suit iand on the ground that they are owners in the estate as well as co-owners in the suit land. It was also averred that in fact a sum of Rs. 50,000/- was paid as price of the land. The respondents resisted the suit, inter alia, on the ground that the suit land is exempted from rigorous of the Law of Pre-emption. The respondents also claimed a sum of Rs. 2,000/- by way of improvement and Rs. 4238/- on account of expenses incurred on registration of sale. Issues were framed, relevant being Issue No. 1 which is reproduced here :--

1.

Whether the suit land is not subject to pre-emption ? OPD.

Evidence of the parties was recorded. The learned trial Court decreed the suit of the appellants subject to depositing a sum of Rs. 91,238/- videjudgment and decree dated 26.3.1986. The respondents filed a first appeal which was heard by a learned Additional District Judge, Khanewal who upheld all the other findings of the learned trial Court but proceeded to upset its findings on the said Issue No. 1 and concluded that the suit land is not subject to pre-emption. Resultantiy the appeal was allowed and the suit of the appellants was dismissed.

1. Learned counsel for the appellants contends that the learned Additional District Judge erred in law by holding that the suit land was not subject to pre-emption. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge.

2. I have gone through the record, with the assistance of the learned counsel for the parties. I find that the sale sought to be pre-empted was effected on 20.10.1968. The suit was filed by the appellants on 15.7.1969 and it was decreed by the learned trial Court on 26.3.1986. The reasons recorded by the learned Additional District Judge for finding that suit land was exempted from the application of the Punjab Pre-emption Act, 1913 may be summed up as follows :--

(i) The suit land is being irrigated through Lower Ban Doaab Canal and vide Notification No. 90 dated 2.6.1913 all Government lands in the Multan District situate within the irrigation boundaries of Lower Ban Doaab Canal were exempted from the Law of Pre-emption

(ii) Colonization of Government Lands (Punjab) Act, 1912 was made applicable to whole of West Pakistan vide West Pakistan Amendment Ordinance XXXVI of 1969 and by virtue of Notification No. 196-B dated 28.2.1944 the land situate in any local area to which the said Act of 1912 stands applicable was exempted from the operation of the Pre-emption Law.

(iii) In formulating points (i) & (ii) the learned Additional District Judge has proceeded on the assumption that the suit land was Government land.

1. Section 4 of the Colonization of Government Lands (Punjab) Act, 1912 may be reproduced here for facility of reference :

2. Application of the Act: This Act shall, unless the Provincial Government otherwise directs, apply to land to which the provisions of the Government Tenants (Punjab) Act, 1893, have been applied and to any other land to which the Provincial overnment may by notification in the Official Gazette, apply it and which at the time of the Notification was the property of the Provincial Government:

A bare reading of the said Act would show that the Act applies to 2 kinds of land :--

(a) land to which the provisions of the Government Tenants (Punjab) Act, 1893 applied.

(b) to any other land to which the Provincial Government may by notification in the official Gazette applied it and at the time of notification was the property of the Provincial Government.

1. It is nobody's case that the said Government Tenants (Punjab) Act, 1893 had ever been applied to the suit land. Any other and to which the said Act may be applied must be the property of the Provincial Government. Thus the resolution of the controversy before me depends upon the determination as to whether the suit land was the property of the Provincial Government. Needless to ;uld that the notification regarding the lands within the irrigated boundaries of Lower Bar-Doaab Canal also applied to the Government lands.

2. It is an admitted position on all hands that the land was sold to the respondents by Mst. Ghulam Zohran and Haq Nawaz who were admittedly the owners of the land. Ex. D. 3 is the Fard Intikhab and it does record the said vendors to be the owners of the suit land. Learned Counsel for the respondents vehemently stresses that I should rely on a note appended to the said document that the village in which the land is situate was owned by the Government before Kharif, 1905. To my mind nothing turns on the said note. On the other hand, I find that the said note goes against the plea of the respondents. According to the said note the village was owned by the Government before Kharif, 1905 and then became private ownership. Land revenue was assessed and was being recovered thereafter. The said Colonization of Government Lands Act, 1912 was published on 21.6.1912. Its preamble reads that the law is being enacted to make better provisions for the colonization and administration of Government Lands in the Punjab. Thus from its very inception the said Act of 1912 did not and could not apply to the suit land which had become private ownership w.e.f. Kharif, 1905 i.e. several years before the enactment of the said Act of 1912.

7.1 am constrained to hold that the learned Addl. District Judge has stretched conjectures to breaking point by holding that since at one time the land might have been or for that matter was owned by the Government, the said Act of 1912 and the various related notifications would remain operative qua the same. This, however, is against the very words of the statute itself which has been sought to be pressed into service in non-suiting the respondents.

1. I, therefore, find that the learned Additional District Judge has deliberately misread the evidence on record and has gone miles out of way to non-suit the appellants by misconstruing the law. The impugned judgment of the learned Additional District Judge being contrary to law cannot be sustained. Accordingly this R.S.A. is allowed. The judgment and decree dated 20.11.1986 of learned Additional District Judge, Khanewal is set aside and that dated 26.3.1986 of learned trial Court is restored. In case the appellants have not already deposited the sum of Rs. 91,238/- they should deposit the same on or before 30.6.2000 after adjusting l/5th or such other amount which they might have already deposited. In case the deposit is not so made till the date stipulated above, their suit shall stand dismissed with costs. For the moment the parties are left to bear their own costs.

(A.A.) Appeal accepted.

PLJ 2001 Lahore 292

[Multan Bench Mulian]

Present; maulvi ANWAR-UL-HAQ, J. TALIB HUSSAIN-Petitioner

versus ADDL. DISTRICT JUDGE AKIFWALA and 2 others-Respondents

W.P. No. 7834 of 1995, heard on 4.7.2000. Civil Procedure Code, 1908 (V of 1908)--

—S. 11-Constitution of Pakistan (1973), Art. 199-Res-judicata, plea of- Respondents's earlier suit was for recovery of specified amount of dower-­ Respondent lady subsequently made statement in court that her suit be dismissed as withdrawn-Trial Court, however, recorded judgment on merits holding that specified amount was fixed as prompt dower but the same was paid in the form of 20 tolas golden ornaments and dismissed plaintiffs suit-Respondent then filed another suit for recovery of same amount of dower-Petitioner took plea of res-judicata praying that the suit being on the same cause of action and relating to the same amount be dismissed~Effect~Judgment in earlier suit was not a judgment finally deciding Usbetween the parties by adjudication within meaning of S. 11 of C.P.C.~Judgment in question, was at the most was dismissal by withdrawal of suit-Rigours of C.P.C. and Qanun-e-Shahadat are not applicable to proceedings under Family Courts Act except to the extent provided in S. 17 thereof-Withdrawal of suit would not therefore, constitute any bar to the filing of fresh suit-Trial Court had committed error of jurisdiction while proceeding to decide suit on its merits when respondent had made prayer for withdrawal of the same-High Court in constitutional petition was not inclined to stifle the suit filed by respondent lady on basis of earlier judgment which in any event was wholly unjust, [Pp. 293 & 294] A, B

Syed Muhammad Alt Gillani, Advocate for Petitioner. Mr. Muhammad Arshad Munir, Advocate for Respondents. Date of hearing: 4.7.2000.

judgment

The petitioner was married to Respondent No. 3 on 15.1.1993. It appears that the marriage proved to be a failure. On 23.2.1993 Respondent No. 3, filed a suit for recovery of an amount of Rs. 50,000/- alleged to be her dower against the petitioner. This suit was contested by the petitioner. A copy of the written statement is not on the file but a perusal of judgment dated 22.3.1994 shows that the plea taken by the petitioner was that the said amount was not fixed as dower. Issues were framed. Some evidence was produced by Respondent No. 3 when she made a statement in the Court that her suit be dismissed as withdrawn. The learned Senior Civil Judge, Pakpattan (it is not so mentioned in the judgment but the decree following the judgment describes the Presiding Officer as Judge, Family Court) proceeded to record a judgment on merits and to hold that a sum of Rs. 50,000/- was fixed as prompt dower but the same was paid in the form of 20 tolas golden ornaments. The suit was accordingly dismissed on 22.3.1994.

1. On 29.6.1994 Respondent No. 3 filed another suit in the Court of learned Civil Judge at Arifwala for the recovery of the aid amount of ower. The petitioner did not file a written statement but instead filed an pplication under Section 11 CPC. In the said application it was alleged that a similar suit was filed by Respondent No. 3 wherein issues were framed and the suit was dismissed on merits. With these averments it was prayed that he said second suit be dismissed. In her written reply Respondent No. 3 took up the plea that Section 11 CPC is not applicable as the said suit was not finally decided on merits. The learned Judge, Family Court dismissed the application on 8.1.1995. An appeal filed by the petitioner was heard by a learned Additional District Judge, Arifwala who dismissed the same on 24.9.1995.

2. Syed Muhammad Ali Gillani, learned counsel for the petitioner contends that Section 11 CPC was squarely applicable. Further argues that even if the judgment dated 22.3.1994 passed in the earlier suit is assumed to be void then since the same was not challenged in the manner prescribed by law, it was binding on the parties and as such the present suit could not have proceeded. Learned counsel for the Respondent No. 3, on the other hand, supports the impugned orders.

3. I have gone through whatever copies of record are appended with this writ petition. Bare reading of the Judgment dated 22.3.1994 would show that the respondent lady had made a statement seeking permission to withdraw her suit. The learned Judge, Family Court apparently did not permit her to do and proceeded to decide the case on merits. There is nothing in the impugned judgment as to whether the respondent lady had voluntarily closed her evidence or that her evidence was closed by invoking the provisions of Order XVII, Rule 3 CPC. Similarly, there is nothing in the said judgment to show as to whether the petitioner (defendant in the suit) had so voluntarily closed his evidence or that the evidence was closed by invoking the said provision of law. To my mind for all purposes the said judgment is not a judgment finally deciding a lis between the parties by an adjudication within the meaning of Section 11 CPC. At the most it was a dismissal by withdrawal of the suit. Now the rigours of CPC and the Qanun- e-Shahadat Order are not applicable to the proceedings under the FamilyCourts Act except to the extent provided in Section 17 thereof. The withdrawal of suit would not, therefore, constitute any bar to the filing of a fresh suit.

4. So far as the second argument of learned counsel is concerned, the same also has no force. The judgment dated 22.3.1994 was set up as defence to the suit and the respondent lady has every right to attack the same in the present proceedings on all grounds that are available. I have already stated above that the learned Judge, Family Court has committed an error of jurisdiction while proceedings to decide the suit on its merits when Respondent No. 3 had made a prayer for withdrawal of the same. He did not let her to enter the witness-box and also did not provide any opportunity to the petitioner to lead evidence in rebuttal. Besides adjudication means an adjudication on the respective pleas of the parties. It was not the case of thepetitioner, at least as is apparent from the said judgment that the dower had been paid. On the other hand, his case was that the said amount was not fixed as dower at all and that is why the Judge, Family Court had framed Issue No. 1 in the said suit.

5. This is a Constitutional petition and I am not at all inclined to stiffle the suit filed by the respondent lady. On the basis of the said judgment dated 22.3.93 which in any event is wholly unjust. This writ petition is accordingly dismissed.

(A.A.) Petition dismissed.

PLJ 2001 Lahore 294

Present: kh. muhammad sharif, J.

MUHAMMAD All-Petitioner

versus

DEPUTY INSPECTOR-GENERAL OF POLICE SARGODHA, and 5 others-Respondents

Writ Petition No. 3985 of 2000, decided on 10.5.2000. (i) Criminal Trial--

—Investigations-Already two investigations have been completed, challan has also been submitted in the Court-There is no need for reinvestigate the case. [P. 295] A

(ii) Criminal Trial--

—Challan-Police is bound to submit Challan within two weeks after registration of case. [P. 295] B

Malik Muhammad Imtiaz Mahal, Advocate for Petitioner. Date of hearing: 10.5.2000.

order

Report and parawise comments have been received from DIG Sargodha Range Sargodha in which it has been stated that investigation of the instant case remained with local police till 25.9.1999 but later on it was transferred to ASP Bhalwal on the order of the respondent DIG on the request of Umar Draz. The investigation was conducted by the ASP/SDPO who found Muhammad Ali and Muhammad Hanif guilty and other accused were found innocent. Now again complainant Umar Draz moved DIG Sargodha, who has transferred the investigation of this case to S.P., Sargodha. Already two investigations have been completed, challan has also been submitted in the Court on 18.12.1999. I do not think it proper that third investigation should be started and the case be reinvestigated. Case was registered on 20.8.2000. More than 8 months have passed. Police is bound to submit the challan within two weeks after registration of case. The latter action of the DIG for reinvestigation of the case is not proper one. Practice of reinvestigation has sufficiently been deprecated by this Court and also by the Hon'ble Supreme Court of Pakistan. DIG is directed to recall the order of reinvestigation by which he has entrusted the same to S.P Sargodha Range and submit the file of this case to the learned trial Court where this case shall be decided on merits. Disposed of accordingly.

(A.A.J.S)

Orders accordingly.

PLJ 2001 Lahore 295

[Multan Bench Multan]

Present:dr. MUNIR AHMED mughal, J.

FIAZ MUHAMMAD QURESHI-Petitioner

versus GOVT. OF PUNJAB through CHIEF SECRETARY & others-Respondents

W.P. No. 305/2001, accepted on 12.1.2001. Constitution of Pakistan, 1973--

—Art. 199—Posting—Petitioner cleared for promotion to rank of SP (BS-18) on regular basis-Nothing has been done to mplement, Notification of promotion to rank of SP (BS-18) on regular basis-Writ petition to implement notification-Held : Petitioner is being deprived of his hard earned promotion—Petitioner has vested right relating to higher status as well as remuneration of rank of SP (BS-18)-25 posts are lying vacant and petitioner has vested right of posting-Competent authority is showing complete inaction on his part which is not only a source of frustration but patent denial of his due status as well as benefits attached—Petition accepted- [P. 296] A

Syed Aaqa AsifJaffery, Advocate for Petitioner. Malik Qasim Khan, A.A.G. Date of hearing : 12.1.2001.

judgment

Through this constitutional petition the petitioner seeks a declaration that the respondents be directed to implement Notification of Promotion dated 14.10.2000 by way of making posting of the petitioner as SP (BS-18) without further loss.

1. The background of the case is that consequent upon recommendations of the Provincial Selection Board and approval of the Governor/competent authority, the petitioner was cleared for promotion tothe rank of SP (BS-18) on regular basis vide notification dated 14.10.2000 issued by Respondent No. 2 and that on receipt of the Notification of promotion of the petitioner, Secretary Home Department Lahore, Respondent No. 3 requested the Inspector General of Police, Punjab, Lahoreto send posting proposal of the petitioner at the earliest and that despite of the latest vacancy position of SP (BS-18) 25 posts are ying vacant but nothing has been done or no steps have been taken to implement the Notification of promotion of the petitioner by way of issue of his posting order as SP (BS-18). And that for no fault of his own, the petitioner is being deprived of his hard earned promotion which amounts to undoing recommendations of the Provincial Selection Board and approval of the Governor/competent authority and that due to non-implementation of the Promotion Notification the petitioner has been forced to suffer jeopardy of his vested right relating to higher status as well as remuneration of the Rank of SP (BS-18) and that the Respondents No. 3 and 4 are procrastinately delaying the implementation of the promotion Notification dated 14.10.2000by not issuing his posting order as SP (BS-18) despite period of more than two months has passed and there are 25 posts lying vacant and that thepetitioner has a vested right of posting as SP (BS-18) in terms of implementation of his promotion notification issued by the competent authority and the respondents are showing complete inaction on their part which is not only a source of frustration but patent denial of his due status as well as benefits attached to it and this becomes naked departure from legal obligation on the part of respondents and that failure of respondents to implement the Notification of promotion and non-issuance of requisite posting order of the petitioner as SP (BS-18) are diabolic denial to perform their legal duty cast upon them and that non mplementation of the Notification of promotion is an act of administrative tyranny and executive lethargy which have not only caused unmeasured agony to the petitioner but have also brought absurdity in system which call for gracious intervention of this Honable Court by way of issuance of a writ, an order or a direction in the nature of MANDAMUS against the respondents since there is no other alternate remedy available to the petitioner.

2. Notice was given to the respondents and the learned Assistant Advocate General has appeared and concedes the legal position but requested for sometime to implement the Notification of promotion dated 14.10.2000 by way of making posting of the petitioner as SP (Bs-18).

3. In this view of the matter, the writ petition is allowed and the Respondents No. 3 and 4 are directed to implement the Notification of promotion of the petitioner till 31.1.2001 positively.

4. The office shall immediately convey the order to both the respondents by FAX. So far as the costs of the case is concerned, reference has been made to Tahir Latif Sheikh vs. Federation of Pakistan and another (2000 PLC (C.S.) 582) where in a similar case the respondents were burdened with costs and lawyers fee was fixed at Rs. 5000/- but in the present case as there is no resistance from the side of the respondents and only time is sought for practical reasons, no order is made as to costs.

5. Disposed of.

(S.A.) Petition dismissed.

PLJ 2001 Lahore 297

Present: dr. munir ahmad mughal, J. ABBAS ALI-Petitibner

versus

STATE and another-Respondents Writ Petition No. 8073 of 2000, decided on 9.5.2000. (i) F.LR.--

—Where there were two FIRs about same incident made by two different persons at different places, one earlier in time than other, later is to be considered an independent FIR and can be used in evidence by prosecution. [P. 298] A

<ii) F.I.R.--

—Second FIR is to be registered when new case is made out and there is not mere elaboration of first FIR and also cognizable offence is made out.

[P. 299] B

(iii) F.I.R."

—Second FIR giving different version of the same incident although the incident is admitted in the first FIR, can be registered and there is no bar to it. [P. 299] C

1999 P.Cr.L.J. 1706, AIR 1936 Pat. 11, AIR 1940 All. 291, PLD 1959 Lah.

1002, 1987 Cr.C. (Lah.) 322, NLR 1987 Cr. 359, NLR 1981 Cr. 181, PLJ 1984

Cr.C. (Lah.) 369, NLR 1982 Cr. 296, 1979 P.Cr.L.J. 521 & 1993 P.Cr.L.J.

1992, ref.

Mr. Abdul Sami Khawaja, Advocate for Petitioner.

Mrs. Roshan Ara, Asstt. Advocate General, for Respondents.

Date of hearing: 9.5.2000.

order

The petitioner seeks a direction to the respondents to record the statement of the petitioner, father of the deceased Muhammad Afzal under Section 154 Cr.P.C. and to treat him as a complainant and to allow him to join the investigation and pursue the case.

1. It is submitted that the petitioner's son Muhammad Afzal was called by one Madhu at the evening of 7.4.2000 and later on he was murdered alongwith one Imtiaz Ahmad in the garden. Two girls were also murdered on the same night by uhammad Boota, and a case FIR No. 123 was registered at Police Station Manawala District Sheikhupura manoeuvred by the said Muhammad Boota with the connivance of the local police to escape from the liability. It is further submitted that there is sufficient evidence which involves the said Muhammad Boota and others in the murder of the son of petitioner and others. It is urther submitted that the said Muhammad Boota is a very influential person, therefore, he has succeeded to lodge a fictitious FIR and surprisingly the witnesses, mentioned therein are the proclaimed offenders, to the best information of the petitioner yet, instead of arresting them the actual culprits have been made guests of the local police and that when the petitioner approached to the localpolice for recording of its statement under Section 154 Cr.P.C. he was refused and later on, he has been threatened, not o pursue the case otherwise, he may be fixed in difficulties. It is also submitted that thepetitioner is the father of deceased Muhammad Afzal who has been brutly murdered and instead of recording the version of the petitioner, the local police is bent upon to spoil the case, relying upon the fictitious witnesses, to benefit the actual culprits. The learned counsel for the petitioner relied upon 1999 P.Cr.LJ 1706.

I have given due consideration to the valuable arguments on both sides.

The relevant law is contained in Section 154 Cr.P.C. It reads as under:

"S. 154. 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 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."

1. In the case ofEmp. vs. Lalji Rai (AIR 1936 Pat. 11) and Emp. vs.Aftab Ahmed Khan (AIR 1940 All. 291) and in the case of Ghulam Sarwar vs.\Tke State (PLD 1959 Lah. 1002) where there were two FIRs about the same

M incident made by two different persons at different places, one earlier in time Hhan the other. It was held that the latter is to be considered an independent FIR and can be used in evidence by prosecution. In the case of Allah Ditto vs. S.H.O. (1987 Cr.C. (Lah.) 322) a Division Bench of this Court observed that a second FIR is to be registered when new case is made out and there is not B mere elaboration of the first FIR and also cognizable offence is made out. In the case of Ghulam Hussain vs. Siraj-ul-Haq (NLR 1987 Cr. 359) where also the Division Bench observed that second FIR giving different version of the same incident although the incident is admitted in the first FIR, can be registered and there is no bar to it. In the case of Malik Muhammad As/am vs. S.H.O. (NLR 1981 Cr. 181) it was observed that second FIR for the same incident but with different version and allegations is not barred. In the case ofHalim Sarwar vs. S.H.O. (PLJ 1984 Cr.C. (Lah.) 369), it was observed

that registration of second FIR with a different version about the same incident cannot be refused by police officer. In the case of Abdul Ghani vs. S.H.O. (NLR 1982 Cr. 296) it was observed that second FIR about the same occurrence but with a different version should be registered by the S.H.O. when informed by a party. In the case of Hamayun Khan and another vs. Muhammad Ayub Khan and 4 others, (1999 P.Cr.L.J. 1706) where second FIR was recorded on the report of a different person with regard to the fire­arm injuries received and the learned counsel for the petitioner had argued that an FIR having been already registered at the same police station on behalf of one Mahmood Khan, no second FIR against the same occurrence could be lodged and in support of his plea the said counsel had cited the case of Kaura vs. The State (1979 P.Cr.L.J. 521). It was observed by the Honourable Chief Justice of Peshawar High Court sitting singly that the cited case was distinguishable and the provisions of Section 154 Cr.P.C. did not conceive of a second FIR being recorded at the complainant's instance with regard to the same occurrence, but in the instant case FIR was recorded on the report of a different person with regard to fire shot injuries received and for which he charged the petitioners, as neither the different person in the later FIR nor the petitioners were mentioned in the first FIR and that it was, therefore, obligatory upon the police to register a separate report there being no bar of the first FIR as a new case was made out by the respondent disclosing allegations of separate cognizable offences as recording of a second FIR shall depend upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and the allegations made in second FIR. Reliance was placed on the case of Muhammad Latifvs. S.H.O. and others (1993 P.Cr.L.J. 1992).

1. In the light of the above interpretation of Section 154 Cr.P.C. the petition is allowed and the Respondent No. 2 is directed to get the FIR recorded and copy shall be delivered to the petitioner immediately. A compliance report of this order shall also be sent to this Court through the

Registrar to be kept on this file.

(A.A.J.S.) Petition allowed.

