PLJ 2003 Judgments

PLJ 2003 Karachi1

[Original Civil Jurisdiction]

Present: MUSHIR ALAM, J.

ADAMGEE INSURANCE COMPANY LIMITED and 3 others-Plaintiffs

versus MUSLIM COMMERCIAL BANK LIMITED and 5 others-Defendants

Suit No. 347 of 2002, decided on 22.8.2002.

(i) Banking Companies Ordinance 1962--

—S. 7(l)(m)-Insurance Ordinance 2000, S. 67--Ohject and scope of a company-Whereas company comes into existence for attainment of a specified and specialized object then all other objects are incidental and ancillary to main or principal object for which company was formed-All other objects mentioned in object clause are to be pursued in furtherance of its main and principal object clause which in instant case is Banking Business. [P. 15] A

(ii) Banking Companies Ordinance 1962--

—-Ss. 7(2) & 23(2)-Restriction is imposed on a Banking Company not to hold share in any company in any capacity, may it be, as pledgee, mortgagee or absolute owner of amount exceeding 30 per cent or paid up capital of that company or of its own paid up share capital-While in Insurance Ordinance 2000, any proposed transaction for acquiring share holding of more than 10 per cent in a Life Insurance Company is subject to permission of Securities and Exchange Commission of Pakistan. [P. 17] B

(iii) Banking Companies Ordinance 1962-

—-S. 23-Insurance Ordinance 2000, S. 67-Defendants having purchased more than 30 per cent shares have violated mandate of S. 23 of Banking Companies Ordinance 1962 as also S. 67 of Insurance ordinance 2000. [P. 19] C

(vii) Companies Ordinance 1984, (XLVII of 1984)--

—-S. 284--Banking Companies Ordinance 1962, Ss. 47 & 48-Insurance Ordinance, 2000, S. 68-Amalgamation and merger of two companies pursuant to scheme of amalgamation approved by Court in terms of S. 284, Companies Ordinance 1984 is recognized by law—Corresponding provisions providing amalgamation of Banking Company with another company are laid down in S. 47 and 48 of Banking Companies Ordinance 1962-Similalry provisions for amalgamation of Insurance company is provided for in S. 68 of Insurance Ordinance 2000. [P. 19] D

(iv) Banking Companies Ordinance, 1962--

—-Ss. 23, 47 & 48-Insurance Ordinance 2000, S. 67-Law restricts and prohibits amalgamation of Banking Company with any other company not having object similar to that of a Banking company nor a Banking Company can form subsidiary company for a purpose other than set out in S. 23(1) of Banking Companies Ordinance 1962-Likewise amalgamation of Insurance Company with ,any company other than insurance company is not permissible. [P. 20] E

(viii) Insurance Ordinance 2000--

—S. 67-Acquisition of shares exceeding 10 per cent in insurance-Requirement to seek prior approval from Securities and Exchange Commission cannot be dispensed with simply because no particular form has been prescribed-Prima fade absence of such approval, renders acquisition of more shares than 10 per cent by defendant are questionable. [Pp. 22 & 23] F

(v) Banking Companies Ordinance 1962--

—-Ss. 5 & 7--Acquisition of more than 10 per cent shares by defendant Bank is not investment mode made in the shares of plaintiff Bank-Apparently and prima facie such attempt by defendant appears to be a bid to take over plaintiff company which amounts to hostile take over. [P. 24] G

(vi) Banking Companies Ordinance 1962-

—-S. 23-Insurance Act 1938, S. 35--Where prima facie Banking Company could not hold shares more than 30 per cent and where shares in Insurance Company were acquired against provisions of S. 35 of Insurance Act 1938 without following provisions there of, as on the showing of defendant and major share holding was acquired prior to promulgation of Insurance Ordinance 2000, and it was pointed out that election of Directors was to be held in the month of June 2002, Court was constrained to the pass the order that defendants and directors of defendant (Bank) who were acting together can attend meeting that was to be held as per requisition vide notice dated 22.3.2002, date to be announced by plaintiff within 7 days from date of order-Defendants specified in order and Directors of Defendant Bank were restrained from exercising any right to interfere in management or in a bid to influence or in any manner exercise their rights to elect Directors-Such share­ holders, however would be entitled to all the dividends and profits that may be declared/announced by plaintiff during pendency of suit-­ Defendants or other person claiming them were restrained from exercising their right to seek election for them on Board of Directors of plaintiff till decision of suit. [P, 27] H

(1960) (1) All ER 768; 1960 (3) All ER 791; (1982) (3) All ER 1057; AIR 1933

P.C. 39; PLD 1971 SC 564; PLD 1993 SC 473; 1998 SCMR 2645; PLD 1987

SC 107; PLD 1965 SC 352; 1993 SCMR 1635,1644; PLD 1969 Karachi 278;

Black's Law Dictionaiy 6th Ed; 1991 (1) All ER 148 ref.

Mr. Anwer Mansoor Ahmed Khan, Advocate for plaintiffs. Mr. Khalid Anwer, Advocate alongwith Mr. Mehmood Mandviwala for Defendants Nos. 1 and 2.

Raja Qureshi, Advocate for Defendants Nos. 2 and 3.

Mr. FatehAli Gillani, Advocate Amicus curie.

Dates of hearing: 29.4.2002; 30.4.2002; 2.5.2002 & 3.5.2002.

order

Plaintiffs have filed the suit for declaration and injunction praying, inter alia, for the following reliefs:-

(i) Declaration to the effect that the shares acquired by the Defendants Nos. 1 and 2 either in their name or in the name of their nominees, concerns or units have been acquired in violation of the provisions of law and public policy;

(ii) grant a Permanent Injunction against the Defendants and each one of them including their nominees/persons acting for them or their industrial concerns from acquiring any further shares of the Plaintiff and from exercising any right or receiving any benefits, bonus shares and right of voting at the shareholders meetings;

(iii) grant a Permanent Injunction against the Defendants from seeking election for themselves or their nominees, employees, representatives or agents as Directors on the Board of the Plaintiff directly or indirectly for the benefit and in violation of the fiduciary obligation to the Plaintiff;

(iv) grant a Mandatory Injunction and a Direction to the Defendants to disinvest and sell in the open market all the shares in the Plaintiff company acquired by them in excess of the law for the time being in force whether such has been purchased by the Defendant No. 1. Defendant No. 2 or in the

names of the concerns of the Defendant No. 2 or in the name of their nominees;

(v) to Order penalties against the Defendants for violation of the provisions of law in accordance with law for the time being in force;

(vi) grant costs of the suit; or

(vii) grant any other/further/additional relief that this Hon'ble Court may deem fit and proper in the circumstances of the case.

In the suit, Plaintiffs have filed an Application i.e.CMA No. 2034/2002 under Order 39 Rules 1 and 2 CPC seeking interim reliefs to the above effect. Counter Affidavit and Rejoinder have been exchanged. The facts relevant for disposal of listed Application are as follows;

Plaintiff No. 1, Adamjee Insurance Company Ltd. ('AIC') a Public Company, incorporated under the Companies Act, 1913 (succeeded by the Companies Ordinance, 1984) and registered .as "INSURANCE COMPANY' under the Insurance Act, 1938 (since succeeded by Insurance Ordinance, 2000). Plaintiffs Nos. 2 to 4 are the shareholders collectively own and control 20% shares in the Plaintiff No. 1 Company. It is claimed that, the Plaintiff one of the leading and widely acclaimed Insurance Company between Vienna and Taipei,holding substantial shares in the insurance business in the private sectors.

Defendant No. 1, Muslim Commercial Bank Ltd. CMCB') is a Banking Company, working as a Schedule Bank under the Banking Companies Ordinance, 1962. It is averred that, it is owned, managed and controlled by Defendant No. 2 through its associate, front Companies and person under his influence and authority. Defendants Nos. 3 and 4 are Pension and Provident Funds, respectively created under a Trust for the benefit of employees of Defendant No. 1.

Case of the Plaintiffs is that, Defendant No. 2, an industrial tycoon, has acquired the Defendant No. 1 Muslim Commercial Bank, in a dubious manner, which is subject to scrutiny by the concerned authority. Plaintiffs assert that, the Defendant No. 2 in a inconspicuous and schematic manner acquired over 40% shares in the Plaintiff No. 1 Company far in excess of limit prescribed under Section 67 of the Insurance Ordinance, 2000. It is claimed that, the Defendant No. 2 exercising his influence over MCB's Employees Pension and Provident Funds, used the funds of both the Trusts to, acquire the shares of the Plaintiff No. 1 with malicious object to dethrone the present management of the Plaintiff No. 1. Plaintiffs have outlined the manner in which the shares in the Plaintiff No. 1 AIC, were acquired discreetly from time to time by the Defendants either in their own name or in the name of person directly under the influence of Defendant No. 2. Acquisition of such interest, has been seriously questioned by the Plaintiffs, as corporate raid and hostile takeover in a bid to seize the control management of Plaintiff No. 1 ('AIC'). All the allegations contained in the Plaint, listed application were denied. Listed application was resisted on the ground that acquiring of the shares by the Defendants, was in accordance with law. Defendants are within their rights not only to retain such share but also entitle to enjoy and exercise all the rights attached thereto.

Mr. Anwer Mansoor Khan,, learned counsel for the Plaintiffs contended that, the Defendant No. 1 ('MCB') a Banking Company, is regulated under the Banking Companies Ordinance, 1962, cannot go beyond the objects set out in its Memorandum of Association read together with Section 7(l)(a) to (o) of the Banking Companies Ordinance, 1962. According to him, sub-section (2) of Section 7 ibid, confines the domain of the Banking Company in terms of Section 7(1) of the Banking Companies Ordinance, 1962. To augment his arguments, he has drawn my attention to the definition of the Banking Company, as given under Section 5(b) ibid,and to the object of the Defendant- No, 1 as detailed in the Memorandum of Association Annexure 'E' to the Counter Affidavit. He has also drawn my attention to Clause 3 of the Memorandum, laying down objects for which the MCB was established, which clause is almost verbatim copy of Section 7(1) of the Banking Companies Ordinance, 1962. He also attempted to impress that the Banking Company, can only acquire shares in any other Company for the purposes of mere investment to earn money, dividends and profits on such investment and for no other purpose. He extracted support from object Clause (b) of the Memorandum which is almost reproduction of Clause (a) to sub-section 7(1) of the Banking Companies Ordinance, 1962 and Clause (m) of the Memorandum as well, Clause (n) to Section 7(1) of the Ordinance. In the earlier referred Clause, Banking Companies are authorized to deal in stock, fund, shares, debentures, debenture-stock, bonds, obligations, securities and investment of all kinds. Whereas, latter Clause deals with acquisition of the shares in any other Company having object similar to those of the Company i.e. MCB. According to Mr. Anwer Mansoor, object of the Plaintiff No. 1 Insurance Company and Defendant No. 1 the Banking Company are quite distinct and separate. Both the Companies operate in entirely different field. Therefore, the object clause does not permit acquisition of the shares of a Insurance Company for the purposes of controlling and managing the affairs by a Banking Company. Learned counsel also laid emphasis on Section 23(2) of the Banking Companies Ordinance, 1962 to impress that the Banking Company cannot acquire shareholding exceeding 30% of the paid up share capital of any other Company. Mr. Anwer Mansoor, learned counsel contended that, Defendants Nos. 1, 3 and 4 hold 40% shares in the Plaintiff No. 1 and Defendant No. 2 holds and controls in all over 51% of the controlling shares through other front Companies and person under his influence. He has drawn my attention to abridge Prospectus of Nishat Group, Annxure 'F' at Page 242 of the file, wherein, under the- captioned "background/history", it is claimed "Nishat Group" is holding significant shareholdings in Adamjee Insurance Company Limited, the largest Insurance in Pakistan" To demonstrate that, the Defendant No. 2 i.e. Mian Muhammad Mansha exercise control over such shares, through Nishat Group, which hold significant shares in Muslim Commercial Bank Limited. Mr. Anwer Mansoor, also pointed out that, after the Defendant No. 1 had filed a Counter Affidavit, one of the aide of Defendant No. 2 namely AH Munir, who is Senior Executive President of Defendant No. 1, who holds 2500 qualifying shares for Directorship has served a Notice upon the Plaintiff No. 1, proposing the name of A.F. Ferguson Chartered Accountants Company in place of present Auditor M/s. Ford, Rhodes, Robson, Morrow Chartered Accountants Company. He argued that, such move was not possible unless a person has a backing of 51% voting shares which, according to Mr. Anwer, establish that Defendant No. 2 has direct control over majority shares in the Plaintiff No. 1 Company. Said All Munir, has also signed the Counter Affidavit on behalf of Defendant No. 1 Bank. According to Mr. Anwer Mansoor presently, there is no law on Statute Books regulating such deceitful takeover or to provide protection against Corporate Raiders. According to him, Section 67 of the Insurance Ordinance, 2000 provides certain safeguard. Disclosure is to be made of any acquisition of interest in the Insurance Company by any person to the Securities and Exchange Commission of Pakistan, which was not made by the Defendant

No. 1, though he concedes that no rules so far have been framed under the Insurance Ordinance, 2000, yet the obligation casted upon the Defendant No. 1 of notifying such acquisition of shares in excess of 10% cannot be dispensed with. Any filling up of a Form in terms of Section 222 of the Companies Ordinance is not a sufficient disclosure. He contended that the Defendant No. 1 has no authority nor is mandated by its Memorandum and Articles of Association to takeover the Plaintiff No. 1. The acquisition of share, was alleged to be motivated, against public policy, absence of reasonableness, fair play in acquiring shares are circumstances, where the Court comes to the rescue and may pass injunctive orders against unfair mala fide bid and attempt to takeover. It was further argued that since amalgamation and merger was not possible as objects of both the Plaintiff No. 1 and Defendant No. 1 are not similar, therefore, this backdoor method has been employed. In support of his contention, he has relied upon the English Case laws as reported 1960/(1) All. E.R 768 upheld in Re-Bugle Press Ltd. 1960 (3) All. E.R. 791. He further argued that, what cannot be done directly cannot be allowed to be done indirectly. It was urged that the act of acquiring shares for the purposes of acquisition, that too, in a deceitful manner, is against Section 7(2) of the Ordinance, 1962 read with Memorandum of the Defendant No. 1, cannot be sustained. In support of his contention, he has relied upon the case laws as reported (i) Rolled Steel Products (holdings) Ltd. British Steel Corp. and others 1982 (3) All. E.R. 1057, (ii) AllexanderEwanCampLell v. Thomas Ernest Rofe(AIR 1933 Privy Council 39), (iii) Messrs G.M. PtaffAG. v. Sartaj Engineering Co. Ltd. and 3 others(PLD 1971 S.C. 564) and (iv) Mian Muhammad Nawaz Sharif v. President of Pakistan and other (PLD 1993 SC 473).

In contra, Mr. Khalid Anwer, learned counsel for the Defendants contended that, the case of the Plaintiff is totally baseless. Defendants acted within their rights and scope of activity as defined in its object clause. According to him, there is no malice, and shares were acquired in normal course of business. According to him, basic concealment have been made in the Plaint, which disentitled the Plaintiffs of any injunctive relief. It was asserted that, the total paid up capital of Plaintiff No. 1 is 54 Crores, 95% of the capital was wiped out last year on account of mis-management on the part of the Plaintiffs Nos. 2 to 4. It was contended that, the Plaintiffs Nos. 2 to 4 as claimed in Para. 4, are controlling the Plaintiff No. 1; therefore, the liability of such disaster squarely falls on them. It was argued that, Plaint is full of self-praise and commendations, which are nothing but hollow claims, the Plaintiff No. 1 is no more enjoying the tall reputation as alleged. According to Mr. Khalid Anwer, Defendant No. 1, since June 2001, has not purchased any shares and Defendant No. 2 does not subscribe, a single share of MCB. He termed the suit as an abortive attempt to prevent bona fide shareholders to question the glaring misstatement and concealment made in t !;c Audited accounts. He contended that the Plaintiffs malafidelydid not file notice of Annual General Meeting ("AGM") of the Company that was scheduled to be held on 7th May, 2002. He drew my attention to Annexure 'A' to the Counter Affidavit filed by the Defendant No. 1, which is the notice of AGM. Learned counsel pointed out, said meeting was to examine the Auditor's reports only and the Plaintiffs want to avoid any embarrassment by seeking restraining orders. According to him, Plaintiff No. 1AIC has been down graded by the Credit Rating Company. Since last three years the Plaintiff No. 1 is sustaining losses in its principal business of Insurance. Income is derived from other investment. According to him, the Auditors have given qualified reports observing that, the Plaintiff No. 1 AIC, has not followed International Accounting Standard as mandated under Section 234 of the Companies Ordinance, 1984. It was further urged that, unlike Adamjee family, who have inducted their kith and kin in Plaintiff No. 1. All Companies of Defendant No. 2 are managed, regulated and controlled by Professional Management Personnel. He further argued that, prior to the promulgation of Insurance Ordinance, 2000 there was no restriction on acquisition of shareholding of Insurance Company, restrictions were only imposed after the Insurance Ordinance, 2000 was brought on the Statute Book on 19/8/2000. He stated that, acquisition of shareholdings were reported to Securities and Exchange Commission of Pakistan. It was contended that, per Plaintiff s own showing 3 persons hold 2500 qualifying shares. It was argued that, if at all, only 3 persons could be appointed as Directors as against the strength of nine Directors in the Plaintiff No. 1, therefore, allegations of hostile takeover is mischievous and misconceived. As far as shareholding of Defendants Nos. 3 and 4 are concerned, it was urged that they are separate legal entities, object of both the Trusts is to make investment in the shares of blue-clip companies. According to him, a restriction was imposed by the Government in March 2000 restraining investment in Government Securities Scheme, therefore, both the Trust acquired shares in Plaintiff No. 1 Company. Mr. Khalid Anwer, took me through various documents to show that, losses have been sustained by the Plaintiff No. 1 AIC on account of contracting poor grade business; Credit Rating Company has down graded the Plaintiff No. 1. He contended that, Insurance Ordinance 2000, is a prospective legislation, Section 67 thereof, requires reporting, if acquisition of shares at any time in any particular year in over 10%. According to him, Section 67 ibid, manifest one transaction of over 10% share only, whereas, there are scores of small transaction spread over three years. Mr. Khalid Anwer has drawn support from Clauses 3(1) and 3(m) to the Memorandum, to argue that managing the business and shares, is one of the object of Defendant No. 1. In exercising of such powers MCB can manage the affairs of the AIC of whose shares they are holding. Mr. Khalid Anwer, has drawn my attention to Annexure 'A/1' to the Counter Affidavit which are the Minutes of 40th AGM dated 28th June 2001 of the Plaintiff No. 1 company reflecting participation of M/s. MUAUsmani, Abdul Hameed A. Karim as Proxy for MGB and Mr. Shaukat Ali as Proxy for Defendants Nos. 3 and 4 respectively. According to him, no exception to their participation in AGM was taken then, it does not lie in the mouth of the Plaintiffs now to, object the participation of the Defendants as Shareholders in the forthcoming meeting. He argued that right to vote is a fundamental right which cannot be taken away. He argued that, there are other Companies in which Plaintiffs hold substantial shares and also have nominee Directors, there is no allegation of hostile takeover. It was contended that, in order to conceal their self claimed high performance, the Plaintiffs want to foil any bid on the part of the Shareholders to scrutinize the accounts. It is argued that, the dispute is between the two Groups of Shareholders i.e. Adamjee family and MCB. The Plaintiff No. 1 ought to be impartial in such tug of war and the Plaintiffs Nos. 2 to 4 are not doing any service to protect the interest of Plaintiff No. 1. In support of his contention, he has relied upon the case laws reported as (1) Muhammad Sharif v. Government of Pakistan (1998 SCMR 2645), (2) A.R. Khan v. P.N. Boga (1987 S.C. 107) and (3) Trustees of Port of Chittongong v. Saleem Nawiqation Co. Ltd. (PLD 1965 S.C. 352).

Mr. Abdul Ghafoor Qureshi has filed a Statement duly signed by Mr. Raja Qureshi, learned counsel appearing on behalf of the Defendants Nos. 2 and 3 adopting the arguments advanced by Mr. Khalid Anwer, learned counsel for Defendants Nos. 1 and 2. The statement is taken on record.

After hearing the arguments of all the learned counsel for the parties. I deemed proper to appoint Mr. Fateh AH Villani and 'Amicus Curie' to assist the Court on the issues involved. I record my appreciation for the valuable assistance rendered by him.

Mr. Villani, contended that both the Banking as well as Insurance Business are in regulated regime. Both the sectors are being regulated in the best of larger Public Interest. According to him, Insurance Business is regulated under Section 6 of Insurance Ordinance, 2000, therefore, it is subject to supervision of Securities and Exchange Commission of Pakistan ('SECP'). According to him, it is regulated under Clauses R to U of sub­section (4) of Section 20 of SECP Act, 1997. He further contends that, Insurance Business can only be carried out in terms of Section 6 of Insurance Ordinance, 2000 by a specified person who is not authorized to carry on other business. Mr. Villani states that, the Defendant No. 2, MCB a Banking Company, is strictly regulated and controlled in its affairs by the State Bank of Pakistan. Banking Company, cannot deviate from its principle field of activity z.e. Banking Business^ According to him, in view of the above, subsidiary company and holding share in subsidiary company by the Banking Company is restricted to 30% in terms of Section 23(3) of the Ordinance, 1962. It was contended that State Bank of Pakistan, is clothed with authority to control and regulate the Banking Company in terms of Sections 40(A), 42 and 43(A) of the Ordinance of 1962. Mr. Villani, elucidated that objects of both the companies are separate and distinct, field of activity of one is entirely different from the other. According to him, prohibition can be read under the Insurance Ordinance, 2000, that Insurance Company cannot indulge into any other business. It is apparently for this reason the amalgamation or merger of Insurance Company with that of any company having different object is not provided for under the Insurance Act (Section 68 of the Ordinance of 2000) and similar restrictions can be deciphered from the provisions (Section 48) of the Banking Companies Ordinance, 1962. Learned Amicus Curie was .of the view that in the instant case the principal Object in terms of Clause 3, (a) to the Memorandum of Association of the Defendant No. 1 MCB is to carry on Banking Business. Other clauses are sub-servient to the principal clause and are to be employed in furtherance of its principal object. He further submitted that, where there are several clauses in the Memorandum any clause that deals specifically with any particular subject then the provision of such clause would override the General Clause. According to learned Amicus Curie, Clause (b) to the object Clause 3 of the Memorandum is a General Clause which deals with acquiring shares and dealing with stocks and securities of the company, whereas, Clause 3 (m) is more specific clause providing for acquisition of the share of a company, which according to him, will prevail over the General Clause. In support of his contention, he has placed reliance on Golden Graphics (Put.) Ltd. v. Director of Vigilance (1993 SCMR 1635, 1644). According to him, the Defendant No. 1 MCB admittedly owns 29.37% of the shares of the Plaintiff in its own name which is barely 0.63% short to 30%. He further elaborates that 8.88% i.e. 4.9% and 3..93% respectively are held by Pension Funds Trust and Provident Funds Trust respectively are though held by separate entity but are apparently managed and controlled by the Defendant No. 1 Bank, which apparently give it control over 38.5% of beneficial interest shares in the Plaintiff No. 1 AIC. Besides, some other shares are held by other Nominee persons employed or in management of MCB, and such shareholding certainly gives ample power and authority to elect Directors enough to control and influence the policy decision of the Plaintiff No. 1. He further contends that no doubt 25.45% of the shares were acquired by MCB prior to 19th August 2000 i.e. date of promulgation Ordinance of 2000 and 3.92% were acquired thereafter. According to his reading of Section 67 of the Insurance Ordinance, 2000, shares in excess of 10% could have been acquired only after approval of SECP. Another significant point highlighted by Mr. Villani, is that under the Memorandum of the Defendant No. 1, MCB, incidental and ancillary business activities are outlined but Insurance Business, is conspicuously absent, in his view, when Defendant No. 2 had acquired quite a sizeable number of shares in the Insurance Company, then both the State Bank of Pakistan as well as SECP in terms of Section 20(i) of SECP Ordinance, 1997 ought to have shown concern in carrying out the necessary exercise of regulating and/or monitoring such acquisition of shares which is in the Public Interest. According to him, Insurance Business is highly risky business and the Bank deals with Public Money is expected to make investment in comparatively safe and sound business proposition.

Mr. Villani, further contended that, in case where investigation are under way, against any company, then the SECP has authority in terms of Section 279 of the Companies Ordinance, 1984 to regulate the transfer of shares and even imposed restrictions on exercise of rights attached to such shares. To a specific question by the Court that, where no investigation are under way or in case where the authorities apparently have abdicated or are oblivious of their responsibility and duties, would it be appropriate for the Court to pass any orders in terms of Section 279 of Companies Ordinance, 1984. The Answer was in affirmative. According to him, such powers could only be exercised by the Commission where it appears in connection with any investigation and that too, where it is of opinion that transfer of the shares in any company would be prejudicial to the Public Interest. It was lastly contended that, sensavities of the issues involved and in view of the Public importance attached to both, the Insurance as well as the Banking Business, in Public Sector it was expedient for the Regulatory Agencies to have intervened in this matter. He pointed out that, a proposed draft legislation dealing with listed companies substantial acquisition of voting shares and take over, is under consideration of the Government, since almost two years, but same has not yet been promulgated for reasons best known to the relevant quarter, which position is confirmed by both the learned counsels. According to him, had such law being promulgated, perhaps this suit, might not have been filed.

The Defendant No. 1 admittedly, is a Banking Company, within the meaning of Section 5 of the Banking Companies Ordinance, 1962 (hereinafter referred to as the "Ordinance, 1962") a Banking Company in addition to the business of Banking as provided under Section 7(1) may engage in any or more of the business provided for, in Clauses (a) to (o) thereof. In order to appreciate the respective contentions of both the learned counsels, it will be advantageous to reproduces Section 7 of the Ordinance, 1962, which runs as follows:

(1) In addition to the business of banking, a banking company may engage in anyone or more of the following forms of business, namely:--

(a) the borrowing, raising or taking up of money; the lending or advancing of money either upon or without security, the drawing, making, accepting, discounting, buying, selling, collecting and dealing in bills of exchange, hundis, promissory notes, coupons, drafts, bills of lading, railway receipts, warrants, debentures, certificates, scrips, [participation term certificates, term finance certificates, musharika certificates, modarabacertificates and such other instruments as may be approved by the State Bank] and other instruments and securities whether transferable or negotiable or not; the granting and issuing of letters of credit, travelers cheques and circular notes; the buying, selling and dealing in bullion and specie; the buying and selling of foreign exchange including foreign bank notes, the acquiring, holding, issuing on commission, underwriting and dealing in stock, fund, shares, debentures, debenture-stock, bonds, obligations, securities [participation term certificates, term finance certificates, musharika certificates, modarabacertificates and such other instruments as may be approved by the State Bank] and investments of all kinds; the purchasing and selling of bonds, scrips or other forms of securities, [participation term certificates, term finance certificates, musharika certificates modarabacertificates and such other instruments as may be approved by the State Bank] on behalf of constituents or others; the negotiating of loans and advances; the receiving of all kinds of bonds, scrips or valuables on deposit or for safe custody or otherwise; the providing of safe deposit vaults; the collecting and transmitting of money and securities;

(a) the providing of finance as defined in the Banking Tribunals Ordinance, 1984;]

(b) acting as agents for any Government or local authority or any other person of persons; the carrying on 'of agency, business of any description including the clearing and forwarding of foods, giving of receipts and discharges and otherwise acting as an attorney on behalf of customers, but excluding the business of a managing agent or treasurer of a company;

(b) acting as "modaraba company" under the provisions of the ModarabaCompanies and Modaraba(Floatation and Control) Ordinance, 1980 (XXXI of 1980);]

(c) contracting for public and private loans and negotiating and issuing the same;

(d) the effecting, insuring, guaranteeing, underwriting, participating in managing and carrying out of any issue, public of private, Government municipal or other loans or of shares, stock, debentures, debenture-stock or other securities or debenture stock of any company, corporation or association and the lending of money for the purposes of any such issue;

(e) carrying on and transacting every kind of guarantee, indemnity and business;

(e) (e) purchase or acquisition in the normal course of its banking business of any property, including commodities, patents, designs, trade marks and copyrights, with or without buy-back arrangements by the sellers or for sale in the form of hire purchase of an deferred payment basis with mark-up or for leasing or licensing or for rent-sharing or for any other mode of financing;]

(f) managing, selling and realizing any property which may come into the possession of the company in satisfaction or part satisfaction of any of its claims;

(g) acquiring and holding and generally dealing with any property or any right, title or interest in any such property which may form the security or part of the security for any loans or advances or which may be connected with any such security;

(h) undertaking and executing trusts;

(i) undertaking the administration of estates as executor, trustee or otherwise;

(j) establishing and supporting or aiding in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit employees or ex-employees of the company or the dependents or connections of such persons, granting pensions and allowances and making payments towards insurance; subscribing to or guaranteeing moneys for charitable or benevolent objects or for any exhibition or for any public, general or useful object;

(k) the acquisition construction, maintenance and alteration of any building or works necessary or convenient for the purposes of the company;

(1) selling, improving, managing, developing, exchanging, leasing, mortgaging, disposing of or turning into account or otherwise dealing with all or any part of the property and rights of the company;

(m) acquiring and undertaking the whole or any part of the business of any person or company, when such business is of a nature enumerated or described in the sub-section;

(n) doing all such other things as are incidental or conducive to the promotion or advancement of the business of the company;

(o) any other form of business which the Federal Government may, by notification in the official Gazette, specify as a form of business in which it is lawful for a banking company to engage;

(2) No banking company shall engage in. any form of business other than those referred to in sub-section (1).

By virtue of sub-section (2) referred to above, restriction is imposed on a Banking Company not to engage in any form of business other than, those detailed in sub-section (1) thereof. Main business a Banking Company could do is the "Banking Business Banking is defined under Section 5(b) of the Ordinance to mean: the accepting, for the purposes of lending of investment of deposit of money from the public, repayable on demand or otherwise and withdrawable by cheque, draft order or otherwise."

From the bare reading of the above referred Sections, it is apparent that, the Banking Company is expressly prohibited from carrying, on any kind of business not enumerated in Clauses (a) to (o) of Section 7(1) of the said Ordinance. Memorandum and Articles of Defendant No. 1 is on record as Annexure 'E' to the Counter Affidavit filed by the Defendant No. 1 which outline sphere of its activity in its object Clause (3). Perusal of which shows that, the Clause (a) thereof, by and large in adaptation of Section 5(b) of the Ordinance of 1962 and sub-clauses (b) to (s) of the Memorandum are almost verbatim adaptation of clause (a) to (o) of sub-section (1) to Section 7 of the Ordinance of 1962 with exception to certain amendment brought in Section 7 in 1980 and 1984 respectively and some new Clauses (a) (a), (b) (b) and (e) (e) were also made by Ordinance No. LVII of 1984 and Ordinance No. LVIII of 1980 respectively, therefore, I do not deem it necessary to reproduce object clause of Memorandum, as Section 7 of the Ordinance, 1962 has been reproduced above.

Mr. Anwer Mansoor, learned counsel for the Plaintiffs vehemently contended that Company cannot go beyond its Memorandum. According to him, prime object as specified in the Memorandum of Defendant No. 1. that \ is, carrying on Banking Business, according to him, any other business are incidental or ancillary thereto. He has drawn my attention to objection Clause 3 (b) to emphasis that, the Defendant No. 1 may acquire hold and deal in stock, funds, shares etc. for the purposes of investment, deposit for safe custody or otherwise. According to him acquiring shares for the purposes of acquisition of a Company is provided for in a specific clause (m) to object clause 3 to the Memorandum, such acquisition could only be made in any other company having object similar to those of Banking Company

and not otherwise. Clause 3(b) of the Memorandum is almost verbatim reproduction of Clause 7 (1) (a) of the Ordinance, 1962 Clause (m) of the Memorandum reads as follows:-

"taking or otherwise acquiring and holding shares in any other company having objects similar to those of the company."

Section 7(1) (m) of the Ordinance of 1962 reads as follows:

"acquiring and undertaking the whole or any part of business of any person or company, when such business is of a nature enumerated or described in the sub-section."

Memorandum of Association, in fact, defines the sphere of the activity, a company can venture into or undertake during the course of its business pursuit. The object and purpose of outlining the sphere of activity. In the object clause is mandated for a limited liability company under Section 16(iii), and for other companies not limited by shares under Section 18(iii) of the Companies Ordinance, 1984. Such parameters are laid down with obvious aim, so that a body corporate may know its scope and field of activity in which it has to invest its capital and so also to make any person dealing with company to be aware of the powers and jurisdiction of the company in which it may venture. Where law provides for a larger scope of activity a Company may venture, but the Company itself, chooses to limit its scope of activity, than it is the parameter circumscribed by the Company in its Memorandum will prevail. In case, Company is desirous to stretch scope of its object to the maximum as permissible under law, the then such object could only be achieved by amending the object clause. It can be seen from reading clause (m) to the Memorandum, reproduced above that, MCB, chose to restrict or narrow down its perspective, limiting its power to acquire share in any other Company having object similar to those of the Company i.e. MCB.

Where a company comes into existence for the attainment of a specified and specialized object then all other objects are incidental and ancillary to the main or principal object for which company was formed, therefore, it will not be wrong to say that all other objects mentioned in Object Clause are to be pursued in furtherance of its main and principal object, clause, which in the instant case is the Banking Business. In the case of Commissioner of Income Tax (Central) Karachi v. Messrs Habib Insurance Company Ltd., Karachi (PLD 1969 Karachi 278). Similar view taken by a Division Bench of this Court at Page 293 is as follows:

"The cardinal rule for construing the memorandum of a limited liability company is that when a company has a primary object all other clauses in the memorandum are to be understood as ancillary to the main object of the Company".

Main thrust of arguments of the Plaintiffs Counsel that Defendant No. 1 in a schematic manner acquired directly or indirectly shareholding of the Plaintiff No. 1 in order to dethrone the present management of the Plaintiff No. 1 with intent to takeover the Plaintiff No. 1. According to the learned counsel, if the shares in the Plaintiff No. 1 are acquired not for the investment purposes as enumerated in object Clause 3(b), same is not permitted in view of bar that could be read in Section 7(2) and 23(2) of the Banking Companies Ordinance, 1962 read with clause (m) to its object clause 3 to the Memorandum. In furtherance of such arguments, he also placed reliance on Section 67 of the Insurance Ordinance, 2000.

In order to appreciate respective arguments of^all the counsel, detail of Shares acquired by the Defendants would also be relevant, same is as follows:-

'AIC' Shares purchased/held by: 'MCB' MCB Employees' Pension Fund MCB Provident Fund Pak Staff

During August 1.2000 to March 20.2002

| | | | | --- | --- | --- | | S.No. | Date MCB % MCB % Employees Pension Fund | MCB % Employees Provident Fund | | 01. | 1.8.2000 10,811,235 22.89 - | - | | 02. | 29.9.2000 11,847,235 25.08 173,000 0.37 | 1,402,500 2.97 | | 03. | 1.11.2000 11,862,235 25.11 " | . | | 04. | 1.12.2000 11,916,735 25.23 894,500 1.89 | . | | 05. | 1.1.2001 " " 1,753,000 3.71 | H N | | 0.6 | 1.2.2001 " " 2,140,300 4.53 | N H | | 0.7 | 1.3.2001 12,850,235 27.20 " | n M | | 0.8 | 2.4.2001 13,875,235 29.37 | " | | 09. | 28.5.2001 13,875,235 29.37 2,140,300 4.53 | 1,402,500 2.97 | | 15% | Bonus Sh. 2,081,285 321,045 | 210,375 | | alloted. | | | | | 15,956,520 29.37 2,461,345 4.53 | 1,61,875 2.97 | | 10. | 1.8.2001 " " 2,686,845 4.95 | 1,813,875 3.34 | | 11. | 1.9.2001 " " . " | « | | 12. | 1.10.2001 ' " | - |

| | | | | --- | --- | --- | | 13. | 1.11.2001 " | H H H K B | | 14. | 1.12.2001 " | . . | | 15. | 1.1.2002 " | „ , . . . | | 16. | 1.2.2002 ' | 2,012,375 3.70 | | 17. | 20.3.2002 " | 2,137,375 3.93 |

Collectively Defendants Nos. 1, 3, and 4 hold 38.25% shares in Plaintiff No. 1 as on 20/3/2002.

In the Banking Companies Ordinance, 1962, restriction is imposed on a Banking Company not to hold share in any company in any capacity may it be, as Pledgee. Mortgagee or absolute Owner of an amount exceeding 30% of paid up capital of that company or of its own paid up share capital [Section 23(2)]. While in the latter Ordinance any proposed transaction for acquiring shareholding of more than 10% in a life Insurance Company is subject to the permission of Securities and Exchange Commission of Pakistan. It was argued that no such permission was obtained from the Securities and Exchange Commission, therefore, the acquisition of the shares in excess of 10% in an Insurance Company can neither be approved nor Defendants could be allowed to exercise any right in relation thereto, including right of vote in any meeting. It was further argued though such devise of acquisition of share by the Defendants beyond the permissible limit Defendants Nos. 1 and 2 have attempted to make the Plaintiff No. 1 as a subsidiary company which is forbidden in terms of Section 23(2) and (3) of the Companies Ordinance, 1984.

Mr. Khalid Anwer, learned counsel for the Defendants conversely argued that there are no restriction on the Banking Company to carry on any other business in addition to the Banking business as can be spelt out from Section 7(1) of the Companies Ordinance. As discussed above, the prime and principal business of a Banking Company is to transit Banking Business as enumerated under Section 5(b) of the Ordinance, 1962. In view of the dicta laid down in the case of Habib Insurance Company Limited (supra) all the other clauses in the Memorandum are to be read ancillary and incidental to the main business. Contention of Mr. Khalid Anwer that under clause (1) and (p) of the Memorandum corresponding to Section 7(1)(1) and (m) respectively mandates, taking or otherwise acquiring and holding-shares in any other company and managing the property and rights of the company. According to him, if the shares in the Plaintiff No. 1 are acquired then all rights attached thereto, including right to vote, are exercisable by the shareholders in an effort to improve the working of the Plaintiff No. 1 .by participating in the decision making meeting. In doing so, in fact they will protect their property so that its value may not diminish. Arguments are both ingenuous and interesting. It was urged that such course is. in furtherance of developing and protecting its rights and interests in the share. According to him if the Defendant No. 1 prosper then ultimate benefit will go to the Depositor whose funds are used for the purposes of investment. In order to appreciate the arguments, it will be advantageous the understood restriction on the nature of the subsidiary of a Banking Company which is defined under Section 23 of the Banking Companies Ordinance, 1962. Section 23 lays down restriction on the nature of the subsidiary company. Subsidiary company is defined under Section 3 of the Companies Ordinance, 1984 as follows:

1. Meaning of subsidiary" and "holding company"--(l) for

purposes of this Ordinance, a company or body corporate shall be deemed to be a subsidiary of another if-

(a) that other company or body corporate directly or indirectly controls, beneficially owns or holds more than fifty per cent of its voting securities or otherwise has power to elect and appoint more than fifty per cent of its directors; or

(b) the first mentioned company or body corporate is a subsidiary of any company or body corporate which is that other's subsidiaiy.

(1) For the purpose of this Ordinance, a company shall be deemed to be another's holding company if, but only if, that other is its subsidiaiy.

Section 23 of the Banking Companies Ordinance, 1962 runs as follows:

Restriction on the nature of subsidiary compames.--(l) A

Banking company shall not form any subsidiaiy company except a subsidiaiy company formed for one or more of the following purposes, namely:-

(a) the undertaking and executing of trusts;

(b) the undertaking of the administration of estates as executor, trustee or otherwise;

[(bb) the carrying on of the business of modarabaunder

the provisions of the ModarabaCompanies and Modaraba(Floatation and Control) Ordinance, 1980 (XXXI of 1980)];

(c) the providing of safe deposit vaults;

(d) with the previous permission in writing of the State Bank, the carrying on of the business of Banking exclusively outside Pakistan; [x]

[(dd) the conduct of any form of business permitted by Section 7; or ]

(e) such other purposes as are incidental to the. business of Banking.

(2) Save as provided in sub-section (1), no Banking company shall hold shares in any company whether as pledge, mortgagee or absolute owner, of an amount exceeding thirty percent of the paid-up share capital of that company or thirty percent of its own paid-up share capital and reserves, whichever is less; Provided that any Banking company which is on the date of commencement of this Ordinance holding any shares in contravention of the provisions of this sub-section shall not be liable to any penalty therefor if it reports the matter without delay, to the State Bank and if it brings its holding of shares into conformity with the said provisions within such period, not exceeding two years, as the State Bank may think fit to allow.

(3) Save as provided in sub-section (1) and notwithstanding anything contained in sub-section (2), a Banking company shall not, after the expiry of one year from the date of commencement of this Ordinance hold shares, whether as pledgee, mortgagee or absolute owner, in any company in the management of which any managing director or manager of the Banking company is in any manner concerned or interested.

In view of the limitation prescribed under Section 23(i) acquisition of shares in AIC Company does not fall under Clause 23(l)(a) to (e) reproduced above, at the best, it could hold share in any Company within limits of 30% of paid up capital as provided for, subsidiaiy, company, can only be founded by a Banking Company for the purpose as are incidental to the business of Banking. Admittedly, the Defendant No. 1 hold controlling shares directly itself and indirectly through Defendants Nos. 3 and 4 as is reflected from the Abridge Prospectus of Nishat Group referred in narrative above and also as per tabulated share holding referred to above in the name of two Trust Funds.

Company law recognizes amalgamation and merger of two Companies pursuant to Scheme of Amalgamation as may be approved by the Court of law in terms of Section 284 of the Companies Ordinance, 1984. Corresponding provisions providing amalgamation of a Banking Company with another Company are laid down in Sections 47 and 48 of the Banking Companies Ordinance, 1962. Similarly provision for the amalgamation of Insurance Company is provided for in Section 68 of the Insurance Ordinance, 2000. The word 'Amalgamation" under the Black's Law Dictionary, Sixth Edition, means union of different races, or diverse elements, societies, unions, associations, or corporations, so as to form a homogeneous whole or new body; interfusion; intermarriage; consolidation; merger; coalescence; as, the amalgamation of stock "Merger" is also defined under the Black's Law Dictionary (Sixth Edition) "it means the fusion or absorption of one thing or right into another; generally spoken of a case where one of the subjects is of less dignity or importance than the other. Besides above conventional mode acquiring interest and rights in another company recognized under law, another mode not uncommon in commercial world is popularly known as "Takeover". In the scheme of arrangement for the purposes of amalgamation or merger rights of various class of stake holders to some extent are taken care of, as the schemes are subject to approval and judicial scrutiny, thereby rights of all the class of stake holders receive statutory protection and Judicial security. Whereas, in a takeover bid, such rights, under the present scheme of law in Pakistan, are not protected and secured. "Takeover bid" is defined under the Black's Law Dictionary (Sixth Edition) as "an attempt by an outside corporation or group, usually called the aggressor or insurgent, to wrest control away from incumbent management of target corporation. A takeover attempt may involve purchase of shares, a tender offer, a sale of assets or a proposal that the target merge voluntarily into the aggressor.

Indeed, takeover may not be employed as a mean of merging or amalgamating two or more companies which are going concern the aggressor or raiding company may acquire the control of another company or the target company discreetly for more than one reason. For instance, shares of a viable company are available at a considerable low value then its actual or potential value or that, it has substantial tangible assets and properties which could be easily appropriated and taken over by the raiding company or to destabilize or eliminate its competitor with monopolistic tendency or it may be for lust of financial/economical power. Since such takeover are usually not always viewed as friendly gesture. In case, where takeover bid, is aimed at to sub-due and assume the control of the target company for object other than mere investment, if such be the case then it is construed as a hostile takeover in a bid to dethrone the existing management or to cripple the running of business by interfering in the regular affairs of the business activity or to influence the policy decision of the target company for its own purpose and object whatever it may be. From bare reading of Section 23 read with Sections 47 and 48 of the Banking Companies Ordinance, 1962 and Section 67 of the Insurance Ordinance, 2000. It is clear that law restricts and prohibits amalgamation of a Banking Company with any other company not having object similar,to that of a Banking Company nor a Banking Company can form a subsidiaiy company for a purpose other than set out in Section 23(1) likewise, amalgamation of an Insurance Company with any company other than Insurance Company is not permissible. It is settled proposition of law that what cannot be done directly, cannot be achieved in directly. Such rule was observed lastly by Apex Court in the case of Mian Muhammad Nawaz Sharif (supra) at Page. 687. Therefore, there is no difficulty in arriving at a conclusion that objects both of Banking Company and that of Insurance Company are altogether distinct and separate. Law restricts carrying on Banking and Insurance business under two different legislatures neither of the Company, can carry on business of either, other than its own. Therefore, the Banking Company, prima facie, cannot undertake the business of Insurance Company and likewise Insurance Company cannot undertake business of the Banking Company. As there is a specific prohibition of amalgamation of two types of company under the Banking Companies Ordinance, 1962 and Insurance Ordinance, 2000 respectively and so also restrictions are placed in forming subsidiary company. Admittedly Mr. Ali Munir, Senior Executive Vice President of MCB, holding shares qualifying to elect him as Director in AIC and his apparent interest in the management and affairs of AIC is manifest from the Notice of Change of Auditors, such being the position, in terms of Sub-section (3) of Section 23 of Banking Company Ordinance, 1962. Banking Company (MCB) prima facie cannot hold share in any capacity in which Managing Director or Manager of Banking Company is in any manner concerned or interest. Contention of Mr. Khalid Anwar, learned counsel for Defendants Nos. 1 and 2 is that the shares that were acquired by the Defendant No. 1 were in terms of Section 67 of the Insurance Ordinance, 2000 which was promulgated on 19th August, 2000 is prospective in operation. Any acquisition of more than 10% interest in the Defendant No. 1 cannot be construed violative of Section 67 ibid. According to him, it is only required that 10% shares acquired in any one year are to be reported to the SECP according to him, the shares were acquired progressively and after promulgation of the Ordinance, 2000 very nominal shares were acquired. Argument appears to be impressive and ingenious. In order to appreciate such arguments perusal of Section 67 of the Insurance Ordinance would be beneficial which runs as follows:

1. Approval of acquisition or transfer.--(l) Any proposed transaction for the acquisition of a shareholding of more than ten per cent, (10%) in an insurance company or, in the rase of a non-life insurer, of the whole or any part exceeding ten per cent, (measured by either the premium income or the sum of the liabilities for unearned premium and outstanding claims and the premium deficiency reserve proposed to be acquired) of the business locate'd in Pakistan of an insurer (whether in one or a number of related transactions and whether at the same or different times) shall not proceed unless, on application by the transferor, approval is given by the Commission.

Explanation.--A number of "transactions shall be deemed to be related if there being more than one purchaser, those purchasers are acting together or in concert or if, in all the facts and circumstances of the case, there is such a relationship between the purchasers or such common purpose between them so that it would be reasonable to conclude that the transactions are related;

(2) The application required under sub-section (1) shall be made in such form and shall be accompanied by such documents as may be prescribed.

(3) The Commission may, within 15 days from the receipt of the application, require the applicant to submit such further documents and information as may be required for it to make an informed decision about the transaction in the interests of policy holders and shareholders and the applicant shall provide the same within a period of seven days or such later period as the applicant may in writing request.

(4) If after sixty days of the receipt of the application or the receipt of any additional material under sub-section (3), approval has not been granted or a notice given to the applicant declining approval, the Commission shall be deemed to have given its approval.

(5) Approval given or deemed to be given by the Commission under this section shall not preclude the necessity of obtaining any such approval or consent required to be obtained from the Commission under the provisions of any other applicable law.

From a bare reading of above provision, it is clear that any proposed transaction for the acquisition of a shareholding of more than 10% in an Insurance Company of Pakistan, whether in one or a number of related transaction and whether at the same or different time shall not proceed unless on application by the transfer approval is given by the Commission. In case, where there are number of purchasers and relationship inter-se is apparently for common purpose than in terms of Section 67, all such transactions treated by one and same person. Contention of Mr. Khalid Anwar, that, such disclosure was made in the returns required to be filed under the Companies Ordinance, 1984, is substantial compliance, such arguments are not tenable. Insurance Ordinance, 2000, requires independent application by the acquirer before acquisition of shares exceeding 10% in Insurance which admittedly was not done. It was argued that, for the reason, no form of application since had been prescribed. It was argued that for the reason no form of application has since been prescribed. It may be observed that requirement to seek prior approval from the Commission as mandated in term of Section 67(1) of the Insurance Ordinance, 2000 cannot be dispensed with, simply because no particular form of application has been prescribed, as the requirement to seek prior approval is separate and distinct requirement that may be necessary under provision of any other law [see Section 67(5)]. Absence of prescribed form of application is also no excuse to seek approval as required under Sub-section (1) of Section 67 of the said Ordinance, as form of application is merely powers conferred under the Ordinance to the Commission are merely enabling provision, failure to prescribe form of application will not render the requirement to seek prior approval of Commission nugatory, despite absence of prescribed form and Defendant No. 1 could have made its intention of acquiring share beyond 10%. Prima facie, absence of such approval, renders "the acquisition of shares questionable. Since Defendant No. 1 by virtue of it being one of the major contributory to the Trust Funds of Defendant No. 3 and exercise controlling influence, all the transaction by them, prima facie, appears to be related transaction in concert for the allainment of some common purpose as major percentage of shares by Defendants Nos. 3 and 4 were acquired after the promulgation of Insurance Ordinance, 2000 i.e. after 18/9/2000 and apparent after the Defendant No. 1 as is reflected from the schedule of such acquisition of share.

Before promulgation of the Ordinance, 2000 on 18/9/2000 Insurance Act, 1938 was in the field. Under Section 35 of the Act of 1938, no insurance business could be transferred to or amalgamated with business other than to that of any other Insurance Company that too in accordance with scheme prepared under that Section and sanctioned by the Court. It, therefore, it follows that prior to the Ordinance, 2000. Insurance Business could not have been transferred to a Company other than Insurance Company. When Insurance Business could not have been transferred under the Act of 1938, then conversely no such business could have been acquired by a Non-insurance Company, any proposition to the contrary would be in apparent negation of statutory provision.

It may be observed that institute of managing agent has been done away with in 1972 and through device of acquiring shares and managing the control of any other company may it be in the form of subsidiary or associated company of the Banking Company under the present of law, cannot be approved. Prima facie, under Section 209 of the Companies Ordinance, 1984 a Company holding share in another Company either in its own name or in the name of its nominee has authority to exercise rights attached to such shares including appointment or get elected any person as Director in such company of which it hold share or beneficial interest. Such exercise of right commensurate with the number or value of such interest held as may be permissible under the law. The question is whether the Defendant holding such seizable number of share directly or indirectly in AIC, is permitted under the law' to hold such share and so also exercise rights attached thereto is indeed debatable.

Adverting to other arguments of Mr. Khalid Anwer, learned counsel, in terms of Clause (b) of the Memorandum, the Banking Company indeed was authorized to invest in the shares of another company for the purposes of investment. Apparently, the Defendant No. 1 is under the influence and control of Defendant No. 2, and shares in Plaintiff No. 1 are held in the name of Directors of Defendant No. 1 and shareholding in the name of Defendants Nos. 3 and 4 could, prima facie be said to be related inter-se. When number of purchasers of the shares are acting together or in conceit or if on account of the relationship between them appears to so proximate and influence of one can easily be inferred on other than the purpose of gaining control over the management in business of the Plaintiff No. 1 is apparent and obvious. Fact that said shares were only acquired when the prices were falling and shares were retained not for the purposes of trading to earn profit as there was no selling of the shares by the Defendant No. 1 arid its other aides. Key business of a Banking Company is lending or investment as provided for, under Section 5(b) of Ordinance, 1962. Investment has not been defined in the Ordinance, 1962. In Blacks Law Dictionary (Sixth Edition), it is defined as "an expenditure to acquire property or other assets in order to produce revenue; the asset so acquired. The placing capital or laying out of money in a way intended to secure income or profit from its employment; to purchase securities of a more or less permanent nature, or to place money or property in business venture or real estate, or otherwise by it out so that it may produce revenue or gain or both in future. A distinction between the business of investment and the purchase of sale of investment by a person is enumerated in the case of Commissioner Income Tax (supra)(PLD 1969 Karachi 278, at page 291) is as follows:

"The principle underlying the above definitions is that in order to constitute a business, there must be a continuous exercise of activity for the purpose of gain. This element of continuity is essential to constitute a business of investment. The reason for this condition is that in modern society people no longer hold their savings in gold or cash but are encouraged to invest their savings in property and securities, yet a man who invests his savings in buying a property would not be said to be carrying on a business if he lets out the property on rent, nor would a person who has purchased shares out of his savings be said to cany on business merely because he derives income from his investments. If, however, he regularly buys and sells property or shares, so as to make profit out of the fluctuations in the prices of property or shares, then it would be said that he was carrying on the business of investment; there is thus a fundamental distinction between the business of investment, and the purchase and sale of investments by a person."

From the perusal of the above observation and from the tend of arguments and pleadings. Prima facie, the acquisition of share by the Defendant No. 1 is not the investment made in the shares of the Plaintiff No. 1 by the Defendant in furtherance of its principal object as defined under Sections 5(b) and 7(1) of the Ordinance, 1962 read with Object Clauses 3(a) as enumerated in its Memorandum, Apparently andprima facie, it appear to be a bid to takeover the Plaintiff No. 1 through backdoor or speaking in corporate parlance it amounts to 'hostile takeovers'. As already observed above, when the law provides a particular thing to be done in a particular fashion or manner that it is to be done in same fashion and manner. Both, the Banking Ordinance, 1962 and Insurance Ordinance, 2000 lays down the manner in which the business in other company could be acquired and not otherwise. Such acquisition of the share is apparently and prima facie against the mandate of law. The question that may arise is when a company is considered to be holding shares for the purpose of investment and to earn the profit out of investment attending circumstances are to be seen. It has come on record that Mr. Ali Munir one of the Senior Executive Vice-President of the Defendant No. 1 also holds 2500 shares in the Plaintiffs No. 1 Company, after the Counter-Affidavit has been filed by the Defendant No. 1 in this matter had served a Notice dated 10th April 2002 expressing his intention to move for substitution of the Auditors of the Company. No doubt shareholders are within their rights to exercise all rights as are attached to the shares but such exercise of the right at this juncture certainly demonstrate that the Defendant No. 1 is tightening the nose around the Plaintiff No. 1 and is serious to participate and involve itself in the business of the Plaintiff No. 1 and is serious to influence the policy decision if not meddling in its affairs.

As rightly pointed out by learned Amicus.that Defendant No. 6. State Bank of Pakistan, is regulatory Agency for the purpose of a Banking Company and exercise authority and control over the working and functioning of MCB, the Defendant No. 1. State Bank of Pakistan, though a Porforma Party in instant proceeding ought to have taken note or acquisition of shares by the Defendant No. 1 in AIC and if shares acquired by Defendants Nos. 3, 4 and so also by Mr. Ali Munir and others are also accounted for being in proximate relationship with each other, where possibility of influence by MCB, over the Trust Funds and other persons could not be altogether ruled out, then share holding exceeds 30% as mandated under Section 23 of the Ordinance, 1962. Even, Defendant No. 6, the Security and Exchange Commission of Pakistan established under Section 3 of Securities and Exchange Commission of Pakistan, Act 1997, authorized to regulate under Section 20(J) of the Act of 1997, substantial acquisition of shares and mergers and takeover of Companies. Question as to what is substantial acquisition of shares is indeed a relative term. It may vary from Company to Company. Even the Commission, has not taken note of such acquisition of shares, on the contrary the representative of the Commission at Karachi, attempted to avoid the responsibility to assist the Court on the issue, which conduct cannot be approved of. The Commission, in terms of Section 279 of the Companies Ordinance, 1984 has power to impose restrictions on shares and debentures in certain cases, where during the course of any investigation, the Commission is of opinion that such transaction would be prejudicial to the public interest.

To attend to such situation in the wake of allegation of hostile takeover, elaborate legislation have been made in U.S.A. Austria, and Germany. In India, it is regulated under SEBI (Substantial Acquisition of Shares and Takeover) Regulation, 1994. Even in U.K. there is self regulatory code known as 'City Code', though not legally enforceable but, its existence is taken into account by the Courts and on occasion is recognized as representing the required or desired practice [See Morgan Crucible Co. PIC v. Hill Samuel Bank Ltd. [1991] 1 .All ER 148. Unfortunately in Pakistan, neither any legislation is in force nor there is any such 'self regulatory code like 'City Code'. Even regulatory agencies like State Bank and 'SECP' are sitting ideal, the indifferent attitude both the regulatory agencies displayed to this import issue despite specific directions by the Court, speaks for itself and needs no further comment. Fact that SECP, under given circumstances has authority to pass orders when the company affairs are under its investigation. Since SECP is not seized of any investigation. This Court, therefore, under circumstances has jurisdiction to examine the vires of transaction of acquisition of shares of AIC by MCB and others. Subject matter of suit.

Learned counsel for the Defendants Nos. 1 and 2 rightly pointed out that the proposed AGM scheduled to be held on 7th May 2002 was only for the purpose of adopting the audited accounts for the year ended December 31, 2000 and not for the purpose of election of Directors, therefore, the apprehension of the Plaintiffs are absolutely ill-founded. I have perused the Notice of 41st AGM proposed to be held on 7/5/2002 to transit the following business:--

1. To receive, consider and adopt the audited accounts for the year ended December 31,2001 and the Directors and Auditor's reports thereon.

2. To appoint Auditors and fix their remuneration.

Learned counsel for the Defendants highlighted the financial irregularities that led the Plaintiff No. 1 to suffer loss last year inasmuch as bad business wiped out almost 95% of its capital. Such financial mis-management has necessitated the change of auditors in order to improve the financial position and to expose the illegalities and financial in discipline displayed by the person presently having the control of the plaintiff No. 1.

Mr. Anwer Mansoor, learned counsel concedes to such factual aspect and contends that he has approached this Court to seek restraining orders not only for the purpose of seeking protection against the interference by outsiders and Corporate Raider who intend to highjack the Plaintiff No. 1. It is admitted that the Defendant No. 1 together with Defendants Nos. 3, 4 and others, hold substantial share in AIC, even little more than the majority shares as apprehended by the Plaintiffs, if rights attached thereto, are exercised it may amount to virtual take over of the Plaintiff No. 1 Company. Right to elect the Directors, to participate in the management through its elected Representatives, to table and vote on resolution at a meeting of the Company and right to earn dividends and profits on the shares held by it are but few of the valuable rights that, are attached to any shares. The question that needs serious consideration is whether the shares of the Plaintiff held by the Defendants could be construed to be in the course of its normal business for the purpose of investment then it being the property of the Defendant No. 1 are they entitle to exercise such control and take measure to manage developed and deal with any part of the shares, while doing so exercise all or any rights attached thereto, if so to what extent such rights could be exercised by the Defendants' or any of them. Whether such statutory rights can be restricted, abridged, controlled or regulated in case where the shares are held as an investment indeed is not free from doubt and whether the Plaintiffs through injunctive order may seek restraint on exercise of such right by the shareholders. In circumstances, where prima facie, it appears that the Banking Company cannot hold share more than 30% in terms of Section 23 of the Ordinance of 1962 and where the share in an Insurance Company were acquired against the provision of Section 35 ol the Insurance Act, 1938 without following the provision thereof as on the own showing of the Defendant No. 1 major shareholdings were acquired prior to promulgation of Insurance Ordinance, 2000. It was also pointed out that election of Directors was to be held sometime in the month of June, 2002. Under the facts and circumstances of the case. I deem appropriate to pass the following orders:

That the Defendants Nos. 1, 3 and the Directors of Defendant No. 1 who are acting together may attend the meeting that may be held as per requisition vide Notice dated 22/3/2002, date to be announce by Plaintifl No. 1 within 7 (seven) days from the date of order. However, the Defendants Nos. 1, 3 and 4 and the Directors of the Defendant No. 1 are restrained from exercising any right to interfere in the management or in a bid to influence f-f or in any manner exercise their rights to elect the Directors. Such shareholders may; however, be entitled to all the dividends and profits that may be declared or announced by the Plaintiff No. 1 during the pendency of the suit. The Defendants Nos. 1 3 and 4 and any other person claiming through or under them or their nominees are restrained from exercising their rights to seek election for them on the Board of Director of Plaintiff No. 1 till the decision of the suit. Since serious and intricate questions of law are involved determination of which also to some extent rest on evidence that may be required to be recorded. The Defendants are directed to file their Written Statement without any delay, whereafter the case may immediately be set up for settlement of issues and appropriate orders for recording of the evidence at an early date may be passed.

The upshot of the above discussion, this listed Application i.e. CMA No. 2034/2002 under Order 39, Rules 1 and 2 CPC is allowed in terms set out above.

(A.P.) Application accepted.

PLJ 2003 Karachi 28

Present:wahid Bux brohi, J.

MUNIR HASSAN KHAN--Appellant

versus

SYED AZIZ AHMED-Respondent F.R.A. No. 268 of 2001, decided on 28.8.2002.

(i) Cantonment Rent Restriction Act, 1963 (XI of 1963)--

—-S. 6-A--Assigning of case to Additional Controller-Rent Controller under provision of S. 6-A of Cantonments Rent Restriction Act 1963, was competent to assign case to Additional Controller for hearing and disposal, therefore, no infringement of any provision of law has occasioned by transferring case to Additional Rent Controller. [P. 30] A

(ii) Cantonment Rent Restriction Act, 1963 (XI of 1963)--

—S. 17(2)(i)-Contention of tenant as to non-compliance of S. 17(2)(i) of Act of 1963, was misdirected inasmuch as, notice was issued to tenant in ordinary course and ultimately, same was published in Daily "Nawa-i-waqat" whereafter his advocate appeared in Court, filed his vakalatnamaand received copy of ejectment application-Later on matter was fixed on several dates but tenant failed to file written statement-On account of absence of tenant on target date, Rent Controller was constrained to close side of tenant, which order was wholly justifiable. [P. 30] B

(iii) Cantonment Rent Restriction Act, 1963 (XI of 1963)--

—Ss. 17(2)(i) &23-Principle of res-judicataApplicability-Circumstances and cause of action of present case were altogether new and premised on different set of facts as compared to earlier case-Additional ground of defendant resulting from non-payment of utility bills was also taken in present case-Period and nature of default was wholly new in present case; therefore, bar contained in S. 23\ of Act of 1963, was not applicable. [P. 30] C

(iv) Cantonment Rent Restriction Act, 1963 (XI of 1963)--

—S. 27~Sufficient opportunity was afforded to appellant but he failed to avail same, therefore, on basis of affidavit filed in ex-parteproof eviction order was passed-Tenant had no material with him to explain default in payment of rent as also arrears and utility charges-Order passed by Rent Controller was legal and perfectly justified calling for no interference. [P. 31] D

M.A Tariq Qureshi, Advocate for Appellant. Mr. Badarul Alam, Advocate for Respondent. Date of hearing: 28.8.2002.

judgment

The appellant Munir Hassan Khan has assailed the, order dated 12.6.2001 passed by the Additional Rent Controller, Clifton Cantonment, Karachi whereby the ejectment application filed under Section 17(2)(i) of the Cantonment Rent Restrictions Act, 1963 (herein below to be referred to as the Act) by respondent Syed Aziz Ahmed against the appellant was allowed and the latter was directed to vacate the rented premises within 30 days of the said order.

1. The background of the case is that the rented premises. Flat No. 2, 2nd Floor, Plot No. 2-C, Street III, Khayaban-e-Jammi(commercial), Phase VII, Defence Housing Authority, Karachi was rented out by the respondent to the appellant under an agreement dated 2.5.1998. Initially, advance rent for 3 months for May, June and July, 1998 was paid by the appellant, but thereafter he failed to pay rent, therefore, eviction proceedings were instituted against him and order of eviction was accordingly passed. Execution proceedings were also instituted, but by mutual agreement the execution application was withdrawn and fresh agreement was executed on 23.11.1999. It was the case of respondent that according to fresh agreement the appellant/tenant had agreed to pay on the first of every month the monthly rent of Rs. 8000/= as also an amount of Rs. 8000/= towards clearance of arrears which had then risen to Rs. 80,000/=. According to respondent, the appellant paid only Rs. 8000/= per month irregularly clearing the rent upto October, 1999 leaving behind the arrears of Rs. 1,12,000/= for the period from November, 1999 till the day of filing of the eviction application and that the appellant also failed to pay utility bills as a result the electricity charges accumulated upto Rs. 51,000/=.

2. The notice of eviction application could not be served on the appellant through ordinary mode of service, therefore, it was published in daily Nawa-e-Waqt. Thereafter Mr. M.A. Tariq Qureshi, Advocate appeared on behalf of the appellant and filed his Vakalatnamaand received the copy of ejectment application. He was allowed several opportunities to file written statement, but he failed to avail the same, therefore, the Rent Controller was constrained to close his side for filing of written statement and by an exparteorder the application was allowed and ejectment ordered.

3. I have heard Mr. M.A. Tariq Qureshi, learned counsel for appellant and Mr. Badrul Alam, learned counsel for respondent.

4. Learned counsel for appellant contended that the eviction application in question was barred under Section 23 of the Act as the earlier rent application (R.C. No. 14 of 1999) was finally decided on the same issue; therefore, hit by the doctrine of res-judicatathe subsequent proceedings are not legally tenable. He further contended that no notice under Section 17(2) of the Act was issued to the appellant and the ejectment order was without jurisdictiori within the meaning of Sections 6-A and 27 of the Act. On factual side he contended that no default has been committed by the appellant. Learned counsel for respondent controverted all the contentions and submitted that the earlier rent proceedings were for a different period and only the execution proceedings were withdrawn whereafter a new agreement was executed and the default ia question has been committed in terms of the new agreement; therefore, the proceedings were not hit by Section 23 of the Act. He also submitted that the contentions as to jurisdiction of Rent Controller were ill-founded.

5. I have considered these contentions anxiously and perused the record of the lower Court. As regards the compliance of Section 6-A of the Act the contention raised by learned counsel for appellant has no force as the original application has been signed by the Controller of Rent, Clifton Cantonment and it also bears an endorsement that it was presented on 12.12.2000 to the concerned official of the Controller of Rents. Under Section 6-A of the Act, the Rent Controller is competent to assign the case to an Additional Controller for hearing and disposal, as such, no infringement of any provision of law has occasioned in the circumstances, by transferring the case to the Additional Controller of Rents.

6. The contention as to non-compliance of Section 17(2)(i) of the Act is also misdirected. Notice was issued to the appellant in ordinary course and ultimately the same was published in Daily Nawa-e-Waqtwhereafter his advocate appeared in Court on 23.4.2001 and filed his Vakalatnamaand received the copy of main Ejectment Application. Later on, the matter was fixed on several dates viz. 28.4.2001, 15.5.2001, 21.5.2001 and 2.6.2001, but the appellant faifed to file written statement. On the last mentioned day the opponent was also absent. Learned Rent Controller was, therefore, constrained to close the side of appellant which order, in the circumstances, is wholly justifiable. The contention, as aforesaid, has no force.

7. The ground based on the doctrine of res-judicataenvisaged under Section 23 of the. Act is premised on the proceedings taken under Rent Case No. 14 of 1999. The copy of the order dated 24.7.1999 passed in the said rent case indicates that the appellant had failed to comply with the tentative rent order, therefore, his defence was struck off under Section 17(9) off the Act. The aforesaid eviction order, therefore, was confined to striking off the defence as a valid order under Section 17(8) of the Act passed earlier by the Rent Controller was violated by the appellant. It was in those circumstances that the eviction was ordered and execution was filed, but the execution was withdrawn since a new agreement was executed. On the face of it, the circumstances of the present case and the cause of action are altogether new and premised on different set of facts. The default in payment of rent is not only in respect of the current rent, but also with regard to arrears. There is additional ground of default resulting from non-payment of utility bills. The period and nature of default thus was wholly new, the bar contained under Section 23 of the Act was therefore not applicable as by no stretch of imagination the decision in the earlier rent case could be final in respect of subsequent defaults. This contention, therefore, fails.

8. As regards violation of Section 27 of the Act, no material was referred to for proving that the Rent Controller violated any provision of law. As far the inquiry is concerned, sufficient opportunity was afforded to the appellant, but he failed to avail the same, therefore, on the basis of affidavit filed in ex parte proof the eviction order was- passed. The above default in payment of rent was clearly made out. The\ appellant failed to produce any document to show that he had made payment of current rent as well as the arrears up-to-date in terms of the agreement dated 23.11.1999. However, learned counsel for appellant was all along basing his arguments on para 11 of the Rent Application that the last payment of Rs. 8000/= was made through cheque in August, 2000. Learned counsel for respondent submitted that payment of one cheque for current rent was not enough to cover arrears of Rs. 1,12,0007 = which had accumulated and payment thereof was due within the meaning of agreement dated 23.11.1999 which has not been denied in express terms. On the whole, I am satisfied that the appellant has no material with him to explain the default in payment of rent current as also arrears and the utility charges. The order passed by the learned Additional Rent Controller is legal and perfectly justified and calls for no interference. The appeal is without substance and is dismissed in limine with no order as to costs. These are the reasons for the short order, announced on 13.8.2002.

(A.A) Appeal dismissed.

PLJ 2003 Karachi 31 (DB)

Present: sabihuddin ahmad and syed ali aslam jafri, JJ.

Mst. YASMEEN KAUSAR-Petitioner

versus

KARACHI DEVELOPMENT AUTHORITY through its DIRECTOR GENERAL and 3 others-Respondents

C.P. No. D-1438 of 1993, heard on 19.2.2002.

Contract Act, 1872 (IX of 1872)--

—-S. 72-Constitution of Pakistan (1973), Article 199-Rapid increase in non-utilization fee demanded by respondent Authority assailed-No mark up could be claimed on non-utilization fee-Maximum limit of fee must be confined to 3 per cent of original occupancy value-Petitioners claim was allowed to that extent and he would be entitled to adjustment of amount already paid. [P. 33] A

Mr S.M. Yaqoob, Advocate for Petitioner.

Mr. Nazar Hussain Dhoon, Advocate for Respondent No. 1.

Mr. M. Iqbal Memon, Advocate for Respondent No. 2. Dates of hearing: 12th 13th, 14th and 19th February 2002.

order

Sabihuddin Ahmad, J.--The predecessor-in-interest of the petitioner was allotted a plot of land measuring about 240 Sq. Yards vide allotment order dated 19.4.1975 and possession was delivered to the allottee on 3.5.1975. Thereafter the scheme under which the allotment had been made was transferred to the Karachi Metropolitan Corporation, which undertook to fulfill obligations undertaken by the Respondent No. 1. The petitioner thereafter purchase the allotments rights from the original allottee and transfer was effected in the name of the petitioner vide transfer order dated 22.8.1997. Subsequently a lease was also executed in her favour by the K.M.C. Later on the scheme appears to have been retransferred to the Respondent No. 1.

1. The petitioner through this petition has called in question the rapid increase in the non-utiliziation fee demanded by the Respondent No. 1 and the exorbitant amount of composition fee for approving the building plan claimed by the Respondent No. 2. After having argued for some time, however, learned counsel stated at the bar today that he was no longer pressing his objection to composition fee and therefore, the petition as against the Respondent No. 2 is dismissed.

2. As regards non-utilization fee it was contended that the allotment order issued by the Respondent No. 1 did not stipulate any such fee. However, the Allotment Regulations 1965, the terms whereof would be deemed to form part of the contract provided that in case the petitioner/allottee failed to raise construction within the time prescribed in the Regulations or such extended time to do so that may be allowed he would pay a penalty at the rate of 3% per annum of the total occupancy value for every six months or part thereof. Learned counsel argued that after a complete contract had come into existence, the Respondent No. 1 unilaterally and arbitrarily increased the rate of non-utilization fee to 6% per annum and also proceeded to calculate the same on the basis of what it considered to be the prevailing market value rendered the original occupancy value. Such action being unlawful and arbitrary was liable to be struck

3. As regards the enhancement of occupancy value for the purpose of calculating non-utilization fee the matter appears to be fully covered by a pronouncement of a Division Bench of this Court in Abdul Majeed vs. K.D.A. (1992 MLD 2401), wherein it was held that the Respondent No. 1 could not enhance the rate of occupancy value without approval of the Provincial Government and even if such approval was accorded, the new rates could only apply prospective?/ and not to the allotments made earlier. The question raised by the petitioner was also examined veiy recently by a Division Bench of this Court, of which one of us (Sabihuddin Ahmad, J.) was a member, in a Const. Petition No. D-948 of 1996 (Syed Iqbal Ahmad vs. K.D.A) and a number of other connected petitions, and it was clearly held that such fee could not exceed 3% of the original occupancy value of the plot.

4. Mr. S.M. Yaqoob requested us to clarify whether the Respondent No. 1 could claim the interest or mark-up on the amount of the fee claimed. In this context it may be explained that in case of Syed Iqbal Ahmad, we had -held that the impose could neither be treated as a tax levied under statutory authority nor a fee for services rendered. In the circumstances it could only be treated as penalty for breach of contract, which would be claimed under \ Section 74 of the Contract Act, provided it was reasonable and did not exceed the amount mentioned in the contract.

5. For the foregoing reasons we are of the view that no mark up could be claimed on non-utilization fee and the maximum limit must be confined to 3% of the original occupancy value. The petition is allowed to the extent and the petitioner will be entitled to adjustment of the amoualready paid. There will be no order as to costs.

(A.A) Petition accepted.

PLJ 2003 Karachi 33 (DB)

[Circuit Court Larkana]

Present: SYED ZAWWAR HUSSAIN JAFFERI AND

muhammad afzal soomro, JJ.

Mst.SAMI etc.-Petitioners

versus MstFARDOUS BEGUM and 15 others-Respondents

C.P. No. D-281 of 2001, decided on 14.3.2002.

Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984)--

—Art. 133-Object, scope and import of re-examination~0bject of re- examination is to clear ambiguity which has arisen upon cross- examination-Aim of re-examination is not to provide chance to party concerned for making improvement in examination-in-chief—Re- examination is directed to explanation of matter referred to in cross- examination-Condition essential for re-examination is existence of some ambiguity which has crept into examination-in-chief by embarrassing questions asked in cross-examination. [P. 35] A

Mr. Mohanlal K. Makhijani,Advocate for Petitioners.

Mr. Sardar Akbar All Ujjan, Advocate for Respondents Nos. 1, 2, 3, 6 &7.

Date of hearing: 28.2.2002.

order

Syed Zawwar Hussain Jafferi, J.-The petitioners have impugned the orders dated 18.11.2000 and 8.5.2001 passed hy the learned 3rd Senior Civil Judge, Larkana and learned Vth Additional District Judge, Larkana respectively. The facts relevant for decision of the present petition are as follows:

The petitioners filed F.C. Suit No. 97/1999 seeking a declaration of their title over the land in suit and permanent injunction by way of consequential relief. It was averred on hehalf of the petitioners that the land in question was their exclusive property and the respondents were disputing their rights causelessly. In the written statement, it was contended that, Respondent, No. 1 was also a co-sharer through inheritance and the documents held by the petitioners were false and managed.

The learned trial Court framed issues arising out of pleadings of the .parties, and thereafter, the petitioners/plaintiffs were asked to lead their evidence. It appears from the record that PW Bashir Ahmed who was the attorney of the petitioners/plaintiffs was put in the witness Box as Exh. 70 and his examination-in-chief was held at length by the learned advocate appearing for the petitioners/plaintiffs. This witness inter alia stated in his examination-in-chief that the lands and Bhaddas shown in the plaint were sold out in favour of petitioners/plaintiffs and in furtherance of such sales, khatawas duly mutated in revenue record in favour of vendees. This witness does not claim to be present at the time when numerous sales were made nor he has claimed himself to have acted as attesting witness. However, in reply to a question, this witness testified that 'consideration shown in Exh. 76, 78 and 80 were paid by Mst. Sami to the Vendors Noor Muhammad and Mst^ Hawa'. The learned counsel for the petitioners has cited the case law reported in P.L.D. 1987 S.C. 447 and P.L.D. 1999 S.C. 632.

The learned Advocates appearing for respondents carried out an extensive cross-examination. Besides other points, this witness positively stated that "I was not present at the time when Noor Muhammad and Hawa executed the documents Exh. 76, 78 and 80 in favour of Mst. Sami, however, the Plaintiff Mst. Sami was present. I have not stated in my Examination-in-Chief that, Mst. Sami was given consideration amount to Mst: Hawa and Noor Muhammad at the time of execution of documents Ex. 76, 78 and 80.

After completion of cross-examination, no suggestion was made for Re-examination but " on the same day learned advocate for the petitioners/plaintiffs sought permission to re-examine the above witness through an application in writing (Annexure-D) suggesting the following question:

'You have stated in your examination-in-chief that Mst.Sami had paid the amount of consideration to Noor Muhammad and Mst.

Hawa for the suit land sold by them, but in cross-examination you have deposed that you have not said so. Therefore, you tell what is the correct position."

The learned counsel for the respondents in support of contentions has relied upon the case law reported in P.L.D. 1999 Kar. 257 and P.L.D. 1993 S.C. 399.

At the very outset, we would like to point out that the proposed question to he asked in re-examination does not find place in the examination-in-chief, and it has not been contradicted by the witness in cross-examination. In fact, what is desired by the learned advocate for petitioners/plaintiffs is that, an addition be made by the witness by saying words "at the time of execution of documents Exh. 76, 78 and 80". This, by no means, can be said to be an ambiguity which can be clarified in re-examination.

The object of re-examination is clear an ambiguity which has arisen upon cross-examination. It does not provide a chance to the party for making improvement in the examination-in-chief. In fact, the re-examination is directed to the explanation of the matter referred to the cross-examination. Thus the condition essential for re-examination is the existence of some ambiguity which has crept into the examination-in-chief by the embarrassing questions asked in cross-examination.

In common parlance, the dictionary meaning of "ambiguity" is doubtfulness-double meaning-obscurity. In the present case, there as neither any confusion causing double meaning in the examination -in-chief nor any doubtfulness is expressed by the witness in his statement. The application moved under Article 133 of the Qanun-e-Shahadat and the question proposed to be asked, in our opinion, will make the position of the petitioners/plaintiffs still worse. The proposed question can be answered in the affirmative or in the negative. In the former case, it would confirm the fact that consideration was not paid in his presence and if answered in negative, it would adversely affect the credibility of the witness. In both situations, it would lead to results not favourable to the petitioners/ plaintiffs.

For the facts and reasons stated above, we are unable to find any flaw or infirmity in the two orders passed by learned Courts below to which no exceptions can be taken.

Resultantly, the instant petition is dismissed with costs alongwith listed application.

(A.A.) Petition dismissed

PLJ 2003 Karachi 36

Present: muhammad moosa K. laghari, J.

TRADING CORPORATION OF PAKISTAN-Plaintiff

versus

M/s. COWASJEE & SONS--Defendants Suit No. 1287 of 1980, heard on 2.4.2002.

(i) Decree in foreign Currency-

—Decree in foreign Currency-Pakistani Courts Competent to pass a decree in Dollars, payable in Dollars or Pakistani currency at the option of judgment Debtor. [P. 40] B

(ii) Privity of Contract--

—Privity of Contract-Agent can be sued without principal if there is admission that he acted as agent of an unnamed principal. [P. 39] A

Mr. Samiuddin Sami, Advocate for Plaintiff.

Mr. Ghulam Abbas Pishori,Advocate for Defendant.

Date of hearing: 2.4.2002.

judgment

This is a suit for recovery of a sum of U.S. $ 83,472.51 wherein the plaintiff has sought for a judgment and decree as follows:--

(a) In the sum of U.S.' Dollars 83,472.51 on- account of the Compensation for the short-delivery/loss of 34Q Bags of sugar;

(b) Interest at 15% per annum from the date of the suit till the realization of the decretal amount;

(c) Costs of the suit.

1. Brief facts giving rise to the filing of the above suit, as disclosed in the plaint, are that the plaintiff entered into a contract on 7.11.1979 with M/s. Companie Commercial Sucres and Deurees, Paris which was also shippers and charters for supply of 10,000 metric tons of white crystal and/or refined sugar. Defendant No. 1 acted as agent of the said charters. After observing the usual formalities, the vessel "m.v. Kota Minas" left Pakistani shores and delivered the goods at the destination. As per survey report there was short delivery of 340 bags. The plaintiff, therefore, vide their letter dated 23.1.1980 put in claim for shortages and called upon Defendant No. 1 to satisfy the claim but Defendant No. 1 replied that the claim was not entertainable as it was not supported by Outturn report and Short Landing Certificate of the K.P.T. Consequently, plaintiff sent KPT short landing certificate in respect of 311 bags and explained that as the vessel was in custody of Martial Law Summary Military Court, the KPT authorities were not in a position to issue final short landing certificate for 340 bags. According to the plaintiffs, Defendant No. 1 again demanded the original Bill of Lading and the plaintiff informed Defendant No. 1 that the said bill was submitted to Defendant No. 1 by the Director General Food through plaintiffs' clearing agent, M/s. National Charcoal Company, Karachi. However, a copy of the bill was sent to Defendant No. 1 and a request was made for earliest settlement of the claim but the defendants failed to do so, hence the plaintiffs filed present suit for the reliefs as stated above.

2. After the institution of the suit, summons were served upon the defendants and Defendant No. 1 has filed Written Statement.

3. In the written statement, Defendant No. 1 denied to be the agent of the Carriers i.e.m.v. Kota Manis. It is averred that as the owner of the vessel has not been sued, as such suit against Defendant No. 1 alone in the capacity of agent is not maintainable as there is no privity of contract between the plaintiff and Defendant No. 1. It is further averred that the vessel itself could only be sued under the Admiralty jurisdiction of this Court, as such the present suit having been instituted in the ordinary civil jurisdiction is not maintainable.

4. Defendant No. 1 have denied that they are liable to settle the claim of the plaintiffs and further averred that the plaintiffs have no locus standi to make such claim and file the present suit. According to Defendant No. 1, in view of the final Outturn Report issued by the K.P.T. on 18.8.1980, the short-delivery if at all, was of 70 bags only and not 340 bags. It is further stated that K.P.T. was also a necessary party to the suit.

5. Vide order dated 29.4.1994 passed in the suit, the following Issues filed by Defendant No. 1 were adopted:-

6. Whether there is any privity of contract between plaintiff and Defendant No. 1?

7. Whether the entire cargo covered by the Bill of Lading in Suit was not discharged from the vessel.- If so, how many bags landed short from the vessel?

8. What was the value of the short-landed bags?

9. Is the plaintiff entitled to the relief claimed, if so against whom?

10. The plaintiff, in support of its case has examined Manzar Saleem, as Ex. P-5 who is serving in the Plaintiff Corporation as Manager. He produced his Affidavit-in-evidence as Ex. 5. He also produced several documents as Ex. P/5/1 to Ex. P-5/36 in support of the plaintiffs claim details whereof are mentioned in Para 10 of the Affidavit-in-evidence and short landing Certificate as Ex. P-5/37. In his evidence he has almost reiterated the contents of the plaint. Plaintiff also examined witness Farooq All, Surveyor. He produced photo-copy of survey report as Ex. 6/1. The third witness examined hy the plaintiff is Shahid H. Hassan who produced his Affidavit-in-evidence as Ex. 8 and a letter dated 23.3.1995 as Ex. 8/1 from the Embassy of Pakistan in France containing information that M/s. Companies Commercial Surces Et Denrees ceased to exist. Plaintiffs last witness is Imdad Hussain Khoso who is serving in K.P.T. He produced provisional short landing certificate as Ex. 9/1 and some other documents pertaining to K.P.T..as Ex. 9/1 to 9/5.