PLJ 2001 Lahore 300

Present:maulvi anwar-ul-haq, J. EHSAN-UL-HAQ and 13 others-Petitioners

versus ZULFIQAR KHAN and 7 others-Respondents

C.R. No. 18 of 1986, heard on 11.1.2001. Civil Procedure Code, 1908 (V of 1908)--

-—O.K, R. 8 & O.XVH, R. 5 [as inserted by Law Reforms Ordinance, 1972 XII of 1972]-Presiding Officer's absence on specified date by reason of illness or any other cause—Date fixed by ministerial officer of Court in absence of Presiding Officer-Effect-Where on any date Presiding Officer of Court was absent by reason of illness or any other cause, parties to suit or proceedings set down for that day (notwithstanding the knowledge that Presiding Officer would be absent) would appear in Court on that day and ministerial officer of Court authorised in that behalf would handover to parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him-Petitioner's plea that summoning of defendant was not a date of hearing and dismissal of suit on that date for non-deposit of process fee could not be, deemed to be dismissal of suit under O.R, R. 8 C.P.C. was repelled on the ground that summoning of defendant was an act germane to proceedings in suit and the date for which defendant was to be summoned and his presence was to be procured, would be a date of hearing in as much as, same was an important step in the suit-Dismissal of suit under O.BC, R. 8 on a date fixed by the ministerial officer of Court in absence of Presiding Officer for non-prosecution due to non-submission of process fee, by the Court was valid order-Petitioner having not resorted to remedy provided under O.IX, R. 9 of C.P.C and even under S. 151 of C.P.C. would not be entitled for setting aside dismissal of suit in revisional jurisdiction of High Court-Revision against dismissal of suit being devoid of merit was dismissed in circumstances.

[Pp. 302 to 304] A, B, C & D

PLD 1970 Lahore 746; PLD 1954 Lahore 575; PLD 1975 SC 678; AIR 1922 Patna 252; PLD 1977 SC 599.

Mr. A.K. Dogar, Advocate for Petitioners. Nemo for Respondents. Date of hearing: 11.1.2001.

judgment

On 27.4.1981 the petitioners filed a suit against the respondents. In the plaint, it was alleged that the last owner in the suit property was Pathana son of Hassan who made an "Ariat" in favour of his daughter Mst. Rehmat Bibi vide registered deed dated 28.3.1930, The contention was that it was only the usu-fruct and not the corpus of the property that was transferred. After the death of Mst. Rehmat Bibi, the respondents got Mutation No. 1062 attested on 18.6.1980 in their favour. According to the petitioners, they being the reverisioners of the last male owner, after the death of Mst. Rehmat Bibi, the land ought, to have been reverted to them. A written statement was filed by the respondents, wherein, inter alia, it was stated that earlier the petitioners had filed a similar suit on the same cause of action which was dismissed under Order DC, Rule 8, C.P.C. and as such the present suit is barred. The Seamed trial Court framed a preliminary issue and recorded the evidence of the parties. The learned trial Court dismissed the suit vide Judgment and decree dated 6.11.1982. A first appeal filed by the petitioners was heard by a learned Addl. District Judge, Jhang who dismissed the same on 9.4.1985.

1. Mr. A.K. Dogar, Advocate, learned counsel for the petitioners argues that the dismissal of the previous suit on 5.12.1980 cannot be considered to be a dismissal under Order IX, Rule 8, C.P.C. as according tothe learned counsel, the suit on the said date was not fixed for hearing and as such could not have been dismissed under the said provision of Law. No one has turned up for the respondents. They are accordingly proceeded against ex parts.

2. I have gone through the copies of the records as has been appended with this Civil Revision. Exh.D-5 is the copy of the order sheet of the earlier suit. This copy has been appended as Annex:C to this Civil Revision. A reading of this document reveals that the earlier suit was put up before the learned Civil Judge on 30.7.1980 when he obtained a report fromthe office and proceeded to issue notices to the defendants for 12.10.1980. On this date, the learned counsel for the plaintiffs as also learned counsel or Defendant No. 1 in the said suit, were present. Their presence was marked by the Reader of the Court who had given a note that the Presiding Officer is on leave. The case was adjourned to 2.12.1980 for summoning of Defendants Nos, 2 & 3 in the said suit. There is a note by office that process fee has not been deposited. On 2.12.1980, the counsel for Defendant No. 1 in the said suit put in appearance but none appeared for the plaintiffs and the learned Civil Judge proceeded to dismiss the suit for non-prosecution as also for on- deposit of process fee.

3. The learned counsel for the petitioners contends that 2.12.1980 cannot be considered to be a date of hearing in the said suit on the following grounds--

(i) On 12.10.1980, the Presiding Officer was on leave and it was the Reader who adjourned the case and fixed 2.12.1980 as the next date. According to learned counsel, such a date not having been fixed by the Court could not be deemed to be a date of hearing; and

(ii) No hearing was infact to take place on 2.12.1980 which was a date fixed for summoning of the defendants in the case.

So far as the said first mentioned contention of the learned counsel is concerned, I do not find any force in the same. The matter pertains to a period after the enactment of Law Reforms Ordinance, 1972. Under the said Ordinance, inter alia, Rule 5 was inserted in Order XVII, C.P.C. which provides that when on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding a Officer would be absent) shall appear in the Court in the Court-house on that day and the ministerial officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for "proceeding with" the suit or proceeding and signed by him. The said provision came up for examination by the Supreme Court of Pakistan in the case of "Nowsheri Khan vs. Said Ahmad Shah" (PLJ 1983 S,C. 441). Their lordships observed at page 44 of the report as follows:

"The Reader of the Court before the amendment in C.P.C. was not authorised to fix a date for proceeding with the suit in the absence of the Presiding Officer of the Court but could fix a date for purposes of enabling the Court to fix another date for the future conduct of the proceedings. It was only as a result of the new Rule 5 inserted in Order XVII, that this has became possible."

I may note here that in the said case a plea was taken that the Reader had not handed over the slip of paper specifying the next date. It was further observed by their lordships that the date given by the Reader might have become the date fixed for proceeding with the suit or proceedings, if the parties were handed over the slips of paper specifying the said other date.

1. Now in the present case, no foundations had been laid down to avoid the implications of the said Rule 5 of Order XVII, C.P.C. i.e. there is no allegation that on 12.10.1980, the Reader had not handed over the slip of paper specifying the next date. Infact, I don't find any factual ground in the pleadings that the petitioners were not aware of the said next date specified by the Reader on 12.10.1980. Nothing, therefore, turns on the said first contention of the learned counsel.

2. In support of his second contention, learned counsel has relied upon the Judgments in the cases of "Mst. Ghulam Sakina and 6 others vs. Karim Bakhsh and 7 others" (PLD 1970 Lahore 412), "Rahim Bux and another vs. Gul Muhammad and 2 others" (PLD 1971 Lahore 746) and "Messrs. Ghulam Farid Muhammad Latifand others vs. The Central Bank of India, Limited, Lahore" (PLD 1954 Lahore 575). The ration of the saidJudgments is that date of hearing implies a date on which some act for furtherance of the suit or the proceeding is to be taken. In the case of "Manager, Jammu & Kashmir, State Property in Pakistan vs. Khuda Yar and another" (PLD 1975 Supreme Court 678), their lordships quoted with approval the following extracts from a Judgment in the case of "Sheikh Abdul Rehman us, Shib Lai Sahu" (AIR 1922 Patna 252) at page 698 and 699 of the report:

"The word "hearing" has not been defined in the Code but it is obvious that it is used in different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in Order K, Rule 1, read with Rule 3, it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed for default various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order of the Court."

1. To my mind also summoning of a defendant is an act germane to the proceedings in the suit and the date for which the defendant is to be summoned and his presence is to be procured, is a date of hearing in as much as it is an important step in the suit. I am, therefore, not in agreement with the learned counsel that the said date on which the suit was dismissed for non-prosecution was not a date of hearing.

2. There is yet another aspect of the case. Even if I were to agree with the learned counsel and to hold that on the said date, the suit was not called on for hearing and that the order passed by the learned Court dismissing the suit under Order K, Rule 8, C.P.C. was illegal or for that matter without jurisdiction, I am afraid it would not have been possible for me to set-aside the said order in this Civil Revision, arising out of the present suit. By now it is well settled that a void order is a specie of an illegal order and particularly when the remedies are available against the same then it cannot be ignored or set-aside in collateral proceedings merely on the ground that it could not have been lawfully passed. In somewhat similar circumstances, the Supreme Court in the case of "Messrs Conferee Ltd. vs. Syed Ali Shah etc." (PLD 1977 Supreme Court 599) observed as follows at page 601 of the report while answering the argument of the learned counsel that the ex parte order was void and without jurisdiction because the case had not been fixed for hearing on 1.12.1975:

"However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others (1) it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal "to enter on he enquiry in question". Now in the present case, there is no dispute that the learned Civil Judge, who passed the impugned order had seisin of the case therefore it was for him to decide whether the case was fixed for hearing or not on 1.12.1975. And, even if it is assumed that his decision was totally illegal, the Legislature has provided a remedy for challenging such orders."

1. Nothing has been brought on record as to what prevented the petitioners from availing remedy under Order LX, Rule 9, C.P.C. or even if the argument of the learned counsel is taken at its face value, under S. 151,C.P.C. for setting aside of the order Exh. D-5.

2. As a result of the above discussion, I do not find any force in this revision petition. It is accordingly dismissed leaving the parties to bear their own costs.

(A.A.J.S.) Revision dismissed.

PLJ 2001 Lahore 304

[Bahawalpur Bench Bahawalpur]

Present: SHAIKH ABDUR RAZZAQ, J.

GHULAM RASOOL-Petitioner

versus

SUPERINTENDENT NEW CENTRAL JAIL BAHAWALPUR and another-Respondents

W.P. No. 4562 of 2000/BWP, decided on 29.11.2000. Constitution of Pakistan (1973)--

—Art. 199-Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302 & 324--Conviction of petitioner under S. 302 P.P.C. for the murder of deceased and sentence of life imprisonment awarded to him—Petitioner while undergoing life imprisonment claimed entitlement to special remission granted by Federal Government through notification dated 5.1.2000 but the same was refused to him-Entitiement to claim remission-Perusal of impugned judgment would show that charge has been framed under Sections 302/307/148/149/109 P.P.C. and none of the provisions of terrorism (which disentitled remission) were made applicable at the time of submission of challan or even at the time of announcement of judgment-Absence of such element either in F.I.R. or in the body of judgment repels the contention that he was disentitled to remission- Petitioner having been convicted under S. 302/34 PPC and element of offences disentitling him to special remission being absent, he was ntitled to special remission granted by Federal Government and Provincial Government vide notifications issued from time to time- Superintendent of relevant jail was directed to grant special remission to petitioner in accordance with law. [Pp. 306 & 307] AChaudhry Abdul Ghaffar Bhutto, Advocate for Petitioner. Mr. Saleem Nawaz Abbassi, A.A.G. for Respondents. Date of hearing: 29.11.2000.

judgment

Briefly stated the facts are that on the basis of FIR No. 56/90 dated 4.3.1990, under Section 302/307/148/149 PPC registered at P.S. Bhung, District Rahimyar Khan, a challan against Ghulam Rasool, Ghulam Hussain, Muhammad Hussain, Jan Muhammad and Razi was sent up in the Court of Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur. As a result of trial, accused/petitioner Ghulam Rasool has been convicted under Section 302 PPC for the murder of Muhammad Ali and has been sentenced to imprisonment for life and a fine of Rs. 50,000/-. He was further directed to pay Rs. 50,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased Muhammad Ali or to suffer S.I. for six months in default thereof. He was further convicted under Section 302 PPC for the murder of Punnon and awarded a similar punishment as in case of Muhammad Ali. Similarly, Jan Muhammad was also convicted under Section 302 PPC for the murder of Muhammad Ali and was sentenced to imprisonment for life and a fine of Rs. 50,000/- or in default thereof to undergo two years R.I. He was further directed to pay Rs. 50,000/- as compensation to the legal heirs of deceased Muhammad Ali and to suffer S.I. for six months. Jan Muhammad was further convicted under Section 324 PPC for the murderous assault on Goshi and sentenced to R.I. for ten years and a fine of Rs. 20,000/- or in default thereof R.I. for one year. He was further directed to pay Rs. 5,000/- as compensation under Section 544-A Cr.P.C. to the injured PW or to suffer three months S.I. in default thereof. The judgment was announced on 7.4.1996 and at present both Ghulam Rasool and Jan Muhammad are undergoing the said in New Central Jail, Bahawalpur.

1. Instant writ under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed for seeking a direction in the name of Superintendent, New Central Jail, Bahawalpur/Respondent No. 1 to

award special remissions granted by the Federal and Provincial Government from time to time during the imprisonment of the etitioner.

1. Alongwith petition another Writ Petition No. 3574/2000 has also been filed by Jan Muhammad, who is co-accused of the petitioner, for the same relief.

2. As both the writ petitions have been filed for seeking same relief, so these are being disposed of by this single judgment.

3. Arguments have been heard and record perused.

4. Stand of the learned counsel for the petitioner is that the petitioner is entitled to the grant of special emissions granted by the Federal Government through notification dated 5.1.2000, that said special remissions are not being awarded to the present petitioners by the Superintendent, New Central Jail, Bahawalpur/Respondent No. 1 on the ground that they are not entitled to said remission. He argues that stand of the Respondent No. 1 is not fortified from any record, as the petitioners have not been convicted of any offence which may disentitle them to the said special remission. He submits that had the petitioners been convicted of espionage, subversion, anti-State activities, gang rape, terrorism, kidnapping, abduction, dacoities, they would not have been entitled to said special remission. However, he submits that the petitioners have been convicted under Section 302 PPC as well as 324 PPC and ingredients of the said offences are not covered by the offences described in the notification to disentitle them. He, thus, submits that the petitioners are entitled to special remission granted by the Federal Government as well as ProvincialGovernment through Notification dated 5.1.2000.

5. Conversely, the stand of the learned Assistant Advocate Ge neral is that element of terrorism stands reflected from the contents of FIR, so the accused/petitioners have rightly been declined the relief of special remission.

6. A perusal of the impugned judgment reveals that charge has been framed under Section 302/307/148/149/109 PPC and none of the provisions of terrorism were either made applicable at the time of submission of challan or even at the time of announcement of final judgment. Had the element of terrorism been applicable to the facts of this case, it must have been reflected either in the contents of FIR or in the judgment of the trial Court. The absence of said element either in the FIR or in the body of the judgment repels the contention raised by the learned Assistant Advocate General.

7. Since the accused/petitioners have been convicted under Section 302/324 PPC and element of the offences isentitling them to special remission are absent. Hence, they are entitled to the special remission granted by the Federal Government and the Provincial Government videnotifications issued from time to time. Consequently, the writ petitions are accepted and the Superintendent, New Central Jail, Bahawalpur/ Respondent No. 1 is directed to grant special remission to the accused/ petitioners in accordance with law.

(A.A.J.S.) Petition accepted.

PLJ 2001 Lahore 307

Present:maulvi ANWAR-UL-HAQ, J. ABDUL RASHEED and 14 others-Petitioners

versus

GHULAM GHAZI and another~Respondent$ Civil Revision No. 2495 of 1989, heard on 15.12.2000. Redemption of Mortgage-

—-Declaration-Suit for-Dismissal of-Challenge to—Petitioners filed suit on 18.12.1985 for declaration that they became owners of land mortgaged by their predecessor vide mortgage deed dated 27.9.1922 for having not been redeemed by respondents within time rescribed by law—Respondents denied these facts and asserted that proceedings for redemption had already been filed in Court of Collector-Petitioners did not produce alleged mortgage deed-During cross-examination, PW admitted that mortgage was effected through mutations attested on 24.8.1927, and respondents were in possession—Trial Court dismissed the suit to be premature-Appeal filed by petitioners was also dismissed-Held: In absence of alleged mortgaged deed, Courts below had rightly relied upon mutations attested on 24.8.1927 to hold the suit to be premature and that limitation for redemption was to start from date of attestation of mutations-Civil revision was dismissed. [P. 308] A

1970 SCMR 633 rel.

Sh. Naveed Masood, Advocate on behalf of Maqbool Ahmad, Advocate for Petitioners.

Mr. Inayat Ullah Khan, Advocate for Respondents. Date of hearing: 15.12.2000.

judgment

On 18.12.1985 the petitioners filed a suit against the respondents. In the plaint, it was alleged that the suit land was mortgaged with the predecessor of the petitioners vide mortgage deed dated 27.9.1922 for a sum of Rs. 99/-. With these averments a declaration was sought that since the mortgage had not been redeemed within the time prescribed by law the petitioners have become owners of the suit land. In their written statement the respondents denied the said fact and instead stated that mortgage was effected by means of a mutation which was attested on 24.8.1922 and before the expiry of period of limitation, the proceedings for redemption had been filed and are pending with the Court of Collector. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 26.7.1989. A first appeal filed by the petitioners was heard by a learned Additional District Judge, Mianwali, who dismissed the same on 7.11.1989.

1. Learned counsel for the petitioners contends that it had been proved on record that the mortgage was made on 27.9.1922 and as such the suit ought to have been decreed. Learned counsel for the respondents on the otflfer hand supports the impugned judgments and decrees.

2. I have gone through the record, copies whereof are appended with Hhe civil revision. I find that the alleged mortgage deed dated 27.9.1922 is not .forthcoming on the record. Learned counsel concedes that the said document jwas not produced. In the absence of the said document, the learned Courts .below have very rightly relied upon the mutations Ex.P. 1 and Ex.P. 2 which were attested on 24.8.1927, to hold the suit to be pre-matured and dismissed : it particularly with reference to the fact that proceedings for redemption has already been filed before the expiry of time. I may further state here that PW. 1 i.e.Ghulam Murtaza petitioner admitted in the course of cross- . examination that the mortgage had been effected by means of Mutations ^Nos. 1753 and 1754 i.e. Ex.P. 1 and Ex.P.

3. He also admitted that the i respondents are in possession. In this state of evidence on record the learned i Courts below have very rightly held that the limitation for redemption was : to start from date of attestation.of the mutations. The impugned judgments I and decrees are fully supported by the judgment of Supreme Court of; Pakistan in the case of Abdul Hanan and 8 others v. Kapoor Khan and 16 others (1970 S.C.M.R. 633).

4. No other point has been urged. This civil revision is accordingly dismissed with costs.

(S.A.K.M.) Petition dismissed.

PLJ 2001 Lahore 308

Present: maulvi ANWAR-UL-HAQ, J.

PUNJAB PROVINCE through COLLECTOR, GUJRAT

and 2 others-Petitioners

versus

FAZAL AHMAD and 2 others-Respondents Civil Revision No. 2290 of 1989, heard on 13.12.2000.

(i) Civil Procedure Code, 1908 (V of 1908)--

—-S. 115-Suitfor possession-Decree passed and upheld by appellate Court-­Challenge to-Respondents filed suit for possession for failing to pay rent of property given to petitioners for running of school-Plea of petitioners was that as the school stood ationalised, therefore, it vested in them- Suit was decreed and appeal filed against it was dismissed by ADJ-- Petitioners contended that father of respondents had given land free as ( T.-1--Jy"), as such, respondents had no title in it-Held : High Court refused to entertain said plea/argument having been raised for first time in revision. [P. 309] A

(ii) Martial Law Regulation No. 118--

—Private property-Whether MLR-118 affects title of properties-Question of-MLR 118 never intended to take over properties of persons, who were running privately managed schools and colleges, but only their administration and operation stood vested in Prov. Government.

[P. 310] B 1987 SCMR 1197 rel.

Mr. Abdul Majid Sheikh, Advocate for Petitioners. Nemo for Respondents. Date of hearing: 13.12.2000.

judgment

On 28.3.1984 the respondents filed a suit against the petitioners. It was alleged in the plaint that the father of the respondents namely, Ahmad Din had given a part of their house, for running of a school subject to payment of rent; that neither the rent is being paid nor possession is being delivered to the respondents. In their written statement the plea taken was that the school stood "Nationalised" and as such the property vests in the petitioners. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 12.1.1988. A first appeal filed by the petitioners was heard by a learned Additional District Judge, Gujrat who dismissed the same on 9.7.1989.

1. Learned counsel today argues with reference to document Ex.D. 2 that the father of the respondents had given the land free as V-y {-w^\"" and as such the respondents had no title in the land and the impugned judgments are liable to be set aside. No one has turned up for the respondents.

2. I have gone through the record appended with this Civil Revision. I am not at all inclined to entertain the said plea/argument of the learned! counsel being raised at the first instance in this Civil Revision. I have alreadyj referred to the pleadings of the parties above. It was never the case of thej' petitioners that Ahmad Din had gifted away the land or made a Waqf of theJ ame in favour of the Government. On the other hand, the plea was that thd land vests in the petitioners because of its so-called Nationalisation under, MLR 118. Besides Ex.D. 2 is not a document executed by Ahmad Din or anyj of the respondents. This document is copy of entries in some register containing the particulars of Taleem-e-Islam Primary School. The respondents were never confronted with the said statement even if it be deemed that it was their statement. On the other hand, it had been suggested to them and their witnesses that the land stood acquired by the Government by virtue of said so-called Nationalization of the School.

4. So far as the plea in the pleadings is concerned which had been sought to be proved in the course of trial. The same is also without any legal or factual basis. MLR 118 was never intended to take over the properties of the persons who were running privately managed schools and colleges. It Qwas only the administration and the operation of the college or school which stood to vest in the Provincial Government. The matter has since been put to rest by the Supreme Court in its judgment in the case of Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council vs. The Government of the Punjab through Secretary Education, Civil Secretariate, Lahore and another (1987 SCMR 1197), wherein it had been held that the title of the properties wherein the schools were being run remained intact and remained vested in the owners thereof. No other point has been urged. The Civil Revision is accordingly dismissed leaving the parties to bear their own costs.

(S.A.K.M.) Petition dismissed.

PLJ 2001 Lahore 310

Present:MUHAMMAD NAWAZ ABBASI, J.

SyedZIA-UL-HASSAN GILANI-Petitioner

versus

MIAN KHADIM HUSSAIN, ADDITIONAL DISTRICT JUDGE, MIANWALJ and 7 others-Respondents

Writ Petition No. 10577 of 2000, decided on 19.10.2000. (i) Constitution of Pakistan, 1973--

—Article 199-Maintenance suit-Decree passed in and upheld by appellate Court-Challenge to—Petitioner failed to point out any misreading on non- reading of evidence rendering impugned judgment and decree illegal or to be inferred with by High Court in its constitutional jurisdiction—Petition dismissed. [P. 315]

(ii) Family Courts Act, 1964—

—Section 5 read with Schedule-Maintenance suit-Decree passed in and upheld by appellate Court-Respondent field suit for maintenance for her son, 4 daughters as well as for herself for iddat period @ Rs. 2000/-per month-Family Court decreed suit to extent of 3 daughters and Respondent but dismissed it to extent of son and a daughter being major-Appellate Court upheld decree-Challenge to-Held: Petitioner while taking plea of poverty and weak financial position could not escape from his lability and would not be allowed to deprive children from her legitimate right of maintenance--Held Further: In case of male child on attaining age of majority, father is not responsible for his maintenance, but in case of female child, parents are still responsible for her maintenance till she is not married, because even after attaining majority, they cannot lead an independent life and are always in need of protection of their parents-Petition dismissed. [P. 315 & 316] C and D

Section 370 of the Muhammandan Law by D. F. Mulla rel. on. (iii) Family Court Rules, 1965-

—Rule 6 read with Civil Procedure Code, 1908, Section 20 Constitution of Pakistan, 1973, Article 199-Maintenance suit-Decree passed in and upheld by appellate Court-Whether Family Court at Issa Khel had jurisdiction to entertain suit of Respondent lady while living in her parents house at Issa Khel, but her minor daughters were studying atKarachi-Question of-Held: It was an admitted fact that Respondent lady after divorce was permanently living with her parents at Issa Khel— Her daughters being in her custody despite living temporarily at Karachi in connection with their education would be deemed to be permanent resident of the place of residence of their mother-Cause of action arose in favour of Respondent lady as guardians of minors at Issa Khel, where she was residing permanently, thus, temporary residence of her daughters at Karachi would not affect jurisdiction of Family Court at Issa Khel to entertain suit of maintenance on their behalf-In given situation, respondents could invoke jurisdiction of Court either at Issa Khel or Karachi and both Courts having concurrent jurisdiction were competent to entertain suit-Petition dismissed. [P. 315] A

iv) Marriage

—Generally, it is possible for a young Muslim girl to enter into a marriage without intervention of a "Wall".[P. 316] E

Sahibzada Anwar Harmed, Adovcate for Petitioner. Mr. Abdul RaufFarooqi, Adovcate for State. Date of hearing: 19-10-2000

order

The petitioner through this Constitutional petition has questioned the validity of the judgment and decree dated 10.11.2000 passed by the learned Judge Family Court. Isakhel and upheld by the learned Add: District Judge. Mainwali vide judgment and decree dated 18.4.2000 passed in appeal.