The defendant, in support of its version, examined Cyrus R. Cowasjeewho is a Partner of Defendant No. 1 company. He produced his affidavit-in-evidence as Ex. 11, photocopy of survey report as Ex. 12, photocopy of the Guarantee/Indemnity Bond allegedly furnished on behalf of the plaintiff, photocopy of letter dated 14.7.1980 issued by Jalbhoyand Co, clearing and Forwarding Agents. In his Affidavit-in-evidence he has almost repeated the contents of the Written Statement filed by Defendant No. 1. Another witness examined by the defendant is Ghulam Mustafa who is serving as surveyor in GB. Potts and Co. (Pvt.) Limited who had conducted the survey.

1. I have heard arguments advanced by Mr. Samiuddin Sami, learned advocate appearing for the plaintiff and Mr. Ghulam Abbasi Peshori, advocate for Defendant No. 1. After going through the evidence adduced by the parties and considering the arguments advanced by the learned counsel for the parties, my findings on the above mentioned Issues are as under:--

ISSUE NO. 1:

The Defendant No. 1 has taken the plea that they are not the agents of the Carriers/Charters, as such, there is no privity of\contract between the plaintiff and Defendant No. 1. This plea of Defendant No. 1 is totally fallacious and belied by the documents produced during the evidence as Ex. P-5/6, P-5/9, and P-5/27. These are the letters were written by Defendant No. 1 themselves which they have signed in the capacity of "AGENTS". On the face of these documents, Defendant No. 1 cannot deny that they had not acted as Agents of the Carriers/Charters. The defendants were, thus, estopped from taking inconsistent pleas and different stands. This issue is, therefore, answered in affirmative.

ISSUE NO. 2:

According to the plaintiffs, 340 bags of sugar were short-landed. On the perusal of evidence adduced by the plaintiffs on this point, I find contradictions even in the plaintiffs own evidence. In his Affidavit-in-evidence, Witness No. 1 of the plaintiff states that in all there were 105,000 bags whereas in the cross-examination he deposed that the total number of the bags was 1,50,000. Again in the cross-examination in reply to a suggestion, he stated that the plaintiff took delivery of 1,04,660 bags of sugar from Karachi Port Trust. Likewise Witness No. 2 of the plaintiff, has stated that he was present at the time of survey and has admitted that the consignee took delivery of 104930 bags but in fact there were 104660 bags bearing the marks and numbers. He has further stated, "the excess bags were on account of spillage due to tearing of original bags". Besides, Witness No. 4 of the plaintiff in his evidence has produced a document issued by the K.P.T. in respect of the short landing wherein the total number of bags was shown to be 105000 out of which 104689 bags were landed wheres 311 bags were short-landed but this documents also contains a Note to the effect, "241 Bags Spilage of sugar sweeping were refilled and collected by the party". If this document is taken as a whole, it means, according to the K.P.T. the short landed bags were 70 only.

On this issue, the defendant's witness namely Cyrus R. Cowasjee, who claims to be the Partner of Defendant No. 1 company, in Para 8 of his Affidavit-in-evidence has deposited, "the short-delivery if at all was of 70 bags only."

After analyzing the evidence adduced on this issue by the parties, I have arrived at the conclusion that shortage in the delivery to the plaintiff out of the total consignment is of 70 bags of sugar. This issue is answered accordingly.

ISSUE NO. 3:

As per the Contract entered into between the plaintiff and M/s. Companie Commercial Sucres and Denrees, Ex. P-15-1, which is an undisputed document, the cost of one metric ton sugar was 421.00 U.S. Dollars and it has also come on record that each bag contained 100 Kg. of sugar, as such, the cost of one bag of sugar will come to U.S. $ 42.1. In view of this position, at the relevant time the cost/value of 70 bags of sugar if calculated at the above rate comes to U.S. $ 2947.00.

ISSUE NO. 4:

In view of my findings on Issues Nos. 1, 2 and 3 the plaintiff is entitled to the relief of getting the amount equivalent to the cost/value of 70 bags of sugar from Defendant No. 1 as they had acted as Agent of the Carrier/Charters as the principal ceased to exist long ago.

Having arrived at the above conclusion, the most important and controversial question which requires to be dealt with is, as to whether Decree can be passed in foreign currency and, if so, whether it would be at the rate prevailing at the time of transaction or at the rate prevailing in the market on the date of the payment.

Learned counsel for the plaintiff in support of above assertion, relied upon the case law reported as TerniS.P.A us. PECO (Pakistan Engineering Company) Ltd. (1992 S.C.M.R. 2238). In this case it was observed by the Honourable Supreme Court as under:

"Justice demands that the creditor should not suffer from fluctuations in the value of the Pakistani rupee. If his contract is for a foreign currency and he has bargained for the same, he should get that currency and no other."

It was further held:

"We would, therefore, hold that where the money of account in respect of a contract is a foreign currency, or where it is not so but under the contract the particular amount claimed is payable in a particular foreign currency, and demand is made for payment is that foreign currency, the Pakistan Courts can give judgment in "so much of that foreign currency or the Pak rupees equivalent thereof at the time of payment". Here it must be stated that where the decree is in such terms, the language of the decree, as stated in Para 18 above, would give the judgment debtor the option to either make payment in foreign currency or in Pak rupees, and execution can always be taken out by the decree-holder if no payment is made by the judgment-debtor in respect of so many Pak rupees as equal the foreign currency at the rate of exchange prevalent on the date the payment is made."

In the case of SandozLimited and other vs. Federation of Pakistan and others (1995 S.C.M.R. 1431) similar view was taken by the Honourable Supreme Court.

From the perusal of the very contract \ executed on 07.11.1979, (Ex. P-5/1), it reveals that the value/cost of the consignment was shown in "U.S. Dollars and the plaintiff also demands that the decree, if any, should be passed in U.S. Dollars. In view of this, following the dictum laid down by the Honourable Supreme Court I hold that Decree can be passed in foreign

curr

The upshot of the above discussion is that the suit of the plaintiff is decreed in the sum of U.S. $ 2947.00. However, Defendant No. 1 would be at liberty to make payment of the decretal amount either in U.S. Dollars or in Pak rupees equivalent to the decretal amount at the rate of exchange prevalent on the date of payment. The plaintiff shall also be entitled to the costs of the suit.

(T.A.F.) Orders accordingly.

PLJ 2003 Karachi 41

Present:muhammad roshan essani, J.

ABDUL KHAL1Q DOOSANl-AppeHant

versus

Mst.FARIDA SABA--Respondent C.P. No. S-95 of 2002, decided on 27.11.2002.

(i) Audi-AIteram Partem--

—-It is well settled that no man should be condemned unheard-Principle of audi alteram partem is enshrined in our judicial system-Apex Court has held time and again that order affecting right of a party cannot be passed without providing opportunity of hearing to that party. [P. 43] A

(ii) Audi Alteram Partem--

—Maxim audialteram partem embodies one of settled principles of law and such a principle will be read into relevant law unless its application excluded by express words. . [P. 43] B

(iii) Evidence-

—Defendant's right to lead evidence closed-Challenge to-Trial Court is directed to examine Petitioner and after affording proper and reasonable opportunity of hearing to both parties decide case afresh according to law. [P.43JC

Mr. All Gohar Soomro, Advocate for Petitioner.

Mr. Raja Aftab Ahmed Khan, Advocate for Respondent No. 1.

Date of hearing: 5.11.2002.

order

By this constitutional petition the petitioners Abdul Khaliq Doosani and Mst. Khushnudi Begum have sought the following relief: -

"It is respectfully prayed that this Hon'ble Court may be pleased to set aside impugned judgment dated 27.5.P.OOO and decree dated 29.5.2000 passed by the learned lower Court\ and judgment of learned appellate Court dated 31.10.2001 and direct the learned lower trial Court to examine Petitioner No. 2 and thereafter passed fresh decision on merits.

Any other relief or reliefs which this Hon'ble Court deem fit and proper.

Cost of the petition."

The brief facts of the case as disclosed in the petition are that the petitioners' son was married with Respondent No. 1 and petitioners'

daughter married with brother of Respondent No. 1. After sometime of marriage relations between parties became strained therefore Respondent No. 1 filed suit for dissolution of marriage whereas petitioner son filed suit for restitution of conjugal rights. The suit for restitution of conjugal rights wad dismissed due to non-appearance of the petitioners' son and suit for dissolution of marriage filed by Respondent No. 1 was decreed. After dissolution of marriage Respondent No. 1 filed suit for recovery of dowry articles against her ex-husband Respondent No. 2 Zubair Ahmed and petitioners. The suit was decreed by the trial Court and appeal was also dismissed by the appellate Court by impugned judgment dated 31.10.2001.

I have heard Mr. Ali Gohar Soomro learned counsel appearing on behalf of the petitioners and "Mr. Raja Aftab Ahmed Khan learned counsel appearing on behalf of the Respondent No. 1.

The perusal of material placed on record shows that on 20.5.2000 when matter came up for recording further evidence of petitioners side and Petitioner No. 2 Mst.Khushnudi Begum was present and Respondent No. 1 was absent, the trial Court without recording evidence of Petitioner No. 2 closed the side of the petitioners for want of their counsel. The order in question is reproduced herein below in extenso:

"Case called: None is present on behalf of plaintiff while Defendants Nos. 2 and 3 are present but their counsel called absent. No any intimation/application has been received as yet. It is I'O clock, which indicate4 defendant has no interest to proceed the matter. Therefore in view of above circumstances side of defendant to lead their evidence is hereby closed. Sd/-20.5.2000 (Mrs. Asma Memon) Xth Civil and Family Judge Karachi Central".

On the same date i.e. 20.5.2000 the petitioner moved application for recalling the order reproduced herein above and to examine the Petitioner No. 2. The trial Court dismissed the application on 22.5.2000 and decreed suit in favour of respondent on 29.5.2000. The petitioners urged this ground in Paragraph 4 of the memo of appeal. It is also evident from the impugned judgment that this aspect of matter was argued by the counsel appearing on behalf of the petitioners before the appellate Court but no reasons whatsoever have been given/assigned by the appellate Court for not accepting or rejecting this contention. The impugned judgment is silent on this aspect of matter. The non-examination of Petitioner No. 2 particularly when she was present, and deciding matter against her tantamounts to condemning her without hearing.

It is well settled that no man should be condemned unheard. The principle of audi alteram partem is enshrined in our judicial system. The apex Court has held time and again that the order affecting the right of a party cannot be passed without providing opportunity of hearing to that party.

I am fortified'to this view by the case of Ghulam Mustafa Jatoi vs. Returning Officer and others reported in 1994 SCMR 1299 wherein it was held by the Honourable Supreme Court that the maxim audi alterm partem embodies one of the settled principles of law and such a principle will be read into the relevant law unless its application excluded by express words.

Again in the case ofShaukatAlivs. The State reported in 1980 P.Cr. L.J. 718 it was observed by the Honourable Supreme Court ofAzad Jammu and Kashmir as under:

"The Latin maxim, audi alteram partem which I fact, stems out from the principle of Islamic Law. This Court has already observed in Muhammad Shafique vs. The State (1) at page 6/that "thus" from what has been said therefore, it would appear that this rule of natural justice stems from Islamic Jurisprudence. In a Muslim Society it is to bev complied with as a command like any other "Quaranic Laws". We reiterate the above view and hold that an order passed by any Court without complying with this principle is liable to cause miscarriage of justice."

The upshot of the above discussion is that the impugned judgments passed by two Courts below are set aside and the prayer of the petitioners stands allowed. The trial Court is directed to examine Petitioner No. 2 and after affording proper and reasonable opportunity of hearing to both the parties decide the case afresh according to law.

The petition stands disposed of alongwith listed application in terms stated herein above with no order as to costs.

(T.A.F.) Orders accordingly.

PLJ 2003 Karachi 43 (DB)

. Present: MUHAMMAD ROSHAN ESSANI AND MUBASHIR ALAM, JJ.

Mst. KULSOOM BANO-Petitioner

versus

ADAM and others-Respondents C.P. No. D-2056 of 2002, decided on 7.2.2003.

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

—- S. 115, 0. 7 R. 11, and S. 12(2)--Petitioner failed to file any appeal against Judgment and Decree of learned Trial Court but chose to file an Application under Section 12(2) CPC against Respondent which was dismissed and subsequently assailed in time-barred Revision-No plausible explanation was put forth by Petitioner as to why Judgment and Decree passed against her were not appealed-Provision of Section 12(2) CPC are not to be resorted as a substitute of an Appeal-Petitioner herself was very much party to proceedings before Trial Court-It is not her case, she was not. served or that Judgment and decree was obtained behind her back-In case of Muhammad Ismial us. Fazal Zada (PLD 1996 S.C. 246), Plaintiff instead of filing Appeal against order of rejection of Plaint under Order 7 Rule 11 CPC, rushed to High Court with Constitution Petition-Course adopted was not approved by Hon'ble Supreme Court-Learned counsel was not able to meet objection of limitation in filing Revision-Order on Application under Section 12(2) CPC was passed on 21.5.2001 whereas Revision was filed on 29.10.2001. Limitation for Revision as per Section 115 CPC is 90 days from the date of Judgment/Order as case may be-No jurisdictional error has been pointed out-Petition dismissed. [P. 45] A

Mr. Muhammad Kalim Ahmed and FahmidaKhatoon, Advocates for Petitioner.

Nemofor Respondents. Date of hearing: 7.2.2003.

order

Muhammad Roshan Essani, J.-Through this Constitutional Petition, Petitioner has sought the following reliefs:-

• \

"It is therefore prayed that this Hon'ble Court may be pleased to admit the above Constitutional Petition, called for the Records of Civil Suit No. 446/1995 from the Court of Respondent No. 2, Civil Revision Application No. 46/2002 from the Court of Respondent No. 3, issue the notices to the Respondents above named, after hearing the parties the impugned orders passed by the Respondents Nos. 2 and 3 be set aside, the suit filed by the Respondent No. 1 before the Court of Respondent No. 2 be dismissed with cost on consideration of the facts stated herein above, the above Petition be allowed and/or pass any such other order, orders as this Hon'ble Court may deem think, fit and proper in view of the circumstances of the case."

Brief facts of the case as disclosed in the Petition by Petitioner. Mst. Kalsoom Bano, are that the property bearing Quarter No. 87. Block No. 43, admeasuring 60 square yards, situated at Cement Line Keamari, Karachi originally belongs to one Dawood, who used to pay dues to 'Babul Isalm Housing Co-operative Society' Limited, Karachi. Respondent No. 1, Adam, claimed to have purchased the subject property from said Dawood by registered Sale-Deed and name of Respondent No. 1 was entered in the record of Babul Islam Housing Co-operative Society as sole owner. The said Respondent No. 1 being close relative of Petitioner temporarily allowed her to stay in a portion ef the said house on a condition that whenever the same would be required by the Respondent No. 1, the Petitioner would vacate the same. In the year, 1994, the portion of-the said house in possession of Petitioner was required by the Respondent. He requested the Petitioner to vacate the same but she declined and instead filed a Suit No. 755/1994 against the Petitioner. The Respondent also filed a suit Being No. 446/1995 for possession, permanent injunction and mesne profits against the Petitioner, which was decreed on 24.12.2001 by the learned trial Court viz. Illrd Senior Civil Judge, Karachi. In the meantime, suit filed by the Petitioner Being No. 755/1994 was also dismissed on 25/10/2001 under Order 17 Rule 3 CPC. Petitioner did not file any Appeal against the Judgment and Decree passed against her in either of the suits. Instead Petitioner chose to file Application under Section 12(2) CPC. Same was dismissed vide Order dated 21.5.2001. Petitioner filed Revision Application on 29.10.2002 but the same was also dismissed by learned District and Sessions Judge, Karachi, West, on the ground of limitation vide impugned Order dated 23.12.2002.

Having heard the arguments of Mr. Muhammad Kalim Ahmed and Mst. Fahimda Khatoon, learned counsel for the Petitioner and perused the material placed on record.

From the record, it appears that the Petitioner failed to file any Appeal against the Judgment and Decree of learned Trial Court but chose to file an Application under Section 12(2) CPC against the Respondent No. 1 which was dismissed and subsequently assailed in time-barred Revision. No plausible explanation was put forth by the Petitioner as to why the Judgment and Decree passed against her were not appealed. Provision of Section 12(2) CPC are not to be resorted as a substitute of an Appeal. Petitioner herself was very much party to the proceedings before the trial Court. It is not her case, she was not served or that Judgment and Decree was obtained behind her back. In the case of Muhammad Ismail vs. Fazal Zada(PLD 1996 S.C. 246), the Plaintiff instead of filing Appeal against order of rejection of Plaint under Order 7 Rule 11 CPC, rushed to the High Court with Constitution Petition. The course adopted was not approved by the Hon'ble Supreme Court. Learned counsel was not able to meet the objection of limitation in filing the Revision. Order on Application under Section 12(2) CPC was passed on 21.5.2001 whereas Revision was filed on 29.10.2001. Limitation for Revision as per Section 115 CPC is 90 days from the date of Judgment/Order as the case may be. No jurisdictional error has been pointed out.

In view of the foregoing discussion, the Petition is found to be misconceived and not maintainable in law, which is accordingly dismissed in limine alongwith listed Applications.

(T.A.F.) Petition dismissed.

PLJ 2003 Karachi 46 (DB)

Present: muhammad roshan essani and anwar zaheer jamali, J J.

M/s. MARBLE AND MARBLE (PVT) LTD.--Petitioner

versus

KESC-Respondent

C.P. No. D-108 of 2003, decided on 30.1.2003.

(i) Constitution of Pakistan, 1973--

—Art. ISO-Constitutional jurisdiction is not additional or alternate, and if alternate remedy is available, writ jurisdiction cannot be invoked-Moreover, statutes are creatures of constitution-Admitteldy, applicant/ accused has not approached trial Court under Section 249-A Cr.P.C. but has directly filed present petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973-Quashment of proceedings refused. [P. 47] A

(ii) Constitution of Pakistan, 1973--

—Art. 199-Powers of High Court under Constitutional jurisdiction are though very wide but they are not supposed to be exercised to override express provisions of law-It is not function of High Court to weigh, assess or evaluate evidence of prosecution or defence under constitutional jurisdiction-Evaluation of evidence is function of trial Court-Delay in lodgment of FIR cannot be held to be a valid ground for quashment of proceedings in each and every case-Question of delay and its consequent effect on prosecution case could only be considered and determined by trial Court at the time after prosecution witnesses are examined and cross-examined.[P. 47] B

(iii) Electricity Act, 1910-

—S. 39-Criminal Procedure Code, 1898 S. 249-A-Matter is at investigation stage and case has not been sent up to Court-If case after investigation is sent up in Court and applicant is challaned he can avail of remedy before trial Court under Section 249-A Cr.P.C. for his acquittal after proving that charge is groundless or there is no probability of his conviction. [P. 48] E

(iv) Quashment--

—FIR during investigation cannot be quashed. [P. 48] C

(v) Quashment--

—High Court is not competent to quash FIR when investigation was not completed and no challan has been submitted in Court and no proceedings were pending in Court-It was further observed that High Court cannot quash FIR on ground of mala fide or FIR disclose civil liability. [P. 48] D

Mr. Abdul Karim Khan, Advocate for Petitioner. Date of hearing: 30.1.2003.

order

Muhammad Roshan Essani, J.--By this constitutional petition, the petitioner Noman Siddiqui has sought quashment of two cases registered under Section 39 of Electricity Act, 1910 pending against him in the Court of Special Magistrate Karachi Electric Supply Corporation Karachi (KESC) which arose out of FIR No. 187/98 and FIR No. 188/98 of police station KESC. He has also sought quashment of two FIRs Bearing Nos. 26/2001 and 27/2001 under Section 39 of Electricity Act, 1910 registered against him at police station KESC Karachi pending investigation with police.

The brief facts of the four FIRs stated herein above are that the petitioner is running a marble factory at Karachi. A raiding party of KESC alongwith police of concerned police station raided the factory and found the petitioner committing theft of electricity by tampering the electricity meter as well as supply line/cable of electricity. He was getting energy by illegal source and thereby caused loss to the tune of millions of rupees to KESC.

I have heard Mr. Abdul Karim Khan learned counsel appearing on behalf of the petitioner and perused the material placed on record.

In the first instance we would like to examine the prayer relating to quashment of proceedings.

The perusal of material placed on record shows that the petitioner has not exhausted remedy before the proper forum provided under law. It is well settled that the constitutional jurisdiction is not additional or alternate, and if alternate remedy is available, writ jurisdiction cannot be invoked. Moreover, the statutes are creatures of the constitution. Admittedly, the applicant/accused has not approached the trial Court under Section 249-A Cr.P.C. but has directly filed present petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973.

The powers of High Court under Constitutional jurisdiction are though very wide but they are not supposed to be exercised to override , express provisions of law. It is not the function of this Court to weigh, assess or evaluate the evidence of prosecution or defence under constitutional jurisdiction. The evaluation of evidence is function of the trial Court. The delay in lodgment of FIR cannot be held to be a valid ground for quashment of proceedings in each and every case. The question of delay and its consequent effect on prosecution case could only be considered and determined by the trial Court at the time after the prosecution witnesses are examined and cross-examined.

In the case of A HabibAhmad v. M.K. alias Scott Christian reported in PLD 1992 SC 353 it was observed that if prima facie offence had heen committed the ordinary course of trial before the Court was not to be allowed to be deflected by approach to special revision or inherent jurisdiction of High Court.

Resultantiy, the prayer for the quashment of proceedings in respect of two cases pending before the special magistrate KESC is misconceived and is dismissed.

The next prayer relating to quashment of two FIRs registered against the petitioner and pending investigation with Police is also misconceived.

The FIR during the investigation cannot be quashed. In the case of Shehnaz Begum v. Honourable Judges of High Court of Sindh and Balochistanreported in PLD 1971 SC 677 a Full Bench of the apex Court held that the High Court cannot interfere in the investigation undertaken by police.

Again in the case of Ahmed Saeed v. The State reported in 1996 SCMR 186, it was held by the Honourable Supreme Court that the High Court is not competent to quash the FIR when the investigation was not completed and no challan has been submitted in the Court and no proceedings were pending in the Court. It was further observed that the High Court cannot quash FIR on the ground of mala fideor FIR discloses civil liability.

Admittedly, the matter is at investigation stage and case has not been sent up to the Court. If the case after investigation is sent up in the Court and applicant is challaned he can avail of remedy before the trial Court under Section 249-A Cr.P.C. for his acquittal after proving that the charge is groundless or there is no probability of his conviction.

Consequently the prayer for quashment of FIRs pending investigation with police is declined.

Resultantiy, we see no merit in the present petition and the same is dismissed.

The trial Court is, however, directed to complete the trial of two cases pending against the petitioner as early as possible.

The above are the detailed reasons of our short order dated 24.10.2003.

(T.A.F.) Petition dismissed.

PLJ 2003 Karachi 49 (DB)

Present: S. ali aslam jafri & muhammad roshan essani, JJ.

SHARIQ IMRAN KHAN-Petitioner

versus FEDERATION OF PAKISTAN and others-Respondents

C.P. No. D-1911 of 2002, decided on 6.1.2003. Exit Control List-

—-No criminal case has been registered against petitioner or he is facing any trial on charges of alleged fraud and corruption but his name was included in ECL at instance of Security and Exchange Commission of Pakistan-Held : If petitioner intends to travel abroad, he shall have to furnish solvent security in sum of Rs. 10,00,000/- (Rupees One Million Only) to satisfaction of Nazir of High Court and execute an undertaking in writing to appear before Authority (Security and Exchange Commission of Pakistan) if and when required by Authority (Security and Exchange Commission of Pakistan) on a notice to petitioner through his counsel ten (10) days prior to date of hearing—Petitioner allowed to travel abroad. [Pp. 51 & 52] A

M/s. Munir A Malik, Zaiul Haq Mukhdoomand Mr. Azhar Alt Khan, Advocates for Petitioner.

Mr. Nadeem Azhar Siddiqui,learned DAG, Respondent No. 1. Mr. Agha Faqir Muhammad, Advocate, Respondent No. 2.

order

S. Ali Aslam Jafri, J.--The petitioner who is a citizen of Pakistan having NIC No. 517-90-012068 and holder of Pakistani Passport No. LA-002423 issued on 23rd May, 2001 by the Counsellor, Embassy of Pakistan in Muscat after expiry of his previously held Passport No. E-321846 issued on 30th September 1997 by the Illrd Secretary, High Commission for Pakistan London, U.K. has filed this petition calling in question inclusion of his name in Exit Control List (ECL) and prayed for the following reliefs:-

"(a) declare that the impugned order dated 19th October, 2002 passed by the Respondent No. 1 is without lawful authority and of no legal effect and to restrain the Respondent No. 1 from giving effect to the same.

(b) Grant costs of the petition; and

(c) grant such other relief (s) as this Hon'ble Court deems just and proper in the circumstances of the case."

The case of the petitioner is that he is a qualified Chartered Accountant and for several years has been working in an Executive Group based at Oman known as Free Trade Co. wbich has a number of ventures worldwide, including operations at places in Saudi Arabia, UAE, Oman, U.K., Philippines, Jordan, Iran, Turkey, Bangladesh, Lebanon and Yemen. The said Free Trade Co. also owns or controls BizNas. Com Pakistan (Pvt.) Limited in Pakistan, BizNas (U.K.) Limited United Kingdom and BizNas FZC, Sharjah, Airport Free Zone. The petitioner is a director in all the three BizNas Companies and is required to travel extensively on short notice and in fact, during last six months, the petitioner has made not less than 21 short trips of various destinations in the Middle East. A summary of such visits has been filed as Annexure 'B' to the petition. The grievance of the petitioner is that at the instance of Security and Exchange Commission of Pakistan/ Respondent No. 2, name of the petitioner has been included illegally, unlawfully, without any lawful authority and in violation of Articles 2A, 4, 9, 15 and 25 of the Constitution in the Exit Control List (ECL) though no criminal proceedings of any kind are pending against the petitioner. In response to the notices issued to the respondents, parawise comments were filed only by Respondent No. 2 stating therein that the petitioner is carrying on unlawful business of collecting money from innocent public fraudulently as the BizNas Co. Pakistan (Pvt.) Limited was incorporated with main objective of designing and developing computer software but in fact it is carrying on unlawful business. It was further stated that Respondent No. 2 has already filed a winding up Petition No. J. Misc. 55/2002 in the High Court of Sindh under the Companies Act. However, it was no where pleaded that any criminal case has been registered against the petitioner or he is facing any trial on the charges of the alleged fraud and corruption.

Despite time having been granted no comments have been filed on behalf of Federation of Pakistan and the learned DAG in order to defend the ! impugned order dated 19.10.2002 has mainly relied upon the comments filed j by Respondent No. 2.

In support of his case, Mr. Munir A. Malik learned counsel for the petitioner has vehemently urged that in view of the above stated factual and legal aspects of the matter the impugned order is-violative of the constitutional guarantees available to a citizen of Pakistan. In support of the arguments that restriction on the movement of the petitioner is violative of the provisions of Articles, 4, 9 and 15 of the Constitution of the Islamic Republic of Pakistan, the learned counsel has placed reliance on the cases of Saleem Akhtar vs. Federation of Pakistan and another (PLD 1999 Karachi 177), Baber Khan Ghori and Another vs. Federation of Pakistan and others (PLD 1999 Karachi 402) and Wajid Shamsul Hassan vs. Federation of Pakistan (PLD 1997 Lahore 617).

During his arguments learned counsel for the petitioner also made a categorical statement that the petitioner is ready to furnish such surety or security as desired by Respondent No. 2 to ensure his return to Pakistan and to appear before the authority (Securities and Exchange Commission of Pakistan) as and when required by the authority on a notice to him through his counsel ten (10) days prior to the date of hearing. Learned DAG and Mr. Agha Faqir Muhammad learned counsel for the Respondent\ No. 2 opposed to the grant of the prayer of the petitioner and placed reliance on the case of Ms. NaheedKhan vs. Government of Pakistan and another (PLD 1997 Karachi 513). However, in view of the above referred offer made by the learned counsel for the petitioner sought time to seek further instructions.

On 23rd December, 2002 statement in writing signed by Tahir Mahmood, Additional Registrar of Companies, Company Registration Office Securities and Exchange Commission of Pakistan Karachi and the learned counsel for Respondent No. 2 has been filed which is taken on record and reproduced as below: -

"STATEMENT ON BEHALF OF THE RESPONDENT NO. 2 (SECP)

The petitioner be directed to appear before the Authority (SECP) if and when required by the Authority (SECP) on a notice to the Petitioner through his counsel ten (10) days prior to the date of hearing, subject to solvent security of Rs. 1,000,000/- (Rupees One Million only) to be given to the High Court to the satisfaction of the Nazir of the High Court.

Sd/- TAHIR MAHMOOD Additional Registrar of Companies Company Registration Office Securities and Exchange -Commission of Pakistan Karachi.

For Respondent No. 2 Additional Registrar of Companies Securities and Exchange Commission of Pakistan Sd/-Advocate for the Respondent No. 2.

Karachi: Dated: December 23,2002."

Without dilating upon the merits of the case, we are of the opinion that in view of the offer made by learned counsel for the petitioner and the statement filed on behalf of Respondent No. 2 in response to that offer the very purpose of filing of this petition stands served and the ends of justice would meet if this petition is disposed of on the basis of the above referred statement of Respondent No. 2. It is, therefore, ordered that in case the petitioner intends to travel abroad, he shall have to furnish solvent security in the sum of Rs. 10,00,000/- (Rupees One Million Only) to the satisfaction

of the Nazir of this Court and execute an undertaking in writing to appear before the authority (SECP) if and when required by the authority (SECP) on a notice to the petitioner through his counsel ten (10) days prior to the date of hearing.

Petition stands disposed of accordingly alongwith listed application, with no order as to costs.

(T.A.F.) Orders accordingly.

PLJ 2003 Karachi 52 (DB)

Present: muhammad roshan ESSANI and KfflLJI ARIF HUSSAIN, JJ.

PARVEZ AHMAD-Petitioner

versus

FEDERATION OF PAKISTAN and others-Respondents ' C.P. Nos. D-1959 to 1961 of 2002, decided on 24.12.2002.

Airport Security Force (Amendment) Ordinance, 1984-

—-S. 7-F-Constitution of Pakistan, 1973, Art. 199-Petitioner was serving as A.S.I in Airport Security Force-He wassubject to Pakistan Army Act 1952 (XXXDC of 1952). petitioner was convicted and sentenced by a General Court Martial convened by competent Authority under Act-­Section 7-F of Airport Security Force (Amendment) Ordinance, 1984 provides that in all cases decided, aggrieved person can file appeal/ revision within a period of 30 days of order/punishment before authority specified in section-It is well settled that writ jurisdiction could only be invoked when no adequate or efficacious remedy is provided under law-' In case in hand right of appeal and revision has been provided to aggrieved person and he can exhaust remedy before proper forum provided under law-Petition misconceived hence dismissed. [P.53]A,B

2002 SCMR1135 rel.

Mr. Ghulam Sarwar Chandio,Advocate for Petitioner. Date of hearing: 24.12.2002.

order

Muhammad Roshan Essani, J.-By this constitution petition, the petitioner has sought following reliefs:-

(a) declare that the petitioner being Civil Servant is liable to be proceeded with under Efficiency and Discipline Rules 1973.

(b) declare that the impugned order of dismissal from service, civil imprisonment, reduction to the rank of Guard and recovery of amount etc. is illegal, invalid and without lawful authority.

(c) Declare that the petitioner continue to he in service of the respondent.

(d) pass order of release of the petitioner from the Central Prison, Karachi.

(e) direct the respondents to produce the documents.

(f) costs of the petition may be awarded.

(g) any other relief/reliefs which this Honourable Court may deem fit and proper under the circumstances of the case may also be awarded.

Brief facts of the case, as disclosed in the petition, are that the petitioner was employed as A.S.I in Airport Security Force (ASF). The petitioner was tried on the charge of misappropriating/embezzling public money by Field General Court Martial and was convicted and sentenced to suffer HI for four years and to pay the embezzled amount Le. Rs. 2.68,805/-. He was also dismissed from service by impugned judgment dated 1.10.2002.

We have heard Mr. Ghulam Sarwar Chandio, learned counsel appearing on behalf of the petitioner.

Admittedly the petitioner was serving as A.S.I in Airport Security Force. He was subject to Pakistan Army Act 1952 (XXXK of 1952). The petitioner was convicted and sentenced by a General Court Martial convened by competent Authority under the Act. The Section 7-F of Airport Security Force (Amendment) Ordinance, 1984 provides that in all cases decided, the aggrieved person can file appeal/revision within a period of 30 days of the order/punishment before the authority specified in the section.

It is well-settled that writ jurisdiction could only be invoked when no adequate of efficacious remedy is provided under law. In the case in hand the right of appeal and revision has been provided to the aggrieved person and he can exhaust remedy before the proper forum provided under law. In this content reference can be made to the case of AzharMaieed Khalid vs. Force Commander Airport Security Force Quaid-e-Azam International Airport HQ Karachi and others reported in (2002 SCMR 1135).

Resultantly, the petition is misconceived and stands dismissed in limine.

(T.A.F.) Petition dismissed.

PLJ 2003 Karachi 54

Present:muhammad roshan essani, J.

MUHAMMAD TAUFEEQ-Petitioner

versus

Mst. ABIDA and others-Respondents C.P. No. 425 of 2001, decided on 31.10.2002.

Constitution of Pakistan, 1973-

—-Art. 199-Petition for custody of minor child to father—High Court in its supervisory jurisdiction can only interfere when impugned order is , arbitrary, capricious, without lawful authority or in excess of jurisdiction-Findings arrived at by appellate Court cannot be reviewed or revised by High Court in constitutional jurisdiction-Nothing has been pointed out from which it could be deduced that appellate Court proceeded on a wrong assumption and committed error of law-Petition dismissed.

[P.55]A&B

Mr. Umer Farooq Khan, Advocate for Petitioner. Mrs. Surriya Rahim, Advocate for Respondent No. 1. Date of hearing: 29.10.2002.

order

By this constitutional petition, the petitioner Muhammad Taufeeq has sought following relief: -

"It is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the orders of the Respondents Nos. 2 and 3 and may also graciously be pleaded to direct the respondent to hand over the custody of the minor child namely Mosadiq to his father, the petitioner."

The brief facts of the case are that the petitioner married with the Respondent No. 1 in the year 1993. Out of wedlock parties were blessed with a son namely, Mosadiq on 15.8.1994. The petitioner was maintaining the minor. After sometime dispute arose between the parties with the result that the Respondent No. 1 left the house of the petitioner and started to live with her parents. The Respondent No. 1 did not permit the petitioner to meet with his son. Resultantiy, the petitioner filed Guardian and Ward Appli­cation before the Court of 1st Senior Civil Judge Karachi Sought for custody of the minor. The Guardian Judge dismissed the suit in following terms:

1. That the custody will remain with mother/respondent.

2.That the respondent is directed to produce the minor namely Musaddiq Hussain at 9.00 a.m. on every second Saturday of English calendar month in Court for meeting purpose with the applicant, further the applicant be paid Rs. 100/- for conveyance allowance to the respondent.

1. The minor will celebrate first day of his birth day with respondent/mother and second day with applicant/father. She will be handed over the minor to the applicant in the morning at 9.30 a.m. and he will stay with father whole day and will be returned to the mother at 5.00 p.m."

2. This arrangement will continue till attaining the age of majority of the minor."

The petitioner preferred appeal and the same was also dismissed by the HI Additional Sessions Judge Karachi South vide judgment dated 14.9.2001 which has been impugned in the instant petition.

I have heard Mr. Umer Farooq Khan learned counsel appearing on behalf of the petitioner and Mrs. Surriya Raheem learned counsel appearing on behalf of the Respondent No. 1.

The perusal of material placed on record shows that there are concurrent findings of two Courts below. The operative part of the impugned judgment reveals that the finding of the trial Court on issues framed in the matter was in consonance with the facts of the case and was based upon proper evaluation of evidence, thus the appellate Court rightly observed that the same calls for no interference. The High Court in its supervisory jurisdiction can only interfere when the impugned order is arbitrary, capricious, without lawful authority or in excess of jurisdiction.

The contentions of the petitioner relating to his case urged before this Court were considered by the appellate Court as is evident from the impugned judgment. The findings arrived at by the appellate Court cannot be reviewed or revised by this Court in constitutional jurisdiction. Nothing has been pointed out from which it could be deduced that the appellate Court proceeded on a wrong assumption and committed error of law."

The upshot of the above discussion is that the impugned judgment does not suffer from any legal infirmity or material irregularity. Resultantiy, the petition merits no consideration and stand dismissed alongwith listed application in limine.

(M.Y.) Petition dismissed.

PLJ 2003 Karachi 56

mushir alam, J.

M/s. AEROFLOT RUSSIAN INTERNATIONAL AIRLINES KARACHI through its MANAGER FOR PAKISTAN-Petitioner

versus

M/s.GERRY'S INTERNATIONAL (PVT.) LIMITED KARACHI-Respondent

J.M.A. No. 22-A of 1999, decided on 19.3.2003.

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

— O.XLI, R. 1-Companies Ordinance, 1984 (XLVII of 198-4), S. 306(a) Pendency of appeal against judgment and decree culminating out of arbitration proceedings-Effect on winding up proceedings-Merely filing of an appeal would not operate as suspension or stay of judgment appealed against, especially where order appealed against has not been stayed by Appellate Court. [P. 65] D

(ii) Companies Ordinance, 1984 (XLVII of 1984)--

— Ss. 305 & 306- Winding up of company-Company when deemed unable to pay its debts-Petitioner's entitlement to claim winding up of company-­ Petitioner admittedly had a demand against respondent exceeding statutory amount, such demand was subject matter of arbitration proceedings, and the same materialized in the form of an award-Demand in question, withstood the test of objection to the award and finally translated into judgment and decree-For purpose of winding up proceedings, decretal amount is "sum so due" within contemplation of S. 306(a) of Companies Ordinance, 1984-After judgment and decree demand notice was issued which was acknowledged by respondent- Admittedly more than 30 days have passed from date of demand-Once creditor had successfully established all the three requirements i.e.,"sum so due", "issuance of demand notice" and "passing of more than thirty days from date of demand" company would be deemed to be unable to pay its debts in terms of S. 306(a) and thus, liable to winding up on that ground. [P. 63] A

(iii) Companies Ordinance, 1984-(XLVII of 1984)--

— S. 306(a)~Power of Court to wind up a company— Extent of~Power of Court to wind up company on the ground that it was unable to pay its debts is not circumscribed by limitations as provided for winding-up orders on the ground that it is just and equitable or that there is failure to comply with requirement of statutory report or statutory meetings-­Respondent's claim that company .as viable is not a good defence in a case where winding up was sought on ground that company was unabipay its debts, which claim has been established by petitioner. [P. 64] B

(iv) Companies Ordinance, 1984 (XLVII of 1984)-

—-S. 306(a)--Winding up of company on ground of its inability to pay its debts-Other remedy by way of execution though available to petitioner but same was no defence at all where winding up was being sought on ground of company's inability to pay its debts though that would be a ground where winding up was sought on just and equitable ground-­ Petitioner, however, has the prerogative and discretion to adopt a course or remedy that may be considered most suited to him and defaulting party has no say in the matter. [P. 65] C

(v) Companies Ordinance, 1984 (XLVII of 1984)--

—-Ss. 305 & 306-Winding up of company-Petitioner's demand has been culminated into judgment and decree against respondent-Decretal amount has not been paid-Even neglect on the part of company to pay "sum due" by fiction of law, is deemed to be inability of company to pay debt for purpose of S. 305(e) of Companies Ordinance, 1984. [P. 65] E

(vi) Companies Ordinance, 1984 (XLVII of 1984)--

—- S. 305-Grounds enumerated in S. 305 of Companies Ordinance 1984-Status of-Each ground enumerated under S. 305 of Companies Ordinance 1984, in disjunctive and independent of each other. [P. 66] F

(vii) Companies Ordinance, 1984 (XLVII of 1984)-

—Ss. 305 & 306-Winding up of company—Defualting companies who neglect to pay or discharge legitimate demand if allowed to seek shelter behind a provision of law to retain benefit which they were liable to restore, thereof depriving a rightful claimant and holder of decree its due sum, then such conduct was nothing short of abuse of process of law-Courts do not approve of such conduct-Court in terms of S. 314 of Companies Ordinance, 1984, has discretion to make winding up order where it forms opinion that facts justify making of such order. [P. 66] G

(viii) Companies Ordinance, 1984 (XLVII of 1984)--

-—Ss. 305 & 306-Winding up of Company—Petitioner has made out case for winding up order against respondent company on the ground that company was unable to pay its debts-However, before such winding up order come into operation, lest the same may tend to prejudice other creditors of company, respondent company was directed to furnish solvent security in the sum of specified amount (the decretal amount) with costs of present petition to the satisfaction of Nazir of High Court within four weeks and on failure to give such security, company was ordered to be wound up. [P. 66] H

(ix) Companies Ordinance, 1984 (XLVII of 1984)--

—-Ss. 305 & 306--Maintainability of winding up petition objected to on ground that petitioner failed to comply with provisions of S. 452 of Companies Ordinance-Such objection was never raised by respondent either in arbitration proceedings or in appeal-Such objection cannot be allowed to be taken for the first time during arguments-Requisite Compliance however, has been made by petitioner. [P. 66] I

AIR 1936 All 840; PLD 1969 Lab. 194; PLD 1970 Lahore 235; PLD 1990

Karachi 191; PLD 1971 Karachi 597; PLJ 1979 Karachi 295; PLD 1986

Karachi 409; PLD 1998 Karachi 649; PLD 1998 Karachi 330; 1999 MLD

(Karachi) 3260; 2001 SCMR 1877; PLD 1982 Karachi 378; PLD 1966 SC

328; AIR 1942 Madras 252; AIR 1989 SC 1769 and 1971 PLC 507 ref.

Mr, Shahid Anwar Bajwa, Advocate for Petitioner. Mr. Kazim Hassan, Advocate for Respondent. Date of hearing: 26.2.2003.

order

This petition under Section 305 of the Companies Ordinance, 1984 has been filed by the petitioner seeking winding-up order of the respondent, company, beside other consequential reliefs flowing therefrom. Only ground on which winding-up order sought is inability of respondent company to pay its debts.