1. The brief facts in the background, giving rise to this Constitu­tional petition are that the minor daughter and son of the petitioner through their mother namely Mst. Anees Fatima filed a suit for maintenance against the petitioner in the Family Court at Issa Khail. Mst. Anees Fatima Respondent No. 3 in the present petition who was divorced by the petitioner also claimed payment of Rs. 8,000/-as maintenance allowance for the Iddat period. The minors namely Sayeda Sameena Zia, Syeda Saadia Zia, Syeda Saruia Zia, Sayeda Sadaf Zia and son namely Syed Mohsan Zia claimed maintenance at the rate of Rs. 2,000/-each per month from January, 1998.

2. The respondent while filing the written statement pleaded that the Family Court at Issa Khail had no jurisdiction to entertain the suit on the following grounds:—

(a) That respondents were residing at Karachi with their mother.

(b) That the cause of action, if any in th eir favour arised at Karachi and not at Issa khail and therefore suit for maintenance allowance filed at Issa Khail was not maintainable.

The petitioner also denied the claim of maintenance of the respondents on merits and sought dismissal of the suit.

1. Out of the pleadings of the parties the following issues were framed by the learned Judge Family Court:--

2. Whether this Court has no territorial jurisdiction to entertain the suit ? OPD

3. Whether the Plaintiff No. 1 has been divorced and is residing alongwith the plaintiffs with her own wish ? OPD

4. Whether the plaintiffs are entitled to claim maintenance from the defendant? If so, then of what period and of what rate ? OPP

5. Relief.

6. Syed Bashir-ul-Hassan, special attorney of respondents and Mst. Anees Fatima respondent while appearing in the witness-box as PWs have stated that the petitioner having contracted second marriage was living with his second wife and was not maintaining the minors. The witnesses were cross-examined at length but nothing material could be brought to dislodge their claim. The petitioner also did not produce any evidence in rebuttal. The learned Family Judge after a detailed discussion of evidence decreed the suit for maintenance in favour of respondents and granted maintenance allowance in Respondent No. 8 to the tune of Rs. l,000/-per month for the period of her Iddat and a maintenance allowance of Rs. 4,000/-per month to three daughters namely Syeda Sameena Zia, Syeda Saadia Zia, and Syeda Samehia Zia. However, the suit to the extent of Syeda Sadaf Zia and Syed Mohsan Zia was dismissed. The learned Addl: District Judge, Mainwali further through a detail scrutiny of evidence and attending the respective contentions raised on behalf the petitioners while upholding the judgment and decree passed by the learned Family Judge dismissed the appeal of the petitioner.

7. The learned counsel for the petitioner having questioned the maintainability of the suit in the Family Court at Issa Khail has contended that the Family Court at Issa Khail had no jurisdiction to entertain the suit and decide the same for want of territorial jurisdiction. He contended that undeniably Respondent No. 3 with their daughter was residing at Karachi before separation and after dissolution of marriage the said respondent with her daughters and son shifted in a separate house at Karachi belonging to the petitioner and thus the suit for the maintenance allowance on behalf of the minors who were permanently residing at Karachi was not aintainable at Issa Khail. The learned counsel submitted that Respondent No. 3 in her statement before the Family Court has admitted that the inor daughters were studying at Karachi and she while living with her parents at Issa Khail also used to visit Karachi occasionally. Learned counsel placing reliance on Rule 5 of the Family Court Rules, 1961 submitted that neither the espondents were permanently residing at Issa Khail nor cause of action arose in their favour at Issa Khail therefore the suit for maintenance being not maintainable at Issa Khail the decree passed by the learned Judge Family Court and upheld by the learned Appellate ourt was without jurisdiction. He next submitted that the petitioner being employed in PIA at Karachi was getting only a sum of Rs. 6,000/-per month as salary and was not in a position to separately maintain two families. The petitioner present in person states that he was always prepared to maintain his daughters but they refused to live with their step-mother in joint family. He states that even now he is prepared to rehabilitate Respondent No. 3 in the interest and welfare of his daughters.

Learned counsel for the petitioner while taking various technical objections on merits submitted that the concurrent findings of the two Courts below being the result of misreading and non-reading of the evidence was not sustainable.

Learned counsel representing the respondent conversely argued that the minor daughters of petitioner being in custody of their . mother (Respondent No. 3) who was residing with her parents at Issa Khail could competently file suit for maintenance through her mother at Issa Khail and notwithstanding the fact that her minor daughters while studying at Karachi were temporarily residing at Karachi would still deemed to be living with their mother. He submitted that maintenance allowance of Rs. 4,000/- in toto per month has been granted to the three grown up girls and share of each girl would come to Rs. 1,300/- which is very migre amount to maintain a school or college going girl. The Respondent No. 3 in Company of her young daughters present in Court states that they have no source of income to maintain themselves. Mohsan Zia son of the petitioner, the only male member in the family of Respondent No. 3 is also present in Court. He states that despite ailment he earns likelihood for his mother and sisters.

1. I have heard learned counsel for the parties at length and also gone through the evidence and the pleadings of the parties. This petition is still at motion stage as in the light of the contentions of the learned counsel for the petitioner relating to the jurisdiction of the Family Court at Issa Khail to entertain the suit only a pre-admission notice was issued to the respondent. However, the same is disposed of as notice case. This is not denied that the girls were temporarily residing at Karachi in connection with their education and Mst Anees Fatima after divorce shifted to the house of her parent at Issa Khail but she while holding the custody of minor girls used to visit Karachi occasionally and stay with her daughters. The petitioner being employed in PIA was also living at Karachi with his second wife. The territorial jurisdiction of Family Courts is governed by Section 20 C.P.C. and in case the suit is filed in a wrong Court, the paint shall be returned under Rule 5 of the Family Court Rules, 1961. The Rule in questioned provides as under:

Rules 5. Where a plaint is presented to a Court not having jurisdiction-

a) the plaint shall be returned to be presented to the Court to which is should have been presented;

b) the Court returning the plaint shall endorse thereon the date of its presentation to it and its return, the name of the party presenting it, and a brief statement of the reasons therefor."

Section 20 C.P.C. Other suits to be instituted where defendant1s reside or cause of action arises:

Subject to the limitation aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually nd voluntarily resides, or carries on business, or personally works for gain; or any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or

b) the cause of action, wholly or in part, arises.

Explanation /.--Where a person has a permanent dwelling at one place and also at temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence."

1. It is clear from Section 20 C.P.C. that a plaintiff can file suit both at his/her permanent as well as temporarily residence in respect of cause of action arising at his/her temporary residence. This is an admitted fact that Respondent No. 3 after divorce is permanently residing in the house of her parents at Issa Khail and her daughters being in her custody despite living temporarily at Karachi in connection with their education would be deemed to be the permanent resident of the place of residence of her mother. The cause of action in the present case arose in favour of Respondent No. 3 as guardian of minor at Issa Khail where she was residing permanently and thus the temporary residence of her daughters at Karachi would not effect the jurisdiction of Family Court at Issa Khail to entertain the suit of maintenance on their behalf. The respondents would in the given situation invoke the jurisdiction either at Issa Khail or at Karachi and both Courts having concurrent jurisdiction were competent to entertain the suit. Since Respondent No. 3 after dissolution of marriage was residing at Issa Khail and the minor were in her custody therefore cause of action arose in their favour at Issa' Khail and their ordinary place of residence under the law would be at Issa Khail therefore the suit filed at Issa Khail did not suffer from the defect of territorial jurisdiction of the Family Court at Issa Khail. Having gone through the evidence, I find that the petitioner has neither denied the right of maintenance of respondent nor claimed the payment of maintenance allowance to them. The petitioner has also not produce any evidence in rebuttal to the claim of respondents. The learned counsel for the petitioner has also not been able to point out any mis-reading or non reading of evidence rendering the judgment and decree illegal or to be interferred by this Court in its Constitutional jurisdiction. The petitioner being responsible to maintain her daughters cannot escape from his liability on technical objection of the territorial jurisdiction of Family Court. The petitioner also while taking the plea of poverty and week financial position could not escape from his liability and would not be allowed to deprive them from their legitimate right of maintenance. The learned counsel for the petitioner has contended that presently only one daughter of the petitioner is minor whereas the remaining daughters having attained the age of majority were not entitled to any maintenance allowance. This is an admitted fact that Respondent No. 3 has not contracted second marriage and further she or her daughters have also no source of income and thus notwithstanding the attaining of majority by them unless the young girls are married, their maintenance in an Islamic society is the obligation and liability of the parents and therefore the petitioner cannot deny such liability.

Section 370 of the Mohammadan Law provides as under:

1. Maintenance of children and grandchildren.~() A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity of disease. The fact that the children are in the custody of their mother during their infancy (Section 352) does not relieve the father from their obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

2. It may be observed that in case of male child on his attaining the jage of majority, the father is not legally responsible for his maintenance but iin case of a female, the parents despite attaining the age of majority by the jfemale child are still responsible for her maintenance till she is not married. The young girl in Muslim society even after attaining majority cannot be jdeprived of their right of maintenance by their parents as they cannot lead ,an independent life and are always in need of protection of their parents. It p may further be observed that generally it is possible for a young Muslim girl jto enter into a marriage without the intervention of a 'Wali'.

3. For the foregoing reasons, this petition having no substance is accordingly dismissed.

(S.A.K.M.) petition dismissed.

PLJ 2001 Lahore 316

Present: ghulam mahmood qureshi, J. MUHAMMAD NAWAZ-Petitioner

versus

ADMINISTRATOR etc.-Respondents Writ Petition No. 504/R of 1981, heard on 3.10.2000.

Settlement Scheme No. VIII (Scheme for Management and Disposal of Available Urban Properties, 1979)--

—Para-I (i) (Chapter-l)-Evacuee land-Claim of several occupants-Adjustment of-Question of-One L occupied evacuee land measuring 2 Kanals in year 1958, who later on sold it to petitioner through agreement deed dated 3.8.1976-Then petitioner submitted B.S. Form to Deputy Administrator under Settlement Scheme No. Vlll-Other occupants also applied for transfer of portion in their respective possession-Deputy Administrator rejected all forms-Revision filed by petitioner was also dismissed by Administrator on ground that property was occupied after target date i.e. 1.1.1976-Challenge to~Contention that being assignee from original occupant, possession of petitioner was established long before the target date i.e. 1.1.1976-Held: It was difficult to dislodge occupants from portion in their respective possession-Case was remanded to Chief Settlement Commissioner/MBR for its decision afresh in light of observations and dictum laid down by Supreme Court after affording opportunity of hearing to concerned parties-Petition accepted.

[Pp. 319 & 320] A

PLD 1991 SC 617 rel.

Mr. Taqi Ahmad and Zakiuddin, Advocates for Petitioner. Mr. Abdul Aziz Qureshi, Advocate for Respondents.

Mr. Ghufran Khurshid Imtiazi, Advocate for Applicants in C.M. No. 11/98.

Date of hearing: 3.10.2000.

judgment

The dispute relates to Evacuee land measuring 2 Kanals comprising Khasra No. 2027/2609, Khawait No. 163 Khatooni No. 198 situated in Guru Mannghat, Lahore Cantt. Initially one Latif Chohan occupied this piece of land in 1958 and constructed several shops and service quarters/an area covering about 10 Marias.Another 10 Marias was also covered by filling the foundations for construction of servant quarters in this way one Kanal was left as vacant. The petitioner purchased it for a sum of Rs. 80,000/- from said Latif Chohan and the possession was also handed over to him by way of executing an agreement deed in his favour. After taking over possession of the said premises on 3.8.1976, the petitioner submitted B.S. Form under Settlement Scheme No. VIII, Scheme for the management and disposal of available Urban Properties, 1979, before the Deputy Administrator (R.P.) seeking transfer of the area in his possession i.e. two Kanals, including the built up area. The occupants also applied for transfer of the portions in their respective possession. The Deputy Administrator rejected all the forms vide his order dated 24.3.1981. Revision petition filed by the petitioner was also dismissed by the Administrator (R.P) videhis order dated 31.5.1981. This order has been assailed in the present Constitutional petition. This petition was accepted by this Court vide judgment dated 11.8.1993 with the following observations:

"The up shot of the above discussion is that this writ petition is accepted. The impugned order is declared to be without lawful authority and of no legal effect. The case shall go back to the Deputy Administrator (R.P), who shall take necessary steps for transfer of the property to the petitioner after realizing the price and other dues in accordance with law."

1. The judgment rendered on 11.8.1993 was challenged by way of filing C.M. Applications Nos. 1978/1996, 2018/1996, 2026/1996, 2029/1996, 2023/1996, 2020/1996, 2035/1996 and 2032/1996 Under Section 12(2) of the CPC for re-calling the above said judgment. All the above said C.Ms were allowed by order dated 28.7.1998. The judgment dated 11.8.1993 passed in Writ Petition No. 504-R-1981 was re-called and the applicants were directed to be impleaded as party to the writ petition. In compliance of the above said order amended writ petition was filed impleading the above said applicants as respondents.

2. Learned counsel for the petitioner Mr. Taqi Ahmad Khan, Advocate contended that the property in dispute was surrendered in favour of the petitioner through agreement dated 3.8.1976 by its occupant Muhammad Latif Chohan and the petitioner occupied the same and stepped into the shoes of the person who came in possession in 1958, therefore, rejection of B.S. form by Deputy Administrator on the ground that the property was occupied after the target date i.e. 1.1.1976 is totally illegal. It is further contended that the petitioner in his capacity as assignee from Muhammad Latif Chohan was admittedly in possession and was fully entitled for its transfer. Learned counsel has also referred the statement of Muhammad Latif Chohan recorded by the Deputy Administrator during the course of proceedings; that the and have also executed rent note and had been regularly paying rent to him at this stage respondents are stopped to challenge the title of the petitioner. Learned counsel has also referred to the definition of the word possession as given in Clause (i) of Part-I (Chapter-I) of Scheme for the management and disposal of available properties to contend that the petitioner being assignee from the original occupant is very much covered under this definition and his possession is established long before the target date on 1.1.1976. The learned counsel has also drawn my attention to some of the annexures "S, T and U" of the amended writ petition to point out that one of the respondents namely Farid-ud-Din and Afsar-ud- Din in a bail application mentioned in Para 3 that they are Presiding in Property No. 5-E as tenant which is owned by Muhammad Latif Chohan. Conversely Mr. Abdul Aziz Qureshi, learned counsel for respondents contended that the respondents occupied property in dispute in their own right and build house thereon and were entitled to its transfer; all of the occupants submitted separate B.S. forms under Scheme VIII for transfer of plot in their respective possession while the titioner applied for transfer of whole of the plots 2 Kanals; after rejection of their B.S. forms by Deputy Administrator vide order dated 24.3.1980 revision petitions were filed by the petitioner as well as respondents which was also dismissed by the Administrator (R.P) on 31.5.1982; that the petitioner has assailed this order through the Constitutional petition while Respondents No. 2 to 10filed civil suit against rejection of their B.S. forms; that their suit Were dismissed, appeal filed by the respondents was accepted by Addl. District Judge videjudgment/decree dated 26.3.1995 and the present petitioner has filed an application Under Section 12(2) CPC challenging the above said judgment and decree which is still pending. By referring the above said fact learned counsel contended that the petitioner B.S. form was rightly rejected by the Deputy Administrator, therefore, he was not entitled to take benefit under settlement scheme.

3. On 6.10.1998 C.M. 11/1998 with C.M. 12/1998 under Order 1Rule 10 read with Section 151 CPC was filed on behalf of Kh. Tanvir Ahmad through Mr. Ghafran Khurshid Imtiazi, Advocate, Rawalpindi for impleading Kh. Tanvir Ahmad as party. Alongwith this Application C.M. 12/1998 was filed for seeking exemption of production of certified copies. Notice was C.M. 12/1998 was allowed, subject to all just exceptions. The above said C.M. i.e. C.M. 11/1998 was fixed on 26.2.1999 as no one was present on behalf of applicant, office was directed to issue notice to counsel who was an out side counsel, and the case was ordered to be re-listed in 4th week of March, 1999. The case was again fixed on 22.3.1999. The learned counsel for the applicant was not present on that date. It was pointed out by the learned counsel for the petitioner that the alleged power of attorney submitted by Kh. Tanvir Ahmad did not specifically authorize Mr. Ghafran Khurshid Imtiazi his general attorney, for making such application and after perusing the general attorney, this C.M. was dismissed as not competent.

4. Aggrieved by the above said order Mr. Ghafran Khurshid Imtiazi, Advocate filed C.M. No. 536/99 for re-calling the order dated 22.3.1999 which was fixed on 14.5.1999. Notice was issued to the other parties which was accepted by Mr. Taqi Ahmad Khan on behalf of petitioner and Mr. Abdul Aziz Qureshi, Advocate on behalf of respondents. This C.M. is also being taken up Alongwith the main case today.

5. I have heard the learned counsel for the parties at some length and have also perused the record. The objection raised by the learned counsel for the petitioner as well as learned counsel for the Respondents Nos. 2 to 10 that Kh. Tanvir Ahmad, is not an allottee of this Khasra number and he might have obtained PTD with regard to some other property and he can apply for demarcation before the same authorities concerned could only be decided after taking appropriate roceedings by the settlement authorities.

6. The parties have been litigating since long, C.M. 11/1998 filed by Mr. Ghafran Khurshid Imtiazi which was decided by order dated 22.3.1999, the order having been passed in the absence of the learned counsel, who is an out side counsel, in the interest of justice by accepting C.M. 538/1999 the above said order is re-called and the C.M. 11/1998 is allowed, subject to all just exceptions. Kh. Tanvir Ahmad, Advocate is also allowed to be arrayed as Respondent No. 11.

7. At this stage it is difficult to dislodge the occupants from the portion in their respective possession. As held by Hon'ble Supreme Court of Pakistan in "Mst. Shahjhan Begum vs. Mst. Shabbir Fatima and another:

"It is admitted position that the appellant has only a some part of house in bar possession while the respondent has much part thereof. Therefore, while exercising the jurisdiction in the nature of writ as is available to the High Court, this Court would also try whenever possible, in the settlement cases, to adjust and accommodate as many displaced persons as possible."

1. This view was further affirmed in Mst. Shahzad Begum and Kamal Ahmad and 18 others (PLD 1991 S.C. 617) with the following observations:

"Proviso to Sec. 2(4) of the Displaced Persons (Compensation & Rehabilitation) Act through the passage of time stands interpreted by the Superior Courts in such a manner that failure to apply independent mind to the question of divisibility has been treated as failure to exercise power vested in the officer. This properly is in line with the spirit of the legislation and its main and important objects one of them being to accommodate and adjust as many displaced persons as possible. If this principle underlying the proviso to Section 2(4) would have been kept in mind by the concerned Settlement Authority the results would have been different. Thus it is a case in the above context of failure or refusal to exercise power under Section 2(4) and thus the order impugned before the High Court was rendered without lawful authority. Writ jurisdiction declared it so. Hence there is no justification or interference. This appeal fails and dismissed."

1. The upshot of the above discussion is that this writ petition is allowed, the impugned order is declared as without lawful authority and of no legal effect. The case is remanded to the learned Chief Settlement Commissioner/MBR, who shall decide the same afresh in the light of the 'above observations and the dictum laid down by the Hon'ble Supreme Court of Pakistan in the above cases, after affording opportunity of hearing to the parties concerned. Parties however, shall bear their own costs. (S.A.K.M.) Case was remanded.

PLJ 2001 Lahore 320 [Rawalpindi Bench]

Present: iftikhar ahmad cheema, J.

PETROSIN PRODUCTS PAKISTAN (PVT.) LIMITED, ISLAMABAD-Petitioner

versus

FEDERATION OF PAKISTAN through SECRETARY PRIVATIZATION

COMMISSION MINISTRY OF FINANCE, ISLAMABAD

and 5 others-Respondents

Writ Petition No. 2254 of 2000, decided on 1.12.2000. (i) Auction

-—Mere highest bid for property in an auction does not, prima facie carry vested right to bring a suit nor the same can give rise to Constitutional right u/Art. 199 of Constitution of Pakistan 1973 where auction or sale was subject to confirmation by some person or authority, and the same has not been confirmed by that person or authority. [P. 328] A

(ii) Contract Act, 1872 (IX of 1872)—

—-S. 2--Constitution of Pakistan (1973), Art. 199-Privatization of Liquid Petroleum Gas Pipelines Limited-Petitioner's bid being the highest was approved by Board of Directors but Cabinet Committee for Privatization did not approve bid of petitioner without assigning any reasons-Validity- Mere highest bid for property in an auction does not, prima facie, carry vested right to bring a suit nor the same can give rise to Constitutional right under Art. 199 of the Constitution where auction or sale was subject to confirmation by some person or authority, and the same has not been confirmed by that person or authority-Respondents were not actuated with any motive or malice against petitioner nor they had acted arbitrarily-Respondents had discretion and prergative to accept or reject the bid and while rejecting offer of petitioner, their decision was neither tainted with malice nor the same carried imprint of illegality on its forehead, in asmuch as, no right or interest in respect of property in question, had accrued to petitioner by his mere participation in the bid nor his qualification as highest bidder per se was sufficient to conclude that his offer was binding on respondents, and they had no option but to accept such bid-Respondents were riot bound to assign any reason whatsoever for their refusal to accept the highest bid when public property was put to auction-No person has fundamental right to insist that Government must enter into a contract with him-Petitioner ad not been able to prove that respondents action in rejecting highest bid of petitioner was not actuated in public interest but was tainted with malice-Where any statutory provision either specifically or by inevitable implication excludes application of rules of "natural justice", then the Court cannot ignore mandate of legislature—Rules of natural justice can operate only in those areas not covered by any law validly made which is not the case here-Petitioner, thus, had no vested right to compel respondents to accept his bid on the sole ground that be was the highest bidder. [Pp. 326 to 329, 333] A, B, C, D, E & G

(iii) Fundamental right-

—No person has fundamental right to insist that Government must enter into contract with him or any one. [Pp. 326 & 327] B

(iv) Maxims­ '—Maxim "audi alteram partem" would include (a) notice of case to be met; and (b) opportunity to explain-Rule of "audi alteram partem" being of universal application cannot be sacrified to the alter of administrative convenience or celebrity. [P. 333] F

1970 SCMR 542; 1971 SCMR 533; 1972 SCMR 63; 1974 SCMR 337; PLD 1987 SC (AJ&K) 99; 1991 CLC 313; 1993 MLD 1500; AIR 1980 SC 1992; 1994 SCMR 158; and (1943) AC 627.

(v) NaturaUustice-

—Where any statutory provision either specifically or by inevitable implication excludes applications of rules of natural justice, then Court cannot ignore mandate of legislature. [P. 328] C

Mr. Abdul Hafeez Pirzada, Advocate for Petitioner. Rqja Muhammad Akram, Advocate for Respondents. Date of hearing: 1.12.2000.

judgment

Petitioner, namely, Petrosin Product Pakistan (Pvt.), Ltd. is a company limited by shares, incorporated and register ed under the provisions of the Companies Ordinance, 1984, having its head office at 82-(115), Attaturk Avenue, G-6/3, Islamabad. As per its claim, the petitioner has a vest experience and expertise in the Oil and Gas industry and has been providing engineering and manufacturing service, to the oil and gas sector in Pakistan. The instant petition has been filed by the petitioner through its General Manager (Mr. Tassadaq Bashir Malik).

1. A privatisation commission, Respondent No. 2, was constituted by the President of Pakistan for the privatization of state owned businesses, projects and concerns and its head office is located at 5-A, Constitution Avenue, Islamabad. Respondent No. 2 is performing its functions through its Chairman. On February 15, 2000, Respondent No. 2 on behalf of Sui Northern Gas Pipelines Limited (SMGPL), Sui Southern Gas Company Limited (SSGC) and Pakistan State Oil Company (PSO), invited legal ntities and individuals to submit their expressions of Interest for the purchase of Liquefied Petroleum Gas (LPG) assets of SNGPL, SSGG and PSO,.

2. The petitioner vide,Letter No. PET/INVPK-LPG/001, dated March 9, 2000, submitted to Respondent No. 2 its Expression of interest for the purchase of LPG businesses of SNGPL, SSGC AND PSO. In response to the aforesaid letter, espondent No. 2 invited the petitioner to participate in the pre-qualification process for the privatization of the aforesaid businesses and also required to submit its statements of qualification in the manner prescribed. The petitioner alongwith Petrosin Engineers and contractors (Pvt) limited formed a consortium so as to participate in the bid for the said LPG assets and the petitioner satisfied the pre-requisites of Respondent No. 2 and by an affidavit it was made clear that neither the petitioner nor any of its directors or Principal share holders, was a defaulter in payment of LPG or other Governmental dues, taxes, duties etc., and Respondent No. 2 vide its letters dated 22.5.2000 allowed the petitioner to participate in the bidding and on 15.6.2000, Respondent No. 2 forwarded a copy of "instructions of bidders" to the petitioner. The petitioner was also invited to attend the pre- bid conference to be held on 21.6.2000. The etitioner attended and participated in the said meeting. However, Respondent No. 2 invited pre- qualified parties excluding the petitioner arbitrarily and informed them regarding the bidding date. The petitioner approached this Court vide Constitutional Petition No. 1800/2000 and my learned brother Mr. Tassaduq Hussain Jillani, J. allowed the petitioner to participate in the bidding by

passing the following order:

"Learned counsel for the respondent accepts notice. As the main case has been admitted to regular hearing respondent has not been able to show any ground tenable in law to justify petitioner's exclusion and as the petitioner shall suffer irreparable loss if he is not allowed to participate, it is directed that subject to the final order to be made in the main petition, petitioner shall be allowed to participate in bidding to be heldon 24.8.2000".and on 24.8.2000 the bidding for the LPG Businesses of SNGPL, SSGC and PSO took place and the petitioner participated in the bidding process which was telecast on Pakistan Television. The said bidding/auction was open, fair, competitive and transparent. The petitioner made the highest bid for LPG businesses of SNGPL. Thereafter the bidding results were placed before their respective boards of directors for consideration and for the passing of appropriate board resolution. The board of directors of SNGPL approved the highest bid of Rs. 121 Million made by the petitioner. However, Cabinet Committee on privatization (Respondent No. 4) did not approve the bid of the petitioner for the privatization of LPG businesses of SNGPL, although Respondent No. 4 had approved the bid of M/S. Caltex Oil Pakistan Ltd. but refused to approve the petitioner's bid/offer without assigning any reason whatsoever. The petitioner was, therefore, constrained to approach this Court with a Constitutional missile in its hand and his learned counsel (Mr. Abdul Hafeez Pirzada, Adv.) who has put forward his client's case with an exuberant skill, has raised the following contentions:-

(i) That the petitioner's bid of Rs. 121 Millions for the sale LPG businesses of SNGPL being the highest, gave the petitioner a vested and valuable right and legitimate expectation that Respondents Nos. 2 and 4 would fulfil their Constitutional and statutory obligation and approve the said bid and the sale of the said LPG business of SNGPL to the petitioner. The petitioner took positive steps aimed at acquiring the LPG Business of SNGPL. Hence Respondents Nos. 2 and 4 are estopped from rejecting/not approving the highest bid of the petitioner.

(ii) That the Respondents Nos. 2 and 4 have not communicated any reason whatsoever for not approving the highest bid of the petitioner for the privatization of LPG business of SNGPL. The impugned decision suffers from malice of law and fact.

(iii) That Respondents Nos. 2 and 4 took the decision of not approving the highest bid of the petitioner in absolute contravention of the principles of natural justice by not affording the petitioner an opportunity of being heard before taking the impugned decision.

(iv) That the impugned decision is violative of Articles 2A, 4, 25 and more particularly Article 25 as by approving the highest bid of M/s. Caltexs. Oil (Pakistan) Limited for the LPG business of SSGC and not approving the highest bid of the petitioner for LPG business of SNGPL even though the board of directors of both SSGC and SNGPL had approved the highest bids by M/S. Caltex Oil (Pakistan) Limited and the petitioner respectively, the petitioner has been discriminated against, and Article 18 as by being unlawfully deprived of its legal right to acquire the LPG business of SNGPL, having become the highest bidder in a most transparent bidding process, the petitioner has been deprived of its freedom to trade and profession.

(v) That the LPG business of SNGPL having been put up for bidding and the bid of the petitioner having been declared the highest, the same could not be rejected/not approved arbitrarily by Respondents Nos. 2 and 4. There was no reserve price fixed or intimated to any of the bidders. The highest bid of the petitioner at the bidding reflected the market price for the LPG business of SNGPL, and the same cannot be termed as unacceptable by Respondents Nos. 2 to 4.

1. Raja Muhammad Akram, Advocate, learned counsel for the respondents raised various objections to the maintainability of the writ petition, namely inter alia on the grounds that the petitioner had failed to establish infringement of any legal right or entitlement to the performance of any legal duty which is imperative for invoking the Constitutional jurisdiction of this Court; that the petitioner had no cause of action; that the decision to reject the bid was valid and legal and the offer made by the petitioner was fully considered by Respondent No. 2 and was thoroughly examined by Respondent No. 4 and ultimately decided that the LPG assets of SNGPL by put to re-auction. This decision was made in the National interest and was motivated to fetch the best and highest possible price. It was submitted further that the respondents were not under any Constitutional obligation to approve the highest bid and without approve or acceptance of the bid by Respondents Nos. 2 and 4, no vested right had accrued to the petitioner. Learned counsel for the respondents argued with a forensic skill that where the bid for sale of property was subjected to prior approval of Government/competent authority the highest bid per se would not create any contractual right for sale of a property to such a bidder unless approval was duly granted by the competent authority. Reliance was placed on 1970 SCMR 542, 1971 SCMR 533, 1972 SCMR 63, 1974 SCMR 337, PLD 1987 SC (AJK) 99, 1991 CLC 313, and 1993 MLD 1500.

2. Learned counsel further contends that principle of natural justice was not applicable in cases like the instant one, where the bidding in cases like the instant one, where the bidding document contains riding clause. The board of directions of SNGPL may have its own dictionary but the last word lies with the Government; that no contractual relation had come into existance, hence the petitioner had no contractual right; that fixation of reference price was not a sine qua non for privatization process.

3. The first question which falls for the determination of this Court is, whether by virtue of being the highest bidder a vested and valuable right had accrued to the petitioner and Respondents Nos. 2 and 4 are estopped from rejecting/not approving the highest bid of the petitioner. This question came under consideration before the superior Courts of this country including the Hon'able Supreme Court of Pakistan and has been consistently answered in negative. In Muhammad All v. The District Council, Gujrat and others. 1993 MLD (Lhr.) 1500 (1503), it has been held that a bid made on an auction is in the nature of an offer which does not Nature into contract till its acceptance. The auctioneer acts as an agent of the seller and if he has authority to accept the bid, a concluded contract comes into being the moment the bid is accepted. But if the auctioneer is not vested the power to accept a bid which is without any authority the contract only comes into being when a bid is accepted by that authorised person or authority.

4. A similar view was approved by a Division Bench of Karachi in M/S. Javed (Put.) Ltd vs. Government of Pakistan (1991 CLC Note 313 (Karachi) and 1 quote the relevant portion:

"Bid offered by petitioner to supply goods was still in process of recommendation and was not finally accepted by competent authority nothing was there in bidding documents to indicate that competent authority could not accept offer of a party if it considered same to be competitive and lower when compared with other bidders-Petitioner who had submitted his offer bid in response to invitation published by competent authority, did not acquire any vested right for award of contract, even if he had complied with all conditions of bidding document-Participation of petitioner in bidding and submission of bidding document in pursuance of advertisement in news-paper inviting bid, at best amounted to creating a civil contract, performance whereof could not be secured under Article 199 of Constitution of Pakistan.

1. In Babu Pervaiz Qureshi vs. Settlement, Commissioner Multan and Bahawalpur Divisions, reported in 1974 SCMR 337, it was held as under:-

"A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it. A person who was a successful bidder at the auction cannot claim to be a person aggrieved by the order of present auctioneer".

1. In Mercy Din us, Noor Muhammad and others. 1970 SCMR 542 (544-A), it was held as under:

"Person giving highest bid at auction and also depositing substantial account of auction money-Auction, however, not confirmed by relevant authority and terms and conditions of auction also providing that highest, hid could be rejected without assigning any reason-person, helddid not acquire any right whatsoever in property."

1. A similar view was expressed in Munshi Muhammad, etc. vs. Faizan-ul-Haq, etc 1971 SCMR 533. In that case the uction of property was made through bid. However, it was stipulated in the auction proceedings that highest bid at the auction was subject to approval of the Addl. Commissioner (Settlement) who may or may not accept it without assigning any reason. The highest bids offered at the auction were not approved and the property was transferred to an allottee. It was held by the Hon'able Supreme Court that the highest bids in absence of final approval of the bid by the authority was not clothed with any right in auctioned properties and had no locus standi to challenge the transfer competently made and consequently the petition was dismissed.

2. This moot point also came under discussion in Moeen-ud-Din's case, reported in PLD 1987 SC (AJK) 99 (109) and was answered as under.

3. It is thus clear from the aforesaid precedent cases that if a highest bidder where any auction or sale does not acquire any right or interest in the auctioned property when the auction or sale is subject to confirmation by some person or authority, and the same has been confirmed by that person or authority. The mere highest bid for property in auction does not, prima facie, carry vested right to bring a suit nor it can give rise to a.Constitutional right under Article 199 of Constitutional of Islamic Republic of Pakistan, unless the bid is approved by the competent authority. In the aforesaid case, the Supreme Court after a careful scanning of the relevant case law came to the aforesaid conclusion and the same has been approved by the Hon'able apex Court of this country in the aforesaid precedent cases.

4. This view has universal application and has been consistently followed by the Court in India and the Britan and I quota IR 1947 Madras 366, AIR 88 Delhi 224, AIR 1972 Mad. Perdesh 131 and AIR 1971 SC 2295.

5. In AIR 1954 SC 592, a liquor contract was knocked down in an auction by the Deputy Commissioner, who had authority to accept or reject offer in favour of "A" who was the highest bidder and granted the contract to "B". Held" that the cancellation, though irregular was not illegal and as "A" btained no right to the licence by the mere fact that the contract had been knocked down in his favour (the acceptance being subject to sanction), the first relief asked by "A" far a "mandamus" to confirm his right to the licence could not be granted."

6. In AIR 1972 SC 2142, it was held that there was no concluded contract between the Government and the highest bidder. In AIR 1982, SC 1234, it was held that the Government was under no obligation to accept the highest bid and that no right accrued to the bidder merely because his bid happened to be the highest. In this case although the bid had been acceptedat the time of auction, however, it was subject to rectification by the ompetent authority/Government, and the Government refused to rectifythe same. There Supreme Court of India held that no right or interest had accrued in favour of the highest bidder. While adjudging the point of ot assigning any reason by the Government for not accepting the highest bid, the Supreme Court of India held that the Government's power to refuse to accept the highest bid could not be confined to inadequacy of bid only. There may be a veriety of good and sufficient reasons apart from inadequacy of bids, which may impel the Government not to accept the highest bid. The Government is, therefore, under no obligation to offer reasons for its refusal to accept the highest bid. In AIR 1995 SC, it was held as under:

"In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. Sale by public auction is universally recognised to be the best and most fair method and is beyond reproach and, if it is not possible to adopt the said method, sale may be held by inviting tenders, but in that event every endeavour should be made to give wide publicity to get the maximum price."

1. There is no doubt or dispute that the petitioner who participatec in the bidding process was the highest bidder. It is also an admitted fact that the proceedings were fair, open and transparent. Any-how, the last word lay with Respondent No. 2 (Privatization Commission) which was functioning under the direct supervision and control of Respondent No. 4 which was fully competent to accept or reject the bid and by refusing the same the respondents were within their right. They were not actuated with any motive or malice against the petitioner nor they acted arbitrarily. It was the discretion and prerogative of the aforesaid respondent to accept or reject the bid and while rejecting the offer of the petitioner, the highest bidder, for a sum of Rs. 121 Million for the LPG businesses of SNGPL., their decision was neither tainted with malice nor it bears an imprint of illegality on itsforehead because no right or interest in respect of the aforesaid property hac accrued to the petitioner by his mere participation in the bid or his qualification as highest bidder per se is sufficient to conclude that his offer was binding on the aforesaid respondents and they had no option but to accept it despite the fact that under Clause 4 (iv) of "Instructions to Bidders" they had reserved an nconditional right to X rejected ihe highest bid without assigning any reason.

2. The respondents were not bound to assign any reason whatsoever for their refusal to accept the highest hid when public property was put to auction. The authorities intended to fetch the best price and while disposing of the public property like,the instant one which is the subject matters of this petition certain things have to be observed e.g. that the auction should take place publically. However, the paramount consideration should be the public interest. Appearance of public justice is as important as doing justice. Nothing should be done which gives appearance of bias, jobbery or nepotism. None of these infirmities exist in this case.

3. Learned counsel for the petitioner has taken the plea of discrimination by contending that the highest bid by M/S. Caltex Oil (Pakistan) for the LPG businesses of SSGC was approved while the highest bid of the petitioner to acquire the LPG businesses of SNGPL was disapproved. This discrimination speaks volume about the mala fide of the respondents.

4. Before dealing with this objection I must say with emphasis that the state which has right to trade, has also the duty to observe equal. The Government cannot choose to exclude persons discrimination. When the state acts to the prejudice of a person it has to be supported by legality. The state can enter into contract with any person it chooses. No person has fundamental right to insist that the Government must enter into a contract with him. However every citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling.

5. The petitioner has not been black-listed or permanently excluded from participating in reauction which is scheduled in near future. The sole grievance of the petitioner is that he being the highest bidder his offer was refused while the highest bid made by the Caltax for the businesses, assets, etc of SSGC was accepted, hence the decision was discriminatory. I do no see any merit in this contention. The petitioner and Caltex had opted to bid for different properties. There was o direct contest between the petitioner and Caltax whose bid was approved and accepted by the Commission . The respondents might have after due consideration come to the conclusion that offer made by Caltax was commensurate with the market value of the properties for which they offered their bid. Any-how, having no direct or remote concern with the bid made by Caltax, the petitioner cannot allege any grievance whatsoever on this score alone that his bid was rejected and the bid of Caltex was accepted because both the bids were for separate properties. The petitioner and Caltex were not the rival bidders. Had the respondents accepted the offer of a 3rd party, who had either not participated in the bidding process in an open auction alongwith the petitioner or the respondents had made some under-hand deal with that party in a clandestinemanner, the agrument of discrimination, mala fideand arbitrariness on the part of the respondents would have certainly carried weight. But in the instant case where the Commission was looking for the best price, it was the discretion and prerogative of the Commission to decide whether the offer made by the highest bidder was fair and in the National

interest.

1. At this stage I cannot help borrowing a very wise observation of Bhagwati, J. in AIR 1980 SC 1992 (2000) and I quote the relevant portion: "Where any Governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness of lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the state; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course these are other consideration which render it reasonable and in public interest to do so. Such considerations may be that some Directive Principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it on that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these consideration only illustratively, for there may be an infinite variety of consideration which may have to be taken into account by the Government in formulating its policies and it in on a total evaluation of various considerations which have weighed with the Government in taking a particular action, that the its policies and it is on a total Court would have to decide whether the action of the Govt. is reasonable and in public interest. But one basic principle which must guide the Court in arriving at its determination on this question is that the Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not actuated with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the section taken by the Government is unreasonable or without public interest because as we have said above, there are a large number of polity considerations which must necessarily weight with the Government in taking action and therefore the Court would not strike down Governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest".

2. In the instant case, the learned counsel for the petitioner has not been able to prove that the respondents action in rejecting the J^ offer/highest bid of those petitioner was not actuated in the public interest but was tainted with malic.

3. The preceedent cases referred by the learned counsel for the petitioner have no relevancy with the facts and circumstances of the instant case e.g. in AIR 1990 SC 1031 the appellants sought a writ of mandamus against the respondent directing it to desist from denying or discontinuing the supply of all kinds of lubricants to the appellant and from ousting, black­ listing, coercing of pressurising the appellant from the business of dealing with lubricants etc. It was found as an admitted fact that the respondents corporation was supplying lubricants to the appellants for the last 18 years, hence their dis-continuation of the same without assigning any reason was an act of arbitrariness. But even in that case it was unambiguously held that the writ petition is competent only in those cases where the state or any organ in under the contractual obligation to given reasons for the non- performance of their contractual duty but, in a case like the instant one where no legal and binding contract existed between the parties, no legal right or interest in the property which was a clear matters of auction is said to have accrued in favour of the bidder. Even thought he may be the highest bidder in the bidding process.

4. In AIR 1988 SC 157, the legal principle which was judicially recognised was that when public property is the subject of sale it should be disposal of through public auction and the bidding process should be fair and transparent and there is no cavil to this proposition, on the petitioner's own showing the auction process was fair and transparant.

5. In AIR 1979 1979 SC 1 628, a notice, inviting tenders was put up for running a second class restaurant and two snack Bars was issued by the respondent (The International Airport Authority of India and others) which is a corporate body, offer made by Respondent No. 4 was allowed and the petitioner's (Ramana) was rejected. It was heldby the Supreme Court of India that it is the discretion and prerogative of the state, which is the guardian of the finance of the State, to accept the price offered by the highest bidder or to reject it. The relevant portion is as under:

"The activities of the Government have a public element and, therefore, there should be fairmess and equality. The State need not enter into any contract with any-one, but if it does so, it must do so fairly without discrimination and without unfair procedure."

"The Government is the guardian of the finances of the state. It is expected to protect the financial interest of the State. Hence quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to decide whether the price offered in an auction sale is adequate. While accepting or rejecting a bid it is merely performing an executive function. The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of Article 19 (1) (g) on Article 14 can arise in these cases. The Government's power to sell (the exclusive privilege set out in Section 22) was not denied. It was also not disputed that these privileges could be sold by public auction. Public auctions are held to get the best possible price. Once these aspects are recognised, the appears to be no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the Highest bid if he thinks that the price offered is inadequate".

(The outlining is mine)

1. In another case referred in 1995 MLD 15 which hs been strongly relied upon by the learned counsel for the petitioner, there was a contest for the grant of contract for installation of mini liquid Petroleum Gas Plant at Fimkassar, 60 Miles towards sought side from Rawalpindi. The petitioner had invoked the Constitutional jurisdiction of this Court by filing a writ petition alleging that having offered lowest rate he was entitled to the grant of contract and the respondents had no lawful authority to grant the same to Respondent No. 1 who had offered the higher rates. However, the matters ended in compromise but while dealing with the controversy my learned brother Iftikhar Hussain Chaudhry, J. observed in Para 12 of his judgment as under:

"But first, the maintainability of the petition. Both the learned counsel appearing for respondents have forcefully questioned the maintainability of the petition on the ground that the grant, or refusal to grant a contract cannot be a subject of examination in Constitutional jurisdiction of High Court True; matters regarding enforcement of contractual obligation for performance of a contract are subjects which are not prone to judicial scrutiny because of the limitation in exercise of judicial review. Such matters do involve factual enquiries of some sort or other and law thus prescribes other forums and other remedies to be availed of. But since here the controversy raised is about the process through which decision has been arrived at, and judicial review, in essence, is a review of the manner in which decisions taken by public decision makers the matter aptly falls within the competence of this Court. No doubt, this is not the arena for thrasing out private disputes regarding contracts but a statutory corporation being involved in the decision making reverses the position. There is no prohibition in law or authority to entertain the petition. The scope of exercise of Constitutional power of High Court in matters of contract has been examined variously. It has been laid down in Pacifice Multinational (Pvt.) Ltd. v. Inspector General of Police PLD 1992 Kar. 283 and Abdullah and Company vs. Province ofSindh 1992 MLD 292 that an arbitrary, capricious or unfair exercise of discretion in the grant of public contracts by functionaries of State renders the exercise to judicial review. Maintainability of the petition, thus is not controvertible".

1. Likewise in case reported in 1998 CLC 1890 (Lhr) where the sole question was whether the material supplied by M/S. Huffaz Ltd. to Sui Northern Gas Pipe Lines were exempted from liability of payment of sales taxs, there was no question of existence of any binding contract between the parties, hence it is distinguishable on facts and law and has no direct bearing on the facts of the instant case.

2. In an identical case reported in 1994 SCMR 1738 (1710), it was heldby the Hon'able Supreme Court that the successful bidder who had failed to satisfy some pre-requisites for the conclusion of satisfied shares had no right which could be enforced through the Constitutional jurisdiction. Leave to appeal was refused by the apex Court.

3. Last but not the least; Mr. Abdul Hafeez Pirzada, Advocate, the learned cou nsel for the petitioner, with his haracteristic lucidity and orensic skill argued with great vehemence that the respondents were bound to afford an opportunity of hearing to the petitioner before rejecting his bid. The respondents have, therefore, violated the well established principle of audi altermpartem (no body should be condemned unheard).