Brief facts that could be deciphered from the pleadings are that, the petitioner, a Russian International Airlines, appointed the respondent :ompany, as its General Sales Agent. It is the case of the petitioner that, the •espondent company failed to make payment of the dues in respect of the imount generated by selling the services through sale of its tickets, letitioner, through notice terminated the Agency giving a cause to the respondent to file a Suit No. 252/1995 for specific performance of the contract. Petitioner also filed a Suit No. 569/1995 for the recovery of outstanding dues. Since the agreement between the parties provided for arbitration. Proceedings in both the suits were stayed and the parties were directed to resort to arbitration. From the record, it appears that an award was made in favour of the petitioner on 25.8.1997, same was filed in Court and registered as a Suit No. 308/1998. Objections were filed by the respondent, such objections were dismissed on merits and an award was made Rule of Court. It was followed by a judgment and. decree dated 19.4.1999. Against which", it appears that High Court Appeal No. 239/1999 has been preferred, said to be still pending. The Petitioner; however, instead of filing execution, served a notice in terms of Section 306 of the Companies Ordinance, 1984 on 8.7.1999 calling upon the respondent to pay the decretal amount in the sum of Rs. 35,356,171.60. Said notice was acknowledged. The amount demanded was not paid on the pretext that High Court Appeal is subjudice, the demand raised is premature. Consequently, instant winding-up petition was filed.

• It may be observed that initially instant petition for winding-up was dismissed by a learned single Judge in consideration of the fact that, the petitioner, a foreign company having failed to comply with the provision of Section 451 of the Companies Ordinance, 1984, therefore, in terms of Section 456 thereof, they are not entitled to file the proceedings. However, such order was successively assailed in High Court Appeal No. 151/2000, the matter was remanded to be decided afresh on merits after hearing the parties in accordance with law. This matter has now come up before me for hearing and disposal in accordance with law.

It was contended by learned counsel for the petitioner, Mr. Shahid Anwar Bajwa, that the respondent is liable under an award sanctified by a judgment and decree. He contends that despite notice under Section 306 of the Companies Ordinance, 1984 the liability remained uncleared. According to him, nothing more is required to be established to maintain a petition for winding-up on such ground. He further urged that now there are no reason to assert that the amount claimed by the petition is bono fide disputed or that such controversy is yet to be decided. He was confronted that since appeal has been preferred and matter is subjudice. He replied that merely pendency of appeal will not operate as a stay of proceedings nor deprived the petitioner of their rights to seek winding-up of the respondent. In support of his contention, he has relied upon the case laws reported as (1) Amalgamated Properties of Rhodeisa (1913), Limited [(Chancery Division)

C.A. 1917, Page 115], (2) W.T. Henley's Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Col. Ltd., Allahabad (AIR 1936 Allahabad 840), (3) National Bank of Pakistan v. The Punjab National Silk Mills Ltd. and others (PLD 1969 Lahore 194), (4) The United Bank Ltd. and others v. Messrs. Pakistan Wheat Products Ltd. and Others (PLD 1970 Lahore 235), and (5) Mrs. Sabiha Shahid Raza v. Ahmad Construction Company (Private) Limited (PLD 1990 Karachi 191).

In contra, Mr. Kazim Hussain, learned counsel appearing for the respondent, Company, contended that winding-up petition cannot be used as a substitute for recovery proceedings. According to him, there is a clear cut distinction between a company that is unable to pay its debts and unwilling company. He further argued that there is nothing on record to show that the - company is unable to pay its debts. As it is still a going concern. He further urged that since appeal has been preferred the bona fide dispute is still open to debate and final determination. In support of his contention, he has relied upon the case laws reported as (1) Mulla Abdullabhai and 9 others v. Saria Rope Mills Ltd. (PLD 1971 Karachi 597), (2) M/s. Khyber Textile Mills Ltd. v. M/s. Allied Textile Mills Ltd. (PLJ 1979 Karachi 295), (3) Federation of Pakistan v. The Standard Insurance Company Ltd., Karachi (PLD 1986 Karachi 409), and (4) Pakistan Industrial Credit and Investment Corporation Limited Karachi v. M/s. Bawany Industries Limited Karachi (PLJ 1998 Karachi 649).

He further contended that merely unwillingness to clear the alleged liability, is no ground to maintain a winding-up petition. According to him, it is only when a company is unable to pay its debts winding-up could be resorted. To backup such proposition, he has placed reliance on United Bank Limited v. Golden Textile Mills Limited (PLD 1998 Karachi 330) and K.F. Development Corporation Ltd. v. Messrs. Dawood Cotton Mills Ltd. (1999 MLD Karachi 3260).

He further urged that since judgment and decree is subjudice in appeal, entire matter has reopened before the Court. It cannot be said that

the disputed amount has been finally adjudicated, therefore, according to him, claim of the petitioner is still subject to adjudication and determination

of the appeal and before it is finally decided upto the Supreme Court it cannot be said that the amount is due and payable.

He lastly contended that winding-up petition in view of Section 456 1 of the Companies Ordinance, 1984 is barred as the petitioner, Company 1 admittedly maintaining its Office at Karachi had not complied with the requirements of Section 451 of the Companies Ordinance, 1984. He further urged that Section 456 of the said Ordinance, 1984 is analogous to the provision of Section 69 of the Partnership Act, which bars filing of any suit or proceedings unless it is registered. He has placed reliance on (1) ChinaAnnang Construction Corporation through Project Manager v. K.A. Construction Co. through Attorney (2001 SCMR 1877), (2) Messrs. TajConstruction Company v. Federation of Pakistan and 9 others (PLD 1982 Karachi 378), (3) Usmanand another v. Haji Omer Haji Ayub and others (PLD 1966 S.C. 328), (4) K.K.A. Ponnuchami Goundar v. Muthusmai Goundar and another (AIR (29) 1942 Madras 252), and (5) M/s. Shreeram Finance Corporation v. Yasin Khan and others (AIR 1989 S.C. 1769).

Mr. Shahid Anwer Bajwa, learned counsel for the petitioner exercising right of rebuttal urged that the objections as to the bar of the proceedings was not raised neither before the arbitrator nor in suit nor even in appeal, such objection cannot be raised at the time of arguments. He further urged that there is distinction in phraseology between Section 69 of the partnership Act and Section 456 of the Companies Ordinance, 1984, according to him, Section 69 of Partnership Act places a bar whereas the Section 456 Companies Ordinance, 1984 does not bar the filing of the proceedings. He has relied upon a Division Bench judgment reported as Abdul Jamil v. Registrar of Trade Unions, West Pakistan, Lahore and another (1971 PLC 507) to support his contention.

After hearing the arguments of the both the learned counsel, perused the material available on record and carefully scanned the case laws cited at bar.

Winding-up petition can be maintained by a creditor in terms of Section 305 on various grounds enumerated therein. The ground which is relevant for the purpose of instant proceedings is Section 305(e) i.e."if the company is unable to pay its debts." What is meant by a Company unable to pay its debit?' is further elaborated by Section 306, which postulates the situation when company is deemed to be unable to pay its debt for the purpose of bringing a winding up petition. The deeming provision becomes effective when a demand is made by a creditor to whom the company is indebted in a sum exceeding one per cent of its paid-up capital or fifty thousand rupees, whichever is less and such demand is to be duly given under the hands of the creditors or any person duly authorized by him requiring the company to pay the sum so due and the company has for thirty days thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditors. Admittedly in the instant case, specified sum was outstanding against the respondent company, which led to termination of agreement of General Sales Agency. Both the petitioner and , respondent filed suit against each other. The arbitration culminated into Award endorsed by Judgment and Decree of this Court. On such determination of the amount by the Arbitrator and confirmation thereof by the Court, the demand as contemplated in terms of Section 306(l)(a) of the Companies Ordinance, 1984 admittedly was served on Respondent On 8.7.1999. Demand notice was duly acknowledged without being satisfied. The Company Court in terms of Section 314 on hearing a winding-up petition may either dismiss it with or without costs, or adjourn the hearing or make any interim order or an order for winding-up of the company or any other order that it deems just. It is further provided that the winding-up order shall not be refused by the Court only on the ground that the assets of the company are in excess of its mortgaged liability or that company has no assets.

Contention of Mr. Kazim Hassan, learned counsel for the respondent that it is not a case where it could be considered that the company is unable to pay its debt. According to him, the company is still a going concern. His further contention that since controversy is still subjudice in appeal, therefore, it cannot be said at the moment without such controversy is finally resolved upto the level of Supreme Court that the company is unable to pay its debts. Large number of cases in such context referred to above were relied on. Indeed there is a clear cut distinction between inability of a company to pay its debts and unwillingness on the part of the company to pay its debts. Earlier mention condition if established may entail consequence of winding-up as contemplated under Section 305(3) of the companies ordinance, whereas later situation does not warrant winding-up. Such controversy has often been mooted in Court when a "Company is said to be unable to pay its debts" the answer is provided under the Companies Ordinance, 1984 itself in Section 306 ibid. To appreciate the connotation unable to pay its debts, Section 306 of the Companies Ordinance, 1984 is relevant which is reproduced as follows:

1. Company when deemed unable to pay its debts.-(l) A company shall be deemed to be unable to pay its debts,--

(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one per cent of its paid-up capital or fifty thousand rupees, whichever is less, than due, has

served on the company, by causing the same to be delivered by registered post or otherwise, at its registered office, a demand under his hand requiring the company to pay the sum so due and the company has for thirty days thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; or

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

(0............................................................................ -.....................

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

A creditor, in term of Section 306 ibid to foist the clog of "unable to pay debit on a Company, is required to show that:

1. Company is indebted to the creditor/petitioner in a sum exceeding one percent of its paid-up capital or fifty thousand rupees whichever is less.

2. Creditor had served, under his hand, a clear cut .30 days notice demanding the company to pay the 'sum so due'.

3. There is neglect on the part of the company to clear the demand for thirty days from the date of demand or where the company had failed to secure or compound the demand to the reasonable satisfaction of the creditor.

Examining the case of the petitioner in the light of above. Admittedly petitioner had a demand against the respondent exceeding Rupees Fifty Thousand, such demand was subject matter of arbitration proceedings, it materialized in form of an award. The demand withstood the test of objection to the award and finally translated into a judgment and decree. Whatever bona fide dispute as to such demand agitated were finally determined. For the purpose of instant proceedings the decretal amount is "sum so due" with the contemplation of Section 306(a) of the Companies Ordinance, 1984.

As far as second condition of Notice is concerned, admittedly the petitioner had made a demand of "Sum so due" after the judgment and decree, through Demand Notice dated July 8, 1999 which demand notice was duly acknowledged videReply dated July 14,1999, whereby the claim was refuted on the -ground, inter alia, that appeal against the judgment and decree is proposed to be filed, demand is premature. Second condition is complied with.

Adverting to last condition, admittedly more than 30 days have passed from the date of demand. Neither the respondent has paid nor cleared the liability or "Sum so due nor, had secured nor compounded the demand to the reasonable satisfaction of the creditor/petitioner.

Once the creditor has successfully established all the three requirements of Section 306(a). By fiction of law "Company is deemed unable to pay its debts."

Contention of Mr. Kazim Hassan, that winding-up petition cannot be used as a pressure tool or as a substitute for any other remedy. Since, according to him, remedy by way of execution is available, petition for winding-up is misconceived.

The jurisdiction to wind-up a company is circumscribed by limitation laid down under Section 314 of the Companies Ordinance, 1984 usually such discretion is to be exercised in extreme cases. Courts in the first instance try to find ways and means to remedy the wrong complained of and pass such orders as may be appropriate and that may be deem just to regulate the conduct of affair of the company. One should not be unmindful of the fact that in case where winding-up of the company is sought on the ground that it is just and equitable. It is only then specifically provided for, in terms of Sub-section (2) to Section 314 of the Companies Ordinance, 1984 that the Court may refuse to make an order of winding-up, if it is of opinion that, some other remedy is available to the petitioners and that, they are acting unreasonably in seeking to have the company wound-up instead of pursuing that other remedy. The Court will also refused to exercise such discretion, when winding-up is sought on the ground of default in delivering statutory report or in holding the statutory meeting or any two consecutive AGM [Section 305 (b)] as such grievance could be effectively remedied under Section 314(3) of the Ordinance, 1984 by directing the company to deliver the statutory report or the requisite meeting be held as the case may be. The powers of the Court to wind-up a company on the ground that it is unable to pay its debts is not circumscribed by the limitation as provided for winding-up orders on the ground that it is just and equitable or that there is failure to comply with requirement of statutory report or statutory meetings. Therefore, contention of Mr. Kazim Hassan that company is a going concern or that it is a viable company are not good defence in a case where winding-up is sought on the ground that company is unable to pay its debts, such inability in terms of deeming provision of Section 306(1) of the Ordinance, 1984, in instant case, has been established by the petitioner.

As far as other defence of the respondent company that, other remedy (by way of execution) is available. In my humble estimation it is no defence at all. Availability of other remedy is a statutory defence available under Section 314(2) of the Ordinance, 1984, where winding-up is sought on "Just and equitable ground", which is not so in the instant case. Even otherwise a defaulting party cannot direct the complainant to adopt a particular course or remedy. Where more than one remedy is available and there is no bar or restriction imposed by law then it is the prerogative and discretion of the petition to adopt a course or remedy that may be considered most suited to the petitioner and defaulting party has no say in the matter.

Contention of Mr. Kazim Hassan that since the appeal is pending and the debts are not finally determined as the controversy before the Appellate Court reopens the entire issue. Contention indeed engages ones attention but when examined exposes its fallacy. Such proposition indeed may be true where the matter relates to the appellate proceedings for the purpose of deciding the Appeal. Such proposition cannot be extended for other collateral proceedings. More particularly where the order appealed against has not been stayed by the Appellate Court. Merely filing of an appeal will not operate as suspension or stay of the judgment appealed against [see Order 41, Rule 5(1) CPC], therefore, in view of the foregoing it cannot be said that merely filing of an appeal would render the controversy exposed open or subject to determination. Once the petitioner is armed with an Award and a Decree.

It can be safely said that, such debt has been determined and prima facie are due and payable. Such liability is further determined and crystallized on expiry of the notice in terms of Section 306(1) of the Companies Ordinance, 1984 when the company had "neglected to pay the 'sum due' or to offer security to the reasonable satisfaction of the creditor." It may ,be noted that to determine when a company is "deemed unable to pay its debts" under Section 306(1) ibid. The satisfaction of the creditor has preference over the satisfaction of the Court. As observed above, conduct of parties is relevant consideration in winding-up petition. Likewise, bona fide dispute as regard the liability of a Company could be gauged from the conduct of the parties. It is an admitted position in this case that the dispute as to the determination of the liability and dues of the petitioner has been set at rest by an Award followed by a Decree. Section 305(e) ibid gives independent right to a creditor to seek an order of winding-up provided conditions set out in Section 306 ibid are met. Even the neglect on the part of the company to pay the sum due by fiction of law (as embodied in Section 306 ibid) company is deemed unable to pay debt for the purpose of Section 305(e). Such neglect to pay 'sum due' furnishes a ground for winding-up of the company. Irrespective of the fact that the company is a viable proportion and has other considerable assets and property more than its liability such being not the relevant consideration in view of Section 314(1) of the Companies Ordinance, 1984 while considering the winding-up on the ground of inability to pay the debts. From the conduct of the Respondent, it appears that the neglect to pay the debt is not premised on bona fide dispute. It appears that plea of bona fide dispute has been raised to avoid the liability. The 'sum due' is not being paid in order to withhold it and to use and exploit it for its own benefit and advantage at the cost and detriment of the petitioner. Very fact, the respondent had merely filed an appeal against the judgment and decree without obtaining any order for the suspension and stay of such judgment and decree at least reflect that "Respondent is not interested to" secure or compound the debt to the reasonable satisfaction on the creditor as postulated under Section 306(1) of the Companies Ordinance, 1984.

Contention of Mr. Kazim Hassan that since the company is solvent execution should have been filed by the petitioner for the recovery of amount. I have already discussed above that availability of the alternate remedy may no bar the winding-up petition on the ground of inability to pay its debts. It may be a valid defence against winding-up on the ground of just and equitable clause which is independent ground to seek winding-up. Each ground so enumerated under Section 305 of the Companies Ordinance, 1984 are disjunctive and independent of each other. In the case of Amalgamated Properties of Rhodesia (1913), Limited [(Chancery Division) C.A..1917, Page 115]. In somewhat similar circumstances, where a claim was determined in a proceeding, winding-up was filed instead of bringing an execution. Similar objections that appeal is pending were dispelled, it was held that the appeal does not stay the execution and the winding-up petition was no bar. In the case of W.T. Henley's Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Co. Ltd., Allahabad(AIR 1936 Allahabad 840), the Court even had gone to an extent to hold that it is not necessary for a Decree Holder to take recourse to execution. It was further held that such demand could be raised under Section 163(1) of the Companies Ordinance, 1913 [corresponding to Section 306(1)]. Therefore, in my opinion where a company has no bona fide reason but some other motive to deprive the creditor of its due amount which has been prima facie established in a contentious legal proceedings and materialized into a Decree, it cannot be said that respondent's dispute is bona fide anymore. For the purpose of present proceedings, in my opinion a company which is neither interested to pay the sum due nor is interested to 'secure or compound the debt to the reasonable satisfaction of the creditor'. (As suspension of such judgment and decree is only possible on furnishing security for due performance of such decree), such orders for obvious reason respondent has not obtained. Defence of the Respondents to drive the petitioner/creditor to adopt legal proceedings by way of a protracted litigation, is not reflective of a good conduct on the part of the respondent. If defaulting companies who neglect to pay and discharge legitimate demand are allowed to seek shelter behind a provision of law to retain a benefit which they are otherwise liable to restore, thereby depriving a rightful claimant -and holder of a decree its due sum, then such conduct is nothing short of abuse of process of law, Court do not approve of such conduct. Respondent was not able to show that petition has been made either as a pressure tactic or for some ulterior motive. Since discretion of a Court in terms of Section 314 of the Companies Ordinance, 1984 provides that even if the Court is of the opinion that the fact justify making in winding-up order, Court may pass, other order as it may deem just.

Under the facts and circumstances, the petitioner has made out a case for winding-up order against the respondent-company on the ground that company is unable to pay its debts. But before such winding-up orders come into operation, as it may tend to prejudice other creditors of the company, I would direct that the Respondent Company to furnish solvent security in the sum of Rs. 3,53,56,171.60 (Rupees Thirty Five Million Three Hundred Fifty Six Thousand One Hundred Seventy One and Paisa Sixty only) the decretal amount in Suit No. 308/1998 together with cost of instant petition in the sum of Rupees 25,000/- (twenty five thousand only) to the satisfaction of Nazir of this Court within four weeks from the date of this order and on failure to give such security within four weeks, Company is ordered to be wound-up, such order then be communicated to the registrar of the companies as required under the companies ordinance. The security so furnished shall be utilized for payment of the petitioner debit/decretal amount and cost subject to the determination of HCA No. 239/1999. In case the Respondent furnishes solvent security as set out and directed above, the winding up petition shall be deemed to have been refused.

As far as preliminary objections of Mr. Kazim Hassan as to maintainability of winding-up petition on the ground that petitioner failed to comply with the requirement of "Section 452 of the Companies Ordinance, 1984. It may not be out of place to mention here that neither in arbitration proceedings, nor in suits such objections were raised by the respondent nor appeal is founded on such objection. Such objection, first time urged in this petition, was set at rest in HCA No. 151/2000, more so, requisite compliance has been made by the petitioner. By entertaining such objection which Las been set at rest, I will be over stepping my jurisdiction.

The winding-up order is to be drawn in case respondent fails to furnish security, as ordered within the time and manner set out above. In case winding up order is carried out, Official Assignee is appointed as Liquidator to carry out the winding up of the respondent as provided for under the Companies Ordinance, 1984.

The petition stands disposed off in terms set out above. (A.A.) Order accordingly.

PLJ 2003 Karachi 68 (DB)

Present: sabihuddin ahmed and ali aslam jafri, JJ.

M. SALEEM SHEIKH and others-Petitioners

versus

STATE BANK OF PAKISTAN through its GOVERNOR and others-Respondents

C.Ps. Nos. 525 & 669 of 2002, heard on 11.11.2002.

(i) Banking Companies Ordinance, 1962 (XIX of 1962)--

—S. 41-Order in terms of S. 41-A of Banking Companies Ordinance, 1962 made by the Governor State Bank of Pakistan-Essentials-No order under S. 41-A of Banking Companies Ordinance, 1962 would be made except by the Governor of State Bank on a report by standing Committee-Any person aggrieved by an order of Governor under s. 41-A would have option to appeal to Central Board of Directors whose decision would be final. [P. 76] A

(ii) Banking Companies Ordinance, 1962 (XIX of 1962)--

—S. 41-Memorandum of understanding entered into by petitioner alongwith other Directors with a foreign based company not disputed, whereby petitioner and other Directors were to facilitate that foreign based company in purchasing 49 per cent shares of Federal Government proposed to be disinvested and in consideration thereof, company was to purchase personal shares of those directors at a premium i.e. 2 Dollars per share and at the same time, upon acquiring majority shares, benefit them through handsome pay packages and also retain them on the Board of Directors-Such memorandum of understanding had although not become an enforceable contract, yet its weight as regards intention of petitioner and other Directors for purposes of proceedings like the present one could not be over looked-Provision of S. 41-A of Banking Companies Ordinance, 1962 enable State Bank to take both punitive and preventive action in the interest of Banking Company, its depositors or the public, and power to remove could be exercised in a proper case against responsible Directors. [P. 78] B

(iii) Banking Companies Ordinance, 1962 (XIX of 1962)--

—-S. 41-A--Constitution of Pakistan (1973), Art. 199-State Bank's power to remove a person not only from his existing employment but to prohibit him from taking part in the management of any other company impugned on the touchstone of Article 4 of the Constitution-Power of State Bank in terms of S. 41-A(1) & (3), whereby a person could be deprived of his means of livelihood must be construed very strictly within four corners of Article 4 and 23 of the Constitution-Removal from employment in the public interest under S. 41-A of Banking Companies Ordinance, 1962 on basis of transfer of shares for personal benefit could only be affected if restriction on transfer of shares had been imposed by law. [P. 79] C

(iv) Banking Companies Ordinance, 1962 (XIX of 1962)--

—S. 41-A-Petitioner in collusion with other Directors granted liberal financing to a company which had defaulted in payment of dues of respondent Bank-Material on record suggested that company in question, had purchased or agreed to purchase shares held by some Directors and senior executives at a price much higher than normal price of such shares-Interest of depositors was thus, being compromised by advancing loans to defaulter company for which Directors and persons in senior management obtained an advantage by exercising their management obtained an advantage by exercising their management powers-Relevant pre-conditions for exercising powers of removal under S. 41-A of Banking Companies Ordinance, 1962 could not be deemed to be non-existent in respect of allegations levelled against petitioner. [Pp. 79 & 80] D

(v) Banking Companies Ordinance, 1962 (XIX of 1962)--

-—S. 41-A-Petitioner's removal from his assignment in terms of S. 41-A of Banking Companies Ordinance, 1962, does not specify period of three years debarring him from taking part in the management of any other Banking Company-Such period should have been specified in the order of removal of petitioner which should not be more than three years- Impugned order of Governor of State Bank was set aside however, he would be at liberty to pass any appropriate order on the basis of grounds (a) and (b) stated in impugned order and while passing any order, he would specify the period for which such order would operate-Petitioners if felt aggrieved by the order to be passed by the Governor would have option to file appeal before Board of Directors and Governor would not participate in hearing and decision making. [Pp. 80 & 81] E & F

Mr. Anwar Mansoor Khan, Advocate for Petitioner in C.P. No. 525/2002.

Malik Muhammad Qayyum, Advocate for . Petitioner in C.P. No. 669/2002.

Mr. Khalid Anwar, Advocate for Respondent No. 1 in both petitions.

Mr. Shahid Anwar Bajwa, Advocate for Respondent No. 2 in both petitions.

Date of hearing: 11.11.2002.

. judgment

Sabihuddin Ahmed, J.--Both the petitioners above-named appear to be aggrieved by the interim order of the Governor of the Respondent No. 1 dated 3.8.2001 and the consequential order of Respondent No. 2 dated 5.8.2001 purporting to remove the petitioners from positions of Senior Executive Vice-President/Director and Executive Vice-President of the Bank passed by the Respondent No. 2 dated 19.3.2002. When C.P. No. 525/2002 came up for Katcha peshi alongwith an application for interim relief, we considered it appropriate to issue notices to the respondents before passing any order. M/s. Khalid Anwar and Shahid Anwe r Bajwa entered appearance on behalf of the respondents and the matter was partly argued on 12.4.2002 and 17.4.2002, when it was adjourned to 30.4.2002 in the meantime C.P. No. 669/2002 also came up before this Bench on £5.4.2002 and since we felt that the same order had been called in question ia this petition we directed both the matters to be heard on 30.4.2002. It may be mentioned at this stage that both M/s. Malik Muhammad Qayyom and Anwar Mansoor Khan stressed on the need to pass an interim order in the same terms as had been done by the Honourable Supreme Court, in C.P. No. 150-L of 2002 arising from a judgment of the Lahore High Court whereby a petition calling in question the termination of services of another employee of the Respondent No. 2 had been dismissed. Mr. Khalid Anwar on the other hand asserted that an ex parteinterim order passed by the Honourable Supreme Court did not amount to a declaration of law and passing of such an order could be contrary to public interest. In the circumstances, considering that it might be more appropriate to allow any of the parties arrayed before us to approach the Honourable Supreme Court in the event of being aggrieved by an order passed by us and be heard before the final resolution of the controversy, we decided with the consent of all the parties to admit and finally decided these petitions.

1. The admitted factual matrix appears to be that the Banking Supervision Department of the Respondent No. 1 in the course of routine inspection of the Station Road Branch Hyderabad of the Respondent No. 2 reported that the Respondent No. 2 had been extending liberal financing facilities between Fateh Textile Mills Limited (F.T.M.L) which was a major defaulter and such facilities were used for purchase of the shares of the Respondent No. 2 bank held by staff officers of the Bank. It was further alleged that F.T.M.L had availed export refinance from the State Bank through the Station Road Branch of the Respondent No. 2 against fake shipments. The Governor of the Respondent No. 1 constituted a Standing Committee in terms of Section 41-C of the Banking Companies Ordinance 1962 for the purpose of making recommendations against the Directors/ Senior Executives of the Respondent No. 2 in respect of different irregularities. The aforesaid committee after examining a number of reports/documents but without hearing the petitioners vide its report dated 8.6.2001 recorded the following conclusions.

2. The Banking Supervision Department of the State Bank carrying out a special inspection headed by Deputy Director and comprising two Assistant Directors noted the following serious irregularities in the functioning of the branch:--

(a) That F.T.M.L. availed Export Refinance from the State Bank through A.B.L. Station Road Branch Hyderabad against fake shipments.

(b) The ABL through its Foreign Exchange Branch Karachi and Station Road Branch Hyderabad was extending financial facilities to the F.T.M.L. for purchase of bank's shares held by staff officers of the Bank.

(v) Banking Companies Ordinance, 1962 (XIX of 1962)--

-—S. 41-A-Petitioner's removal from his assignment in terms of S. 41-A of Banking Companies Ordinance, 1962, does not specify period of three years debarring him from taking part in the management of any other Banking Company-Such period should have been specified in the order of removal of petitioner which should not be more than three years-­ Impugned order of Governor of State Bank was set aside however, he would be at liberty to pass any appropriate order on the basis of grounds (a) and (b) stated in impugned order and while passing any order, he would specify the period for which such order would operate-Petitioners if felt aggrieved by the order to be passed by the Governor would have option to file appeal before Board of Directors and Governor would not participate in hearing and decision making. [Pp. 80 & 81] E & F

Mr. Anwar Mansoor Khan, Advocate for Petitioner in C.P, No. 525/2002.

Malik Muhammad Qayyum, Advocate for Petitioner in C.P. No. 669/2002.

Mr. Khalid Anwar,Advocate for Respondent No. 1 in both petitions.

Mr. Shahid Anwar Bajwa,Advocate for Respondent No. 2 in both petitions.

Date of hearing: 11.11.2002.

judgment

Sabihuddin Ahmed, J.-Both the petitioners above-named appear to be aggrieved by the interim order of the Governor of the Respondent No. 1 dated 3.8.2001 and the consequential order of Respondent No. 2 dated 5.8.2001 purporting to remove the petitioners from positions of Senior Executive Vice-President/Director and Executive Vice-President of the Bank passed by the Respondent No. 2 dated 19.3.2002. When C.P. No. 525/2002 came up for Katcha peshi alongwith an application for interim relief, we considered it appropriate to issue notices to the respondents before passing any order. M/s. Khalid Anwar and Shahid Anwer Bajwa entered appearance on behalf of the respondents and the matter was partly argued on 12.4.2002 and 17.4.2002, when it was adjourned to 30.4.2002 in the meantime C.P. No. 669/2002 also came up before this Bench on £5.4.2002 and since we felt that the same order had been called in question hi this petition we directed both the matters to be heard on 30.4.2002, It may be mentioned at this stage that both M/s. Malik Muhammad Qayyom and Anwar Mansoor Khan stressed on the need to pass an interim order in the same terms as had been done by the Honourable Supreme Court in C.P. No. 150-L of 2002 arising from a judgment of the Lahore High Court whereby a petition calling in question the termination of services of another employee of the Respondent No. 2 had been dismissed. Mr. Khalid Anwar on the other hand asserted that an ex pane interim order passed by the Honourable Supreme Court did not amount to a declaration of law and passing of such an order could be contrary to public interest. In the circumstances, considering that it might be more appropriate to allow any of the parties arrayed before us to approach the Honourable Supreme Court in the event of being aggrieved by an order passed by us and be heard before the final resolution of the controversy, we decided with the consent of all the parties to admit and finally decided these petitions.

1. The admitted factual matrix appears to be that the Banking Supervision Department of the Respondent No. 1 in the course of routine inspection of the Station Road Branch Hyderabad of the Respondent No. 2 reported that the Respondent No. 2 had been extending liberal financing facilities between Fateh Textile Mills Limited (F.T.M.L) which was a major defaulter and such facilities were used for purchase of the shares of the Respondent No. 2 bank held by staff officers of the Bank. It was further alleged that F.T.M.L had availed export refinance from the State Bank through the Station Road Branch of the Respondent No. 2 against fake shipments. The Governor of the Respondent No. 1 constituted a Standing Committee in terms of Section 41-C of the Banking Companies Ordinance 1962 for the purpose of making recommendations against the Directors/ Senior Executives of the Respondent No. 2 in respect of different irregularities. The aforesaid committee after examining a number of reports/documents but without hearing the petitioners vide its report dated 8.6.2001 recorded the following conclusions.

2. The Banking Supervision Department of the State Bank carrying out a special inspection headed by Deputy Director and comprising two Assistant Directors noted the following serious irregularities in the functioning of the branch:--

(a) That F.T.M.L. availed Export Refinance from the State Bank through A.B.L. Station Road Branch Hyderabad against fake shipments.

(b) The ABL through its Foreign Exchange Branch Karachi and Station Road Branch Hyderabad was extending financial facilities to the F.T.M.L. for purchase of bank's shares held by staff officers of the Bank.

1. With regard to the ficst irregularity, it was found by the committee upon random picking of six cases that Export Refinance was availed against certain shipments though it was established that the so called shipments had never moved from the Port of Karachi and no Master Bill of Ladings were issued. The Committee also found that huge amounts of money were deposited in the current account of F.T.M.L which were used not for normal business purpose but were utilized for purchase of shares of the Bank. It was also found that large amounts of money were transferred by F.T.M.L. to the account of one Abdul Ghaffar Noorani through whom shares of the value of Rs. 21.5 Millions owned by Mr. M. Rasheed Chodhri (Ex-President) and 2.5 Million each owned by Mr. I.A. Usmani S.E.V.P/Director and Johar Hussain (Ex-E.V.P.) were purchased. The Standing Committee recorded the following conclusions and recommendations:--

(i) That the Bank and F.T.M.L. were hands in gloves and the former had abetted F.T.M.L. in the latter's fraudulent availment of subsidised Export Refinance from the State Bank and misappropriation or activities other than Exports/ genuineness business needs.

(ii) That F.T.M.L. was liable to penalty under Export Finance Scheme in respect of cases where shipments had not been made.

(iii) All such cases needed to be dug out by the Bank's internal audit under the direct supervision of the Divisional Head Audit to determine the volume of misuse Export Finance Facilities and B.P.R.D may consider black listing of F.T.M.L. from availing further Refinance Facilities under the Export Finance Scheme.

(iv) That Bank's internal audit may also fix responsibilities on the official concerned both at the concerned branches and the Central/Provincial/Zonal Offices for misappropriation of Export Finance and Extending Facilities for purchase of the Bank's own shares.

(v) That internal audit ought to pin down and disciplinary action taken may be intimated to the State Bank.

1. Apparently the report of the Standing Committee was communicated to the Bank which carried out an exhaustive audit and affixed responsibility for the illegalities. While a large number of officers at the junior leyel were found responsible. The petitioner in C.P. 669/2002 who was then the Provincial Chief was also held responsible in certain situations

and in the conclusions recorded by the Senior Vice President Audit and Inspection Division, it was observed as follows:

"We understand though the officers at Branch Zonal and Circle levels have made certain grave commissions and omission but had the Provincial Chief had played his role prudently and did not exhibit undue inclination towards party the mishap could have been contained at the initial stage."

1. In a separate concurring note Mr. Mukhtar Ali Malik, a Government appointed Director who was associated with the audit referred to certain statements recorded on oath and observed that initially a meeting was held in March, 1999, wherein Mr. Rasheed Chowdhri, Mr. Johar Hussain, Mr. LA. Usmani, the petitioner in C.P. 525/2002 and representatives of the Workers Federation and Officers Federation participated. It was noticed that the Government intended to dis-invest its 49% shares but the employees were unable to buy them, hence it was suggested that shares of all Bank employees be sold at Rs. 45/- to .T.M.L. and in doing so there would be no change in the management. The meeting was then postponed but subsequently it came to be noticed that M/s. Rasheed Chowdhri, Johar Hussain and LA. Usmani sold their shares at the rate of Rs. 100/- per share. The petitioner in C.P. 669/2002 and his brother at Rs. 94.78 and 84.78 respectively while other employees had to sell their respective shares between Rs. 20/- and 30/- each.

2. On the basis of the aforesaid reports and some other documentary material Standing Committee of the State Bank constituted under Section 41-C of the Banking Companies Ordinance 1962 examined the matter in detail and submitted the following conclusions for consideration of the Governor of the State Bank vide its report dated 8.6.2001.

(i) F.T.M.L. availed export refinance from S.B.P. through A.B.L. Station Road Hyderabad against fake shipping documents.

(ii) A.B.L. through its foreign exchange Branch Karachi and Station Road Branch Hyderabad extended financing facilities to F.T.M.L. which were used for purchase of shares held by the employees of A.B.L.

(iii) Moreover on the basis of Memorandum of Understanding (M.O.U dated 9.11.1998) between a U.S based company called Inter Link Equity Capital and the employee Directors of the Respondent No. 2, the Committee recorded that the said Directors used their position for personal enrichment by

negotiating sale of their own shares at more than three times the price paid to other employees share holders. Accordingly it recommended that four Directors and two employees of the Respondent No. 2 were undesirable persons and their continued association with the Respondent No. 2 was against public interest.

1. On the basis of the aforesaid report the President of the Respondent No. 1, the Governor of the Respondent No. 1 passed an order dated 3.8.2001 in respect of six persons including the petitioners in the following terms:

"In the light of facts and circumstances available before me, I am satisfied -that: (a) the Said Directors are unfit and undesirable persons to be associated with any banking institution; and (b) continued association of the Said Directors with ABL is against the interest of ABL and its depositors as well as against public interest.

The Report and its annexures, inter alia, establish that:

(a) The said Directors participated and/or colluded in extending financial accommodation and full logistic support to a major defaulter of their bank to enable it to clandestinely purchase the ABL shares with a view to ultimately take control of the bank.

(b) That the said Directors used their position for personal encashment by negotiating sale- of their own shares at than 3 times the price paid to other employees shareholder.

Terms of the Memorandum of Understanding dated November 9, 1998 entered into by the Said Directors with the Interlink Company ("ILC"), a California based corporation establish that the Said Directors were/are acting against public interest, against the interest of ABL with a view to promoting their own interest.

For reasons briefly stated above and in the Report, it is necessary to remove the Said Directors from their office and as executives of ABL forthwith."

1. The order further goes on to record that the said Directors will be given a reasonable opportunity of making a representation to State Bank for which they would be given separate show-cause notices and that delay in the removal of such Directors would be detrimental to public interest as well as the interest of A.B.L. and its depositors. Accordingly it was ordered that pending consideration of their representations, if any petitioners Saleem Shaikh shall not, with immediate effect act as S.E.V.P or Director of A.B.L. nor would Mr. Ashfaque Qureshi E.V.P. and shall not take any part of the management of the A.B.L.

2. Thereafter show-cause notices were served upon the petitioners and other Directors/Executives of the Respondent No. 2 to which they submitted their detailed replies. Eventually by an order dated 14.3.2002 the Governor of the Respondent No. 1 held that he was satisfied that there was no reason to alter his earlier order directing removal of Directors and officers under Section 41-A of the Ordinance. This order is called in question through both these petitions.

3. We have had the benefit of some very able arguments presented by Mr. Malik Muhammad Qayoom and Mr. Anwar Mansoor Khan on behalf of the two petitioners and M/s Khalid Anwar and Shahid Anwar Bajwa on behalf of the Respondents touching upon several legal aspects of the controversy and analyzing the rather voliminous material on record. Nevertheless, in view of the order that we propose to pass, we do not feel persuaded to comment upon the same.

4. Both Mr. Khalid Anwar and Mr. Bajwa contended by way of a preliminary objection to the maintainability of this petition that the petitions were premature as the petitioners had not availed of the alternate remedy of appeal provided under Section 41-C of the Banking Companies Ordinance. Mr. Khalid Anwar argued that under Section 41-C of the Ordinance no order under Section 41-A could be made except by the Governor State Bank and such order was appealable before the Central Board of Directors of the State Bank whose decision was to be final. Learned counsel contended that the Central Board of Directors was an autonomous institution under Section 9 of the State Bank of Pakistan Act consisting of the Governor of the State Bank, the Secretary Ministry of Finance Government of Pakistan and non officials Directors representing different provinces and different sectors of economic activity.

5. Mr. Anwar Mansoor Khan learned counsel for the petitioner in C.P. No. 525 of 2002, however, contended that an appeal was merely an exercise in futility in as much as it could not be treated as an efficacious remedy when appellate powers had been conferred upon a Board which was headed by the person against whose orders the appeal could be preferred and who also had a casting vote in the event of a divided opinion in terms of Section 9 of the State Bank of Pakistan Act, Learned counsel further argued that the petitioner could not be called upon to avail of the remedy, as a constitutional petition was a mere appropriate remedy when the impugned order exfacie suffered from lack of jurisdiction. Learned counsel referred to a large number of cases decided by the superior Courts including the Honourable Supreme Court to the effect that a constitutional petition was a more appropriate remedy when the impugned order was ultra vires the powers of the authority passing the same. Indeed the principle of law is well established and it is not necessary to site precedents in support of thereof. To demonstrate that the order dated 15.3.2002 was ultra vires powers of the Governor State Bank. Mr. Anwar Mansoor Khan referred to the opening words of Section 41-A of the Banking Companies Ordinance which purported to confer the powers upon the State Bank and not Governor thereof. Learned counsel argued that under Section 9 of the State Bank of Pakistan Act 1956, the general superintendence and directions of the affairs and business of the Bank has been entrusted to the Central Board of Directors which may exercise all the powers and do all acts and things that may be exercised or done by the Bank and are not expressly directed or required to be done in general meeting or annual general meeting. From the above, learned counsel deduced that the powers to remove a Director or other officer under Section 41-A could only be exercised by the Central Board of Directors and not by the Governor acting as persona designata.

6. With profound respect, we do not find merit in this contention. Section 41-C(1) expressly provides that no order under Section 41-A shall be made except by the Governor of State Bank on a report by Standing Committee and sub-section (2) stipulates that any person or Bank aggrieved by an order of Governor under Section 41-A may appeal to the Central Board of Directors whose decision shall be final. Learned counsel was unable to explain that if his interpretation of Section 41-A is accepted, Section 41-C would become meaningless and such meaninglessness can never be attributed to the legislature.

7. Having considered the above mentioned Statutory provision and applying the rule of harmonious construction, we agree with Mr. Anwar Mansoor Khan to the effect that the regulatory power to safeguard the interests of a Banking Company or its depositors to secure proper management of Banks in the Public interest vests in the State Bank in terms of Section 41-A. Section 41-C however, deal with the manner of exercise of such power and postulates three things. In the first place a Standing Committee setup by the State Bank is required to examine the affairs of a Bank and no order of removal can be passed in the absence of a report of such Committee. Thereafter an order of removal can be made by the Governor of the State Bank after giving the person concerned an opportunity

of being heard. Finally an order of removal is subject to the incidents of an appeal to the Central Board of Directors.

1. Responding to the preliminary objection Malik Muhammad Qayyom learned counsel for the petitioner in C.P. 669/2002 argued that the Courts in Pakistan have not treated a mere theoretical existence of an alternate remedy as an invariable bar to the exercise of jurisdiction under Article 199 of the Constitution. It is well settled that the alternate remedy must be equally efficacious and even otherwise a petition was always entertainable if the necessary factual material uptfn which an administrative Tribunal could assume jurisdiction did not exist. Whenever an administrative Tribunal unlawfully assumes jurisdiction an aggrieved party could not be required to litigate his grievances in the hierarchy of such Tribunals. It may not be necessary to cite the large number of precedents covering the above proposition of law. It may however, be stated in the context of the present case that if it could be shown that the factual or legal basis upon which jurisdiction was assumed by the respondent did not exist or if such jurisdiction was assumed not for the purposes laid down in the Statute, but for some other collateral purpose, a petition under Article 199 of the Constitution could be entertained at this stage. On the other hand if necessary material or pre conditions for assumption of jurisdiction did exist but the order passed suffered from a wrong finding of fact or application of law, the aggrieved party would normally be required to avail the alternate remedy provided in the Statute before approaching this Court.

2. In this view of the matter it becomes necessary for us to examine the impugned orders from the above stand point. The operative part whereof reads as under:

"In view of the above I am satisfied that there is no reason to alter my earlier decision that Said Directors and Said Official be removed under Section 41-A of the B.C.O. My findings, inter alia, are as under:

(a) Said Directors participated and/or colluded in extending financial accommodation and full logistic support to a major defaulter of their bank to enable it to clandestinely purchase ABL shares with a view to ultimately take control of the Bank.

(b) Said Directors used their position for personal encashment by negotiating sale of their own shares at more than three times the price paid to other employees shareholder.

(c) Terms of the Memorandum of Understanding dated 9th November, 1998 entered into by Said Directors with The Interlink Company a California based corporation, establish that Said Directors, were/are acting against public interest, against the interest of ABL, with a view to promoting their own interests.

(d) Said Directors as well as Said Official are unfit and undesirable persons to be associated with any banking institution. I am further satisfied that removal of Said Directors and Said Officials by the Interim Order was in the interest of ABL and its depositors and in public interest.

1. Taking up the finding recorded at "C" above, it is not disputed that the petitioner in C.P. No. 525/2002 alognwith three other Directors entered into a Memorandum of Understanding with a California based company whereby the aforesaid Directors were to facilitate the Company inter alia in purchasing the 49% shares of the Federal Government proposed to be disinvested and in consideration thereof, the company was to purchase the personal shares of these Directors at a premium i.e. 2 Dollars per share and at the same time, upon acquiring majority shares, benefit them through handsome pay packages and also retained them on the Board of Directors. Mr. Anwar Mansoor Khan indeed argued that M.O.U could not be treated as a concluded contract, and in fact it had not been acted upon and therefore could not be given any weight. We are not impressed by. this contention in as much as while agreeing that it had not become an enforceable contract, its weight as regards the intention of the Directors for the purposes of proceedings like the present one could not be overlooked. Section 41-A enables the State Bank to take both punitive and preventive action in the interest of the Banking Company, its depositors or the public. Therefore it is not necessary to wait till a person actually causes loss and once it is shown that he had all the intentions of doing so the power to remove could be exercised in a proper case.

2. Nevertheless, assuming that the M.O.U had acquired the form of a proper contract and had been acted upon, we requested Mr. Khalid Anwar, to show whether such a contract could be deemed to be barred by any law or otherwise invalid. Learned counsel conceded that a shareholder is always entitled to disinvest his shares at such price as may be offered to him and practically those holding controlling shares in a company are mostly found at a certain premium over and above the price offered to ordinary shareholders. Indeed the employees purchasing the shares of the Bank were restrained from disposing them off for a period of five years from the date of Privatization in 1991, the M.O.U was admittedly signed after the aforesaid period and nothing was placed on record to show any prohibition or illegality in such a transaction. Indeed the fact that some shareholders might be able to secure a much higher price for their shares on account of their privileged position in a company might offend once ethical susceplities but such is the rule in market economy and in the absence of any legal prohibition no objection to such transaction can be sustained. In any even there is nothing on record to indicate that the intended action of the petitioner and other Directors could have possibly led to a situation detrimental to the interests of the Banking Company or its depositors.

3. It was indeed argued that the power of removal under Section 41-A was available even if the association or a Director or officer was "otherwise undesirable" or if such removal was in the public interest, apart from the specific grounds of being detrimental to the interests of the Banking Company or its depositors. We are afraid we cannot countenance such a broad interpretation of the expression "undesirable" and "public interest". It needs to be kept in view that Section 41-A(1) and (3) confer a power upon State Bank not merely to remove a person from its existing employment but to prohibit him from taking part in the management of any other Banking Company. It intends to deprive a person of his means of livelihood and therefore, must be construed very strictly. Moreover Article 4 of the Constitution guarantees that no person shall be prevented from or be hindered in doing that which is not prohibited by law and Article 23 guarantees a fundamental right to acquire hold and dispose of property subject to the Constitution and any reasonable restriction imposed by law in the public interest. Therefore, in our view a removal in the public interest under Section 41-A of the Banking Companies Ordinance on the above ground could only be effected if a restriction on the transfer of shares had been imposed by law. Likewise the expression "otherwise undesirable" in Section 41-A(l)(a) has to be read ejusdem generis with the earlier words "detrimental to the interest of the Banking Company or its depositors" and ^not public power of such drastic nature could be exercised on the ground that the Governor State Bank considers a person's association with the Bank to be undesirable for any subjective reasons. We would therefore, hold that the impugned action could not be taken on the basis of ground "C" reproduced in para-17 above.

4. As regards grounds "a" and "b" however, the position appears to be substantially different. Indeed there is material on record to indicate that extremely liberal financing was granted to F.T.M.L. which had even earlier defaulted in payment of dues of the Respondent No. 2 Bank. There is also material to suggest that the F.T.M.L. purchased or agreed to purchase the shares held by some Directors and Senior Executives at a price much higher than the normal price of such shares. Mr. Khalid Anwar rightly pointed out that Section 95 of the Companies Ordinance prohibits a company from advancing loans or financial assistance or purchase of its own shares. Moreover, a distinguishing feature of these allegations as compared to the one at number "C" seems to be that the interest of depositors were being compromised by advancing loans to a defaulter for which some Directors and" persons in the senior management obtained an advantage by exercising their management powers. Therefore, it could not be held that relevant pre conditions for exercise of power under Section 41-A did not exist in respect of the aforesaid allegations.

5. The question whether the facts necessary for taking penal action under Section 41-A was established or otherwise is basically a question of fact and this Court does not normally enter into such controversies whenever alternate remedies are available. Indeed both Mr. Malik Muhammad Qayyom and Mr. Anwar Mansoor Khan argued that the alternate remedy in terms of Section 41-C is only illusory as the appellate authority i.e. the Central Board of Directors of the State Bank is head by the Governor himself who has passed the impugned order and the very concept of an appeal to a higher forum would be destroyed in case he is called upon to preside over a forum where his own decision is questioned. Mr. Khalid Anwar urged that Central Board of Directors is a fairly autonomous body after the enactment of the State Bank of Pakistan (Amendment) Act 1994. He also fairly conceded that it would be appropriate to order that an appeal against the impugned order be heard by the Central Board where the Governor should exclude himself from participating.

6. We have also noticed that the impugned order suffers from one more lacuna in as much as the period during which the petition have been debarred from being associated with the management of the Respondent No. 2 Bank and consequently with any other Bank has not been specified. It is important to keep in view that as a consequence of an order of removal passed under Section 41-A(1) the person removed also stands debarred under sub-section (3) from taking part in the management of any other Banking Company for the period not exceeding three years. When a professional banker is so removed he sands deprived of all opportunities of gainful employment in the profession in which he is trained. The Legislature has therefore ordained that such period should be specified in the order and should not in any case exceed three years.

7. 1. In view of the foregoing we would partly allow these petitions and hold that no action on the basis of execution of Memorandum of Understanding dated 9.11.1998 could be taken. The impugned order dated 15.3.2002 passed by the Governor of the Respondent No. 1 is accordingly set aside, but he is at liberty to pass any appropriate order on the basis of grounds (a) and (b) stated in the impugned order. In doing so the Governor will take into consideration the extent of responsibility of each of the petitioners and thereafter determine whether any action is warranted under Section 41-A. He will also specify the period during which such order will operate for the purposes of Section 41-A(3). In case the petitioners are aggrieved by any order that may be so passed they would be free to invoke the appellate jurisdiction of the Central Board of Directors of the Respondent No. 1 and the Governor will not participate in the hearings and decision making process of such appeals. Till the disposal of these appeals interim order passed earlier will remain operative subject to any decision or modification or vacation of the interim order passed by the Honourable Supreme Court in C.P.L. 150/2002. The parties will bear their own costs. We may record our appreciation of the invaluable assistance rendered by Malik Muhammad Qayyom and Mr. Anwar Mansoor Khan for the petitioners and M/s Khalid Anwar and Shahid Anwar Bajwa for Respondents.

(A.A.) Appeal partly allowed.

PLJ 2003 Karachi 81 (DB)

Present: shabbir ahmed and S. ali aslam jafri, JJ.

M/s. ABDOUN OIL COMPANY S.A. INCORPORATED UNDER LAWS OF

THE REPUBLIC OF PANAMA, IN GREECE, WITH THEIR OFFICE AT

43-45 PORTMAN SQUARE, LONDON-Appellant

versus

M/T ABDOUN DISCOVERY" A SHIP FLYING PANAMA FLAG

PRESENTLY AT THE PORT OF PORT QASIM AUTHORITY, KARACHI, PAKISTAN and another-Respondents

Admiralty Appeals Nos. 24 and 125 of 2002, decided on 7.1.2003.

(i) Admiralty Jurisdiction of High Court Ordinance, 1980 (XLII of 1980)--

—S. 4(4)--Action in rem-Institution of-Essentials-Action in rem can be instituted against that ship or property on which maritime lien has been claimed-Maritime lien or privileged claim or charge upon Maritime property in respect of services rendered to the same or purchase or damage done to the ship, occurs the moment, cause of action arises and attaches to property to which the cause has accrued-Maritime lien travels with the property secretly and un-conditionally and can be enforced by action in rem-Petitioner's claim that ship in question was purchased by the amount advanced by them to respondent was not borne out by documents on record which showed that ship in question, was purchased by respondents much before alleged payment—Appellants, therefore, cannot claim Maritime lien over respondent vessel/ship nor action in rem can be brought against the ship. [P. 100] A

(ii) Admiralty Jurisdiction of High Court Ordinance, 1980 (XLII of 1980)--

—Preamble-Admirality jurisdiction-Nature of-Admirality jurisdiction is although remedial in nature requiring liberal interpretation, yet exercise of such jurisdiction should not be so harsh as to cause injustice to other party or violence to the statute. [P. 101] C

(iii) Admiralty Jurisdiction of High Court Ordinance, 1980 (XLII of 1980)--

—S. 4(4)-Admiralty jurisdiction of High Court-Conditions for invoking such jurisdiction stated and illustrated. [P. 101] D

(iv) Sindh Chief Court (O.S.) Rules--

—R. 731-Admiralty jurisdiction of High Court Ordinance (XLII of 1980), S. 7-Appeal against order passed under R. 731 of Sindh Chief Court (O.S.) Rules-Applications filed before Court have to be disposed of on the basis of affidavits which have been filed with documents and the same have to be considered. [P. 101] B

(v) Sindh Chief Court (O.S.) Rules-

—-R. 731-Admiralty jurisdiction of High Court Ordinance (XLII of 1980), S. 7-Trial Court re-calling arrest order and dismissing application under .Rule 731 of Sindh Chief Court (O.S.) Rules-Legality-Orders in question, were based on bar of limitation-Plaintiffs although pleaded acknowledgment in terms of S. 19 of Limitation Act 1908, yet they could not prove the same-Documents on record clearly indicated that suit was barred by time therefore, question of limitation had to be addressed in terms of S. 3, Limitation Act, 1908-No interference was, thus, warranted in impugned order. -[P. 104] E

1983 CLC 886; PLD 1988 Kar. 515 and S.B.L.R. 2002 Sindh 475 & 488.

Mr. Akhtar All Mahmud, Advocate for Appellants.

M/s. Naeem Ahmed and Abdul Inam, Advocates for Respondents.

Dates of hearing: 26.12.2002 & 27.12.2002.

judgment

Shabbir Ahmed, J.--The questions involved in the above appeals are almost common as to the facts, it is, therefore, considered proper to deal with together and to dispose them of by this judgment.

The above appeals have been filed by the appellants/plaintiff against the order dated 20.12.2002, whereby the order of arrest of the Respondent No. 1 was vacated in Adm. Suits No. 61/2002 and 62/2002.

In order to facilitate consideration of questions involved in these appeals, it is considered convenient to deal with Appeal No. 24 of 2002 and the conclusion arrived on the basis of contentions raised on either side will be applied to both appeals.

The appeals have arisen in the following circumstances:-

The appellants are engaged in providing the finances/loan to the ship owning companies for the purchase, maintenance and improvement of Vessels. It is the case of the appellants that the appellants agreed to advance a sum of US $ 2,450,000/- to the Respondent No. 2 for acquisition of the Respondent No. 1 by an agreement dated 12.1.1995. The salient features of the agreement are as follows:-

1. That First party (appellants) shall release to the Second Party (Respondent No. 2) the loan amount to his nominated designated bank account in portions (to be mutually agreed upon), starting from 28th January 1995.

2. The second party agree that the loan amount should be repayable by quarterly installments of US Dollars 250.000.00 (US Dollars Two Millions Four Hundred Fifty Thousand) each installment, the first installment to be due and payable on 15th April 1995, the subsequent installments to be payable on the 15th day of every following quarter until full and final payment of the loan amount together with the interest as may be accrued thereon.

3. The Second Party agreed that loan amount shall carry an interest flat rate of Months Labour plus 2% payable on six months basis.

4. The Second Party indemnities the First Party against any losses, costs, claims, counter claims, whatsoever, and shall keep them harmless.

5. The Second Party unconditionally and irrevocably agree that in the event of default in repayment of the loan amount as agreed herein, the First Party shall have their absolute and full claim against the Second Party, their moveable, immovable assets the vessels owned by them and the vessel M.T. "ABDQUN DISCOVERY' being purchased and to be dry-docked from the proceeds of this loan.

6. That any single event of default, in repayment of the loan amount and interest therein by the Second Party, such default shall entail any lega» action by the First Party against the Second Party, their assets, any and or all vessels owned by them, in any jurisdiction as the First Party deems fit and proper, the Second Party unconditionally agree to the first charge over the vessel "ABDOUN DISCOVERY" and other vessels owned by them.

The loan agreement was signed in Dubai U.A.E. on 12.1.1995, by Hamid Gol Sharif by proxy on behalf of TEFICROS PAPAKYRICOU/the Respondent No. 2. whereas, on behalf of the appellants their President Mr. Mohamad Aoun signed the loan agreement. It is the case of the appellants that the loan was provided to the Respondent No. 2 through four debit advises dated 23.8.1995. 2.10.1995, 7.8.1996 and 3.7.1996. It was further case of the appellants that despite repeated demands and requests for repayment, the Respondent No. 2, the owners of Respondent No. 1 failed and neglected in payment of the agreed quarterly installments and time and again extension for repayment was granted by the appellants. Since the President of the plaintiffs' company was also a shareholder to the extent of 33% shares in the Respondent No. 2, such extensions were liberally granted and last such extension expired sometime in the year 2001 when the Respondent No. 2 refused repayment and thereby committed first charge in favour of the plaintiff and default specifically giving rise to maritime lien on the Respondent No. 1. Thus the suit for recovery of US $ 2,450,000.00 by invoking the admiralty jurisdiction of this Court was filed.

Alongwith plaint, C.M.A. No. 3050/2002, under Rule 731 of the Sindh Chief Court (O.S.) Rules was also filed for arrest of the Respondent No. 1 berthed at Port Qasim. In supporting affidavit, the plea taken for the arrest was that plaintiffs are entitled to claim maritime lien on the respondent vessel and it is liable to be arrested under the admiralty jurisdiction of this Court, unless the accompanying application is granted, the plaintiff/appellants shall be seriously prejudiced. On 27.11.2002 order of arrest was passed, with condition that in case the bank guarantee in the sum of US$ 2450000/- or the same is deposited with Nazir of this Court the vessel would be free to leave with notice to the defendants through Bailiff, , registered post A/D.

On notice the respondents contested the application under Rule 731 of the Sindh Chief Court (O.S) Rules, inter alia, on the pleas that (1) the suit is not competently filed for want of authority from the Board of Directors (2) the suit is harred by time and the application for arrest of the respondents

vessel is not maintainable.

The respondents' also pleaded that neither they obtained any loan nor asked for any extension of time for repayment of such loan in installments. The suit based on alleged loan agreement dated 12.1.1995 is not maintainable for the following reasons:-

(1) That alleged agreement apparently disclose that the execution of the said agreement between the M/s. Abdoun Oil Company S.A., and M/s. Jenga Shipping Co. Ltd., on 12.1.1995 when Second party viz. M/s. Jenga Shipping Co. Ltd. were not in existence at this relevant date, as such, the alleged agreement has been forged, fabricated and concocted. The Respondent No. 2 was incorporated on 23.2.1995 under the Law of Cyprus, as per letter dated 20.2.1995 from Central Bank of Cyprus in respect of incorporation of Respondent No. 2 and certificate of incorporation dated 23.2.1995.

(2) The alleged loan agreement has been purportedly signed on behalf of the TEFKROS PAPAKYRICOU by his proxy Mr. Hamid Gol Sharif, who was neither authorized by the Respondent No. 2 nor .was Director, Representative, Nominee or duly constituted Attorney of Respondent No. 2. It was also pleaded that TEFKROS PAPAKYRICOU is vice-President/ Director of plaintiffs' Company as disclosed in the Certificate of good standing issued on 10.4.1998 by Consulate General PANAMA.

(3) Since M/s. Jengo Shipping Co. Ltd., was not in existence on 12.1.1995, therefore, the Seal affixed on the alleged Loan Agreement by the signatory, is not the seal of the company. It has been either erected or fabricated by some means applied by the appellants or the persons acting under them.

The respondent vessel "M.T. ABDOUN DISCOVERY" was purchase on 10.4.1995, the first installment of alleged loan was paid after about four months of the purchase of the vessel. It was their case that vessel was purchased under the Bill of Sale dated 10.4.1995. It was also their case that the photo copies of bank advises dated 23.8.1995, 2.10.1995, 7.8.1996, 3.7.1996 are tempered copies of original advises (annexures D-13 to 16), the original thereof were placed on record in compliance of order dated 10.12.2002. They also maintained that the audit reports do not reflect the alleged outstanding loan on the contrary the said statement clearly mentioned that M/s. Abdoun Oil owes US $ 110, 325.00 to Jenga Shipping Co. Ltd.

Affidavit in rejoinder was also filed by the appellants, wherein all the averments made in the counter affidavit were denied being incorrect and misleading and it was also reiterated that agreement dated 12.1.1995 executed by Hamid Gul Sharif on the basis of letter of proxy dated 6.1.1995, was rectified by Respondent No. 2 as informed by TEFKROS PAPAKYRICOU, the respondents are disentitled on the principle of estoppel and utilization of US$ 2,450,000/-in pursuance thereof.

After hearing the learned counsel for the parties, learned single Judge by short order dated 20.12.2002 recalled the arrest order and dismissed the application under Rule 731 of Sindh Chief Court (O.S) Rules, and recorded the detailed reasons thereof on 21.12.2002, which is impugned in the present appeals.

Learned counsel for the parties were put on notice that the aforesaid appeals would be heard and would be disposed of finally on merits at Katcha Pashi stage and the learned counsel have argued the appeals for final disposal.

We have heard Mr. Akhtar Ali Mahmud, learned counsel representing the appellants in both appeals and Mr. Abul Inam, learned counsel representing the respondents, in both appeals assisted by Mr. Muhammad Naeem, advocate.

Before proceeding further, it would be proper to refer the provisions of Sections 3 & 4 of Admiralty Jurisdiction of High Court Ordinance (LXII of 1980) (in short the Ordinance), which are as follows:-

"3. Admiralty jurisdiction of the High Court. --(1) The Sindh High Court and the High Court of Balochistan shall have and exercise, within their respective territorial jurisdiction, Admiralty jurisdiction as is in this respective territorial jurisdiction, Admiralty jurisdiction as is in this Ordinance, provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined.

(2) The Admiralty jurisdiction of the High Court shall be as follows, that is to,say, jurisdiction to hear and determine any of the following causes, questions or claims-

(a) any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificate as may be necessary for the operation or navigation of the ship;

(b) any question arising between the co-owner of a ship as to possession, employment or earnings of that ship;

(c) any claim in respect of a mortgage of or charge on a ship or any share therein;

(d) any claim for damage done by a ship;

(e) any claim for damage received by a ship;

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults, the owners, charterers or persons in possession or control of a hip are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods, on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;

(g) any claim for loss of or damage to goods carried in a ship;

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

(i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a pprt, including any claim arising by virtue of the application by or under Section 12 of the Civil Aviation Ordinance, 1960 (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo;

(j) any claim in the nature of towage in respect of a ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port;

(k) any claim in the nature of pilotage in respect of a ship or an aircraft;

(1) any claim in respect of necessaries supplied to a ship;

(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;

(n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchants Shipping Acts, or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be recovered;

(o) any claim by as matter, shipper, charterer or agent in respect of disbursements made on account of a ship;

(p) any claim arising out of an act which is or is claimed to be general average act;

(q) any claim arising out of bottomry or respondentia;

(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty; together with any other jurisdiction of or the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchants Shipping Act, 1923 (XXI of 1923), any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea, which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.

(3) The jurisdiction of the High Court under clause (b) of sub­ section (2) includes power to settle any account outstanding and unsettled between the parties in relation to tho ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the Court thinks fit.

(4) The reference in clause (i) of sub-section (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel of wreck as under any law for the time being in force, are authorized to be made in connection with a ship or an aircraft.

(5) the preceding provisions of this section apply-

(a) in relation to all ships or aircraft, whether Pakistani or not and whether registered or not and wherever the residence or domicile of their owners may be;

(b) in relation to all claims, wheresoever arising including; in the case ot cargo or wreck salvage, claims in respect of cargo or wreck loufld on land; and

(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charges created under foreign law;

Provided that nothing in this sub-section shall be construed as extending to cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts or the Merchants Shipping Act, 1923 (XXI of 1923).

4, Mode of exercise of Admiralty jurisdiction. -(I) Subject to the provisions of Section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action inpersonam.

(2) the Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d), (1) and (r) of sub-section (2) of Section 3 be invoked by an action in rein against the ship or property in .question.

(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that ship, aircraft or property.

(4) In the case of such claim as is mentioned in clauses (e) to (h) and (j) to (q) or sub-section (2) of Section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of the ship, the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against--

(a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.

(5) In the case of claim in the nature of towage or pilotage in respect of an aircraft, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that aircraft if at the time when the action is brought it is beneficially owned by the person who would be liable on the claim in an action inpersonam.

(6) In the case of claim in the nature of a maritime lien, other than a claim on a bottomry or respondentia bond or to the possession of the ship, the Admiralty jurisdiction of the High Court may be invoked by an action in personam against the owners of the property'which would have been arrested if the proceedings had been in rem.

(7) Notwithstanding anything in the preceding provision of this section, the Admiralty jurisdiction of the High Court shall not be invoked by an action in rem in the case of any such claim as is mentioned in paragraph (n) of sub-section (2) of Section 3 unless the claim relates wholly or partly to wages, including any sum allotted out of wages or adjudged by a competent authority under the relevant law to be due by way of wages.

(8) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, aircraft or other property to be sold, the Court shall hajve jurisdiction to hear and determine any question arising as to the title to, or priorities of claims in. proceeds of sale.

(9) In determining for the purposes of sub-section (4) and (5) whether a person would be liable on a claim in an action in personamit shall be assumed that he has his ordinary residence or a place of business within Pakistan."

A perusal of the above-quoted Section 3 indicates that sub-section (1) thereof gives the names of the High Court which will have Admiralty jurisdiction within their territorial jurisdiction. It may further be noticed that sub-section (2) enumerates the causes, questions or claims in respect of which the High Courts referred to in sub-section (1) shall exercise Admiralty jurisdiction.

The appellants have invoked the admiralty jurisdiction of this Court by pleading their claim in terms of clause (c) of sub-section (2) of Section 3 in respect of mortgage/charge on ship. Sub-section (2) of Section 4 provides that the Admiralty jurisdiction of the High Court may in cases mentioned in clauses (a) to (d), (i) and (r) of sub-section (2) of Section 3 be invoked by an action in rem against the ship or the property in question. The expression "Maritime Lien" was coined in English Law by Sir Jevis while rendering the judgment of the Privy Council in case of The Bold Buccleuh ((1851) 7,700 PC 267). The jurists of eminence have differently defined it. Lord Alkin L.J in the case of Tervaet ((1922) 259 CA) defined it as follows:

"... of the right by legal proceedings in an appropriate form to have

the ship seized by the officers of the Court and made available by sale if not released on bail."

It may also be stated that proceedings so initiated are called action in remagainst "res". The word "res" in the legal parlance in context of an admiralty action connotes a limited number of things such as ships and their cargoes and freights.

Four Clauses of claims are treated as giving rise to the Maritime Lien on Ship, namely, (i) Salvage, (ii) collusion, damages (iii) Sea men wages and (iv) bottomry or respondentia.

It may also be stated that Section 6 of the Ordinance provides limitation for Maritime Lien, that no action shall be brought before the High Court to enforce a Maritime Lien for the damage sustained in consequence of collusion wheresoever occurring or any other Maritime Lien unless proceeding therein are commenced within two years from the date of damage occurring or the Maritime Lien arising subject to the discretion of the High Court to extend this period.

Mr. Akhtar Ali Mahmud, learned counsel for the appellants has raised the following grounds in support of the appeals:-

1. That the learned Judge has failed to give reasons for such conclusion.

2. No case has been made out for the recall of the order.

3. The grounds favoured for the recall of the order that the parties are litigating at various forum, cannot be the basis of recall of the order of arrest.

4. From the pleadings/disputed questions have been raised cannot be determined without evidence.

5. No finding about the lack of jurisdiction has been recorded.

Learned counsel for the appellants maintained that conditions for arrest order in terms of Rule 730 of the Sindh Chief Court (O.S) Rules are that (i) the suit is instituted based on action in rem, (ii) the presence of the ship within the jurisdiction of the High Court, (iii) Once the warrant of arrest of res is passed, the order cannot be recalled.

Learned counsel though with reluctance conceded that a party seeking the arrest of the ship has to show a prima facie case in his-favour and further contended that the burden to show & prima facie case is hot so onerous as in cases of an injunctive order in terms of Order 39 of the CPC.

The order of arrest is ex parte order. On notice, the arrest can be contested on behalf of the res and if the Court comes to the conclusion that the plaintiff has failed to make out a case for arrest, the warrant can be recalled. If reference is needed, the following cases can be referred (1) SuiGas Transmission Co. Ltd. v. 'M.V. Good Herald' (1983 CLC 886) (2) Arshad Corporation v. The Ship Maersk 'Astro' (PLD 1988 Karachi 515), (3) Jaffer Brothers (Pvt.) Ltd. v. M.V. Eurobulker (SBLR 2002 Sindh 475). In last case one of us (Mr. Justice Shabbir Ahmed) recalled the warrant of arrest and dismissed the application under Rule 731. The order was affirmed in appeal in Jaffer Brothers (Pvt.) Ltd. v. M.V. Eurobulker (SBLR 2002 Sindh 488).

Learned counsel for the appellants' submission was that the learned Judge has based the order on extraneous material thus has erred in law, in elaborating his contention he pointed out that learned Judge has considered the documents filed through statements dated 13.12.2002, 14.12.2002 and 16.12.2002. Particularly he referred the letter dated 9th December 2002 of Barlow Lyde & Gilbert, Solicitors, addressed to Mr. Naeem Ahmed and contended that the tenor of the letter is not only contemptuous but also amounts to influencing interfering in the decision. The content thereof reads as follows:

Fax to . E-Mail

Naeem Ahmad 00922 126 25545

From E-Mail

Eurof Lloyd-Lewis

(63864-l/MAK/ELL/3.76) elloyd-lewis @

blg.co.uk

Direct telephone number direct Fax number

020 7643 7447 020 7071 9601

No. of pages (including this page) Date

13 December 2002

This fax is intended only for the addressee(s) named above. As this fax may contain confidential or privileged information, if you are not a named addressee or person responsible for delivering the message to the named addressee(s) please telephone us IMMEDIATELY. The contents should not be disclosed to any other person, no copies taken.

Bahri and Angelou v Aoun TOP URGENT

We enclose a copy of the draft order of the Honourable Mr. Justice Gross. You may inform the Pakistan Court that Mr. Justice Gross has granted Messrs Bahri and Angelou's application for an injunction but the order is in draft and has yet to be finally approved by Mr. Justice Gross. The. draft order will be placed before Mr. Justice Gross on Monday, 16th December 2002 for his signature and will then be sealed.

We would draw your attention to paragraph 1 which states: "Until further order of this Court (Mr. Aoun) shall forth with:-

(a) be restrained from taking any steps or causing any steps to be taken in relation to the prosecution of Admiralty Suit No. 61 and No. 62 of 2002 before the High Court of Sindh at Karachi (the Pakistan proceedings) save as necessary to comply with paragraphs (b) or (c) below;

(b) cause all necessary steps to be taken to secure the release of the vessels ABDOUN DISCOVERY and CAMARO PRIDE from arrest in Pakistan; and

(c) cause all necessary steps to be taken to discontinue the Pakistan proceedings.

Mr. Akhtar A. Mahmud further contended that the aforesaid letter was considered by the learned Judge in the impugned order by referring the last portion of para 9 in the following words:-

"the Defendant No. 1 has also produced the document which is a fax which shows that a dispute between the partners has been taken before the High Court of justice Queen's Bench Division, Commercial Court in England."

We have observed that not from the documents but from the pleadings, it is apparent that the parties are litigating in different Court of different countries i.e. (i) the Judicial Committee of Athens Court of Appeal, Greece, (ii) High Court of Justice, Queen's Bench Division, Commercial Court in England, the same view was taken by learned Single Judge. We are unable to carry us with the contentions raised by learned counsel to observe that on the basis of aforesaid letter, the learned Single Judge was influenced or the impugned order is the result of such influence.

So far the objection to the documents placed on record by statement dated 30.12.2002 is concerned, the photo-copies of these documents were already on record brought through counter affidavit and the original were placed through statement dated 13.12.2002 in pursuance of order passed on 10.12.2002, therefore, the objection of the learned counsel for the appellants is devoid of any force.

Elaborating the absence of reasoning for the impugned order, Mr. Akhtar A. Mahmud pointed out the concluding para 11, wherein learned Judge has recorded the finding as follows:

"I am, therefore,'convinced that prime facieno case has been made out for confirmation of arrest orders. The parties are obviously litigating all over the world and there is not doubt in my mind that each side is trying to gain an advantage over the other."

On the other hand, Mr. Abul Inam, learned counsel for respondents contention was that learned Judge has recorded the reasons and referred to the Para Nos. 7, 9 and 10 and pointed out that the learned Judge in Para 7 has recorded that the main issues raised viz. suit barred by time and the claim based on forged document, the reasons are recorded in Para. 9, his further contention was that para 10 is material, whereby the learned Judge noticed that letter dated 12.12.2002 was produced by M/s. Jengo Shipping Co. Ltd., Respondent No. 2 through. their counsel, whereby they have admitted full liability though the respondents disowned such letter, and the learned Judge observed that cursory look at the signature compared to the signature available on record shows that it has been signed by one and the same person. He further contended that through letter referred to above the appellants tried to get a decree. The letter dated 12.12.2002 has been filed with the power of Mr. Zafar Hadi Shah, advocate of this Court. It is written purportedly on Respondent No. 2, letter head addressed to M/s. Zafar Shah Ali, karachi Pakistan, the content are as follows:

"Dear Mir., Shah, This has reference to the earlier telephone communication with you and the power of attorney to you in respect of the admiralty Suit No. 62/2002, M/s, Abdoun Oil Company S.A. versus Abdoun discovery owned by Jenga Shipping Co. Ltd. being before the High Court of Sindh, Karachi.

You are instructed herewith to inform the Court on our behalf that we do admit full liability of payments of loan in terms of loan agreement dated 12.1.1995 to M/s. Abdoun Oil Co. S.A. that these payments could not be made due to internal financial constrains and in house problems within our company."

He further contended that if the signatures on the letter and the power of Mr. Zafar Hadi Shah, advocate are compared with the signature of First Party on loan agreement, it would be evident by necked eye that the signatures on the three documents are by one and the same person and the same observation has been made by the learned Single Judge. Mr. Abul Inam contended that this act on the part of appellant sufficiently demonstrate that the appellants have tried to play fraud on Court and has not come with clean hands.

Learned counsel for the appellant has contended that the agreement and in pursuance thereof, the amount has been paid through the vouchers, whether Hamid Gul Sharif was authorized or not is a matter of evidence as such, the plaintiffs cannot be non-suited without an opportunity to prove the agreement and the payment. His further contention was that by another agreement dated 12.8.1999 (annexure P-15) between Muhammad Ali Aoun, Muhammad Hassan Bahri or Muhammad Chassan Al Bachri and Mr. Costas Angelou, to facilitate the resolution of disputes enumerated in clauses (A) to (D), party agreed for appointment of Firm of International Auditor to carry out "forensic audit" of Adboun and all related companies as set out in Schedule 'B' and such report also reflects the amount advanced to the

Respondent No. 2. The disputes between the party to agreement were as follows:-

(a) Disputes have arisen between the parties hereto as shareholders in certain shipowning and ship management companies (the Companies), a list of which is set out in schedule 'A' hereto.

(b) Mr. Aoun and Mr. Bahri have disputes relating to the business of Abdoun Oil Company S.A. of Panama (Abdoun), arising out of the agreement between them dated 13 March 1997.

(c) The parties hereto wish to record their agreement regarding the repayment to Mr. Angelou by Mr. Aoun and Mr. Bahri of a loan and interest thereon he has made to Abdoun at the request of Mr. Bahri in the total original principal amount of US $ 5,000,000;

(d) The parties hereto also which to make certain arrangements in relation to the disputes between them (without prejudice to their rights under any existing agreement binding on them or any of them), on the following basis:

On the basis of above agreement, the report dated 3.12.1999 of M/s. Ernst & Young Auditors in respect of the forensic audit has been placed, which has been referred by Mr. Akhtar A. Mahmud to demonstrate that the investment of the appellants Company in "Abdoun Discovery" in the sum of US$ 2,450,000/- to show the liability on the part of the respondents. Learned counsel for the respondent, with vehemence urged that the audit report has no relevance with the cause on two counts firstly that agreement was not between the party in present proceedings but between three individual and the loan agreement was not one of disputes under clause (a) to (d).

Be that as it may, the audit report is at variance as to the amount of investment under heading 2.2. Source of Funds against "Abdoun Discovery", the plaintiffs' investment has been shown in US$ 2,450,000/-, whereas, in Appendix-A under Galaxy Shipping Group, Analysis of Capital, the investment has been claimed in US$ 2563018 (Page 419), whereas, a sum of US $ 110324 was found payable to Abdoun Oil Company by the auditors in their report dated 3rd December 1999 (Page 359) with further observation that the balance has not moved since July 1, 1998, which require written confirmation of the balance by management representation as to their intention to pay this balance.

Mr. Abul Inam, learned counsel for the respondents has pointed out that the purported agreement was signed on 12.1.1995, whereas, the Respondent No. 2 M/s. Jenga Shipping Co. Ltd. was incorporated on 23.2.1995. He pointed out the letter of Central Bank of Cyprus dated 20.2.1995 (page 133), whereby permission, under Section 10 of the Exchange Control Law for the subscription, was granted and Certificate of Registration (page 137). By referring these documents, Mr. Abul Inam's contention was that the agreement appears to be a manipulated one when the company a legal identity, was not in existence how can it entered into an agreement through proxy or otherwise. He further contended that it is not the case of the appellants that the agreement was between the sponsors and the appellants. He also pointed out from the certificate dated 10.4.1998, issued by the General Consul of the Republic of Panama in Greece (page 131) that Mr. Tefkros Papakypricou is Vice President of Abdoun Oil Company S.A. i.e. the appellants (Annexure D-2) as on 24.1.1994, the following were Directors of the Company:-

1. Muhammad Ali Aoun President/Director

2. Tefkros Papakyriahou Vice-President/Director

3. Elena Papkyriakou Secretary/Director

4. Sama Aoun Treasurer/Director

He also pointed out that said Tefkros Papakyriahou became the Director of Respondent No. 2 on 3.9.1999 (Page 167). Therefore, he had no legal authority to authorize any person including Hamid Gol Sharif to sign the loan agreement. He pointed out that the appellants have claimed that first payment was made on 25.8.1995, whereas Respondent No. 1 vessel was purchased on 10.4.1995 and referred the bill of sale in respect of the respondent-vessel and on 13.4.1995. Maritime lien was created in favour of the Bangue Bruxelles Lambert by creating mortgage in the sum of US$ 4,550,000. He also pointed out that the photo-copies of advises dated 23.8.1995, 2.10.1995, 7.8.1996 and 10.7.1996 were filed by the appellants to show the disbursement of loan. The original of the same have been placed on record by the respondents under the Court's order which are available on the R&P of Suit No. 61 of 2002, if both copies and original of bank advises are compared, then it would be evident without any further proof that the photo-copies of advises placed on Pages Nos. 59 to 69 are the result of modern mechanical manipulation.

We have placed the photo-copies with original of the bank advises produced by appellants and the respondents in juxta position as result thereof not only the under-lined contents are missing from the photo-copies produced by appellants but also name of the appellant has been substituted in three advises in place of M/s. Jenga Shipping Co., the addressee. There is also manipulation in the amount in advise dated 2.10.1995 US$ 630510.77 instead of US$. By above manipulation in advise an attempt has been made on the part of the appellants to show the payment under the agreement, by the appellant whereas the originals negate the same as the nature of payments in original advises are different than pleaded by appellants.

2003 M/s. abdotjn otl company S.A. at 43-45 portman •square london v, M/T abtkhin discovery (Shabbir Ahmed, Jj

| | | | --- | --- | | 1 ABDOUN OIL COMPANY SA MUSABEH AHMED DARWISH BLED 8.S OFFICE NO. 103 ALKARAMA AREA P.O BOX NO. 25603 DU8A1 UAE. CURRENT ACCOUNT USD 1083837/OOCO33 TRANSACTION DATED QMM8S | JENGA SHIPPING CO LTD JlLAycyQKlPO.fiAVE_& JWS.IKAS..STR. GR-166 73 VOULA/ATHENES CURRENT ACCOUNT USD 1 063920/000/333 | | EXECUTIONOF YOUR PAYMENT INSTRUCTION USD 351 814.00 | rXECUTIONOF YOUR PAYMENT iNSTRUCTION TO CITIBANK HA. USD 351 814.00 | | | UNITED ARAB EMIRATES | | REFERENCES | IN FAVOUR OF OALAXY | | M/T ABDOUN DISCOVERY | SHIPPING AGENCY | | CHARGES J8.0C TO ^O'Ji? OCe.'T USD 351 842.00 VALUE 08/08/96 yours sincerely 8anque 8ruxclles lambert (suisse) sa (ADVICE WrrBOUT SIGNATURE) ! • | REFERENCES M/T 'ABDOUN DISCOVERY SLpGA, j CHARGES 28.00 TO YOUR DEBIT USD 351 842.00 VALUE 08/08/96 YOURS SINCERELY 1 BANQUE BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE) I | | | | | ASDOUN OIL COMPANY SA MUSABEH AHMED OARWISH BLED B.S | JENQA SHIPPING CO LTD | | OFFICE NO, 103 AL KARAMAAREA | 13). ALKYON1DON AVE 4 NAFSIKAS STR | | P.O. BOX NO. 25603 | GR 168 73J/OUJA/ ATHENE.S | | DUBAI U.A.E. CURRENT ACCOUNT USD 1M3«3570Ga'333 TRANSACTION DATED GMtM | CUPRENT ACCOUNT USD 1 M3920K!00/3;3 adyjcejjoji IfWSACHQfj QATL'OC 07/93 | | EXECimONOF YOUR PAYMENT INSTRUCTION USD 125.000.00 | Exncunowr vour payment instruction TO CITIBANK NA. USD 125.000.00 | | | DUBAJ-L. A. E. | | REFERENCES | IN FAVOUR OF | | M/T ABDOUN | GALAXY SHIPPING | | DISCOVERY r CHARGES . 28.00 % YOUR DEBIT USD 125 028.00 VALUE 05/07/96 i . YOURS SINCERELY iJi BMWJ4 BRUXELLES LAMBERT (SUISSE) SA | a.gincy. references M/T 'ABDOUN DISCOVERY CHARGES ' 28.00 j | | | | | ADVICE WITHOUT SiGNATURE) | TO YOUR DEBIT USD 125 028 lj VALUE 05/07/96 |

YOURS SINCERELY

BANQUE BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE)

The original advises were brought on record under Court order, there was no attempt on the part of appellants to produce the originals of the photo-copies.,of the advises produced by them. The aforesaid documents coupled %vith the letter dated 12,12,2002 Ipuds to irresistible conclusion that the appellants have not, come with clean hands and attempted to obtain an order by placing the manipulated documents, the same is negatory to the existence of prime facie case in their favour

This brings us- to the plea raised by the respondents that the claim of the appellants does not fall within the ambit of admiralty jurisdiction of this Court as pleaded under Section 3(2Mc) of the Ordinance. Secondly, the suit is barred by limitation as provided under Section 6 of the Ordinance.

The claim in suit is in respect of the amount allegedly paid by the plaintiff for purchase of vessel "ABDOUN DISCOVERY' and the Respondent No. 2 have created charge on the vessel as follows:

"The Second Party unconditionally and irrevocably agree that in the event of default in repayment of the loan amount as agreed herein, the First Party shall have their absolute and full claim against the Second Party, their moveable, immovable assets the vessels owned by them and the vessel M,T. "Abdours Discovery" being purchased and to be dry-docked from the proceeds of this loan."

Learned counsel for the appellants on the absis of above premises, has contended that the claim of the appellants falls under clause (c) of sub­section (2) of Section 3. His further contention was that under Section 4(2) of the Ordinance, an action in rem can be instituted against the ship or the property on which Maritime Lien has been claimed by the appellants.

On the other hand, Mr. Abul inaos's contention was that on the day when agreement was purportedly singed on behalf of the Respondent No. 2, .it was not incorporated as juristic identity and to support of his contention has referred the certificate of incorporation of the Respondent No. 2 evidencing its incorporation on 23 2,1995, His further contention was that it is the case of the appellant that through bsnk advises, the amount of loan was paid to the Respondent No. 2 in installment. First installment was allegedly paid on 23.8.1995. Without admitting the contents of the advises, learned counsel for the respondents' contention was that respondent/ship was purchased much before the first, installment as evident through Bill of Sale dated 10.4.1995. Therefore, the alleged claim of the.appellants does not fall under clause (c). Mr. Abul Inam contended that mortgage or charge on ship can be created even after the purchase but, it is the case of the appellants that the amount was paid for purchased of the respondent vessel which has been belied by their own documents.