4. Before dealing with this contention it will be useful to have a general idea of the concept "Natural Justice" and the board principles governing its application or exclusion in the construction or administration of statutes and the exercise of judicial or administrative powers by an authority or tribunal constituted thereunder.

5. Well then, what is "Natural Justice"? The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight- jacket of a cast-iron formula. Historically, "Natural Justice" has been used in a way "which implies the existence of moral principles of self evident and unarguable truth", Natural justice" by Paul Jackson, 2nd End. Page 1. In course of time, judges murtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "Natural Justice " and "Natural Law". "Natural Justice" was considered as "that part of Natural law which relates to the administration of Justice". Rules, of "Natural Justice" are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules.

6. But two fundamental maxims of Natural justice have not become deeply and indelibly ingrained in the common consciousness of mankind, as per eminently necessary to ensure that the law is applied impartially, objectively and faily. Described in the form of Latin tags these twin principles are (i) audi alterant partem (no-body should be condemnedunheard) and (ii) nemojudex in resua (no body should be a judge in his own case or cause). For the purpose of the question posed above, we are primarily concerned with the first.

7. The rules of "Natural Justice" can operate only in the areas not covered by any law validly made. They can supplement the law but cannot supplant it. If a statutory provision either specifically or by inevitable implication exclude the application of the rules of "Natural Justice", then the Court cannot ignore the mandate of the legislature. Whether or not the application of the principles of Natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory powers, depends upon the language and basic scheme of the provisions conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power.

.34. The maxim audi alteram partem has many facets. Two of them are fi'i notice of the case to be met; and (b) opportunity to explain. This rule is universally respected and duty to afford a fair hearing in Lord Loreburn's oft-quoted language, is "a duty lying upon every one who decides some thing", in the exercise of legal power. The rule cannot be scarified at the alter of administrative convenience or coelerity; for, "convenience and justice"~as Lord Atkin felicitously put it are often not on peaking terms". General Council of Medical Educuation vs. Spakman (1943) AC 627 at Page 638.

1. In the instant case, the Commission had vast discretionary powers to reject a highest bid without assigning any reason as is evidence from "Instruction to bidders" which can legitimately be termed as a policy letter of Respondent No. 2 to the bidders. Compliance of which was imperative, hence the application of the well established principle of audi alter partem was not applicable in the instant case and it was not applicable in the instant case and it was not obligatory for the respondents to afford an opportunity of hearing to the petitioner before rejecting his offer.

2. The upshot of the above discussion, therefore, is that the petitioner has got no vested right to compel the respondent to accept his bid on the sole ground that he was the highest bidder. Assuming that the bidders participating in the bid process make a pool among themselves and offer to purchase some public property on a ridiculously low price, shall it be legal, valid and logical to argue that public property must be surrendered in favour of someone simply because he is the highest idder. Since the petitioner is not clothed with any right in the auctioned property, therefore, he has no locus standi to challenge the business of the respondents through a writ of mandamus which can only be issued in respect of a legal right. Hence the instant writ petition is not competent. Reliance may be placed on 1997 CLC 1288.

3. Petitioner has no merit which stands consequently dismissed. (A.P.) Petition dismissed.

PLJ 2001 Lahore 334

[Rawalpindi Bench Rawalpindi]

Present: MUMTAZ ALI MlRZA, J.

MANAGING COMMITTEE REVENUE EMPLOYEES, CO-OPERATIVE HOUSING, SOCIETY, RAWALPINDI through its SECRETARY-Petitioner

versus

SECRETARY CO-OPERATIVE SOCIETIES GOVERNMENT OF PUNJAB LAHORE and 3 others-Respondents

W.P. No. 2489 of 2000, decided on 24.10.2000. Co-operative Societies Act, 1925 (VII of 1925)--

—Ss. 54, 54-A & 64-Constitution of Pakistan (1973) Art. 199-Refusal to grant interim relief to petitioner against election scheduled to be held on specified date, challenged through constitutional petition-Maintainability-EntitJement of petitioner to seek interim relief against election-Petitioner's plea that its members did not submit resignations on account of flawed election was repelled for non-production of record which was in possession of such committee—While urging a plea before Court or Tribunal, factual foundation has to be laid on basis of record/ evidence-Non-production of record of general body meeting of society would indicate that the same was with held for the reason that such record would belie plea raised by petitioner as to the defective character of general body meeting-Admission of petitioner's appeal to regular hearing by Appellate Authority would only mean that petitioner had a prima facie case in its favour-Person seeking interim relief, however, had not only to show that he has & prima facie case in his favour but he has also to establish other two ingredients before the Court viz. ; balance of convenience and irreparable loss-Balance of convenience and irreparable though have no relevance for admission of suit/appeal for regular hearing yet the same are essential ingredients for grant of interim relief-Order of Registrar Co-operative Societies in appointing Administrator for holding fair and impartial election was perfectly legal order-Various contentions against holding of election of society were essentially factual in nature which were denied by respondents-Rival contentions of parties could not be determined by the High Court in exercise of its constitutional jurisdiction without recording evidence, which exercise could not be undertaken by the Court in such proceedings-Another reason for non-exercise of Constitutional jurisdiction was that appeal of petitioner against order of Registrar for holding election was still pending before Secretary-Petitioner challenging non-grant of interim relief had a alternate remedy of revision which he had failed to avail and the same would stand in the way of High Court for assuming jurisdiction in the matter-Constitutional petition being misconceived was dismissed in circumstances. [Pp. 338-342] A, B, C, D, E & F

1985 CLC 792; 1987 CLC 1630; 1983 Law Notes 630 and 1989 SC 396. Rqja ImranAziz and Mr. Munawar-us-Salam, Advocates for Petitioners.

Date of hearing: 24.10.200a

order

The instant Constitutional petition has been instituted by the Managing Committee of the Revenue Employees Co-operative Housing Society Rawalpindi to call in question the order dated 12.10.2000 passed by the Secretary Co-operative Societies, Government of the Punjab, Lahore, whereby he has refused to grant interim relief to the petitioner Committee against the election scheduled to be held on 29.10.2000 for electing office bearers/members of the Managing Committee of the aforesaid Society. The facts forming background of the order passed by Respondent No. 1, Secretary Co-operatives, Government of the Punjab, Lahore, are that the Deputy Registrar Co-operative Societies, Rawalpindi, made a report on 26.6.2000 to the Registrar, Co-operative Societies, Lahore, that the Managing Committee of the Revenue Employees Co-operative Housing Society Rawalpindi had resigned in the general body meeting and proposed a care-taker set up. Accordingly, the Registrar, Co-operative Societies, Lahore, appointed a care-taker set up comprising the Deputy Registrar Co-operative Societies, Rawalpindi, as convenor and M/s. Sardar Muhammad Akram Liaqat Ali Khan, Sher Khan Niazi and Qazi Abdul Qayyum as members. The task assigned to this care-taker set up by the Registrar was to hold elections in a fair and impartial manner. The care-taker set up accordingly announced the holding of elections of the office bearers/members of the Committee. On the announcement for the holding of the election as aforesaid being made by the convenor of the care-taker set up, the Managing Committee of the aforesaid Society approached the Registrar, Co-operative Societies, Lahore, vide its application made under Sections 54 and 64-A of the Co-operative Societies Act, 1925 and prayed that the election announced by the care-taker set up may be cancelled as the petitioner Committee had already been duly elected and that the petitioner Committee may be ordered to be restored and the care taker set, up undone. The Registrar declined the petition of the petitioner Managing Committee for its restoration. He simultaneously removed the care-taker set up appointed vide the aforesaid order. The Registrar further appointed the Deputy Registrar Co-operative Societies, Rawalpindi, as administrator of the Society with immediate effect with direction to him to hold the election through an Election Sub-Committee to be appointed by him as per law/rules with immediate effect. •The Registrar further directed that the elections will be held within 40 days of his order and that the administrator appointed by him will not indulge in any business relating to the real estate of the Society. Finally, the Registrar directed the administrator that the proceedings of the elections should he held in a fair, impartial and transparent manner keeping all likely contesting members/candidates in confidence. This order was passed by the Registrar on 18.9.2000. Feeling itself aggrieved of the order dated 18.9.2000 passed by the Registrar Co-operative Societies Lahore as aforesaid, the petitioner Managing Committee Revenue Employees Co-operative Housing Society Rawalpindi preferred an appeal under Section 64 of the Co-operative Societies Act, 1925 and questioned the appointment of the Deputy Registrar Rawalpindi as the administrator and the holding of elections under his supervision by a Sub-Committee. The appeal preferred by the petitioner Managing Committee was accompanied by a separate petition, whereby it was prayed that pending disposal of the appeal preferred by the Managing Committee against the order of the Registrar, the operation of the Registrar's order may be suspended. While the appeal preferred by the Managing Committee was entertained and admitted to regular hearing by the Secretary Co-operatives, Government of the Punjab, Lahore, he declined the request of the Managing Committee for suspending the operation of the order of the Registrar which was under challenge in appeal. It is this order of the Secretary Co-operatives, Government of the Punjab, Lahore, declining the suspension of the order of the Registrar which has been assailed through the instant Constitutional petition.

1. M/s. Munawwar-us-Salam and Raja Imran Aziz, Advocates, appeared on behalf of the petitioner and raised the following contentions-

2. that the members/office bearers of the petitioner were duly elected as such in the elections held on 20.2.2000 and as such there was no legal justification whatever for holding the elections afresh for the election of office bearers/members of the Managing Committee over again through the electionprocess announced and scheduled to be held on 29.10.2000;

3. that the whole proceedings set afoot by the Deputy Registrar and the Registrar were based upon the plea that the members/office bearers of the petitioner had resigned in the general-body meeting of the Society. Learned counsel for the petitioner contended that the assertion of the Deputy Registrar and the Registrar as to the members/office bearers of the petitioner having resigned was wholly incorrect and that theyhad not resigned at all and the whole process of election initiated afresh on the said assumption as to resignations is wholly uncalled for;

4. that the general body meeting of the Society in which it had been resolved that consequent upon the resignations of he members/office bearers of the petitioner, a void had been created and as such the holding of elections afresh was imperative, was defective inasmuch as the required number ofmembers for constituting quorum for the said meeting was not complete. Thus, very meeting of the general body being opened to question, no proceedings should have been ordered by the Deputy Registrar/Registrar on its resolution to the aforesaid effect;

5. that a perusal of the order dated 12.10.2000 passed by the Secretary Co-operatives, Government of the Punjab, Lahore, would show that the Secretary while declining the request ofthe petitioner to suspend the order of the Registrar dated 8.9.2000 did not apply his conscious judicial mind;

6. that the order passed by the Secretary Co-operatives, Government of the Punjab, Lahore, was a ontradiction in terms, in that while he admitted the appeal to regular hearing, he declined the prayer of the petitioner for the suspension of the ordei of the Registrar Co-operatives, Lahore which wasappealed against before him. Learned counsel submitted that having admitted the petitioner's appeal to regular hearing, theSecretary was bound to suspend the order appealed against;

7. that as a result of the proposed election, a new Managing Committee shall be installed into office and the only body to be affected by such installation would be none but the petitioner.The petitioner Committee's members/office bearers having been duly elected, the order declining the suspension of theorder of the Registrar and consequently the process of election was going to work great hardship on the petitioner.

8. I have considered and evaluated the submissions of learned counsel for the petitioner hereinabove reproduced verbatim. I shall take up the contentions raised by learned counsel for the petitioner one by one. The first contention raised as hereinabove reproduced was that the office bearers/members of the petitioner having been duly elected for the elections held on 20.2.2000, there was no justification for holding the election over again for the election of the new office bearers. A perusal of the report made by the Deputy Registrar Co-operatives, Societies, Rawalpindi to the Registrar Co-operatives, Lahore, and the order passed thereon by the Registrar Co-operatives Lahore and narration of facts contained therein would show that the said functionaries came to the conclusion that the election held on 20.2.2000 was defective in more than one respect and as such it was not an election at all to which any sanctity could be attached. The then Registrar Co-operatives having been apprised of the said defects in the holding of election on 20.2.2000 did not act in the matter and failed to attend to the defects pointed out to him. In any event, the result of the election held on 20.2.2000 had to be placed before the general body of the Society and had to be approved by it. The conclusion arrived at by the Registrar as to this was that this approval of the election by the general body of the Society was never accorded. The second contention of learned counsel for the petitioner was that the only assumption on the basis whereof fresh elections were directed to be held was that the members/office bearers of the petitioner had resigned in the general body meeting held on 12.3.2000 and that this conclusion of the Deputy Registrar/Registrar was wholly unfounded, in that the office bearers/members of the petitioner never resigned from their respective offices. Now, this assertion of learned counsel for the petitioner could have been established by them by producing the record of the meeting of the general body. In the absence of the said record, it is plain that their assertion remained only an assertion without any proof in its support. Needless to say that in the absence of proof of this assertion, the same cannot be accepted to be gospel truth. The third contention of learned counsel for the petitioner was that the meeting of the general body was defective in that the required number of members of the Society was not present in the meeting and was necessary to constitute quorum for the meeting in question. The meeting of the general body viewed in this perspective as per learned counsel for the petitioner was such as could not be termed to be a meeting of the general body in accordance with the law and the rules applicable, They plead that no sanctity as such could be attached to such a meeting of the general body as lacked quorum. I am constrained to observe that this assertion of learned counsel for the petitioner as to the defective character of the meeting of the general body is an assertion without any proof in support of it. They only proof that could possibly be given by the petitioner was to give the record of the minutes recorded in respect of the said general body meeting of the Society. Now, this contention of learned counsel for the petitioner gives rise to two situations. One that the petitioner is not in possession of the said minutes/record of the meeting of the general body of the Society. Second, that the petitioner did have the record in its possession but it did not think it fit to produce the same to prove its assertion as to the defective character of the meeting of the general body on account of lack of quorum. If it is the case of the petitioner that the said record of the minutes of the meeting of the general body is not in its possession, then it would mean that it has raised a plea before the lower and the appellate forum in support whereof the petitioner had nothing with it. It is settled proposition of law that for urging a plea before a Court or Tribunal, sf factual foundation has to be laid on the basis of record evidence. If it is the £ase of the petitioner that it does not possess any record in support of the ^aforesaid plea, it would mean that the plea raised on behalf of the petitioner lacks factual foundation to sustain it. The other situation as suggested herein would be that the requisite record as to the meeting of the general body is with the petitioner but it has not been produced by it. The settled legal position as to this is that if a person is in possession of a piece of evidence in support of his case but he does not produce the said evidence before a Court or Tribunal seized of that person's case, the presumption would be that the evidence not produced was withheld by the said person for the reason that if produced it would have gone against his version of the case. Therefore, on account of the non-production of the record of the general body meeting of the Society, the presumption must be drawn against the petitioner that it has withheld the said record for the reason that it belies the plea raised oaj behalf of the petitioner as to the defective character of the general body' meeting. The next contention of learned counsel for the petitioner was that al\^ bare perusal of the order passed by the Secretary Co-operatives Government! of the Punjab, Lahore, declining the suspension of the order of the Registrar and the process of election would show that the Secretary, appellate authority, did not apply its conscious judicial mind to the facts as urged before him. There could be no better answer to this assertion of learned counsel for the petitioner than to reproduce herein below verbatim the reasons advanced by the Secretary for declining the suspension of the order of the Registrar and the process of election. The Secretary in his order under challenge held as follows:

"His request for suspending the operation of the impugned order has been dispassionately considered. Without making any comments on the contents of the appeal, it can be safely stated that the process of elections has already been set into motion, A notice in the press has already appeared in the daily "Nawai VVaqt" of Rawalpindi/ Islamabad dated 12.10.2000 carrying the schedule for elections to be held on 29.10.2000. The place and time for elections has been mentioned. All the members have been invited to participate in the meeting of the General Body. The call to the electorate has, thus, been given. As stated in the impugned order (although subject to further examination), the previous elections were flawed. That is why, the elected management could not be installed into office Instead, a Care-taker Managing Committee functioned and even now the Society is administered by an Administrator. The elections scheduled for 29.10.2000 will remove the persistent ambiguities. In this view of the latest position of the matter, I do not feel like agreeing to accept the prayer for suspension of the operation of the impugned order. The prayer for the interim relief is, therefore, not granted."

Calling such a speaking and a well-reasoned order of the appellate authority as having been passed without application of conscious judicial mind is nothing but a curel joke. What other application of conscious judicial mind did the learned counsel for the petitioner expect of the appellate authority is something which is beyond the comprehension of an ordinary prudent person. Learned counsel for the petitioner felt aggrieved of the order passed by the appellate authority declining the interim relief on the ground that the same was an order which could be termed is a contradiction in terms. I arn afraid if \:!x:.s contention of learned counse! for the petitioner has any force, either. What learned counsel for the petitioner contended was that in the event of an appeal being admitted to regular hearing, the grant of interim relief was sine qua nan. To say the least, this assumption of learned counse for the petitioner is also such as does not deserve serious notice. The admission of a suit or appeal for regular hearing is one thing and the grant of interim relief pending the decision of the suit/appeal is another thing. Legal justifications fot the two are different. The admission of the suit/appeal for regular hearing would only mean that a party filing the suit or the appeal has & prima facie case in its favour. The fact that the petitioner's appeal was also admitted to regular hearing by the appellate authority would only mean that the petitioner/appellant had a. prima facie case in its favour. We know it so well hy now that a person seeking interim relief against his adversory has not only to show that he has & prima facie case in his favour but he has also to establish other two ingredients before the Court, viz. balance of convenience and irreparable loss. These three considerations are a must for the grant of interim relief. However, the ingredients at Serial Nos. 2 & 3 viz.balance of convenience and irreparable loss have no relevance for the admission of the suit/appeal for regular hearing. For, for the admission of the suit/appeal the Court has to tentatively assess the merits of a party's case before it and has to be satisfied that it has a prima facie case for the jadniission of the suit or appeal. Such is not the position with respect to the Iprayer for the grant of interim relief The merits have not to be gone into. "The only consideration to form the basis of an order granting interim relief is the aforesaid three ingredients. Having referred to the three ingredients required to be established by a party asking for interim relief, it appears necessary to add that the presence of one or the two of the aforestated three ingredients is not sufficient for the grant of interim relief. As for example, a party may have a very good prima facie case, yet it may not have the balance of convenience in its favour as also the irreparable loss. It, therefore, has been settled by now by a preponderance of judicial pronouncement that in order to entitle a party to the grant of interim relief, all the three aforestated ingredients must be present and co-exist. In the event of even one ingredient being missing, the party cannot be held to be entitled to the grant of interim relief as a matter of right From the reasons which prevailed with the Secretary, appellate authority, for refusing the interim relief and which have been reproduced hereinabove, it would appear that the appellate authority was of the view that the whole process of election having been set afoot, machinery put into gear and all the arrangements having been made for the election, the balance of convenience lay not in favour of suspending the process of election, it was rather in favour of the election being allowed to be held. No exception can be legitimately taken by the petitioner's learned counsel to this conclusion of the appellate authority nor can any fault be found with the same by dint of any reason or logic. Finally, the petitioner's learned counsel contended that the petitioner having been duly elected, holding of fresh election and the substitution of the petitioner by the newly elected Managing Committee would work great hardship on the petitioner. As hereinabove noticed, the reasons finding favour with the Deputy Registrar/Registrar Co operatives or holding the election to elect the new members/office bearers of the Managing Committee of the Society were that the elected members of the Managing Committee had resigned in the meeting of the general body of the Society and a void had been created.

Having been driven to this conclusion, the Deputy Registrar/Registrar directed in the first instance to set up a care-taker set up to save the affairs of the Society from chias and confusion and to bring about an orderly management of its affairs The bona fides of the Registrar for taking the action which he took are apparent from the fact that in the first instance he directed to have a care-taker set up brought into office. Realizing, however, afterwards that this arrangement of care-taker set up might also run contrary to the interest of the Society for the reason that the members of the care-taker set up had been the members of the previous committee also and in running the affairs of the Society, they might be motivated by considerations which could be termed as partisan in character, the Registrar proceeded to direct the removal of the care-taker set up as well and appointed instead the Deputy Registrar as the administrator to run the affairs cf the Society and the process of election fairly, honestly and justly. The '.as: mentioned contention of learned counsel for the petitioner cannot, therefore, be sustained viewed in the light of the reasons which prevailed v-i:h the Registrar for appointing an administrator. This order of the Registrar, in the facts and circumstances of the case, was a perfectly legal :rder. If it was so, then the law must take its course and the order of the Registrar deserves to be maintained and upheld. No matter what hardship it causes to any one.

4, The aforesaid discussion was aimed at evaluating the contentions raised on behalf of the petitioner by its learned counsel and to show their impropriety. The Constitutional petition instituted by the petitioner apart frcm the aforestated reasons, is such as cannot legally proceed. A perusal of the various contentions raised on behalf of the petitioner by its learned counsel would show that the same are essentially factually in nature. The factual assertions raised by the petitioner in the Constitutional petition are denied by the respondents. This being the nature of the rival contentions of the parties, it cannot be determined by this Court in the exercise of its Constitutional jurisdiction without recording evidence as to whether the assertions of the petitioner are correct or those of the respondents are so. Needless to say, such an exercise cannot be undertaken by this Court in the exercise of its Constitutional jurisdiction. There is yet another angle for examining the maintainability of the petitioner's Constitution petition. It has not been denied by learned counsel for the petitioner that the petitioner's appeal is still pending with the Secretary Co-operatives, Government of the Punjab, Lahore, and awaits its disposal on merits. What has been brought r\ under challenge before this Court in its Constitutional jurisdiction is an order which is inter locutory in nature and whereby the appeal has not been disposed of but the prayer of the appellant as to the grant of interim relief has been refused. Such being the character of the order impugned in this Constitutional petition, the Constitutional petition directed as it is against the interim order is unmaintainable. For this view of the law which I take, I am fortified by the law laid down in Mst. Amera Saeed vs. Syed Hassan Hamid etc. (1985 CLC (Lah.) 792), Mst. Hafe.ez Barohi vs. Guardian Judge/Family Judge (1987 CLC (Lah.) 1630) and Syed Sajad Husain us. Syed Izhar Husain etc. (1983 Law Notes (Lahore) 630), wherein it has been laid down that no writ is competent against an order which is interim/inter locutory in nature. There is yet another dimension to examine the maintainability of the petitioner's Constitutional petition. The Legislature while enacting the Co-operative Societies Act, 1925 made provision therein for filing of appeal and revision by person feeling aggrieved at the ands of the dep rtmental authorities. The grievance arising out of the exercise of powers by the departmental authorities under the Act must be brought under challenge before the appellate/revisional authorities provided in the Act and recourse cannot be had for seeking relief against the action .impugned to the High Court in its Constitutional jurisdiction. Alternative remedy has been provided to the petitioner to seek redress of its grievance by having recourse to the appellate and the revisional authority. The petitioner fully conscious of this fact has had recourse to the appellate authority and has filed its appeal before it. The presence of this alternative emedy for t he petitioner would stand in the way of this Court for assuming jurisdiction in £ the matter. When the law provides alternative forum for the redress of the grievance of a party at the hands of the department, resort can be had to that forum alone. The propriety of the order passed by the Secretary can \»- tested on yet another touch stone. In the case reported as PLD 1989 C "36 titled as Election Commissioner of Pakistan vs. Javed Hashmi and otl. .-s- the Honourable Supreme Court refused to stay the process of gei.,-ral election set afoot pursuant to the schedule announced by the Election Commission of Pakistan on the giound that in the event of the person aggrieved having any grievance arising out of and in connection with theelection, the same can be raised by him before the Election Tribunal constituted for the purposes of redressing such grievance. Having concluded to the aforesaid effect, the Honourable Supreme Court allowed the appeal of the Election Commission of Pakistan against Javed Hashmi who was seeking to have the process of election stayed. Applying the principle enunciated by the Honourable Supreme Court in he aforestated judgment, the availability of appellate/revisional forum to the petitioner for seeking its redress againstthe election ordered to be held by the respondents would bar the maintainability of the Constitutional petition before this Court. There is in rthe said case it was availability of the Election Tribunal which barred the [jurisdiction of the High Court, Here it is the availability of lappeJlate/revisional forum for seeking redress by the petitioner of its I grievance arising out of and in connection with the election in question r which would bar the petitioner's Constitutional petition. For all the! aforestated easons and viewed from any angle, the petitioner's i Constitutional petition is such as cannot legally proceed and is wholly mis-

icouceivpo The same is dismissed as such in liminc.

(A.A. J.S.) Petition dismissed.

PLJ 2001 Lahore 343

Present: CH. IJAZ AHMAD, J. FARRUKH HASSAN ZAIDI-Petitioner

versus

CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE and 5 others-Respondents

Writ Petition No. 5537 of 2000, heard on, 21.11.2000. (i) Constitution of Pakistan, 1973-

—Art. 199-Relief granted by High Court under Article 199 of Constitution must relate to grievance of writ petition and not to grievance of any third person. [P. 437] E & F

19658 SCMR 995; PLD 1973 Lahore 500; PLD 1989 Lahore 26; 1988 CLC rel.

(ii) Constitution of Pakistan, 1973--

—-Art. 199-Wapda School--Non-Wapda Employee's children-Admission of-Taking away right of-Question of-Petitioner's children got admission in Wapda school on basis of admission policy dated 18.1.1990 formulated for children of non-Wapda Employees--By afflux of time, petitioner's children were promoted in higher classes-On 29.3.2000, Wapda formulated fresh admission policy qua non-Wapda students, whereby their admission was stopped forthwith in all Wapda Institutions and their parents were directed to arrange admission of their children in other schools from next session Le. after 31.3.2000—Challenge to—Held: In given circumstances, principles of promissory estopple and locus poenitentiae was attracted therefore, vested right once accrued could not be taken away by notification retrospectively as the office order had prospective effect and not retrospective effect-Petition accepted.

[P. 437] A, B, C & D

PLD 1991 SC 14; NLR 1999 Civil 563; 1995 MLD 15; 1991 MLD 1605; PLD 1969 SC 407; PLD 1964 SC 503; 1992 SCMR 1652; 1997 SCMR 15;

1997 SCMR 1466 ref.

(iii) Office Order--

—-Office order has prospective effect and not retrospective effect. [P. 437] D (iv) Vested Right--

—-Vested right once accrued cannot be taken away by notification retrospectively. [P. 437] B

Kh. MukhtarA. Butt, Advocate for Petitioner.

M/s. Mr. Ilyas Khan, Advocate and Mr. A.R. Madni, Advocate for Respondents.

Date of hearing: 21.11.2000.

judgment

I intend to decide the following writ petitions by one consolidated judgments having similar facts and law:~

1. W.P. 5537/2000

2. W.P. 5684/2000

3. W.P. 9883/2000

4. W.P. 13934/2000

5. W.P. 13933/2000

6. W.P, 9507/2000

7. W.P. 9709/2000

8. W.P. 9718/2000

9. W.P. 9794/2000

10. W.P. 9795/2000

11. W.P. 11157/2000

12. W.P. 9873/2000

13. W.P. 11037-2000

14. W.P. 11036-2000

15. W.P. 9243-2000

16. W.P. 8570-2000

17. W.P. 8262-2000

18. W.P. 7959-2000

19. W.P. 7730-2000

20. W.P. 13935-2000

21. W.P. 13936-2000

22. W.P. 13937-2000

23. W.P. 13938-2000

24. W.P. 13939-2000

25. W.P. 13940-2000

26. W.P. 13941-2000

27. W.P. 16872-2000

28. W.P. 11078-2000

29. W.P. 21392-2000

2.The brief facts out of which the present writ petitions arise are that the competent authority of the respondents has formulated policy regarding non-WAPDA Employees of the students in order to improve the financial position of the Institutions of WAPDA on 18.1.1990. The petitioner's daughters/sons got admissions in the respective Institutions of the respondents i.e. WAPDA Boys High School Shalamar Town, Lahore and WAPDA Girls High School Shalmar Town, Lahore. By afflux of time all the petitioner's children were promoted in the higher classes respectively. Respondents formulated Fresh Admission Policy quathe non WAPDA student on 29.3.2000 and directed the Principal of the Institutions that admission of non-WAPDA children be topped forthwith in all WAPDA Institutions except the classes 8th and 9th to complete the academic session. The Headmistress and Headmaster of the classes informed the parents of the children on 29.3.2000 with the direction to arrange admission of their children in other schools of the Institutions from the next session i.e. after 31.3.2000.

1. The learned counsel of the petitioners submit that petitioners' children got the admission on the basis of the policy dated 18.1.1990 and vested right has accrued to the petitioners and their children. Respondents have no authority to take the aforesaid right of the petitioners through office order retrospectively. They further submit that principle of locus potentia is attracted in favour of the petitioners. They further submit that the impugned office order is very harsh and un-reasonable and respondents have to pass the office order dated 23.4.1988 in parental jurisdiction to save the career of the children. They further submits that they must exercise their discretion fairly and justly. In support of their contentions they relied upon the following judgments:--

PLD 1991 S.C. 14.

Chairman Regional Transport Authority vs. Pakistan Mutual Insurance Company.

NLR 1999 Civil 563

Gel Caps vs. Federation of Pakistan.

1995 MLD 15

M/s.Presson Manufacturing Ltd. vs. Secretary Ministry of Pet'oleum and Natural Resources.

1991 MLD 1605

Muhammad Balal vs.The Principal National College Pakistan Engineering Faisalabad.

PLD 1969 S.C. 407

Pakistan through Secretary Ministry of Finance vs. Muhammad Hamayat Ullah Farooqi

PLD 1964 S.C. 503

Lt Col. G.L. Battachary vs. The State

1992 SCMR 1652

M/s. Army Welfare Sugar Mills vs. Federation of Pakistan.

1997 SCMR 15

Chairman SelectionCommittee/Principal King Edwerd Medical College vs. Waseem Zameer Ahmad.

1. The learned counsel of the respondents submitted that respondents formulated Policy on 23.4.1988 with the following condition:--

"c. Educational Institutions will be allocated a budget to the Education Directorate keeping in view the number of students/staff in the Schools/Colleges. A proper account of all income and expenditure will be kept by cash institution which will be mentioned by Education Directorate."

The competent authority subsequently modified the same vide Policy letter dated 18.1.1990. Thereafter the same was modified by the competent authority through policy letter dated 16.4.1999. The condition was imposed by the competent authority to the extent that admission of children of non-WAPDA Employees/outsiders would be restricted to 5 per cent provided 15 per cent seats are available in a class as laid down in office order dated 23.4.1998. On the basis of the aforesaid notification the learned counsel of the respondents submit that the Institutions restricted to a very limited number of non-WAPDA Employees children. The intimation was conveyed to the parents of the children as far back as 29.3.2000. They further submit that classes for the next academic year in every Educational Institutions start from first week of April and admission in such Institutions continued upto September, 2000 but the petitioners did not try to get their children be admitted in other Institutions. They further submit that WAPDA authorities are competent to govern and control the admission in their Institutions. The Institutions were established basically for the children of the employees of the WAPDA. WAPDA has to afford financial aid to the Institutions in question, therefore, non-WAPDA employees cannot acquire any right of such concession. It was previously provided to them against restricted number of seats. They further submits that the petitioners children have no vested right to continue their education in the Institutions in question. Non-WAPDA Employee's children belonging to classes 9 and 10th were granted permission to continue their studies, which is not inviolation of Article 25 of the Constitution as the reasonable classification is permissible in the eyes of law. They further submit that in case the office letter is set aside then the respondents have to face the administrative difficulties. In support of their contentions they relied upon Khurram Pervaiz vs. University of Engineering and Technology Lahore (1997 SCMR 1468)

i. I have given my anxious consideration to the contentions of the learned compel of the parties and perused the record myself. It is admitted , petitioner's children got admission in the Institutions in question On u~; i> ;,is of the policy letters of the respondents dated 18.1.1990, 234.1998, 16.4.1999, children of the petitioners were also promoted in the higher classes respectively. Respondents formulated fresh admission policy qua the non-WAPDA Employee's children on 29.3.2000 and directed the Principles of the Institutions that admission to non-WAPDA children be stopped forthwith in all WAPDA Education Institutions except students of 8th and 9th classes to complete the session. Most of the petitioners filed writ petitions and respondents were directed to allow petitioners' children to continue their education provisionally subject to the payment of dues to respondents in accordance with ]aw. The principle of Promissory Estoppel is attracted in the given circumstances and it is well known principle that vested right once accrued cannot be taken away by notification retrospectively as is held by the Hon'ble Supreme Court in the following judgments:--

PLD 1991 S.C. 546 Salauddin 's case 1992 SCMR 1652 Army Welfare's case 1996 SCMR 83

Collector Customs and Central Excise Peshawar vs. M/s. Raees Khan Ltd.

The principle of Locus Ponitentia is also attracted in the given circumstances of the case as is held by the Hon'ble Supreme Court of Pakistan reported in PLD 1969 S.C. 407 Pakistan through Secretary vs. Muhammad Hamayatullah Farooqi and PLJ 1996 S.C. (CS) 405 Director Social Welfare!\ NWFP vs. Saad Ullah Khan. It is settled proposition of law that office order has prospective effect and not retrospective effect. It is settled proposition of law that the relief granted by this Court under Article 199 of the Constitution must be in relation to his grievance and not toftie grievance of any third person as per principle laid down by the Hon'ble Supreme Court in Ch. Jalal-ud-Din vs. Settlement Commissioner Lahore 1968 SCMR 995. f

In view of what has been discussed above the writ petitions are accepted to the extent of the only petitioners' own children to avoid the administrative problems to'the respondents. The writ petitions which are filed by the petitioners over and over their children, to that extent the writ petitions are dismissed. It is pertinent to mention here that specific order is passed in W.P. No 5684/2000 and the writ petition over and above the petitioners' children was dismissed vide order dated 15.5.2000 as per principle laid down by the superior Courts in the following judgments:

PLD 1973 Lahore 500

Anjuman Araian and 5 other's case.

1988 CLC

Abdul Qadoos Bari's case

PLD 1989 Lahore 26

Lt, Col. Nafees-ud-Din Ansari's case.

The writ petitions are disposed of with the aforesaid observations, (S.A.K.M.) Disposed of accordingly.

PLJ 2001 Lahore 348

[Bahawalpur Bench Bahawalpur]

Present: SH. ABDUR RAZZAQ, J, SOHAIL AHMAD-Petitioner

versus

ADDL. DISTRICT JUDGE and 2 others- Respondents W.P. No, 3387 of 2000, heard on 30.11 2000.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 13-Constitution of Pakistan (1973), Art. 199-Ejectment of petitioner (tenant) from demised premises-Tenant was also required to pay rent of premises which allegedly was outstanding against him-Tenant who had denied relationship of landlord and tenant claimed that no issue relating to default having been framed, Rent Controller and Appellate forum had no jurisdiction to order payment of rent-Validity-No issue regarding default on the part of petitioner had been framed and rightly so, as relationship of landlord and tenant was denied by petitioner-Such being the factual position, even if it be assumed that tenant had not paid rent for the specified period, no order for recovery for the same could be passed by Rent Controller and only remedy available to landlord was to file suit for the recovery of the same—Order of Rent Controller as affirmed by the Appellate forum to the extent of recovery of rent was set aside while that of ejectment was maintained in ciroirnstances--

[P. 350] A

Sardar Jamshed Iqbal Khakwani, Advocate for Petitioner, Mr. M.A. Rasheed Chaudhry, Advocate for Respondents, Date of hearing: 30.11.2000.

judgment

Briefly stated the facts are that Mst Khurshid Begum landlord/Responded No. 3 filed an ejectment petition against the tenant/petitioner for his eviction from the house described fully in the head note of the ejectment petition. The tenant petitioner resisted the said petition by submitting written statement on 1.6.2000. The tenant/petitioner specifically denied the relationship of landlord and tenant between the parties.

1. From the divergent pleadings of the parties the learned Rent Controller framed the following issues:--

2. Whether there exists relationship of landlord and tenant between the parties? OPA

3. Whether the petitioner has no cause of action to file present petition? OPR

4. Whether the respondent is entitled to special costs U/S. 35-A CPC? OPR

5. Relief.

6. In support of her stand the landlord/respondent adduced evidence in the form of affidavits and later on the said deponents were subjected to cross-examination. Similarly the tenant/petitioner also filedaffidavits and the deponents were subjected to cross-examination.

7. After going through the evidence produced by the parties, the learned Rent Controller vide order dated 5.5.2000 accepted the ejectment petition and ordered the eviction of the tenant/petitioner. The trial Courtwhile accepting the ejectment petition also ordered the tenant to pay a sum of Rs. 21,000/- as rent from October, 1997 to April 2000 at the rate of Rs. 700/- per month. Feeling aggrieved of this ejectment order, the tenant/petitioner filed an appeal which also met the same fate, as is evidentfrom the order of learned Additional District Judge dated 15.7.2000.

8. The tenant/petitioner has challenged the orders of the Courts below to the extent of recovery of rent only through this writ petition.

9. Arguments have been heard and record perused.

10. The stand of the learned counsel for the tenant/petitioner is that as no issue regarding default had been framed by the learned Rent Controller, so the question of recovery of rent from the petitioner could not arise. He further submits that as a result of these judgments execution proceedings have been initiated and possession has been handed over to the landlord/respondent and now only question of recovery of Rs. 21,000/- is being agitated before the executing Court.

11. Conversely, the stand of the learned counsel for the landlord/respondent is that as relationship of landlord had been held to be existing between the parties and the tenant/petitioner had been adjudged to be liable for the payment of rent at the rate of Rs. 700/- per month w.e.f. October 1997 to April, 2000 so the Rent Controller was justified in ordering the recovery of said rent.

12. The only point which requires determination in the instant writ petition is if the Rent Controller could direct the recovery of rent from October, 1997 to April, 2000 at the rate of Rs. 700/- while passing order dated 5.5.2000? Admittedly the tenant/petitioner denied the existance of relationship of landlord and tenant and it was on this score that Issue No. 1 was framed. A perusal of issues referred above reveals that no issue regarding default on the part of tenant/petitioner has been framed nd rightly so as the relationship of landlord and tenant was being denied by the tenant/petitioner. This being the factual position even if it is assumed for the sake of argument that tenant/petitioner had not paid the rent for the period mentioned in the order dated 5.5.2000, no order for its recovery could be passed by the Rent Controller and the only remedy available to the landlord/Respondent No. 3 was to file a suit for its recovery.

13. In the light of facts stated above the impugned order dated 5.5.2000 of the Rent Controller and judgment dated 15.7.2000 of the learned Additional District Judge, are maintained to the extent of ejectment of the tenant/petitioner. However, the said orders being corum non judice to the extent of recovery of rent are hereby set aside. However, this order shall not effect the rights of the landlord/Respondent No. 3 to effect the recovery of rent due against the tenant/petitioner.

14. With this observation, the writ petition stands disposed of. (A.A.J.S.) Order accordingly.

PLJ 2001 Lahore 350

Present: CH. ijaz AHMAD, J. GHULAM RASOOL-Appellants

versus

SHANA etc.--Respondents R.A. No. 1 of 2001, decided on 16.1.2001. Civil Procedure Code, 1908 (V of 1908)--

—-O.XXIII, R. 1 & O.XLVH, R. 1-Review of judgment of High Court-Constitutional petition filed subsequently was qua the same subject matter and relief which was earlier disposed of on the ground that petitioner does not press the petition, therefore the same was disposed of- Proivsions of C.P.C. are applicable in Constitutional proceedings in term of Supreme Court's judgment in Hussain akhsh's case (PLD 1970 S.C. l)--Object of O.XXIII, R. 1 of C.P.C. is to prevent a plaintiff from filing fresh suit after having failed to conduct the first one with care and diligence-PIaintiff/petitioner has the right to withdraw a suit whenever he desires but cannot file fresh suit on the same cause of action/subject matter-Second suit/writ petition qua the same subject-matter was not maintainable unless and until suit/writ petition has been withdrawn with permission to file fresh suit/writ petition-Petitioner's contention really amounted to challenge correctness of view taken by High Court in impugned judgment-Hearing of case afresh on those points which were heard and decided was clearly beyond the scope of review application- Review application being not maintainable was dismissed in circumstances. [P. 353] A

1999 MLD 3384; 1970 SCMR 141; PLD 1990 SC 596; 1998 CLC 213; PLD 1994 SC 598; AIR 1914 P.O. 249; NLR 1990 Civil 217;

1990 CLC 1334; 1990 CLC 19; 1990 CLC 220; 1973 SCMR 143; 1975 SCMR 473; 1975 SCMR 16.

Ch. Muhammad Rafique Warriach, Advocate for Appellants. Syed Seerat Hussain Naqvi, Advocate for Respondents. Date of hearing: 16.1.2001.

order

The petitioner has filed this application for review of judgment dated 14.11.2000 passed in W.P. No. 2749-87 Ghulam Rasool etc. vs. Shana etc., on

the following grounds:

The aforesaid writ petition was fixed alongwith connected W.P. No. 3861-87 and W.P. No. 2576-88 on 14.11.2000. The other writ petitions could not be taken up as counsel in the aforesaid writ petitions were busy before other Benches of this Court and cases were kept in waiting. Mr. Seerat Hussain Naqvi, Advocate who was not appeared in the aforesaid writ petition raised preliminary objection qua the maintainability of the writ petition filed by applicant. The petitioner's counsel got adjournment to cite some case law but he did not enter appearance thereafter as connected matters were adjourned, therefore, impugned judgment is hit by principle of natural justice. The petitioner filed W.P. No. 5398-86 which was disposed of vide order dated 26J 1987 and thereafter petitioner filed W.P. No. 2749-87 which was admitted to regular hearing. W.P. No. 5398-86 was not finally decided on merits, therefore, principle of res judicata is not attracted. The judgment of this Court is not in accordance with law laid down by superior Courts in the following judgments:

(1999 MLD 3384) Mushtaq Hussain etc. 's case

(1970 SCMR 141) Karim Gull and mothers' case (PLD 1990 SC 596) Maula Bakhsh's case (1998 CLC 213) Raja Bashir Ahmed Khan's case (PLD 1994 SC 598) Shabbir Ahmed's case

2.The learned counsel of Respondents Nos. 1 to 8 submits that judgments cited by the learned counsel of the petitioners is distinguished on facts and law. He further submits that contention of the learned counsel of the petitioners that I did not represent the respondents has no force.

1. I have given m anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that petitioners filed W.P. No. 5398/86 qua the same subject-matter and relief which was disposed of vide order dated 26.1.1987 in the following terms:

"Learned counsel for the petitioners does not press this petition. It is accordingly disposed of,"

The second writ petition qua the same subject-matter and relief is maintainable or not by virtue of Order 23, Rule 1 C.P.C read with Order 2, Rule 2 and Section 11 CPC. It is better and appropriate to reproduce the operative parts of the judgments cited by the learned counsel for the petitioners for the purpose to resolve the present controversy whether the judgments cited by the learned counsel of the petitioners are applicable in the present case or not

1. 1999 MLD 3384 Mushtaq Hussain 's caseThe relevant observation is as follows:

"The contention of the learned counsel for the appellant that the previous suit filed by the respondents was withdrawn simplicitor, therefore, principle of constructive res judicata is attracted has also no force as the appellants have not raised this plea in their written statement as well as in the memorandum of appeal before the 1st Appellate Court."

1. 1970 SCMR 141 Karim Gul's case.The relevant observation is as under:

"It appears to us that the view taken by the High Court finds support from a decision of this Court in the case of Hqji Abdur Rashid Sowdogar v. S.M. Lalita Roy (1) where Munir, C.J. pointed out the differences between sub-rules (1) and (2) of Rule 1 of Order XXIII of the Code of Civil Procedure, and opined that under sub-rule (2) "the withdrawal is complete the moment the order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted". To such an order of withdrawal the provisions of sub-rule (3), it was further pointed out, do not apply, the being restricted to a withdrawal under sub-rule (1) of Rule 1 of Order XXIH."

1. PLD 1990 S.C. 596 Humayun Saifullah Khan's case.The relevant observation is as follows:

"... that the application made by the petitioner/plaintiff on 11.7.1988 for withdrawal and refiling of suit stands allowed."

1. PLD 1994 S.C. 598. Shabbir Ahmad's case.

This judgment is not relevant to resolve the present controversy as the aforesaid Order 23, Rule 1 was not discussed. The aforesaid operative parts of the judgments relied upon by the learned counsel of the petitioners do not support the contention of the learned counsel of the petitioners. It is settled proposition of law that provisions of CPC are applicable in the Constitutional proceedings as per principle laid down by the Hon'ble Supreme Court in Hussain Bakhsh's case PLD 1970 S.C. 1. The object of Rule 1 of Order 23 is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. In arriving to this conclusion I am fortified by the reported judgment of the Privy Council AIR 1914 P.C. 249. It is settled principle of law in view of the Aforesaid provisions of law that plaintiff/petitioner has the right to withdraw a suit whenever he desires but fr\ cannot file a fresh suit on the same subject-matter.

In arriving to this conclusion I am fortified by the judgment of the Hon'ble Supreme Court in Hqji Abdur Rashid Sowdogar's case PLD 1959 S.C. 287. The second suit/writ .petition qua the same subject-matter is not maintainable unless and untill the suit/writ petition has been withdrawn with permission to file fresh suit/writ petition. In arriving to this conclusion I am fortified by the following judgments:--

NLR 1990 Civil 217, Jewan's case 1990 CLC 1334, M/s. Meharunn Nisa's case 1990 CLC 19, Mst. Mahroof Jan'scase 1990 CLC 220, Wakeed Ahmad's case

In view of the aforesaid discussion I am not impressed by these contentions of petitioner's counsel because these really amount to challenge the correctness of the view taken by this Court in the impugned judgment. Now what the learned counsel is evidently seeking is the re-hearing of the case on the points which clearly lay beyond the scope of the review application.

1. I am fortified in my view by Hqji Nawab Din vs. Qazi Abdul Saeed (1973 SCMR 143). It has been observed in that case:

"We are not impressed by this contention, because it really amounts to challenging correctness of the view taken by this Court in the order now sought to be reviewed and this cannot be a ground for review."