An action in rem can be instituted against the ship or the property on which Maritime Lien is claimed by the appellants. It is to be seen whether the plaintiff has Maritime Lien which is a privilege claim which a claimant exercises over the res (ship) in respect of which it arises and can be in forced by legal process. A Maritime Lien or his privileged claim or charge upon Maritime property in respect of the services rendered to it (repairs) or purchase or damage done to the.ship, it occurs the moment, cause of action arises and attaches to the property to which the cause has accrued. It travels with the property secretly and unconditionally and can be enforced by an action in rem. The Maritime property means, a ship, cargo and freight irrespective of the Nationality. The claim which are recognized as giving rise to the Maritime Lien seamen, Master's charged and disbursement, damage done by ship to the salvage and respondcntia. The appellants claim falls under reapondetttia, a legal term applied lu Maritime contract mortgagiijg the ship and their cargo for money advance, it is the case of the appcJiants that the amount was paid in installment for purchase of the respondent ship and for repayment, the Respondent No, 2 had created charge over the Respondent No, 1, From the documents produced, the Respondent No. 1 was purchased much before the alleged payment. It has not been established that ship was purchased from the alleged loan, even the Respondent No. 2 was not in existence as Segal identity, therefore, the appellants cannot claim maritime lien over the respondent vessel nor the action in rem can be brought against the ship based on action in personam against the Respondent No. 2 in terms of sub-section (4) of Section 4 of the Ordinance for the reason that the Respondent No. 2 was not incorporated when the loan agreement was allegedly executed.

Contention of the .learned counsel for the appellants was that the appellants cannot be non-suited unless the opportunity is provided to them to lead evidence on disunited facts and also contended that in terms of Order 6, Rule 2 only material facts are to be stated in the pleadings it does not require the evidence through which such material facts is to be proved shall also be stated in the pleadings and to support h;s contention, the reliance in this regard has been placed on cases of (1) AmirJan & others v. Haji Ghulam Muhammad (PLD 1997 SC 883) and (2) Sar An/am v. Abdul Raziq(1999 SCMR 2167). In the later case, the apex Court approved the view taken by Culcutta High Court in Mod La! Pnddar v. Judhistir Das Tear (AIR 19.16 Calcutta 658), that:--

"it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they wril have to meet when the case comes on for trial. This much the plaintiff is bound to do, though he need set out the evidence whereby he proposes to prove the facts which given him the title."

It was further observed that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim of defence as the case may be but not the evidence by which they are to be proved, There is no cavil to the proposition enunciated in above cases on the interpretation of Order 6. We are hearing the appeals against the order passed Under Rule 731 of Sindh Chief Court (O.S) Rules, Such applications are to be disposed of on the basis of affidavits which have been filed with documents and the same are to be considered.

It has also been contended by the appellants' counsel that the Ordinance, 1980 conferring the admiralty jurisdiction this Court is a remedial in nature, is to be construe liberally and to support his contention he referred the case afSui Gas Transmission Co. Ltd. v. M.V. "Good Herald" and 3 others (1983 CLC 886). No doubt such provision is a remedial in nature requires liberal interpretation but simultaneously, exercise of such jurisdiction should not be so harsh as to cause in justice to the other party or violence to the statute, Learned counsel for the appellants also made a feeble attempt to canvassed that though in suit filed in rem, prime action lies against the res or the property and the Court while exercising admiralty jurisdiction can exercise the same either.by proceeding in rem or by proceeding in personam. (Ahmed Investment Ltd. v. M.V Sun Rise-4, PLD 1980 Karachi 229), a decision rendered under the provisions of Admiralty Court Act, 1861. The position under the provisions of Admiralty jurisdiction of High Court Ordinance, 1980 is confined to cases convened by sub-section (4) of Section 4 of the Ordinance, that puts certain conditions for invoking the admiralty jurisdiction of the High Court whether the claim gives right to maritime lien on the ship or not by an action in remagainst-

(a) the ship if at the time when the action is brought, it is beneficially owned as respects majority share therein by that person;or .

(b) any other ship which at the time when the action is brought is beneficially owned as aforesaid:

, Provided it is shown that the claim in the suit falls in any one of the categories of cases mentioned in clauses (e) to (h) and (j) to (q) of sub-section (2) of Section 3 of the Ordinance; a claim arises in respect of a ship; and on the elate of accrual of the catise of action, the person who would be liable in action in personamwas either owner or charterer of or in possession or in control of the ship.

Last contention raised was that of limitation that the suit is barred by time, such plea is based on Section 6 of the Admiralty Ordinance, 1980 which says that no action shall be brought before the High Court to enforce a maritime lien for the damage sustained Li consequence of collision

wheresoever occurring or any other__nj_arttime lien'_unjess proceedings

therein are commenced within two years £Qny_the__date_of the damage occurring or the maritime lien arising subject to the discretion of the High Court to extend this period.

A bare reading of the above provision would show that an action to enforce a maritime lien is to be comma need within two years from the date of damage occurring or the maritime lieu arising. In the present case, it is not a case of damage but the maritime lien based on agreement dated 12.1.1995 and in pursuance thereof the payment claimed to have been made through four bank debit advises dated 23.8.1995. 2.10,1995, 7.fc 1996 and 7.3.1996. It is the appellants' own case that not a single panny has been paid. The loan agreement stipulates that any single event of default, in repayment of the loan amount and interest, therein by the Second Party, shall entail any legal action by the First Pasty against the Second Party, their assets, any and or all vessels owned by them, in any jurisdiction as the First Party deems fit and proper, the Second Party unconditionally agree to the first charge over the vessel "ABDOUN DISCOVERY' and other vessels owned by them.

Para 6 of the plaint pertains to'cause of action, which has been pleaded as follows:

"despite repeated demands and requests for repayment, the .Respondent No. 2, the owners of Respondent No. 1 failed and. neglected in payment of the agreed quarterly installments and time and again extension for repayment, was granted by the plaintiff. Since the President of the plaintiffs\ company was also a shareholder to the extent of 33% shares in the Respondent No. 2, such extensions. were liberally granted and last such extension expired sometime in the year 2001 when the Defendant No, 2 refused repayment and thereby committee! first, charge in favour of the plaintiff and default specifically giving rise to maritime lien on the Respondent No. 1."

The extension in limitation has been plead through extension granted by the appellants in payments of Installments by putting himself in duel position creditor and debtor, on assertion, that the appellants' company President is also shareholder to the extent, of 38% in the Respondent No. 2.

According to the loan agreement, the loan amount was to be released in portions to be mutually agreed upon starting from 28.1.1995 with repayment by quarterly installment of US$ 2,50,000/- first payable on 15.4.1995. According to the appellant\' own documents, the first portion was

released on 23.8.1995 and the last installment on 7.8.1996, therefore, 1st quarterly installment in repayment was due and payable after three months, on or before 7.11.1996 which has not been paid.

Mr. Akhtar Ali Mahmud tried to plead extension on the basis of letters addressed by Galaxy Maritime Enterprises S.A. addressed to the plaintiffs' President dated 10.7.1997, 3.11.1997 and 9.5.1998, whereby the promise was made for repayment of outstanding amount in due course. It was contended by Mr. Akhtar A. Mahmud that Galaxy Maritime Enterprises are the Shipping Managers of the Respondent No. 2 which has been disputed by the respondents' .counsel by contending that the letters addressed by Galaxy Maritime Enterprises will not -give the extension in limitation absence of any letter of acknowledgment and promised to pay by the Respondent No. 2 in terms of Section 39 of the Limitation Act. It, was ajso canvassed by Mr. Akhtav A. Mahmud vhat in terms of agreement dated 12,8.1999 between Muhammad Ali Aoun, Muhammad Hassan Bahri and Mr, Costas Angelou "forensic audit" was conducted by M/s. Ernst & Young Auditors and through their audit report dated 3.12.1999, the outstanding amount were shown. Though the audit report has been commented upon by us. Even if audit report dated 3.12.1999 is taken for extension of time then the suit should have been filed within two years on or before 3.12.2001, whereas, the suit, has been filed on 27.11.2001 beyond the period of two years. It has also been contended that appellants have given unilateral extension of time for repayment, a concept against the Law.

Sub-section (2) of Section 29 of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different, from the period "prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-

(a) the provision contained in Section 4, Sections 9 to 18 and Section 22 shall apply only insofar as, and to the extent tp which, they are not expressly excluded by such special or local law;

Therefore, Section 19 of the Limitation Act has been made applicable which provides that where before the expiry of period for a suit or application in respect of any property or right, an acknowledgment 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, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was signed. Sub-section (2) further provides that were the writing containing the acknowledgement is undated^ oral evidence may be given of the time when it is signed. Explanation II further explains the term 'signed' means signed either personally or by an agent duly authorized in this behalf. Therefore, the extension as contended is neither provided under the law nor a case for condonation by Court has been pleaded with reasonable/justifiable grounds, If such law is in vague in the country of respondents domicile, then such plea being based on foreign law must have been pleaded by the appellants as ruled by the apex Court in Atlantic Steamer's Supply Company v, m.v. Titisee and others (PLD 1993 SC 88), that there seems to be consensus of view that question, whether a particular foreign law is applicable in a particular foreign country, is a question of fact and it was further held that since the question, whether a particular foreign law in a particular foreign country is a question of fact, in our view, it is to be pleaded expressly as a material question of fact and as the fact constituting cause of action in terms of the provisions of the C.P.C. Mr. Akhtar A. Mahmud, also urged that the question of limitation is mixed question of law and fact and the applicant may not be non-suited without opportunity to lead evidence. No doubt the limitation is mixed question of law and fact but in case the pleaditsg and the documents filed lead to the conclusion that the suit is barred, the question has to be addressed in terms of Section 3 of the Limitation Act even if such plea has been raised.

As a result of the above discussions, no exception can be taken to the view taken by the learned single Judge in recalling the warrant of arrest by impugned order. The appeals have no merit, liable to be dismissed, while affirming the impugned order we dismiss the appeals in limine, however, with no order as to costs.

These are the reasons of short order announced on 27,12.2002. (A.P.) Appeal dismissed.

PLJ 2003 Karachi 104 (DB)

Present: saiyed saeed ashbao, C.J. and ghuiam rabbani, JJ. JEHAN KHAN--Petitioner versus, PROVINCE OF SINDH TO BE SERVED through DEPUTY COMMISSIONER, THATTA and 4 others-Respondents

Constitutional P. No. 0699 of 1995, decided on 23.6.2003.

(I) Constitution of Pakistan, 1973-

.....ART 199 … Land grant policy ..grant of land in duplicate to petitioner on harap condition .. land in question had been earlier granted to father of respondent ..land in question being not available for grant subsequent order of grant in favour of petitioner was rightly found to be illegal, being void ab-initio.[P. 109] A

(ii) VoidOrder-

—Setting aside of-Limitation-Void order being nullity in the eye of law does not confer any right on parties-Party adversely affected by a void order is required to resort to proper proceedings for getting the same set aside in accordance with provisions of law as and when the same comes to his knowledge-Respondent admittedly had no knowledge of subsequent grant in favour of petitioner and on gaining knowledge of such grant, he immediately moved for cancellation of subsequent grant in favour of petitioner—Bar of limitation would, thus not be applicable in such case-­Orders of revenue hierarchy being valid and in accordance with law, no interference was warranted in those orders in constitutional jurisdiction. [Pp. 109, 111 & 112] B, C&D

1995 SCMR 520; 1987 SCMR 1543 and PLD 1977 S.C. 599 ref.

Mr, Jagdish R Mulani, Advocate for Petitioner. Qazi Khalid All, learned A.A.G. Sindh for Official Respondents. Mr. Salee.m-uddin A. Patoli, Advocate for Respondent. No. 5 Date of hearing: 15.4.2003.

judgment

Saiyed Saeed Ashhad, C.J.--In this Constitutional petition, the petitioner has sought the following reliefs:--

1. It is, therefore, prayed that this Honourable Court may be pleased to set aside the impugned orders i.e. order dated 17.11.1994 passed by the Member (RS&EP) Board of Revenue Sindh, Hyderabad the Respondent No. 2 and order dated 28.12.1991 passed by the Additional Commissioner-II, Hyderabad Division, Hyderabad the Respondent No. 3 being illegal, void, not maintainable and maintain the Entry wo. 385 of Record of Rights dated 24.10.1987 in favour of the petitioner being Qabuli land.

2. Till the decision of the petition, the implementation of the impugned orders may be stayed.

3. Any other relief which this Hon'ble Court deems fit and proper may also be awarded.

The petitioner has impugned the order dated 17.11.1994 of Member (RS&EP) Board of Revenue, Sindh, Hyderabad whereby his appeal was rejected and the grant of agricultural land ad measuring 12.37 acres comprised in Survey Nos. 423, 424 and 425, deh Padd, Taluka Mirpur

Bathoro, District Thatta (hereinafter referred to as the demised land) in favour of father of Respondent No. 5 in the year 1958-59 was confirmed.

It is the case of the petitioner that the demised land was granted to him on Harap condition in 1962-63 without any encumbrance and denied that it was ever granted to the father of Respondent No. 5 which became his Qabali land and he has remained in physical possession thereof since 1962-63. The petitioner furtSier submitted that after a lapse of 27 years, on 6.6.1988 Respondent No. 5 submitted an application before Respondent No. 4 Revenue Officer, Kotri Barrage, Hyderabad, claiming the demised land to have been granted to his father. In this application, Respondent No. 5 further stated that he was in cultivating possession of the demised land and prayed that the grant and the T.O. Form issued in favour of the petitioner be cancelled which application was rejected by Respondent No. 4 vide order dated 6.2.1989 with the observation that after issuance of T.O. Form and mutation of the neme of the petitioner in respect of the demised land in the record of rights he did not have the jurisdiction to entertain such application. Respondent No.\ 5 feeiing aggrieved and dissatisfied with the order of Respondent No. 4 filed appeal before Respondent No. 3, Additional Commissioner-II, Hyderabad Division, Hyderabad, who videhis order dated 28.12,1991 allowed the appeal and. set aside the order, dated 6.2.1989. This order did not satisfy the petitioner who assailed the same by way of appeal before Respondent No. 2, Member (RS&E?) Board of Revenue, Sindh, Hyderabad, who dismissed the appeal and upheld the order of Additional Commissioner-Il, Hyderabad Division. Hyderabad. Hence this petition, We have heard the arguments of Mr, Jagdish R. Mulani, Advocate

for the petitioner, Mr. Saleemuddin A. Patoli, Advocate lor Respondent No. 5 and Mr. Qazi Khaiid All, learned Additional Advocate General, Sindh and have also perused the inafcial on record.

Mr. Jagdish R. Mulani vehemently attacked the appellate order dated 28.12.1991 on the ground that the appeal was hopelessly time-barred

as it was filed after a lapse of 27 years of the order of grant of the demised land in favour of the petitioner and ought to have been dismissed as such. He further submitted that the order dated 6,2.1989 passed by Respondent No. 4 was a just and proper order whereby he upheld the grant of the demised land in favour of the petitioner on the ground that as the T.O. Form had been issued and ihe demised land had been mutated in favour of the petitioner in the Revenue records, Respondent No. 4 did not have the authority to cancel either the T.O. Form or the Khata. He further submitted that as the grant had.been made in 1962-63 as confirmed by Respondent No. 4 in his order dated 6.2.1989, the Additional Commissioner-II, Hyderabad Division, Hyderabad should have dismissed the appeal filed by Respondent No. 5 against the above order on the ground limitation. Mr. Jagdish R. Mulani also assailed the order of Member (RS&EP) Board of Revenue, Sindh on the same ground that he also did not decide the question of limitation in accordance with law and wrongly held that the grant of the demised land in favour of the petitioner in 1962-63 was not legal and valid on the ground that it was not available for grant having already been granted to the father of Respondent No. 5 in 1958-59 as there was no material before him to come to such conclusion.

Mr. Saleeimiddin A. Patoli, Advocate for Respondent No. 5 on the other hand submitted that from perusal of the order of Respondent No. 2, the contention of the Advocate for the petitioner that there was no material to substantiate the grant of the demised land in favour of the father of Respondent No. 5 in 1958-59 stood completely demolished from the contents/observations appearing in order of Respondent No. 4 dated 6.2.1989 and in support thereof he drew our attention to certain portions from the order of Respondent No. 4 dated 6.2 1989, which are reproduced as under:

ORDER OF THE REVENUE OFFICER, KOTRI BARRAGE. HYDERABAD, 1 have perused the relevant record and found that these S. Nos. (424 and 425) have been granted in duplicate to Jehan Khan s/o Rustam Khan on harap conditions from Khcrif1962-63.

.... ,..... The original grantee is, theiefore, advised, to file regular appeal before the competent authority."

From a bare perusal of the aforesaid two portions, the only possible inference which can be drawn is that Respondent Mo. 4 did not controvert or deny the factum of earlier grant of the demised land in favour cf the father of Respondent No. 5 but did not intervene in the matter and refused to cancel the subsequent/duplicate grant of the demised land in favour of the petitioner as he did not have the jurisdiction to do so after issuance of T.O. Form in favour of the petitioner and mutation of the Khata in his name in the record of rights, thus advising Respondent No. 5 to file a regular appeal before the competent, authority. He further submitted that the order of grant of the demised land in favour of the petitioner was an absolutely illegal and void order inasmuch as the demised land was not available for grant, having already been granted/settled in favour of the father of Respondent No. 5 therefore, the subsequent/duplicate order of grant could be challenged at any time on the basis of the established principle that the Statute of limitation did not operate for assailing an illegal/void order. His further submission was that the petitioner had manipulated the- grant of the demised land in his favour by making false statements and concealing true facts that the demised land was not available as it had already been settled by way of grant in favour of the father of Respondent No 5 and a'so did not take any further action with regard to obtaining the possession or informing.

Respondent No. 5 of the grant having made in his favour which clearly went to establish his mala fides and dishonesty. He further submitted that had the petitioner disclosed the factum of grant of the demised land in his favour to Respondent No. 5, then Respondent No. 5 would have taken recourse to the aforesaid legal proceedings on disclosure of such fact and the delay in initiating the above legal proceedings was not on account of any inadvertent, imprudert or careless behaviour or attitude of Respondent No. 5 but was on account of the peculiar facts and circumstances of the case on account of which he was absolutely in the dark as to subsequent/duplicate grant of the demised land in favour of the petitioner.

Mr. Qazi Khalid Ali, learned Additional Advocate General, Sindh supported the arguments of Mr. Saleernuddin A. Patoli and submitted that froni perusal of the material on record, there was not the least doubt that the land in question had been legally granted in favour of the father of Respondent No. 5 from Kharif1958-59 as a result of which it ceased to be available for any further grant, thus the alleged grant in favour of the petitioner from Kharif1962-63 was absolutely illegal and void and such order of grant of the demised land could not be sustained.

From perusal of the material on record, it is to be observed that there is ample material on record in support of the contention of Respondent No. 5 that the land measuring 10 acres from U.A. No. 15 of Deh Padd, Muhag Survey Nos.'392 and 393 was granted in favour of his father on Zamindaricondition from Kharif1958-59. It also can be verified from the material on record that the grant was revised vide order of the Revenue Officer dated 31.3.1966, as a result of which the area of the land granted to the father of Respondent No. 5 was increased to 14.12 acres and the Survey Nos. 392 and 393 were renumbered as Survey Nos. 423, 424 and 425. There is also material on record to establish that a subsequent/duplicate order of grant of the demised land was muf'e in favour of the petitioner from Kharif1982-63. In support of, the above, reference is made to the observations of Respondent No, 4, Revenue Officer. Kotri Barrage. Hyderabad, which were arrived at by him from the report called by him from the Barrage Mukhtiarfcar, Sujawal, According tc this report, the demised land had been granted in duplicate to the petitioner on Harap condition from Kharif1962-63 from which the only possible inference is that the demised land had already been granted earlier in favour of Syed Faiz Muhammad Shah, father of Respondent No. 5, as claimed by Respondent No. 5. The demised land, therefore, was not available for grant and the subsequent order of grant in favour of the petitioner was illegal, being void ab initio.

From perusal of the orders of the Additional Commissioner-II, Hyderabad Division, Hyderabad and Member (RS&EP), Board of Revenue, Sindh, Hyderabad, it is to be found that both of them had thoroughly examined the necessary facts which were relevant and material for determining the dispute in question. Both the authorities had examined the record of rights relating to the demised land as well as various orders passed by the concerned authorities relating to the grant of the demised land and after consideration thereof had come to the conclusion that the petitioner had ohtained the order of grant of the demised land in his favour by suppression and concealment of material facts which if were in the knowledge of the authorities would not have permitted passing of an order of grant in favour of the petitioner. Both the authorities had specifically discussed in great details the contention of the petitioner that the land granted to him was an altogether separate piece of land and was not cawed out or taken from the demised land claimed by Respondent No. 5 and had come to the conclusion that the land allegedly granted to the petitioner formed part of the demised land granted to the father of Respondent No. 5 and categorically held that such was not legally permissible, thus rendering the order of grant of the demised land in favour of the petitioner as nullaad void.

Coming to the .question of limitation relating to the admission of the appeals filed by Respondent No. 5, it is to be observed that the delay in approaching the relevant authorities for a Declaration of cancellation of the subsequent/duplicate order of grant in favour of the petitioner and for restoration of the original grant in favour of his father was on account of his ignorance regarding the subsequent/duplicate transfer. As already stated above, the demised land was originally granted/settled in favour of Syed Faiz Muhammad, father of Respondent No. 5 on Zamindaricondition from Kharif1958-59. Respondent No. 5 could never have conceived of grant/settlement of the demised land in favour of any other person after its grant/settlement in favour of his father. However, such was done but it was kept concealed from Respondent No. 5 who after the death of his father claimed to be the lawful owner of the demised land as well as of being in cultivating possession. The subsequent order of grant in favour of the petitioner was thus an absolutely illegal and void order as the demised land was not. available for grant/settlement. A void order is a nullity in the eye of law and does not confer any right on the parties as observed by the Supreme Court in the cases of: (i) Evacuee Property Board through the Deputy Administrator, Evacuee Trust Property, Snhiwal versus Muhammad Azam and 2 others (1995 SCMR 520); and (ii) Malik Khawaja Muhammad and 24 others versus Marduman Babar Kahol and 29 others (1987 SCMR 1543). It is B also a settled principle that a party who is adversely effected by a void order should take resort to proper proceedings for getting it set aside in accordance with the provisions of law as and when it comes in the knowledge of the affected party as observed by the Supreme Court in the case of Messrs Conforce Ltd. versus Syed Air Shah etc. (PLD 1977 S.C. 599). It is the case of Respondent No. 5 that he had no knowledge of subsequent/duplicate order of grant till 6,6.1988 and as soon as he came to know of such order, he immediately on that very day filed an application before Respondent No. 4 who was the proper authority, for canceling/setting aside the grant/ settlement of the demised land in favour of the petitioner. Such statement was made by Respondent No. 5 in his counter affidavit wherein he stated that the original order of grant being illegal and void, all subsequent proceedings resulting in issuance of T.O. Form and mutation of the Khata in the name of the petitioner in the record of rights were absolutely mala fide, illegal, nullity in the eye of law and did not confer any right on the petitioner in respect of the demised land. This categorical statement has gone unchallenged and unrebutted as no affidavit-in-rejoinder was filed by the petitioner and, therefore, .the facts narrated above have to be accepted as true. Respondent No. 5 cannot, be said to have acted negligently, inadvertently or indolently and he rushed to the proper forum for redress of his grievance ac soon as he came to know of the adverse order granting/settling the demised land in favour of the petitioner. In the circumstances, no exception can be taken to the findings of the Additional Commissioner and the Member (RS&EP) i\n holding that the order of grant in favour of the petitioner being an illegal and void order, the provisions of the Limitation Act relating to the period of Limitation for filing application/appeal did not apply and deciding the matter on merits.

Mr. Jagdish R. Mulani in support of his contention that once the land had been granted in favour of the petitioner in pursuance whereof he had made payments of all moneys by way of price and other charges, T.O. Form had been issued and the Khatahad been mutated in the name of the petitioner in the record of rights, thus conferring the title of Qabuli owner on the petitioner who was in physical possession, the order of grant could not have been recalled, set Ksido or cancelled referred iss to the following cases:

(i) RehmatAll versus Muhammad Ramzan through Legal heirs (2001 SCMR 1283);

(ii) Jahana and others versus Sadiq and others (1990 SCMR 1008); and

(iii) MithoKhan versus Member, Board of Revenue, Sindh,Hyderabad and another (PLD 1997 Karachi 299).

In the first cited cases, the predecessor-in-interest of the respondent was allotted the land in question which was reserved for permanent settlement of the Islamabad oustees and deed of conveyance was registered in his favour. Petitioner Rehmat, Ali had assailed the allotment on the ground that the land in question had already been allotted to him under the Grow More Food Schemed The allotment in favour of predecessor-in-interest was cancelled by the Board of Revenue under the' provisions of Section 30(2) of Colonization of Government Land (Punjab) Act, 1912, Lahore High Court in exercise of its Constitutional jurisdiction set aside the order of Board of Revenue and restored the allotment in favour of the respondent as from the material on record it could not be established that the land in question was ever allotted to petitioner Rehmat Ali under the Grow More Food Scheme. The facts and circumstances of the cited case are absolutely different from the facts and circumstances of the present case inasmuch as the subsequent order though passed in favour of the petitioner does exist, but the same was found to be unlawful, in exercise of illegal jurisdiction and void ab initio on the ground that a vaiid and legal order granting the demised land to the father of Respondent No. 5 had been passed earlier.

In the second cited case, the Lahore High Court had set aside the order of Board of Revenue as it was found to be violative of the provisions of Section 30(2) of Colonization of Government Lands (Punjab) Act, 1912, as a result of which it was not legally maintainable. The order was declared to be without lawful authority. The judgment of the Lahore High Court was challenged before the Supreme Court but the Supreme Court refused to grant leave to appeal. We are unable to comprehend as to how the pronouncement made in this case would be of any help to the petitioner. In the presence of peculiar facts and circumstances of the cited case, the order passed by Board of Revenue was found to be defective and not, legally maintainable and, therefore, it was set aside by the Lahore High Court, This is not a universal principle or observation that the order of the Board of Revenue should be set aside and the same can be set aside only if it is found to be illegal either on account of it being in excess of jurisdiction or on account of violation of some provisions of law. In the present case, the order

of Member (RS&EP), Board of Revenue does not suffer from any illegality nor is violative of any provisions of the law requiring interference therewith. In the third cited case, a Division Bench of this Court set aside the order of Board of Revenue whereby the concurrent findings of two Revenue Forums were set aside on the ground of duplicate grant. After examining and considering the facts and circumstances of the case, this Court had come to the conclusion that the order of Board of Revenue recalling the orders of the two forums of the Revenue Authorities namely Colonization, Sukkur Barrage and Additional Commissioner, Hyderabad concurring with each other suffered from inherent flaws as it was found to have been passed without lawful authority being of no legal effect. It, was further observed that the petitioners therein having paid full installments had acquired absolute ownership of land in question which had become their Qabuli land and the order of grant of land could not have been set aside. This is not so in the present case. The order of Member (RS&EP) Board of Revenue, Sindh, Hyderabad upholding the order of Additional Commissioner-II, Hyderabad Division, Hyderabad was passed after taking into consideration all the material facts and evidence and was made in accordance with the provisions of law holding that the order of grant of the demised land in _favour of the petitioner was a duplicate order having beer, passed without, verification of the fact that the demised land had already been granted/settled in favour of the father of Respondent No. 5 and was not available for grant to any other person including the petitioner. This case is also of no help to the petitioner.

Mr. Jagdish R. • Mulani in support of his contention that the representation made by Respondent No 5 and his appeal before the Additional Commissioner Board of Revenue were hopelessly time barred which ought to have been dismissed solely on this ground without there being considered on merits referred us to the following cases:—

Si) Cantonment Board, Kharian Canit, through Executive Officer versus Muhammad Shaft (PLD 1991 S.C. 400); \

(ii) Ahsan Ali and others versus District Judge and others (PLD 1969 S.C. 167);

(iii) Muhammad Ibrahim versus Mst. Farzana and another (PLD 1994 Karachi 255); and

(iv) Muhammad Yamin and 16 others versus Member (Land Utilization) Board of Revenue, Smdh etc. (1981 CLC 1700).

At the outset, it may be pointed out that the observations and pronouncements made in the aforecited cases have no relevance or bearing to the facts and circumstances of this case. As already discussed herein above the order of grant of demised land in favour of the petitioner was a.duplicate order as the demised land had already been granted/settled in favour of the father of Respondent No, 5/Ilespondent. No. 5 and without verifying the above factum, the granting officer had passed the order which in the circumstances was an unlawful order, without any legal effect and void abinitio.In view of the settled principle of law that for assailing or challenging a void order, provisions of Statute of Limitation do not apply and that a party adversely effected by a void order can resort to appropriate proceedings for . getting it set aside within a reasonable time from the date "when the same come to his knowledge. The order of duplicate grant came to the knowledge of Respondent No. 5, on 6.6.1988 and on that very day he moved an application before Respondent No. 4. Revenue Officer Kotri Barrage. i Hyderabad for setting aside the order of grant in favour of the petitioner.

For the foregoing reasons and upon the above discussion, we find that this Constitutional petition is without any substance and does not merit consideration. No case is made out for interference in the order of the learned Member (RS&EP), Board of Revenue, Sindh, Hyderabad. Accordingly, this Constitutional Petitions stands dismissed alongwith the Misc. application pending therein with no order as to costs.

(A.P.) Petition dismissed.

PL J 2003 Karachi 113

Present: MUSHIR alam, J.

CLIFTON AND DEFENCE TRADERS WELFARE ASSOCIATION through

GENERAL SECRETARY-Plaintiff

versus

PRESIDENT, CLIFTON CANTONMENT BOARD, KARACHI and 4 others-Defendants

Suit No. 1109 of 2002, decided on 26.2.2003.

(i) Administration of Justice--

—Courts are sanctuaries of justice not to be persuaded by technicalities and wherever possible and circumstances so required to act in aid of justice and adopt such interpretation or mould relief in a manner that may serve the cause of justice and suppress the mischief. [P. 118] A

(ii) Cantonments Act, 1924 (II of 1924)--

—-S. 273(l)(4)-Specific Relief Act (I of 1877), Ss, 42 & 54-Civil Procedure Code (V of 1908), 0. XXXIX, Rr. 1 & 2-Suit. for declaration and injunction against Cantonment Board-Question of prior notice-Sub­ section (4) to Section 273 , it is postulated that suit of injunction is very much maintainable even without notice and provision of sub-section (1) to Section 273 are not attracted in case where the claim is for injunction- Reason being obvious, as spelt out from the very provision, by issuance of such notice the very object would be defeated—Even if it is presumed for a moment, the suit for declaration is not maintainable then also relief of injunction cannot be denied merely because declaration at this particular moment cannot be extended to the plaintiff-Such declaration, even otherwise, can only be extended after conclusion of trial and recording of evidence-Relief of injunction at interlocutory stage is governed on different considerations; where Court is only required to see prima facie case is made out. [Pp. 118 & 119] C & F

(iii) Cantonments Act, 1924 (II of 1924)--

—S. 282(18)(23)--Advertisemerit through hoarding, bill Board on road side, over and above the building-Nobody can be allowed to fix a board or neon-sign just next to window or door of any one's private property- Necessity to regulate and control such advertisement under law emphasised-In case of conflict of rights balance has to be struck between two rival rights-Where there is conflict of two private rights then the right which emerged and existed first is to be respected and preferred. [Pp. 121, 122 & 123] K, L, M & P

(iv) Cantonments Act, 1924 (II of 1924)--

—-S. 282(18).(23)-Contract Act, 1872 (LX of 1872), Section 23-Allowing erection of unauthorised board of 60 x 20' on basis of compromise executed between licensee and Cantonment Board during pendency of Constitutional petition-Status-Such compromise would not be allowed to nullify such policy nor same could be allowed to be enforced, if found to be in negation of any provision of law-Such compromise to the extent of deviation would be against public policy in terms of S. 23 of Contract Act, 1872 and could be struck down by Court. [P. 122] N

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

—0, VII, Rr. 7 & 8-Where several reliefs are claimed, then Court always leans in favour of extending such relief permissible under law-Where relief claimed is separable and if any of the reliefs for any reasons is barred and cannot be granted, then Court leans in favour of relief, which can be extended or granted to suppress mischief and redress a wrong-­ Court is clothed with jurisdiction to order for separate trial of a distinct relief and/or cause. . [Pp. 118 & 119] D & E

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

-—S. 91-Public nuisance-Definitibn-What acts constitute a public nuisance are not defined under the Code of Civil Procedure-Nuisance cannot be defined exactly and exhaustively, all definitions are merely illustrative, it premises on large number of variables-Causes keep on adding with emergence of new and complex inter personal relationship between person to person and person to society-Nuisance amounts to interference with the person's use or enjoyment of his property or any right appurtenant thereto, a tortious act. [P. 120] G

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

—S. 91-An act at same time can be both, public or private nuisance, public because it affects adversely many persons or community at large and private in sense that it also entails special damages or injury to private and individual right of one or few-Where an act complained of is both public and private Nuisance, then any person affected by such wrong or nuisance may bring an action without permission of Advocate-General. DP. 120] I

(viii) Constitution of Pakistan, 1973--

—-Art. 4(2)(a)--Right of enjoyment of a property is independent right and if it is shown that the public functionaries act in a manner as it may encroach upon a private right which may also be invasion of a public right then individual whose rights are encroached may bring an action against such invasion. [P. 122] 0

(ix) Easements Act,1882 (V of 1882)--

—-S. 4--Right to view and sight emanate from "right as to any property" and "right of enjoyment of property"-Such right is equally important and valuable right attached to a person's property. [P. 120] J

(x) Jurisdiction-

—Jurisdictions are guarded jealously by Courts-Ouster or barring clauses of legislations are to be strictly construed. [P. 118] B

PLD 1992 Kar. 283; PLD 1995 Kar. 33; 1994 SCMR 923; PLD 2001 Kar. 30; PLD 1997 Kar. 627; 1992 CLC 2540; 1992 MLD 2000; 1997 CLC 1936; PLD

1969 SC 223; PLD 1993 SC 341; PLD 1994 SC 512; PLD 1995 SC 423 and 1998 SCMR 2268 ref.

(xi) Word and Phrases-

—Nuisance-That activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public and producing such material annoyance, inconvenience and discomfort that law will presume resulting damages-That which annoys and disturbs one in possession of his property,- rendering its ordinary use or occupation physically uncomfortable to him, smoke, odour noise, vibration." [P. 120] H

Black's Law Dictionary. Mr. Abid S. Zubari,Advocate for Plaintiff.

Mr. Nazar Hussain Dhoon, Advocate for Defendants Nos. 1 and 2. Khawaja Naveed Ahmed, Advocate for Defendants Nos. 4 and 5. Dates of hearing : 30.12.2002 and 18.2.2003.

order

In this suit for permanent injunction, declaration and cancellation. An application under Order XXXIX, Rules 1 & 2, C.P.C. being C.M.A. No. 7656 of 2002 has been filed by the plaintiff, inter alia seeking restraining orders against the defendants from erecting/allotting, letting out any site/space to any person for the display/view of the sign-boards advertisement hoardings on the pavements or any other place at the Schon Circle or on the side lanes and further restraining orders are sought against the defendants from awarding any new contract. Counter-affidavits and rejoinder to the listed application were filed by the parties.

Case of the plaintiff as set out is that the plaintiffs members are carrying on business at Dollawala Center. Plaintiff claims that earlier at Schon Circle, placard, hoardings and sign-board were fixed on the roof top of the building and otherwise in a manner not blocking the view of the occupant of the office in the building situated on Eastern side of the Schon Circle, which practice in terms of the advertisement policy was being followed by the Clifton Cantonment Board. He submits that all of a sudden on 31.10.2002 plaintiffs members witnessed huge advertisement board coming up just in front of the building known as Dollawala Center, which action has been impugned through instant suit and the listed application seeks interim orders in terms already stated in the narrative above. It was contended by Mr. Abid S. Zubari that, such exercise is being carried out in utter violation of rights of plaintiff members, beside being in negation of Rules and Regulations of the Cantonment Board and so also against the advertisement policy as is in force, is a mala fide act. He contends that act of erecting mammoth hoarding is action in tort and is sought to be restrained. According to him, all the citizens in terms of the Article 4 of the Constitution of Pakistan are to be treated in accordance with law. All citizens of Pakistan are entitled by the protection of their right to life, dignity and enjoyment of property. In support of his contention he has placed reliance on (1) Pacific Multinational (Pvt.j Ltd., v. l-G. Police (PLD 1992 Karachi 283), (2) Dada Bhoy Investment (Put.) Ltd. u. Federation of Pakistan (PLD 1995 Karachi 33), (3) Government of Sindh v. AbbasAhmed (1994 SCMR 923), (4) Pakistan SCS (Put.) v. Trustees of Port of Karachi (PLD 2001 Karachi 30), and (5) Messrs. Anf Builders and Developers v. Government of Pakistan and 4 others (PLD 1997 Karachi 627).

As against this Mr. Nazar Hussairi Dhoon, learned counsel for the Clifton Cantonment Board raised objections as to the maintainability of the suit in view of the bar under Section 273(1) of the Cantonment Act, 1924 and secondly that, the suit is barred by limitation in terms of Section 273(3) IBID. According to him the plaintiffs suit is based on public nuisance no permission from the Advocate-General has been obtained. On merits he contends that Defendants Nos. 4 & 5 acquired the licence for the installation of the subject board which board was however, removed by the Cantonment Board considering it to be unauthorized. However, in a Petition No. 1891 of 1991 filed by the Defendants Nos. 4 and 5 the Board entered into a compromise and allowed them to erect such board, which is in accordance with law. According to him there is no change effecting the amenities of easement, therefore, no public notice was called for. He submits that action of the Board is strictly in accordance with law and in compliance with the direction given by this Court in terms of the compromise entered between the parties in writ petition.

In support of the his contention he has placed reliance on (1) Mrs. NazShaukat Khan and 3 others v, Mrs. Yasmin R. Minhas and another (1992 CLC Karachi 2540), (2) Syed Hussain All v. Ahmed Bux (1992 MLD Karachi 2000), (3) Messrs. Business Computing International (Pvt.) Ltd. u. IBM World Trade Corporation [1997 CLC Karachi 1936 (Relevant. Page 1950)]. (4) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223), (5) Government of Balochistan through Additional Chief Secretary v. AzizullahMemon and 16 others [PLD 1993 SC 341 (Relevant Page at 358)], (6) Abdul Razzak v. Karachi Building Control Authority and others (PLD 1994 SC 512), (7) Multiline Associates v. Ardeshir Cowasjee and 2 others [PLD 1995 SC 423 (Relevant Page at 427)], and (8) Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268).

Mr. Abid S. Zubari exercising right of rebuttal submits that the compromise entered into between the parties cannot be allowed to circumvent the law and even if such compromise is entered it is merely a contract between the parties and the endorsement of the Court will not give any sanctity. To support such preposition. He has placed reliance on (1) Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others (1994 MLD Lahore 1612), (2) Syed Badrud-ud-Din and 10 others v. Government of N.-W.F.P. through Agri. Forest & Co-op, Peshawar and 11 others (PLD 1994 SC 345), and (3) Muhammad Idrees v. Collector of Customs and others (PLD 2002 Karachi 60).

Mr. Khawaja Naveed Ahmed, appearing for the Defendants Nos. 4 and 5 contends that the defendants contracted the installation of the hoarding in the year 1991, whoever, the Cantonment Board unilaterally dismantle the board even in violation of the orders of the Court same board were restored pursuant to a compromise entered into between the parties in C.P. No. 1891 of 1999 and the present installation of the board is not a new act it is a restoration of the contract in terms of the compromise.

I have heard the arguments and perused the record.

Adverting to the first objection as to the jurisdiction and bar of limitation raised by Mr. Nazar Hussain Dhoon, learned Counsel for the Cantonment Board, in terms of Section 273 of the Cantonment Act, which bars the suit against the act done in purported exercise of the power and jurisdiction vested in the Board, further the bar of limitation is extended in terms of sub-section (3) to Section 273 in cases where the suit is otherwise found maintainable. Such action if at all maintainable are to be filed within 6 months from the date of cause of action. Taking first limb of the arguments as to absolute bar of the suit. I had occasion to examine similar objection in a Suit No. 131 of 2001 Khalid and Co. v. Cantonment Board (unreported) relying on the case of Muhammad Ilyas Hussain (PLD 1976 SC 785), it was held as follows:

"Courts are sanctuaries of justice are not to be persuaded by the technicalities and wherever possible and circumstances so require act in the aid of justice and adopts such interpretation or mould relief that may serve the cause of justice and suppress the mischief. Technicalities cannot be allowed to be used to frustrate such cause. Jurisdictions are guarded jealously by the Court. Ouster or barring clauses are to be strictly construed. In the very provision under sub­section (4) to Section 273, it is postulated that suit of injunction is very much maintainable even without notice and provision of sub-. section (1) to Section 273 are not attracted in case where the claim is for injunction. Reason being obvious, as spelt out from the very provision, by issuance of such notice the object would be defeated.

Where, there are several reliefs claimed then the Courts always lean in favour of extending such relief if permissible under the law. In the instant case, the plaintiff as stated above, has spelt out the relief for declaration and the injunction separately as well as is reflective from the valuation clause mentioned above, where the relief claimed is separable and if any of the relief for any reason is barred and cannot be granted then the Court lean in favour of the relief, which can be extended or granted to suppress mischief and redress a wrong. The Court is also clothed with jurisdiction to order for separate trial of a distinct relief and/or cause. Even if, it is presumed for a moment, the suit for declaration is not maintainable then also the relief of injunction cannot be denied merely because the declaration at this particular moment cannot be extended to the plaintiff. Such declaration, even otherwise, can only be extended after the conclusion of trial and recording of the evidence. Relief of injunction at interlocutory stage is governed on different consideration. Where the Court is only required to see the prima facie case is made out. Balance of convenience and so also irreparable loss to party."