This view was also accepted in Muhammad Zafar Ullah Khan vs. Muhammad Khan and another" (1975 SCMR 473). It has been observed in that, case:

"We have noticed these contentions but we do not propose to deal with them as a review cannot be made a pretext for re-hearing of the whole case. We are not prepare to re-open the question of interpretation of Section 104 of National & Provincial Assembly (Elections) Act, 1964."

This view was also accepted in "Mst. Shamim Akhtar vs. Syed Alim Hussain and others" (1975 SCMR Page 16). It has been observed in that case:

"This may be so, but this can hardly furnish a ground for review. Putting it bluntly, it amounts to saying that this Court had erred in applying the principles of Ghulam Mohi-ud-Din's case in the facts and circumstances of the present appeal. This may have been perfectly good ground for an appeal, if any appeal, if any appeal lay, but can it be a valid ground for review? we think not."

1. This petition for review is accordingly dismissed. (A.A.J.S.) Review dismissed.

PLJ 2001 Lahore 354 [Bahawalpur Bench Bahawalpur]

Present: shaikh abdur razzaq, J. GHULAM NAZAK-Petitioner

versus

FATIMA BIBI and another-Respondents W.P. No. 5332/2000, decided on 17.11.2000. Family Courts Act, 1964 (XXXV of 1964)--

—S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Suit for dissolution of marriage and for restitution of conjugal rights filed respectively by wife and husband-Trial Court dismissed suit of wife for dissolution of marriage while decreed husband's suit for restitution of conjugal rights-Appellate Court, however, reversed such findings and decreed wife's suit, while dismissed husband's suit-Validity-Perusal of statement of wife (plaintiff) would reveal that she had categorically stated that she would prefer to die than to live in the house of her husband-Trial Court on account of such statement of plaintiff, was not justified to allow such hateful union to continue any further-Appellate Court having taken all such aspects of case into consideration had returned its finding in favour of plaintiff (wife)-Neither plaintiff nor defendant had hrought on record any documentary evidence on question of benefits to be given to wife in lieu of khula-Both parties had tried to build their case on oral evidence on that score-Appellate Court in such context had not deemed it proper to impose any condition while granting divorce on basis of Khula--No interference was, thus, warranted in the judgment and decree of Appellate Court whereby plaintiffs suit had been decreed. [P. ] A, B

Ch. Habib Ahmad Mand, Advocate for Petitioner. Date of hearing: 17.11.2000.

order

Instant writ petition is directed against the judgment and decree dated 9.10.2000 passed by Addl. District Judge, Khanpur whereby he reversed the judgment and decree dated 19.4.2000 passed by Judge Family

Court, Khanpur.

1. Briefly stated the facts are that the plaintiff-respondent was married to the defendant-petitioner about four years prior to the institution of the suit on 18.10.1999. As the relations between the parties became strained, she filed a suit for dissolution of marriage against him. The said suit was resisted by the defendant-petitioner wherein he raised one preliminary objection regarding cause of action and also controverted the contentions of the plaintiff-respondent on merits.

2. Alongwith this suit the defendant-petitioner also filed a suit for restitution of conjugal rights which was also resisted y the plaintiff- respondent. Both the suits were tried by one and the same Court and were decided through a consolidated judgment dated 19.4.2000 whereby the suit for dissolution of marriage filed by the plaintiff-respondent was dismissed and the suit for restitution of conjugal rights filed by the defendant- petitioner was decreed. The plaintiff-respondent felt aggrieved of the said judgment and decree dated 19.4.2000 and filed appeals which were also heard and disposed of by the Additional District Judge, Khanpur who reversed the findings of the trial Court vide his judgment and decree dated 9,10.2000 and while decreeing the suit for dissolution of marriage dismissed the suit for restitution of conjugal rights of the defendant-petitioner. The petitioner has felt aggrieved by the said judgment and decree and has filed the instant writ petition.

3. Arguments have been heard and record perused.

4. The stand of the learned counsel for the petitioner is that the Appellate Court has reversed the finding of the trial Court merely on the ground that Issues Nos. 1 to 3 were decided at one place and similarly Issue No. 3 has again been decided separately. He submits that Issues Nos. 1 to 3 were actually Issues Nos. 1 and 2 and it was on account of clerical mistake that it has been disclosed as Issues Nos. 1 to 3. He further submits that findings recorded separately under Issue No. 3 clearly show that these findings pertain to Issue No. 3 as reproduced in the judgment of the lower Court. He further submits that it has been held by the trial Court while disposing of Issues Nos. 1 to 3 that the said findings pertain to only two issues. He, thus, submits that on this ground the judgment of the trial Court could not be reversed. He further submits that the Appellate Court has not taken into consideration the evidence which has come on record on behalf of the plaintiff-respondent. While elaborating his contention, he submitted that it appears that the plaintiff-respondent has been restrained from going to the house of the defendant-petitioner her father as it has been stated by her father (PW-2) that her daughter (plaintiff-respondent) could not go to the house of her husband without his permission. He submits that this admission of PW-2 clearly shows that the plaintiff-respondent was under the control of her father and it was on that account that she was not residing with her husband. He, thus, submits that this aspect of the matter has also not been taken into consideration by the Appellate Court. He further argued that while dissolving the marriage on the ground of 'Khula' no benefits have been ordered to be returned to the defendant/petitioner which have been derived by the plaintiff-respondent from the defendant-petitioner. He, thus, submits that even on this score the judgment of the Appellate Court appears to have been announced without appreciating the evidence in its entirety. He has placed reliance on Sahibzada Sheheryar Abbasi vs. Samia Abbasi and another (1992 MLD 159) (Lahore) wherein while accepting the writ petition the matter was remanded to the trial Court for deciding the same with reference to the question of benefit of 'Khula'.

5. There is no doubt that the present plaintiff-respondent has filed a suit for dissolution of marriage against the defendant-petitioner and similarly the defendant-petitioner approached the Court for seeking a decree for restitution of conjugal rights. It is also a fact that the trial Court while passing the consolidated judgment dated 19.4.2000 decreed the suit of the defendant-petitioner and dismissed the suit of the plaintiff-respondent wherein she has sought divorce from her husband/defendant-petitioner. However, on appeal the judgment of the trial Court has been reversed. In support of her contention the plaintiff-respondent recorded her own statement as PW-1 and examined her father as • PW-2. In rebuttal the defendant-petitioner recorded his own statement as DW-1 and examined Allah Bakhsh as DW-2. A perusal of the statement of plaintiff-respondent reveals that she has categorically stated that she would prefer to die than to live in the house of her husband/petitioner. There is no doubt that her father while appearing as PW-2 has stated that his daughter would not visit house of her husband without his permission. However, his this admission is not to be taken in isolation but is to be taken into consideration in the context of his statement which has come on record. If the said admission is taken into consideration in the context of statement of PW-2 then it will be seen that the said admission is not going to detract the stand of the plaintiff-respondent, but on the other hand supports her contention. Even if it is assumed that PW-2 has stated that his daughter was not allowed to come to the house of her husband, even then it will not make any difference as it is the statement of the plaintiff-respondent which is to be seen while granting the decree for dissolution of marriage on the ground of 'Khula'. The plaintiff-respondent has categorically stated that she would prefer to die or to drown in the river than to live in the house of her husband. In view of this clear-cut statement on the part of the plaintiff-respondent it was not left with the trial Court to allow this hateful union to continue any further. The Appellate Court has taken into consideration all these aspects of the matter and thereafter has returned its finding in favour of the plaintiff-respondent.

6. So far as the question of any benefit to be given to the defendant-petitioner in lieu of dissolution of marriage on the ground of 'Khula' is concerned, suffice it to say that neither the plaintiff-respondent nor the defendant-petitioner has brought on record any documentary evidence on that score. Both the parties have tried to build their case on oral evidence on that score. It is in this context that the learned Addl. District Judge has not deemed it proper to impose any condition while granting a divorce on the basis of'Khula', 8 The up short of the above discussion is that there is no force in this writ petition and the same is hereby dismissed in limine.

A.A.J.S.) Petition dismissed.

PLJ 2001 Lahore 357

[Bahawalpur Bench Bahawalpur]

Present: muhammad akhtar shabbir, J.

ABDUL AZIZ EX-STENOGRAPHER, PUNJAB ROAD TRANSPORT CORPORATION, BAHAWALPUR-Petitioner

versus

CHAIRMAN PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 5 others—Respondents

W.P. No. 127-2000, decided on 5.12.2000. Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—-S. 25-A-Constitution of Pakistan (1973), Art. 199--Grievance of petitioner was claimed not to have been redressed by respondent (department) in terms of order of High Court-Respondent's contention was that order in question, had been implemented in stricto senso and grievance of petitioner had been redressed-Validity-Counsel for petitioner in criminal original had stated categorically that grievance of petitioner had been redressed by the respondent (department)-Labour Court had accepted grievance of petitioner and declared him to be promoted with effect from 1.6.1983 and not from 18.6.1979 and that order of Labour Court had been complied with by respondent—High Court had maintained such order of the Labour Court in earlier round of litigation had not given any direction to respondent to promote petitioner with effect from 18.6.1979 as claimed by petitioner-Petitioner's writ petition being without merit was dismissed in circumstances. [P. 359] A

Mr. Jamshaid Akhtar Khokhar, Advocate for Petitioner. Mr. Shamshir Iqbal Chughtai, Advocate for Respondents. Date of hearing: 5.12.2000.

order

The petitioner has invoked the Constitutional jurisdiction of this Court for issuance of direction to the respondents to make payment of the petitioner's legitimate claims according to the rules w.e.f. 18.6.1979.

1. The facts giving rise to the present petition are that the petitioner was appointed as stenographer on ad hoc basis w.e.f.18.6.1979 against the permanent vacancy and he was regularized on the same post after expiry of period of four years. The petitioner being dissatisfied knocked the jurisdiction of Labour Court No. 8, Bahawalpur and the said Court vide itsorder dated 4.10.1987 accepted the prayer of the petitioner and directed the Department to regularise the petitioner as Stenographer in BPS-10 .e.f.1.6.1983 and he was declared entitled to get BPS-15 w.e.f. 8.4.1985. The order of the Labour Court was challenged by the Department efore the Labour Appellate Tribunal and the Tribunal vide its order dated 8.12.1987 accepted the appeal and set aside the findings of the Labour Court.

2. Feeling aggrieved the petitioner knocked the Constitutional jurisdiction of this Court through W.P. No. 233-88 and learned Single Judge of this Court vide order dated 23.9.1997 accepted the writ petition and set aside the order of the Labour Appellate Tribunal dated 8.12.1987.

3. The grievance of the petitioner was not redressed by the Department, therefore, he filed Cr. Orl. No. 184/98 which was disposed of by this Court on 1.4.1999 wherein the learned counsel for the petitioner had stated that the grievance of the petitioner has been redressed. Thereafter another Crl. Orl. No. 138-99 came, which was disposed of by this Court on 21.10.1999.

4. The learned counsel for the petitioner has contended that inspite of undertaking given by the respondents the grievance of the petitioner has not been redressed so far.

On the other hand, the learned counsel for the respondents has stated that the order of the Labour Court has been implemented by the Department in stricto senso and the grievance of the petitioner has been redressed.

1. Since the learned counsel for the petitioner in Criminal Original No. 184-98 has stated categorically that the grievance of the petitioner has been redressed by the Department. The statement of the learned counsel is binding on the petitioner and he cannot get rid of the same. Furthermore, the Labour Court has accepted the grievance of the petitioner and declared him to be promoted w.e.f.1.6.1983 and not from 18.6.1979 and that order of the Court has already been complied with by the Department. Neither any finding has been given nor any direction has been given by this Court in it its judgment dated 23.9.1997 passed in W.P. 233/88. This Court has only set aside the order of the Labour Appellate Tribunal and maintained the order of the Labour Court. This Court has not given any direction to the Department to promote the petitioner w.e.f.18.6.1979 and give benefits from the said date.

In view of the above discussion, there is no force in the instant writ

petition and the same is dismissed.

i A A. J. S.) Petition dismissed.

PLJ 2001 Lahore 359

Present: saved zahid hussain, J.

MUHAMMAD AZAM and another-Petitioners

versus

T ARIQ TRANSPORT COMPANY LTD. through MANAGING DIRECTOR JHELUM and 2 others-Respondents

W.P. No. 2688/87, decided on 22.12.2000. Civil Procedure Code, 1908 (V of1908)--

—-S. 12(2)~Constitution of Pakistan (1973), Art. 199-Subject matter of award being of the value of Rs. 30,000/- was made rule of the Court by Civil Judge first class—In post remand proceedings, however, case was entrusted to Civil Judge III class having jurisdiction upto value of Rs. 25.000/- who accepted application under S. 12(2) C.P.C. and set aside decree of Court-Revisional Court affirmed such finding-Validity-Civil judge who accepted application against award had pecuniary jurisdiction upto Rs. 25,000/—Value of the subject-matter of reference, award and decree passed by Court of Civil Judge III class being beyond the pecuniary limits of such Court, be lacked jurisdiction in the matter—Order of Civil Judge III Class accepting application under S. 12(2) C.P.C. was, thus, illegal and without lawful authority as also its affirmation by revisional Court-Case was remanded to be entrusted to Court having jurisdiction in the matter for decision afresh in accordance with law. [P. 363] A, B

1983 CLC 1685; PLD 1984 Lahore 515; 1998 SCMR 1618; PLD 1975 SC 331; 1980 CLC 589.

Mr. Abid Hussain Minto, Advocate for Petitioners.

Mr. Mubashir Latif Ahmad, Advocate for Respondent No. 1.

Dates of hearing: 21 and 22.12.2000.

judgment

An Arbitration Award dated 18.7.1977, the value of the subject matter of which was Rs. 30,000/- was made a rule of Court by Syed Irshad Hussain Abidi, Civil Judge, 1st Class, Jauharabad on 31.7.1977. An application under Section 12(2) CPC read with Sections 20 and 33 of the Arbitration Act was made by Respondent No. 1 that the said decree was the result of fraud and mis-representation. It was contested by the petitioners and was dismissed on 7.5.1983 by Mian Hameed Jalani, Civil Judge, 1st Class, Khushab. This order was challenged by Respondent No. 1 by filing revision, which revision petition was accepted on 13.2.1985 and the matter was remanded for decision in accordance with law with a direction to the parties to appear before Mr. Saif-ur-Rehman Khan, Civil Judge, 1st Class, Jauharabad. Eventually the said application came to be decided by Syed Ah' Naqi Tanvir, Civil Judge, 3rd Class, Jauharabad on 16.7.1986 and was accepted, by setting aside the decree dated 31.7.1977. The petitioners filed a revision thereafter, which was dismissed by the learned District Judge, Khushab on 28.1.1987. These orders have been challenged through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

1. The learned counsel for the parties have addressed arguments on the point of jurisdiction of the learned Civil Judge, who had decided the application. The contention of the learned counsel for the petitioners is that value of the subject-matter of the Award was Rs. 30.000/-, which was made rule of Court by a Civil Judge, 1st Class, the said decree could not be set aside by a Civil Judge, 3rd Class as the value of the subject-matter was beyond his pecuniary jurisdiction. It is contended that the view taken by the learned Civil Judge as also the learned District Judge that successor Civil Judge could set aside such a decree is not correct as the application under Section 12(2) CPC would lie before a Court having jurisdiction in the matter.

2. On the other, hand, the learned counsel for Respondent No. 1 contends that it is the same Court which had passed the final judgment and decree which is competent to decide the application under Section 12(2) CPC. According to him, the Civil Judge who had passed the order in the present case being the successor Court, which granted the decree was alonecompetent to decide the application. It is further contended that this point was not pressed before the learned Civil Judge concerned, therefore, could not be allowed to be raised at latter stages.

3. There is no dispute that value of the subject-matter of Arbitration Award was Rs. 30,000/-, which was made rule of Court by a Civil Judge, 1st Class. It is also not disputed that pecuniary jurisdiction of a Civil Judge, 3rd

Class was upto Rs. 25,000/-. In the first round the application was heard and decided by Mian Harneed Jilani, Civil Judge, 1st Class and was dismissed and it was on remand by the learned District Judge, that it had to be heard afresh. The direction contained in the remand order dated 13.2.1985 was for appearance before the Civil Judge, 1st Class, Jauharabad for further proceedings in the matter. It is however, not apparent from the record, how that application came up before a Civil Judge, 3rd Class.

1. Be that as it may, there was an objection before the Civil Judge as to the lack of jurisdiction in the matter. However, he rejected the objection that he was the successor of the Court of Mr. Irshad Hussain Abidi, Civil Judge, who had passed the decree. The objection again was raised before the learned District Judge, who dealt with the same as follows:

"I have come to the conclusion that the argument advanced by the learned counsel for the petitioner that application under Section 12(2) CPC could not be disposed of by Civil Judge 3rd Class because the subject-matter was beyond his jurisdiction is without any force because the pecuniary jurisdiction relates to the passing of the decree and not to application under Section 12(2) CPC."

The learned counsel for the parties have confined their initial arguments as to the jurisdiction of the Civil Judge, 3rd Class in passing the impugned decree, no arguments were advanced on merits for if the Civil Judge, 3rd Class had no jurisdiction, the matter would have to be remanded to the Court of competent jurisdiction. Both the learned counsel have however, stated that there is no direct precedent on the point.

1. In order to resolve the controversy, it will have to be seen as to which Court would have been competent to entertain the application under Section 14(2) of the Arbitration Act, 1940 for making an award rule of the Court. Section 2(c) of Arbitration Act (hereinafter to be mentioned as the Act) defines the Court as follows:

"Court" means a Civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit."

Clause (e) of Section 2 of the Act defines" reference" means a reference to arbitration. It is this Court, which is competent to entertain and decide the application under Section 14 of the Arbitration Act. The reading of Section 31 of the Act, removes any doubt whatsoever that an award is to be filed in a Court having jurisdiction in the matter to which the reference relates. Clause (c) of Section 2 of the Act had been subject of judicial interpretation in some cases. In M.A. Jalil v. Group Copt. (Retd.)Salah-ud-Din Khan (1983 CLC 1685) it came to be considered in somewhat different context as to the competency of revision petition before the District Judge, but has relevancy in respect of true construction of Section 2(c) of the Act. It was observed that

"It also provides for the Court where an award is to be filed. By reading Section 31 with the definition of the term "Court" given in Section 2(c) of the Act, it is plain that the award is to be filed in that, Court, which will have jurisdiction to decide question forming the reference if the same had been the subject-matter of the suit". It was further observed that "in view of the provisions of Section 14 read with Section 31 of the Arbitration Act, it is reasonable to construe that the award is to be filed in that Court which will have the jurisdiction to decide the question forming the subject-matter of the reference, if the same had been the subject-matter of the suit". In Province of Punjab through Secretary to Government of Punjab Housing and Physical Planning Department, Lahore and another vs. District Judge, Lahore and 3 others (PLD 1984 Lahore 515), it was observed that "under Section 2(c) of the Arbitration Act, a reference is to be considered as identical to a suit and the amount or value of the subject-matter of the reference furnishes a basis for fixation of the forum for hearing the application". It was further observed that "computation of the subject-matter of the reference is to be made according to the market value thereof." Reading Section 2(c) of the Act with Rule 4 of the Arbitration rules framed by the High Court, it was observed that" the value of the subject-matter of 'reference' is the test for discovery as to whether revision lies before the District Court or the High Court". If the market value of the reference is the test for determining the forum of appeal or revision, the same test and principle will determine the forum for any application under the Act.

1. In Hitachi Limited and another v. Rupali Polyester and others (1988 SCMR 1618), Section 2(c) and Section 33 of the Act were considered and it was observed as follows:

"It may be observed that clause (c) of Section 2 of the Act gives the definition of the Court by providing that "Court" means a Civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under Section 21, include a Small Cause Court". In other words, by virtue of above definition the same Court will have jurisdiction in respect of arbitration matter, which would have jurisdiction if the matter would not have been covered by the arbitration agreement. It may further be observed that Section 33 of the Act, referred to hereinabove, not only covers the question as to the existence or validity of an arbitration agreement but also of an award and also to have the effect of either determined."

1. That seems to be the basis that when application under Section 14(2) of the Act was filed, although the value for the urposes of Court-fee and jurisdiction was fixed as Rs. 2/-, it was entrusted to a Civil Judge 1st Class, in view of the value of reference (the subject-matter of award), which was made the rule of Court by a Civil Judge, 1st Class. It is also of some relevance that when the first application filed by Respondent No. 1 was dismissed by the Civil Judge, 1st Class, while accepting the revision petition there against, it was remanded and the parties were directed to appear before the Civil Judge, 1st Class. It had thus to be heard and decided by the Civil Judge, who had the pecuniary jurisdiction in the matter.

2. Undisputedly the Civil Judge, who accepted the application by order dated 16.7.1986 had the pecuniary limitation upto Rs. 5,000/-. ince he could not have decided the suit of higher value, he could not decide the application under the Act as well. The expression 'Court' used in Section 12(2) CPC has thus to be construed as a Court having jurisdiction in the matter. Such a construction finds support from Section 6 CPC, which provides "nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject- matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction."

3. It appears to be quite anomalous that though a Civil Judge 3rd Class will not be competent to pass a decree in view of the value of the subject-matter, yet would be competent to pass an order to set aside such a decree. I am of the view that since the value of the subject-matter of the reference, the award and the decree passed by the Court was beyond the pecuniary limits of Civil Judge 3rd Class, he lacked jurisdiction in the matter. In The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), it was held that " an order is treated to be as void which is made by a Court or Tribunal which had no jurisdiction either as regards the subject-matter, the pecuniary, value or the territorial limits where the dispute arose". It was thus held that "such an order would amount to "usurpation of power unwarranted by law", and accordingly it would be nullity". In Suba Khan v. Rehmat Din and 2 others (1980 CLC 579) it was observed that" an order passed by a Court having no pecuniary jurisdiction is ultra vires".

4. In view of the above, order of Civil Judge 3rd Class dated 16.7.1986 accepting the petition filed by Respondent No. 1 was illegal and without lawful authority as also its affirmation by the learned revisional Court. Both are declared as of no legal effect. As a consequence of the above, the application filed by Respondent No. 1 shall be heard and decided afresh in accordance with law. The parties are directed to enter appearance before the learned District Judge, Khushab on 31.1.2001, who will entrust he matter for its hearing to a Court of competent jurisdiction. This petition is acc rdingly accepted to this extent. No order as to costs.

(A.A.J.S.) Petition accepted.

PLJ 2001 Lahore 364

Present: saved zahid hussain, J

MUHAMMAD AFTAB-Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL LAHORE and 3 others --Respondents

W.P.No. 3472 of 1990, heard on 19.12.2000. Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—Ss. 2(xxviii) & 25-A~West Pakistan Industrial and Commercial Employment (Standing orders) ordinance (VI of 1968), Ss. 2(i) & S.O. 15(3)~Constitution of Pakistan (1973), Art. 199--Petitioner's petition against grievance of his dismissal from service was accepted by Labour court but the same was dismissed by Labour Appellate Tribunal on the ground that he was not a workman--Validity-Respondent (employer) by issuing charge-sheet under Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 itself admitted status of petitioner as workman and on basis of such charge, he was removed from service-In addition, there was evidence of overwhelming nature to establish that petitioner was workman-While comparing finding of Labour Court with that of Labour Appellate Tribunal, in the light of evidence that had come on record, view taken by Labour Court was eminently supported by the facts and circumstances of the case-Petitioner had, thus, rightly involved jurisdiction of Labour Court and that was the forum available to him for redressel of his grievance-There being concurrent findings of two Tribunals on the question of misconduct that the same was not proved against petitioner, he was entitled to be reinstated and was rightly ordered so by the abour Court-Order of Labour Appellate Tribunal whereby grievance petition of petitioner was dismissed was set aside while that of Labour ourt re instating him in service was restored. [Pp. 366 & 367] A, B

1999 PLC 302; 1998 PLC 390; 1993 PLC 412; 1991 PLC 145; 1999 PLC 307;

1998 SCMR 623.

Mr. S. M. Zaman, Advocate for Petitioner.