As far as Limitation in terms of sub-section (3) to Section 273 of the Cantonment Act is concerned, suffice to say that apparently the contract or licence for the fixation of the board was issued in 1996. Fact remains that same was removed by the Cantonment Board and purportedly allowed to be reinstalled as a result of compromise between said parties. It may be observed that the plaintiff was neither party to said proceedings nor to compromise they cannot be said to be aware of what had transpired between the parties. Even otherwise subject board was removed cause, if any, dissipated, therefore, the limitation if any for the purpose of this suit would only commence when the Defendants Nos. 4 and 5 are said to have undertaken the fixation of the same board again as alleged in the plaint in Para 8 thereof, i.e. on 31.10.2002. For the purpose of throwing out the case on the ground of limitation, fact alleged in the plaint prima facie at this juncture are to be taken as true and correct. Plaint was presented on 2.11.2002, it prima facie shows that plaintiffs were prompt in approaching the Court. However, in case the defendants are able to show in evidence that the plaintiffs were aware of the proceedings and or awared of the contract then perhaps such objections may be considered at the time of final disposal of the suit, if the circumstances so warrant. Accordingly, at this juncture, for the foregoing reason preliminary objections are not sustainable.

Adverting to the merits of the case, the plaintiff grief is against mushroom growth of bill board of abnormal size in the vicinity. Such unplanned hoardings are indeed sour and not a treat to eyes, more particularly when such huge hoarding and .board are affixed blocking the view and so also the frontage and elevation of the commercial establishment. According to learned counsel for plaintiffs, such practice not only causing annoyance and discomfort but also blocking the view of the surrounding, not only hindering exposure to and from the office on the front side of the road hampering their view overlooking the city, prejudicially effecting enjoyment of their property impeading business and keeping away the prospective customers/clients. Mr. Dhoon contends that the allegations are nothing but a grievance of public nuisance for which "no objection" from the Advocate General is condition precedent such not having been obtained suit is liable to be thrown out from the Court.

What act constitute a public nuisance are not defined under the Code of Civil Procedure. Nuisance cannot be defined exactly and exhaustively, all definitions are merely illustrative, it is premise on large number of variables. Causes keep on adding with emergence of new and complex inter personal relationship between person to person and person to society. Nuisance amounts to interference with the person's use or enjoyment of his property or any right appurtenant thereto, a tortious act. It is defined in Black's Law Dictionary as :

"That activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public and producing such material annoyance, inconvenience and discomfort that law will presume resulting damages. That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him, smoke, odour noise, vibration."

An act at the same time can be both, public or private nuisance, public because it effects adversely many person or community at large and private in the sense that it also entails special damages or injury to private and individual right of one or few. Where an act complained of is both public and private nuisance, then any person effected by such wrong or nuisance may bring an action without permission of Advocate-General.

In this complex society, where people interact with each other are bound to over step and encroach upon others rights. Scope of activity is widening and producing corresponding rights, obligations and duties. With changing environment one is discovering new meaning to rights, obligations and duties, same are to be regarded and respected in accordance with the prevailing situation and ground realities. Under the Easement Act one may find that easement as to light and air were acknowledged and regulated by the framers of Easement Act, 1882 but at that time did not visualize the right to view and sight, such rights emanates from the "Right as to any Property" and "Right of Enjoyment of a Property". Such right is equally important and valuable right attached to a person's property. In this commercial world no one can deny the importance of advertisement which is an effective medium of approaching consumer and public-at-large towards product and service of commercial organization hut, such right cannot be extended to an extent where it encroaches upon the rights of another person. Where there is conflict of right then a balance has to be struck between two rival rights, nobody can be allowed to fix a board or neon sign just next to the window or door of any person's private property. When there is conflict of two private rights then the right which emerged and existed first is to be respected and preferred.

Importance of advertisement through media and various other sources including through hoarding, bill board on road side over and above the building cannot be denied. It necessitated to be regulated and controlled under law. The "Cantonment Board" in terms of the Cantonment Act, rules and regulation framed thereunder is responsible to regulate such advertisement through hoardings etc. One of the powers conferred on the Board is defined under Clauses 18 and 23 of Section 282 of the Act. For ready reference same are reproduced as under :--

(18) The regulation of the erection of any enclosure, fence, tent, awning or other temporary structure of whatsoever material or nature on any land situated within the Cantonment.

(23) The Regulation of the posting of bills and advertisements and of the position, size, shape, or style of name boards, sign boards and sign posts.

Mr. Nazar Hussain Dhoon, contended that in terms of earlier policy the licence to the plaintiff was granted on 5.9.1996. He has placed on record copy of such license as Annexure-A to the Counter affidavit, which authorized the fixation of the board not more than 48 X 12 feet for a period up to 30.6.2001 in said licence no other condition regulating the place or manner of fixing the hoarding has been prescribed except the quantum and manner of payment of the licence fee. However, it appears that Board issued advertisement installation policy in the year 1999 which to some extent prescribed certain terms and condition of such advertisement. It, inter alia, provides that; Approval will be for one year, residential area, street, lane and small road are to be left free. Advertisement sign of uniform size from 4x4 feet up to maximum '20 x 40' feet are permissible, the height to be minimum 10 feet from the ground. Such boards to be fixed on the specified location duly approved. It was further provided that the category-A location with includes Schon Circle will be dispose of through site auction with a minimum reserve price per sq. ft. under such policy the sign board must not change the beauty of the area footpath open space etc. etc. As can be seen even the policy as relied upon by the Cantonment Board itself provides and fixes the maximum size of the hoarding as 20 x 40 feet. However it appears that the defendants in negation of such measurement permissible under the policy, under the terms of a compromise allowed installation of the mammoth hoarding of the measurement of 60 x 20 feet instead of 48 x 12 feet as allowed under the licence purportedly issued on 5.9.1996 even if it could be argued that it was merely a restoration of the earlier licence- in terms of the compromise then, such restoration could not have been allowed prima facie for more than it was permissible under its current policy i.e. beyond 20 x 40 feet. Mr. Nazar Hussain Dhoon attempted to justify such increases in size on account of upcoming hoarding in the other part of the city. It is indeed anomalous, that various civic agencies operate in this cosmopolite city Karachi and all are oblivious of their responsibility and duty casted upon them to at least frame, follow uniform policy in respect of matter of common denomination like advertisement policy. In absence of such uniform ^ policy, dispute and controversy tend to arise giving cause of action on the ground of discrimination. In any case the Defendant No. 4 cannot be allowed to deviate on such ground against their own policy which only allows maximum board of 20 x 40 feet. A compromise entered into between the parties cannot be allowed to nullify the policy nor, such compromise can be allowed to be enforced if same is found to be in negation of any provision of law. Such compromise, it was rightly contended by the learned counsel for the plaintiffs at the best could be termed as a contract between the consenting party. Such contract would be confined within the parameter as prescribed by law. If it is in deviation then to such an extent it is against the public policy in terms of 23 of the Contract Act same can be struck down by the Court, such proposition is supported by ZafarAhmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others (1994 MLD Lahore 1612) and Muhammad Idrees v. Collector of Customs and others(PLD 2002 Karachi 60).

In another Suit No. 433 of 2002 viz., Clifton Center Association v. City District Government, Karachi and another (PLD 2003 Kar. 477) involving somewhat similar question of facts and protection of similar right of enjoyment of property but within the perspective of SLGO, 2001, it was held as follows :

"Right of enjoyment of a property is independent right and if it is shown that the public functionaries act in a manner as it may encroach upon a private right which may also be invasion of a public right than individual whose rights are encroached may bring an action against such invasion." In the instant case, the manner in which the hoarding of the magnitude proposed to be installed is certainly to obstruct the view to and from the commercial establishment facing the main road and at the same time it will also be obstructing exposure of the frontage and elevation of their establishment. Defendant No. 3 may claim that they too have a right to carry on business cannot be deprived of their right. When there is a clash of rights of two individual and private person then the right that first existed and matured would be preferred over the other . In instant-case, it is right to enjoyment of property with all-its derivative feature of enjoyment as discussed above, will have precedence of over rights of Defendant No. 3, the Advertising Company. Under the facts and circumstances, it is directed that the proposed hoarding or the Bill Boards may be affixed at such height in such manner as may not obstruct the view, vision and elevation of the plaintiffs commercial establishment."

In view of the foregoing in this case also. Plaintiffs have made out a prima facie case. If the subject board is allowed to be installed in the manner proposed, it will indeed in my opinion effect and invade the peaceful "enjoyment of the property" by the constituent of the plaintiffs, prima facie case and balance of convenience is, therefore, under the facts and circumstances-in favour of confirmation of ad-interim orders. Defendants are directed that the proposed hoarding or the Advertisement Board not more than the size permissible under the Advertisement Policy, 1999 i.e. '20 x 40' may be affixed at such height and in such manner as it may not obstruct the view, vision and elevation of the plaintiffs' commercial establishment. Listed application, in terms set out above, stands disposed of.

(M.Y.) Application allowed.

PLJ 2003 Karachi 124

Present:GULZAR AHMED, J.

Mrs. SHEHER BANO-Appellant

versus

MUHAMMAD SHARIF-Respondent First Rent Appeal No 262 of 2001, decided on 2.5.2003.

Cantonments Rent Restriction Act, 1963 (XI of 1963)--

•-—Ss. 23, 17(2)(4) & 17-A-Whether there is any bar of application U/S. 23 of Cantonment Rent Restriction Act, 1963--S. 23, Cantonments Rent Restriction Act, 1963 shows that Rent Controller shall summarily reject application under S. 17(2) and (4) or S. 17-A of said Act which substantially raises same issues which have been finally decided in former proceedings under the Act-Provision has some semblance to principles of res-judicata enshrined in S. 11 of C.P.C.--S. 23 itself stipulates that it applies to application under S. 17(2) or under S. 7(4) or under S. 17-A of Act-Thus provision in itself is descriptive and will have no application to any other provision apart from those mentioned in section-Application under S. 12(2), C.P.C. will not be covered by provision of S. 23 of Act—Therefore not only application under S. 12(2), C.P.C. was maintainable, but it was not barred by provision of S. 23 of Cantonments Rent Restriction Act, 1963. [Pp. 125 & 126] A & B

1993 CLC 1787; 1992 SCMR 917; PLD 1991 SC 997 and 1992 CLC 980 ref.

Mr. M. Aziz Malik, Advocate for Appellant. Nemo of Respondent. Date of hearing: 28.4.2003.

judgment

By this appeal the appellant has challenged order dated 28.7.2001 passed by the Additional Controller of Rent Clifton Cantonment, Karachi by which the appellant's application under Section 12(2), C.P.C. was dismissed and the order of ejectment dated 3.4.1999 passed against the appellant was maintained.

The facts of the matter are that the respondent had filed an application under Section 17(2)(i) and (4)(i) of the Cantonments Rent Restriction Act, 1963 against the appellant alleging that the respondent is the owner of Plot No. E-3375, Chandio Village, Gizri Road, Karachi by virtue of duly registered lease-deed dated 18.4.1985 and that in the year 1994 a Flat was rented out to the husband of the appellant at the cost of Rs. 2.00,000 on Pagri and on monthly rent of Rs. 400 and Rs. 100 as electric charges and such rent was being paid by the husband of the appellant. It is alleged that after the death of the husband of the appellant, the appellant stopped paying monthly rent with effect from 3.4.1996. It was further alleged that due to non-payment Electricity, Gas and Telephone connections have been disconnected. The respondent alleged that the appellant has made default in payment of rent. Ground of personal need of the premises was also taken in the ejectment application. It appears that the appellant was not served with the notice of the rent case by ordinary means and ultimately the notice was published in Daily Nawa-e-Waqt,Karachi on 12.12.1998. The appellant still did not appear to contest the rent case. Thereafter, the respondent filed his affidavit-in ex-pane proof. On 3.4.1999 the Additional Rent Controller Clifton Cantonment, Karachi passed order allowing the application of the respondent and directing the appellant to vacate the premises within thirty days of the said order. It appears that on 22.12.2000 the appellant filed an application under Section 12(2),. C.P.C. with prayers of setting aside the order of eviction and of dismissal of rent case. On 17.1.2001 the appellant also filed a separate application for setting aside of ex-parteorder of eviction. Respondent filed objections to application under Section 12(2), C.P.C. After hearing the parties counsel, the Additional Controller of Rent Colifton Cantonment, Karachi passed the order dated 28.7.2001 by which appellant application under Section 12(2), C.P.C. was dismissed on the ground that it was not maintainable.

Mr. M. Aziz Malik, Advocate appeared from the side of the appellant whereas none appeared from the side of the respondent. It was argued by the Advocate for the appellant that there is no relationship of landlord and tenant between the respondent and the appellant as the appellant herself is the owner of the flat in question and as such the Rent Controller had no jurisdiction in the matter. He has further contended that the notice of the rent case was not served on the appellant and the reports of the Bailiff regarding refusal to receive the notice of the rent case and of pasting are based on fraud and that the appellant never came across the newspaper in which notice was published. He has relied upon 1993 CLC 1787; 1992 SCMR 917; Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 and 1992 CLC 980. ••

Impugned order of the Rent Controller shows that the application under Section 12(2), C.P.C. was dismissed for the reason that Section 23 of the Cantonments Rent Restriction Act, 1963 does not allow Rent Controller to reopen the case after its decision has become final. Section 23 of the Act is as follows:

"23. Decisions which have become final not to be re-opened.—The Controller shall summarily reject any application under sub-section (2) or under Section (4) of Section 17 (or under Section 17-A) which raises subsequently the same issues as have been finally decided in a former proceeding under this Act."

The above quoted section shows that Rent Controller shall summarily reject application under Section 17(2) and (4) or Section 17-A which substantially raises the same issues which have been finally decided in ithe former proceedings under the Act. The provision has some semblance to the principles of res-judicataenshrined in Section 11 of the C.P.C. The section itself stipulates that it applies to application under Section 17(2) or under Section 7(4) or under Section 17-A of the Act. Thus the provision in • itself is descriptive and will have no application to any other provision apart from these mentioned in the section. Application under Section 12(2), C.P.C. will not be covered by the provision of Section 23 of the Act. In the case of Ismail u. Subedar Gul Inayat Shah PLD 1991 SC 997 at page 1000. The iHon'ble Supreme Court has observed as follows:

"There cannot be any doubt that section 12(2), C.P.C. is in recognition of the well settled principle that every Court or Tribunal has inherent jurisdiction to rescind or recall a void order passed by itself. In the Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was .held that the preponderance of judicial authority supports the proposition that every Authority, Tribunal or Court has power to even suo motu recall or review an order obtained from it by fraud, on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his own fraud. On this principle in that case the Court held that there can be no distinction between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of a special or limited jurisdiction, for in either case the effect of fraud is the same and the duty to undo that effect must lie on the authority on which fraud is practised. Therefore, on the rule that the equitable principles of C.P.C. can be invoked by the Rent Controller and that fraud vitiates the proceedings of a Court or a Tribunal, there can be no escape from the conclusion that the Rent Controller under the Sindh Rented Premises Ordinance has the power to set aside any order which has been secured by practising fraud or misrepresentation upon him."

Therefore not only the application under Section 12(2), C.P.C. filed by the appellant was maintainable, but it is also held that it was not barred by the provision of Section 23 of the Cantonments Rent Restriction Act, 1963.

Accordingly this appeal is allowed and the impugned order dated 28.7.2001 is set aside and the matter is remanded to the Additional Controller of Rent, Clifton Cantonment, Karachi for hearing and deciding the appellant's application under Section 12(2), C.P.C. in accordance with law.

(M.Y.) Case remanded.

PLJ 2003 Karachi 127

Present: muhammad afzal soomro, J.

SAGHIR AHMED through Legal Heirs.-Petitioner

versus

Mst. ZAKRA BEGUM-Respondent C.R. No. 26 of 2000, heard on 10.4.2003.

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

—-S. 12-Suit for specific performance-Sale agreement was a forged document-Record had revealed that plaintiff had filed another suit on subject claiming only for permanent injunction and in that suit he had not made any prayer for specific performance of said agreement to sell property-Plaintiff had been paying rent to defendant and had .also enhanced the monthly rent in a compromise in Court-Plaintiff had also failed to prove alleged part payment of price of property to owner of property-Both Courts below, in circumstances, had rightly dismissed suit and appeal of plaintiff. [Pp. 130 & 131] A

Mr. S. Manzar Alam, Advocate for Petitioner.

Mr. Bashir Ahmed Dargahi, Advocate for Respondent.

Date of hearing: 10.4.2003.

judgment

This Revision is directed against the concurrent findings of two Courts below viz 1st Senior Civil Judge, Khairpur who dismissed the F.C. Suit No. 91 of 1995 Re: Saghir Ahmed v. Mst. Zakra by judgment and decree dated 29.5.1995 and learned 1st Additional District Judge, Khairpur who dismissed the Civil Appeal No. 15 of 1995 Re: Saglur Ahmed vs. Mst Zakra vide judgment and decree dated 15.2.2000 and 22.2.2000 respectively. The applicant through the present revision has challenged the legality, propriety and correctness of the above said judgments and decrees.

The brief facts giving rise to this revision are that the respondent is owner of house bearing C.S. No. II-B-12 situated near Hussaini Chowk, Mohalla Luqman, Khairpur, which was rented out to applicant about 20 years ago at the monthly rent of Rs. 35 subsequently the respondent agreed to sale the suit premises to the applicant in the sum of Rs. 18,000 and such agreement was reduced in writing on 21.12.1987 between the parties in presence of witnesses and the respondent promised to execute the registered sale-deed within one year and the applicant paid Rs. 8,000 to the respondent at the time of execution of sale agreement so also paid Rs. 2,000 to him after two months of the agreement of sale. As per agreement of sale, Rs. 8,000 was to be paid to the respondent at the time of registration of sale-deed. It was settled that the applicant will pay rent of the suit premises regularly till the execution of the registered sale-deed the applicant approached the respondent to execute sale-deed within one year hut the respondent kept him on procrastination and subsequently in the month of July, 1988 the respondent refused to accept the rent of the suit premises and started negotiation for sale to others, therefore the applicant filed the suit in the lower Court. Thereafter in the Faislathe rent was enhanced from Rs. 35 to Rs. 50 per month. The applicant also requested the respondent after two years to execute the registered sale-deed in his favour and as per compromise the applicant was paying rent to the rate of Rs. 50 per month. The applicant did not pursue the suit and the same was dismissed in default, thereafter the respondent refused to receive the rent and started moving applications before B.C. and S.P. Khairpur for dispossessing the applicant. The respondent also refused to execute sale-deed in favour of the applicant, as such the applicant filed the suit with the prayer that the respondent be directed to pay balance amount to him. He further prayed that the permanent injunction be issued restraining the respondent and or any other person from acting on her behalf riot to dispossess the applicant from the suit property.

The respondent contested the matter and filed written statement, in which she stated that she is still owner of the suit property and she rented out the said premises to the applicant. She had denied the execution of sale agreement in favour of the applicant and the said agreement of sale is forged and fabricated document. She further stated that the applicant had filed another suit in which the applicant did not mention the fact of execution of said sale agreement, and that suit was also dismissed by the learned lower Court. She has also challenged the maintainability of the suit from various concerns.

On the pleadings of the parties learned trial Court framed the following issues:-

(1) Whether the suit is not maintainable according to law?

(2) Whether the defendant has executed the agreement of saledeed dated 21.2.1987 and has received part payment of consideration?

(3) Whether the plaintiff is entitled to the relief claimed?

(4) What should the decree be?

The learned trial Court after recording the evidence of the both the parties and hearing the learned counsel for the respective parties dismissed the suit as mentioned above.

The applicant being aggrieved and dissatisfied with the judgment and decree of the learned trial Court went in appeal which was also dismissed by the learned 1st Additional District Judge, Khairpur vide his judgment and decree as referred above.

I have heard the learned counsel for the respective parties and perused the record.

It has been contended by the learned counsel for the applicant that the judgment and decree passed by the learned 1st Additional District Judge, Kharipur is not a speaking judgment but a carbon-copy of the judgment of the trial Court. It has further been contended by him that the lower Appellate Court has not applied its judicial mind when writing the judgment as no independent reasons were given while dismissing the appeal and announced a steriotyped judgment. It has also been contended that the learned Appellate Court while discussing Point No. 1 of his judgment, he discussed that Suit No. 169 of 1998 and observed that the suit is not maintainable though in fact there was no existence of Suit No. 169 of 1998 and it is not known that how this point is discussed and suit in hand was Bearing Suit No. 91 of 1990 is converted in Suit No. 169 of 1998. The learned counsel argued that applicant under Order 7, Rule 11, C.P.C. was filed on 25.4.1999 by the respondent, the counter-affidavit was also filed and the learned trial Court dismissed the said application in which Point No. 1 of Appellate Court and Issue No. 1 of learned Civil Court was decided, therefore both the Courts below have failed to apply their judicial mind to this effect that once a chapter has been closed and decided, it cannot be re-opened again. It has also been argued by him that both the Courts below while deciding Point No. 1 and Issue No. 1 respectively in favour of respondent have violated the principle of natural justice. The learned counsel further argued that during the pendency of appeal the applicant expired on 18.9.1996 and on 13.3.1999 application for impleading legal heirs of applicant was moved but they were not impleaded as parties, which is gross illegality on the face of record as no proceedings can be initiated against or in favour of dead person. The learned counsel lastly argued that gross illegality and material irregularity have been committed by the learned lower Courts. The learned counsel for the applicant has referred to the cases reported as Razi Khan and others vs. Nasir and others (PLD 1997 SC 2084), Malik Muhammad Khan v. Naseemullah(PLD 2000 Quetta 66), 2001 SCMR 424, 2001 MLD 1969 and PLD 2002 SC 46 in support of his contentions.

As against the arguments of learned counsel for the applicants it has been contended by Mr. Bashir Ahmed Dargahi learned counsel appearing on behalf of the respondent that no error has been committed by both the learned lower Courts. It has also been contended by him that no decree shall be reversed on misjoinder of the parties. The learned counsel also argued that previously the applicant filed a suit Bearing No. 169 of 1988 for permanent injunction, in Para No. 6 of that suit it Was mentioned therein that the defendant/respondent had promised to sale the suit premises to the applicant which is same as mentioned in the later suit as the respondent and her mother Ms?. Anis Fatima had received Rs. 8,000 and again Rs. 2,000 and promised to sale the same premises to the applicant. The said suit was admitted on 28.2.1988. Since it was verbal agreement between the parties but suit for Specific Performance of Contract could be filed but the applicant has failed to seek such relief, therefore, he cannot subsequently claim the relief which he has omitted at the time of filing of such suit for Permanent Injunction. Learned counsel argued that orovisions of Order 2, Rule 2(2), • C.P.C. are to the effect that where plaintitt omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of that portion so omitted or relinquished. The learned counsel for respondent has referred to the cases reported as Ch. Nazar Muhammad and others v. Shafiq Ahmed Khan and others (PLD 1963 (W.P.) Lahore 23), Ramzan Ali Shah vs. Mst. Razia Sultana and others (PLD 1968 Baghdad-ul-Jadid 1), Qurban Hussain v. Haji Ch. Manzoor-ul-Hassan (1983 CLC 201), GhulamMuhammad v. Muhammad Jan and 4 others (PLD 1987 Azad J&K 62), Province of Punjab and 3 others vs. Gul Muhammad Khan through his LRs. (1988 MLD 2110), Abdul Latifv. Mst. Zainab Bibi and others 1992 CLC 515, AlamKhan and 3 others v. Pir Ghulam Nabi Shah and Company (1992 SCMR 2375), ShaikhMuhammad Bashir Ali and others v. Sufi Ghulam Mohiuddin (1996 SCMR 813), Muhammad Sarwar and 6 others v. Mst. Ghulam Bi and 2 others (1977 CLC 1800), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Sirajuddin v. Najamuddin(2000 CLC 467), TalibDin v. Muhammad Bashir Ahmed (2000 MLD 1124), Khadim Hussain and others v. Fazal Din (2000 CLC 1359), Azizullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Muhammad Ayyaz v. Faizullah Khan and 21 others (2000 MLD 1890) in support of his contentions.

I have given my anxious consideration to the arguments of learned counsel for the respective parties and perused the record which reveals that the applicant could not prove his case with regard to the part payment in respect of disputed premises. The suit of the applicant for Specific Performance of Contract is based upon a sale agreement dated 21.12.1987 which was allegedly executed between the parties and was written by petition writer namely Syed Muhammad Hassan. Said Syed Muhammad Hassan expired after writing the alleged sale agreement. The trial Court in order to ascertain the truthfulness of sale agreement examined one Manzar Hussain, the son of petition writer S. Muhammad Hassan who in examination-in-chief stated that he is well conversant with the handwriting of his father. S. Muhammad Hassan, when he was shown the said agreement, he apprised the trial Court that signature appearing thereon is not of his father. In cross-examination Mr. Manzar Hussain admitted that his father used to write in Urdu and not in Sindhi, whereas the alleged agreement was written in Sindhi as such it is crystal clear that the alleged sale agreement is a forged document. The record further reveals that the applicant filed previous Suit Bearing No. 169 of 1985 only for permanent injunction and in that suit he did not make prayers for Specific Performance of Contract. Moreover the applicant enhanced rent from Rs. 35 per month to Rs. 50 pre month which means that no sale agreement was written between the parties.

In view if the above circumstances, both the Courts below have rightly dismissed the suit and appeal of the applicant and no material illegality or irregularity have been pointed by the learned counsel for the applicant in the judgments and decrees of both the Courts below. Consequently this revision is dismissed.

Civil Revision No. 26 of 2000 stands disposed of. (M.Y.) Petition dismissed.

PLJ 2003 Karachi 131

Present: muhammad mujeebullah siddiqui, J.

ATTA MUHAMMAD-Petitioner

versus

DEPUTY DISTRICT OFFICER (REVENUE), ROHRI, DISTRICT SUKKUR and 2 others-Respondents

C.P. No. 297 of 2003, decided on 21.4.2003.

Constitution of Pakistan (1973)--

—Arts. 4 & 199-Contention of petitioner was that Deputy District Officer was causing harassment to him and asking through notice to vacate the shop in his possession which was owned by another person and he was in its possession as tenant and that said officer had no jurisdiction to do so and could not give any direction in that behalf to police-Issuance of any notice by any Executive Authority (Revenue or Police) to any citizen without jurisdiction amounts to an illegality and an illegal act would come within purview of causing harassment to a citizen-Under Constitution, every citizen is required to be dealt with strictly in accordance with law-Article 4 of Constitution provides protection of law to every citizen and it is inalienable right of every citizen to be treated in accordance with law, wherever, he may be and of every other person for .time being within Pakistan-Thus Article 4 of Constitution does not merely provide protection to citizen of this country but even aliens, who are for the time being in Pakistan-Whenever any inalienable right is violated, it amounts to violation of a fundamental right and consequently, would fall within purview of harassment-All Executive Officers as well as judicial functionaries are required to exercise their jurisdiction strictly in accordance with law and not otherwise-Article 4 of Constitution is similar to due process clause of American Constitution and right of every citizen to be dealt with in accordance with law only is to be jealously guarded and no encroachment upon such right of citizen is to be countenanced in any circumstances, whatsoever—Act of Executive District Officer, whereby a notice had been issued to petitioner for which he had no jurisdiction and exclusive jurisdiction lay with Civil Court amounted to harassment-All Executive Authorities must desist scrupulously from all acts beyond their jurisdiction and falling within parameters of an illegal act-Notice issued was consequently quashed and Executive District Officer (Revenue), as well other officers were directed not to take any action, which fell within jurisdiction of Civil Court and they should neither hold any inquiry nor pass any orders dispossessing petitioner from premises in his possession. [Pp. 133] A, B & C

Mr. Athar Iqbal Shaikh, Advocate for Petitioner.

Mr. Rob Nawaz Mako, State Counsel for Respondents.

Date of hearing: 21.4.2003.

judgment

The grievance of the petitioner is that he is a tenant of shop, situated at Masana Road, Rohri. The shop is owned by one Syed Amanullah Ali Shah. The Respondent No. 1 Deputy District Officer, Rohri is causing harassment to him, and is asking to vacate the shop. According to petitioner, the Respondent No. 1 has no jurisdiction to do so and cannot give any direction in this behalf to Respondent No. 2, S.H.O. Rohri Police Station.

The learned State Counsel has filed comments on behalf of Respondent No. 1. With the consent of learned Advocates for the parties, the entire petition is disposed of at the Katcha Peshi stage. It is stated in the comments that notice was issued to the petitioner by Respondent No. 1 under the direction of Executive District Officer (Revenue), Sukkur, on the basis of a complaint by one Mst. Naheed daughter of late Shahbaz Dino to the effect that petitioner has unauthorisedly occupied her ancestor' property. The Respondent No. 1 has denied to have asked the petitioner for vacation of the shop in his possession.

The learned State Counsel has conceded that the Executive District Officer (Revenue) and Deputy District Officer (Revenue) have no jurisdiction to issue any notice to any party in respect of a dispute of civil nature and the exclusive jurisdiction in this behalf is vested in the Civil Court. It is not a revenue matter in which the Executive District Officer (Revenue) and Deputy District Officer (Revenue) can take cognizance and call for the parties.

The learned State Counsel has submitted that Respondent No. 1 has merely issued a notice under directions of the Executive District Officer (Revenue) on the application of Mst. Naheed daughter of late Shahbaz Dino, which does not amount to any harassment. I am not persuaded to agree with the contention and am of the considered view that issuance of any notice by any Executive Authority (Revenue or Police) to any citizen without jurisdiction amounts to an illegality and an illegal act would come within the purview of causing harassment to a citizen. Under the Constitution of Islamic Republic of Pakistan, 1973, every citizen is required to be dealt with strictly in accordance with law. Article 4 of the Constitution of Islamic Republic of Pakistan, provides protection of law to every citizen and it is inalienable right of every citizen to be treated in accordance with law, wherever he may and of every other person for the time being within Pakistan. Thus Article 4 of the Constitution does not merely provide protection to the citizen of this country but even the aliens, who are for the time being in Pakistan. Whenever any inalienable right is violated, it amounts to the violation of a fundamental right and consequently, would fall within the purview of harassment. All Executive Officers as well as judicial functionaries are required to exercise their jurisdiction strictly in accordance with law and not otherwise. Article 4 of the Constitution is similar to due process clause cf the American Constitution and right of every citizen to be dealt with in accordance with law only is to be jealously guarded and no encroachment upon such right of the citizen is to be countenanced in any circumstances, whatsoever.

For the foregoing reasons, it is declared that act of Respondent No. 1 and Executive District Officer, Sukkur whereby a notice had been issued to the petitioner in which they have no jurisdiction and the exclusive jurisdiction lies with the Civil Court amounts to harassment.

All Executive Authorities must desist scrupulously from all acts beyond their jurisdiction and falling within the parameters of an illegal act. The notice issued is consequently quashed and the Executive District Officer (Revenue), Sukkur as well as Respondents Nos. 1 and 2 are directed not to take any action, which falls within the jurisdiction of Civil Court and should neither hold any inquiry nor pass any orders dispossessing the petitioner from the premises in his possession.

Petition is allowed as above. (M.Y.) Order accordingly.

PLJ 2003 Karachi 134

Present: muhammad mujeebullah siddiqui, J.

HAFEEZUDDIN and 2 others-Petitioners

versus

BADARUDDIN and 2 others-Respondents C.P. No. 898 of 2002, decided on 2.4.2003.

(i) Constitution of Pakistan (1973)--

—Art. 189~Every principle of law decided and pronounced by Supreme Court is binding on all Courts in Pakistan, including High Courts, even obiter dicta of Supreme Court has binding effect. [P. 149] B

(ii) Interpretation of Statutes-

—Whenever a definition starts with word "means" it is conclusive and normally nothing is to be added to such conclusive definition—When, however, such clause starts with word "includes" then same is not conclusive but is inclusive and other matters of same category or similar nature can be included in definition. [P. 150] E & F

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

—S. 2(f) & (j)-Mere ownership of property was not sufficient to establish relationship of landlord and tenant. [Pp. 146 & 150] A & I

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

—S. 2(f)-A person can be owner of building or land without being landlord and can be landlord without being owner thereof. [P. 151] N

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

—S. 2(j)-Word "bound" used in S. 2(j) of Sindh Rented Premises Ordinance, 1979 containing definition of "tenant" could not be considered in isolation and defined with reference to meaning of said word in dictionary. [P. 149] C

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

—S. 2(j)-Under Section 2(j) of Sindh Rented Premises Ordinance, 1979 term "tenant" has been defined to mean, any person who undertakes or is bound to pay rent, as consideration for possession or occupation of any premises by him or by any other person on his behalf-The definition of "tenant" contained in Section 2(j) of Ordinance starts with word "means" and it is established principle of interpretation of statute that whenever a definition starts with word "means", it is conclusive and normally nothing is to be added to such conclusive definition. [Pp. 149 & 150] D & E

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

—-S. 4--Rent Controller has no jurisdiction to decide case pertaining to ownership/title of property and jurisdiction is exclusively vested in Civil Court. [P. 151] 0

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

—-S. 5-Provisions contained in S. 5, Sindh Rented Premises Ordinance, 1979 are directory and not mandatory in nature. [P. 151] J

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

—-S. 5-Verbal/oral tenancy agreement can be made but in order to establish such tenancy an evidence of very high standard is required, from which facts of tenancy is established on principle of preponderance of probabilities. [P. 151] K

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

—S. 5-No concept of deemed tenancy exists either on consideration of morality or under any fiction of law. [P. 151] L

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

—-Ss. 13 & 15-Specific Relief Act (I of 1877), S. 12-Agreement to sell per se does not confer any title in property and merely confers right to enforce specific performance of agreement. [P. 150] H

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

—-Ss. 13, 15, 2(j) & 2(f)-Constitution of Pakistan (1973), Art. 199--Constitutional petition-Ejectment application on ground of bona fide personal need of landlord and default in payment of rent by tenant-No evidence existed to establish verbal/oral tenancy between parties-Contention of owners of property, that they were landlords of occupiers of property merely on basis of ownership of property in question and occupier was tenant by mere possession thereof was repelled as relationship of landlord and tenant between parties was not established in circumstances. [P. 151] P

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

—Ss. 2(j), 2(f), 2(h) & 15-In definition of term "tenant", contained in Section 2(j) of Sindh Rented Premises Ordinance 1979 and definition of "landlord" contained under Section 2(f) of Ordinance, word "premises" has been used likewise under Section 15 of Ordinance, word "premises" has been used-Word "premises has been defined by Legislature itself in Section 2(h) as a "building or land, let out on rent but does not include hotel"--Thus while interpreting definitions of landlord and tenant, contained in clauses (f) and (j) of Section 2 of Ordinance, definition of word "premises" is also required to be kept in view and according to definition in Section 2(h) of Ordinance its means building or land let out on rent-This is exclusive definition of premises which totally excludes any transaction other than letting out on rent and thus it would be against manifest intention of Legislature to hold that mere ownership of property by one person and possession thereof by other, irrespective of fact whether it was let out on rent or not would create relationship of landlord and tenant because of moral obligation-Sindh Rented Premises Ordinance, 1979 is not only law in Province of Sindh providing relief to an owner of a building, in case relationship of landlord and tenant is not established within scheme of Ordinance and owner of building or land can have recourse to other laws for the time being in force and can invoke jurisdiction of Civil court for taking possession of a building or land as well as compensation/mesne j^ro/zYs-Provisions of statute are not to be interpreted only on touchstone of morality or moral obligation but on basis of law enacted by Legislature. [P. 150] G

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

—Ss. 5, 13 & 15—If statutory or contractual tenancy is not established, creating relationship of landlord and tenant between owner and occupier of property, Rent Controller has no jurisdiction and parties may have recourse to Civil Court for resolving dispute/seeking relief. [P. 151] M

Mr. AM. Mobeen Khan, Advocate for Petitioners. Mr. Abdul Naeem, Advocate for Respondent No. 1. Date of hearing : 25.3.2003.

judgment

Briefly stated the facts giving rise to this petition are that the petitioners filed a Rent Application against Respondent No. 1 under Section 15 of the Sindh Rented Premises Ordinance, 1979, seeking his ejectment from the shop on ground floor of the building situated on plot C.S. No. B-1855, Bagh-e-Hayat Ali Shah, Sukkur, on the ground of committing default in payment of rent and for bona fide personal requirement.

It was stated in the said application, that Applicant No. 1 Hafizuddin let out the shop on rent to his real uncle, Respondent No. 1, at the monthly rent of the Rs. 2,000, in the year 1995. No agreement of rent was executed and the tenancy was verbally agreed. It was further averred that the respondent being real uncle of the applicants did not pay any rent of the demised premises, after taking possession thereof, in spite repeated requests. In the month of January 2000, a notice was served on the Respondent No. 1 through their advocate for the payment of arrears of rent from January, 1995, (the month of the alleged induction of the Respondent No. 1 as tenant), till December, 1999. The Respondent No. 1 still failed to pay rent and consequently ejectment application was filed.

The Respondent No. 1, in his written statement stated that the entire building is owned by the applicants alcmgwith other co-owners, namely, Islahuddin, Ali Taj, Umairuddin and Zubairuddin brothers of the applicants. He admitted his possession over the demised premises but as owner, by virtue of verbal agreement. It was contended that the Applicant No. 1 and his brothers through their father Tajuddin verbally agreed in presence of opponent/respondent No. 1's mother to sell the shop to the opponent/respondent No. 1 at the sale consideration of Rs. 2,50,000 and the entire sale consideration was paid to the applicants and their brothers, in two instalments of Rs. 1,50,000 and Rs. 1,00,000. The applicants and their brothers promised to execute registered sale-deed. It was alleged that the transaction was between real paternal uncle and nephews, therefore, no written sale agreement was executed. The opponent/respondent No. 1 specifically denied his status of tenant of the demised premises and stated that there was no relationship of landlord and tenant between the parties. It was contended that since the opponent/Respondent No. 1 was not a tenant, therefore, the question of payment of any rent or default in payment of rent does not arise.

Learned Rent Controller settled the following issues :--

(1) Whether there exists relationship of landlord and tenant between the parties ?

(2) Whether the opponent has committed wilful default in payment of rent ?

(3) Whether the applicants require the demised shop for the personal bona fide use in good faith ?

(4) What should the order be ?

The parties led their respective evidence and the learned Rent Controller decided Issue No. 1 in negative. After holding that no relationship of landlord and tenant existed between the parties, the learned Rent Controller rejected the ejectment application.

The applicants preferred appeal before the learned District Judge, Sukkur, which was also dismissed vide impugned judgment dated 13.9.2002.

Learned District Judge observed that it is an admitted fact that no Rent Agreement has been executed between the parties and the appellants/applicants have not produced any proof of Rent Agreement or demand of any rent from January 1995 up to 21.1.2000, when notice demanding rent was served for the first time. Learned District Judge observed that there is "word" against "word" on the point of relationship of landlord and tenant and the burden to prove the relationship of landlord and tenant is on the landlords, who have failed to discharge burden, therefore, the learned Rent Controller has rightly held that the relationship of landlord and tenant does not exist between the parties. Learned District Judge placed reliance on the ratio of Judgement in the case ofAfzal All v. Azhar All 1997 MLD 2262, wherein it was held that if there was no written tenancy agreement executed between the parties and no evidence was available on record to support that the person in occupation of the premises ever paid any amount by way of rent to the owner as consideration of his occupation and no receipt of rent was ever issued to the person in occupation of the premises, the relationship of landlord and tenant was not established.

Being aggrieved and dis-satisfied, the petitioners filed this' petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as no second appeal is provided in law.

Heard Mr. A. M. Mobeen Khan, learned counsel for the petitioner and Mr. Abdul Naeem, learned counsel for the Respondent No. 1, who is present on pre-admission notice, issued by this Court. With the consent of the learned advocates, the entire petition is heard at the Katcha peshi stage and is disposed by this Judgment.

The main contentions raised by the learned counsel for the petitioners are that the learned District Judge, Sukkur, has failed to exercise the jurisdiction in accordance with law, mis-interpreted the expression "Landlord" and "Tenant" used in Sindh Rented Premises Ordinance, 1979 hereinafter referred to as "Ordinance") and has not followed the law enunciated hy the superior Courts and, therefore, the petition is maintainable and impugrfed judgment of the learned District Judge, Sukkur, is liable to be set aside and the petitioners are entitled to the grant of their ejectment application.

Initially, Mr. A.M. Mobeen Khan argument that admittedly, there is no written agreement between the parties but there is evidence on record to establish verbal tenancy agreement between the parties, which evidence has been ignored by the learned Rent Controller as well as learned District Judge. However, when called upon to show the evidence of any witness in support of the factum of the verbal tenancy agreement, he was not able to show any such evidence from the affidavits-in-evidence filed by applicant Hafeezuddin, the father of the applicants, Tajuddin and P.W. Muhammad Ilyas. All of them have merely stated that there is no written tenancy agreement between the parties and that the opponent is tenant in the premises. No witness has stated, as to when and in presence of whom, the verbal tenancy agreement was executed. There is no evidence that opponent ever admitted to be tenant in the premises or paid any rent or undertook to pay any rent to the petitioners for occupation of the demised premises.

Mr. A.M. Mobeen Khan, thereafter submitted that notwithstanding the absence of written or verbal agreement of tenancy between the parties, the relationship of landlord and tenant shall be deemed to be in existence by fiction of law, by virtue of admitted ownership of the demised premises by the petitioners. He contended that although, the opponent has failed to establish the alleged verbal sale agreement and the payment of sale consideration, but even if any sale agreement is taken for granted, for the sake of arguments, it will not confer any title on the opponent, as title of immovable property over the value of Rs. 100 can be transferred by registered sale-deed only and not through a sale agreement. It is further contended that learned District Judge ought to have decided the issue pertaining to the ownership of the applicants in respect of thu demised premises, and the absence of finding on this issue, amcnnts to an illegality and non-exercise of jurisdiction vested in the learned District Judge.

In support of his contention, the learned counsel has placed reliance on the large number of rulings.