Mr. Muhammad Zaman Qureshi, Advocate for Respondent No. 3.

Date of hearing: 19.12.2000.

judgment

The petitioner who was a Head Fitter in the Weaving Section of Shamas Textile Mills, Chiniot, Respondent No. 3 herein, was charge-sheeted for the allegations contained in the charge-sheet dated 17.11.1987. He was dismissed thereafter from service on 14.1.1988. He then filed a petition under S. 25-A of the Industrial Relations Ordinance, 1969 which was accepted by the Presiding Officer, Punjab Labour Court No. V, Sargodha on 18.12.1989. This order was challenged by Respondent No. 3 by filing an appeal before the Punjab Labour Appellate Tribunal which appeal was accepted on 7.3.1990 for the view taken by the learned Tribunal that the petitioner was not a workman and the forum for him to challenge the order of dismissal was not the Labour Court. This order has been challenged through this petition.

1. It is contended by the learned counsel for the petitioner that there are concurrent findings of fact by the Courts below that no misconduct was committed by the petitioner and that by reversing the findings of the Labour Court on the point as to whether the petitioner was a workman the learned Appellate Tribunal has erred in law in setting aside the order of the Labour Court. It is further contended that the petitioner was a workman and rightly held so by the Labour Court, the view taken by the learned Tribunal is not supported by law. Reference is made to Emirates Bank International and another v. Rana Zahid Iqbal and 2 others (1999 PLC 302), The President abib Bank Limited, Karachi and 3 others v. Syed Shafqat Hussain Shakir 1998 PLC 390), M/S. Allied Bank of Pakistan, Karachi and 3 others v. bdul Karim (1993 PLC 412), Zia Ahmad Makhdoom v. Pak. Suzuki Motor ompany Ltd. (1991 PLC 145) to support his contentions.

2. Learned counsel for Respondent No. 3 supports the order passed by the learned Tribunal and contends that the findings recorded by the Tribunal do not suffer from any infirmity, therefore, writ jurisdiction cannot be exercised to upset the same. It is further contended that it is a question of fact as to whether the petitioner was a workman or not, the finding recorded by the learned Tribunal should be given due regard. It is further contended that there was ample material on the record in support of he findings recorded by the learned Tribunal that the main duty of the petitioner was of supervisory nature and was thus not a workman. Relies on Muhammad Fazil v. The General Manager Faisalabad Serena Hotel, Faisalabad and 2 others (1999 PLC 307) and Government of Pakistan and another v. Furqan Ahmad Qureshi (1988 SCMR 623) in order to support the view taken by the learned Tribunal.

3. In view of the undisputed position that finding of the Labour Court has been affirmed by the Appellate Tribunal as well that no misconduct had been committed by the petitioner, the only issue is whether the petitioner was a "workman" and was entitled to invoke the jurisdiction of the Labour Court. For coming to the conclusion that the petitioner was a "workman" the learned Labour Court considered the evidence brought on the record and after analysing the same recorded its findings that:

"In the light of the oral as well as documentary evidence discussed above, it become crystal clear that the nature of duty of the petitioner was manual and was not supervisory or managerial. He was, therefore, a workman under the Standing Orders Ordinance as well as Industrial Relations Ordinance, 1969 and could come to the Labour Court against his order of termination."

The learned Tribunal, however, took a different view of the matter and observed that:

"The main duty of the respondent was not to repair the machinery and since he was head fitter with more experience, therefore, he had to remove the difficulty which could not be removed by his subordinates and thus even this amounted to supervising the work of his subordinates. He had to do this work occasionally whenever his subordinates found difficulty in removing the defects. So the respondent is not covered by the definition of a workman given under Section 2(i) of the Standing Order Ordinance, 1968".

The approach of the two authorities below is thus at variance, their view is, therefore, to be judged on the basis of the evidence and the law applicable.

1. Undoubtedly, the petitioner was proceeded against under Standing Order No. 15(3), Clause (c & h) thereof. The said Standing Order is applicable to a workman who is to be proceeded against for imposing punishment mentioned therein. Under S. 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 a workman is defined as "any person employed in any Industrial or Commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward". By issuing charge-sheet under Standing Order 15(3) ibid Respondent No. 3 itself admitted the status of the petitioner as workman. It was on the basis of this charge-sheet that the petitioner was removed from service on 14.1.1988. This aspect was duly considered by the Labour Court in taking the view that the petitioner was a workman. However, the learned Labour Appellate Court Tribunal did not advert to this aspect which, undoubtedly, had material relevancy and bearing on the point. In addition to the above, there was evidence of overwhelming nature in the case to establish that the petitioner was a workman, reference to which was made by the Learned Labour Court in extenso. There were representations made by the respondents to the Medical Officer, Social Security Dispensary about the petitioner. The petitioner was also certified by the Factory Manager that he was a workman in terms of S. 2, clause (28) of the Industrial Relations Ordinance, 1969 for the allotment of a residential plot in a scheme in which only the workmen were eligible. This document designated the petitioner as "Head Fitter". The learned counsel for the petitioner submits that in pursuance of such certification the petitioner indeed was allotted residential plot. A second show-cause notice issued to the petitioner, after the conclusion of the inquiry also makes a reference to Standing Order 15(3), explanation to which was sought from the petitioner.

2. In Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others (1998 SCMR 644) the matter was considered at great length and it was held as follows:

"The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of Section 25-A of the Ordinance. The words "and thereupon, the provisions of the said section shall apply as they apply to the redress of an individual grievance" clearly indicate that for the purpose of redress of such grievance the procedural provisions of Section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of Section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3). However, the Legislature has provided for a different definition of the term "workman" in clause (i) of Section 2 of the Standing Orders Ordinance, which provides as under--

"(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."

It is pertinent to notice that the two definitions of "workman", one provided in the Ordinance and the other provided in the Standing Orders Ordinance are completely different. The question which, therefore, arises is, which of the two definitions would be applicable in case, redress is sought by an aggrieved workman under Standing Orders 12(3). Since in the present case admittedly, the respondent's services were not terminated in connection with or in consequence of an industrial dispute, right to him to seek redress of his grievance was available only under Standing Order 12(3). When redress was sought by the respondent under Standing Orders Ordinance, it is the definition of the term "workman" as provided in the Standing Orders Ordinance, which was to be considered by the Labour Court for entertaining his grievance petition and not the definition of the said term as contained in the Ordinance".

This dictum should clinch the controversy.

On comparing the finding of the Labour Court with that of the learned Tribunal, in the light of the evidence that has come on record, I am pursuaded to hold that the view taken by the Labour Court was eminently supported by the facts and circumstances of the case. Thus, I am unable to endorse the view taken by the learned Tribunal that the petitioner was not a workman. The petitioner had rightly invoked the jurisdiction of the Labour Court and that was the forum available to him.

1. Since there are concurrent findings by the two Tribunals that the allegations of misconduct had not been proved against the petitioner, the petitioner was entitled to be reinstated and was rightly ordered so by the learned Labour Court.

In view of the above, the judgment of the learned Labour Appellate Tribunal whereby the grievance petition of the petitioner was dismissed for want of jurisdiction, is not sustainable and is declared as of no legal effect. No order as to costs.

(A.A.J.S.) Petition accepted.

PLJ 2001 Lahore 368

Present:maulvi anwar-ul-haq, J. MUHAMMAD RASHID and another-AppeUants

versus KHALJD ASGHAR and 5 others-Respondents

R.S.A. No. 4 of 1985, heard on 17.11.2000. Punjab Pre-emption Act, 1913 (I of 1913)--

—Ss. 4 & 15-Civil Procedure Code (V of 1908), S. 100-Suit for pre-emption decreed by two Courts below-Validity-Main ground on which suit for pre-emption contested by defendants was that person filing suit on behalf of vendee (defendant) was not authorised to do so--Scrutiny of power of attorney in question, showed that the same was multi purpose and consisted of several parts-Power of attorney in question, separately authorises attorney of pre-emptor to file suits and to deal with the proceedings arising out of those suits-Such document authorises attorney to alienate and purchase property for his principal-Pre-emptor being owner of estate at the time of sale, had a right to acquire land sold in such estate to other persons-Attorney proceeded to file suit on behalf of pre-emptor in exercise of right of pre-emption of pre-emptor-Document in question, clearly authorised attorney to purchase land for his principal and such power does include purchasing of land by means of pre-emption suit-Courts below in decreeing suit for pre-emption have not violated rules of interpretation of power of attorney as enunciated by Superior Courts-Judgements and decrees of Courts below decreeing plaintiffs suit for pre-emption were affirmed in circumstances.

[Pp. 369 to 371] A, B & C

PLD 1980 SC (AJ & K) 60; 1995 MLD 45; PLD 1971 Lah. 311; AIR 1947 Nagpur 17.

Syed Muhammad Zainul Abiddin, Advocate for Appellants. Ch. Imdad All Khan, Advocate for Respondent No. 1. Nemo for other Respondents. Date of hearing : 17.11.2000.

judgment

This judgment shall decide R.S.A. No. 4/85 and R.S.A. No. 13/85 as both these R.S.As. involve a common question.

1. The appellants in both these cases purchased the suit land vide Mutations Nos. 398 dated 22.8.1973 (26 kanals 9 marlas)and 400 dated 2.2.1974 (28 kanals 2 marlas). The plaintiff/Respondent No. 1 in both the cases filed suits on 29.7.1974 and 7.2.1975 respectively for possession by pre­ emption. He claimed to be an owner in the estate. The suits were contested inter alia, on the ground that the person filing the suit on behalf of Respondent No. 1 was not authorised to do so. Amongst others the following issue was framed by the learned trial Court:

1-A. Whether Khalid Asghar plaintiff validly executed Power of Attorney in favour of Muhammad Abdullah for the institution of the present suit. If not with what effect ? OPP.

Evidence of the parties was recorded. The learned trial Court decreed the suits vide judgment and decree dated 28.6.1982. First appeals filed by the appellants were heard by a learned Additional District Judg, Toba Tek Singh who dismissed the same on 23.12.1984.

1. Learned counsel for the appellants contends that the Learned Courts below have misread the evidence on the record particularly the power of attorney and have failed to apply the correct law while finding the said issue in favour of Respondent No. 1. Learned counsel for the respondents, on the other hand, argues that Abdullah was duly authorised to file the suit on behalf of the plaintiffs/respondents.

2. I have gone through the record of the case, with the assistance of the learned counsel for the parties. The original power of attorney is available as Ex. P. 5 in the file of the suit subject-matter of R.S.A. No. 4/85. Apart from the other witnesses Khalid Asghar, plaintiff/respondent himself appeared as a witness and deposed that he had executed the said power of attorney in favour of his father Ch. Muhammad Abdullah.

3. I have read this power of attorney with the assistance of the learned counsel for the parties. I find that this power of attorney is multi purposes and has several parts. To being with the donor gave the detail of his existing properties and assets and proceeds to appoint his father Abdullah to be his attorney in respect of matters that may possibly pertain to the said property. Then this power of attorney proceeds to separatelyj authorise the said Abdullah to file suits and to deal with the proceedings arising out of those suits. Then the document proceeds to authorise the attorney to alienate the said property. Ultimately the principal authorized ze agent to purchase the property for him. The exact words used are as ollows :-- -s

4. Learned counsel for the appellants relies on the case of Gultaj Begum us. Lai Hussain and others (PLD 1980 SC (AJ&K) 60), Shahabuddin and others vs. Maryam Bibi and others (1995 MLD 45) in respect of contention that power of attorney has to be strictly construed and that when a person authorised to do any particular act than he could only do that specific act and would not travel beyond the authority vested in him. As to the aforementioned power contained in the power of attorney, learned counsel argues that thereby the principal should be presumed to have authorised the attorney to purchase the land only by negotiation on individual basis and not by filing a suit for pre-emption. According to the learned counsel as per Section 4 of the Punjab Pre-emption Act, 1913 a right conferred thereon can be exercised only by filing a suit and as such the said recital cannot be held to mean that the attorney was authorised to file a suit for pre-emption.

5. Learned counsel for respondent, on the other hand, argues with reference to the case of Sh. Allah Diya Saleem vs. Abdul Qadeer (PLD 1971 Lahore 311) to argue that power to manage includes power to file suits. Also tries to draw some support from the judgment in the case of Jiwibai w/o.Karsondas Bhatia vs. Ramkuwar Shriniwas Murarka Agarwala (AIR (34) 1947 Nagpur 17).

6. After hearing the learned counsel in support of their respective contentions I find that what needs to be resoled in this matter is as to hether the power conferred on the attorney by the plaintiffs/respondents to purchase the property for him can be said to include a power to file a suit for pre-emption. Section 4 of the Punjab Pre-emption Act, 1913 gives some idea as to what a right of pre-emption is. It states that the right of pre­ emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property. A plain meaning of the said provision of law would be that in case of agricultural land, the moment it is sold, a right accrues to a person who is armed with any of the qualification mentioned in Section 15 of the said Act as applicable to Muslims to acquire the said property in preference to other persons. Obviously the reference is to the person who has in fact purchased the land. In the present case the plaintiffs/ respondents was the owners in the estate at the time of sale. Thus a right to acquire the land sold in the said estate to the other persons i.e. the present appellants, accrued to the plaintiffs/respondents. The attorney proceeded o file the present suit on behalf of the plaintiffs in exercise of the said right of the said plaintiffs/respondents. Now it is well settled that a successful pre-emptor stands substituted for the vendee in the documents of sale and ultimately becomes himself the vendee of the land. Thus for all purposes it is purchase by the pre-emptor of the land sold to the other person upon satisfying the Court that he has a right to acquire it in accordance with law. Thereafter the Court fixes the consideration and the same is ordered to be deposited for payment to the original vendee. The moment the deposit is made, title accrues to the plaintiff in a preemption suit per terms of Order XX, Rule 14 CPC.

7. To my mind even if applying the rule of strict construction to the document in question the said authority given to the attorney by the plaintiffs/respondents to purchase the land for him does include purchasing of land by means of a preemption suit. In the case in hand the document apart from conferring authority upon the attorney to file suits in respect of the property mentioned in the power of attorney, also generally authorizes the attorney to file suits on behalf of the principal and to pursue the same as also the proceedings arising out of the suits.

8. As a result of the above discussion I find that the Learned Courts below have not violated the rules of terpretation of a power of attorney laid down in the judgments relied upon by the learned counsel for the appellants while deciding this case. Both these R.S.As. are accordingly dismissed leaving the parties to bear their own costs.

(A.A.J.S.) Appeals dismissed.

PLJ 2001 Lahore 371 (DB)

Present: malik muhammad qayyum and raja muhammad sabir, JJ.

(THE STATE) SECRETARY TO GOVERNMENT OF PUNJAB AGRICULTURE DEPARTMENT, LAHORE and 2 others-Petitioners

versus

CH. MAQSOOD ALAM-Respondent

R.A. 38/99 in W.P. No. 6390/98 BWP, decided on 11.1.2001. Legal Reforms Act, 1996--

—-S. 11-A [as amended by Legal Reforms (Amendment) Act (XXIII of 1997')]-Agricultural Pesticides Ordinance 1971, S. 21 (2-A)-Application seeking review of the order/judgment passed by High Court whereby constitutional petition filed by respondent was accepted on the basis of statement made by Law Officer that Executive Magistrate had no jurisdiction to try the case--Division Bench of High Court was apprised of the fact that Law Reforms Act, 1996 was itself amended by S. 11-A of Legal Reforms Act, 1997-Such amendment was admittedly not brought to the notice of Single Judge who was misled by Assistant Advocate General by making statement which was clearly contradictory to law pointed out before Division Bench-Order of Single Judge impugned herein was set aside in circumstances. [Pp. 372 & 373] A

Mr. Shahzad Shaukat, Advocate and Mr. Muhammad Ashraf, A.A.G. for Petitioners.

Nemo for Respondent. Date of hearing : 11.1.2001.

order

Malik Muhammad Qayyum, J.--This is an application seeking review of the order/judgment passed by this Court on 28.1.1999 whereby Constitutional petition filed by the respondent was accepted on the basis of statement made by the learned Law Officer that the Executive Magistrate had no jurisdiction to try the case.

1. A case under Section 21(2-A) of the Agricultural Pesticides Ordinance 1971 was registered against the respondent which was being tried by an executive Magistrate. The maximum punishment which can be awarded to an offender under the aforesaid law is three years as provided by Section 21(2-A) of the Agricultural Pesticides Ordinance. The Constitutional petition (Writ Petition No. 6390/1998/BWP) seeking quashment of the case was filed by the respondent. When the case came up before the learned Single Judge before him it was stated by the Learned Assistant Advocate General that in view of the clear provisions of Law Reforms Ordinance he has no objection to the acceptance of the writ petition under Section 526 of the Criminal Procedure Code, as a result of which the petition stands allowed and the Executive Magistrate was directed to send the record of the case to the Judicial Magistrate.

2. Learned counsel appearing on behalf of the petitioners have pointed out that the Law Reforms Act, 1996 was itself amended by Section 11-A of the Legal Reforms Act, 1997 (XXIII of 1997) in the following terms :--

"Provided that the offences punishable with imprisonment for a term not exceeding three years with or without any other punishment, shall be tried by the Executive Magistrates."

1. No one has appeared for the respondent despite notice. He is, therefore, proceeded against ex-parte.

5.It is unfortunate that this amendment was not brought to the notice of the learned Single Judge who was misled by the Learned Assistant Advocate General by making a statement which is clearly contradictory to the law cited above.

1. In view of what has been stated above we allow this petition and set aside the order dated 28.1.1999 passed by the learned Single Judge.

i'A.A.J.S.) Petition accepted.

PLJ 2001 Lahore 373

Present: maulvi ANWAR-UL-HAQ, J. MUHAMMAD ISHAQ-Appellant

versus HAKEEM MUSHTAQ AHMED-Respondent

S.A.O. No. 225/2000, heard on 18.1.2001. West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

-•-S. 13i.2) (vi) & 13(5)-Vacant possession of rented shops was handed over to petitioner for reconstruction of the same and after reconstruction, restoration of possession was to be handed over respondent as per terms of agreement between the parties in presence of Rent Controller-­ Petitioner having refused to deliver possession to respondents as perterms of agreement, respondent applied to Rent Controller whereupon, he succeeded in restoration of possession-Appeal against restoration ofpossession was dismissed by Appellate forum-Validity-Order passed by Rent Controller with agreement of parties required petitioner handover possession to respondent after reconstruction-Rent Controller's order as affirmed by Appellate Court in delivering/restoring possession to respondent as per terms of agreement was, thus, valid warranting no interference in those orders impugned herein. [Pp. 374 & 375] A

1997 SCMR 517.

Haftz Khalil Ahmad, Advocate for Appellant.

Ch. Muhammad Lehrasap Khan, Advocate for Respondent.

Date of hearing : 18.1.2001.

judgment

This judgment shall decide SAOs Nos. 225/2000, 226/2000 and 227/2000 as common questions are involved in all the three cases.

1. The admitted facts of the case are that the appellant filed ejectment petitions against the respondents in these three S.A.Os. who were occupying shops as his tenants. The ejectment was sought on the ground of reconstruction. The matter remained pending and ultimately was decided by the learned Rent Controller in the light of agreement arrived at between the parlies. The terms were that the respondents in all these three cases were to hand over the vacant possession of the shops to the appellant by 31.8.1998 and thereafter the appellant was to reconstruct the shops within seven months and to let out the same to the respondents subject to the payment of rent agreed between the parties in their respective statements. Admittedly the respondents did hand over the possession as agreed and the shops were Jemolished and reconstructed. However, as it happened, the possession was not delivered back to the respondents who filed applications before the learned Rent Controller for restoration of possession in terms of the order passed by the learned Rent Controller on 27.5.1998 in the ejectment petition. The defence taken by the appellant was that he did officer the shops to the respondents in terms of the said order but they refused to take the shops on rent and thus he proceeded to let out the shops to somebody else. The learned Rent Controller framed issues and recorded evidence of the parties, vide order dated 12.5.2000. The appellant was directed to deliver the possession of the shops to the respondents. A first appeal filed by the appellant was heard by a Learned Additional District Judge, Mandi Bahauddin who dismissed the same on 4.10.2000.

2. Learned counsel for the respondents is present pursuant to the notice issued for limine hearing. Both the learned counsel agree that the certified copies of the relevant record stand appended with the file of all the three S.A.Os. These cases are being ecided as pacca cases.

3. Learned counsel for the appellant contends that the learned Rent Controller had no jurisdiction to pass the order as the applications were not competent under Section 13(5)(B) of the Punjab Urban Rent Restriction Ordinance, 1959. Elaborating his contention learned counsel states that under the said provision of law where a tenant had delivered possession pursuant to an ejectment order passed under Section 13(2)(vi) of the said Ordinance then before completion of construction and before occupation of the premises by another party the tenant has to apply for restoration of possession. Learned counsel for the respondents, on the other hand, argues that under the admitted facts of the present case the matter was not governed by Section 13(5)(B) but by the order passed by the learned Rent Controller on 27.5.1998 with agreement of the parties and that the learned Rent Controller had very rightly directed the appellant to deliver the possession in terms of the same. Relies on the case of Chaudhary Munawar Khan and another vs. Muhammad Hanifand another (1997 SCMR 517).

4. I have gone through the certified copies of the pleadings and the evidence appended with the files of these S.A.Os. with he assistance of the learned counsel for the parties. The factual position turns out the same as has already been narrated by me above. The judgment in the said case of Ch. Munawar Khan relied upon by the learned counsel for the respondents is, jsquarejy applicable to the facts narrated above. In the said, case also a ^compromise cad been arrived at between, the parties in a writ petition laiisiag out of a case filed under Section 13(2)(vi) of the said Ordinance and a jsimilar agreement was arrived at. I may state here that, the contentions liaised before the apex Court on behalf of the learned counsel for landlord are stated in para 2 of the said report and one of the contentions was the same as being raised by the learned counsel for the appellant in the present case. The same were rejected and the order passed by the learned Rent Controller for delivery of possession as upheld by the Appellate Authority and this Court was affirmed. No grounds having been made out for interference with the impugned orders, all these S.A.Os. are dismissed leaving the parties to bear their own costs.

(A.A.J.S.) Appeals dismissed.

PLJ 2001 Lahore 375 [Rawalpindi Bench Rawalpindi]

Present: MUMTAZ ALI MlRZA, J.

MUHAMMAD RAMZAN-Petitioner

versus

GOVERNMENT OF THE PUNJAB through DIRECTOR, GENERAL AGRICULTURE FIELD LAHORE and 2 others-Respondents