First judgment is in the case of Mst. Hajiani Ayesha Bai v. Zahid Hussain, 2001 SCMR 1301. In this case, the Hon'ble Supreme Court has held that non-mutation of the property in favour of the landlady cannot be considered a ground to deny relief to her, in view of the admitted fact that the respondent admits the appellant to be his landlady, therefore, notwithstanding, the fact whether the property is mutated in her favour or not but the respondent cannot challenge her right to file the eviction application on this ground.

The second judgment is in the case of Muhammad Younus v. Irfanullah Khan 2002 CLC 256( Kar.), wherein the contention, that, written tenancy agreement was necessary for constituting relationship of landlord and tenant was repelled. In the cited case reliance was placed on the case of HabibHamid v. Liaquat All PLD 1985 Kar. 741, in order to show that in the absence of an agreement of tenancy being in writing, an oral agreement would have no legal force and would not be permitted to be used as basis for any litigation in respect of any matter including the ejectment of tenant, and a Rent Controller has no jurisdiction to entertain ejectment application, which could be dismissed for want of written agreement.

My learned brother Ali Aslam Jaferi, J. did not agree with the proposition of law propounded by learned Single Judge of this Court in the case of Habib Hamid (supra) and observed that the proposition of law was not based on correct and proper appreciation and interpretation of Section 5(2) of the Ordinance. It was held that enactment of this section of Ordinance appears to provide a manner and method and course has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement, but it does not mean that oral tenancy is prohibited in the said Ordinance, reliance in this regard was placed on an earlier judgment of Single Bench in the case ofFatimav. Hanifa 1986 CLC 1613.

The third judgment is in the case of Saifullah v. Ch. Ghulam Ghous 2000 CLC 1841 (Kar.). In this case, a plea was taken by the person in possession of the premises that he never took the premises on rent from the applicant or from any other person and consequently, there was no relationship of landlord and tenant between the parties. The applicant established that he was co-owner of the property and thereafter took plea that according to definition of landlord and tenant appearing in Section 2(f)(j) of the Ordinance, a person in possession of premises owned by another is bound to pay rent and consequently person in possession of premises . become as tenant. Reliance was placed in this behalf of the following judgments :

(1) Ibrarul Haq v. S. Asma Mumtaz (Sic);

(2) Mst. Bibi Husan Bano v. Fazal PLD 2000 Kar. 119;

(3) Nasim Bibi v. Nabi Bux 2000 MLD 179;

(4) Shafiruddin v. Sirajuddin 1999 MLD 2137;

Learned Single Judge of this Court accepted the contentions with the following findings :

"In this respect it would be seen that the definition of the word "tenant" as appearing in Section 2(j) of Sindh Rented Premises Ordinance, 1979 is very comprehensive and reads as under :

"(j) "tenant" means any person who undertakes or is bound to pay rent as consideration of the possession or occupation of any premises by him or by any other person on his behalf and includes :

(i) any person who continues to be in possession of occupation of the premises after the termination of his tenancy ;

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant, and

Similarly the word landlord in Section 2(J) has been defined to mean the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. From a combined reading of the above two definitions it is quite clear that where no rent agreement exists between the parties the law assumes that when a person who is not the owner of the premises occupies any portion thereof and has set up no title which is adverse to the owner of the premises, then such a person by fiction of law becomes a tenant of the premises. In the present case Mst.Munawar Sultana has successfully established that she is the owner of the premises alongwith other co-sharers by producing extract from the property Register which position was never controverted in cross-examination. So also Ghulam Ghous has never claimed to be the owner of the premises or to have purchased the same from either the original owner or the subsequent transferees. Consequently in my view it is quite clear that Ghulam Ghous occupied the premises in no capacity other than as a tenant of Altaf Ahmed and subsequently of Mst Munawar Sultana and other co-sharers. A person who is in possession or occupation of the premises owned by someone else, although he may not have undertaken to pay the rent to the owner is bound to pay the rent to him as consideration for being in possession or occupation of the premises. To hold otherwise in my view would be to give legal cover to such persons, who occupy the premises which are admittedly not owned by them and thereafter refuse to pay the rent on the ground that they are not tenants of the owners of such premises. This cannot be allowed by any provision of law. In this regard a reference can be made to Muhammad Shabbir v. Hamida Begum 1992 MLD 323 and Syed Hussain Ali Shah v. Shamsuddin 1998 MLD 394 where, in similar circumstances two learned Single Judges of this Court had come to the conclusion that the relationship of landlord and tenant stood established between the parties. The cases cited at the Bar by the learned counsel for respondent as regards the relationship of landlord and tenant, in my view are not germane to the issue. In this regard in KhudaBux v. Muhammad Yasin 1992 MLD 2011 it was held by a learned Single Judge of this Court that mere acquisition of ownership or a right in the property would not create the relationship of landlord and tenant between the parties. These are not the facts of the present case since it has been established by Munawar Sultana through evidence that Ghulam Ghous was inducted into the premises by the previous owner Altaf Ahmed. Similarly, in Noor Muhammad v. Mst. Hajira 1985 CLC 2085, a learned Single Judge of this Court held that where the title of the premises was in doubt, the relationship of landlord and tenant could not be established and in these circumstances the proper course for the Rent Controller in such a situation would be to decide this issue against the landlord and advise him to first get his title established before seeking ejectment. Similar conclusion was reached in AbdulRasheed Khan v. Muhammad Shaukat Hussain 1995 CLC 1978. However, as held above the title to the properly in question has been successfully established by Mst.Munawar Sultana and hence these two cases do not help the respondent at all".

The fourth judgment is in the case of Muhammad Younis v. Syed Muhammad Yakoob 1998 CLC 736 (Kar). In this case, learned Single Judge of this Court placed reliance on the earlier judgment of a learned Single Judge in the case of Muhammad Shabbir and another v. Hamida Begum 1992 MLD 323, which reads as follows :--

"The appellant has admitted that he received the notice but he did not reply the same. Admittedly, the appellant is in possession of the premises. He is also in occupation of the premises. He does have any title to possess those premises or occupy those premises but since he was bound to pay the rent for possession/occupation of the premises, therefore, he was tenant. The word bound has been defined in the Black's law Dictionary and means as follows :

"As an adjective, denotes the condition of being constrained by the obligations of a bond, contract, covenant, or other moral or legal obligation."

The appellant was under moral obligation to compensate the owner of the use of premises and for continuing to remain in possession of the premises. In spite of the notice that the respondent is owner and had demanded rent, the appellant was unmoved and did not discharge his obligation. Although strictly there may not be the legal obligation but moral obligation binds a person to compensate the owner for continuing to remain in occupation as well as in possession. I would therefore, held that since the appellant was bound to pay the rent, therefore, he was tenant in terms of Section 2(j) of the Sindh Rented Premises Ordinance, 1979."

It is pertinent to note that in this case the premises was transferred to the owner by the Settlement Department.

The fifth judgment is in the case of Muhammad Shabbir v. Mst. Hamida Begum, 1992 MLD 323, on which reliance has been placed in the case of Muhammad Younus (supra). In'this case also the issue pertaining to relationship of Landlord and tenant was under consideration. In this case, the applicant had established her title over the property in question and the opponent had claimed the execution of sale agreement and payment of part sale consideration. It was held that till such time as the opponent succeeds in obtaining decree for specific performance of agreement, the applicant shall continue to be the owner of the property in dispute. The learned Single Judge interpreted the term "tenant" defined in Section 2(j) of the Ordinance as follows :

"Term 'tenant' has been defined under Section 2(j) of the Sindh Rented Premises Ordinance, 1979 as under :

(j) "tenant" means any person who undertakes or is bound to pay rent as consideration of the possession or occupation of any premises by him or by any other person on his behalf and includes:

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant.

(i) Term tenant carried a different definition in the previous statute, Section 2(i) of the Urban Rent Restriction Ordinance, 1959 defined it as under:

(i) tenant means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, car stand, or slaughter house or of rents for shops has been framed out or leased by a municipal, town or notified area committee, or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust.

It will be noticed that the definition of the term "tenant" has been materially changed from its previous definition. According to the definition given in the Sindh Rented Premises Ordinance, 1979 following persons shall be the tenant:

(1) A person who undertakes to pay rent as consideration for possession or occupancy of any premises. Undertaking may be oral or through a document.

(2) A person who is bound to pay rent for being in possession or occupation of a premises.

(3) A person who holds on possession or occupies the premises even after the termination of the tenancy.

(4) Surviving heirs of a deceased tenant in actual possession or occupation of the premises.

The sixth judgment is in the case of Fariduddin v. Mehboob Alt 1994 SCMR 1485. In this case, the Hon'ble Supreme Court has held that landlord and tenant can prove existence of relationship of landlord and tenant in other manners, provided by law and mere non-existence of written tenancy agreement is not sufficient to dismiss the ejectment application.

The 7th judgment is in the case of Muhammad Yousuf u. Munawar Hussain and others 2000 SCMR 204. In this case, the Hon'ble Supreme Court has held that an agreement to sell the immovable property by itself does not confer any title on the vendee.

The Eighth judgment is in the case of Muhammad Rafiq v. M/s. Habib Bank Limited 1994 SCMR 1012. In this case the Hon'ble Supreme Court has held that in the absence of written agreement the landlord or tenant can establish the relationship of landlord and tenant by producing evidence, Admissible in law.

The 9th judgment is in the case of Afzal Qureshi v. Mursaleen, 2001 SCMR 1434. In this case the plea was taken on behalf of the respondent that neither any tenancy agreement was executed between the parties nor he had ever paid rent to the petitioner and as such petitioner cannot be termed as landlord, defined in Section 2(f) of the Ordinance. The Hon'ble Supreme Court held that the High Court has rightly held that, question of title/ownership be got determined prior to seeking ejectment of the respondent. It was held that in the absence of relationship of landlord and tenant between the parties, the question of dispute of title of ownership of the property in question be decided by a competent Civil Court, as such controversies do not fall within the jurisdictional domain of the learned Rent Controller. Their lordships of the Hon'ble Supreme Court referred the dictum laid down in 1971 SCMR 82 that:

"We are conscious of the fact that ownership has nothing to do with the position of landlord and payment of rent by tenant and receipt thereof by the landlord is sufficient to establish the relationship of landlord and tenant between the parties".

"The petitioner failed to prove that rent was ever paid to him by respondent. It hardly needs any elaboration that the requirement of relevant law is that the learned Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not established his position as landlord beyond reasonable doubt. The petitioner has neither produced any tenancy agreement nor any evidence in writing showing that rent was being paid to him. No counter foil of any receipt, any letter from the tenant, any notice or any other document could be produced and in our considered opinion the oral version 'of landlord is not sufficient to hold that relationship of landlord and tenant existed between the parties. If any reference is needed, 1983 CLC 613 can be referred."

A perusal of the judgment reported in 1983 CLC 613 shows that a , learned Single Judge of Peshawar High Court held in the case of QadirKhan v. Kishwar Begum and other, that the Rent Controller framed an issue on the question of relationship of landlord and tenant but confined his order to determination of question of ownership of a house without adverting to question of relationship of landlord and tenant and the Appellate Court affirmed the finding of Rent Controller without deciding the question, whether the relationship of landlord and tenant exists between the parties and such orders were not sustainable. The orders were set aside and the matter remanded to the Rent Controller for fresh decision on the point of ,. relationship of landlord and tenant. Thus the ratio of judgment approved by the Hon'ble Supreme Court is that mere ownership of property is not sufficient to establish relationship of landlord and tenant. At this juncture, I would like to observe that although the judgment of Peshawar High Court, in the case of QadirKhan v. Kishwar Begum 1983 CLC 613 was under the West Pakistan Urban Rent Restriction Ordinance, 1959, but the law laid down therein has been approved by the Hon'ble Supreme Court, while considering the issue pertaining to the relationship of landlord and tenant under the provisions of Sindh Rented Premises Ordinance, 1979.

The 10th judgment is in the case of Afzal All v. Azher Iqbal, 1997 MLD 2262 (Kar.). In this case his lordship Mr. Justice Rana Bhagwandas, a learned Single Judge of this Court (as his lordships then was) held that mere Agreement to Sell by itself would not be sufficient to establish transfer of title in the immovable property. It has been further held that the appellant failed to establish that he had inducted the respondent as his tenant. Admittedly, no tenancy agreement was executed between the parties and there is absolutely no evidence that the respondent had ever paid any amount by way of rent to the appellant as consideration for his occupation. On appellant's own showing no rent receipts were ever issued by him, therefore, none could be produced and that it is settled that, tenancy is valuable right and it must be proved by evidence of high order, which was unfortunately badly lacking in the case. It was further held that in order to succeed in eviction application, appellant must prove by satisfactory evidence that he had inducted the respondent as tenant in the demised premises in exercise of his authority as landlord.

Learned counsel for the petitioner has produced a photocopy of an unreported judgment of Hon'ble Supreme Court in C.P. No. 388-K of 1997, Muhammad Younis v. Syed Muhammad Yaqoob, whereby the Hon'ble Supreme Court dismissed the application for leave to appeal against the judgment of learned Single Judge of this Court reported as 1998 CLC 736. Learned counsel for the petitioner has submitted that the law, as interpreted by the learned Single Judge of this Court in the case of Muhammad Younis (supra) has been upheld by the Hon'ble Supreme .Court. The contention of the learned counsel for the petitioner is correct, but I would like to reiterate the observations made by me while" referring to the judgment reported as 1998 CLC 736. In this case the property was purchased from the Settlement Department. The Hon'ble Supreme Court has also taken notice of the fact that the premises in question was initially transferred to the petitioner. The litigation ensued between the parties and ultimately the respondent succeeded before the Hon'ble Supreme Court and in pursuance of the judgme nt of Hon'ble Supreme Court, the respondent became owner of the premises and served a notice on the petitioner intimating that he has become landlord of the premises. A plea was taken on behalf of the petitioner in the ejectment proceedings that he was a trees passer and, therefore, relationship of landlord and tenant between the parties did not exist. The Hon'ble Supreme Court observed that there was no force in the contention that the petitioner was not bound to pay the rent because the petitioner initially succeeded in getting the premises transferred in his name, which indicates that he occupied the property as tenant. The Hon'ble Supreme Court observed that:

"The contention of Imran Ahmed that there was no relationship of landlord and tenant between the parties appears to be completely devoid, of force, because if initially premises in question had been occupied by the petitioner as tenant and subsequently his claifn of ownership over the said property could not succeed, the petitioner once again reverted to the said situation. He was, therefore, bound to pay rent to the respondent, who was a new landlord of the premises, after notice was received by him from the former."

This brings me to the rulings relied upon by Mr. Abdul Naeem, learned counsel for the Respondent No. 1.

The first judgment is, in the case of AfzalAll v. Azher Iqbal, 1997 MLD 2262. The learned counsel for the petitioner has also placed reliance on this judgment and the ratio thereof has already been narrated in the earlier part of this judgment.

The second judgment is, in the case of Afzal Ahmed Qureshi v. Mursaleen, 2001 SCMR 1434. This judgment has been relied upon by the learned counsel for the petitioner as well and the dicta laid down therein has . already been produced earlier.

The third judgment is, in the case of Hqji Abdul Sattar v. Additional District Judge, Rawalpindi, 1984 SCMR 925. In this case, an industrial immovable property was the ground that the property had never been rented out to them. The Rent Controller found that the. property was transferred to the respondent by the Settlement Department and even if no notice under Section 30 of Displaced Persons (Compensation and Rehabilitation) Act has been served, the same was of no legal effect. However, the Rent Controller dismissed the ejectment application for the reasons that the dispute pertaining to title of the property was subjudice in Civil Court. On appeal learned Additional District Judge without noticing that the property had been transferred as an industrial concern held that, since the appellant had been in possession of the property, it had become tenant automatically, after issuance of PTD and as no rent has been paid, he was liable to be ejected. The order was challenged by the appellant through writ petition. The learned Single Judge of the Lahore High Court dismissed the writ petition in limine for the reason that, assuming that no statutory tenancy is created, the evidence has established existence of oral testimony. The Hon'ble Supreme Court granted leave to appeal to consider, inter alia if relationship of landlord and tenant was established. The Hon'ble Supreme Court held, that even it the respondent's ownership of the property by virtue of PTD held by them was assumed there is still no proper material to support existence of tenancy with the appellant. It was held that under the settlement laws, no statutory tenancy was created. Considering the plea of oral letting out of the demised premises, it was observed that in the absence of proper evidence on record to the existence of oral tenancy, the High Court had fallen in error in holding that oral tenancy did exist. The Hon'ble Supreme Court further observed that no • document has been produced to show existence of the tenancy or payment of rent to the respondent in pursuance of the tenancy. Ultimately, the Hon'ble Supreme Court held that existence of relationship of landlord and tenant was not established. The appeal was allowed and the orders of the High Court and Additional District Judge were set aside and that order of Rent Controller was restored.

The fourth judgment is in the case of Qassim v. Aziz Baig, 1993 CLC 2385. Hon'ble Mr. Justice Mukhtiar Ahmed Junejo (as his lordship then was) after examining the provision contained in Section 2(f) of the Ordinance, containing definition of landlord held that:

"The respondent may be owner of the shop in litigation but by virtue of his being owner of the same, he could not be treated to be landlord of the appellants. Admittedly, there is no privity of tenancy contract between the respondent and appellants. "

The fifth judgment is in the case of Beejal Mai v. Punaji 1987 CLC 1134. la this case a learned Single Judge of this Court held that, however, mere fact that the respondent is owner/landlord of the demised premises would not ipso facto create relationship of landlord and tenant between the parties. Such relationship can be created either by statute or by contract, whether oral or in writing". This was a case under the Ordinance and the learned Single Judge while examining the existence of any contractual or oral relationship of landlord and tenant between the parties, held that in the cited case, admittedly, there was no written agreement of tenancy. No documentary evidence to show payment of rent by appellants was produced. According to the respondent, he inducted the appellant as tenant by oral agreement and that he used to issue rent receipt on blank paper of which no counter foil was kept. It was held that burden of proof lies upon the landlord to establish relationship of landlord and tenant between the parties.

Notwithstanding, the admitted ownership by the respondent, it was held that in the absence of any reliable evidence on the point of contractual tenancy, the relationship of landlord and tenant did not exist and the jurisdiction of Rent Controller was ousted. It was observed that the parties can seek redress through Civil Court.

After careful examination of the contentions raised before me and perusal of the judgments relied upon by the learned advocates for the parties, I am of the opinion that contradictory views expressed by the several learned Single Judges of this Court, are not required to be dilated upon, for the reason that all the issues have been considered and decided authoritatively by the Hon'ble Supreme Court. Every principle of law decided and pronounced by the Hon'ble Supreme Court is binding on all the Courts in Pakistan, including High Courts. It is also established principle that even the obiter dicta of the Hon'ble Supreme Court has binding effect. Thus leaving aside the conflicting judgments delivered by the learned Single Judges of the High Court, It would like to deduce the conclusions from the dicta laid down by the Hon'ble Supreme Court in various judgments cited at Bar.

However, before drawing the conclusions, I would like to observe with all due deference, that some of the learned Single Judges, have _,.-attempted to define the terms, of "landlord"' and "tenant" used in the Ordinance and defined under Section 2, with reference to the help of dictionary. It is a very dangerous part to tread on. The interpretation of statute by holding the statute in one hand and the dictionary in another, has never been approved as sound principle of interpretation of statutes. No doubt, when some words, terms and expression are not defined in a statute, it is permissible to seek a help from the dictionaries but placing sole reliance on dictionary meaning is not an advisable mode of interpreting the statute. ' ' All efforts should be made to interpret the terms used by the legislature in an enactment from the scheme of statute itself and by examining the entire scheme in its totality. The words terms, and expressions, used in a statute take their complexion with reference to the context in which they are used and the scheme of law in which they occur. This observation is made with reference to some Single Bench Judgments of this Court, in which the word "bound" used in Section 2(j) of the Ordinance containing definition of tenant has been considered in isolation and has been defined with reference to the meaning of the words in dictionary. Under Section 2(j) of the Ordinance, the term "tenant" has been defined to mean, any person who undertakes or is bound to pay rent, as consideration for the possession or occupation of any premises by him or by any other person on his behalf. Thus, while interpreting this provision of law, it has been held in the case of Muhammad Younis (supra) that the appellant was under moral obligation to compensate the owner of the premises and because of this moral obligation he became a tenant in the terms of Section 2(j) of the Ordinance. The infirmity of the logic is apparent from the fact that the established principles of interpretation of statute have been ignored. The definition of "tenant" contained in Section 2(j) of the Ordinance starts with the word means and it f is established principle of interpretation of statute that whenever a definition starts with the word "means", it is conclusive and normally nothing is to be added to such conclusive definition. However, when definition starts with the word "includes" as indicated in Section 2(g) of the Ordinance containing the definition of "rent" then definition is not conclusive but it is incltlsive and the other matters of same category or similar nature can be included in the definition. In some of the Single Bench Judgments, relied upon by the learned counsel for the petitioner, it appears that the entire scheme in its totality has not been considered. In the definition of term "tenant" contained in Section 2(j) of the Ordinance and definition of "landlord" contained under Section 2(f) of the Ordinance, the word "premises" has been used. Likewise under Section 15 of the Ordinance, the word "premises" has been used. The word "premises" has been defined by the legislature itself in Section 2(h) as a "building or land, let out on rent but does not include hotel". Thus while interpreting the definitions of landlord and tenant, contained in Clauses (f) and (j) of Section 2 of the-Ordinance, the definition of word "premise" is also required to be kept in view and according to definition in Section 2(h) of the Ordinance its mean building or land let out on rent. This is exclusive definition of the premises which totally excludes any transaction other than letting out on rent and thus it would be against the manifest intention of the legislature to hold that mere ownership of the property by one person and possession thereof by other, irrespective of the fact whether it was let out on rent or not would create relationship of landlord and tenant because of moral obligation. The Rented Premises Ordinance, 1979 is not the only law in the province of Sindh providing relief to an owner of a building, in case the relationship of landlord and tenant is not established within the scheme of the Ordinance and owner of the building or land can have recourse to the other laws for the time being in force and can invoke the jurisdiction of Civil Court for taking the possession of a building or land as well as compensation/mesne profits. I would further like to observe that the provision for statute are not to be interpreted only on the touch stone of morality or moral obligation but on the basis of law enacted by the Legislature.

With the above observations, I am of the view that the following conclusion can be drawn from the judgments of the Hon'ble Supreme Court cited at bar:-

(i) The sale Agreement per se does not confer any title in the property and merely confers the right to enforce the specific performance of the contract;

(ii) mere ownership of the building by one person and the possession thereof by other person does not create the

relationship of landlord and tenant between the parties, as envisaged under Sindh Rented Premises Ordinance, 1979;

(iii) it is not obligatory to execute a tenancy agreement in writing and the provisions contained in Section 5 of sindh Rented Premises Ordinance, 1979 are directory and not mandatory in nature;

(iv) there can be verbal/oral tenancy also but in order to establish such tenancy an evidence of every high standard is required, from which the facts of tenancy is established on the principle of preponderance of probabilities;

(v) the tenancy can be statutory or contractual;

(vi) there is no concept of any deemed tenancy either on the consideration of the morality or under any fiction of law;

(vii) in case the statutory or contractual tenancy is not established, creating relationship of landlord and tenant between the owner and occupier of the property, the Rent Controller has no jurisdiction and the parties may have recourse to the Civil Court for resolving the dispute/seeking relief;

(viii) a person can be owner of the building or land without being landlord and can be landlord without being owner thereof;

(ix) the Rent Controller has no jurisdiction to decide the case pertaining to ownership/title of the property and the jurisdiction is exclusive vested in Civil Court.

Applying the above conclusions to the facts of the present case, I find that admittedly there-is no tenancy agreement between the parties and no rent has been paid by the Respondent No. 1 from 1995 onwards and there is no evidence to establish any undertaking on the part of Respondent No. 1 to pay the rent of the shop in dispute. There is no admission on the part of Respondent No. 1 to prove the payment of rent at any time or any obligation to pay rent by him. There is no evidence to establish verbal/oral tenancy between the parties. The contention of learned counsel for the petitioner, that the petitioners are landlord of the Respondent No. 1 merely on the basis of ownership of shop in question and the Respondent No. 1 is tenant by mere possession thereof has no substance.

For the foregoing reasons, it is held that the impugned judgment of learned District Judge does not suffer from non-exercise of jurisdiction, wrong exercise of jurisdiction or commission of any illegality causing miscarriage of justice. There is no infirmity in the impugned judgment warranting interference in exercise of Constitutional jurisdiction of this Court. The petition stands dismissed accordingly.

(M.Y.) Petition dismissed.

PLJ 2003 Karachi 152 (DB)

Present: muhammad roshan essani and khilji arif hussain, JJ

ASGHAR ALI-Appellant

versus

Mrs. ZOHRA BAI and another-Respondents High Court Appeal No. 301 of 2002, decided on 8.4.2003.

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

—O. XX, R. 13—Sale of property—Reference of Official Assignee for accepting highest bid was not objected by defendant-Trial Court, allowed defendant either to bring matching offer given by auction-purchaser or purchase property by depositing half amount of such offer within specified time, otherwise offer of auction-purchaser would be absolute- Defendant failed to deposit such amount and his application for extension of time was dismissed-Contention of defendant was that trial Court had accepted reference without notice to him—Validity—Defendant had not filed appeal against order of trial Court-Sale in favour of auction- purchaser had become absolute on defendant's failure to bring matching offer or deposit share of plaintiffs-Sale had been confirmed long ago- Trial Court had to distribute sale'price between parties in accordance With their shares, for which Official Assignee had been granted permission through reference—No right of defendant having been affected by such reference there was no need of any notice to him—Appeal dismissed. [P. 154} A

Mr. Riazuddin, Advocate for Appellant. Mr. Badrudduja Khan, Advocate for Respondents. Miss Sofia Saeed, for the Auction-Purchaser. Date of hearing : 25.3.2003.

judgment

Khilji Arif Hussain, J.--The apnellant filed this appeal against the order passed by the learned Single Judge on 25.11.2002 in Suit No. 416 of 2002 whereby learned Single Judge allowed the reference of Official Assignee dated 22.11.2002. Heard Mr. Riazuddin learned Advocate for the appellant. The learned Advocate for the appellant argued that learned Judge allowed the reference of the Official Assignee dated 22.11.2002 without providing an opportunity of hearing to the appellant. He has further contended that no notice of Official Assignee's reference has been served upon the appellant and as such the said order is liable to be set aside. In order to appreciate the contention of the learned Advocate we would like to give brief facts of the case. The appellant and respondents are real brothers and sisters. The respondents filed suit for administration in respect of the various properties left by their deceased father and; mother. There is no dispute so far as the shares between the appellant and the respondents are concerned in the estates left by their predecessor-in-interest. After passing the preliminary decree on 5.9.1995, vide order dated 31.5.2001 the Official Assignee was directed to sell the properties being property Bearing No. W.O. 7/34 known as Amtullah Bai Building situated in Wedhamal Quarters, opposite City Court, Karachi. The Official Assignee in compliance with the order passed by this Court invited tenders to sell the properties and received four offers of Rs. 75,20,205 and Rupees three crores respectively. The Official Assignee in order to get better price called the bidders for the improvement of their bids resulting that bid was improved to Rs. 4.75 crores as against initial offer of Rupees Three Crores. The Official Assignee submitted his reference dated 8.7.2002 in the Court for accepting the bid. On 1.8.2002 the learned Single Judge passed the following order :

The plaintiff has no objection if the highest offer of Haji Ashraf in the sum of Rs. 4.75 crore for the purchase for the building on Plot No. W.O. 7/34, known as Amtullah Bai Building, Wadhumal Udha Ram Quarters opposite City Courts measuring 448 sq. yds. is accepted. The defendant on one pretext or the other is seeking adjournment, no objection has been filed against the reference in spite of notice.

Since the building belongs to the parties and is being sold under the decree of administration suit, the defendant is allowed to bring matching offer as against the offer given by Haji Ashraf or to purchase by depositing half amount of the said offer within 15 days from the date of orSer. In case of failure, the offer of Haji Ashraf will be absolute and he is allowed to deposit the amount within 90 days after 15 days.

We would like to mention here that prior to passing the order on 31.5.2001, the appellant was allowed to purchase the property in question in a sum of Rupees Two Crores and Five Lacs and to deposit the said price within 12 months but appellant failed to deposit the same within the stipulated period of time. On failure to deposit the amount within stipulated period of time the appellant filed an application for extension of time to deposit the amount which application was dismissed by the learned Single Judge on 31.5.2001.

\

It appears from order dated 1.8.2002 that on failure of the appellant to bring matching offer to the offer of the auction purchaser and deposit half of the amount of said offer being the share of the respondents within 15 days from the order, the offer of auction purchaser will become absolute and he will be allowed to deposit about within 19 days after expiry of the 15 days. Apparently no appeal has been filed against the said order. On failure of the appellant to bring matching price and depositing the share of the respondents, the sale in favour of the auction purchaser became absolute and the Court has to distribute sale price between the appellant and the respondents in accordance with their admitted shares in it. Through reference dated 22.11.2002 Official Assignee only sought permission of the A learned Single Judge for paying admitted shares of the respondents to them while retaining a sum of Rupees Thirty Seven Lacs and Fifty Thousands to meet the claim pertaining to unpaid utility bills. In our opinion there is no need of any notice of this reference to appellant as no right of the appellant is affected in any manner. The sale was confirmed long ago and through the reference of Official Assignee only sough permission to pay the admitted shares of the respondents was sought which was allowed by the Court. The appellant failed to point out any legal infirmity in the impugned order of the learned Single Judge. The appeal as such being without any merits is dismissed. These are the reasons of our short order dated 25.3.2003 by which we have dismissed the appeal.

(M.Y.) Appeal dismissed.

PLJ 2003 Karachi 154 (DB)

Present: MUHAMMAD ROSHAN ESSANI AND KHILJIARIF HUSSAIN, JJ.

BORE MUHAMMAD-Appellant

versus Mst. AZIZA BEGUM and others-Respondents

High Court Appeal No. 138 and Civil Miscellaneous Application No. 739 of 2002, decided on 8.4.2003.

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

—O. VII, R. 11-Technicalities should not be allowed to come in way of justice-Efforts should be made to provide substantial justice to parties before Court-Requirement of law is that incompetent suit should be buried at its inception, if same on its face is not maintainable. [P. 158] C

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

—-S, 42-Relief under S. 42 of Specific Relief Act, 1877 is provided to safeguard right to plaintiffs own legal character or property and not to right of third party-Where plaintiff had neither produced any document showing his personal interest in property nor claimed any personal right therein, rather he was seeking declaration as of right in property of third person, he would have no cause of action and his plaint would be liable to be rejected. [Pp. 157 & 158] A,.B & D

Mr. Z. U. Mujahid, Advocate for Appellant.

Mr. Mahmood Habibullah, Advocate for Respondent No. 1.

S.I.H. Zaidi, Advocate for Respondent No. 2.

Mr. Manzoor Ahmed, Advocate for Respondents Nos. 4, 5 and 6.

Mr. Muhammad Sarwar Khan, Addl. A.-G., Sindh.

Date of hearing : 25.3.2003. .

order

The appellant filed appeal against the order dated 26.11.2002, whereby the learned Single Judge rejected the plaint under Order VII, Rule 11, CPC.

Brief facts of the case are that the appellant filed suit for declaration, cancellation, possession, permanent injunction and damages seeking the following reliefs :

(a) To declare a portion of Suit Plot No. BC-1, situated at Baloch Colony adjacent to K.M.C. Stone No. 207 off Shaheed-e-Millat Road, Karachi, admeasuring 108 square yards is property of K.M.C. and only the K.M.C. is competent authority to grant its leasehold rights to the residents/occupants of their plot, being Katchi Abadi to the plaintiff, who has been in possession of the ; same since 1977 under the rules and regulations of the K.M.C., in respect of grant of leasehold rights on payment of the cost of lease as prescribed by the defendant No. 5.

(b) To further declare that the Defendant No. 2 is not competent and authorize to grant the sub-lease to the Defendant No. 1, for the suit plot, as the same property does not belong to Defendant No. 2, as such the sub-lease granted to the Defendant No. 1 is illegal and unlawful.

(c) To cancel the sub-lease executed by the Defendant No. 2, in favour of the defendant No. 1 under Register No. 7190 dated 12.9.1996, M. F. .Roll No. 256 dated 8.10.1996, granted fraudulently in favour of the Defendant No. 1, by the Defendant No. 2, since it has been granted without any lawful authority and power.

(d) To permanently restrain the Defendants Nos. 1 & 2, their servants, attorney administrator, legal heirs and the persons working under them and under their influence from selling of suit plot and alienating its title to anybody else by fraud and forgery on the force of the above said sub-lease deed, executed by the Defendant No. 2 in favour of the Defendant No. 1 and from raising the construction on the suit plot.

(e) Direction be made to the Defendant No. 1 to hand over the peaceful vacant physical possession of the suit property to the plaintiff.

(f) Grant the damages in the sum of Rupees Four Million against the Defendants Nos. 1 and 2 at Two Million from each defendant.

(g) Cost of the suit.

(h) Any other relief which this Honourable Court may deem fit and necessary in the circumstances of the case may also be granted.

Heard Mr. Z.U., Mujahid, learned counsel for the appellant, Mr. Mahmood Habibullah, learned counsel for Respondent No. 1, Mr. S.I.H. Zaidi, learned counsel for Respondent No. 2, Mr. Manzoor Ahmed, learned counsel for Respondents Nos. 4, 5 & 6 and Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh.

Mr. Z.U. Mujahid, learned counsel for the appellant, argued that the plot in question does not belong to Respondent No. 2 and as such they have wrongly and illegally executed sub-lease in favour of Respondent No. 1. The learned counsel further contended that the plot in question is owned by the K.M.C. Respondent No. 4, who is the only competent authority to lease the same. Learned counsel argued that on the basis of the avernments made in the plaint the suit cannot be dismissed under Order VII, Rule 11, C.P.C. and the learned Single Judge wrongly dismissed the same. In support of his contentions the learned counsel relied upon the following cases :--

(1) Mst. Arshan Bi and others v. Maula Bakhsh and others (2003 SCMR 318);

(2) Muhammad Latifand others v. Abdur Rehman Khan and others (2001 SCMR 953);

(3) Rafiuddin v. Karachi Metropolitan Corporation & 2 others (1994 MLD 874);

(4) Ghulam Rasool v. Muhammad Wans Bismil (1994 MLD 527);

(5) Valuegold Ltd. and 2 others v. United Bank Limited (PLD 1999 Karachi 274);

(6) Mst. Iqbal Begum v. Farooq Inayat and others (PLD 1993 Lahore 183);

(7) Ghulam Ali v. Asmat Ullah and another (1990 SCMR 1630); and

(8) Qazi Sher Muhammad, etc. v. Nazar Ali Shah, etc. (NLR 1985 Civil 90).

On the other hand, Mr. Manzoor Ahmed, learned counsel for Respondents Nos. 4 to 7 made a statement before us that the K.M.C. does not claim any interest on the plot in question and further argued that in any eventuality it is between the K.M.C, and the respondent-Society to resolve the dispute, if any. In this regard the appellant has no right or locus standi.

Mr. S.I.H. Zaidi, learned counsel for Respondent No. 2 argued that the Respondent No. 2 is the Society and the plot in question falls within the boundaries of the Society and the said Society has rightly and legally executed deed of sub-lease in favour of Respondent No. 1, who is in possession of the same and constructed building thereon. Mr. Mahmood Habibullah, learned counsel for Respondent No. 1, argued that the appellant is an encroacher on possession of the plot adjacent to the plot of the Respondent No. 1, duly and legally allotted by the Respondent No. 2 and in order to harass the Respondent No. 1, the appellant has filed the suit with mala fide intentions.

We have gone through the memo, of plaint and considered the respective arguments of the learned counsel for the parties.

From the averments made in the plaint it appears that the appellant is not claiming any interest in the plot in question and the entire allegation in the memo, of plaint pertains to the ownership of the said plot either with the Respondent No. 4 or with Respondents Nos. 6 & 7. For the purpose of seeking declaration under Section 42 of the Specific Relief Act, the plaintiff ought to have established entitlement to any legal character or any legal right to the property or any alleged denial by the defendants. The relief under Section 42 of the Specific Relief Act cannot be attracted in a case where the plaintiffs do not allege their entitlement in the legal character or any right to the property or any denial of the same by the defendants. The relief of declaration provided under Section 42 of the- Specific Relief Act is to safeguard the right to his own legal characters or property and not to the right of third party.

The appellant is not claiming any personal right in the property rather he is seeking declaration as of the right in the property of third person. The appellant has no cause of action and the plaint has been rightly rejected by the learned Court.

As regards the case-law relied upon by the learned counsel for the appellant, suffice to say that technicalities should not be allowed to come in the way of justice. Efforts should be made to provide substantial justice to the parties before the Court, but at the same time it is the requirement of law that incompetent suit should be buried at its inceptions if the suit, on the face of it, was not maintainable. The appellant has not produced any document showing his personal interest in the property in question and is not entitled for any declaration and as such consequential relief too.

For the above reasons the appeal was dismissed in limine and these are the reasons for our short order dated 25.3.2003.

(M.Y.) Appeal dismissed.

PLJ 2003 Karachi 158

Present: MUSHIR alam, J.

CLIFTON CENTRE ASSOCIATION (CCA), CLIFTON, KARACHI through GENERAL SECRETARY-Petitioner

versus

CITY DISTRICT GOVERNMENT through NAZIM-E-AALA, MUNICIPAL BUILDING, KARACHI and 3 others-Respondents

Suit No. 433 of 2002, decided on 26.2.2003.

(i) Constitution of Pakistan (1973)--

—Art. 4-Right to property or right to carry on business in a property not to be interpreted in a narrow sense, but must be given broader perspective and meaning in present commercial environment, where every bit of a commercial premises or establishment has its due importance and pecuniary benefit. [P. 167] G

(ii) Constitution of Pakistan (1973)--

—Art. 9-Right to life-Not merely a vegetative living. [P. 167] F PLD 1994 SC 693 and 1999 SCMR 2882 fol.

(iii) Sindh Local Government Ordinance (XXVII of 2001)--

—-Ss. 54(g), 191, 192 & Fifth Sched., Part II, Item 39-Affixing of signboard and advertisement-Such powers and functions must be exercised in consonance with rules making power in terms of Ss. 191 & 192 of Sindh Local Government Ordinance, 2001. [P. 165] B

(iv) Sindh Local Government Ordinance (XXVII of 2001)-

—-Ss. 54(g), 191, 196(2) & Fifth Sched., Part II, Item 39-Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978, Bye-law 7-Display of advertisement-Allocation of site without invitation of offer through press-Effect-Karachi Metropolitan Corporation (Advertise­ment) Bye-laws, 1978 were subject to limitations as prescribed under S.lyl "or Sindh Local Government Ordinance, 2001 and one of its important req, irement was natural justice and due process of law-By natural justice, sud requirement demanded invitation of objections and hearing of persons to "be affected by such permission or fixation of hoarding or neon-sign--Allocat.u>n of site without inviting offers through press would amount to refusal of hearing of objection. [Pp. 165 & 166] C

(v) Sindh Local Government Ordinance, 2001 (XXVII of 2001)--

—Preamble-Sindh Local Government Ordinance, 2001-and all other laws relating to Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making-Such public functions and duties conferred on f^e functionaries of District Government are to be exercised for the bettermei of the society at large. [P. 164 & 165] A

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

—-S. 54-Constitution of Pakistan (1973), Art. 4-Public functionaries invading right of enjoyment of property-Remedy of aggrieved person to bring action against such invasion. [P. 167]

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

—S. 54-Expression "right to enjoyment of property"-Connotation-Perpetual injunction is regulated under Section 54 of Specific Relief Act, 1877-Such injunction may be granted where it is shown that defendant invades or threatens to invade plaintiffs "right to enjoyment of property"-Right to enjoy property is not simply a right to possess and occupy the property-By enjoyment of the property, it also includes the right to free ingress and egress, right to reap benefit. One of the most important rights which in this commercial world has acquired a significant importance, is right of view or exposure to and from the particular property-More particularly when such property is of a commercial nature-People are more attracted towards the shops and establishments, when it is exposed to the general view—Office premises may be more beneficially enjoyed in a multi-storey building, when it has an over view of scenaric land scaping of the city environment-Any invasion or encroachment of such right to enjoy the property is recognised. [P. 166] D

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

—S. 54-Invasion of civil right in nature of tort-Injunctive relief obtainable-­ Person seeking injunction must make out a case of actual or of threatened violation of its rights. [P. 167] H

AIR 1941 Nag. 364; AIR 1914 PC 45 and-AIR 1978 Guj. 13 rel, (ix) Specific Relief Act, 1877 (I of 1877)--

—-Ss. 42 & 54—-Section 42 read with S. 54 of Specific Relief Act, 1877 does give right to institute suit to plaintiff for establishing that light to view and exposure of, his commercial establishment is of some beneficial interest to him. [P. 167] E.

Mr. Abid S. Zubairi, Advocate for Petitioner. Mr. Salahuddin, / ,/ocate for Respondents Nos. 1 and 2. Mr. Abrar Hassan, Advocate for Respondent No. 3. Dates of hearing : 31.5.2002 and 18.2.2003.

order

Plaintiff is a registered association under the Societies Registration Act and has filed the instant suit in a Representative capacity through its General Secretary namely Sabir Pervez seeking declaration against the erection of the advertisements boards on pedestrian pavements in front of 'Clifton Centre', being illegal, for cancellation of permission/license for erecting such boards in the vicinity and .consequential relief of permanent injunction to the above effect. In the suit, the Plaintiff has filed an Application i.e. C.M.A. No. 2606 of 2002 under Order XXXIX, Rules 1 and 2, C.P.C. seeking interim relief against the Defendants in above terms. Ad-interim orders were passed on 11.4.2002. In addition to Defendant No. 3 has also filed an application i.e. C.M.A. No. 2823 of 2002 under Order XXXIX, Rule 3(4), C.P.C. seeking vacation of such orders. On 31.5.2002 C.M.A. No. 2823 of 2002 was fixed seeking for vacation of the ad-interim orders. By

Consent, arguments of learned counsel for the parties were heard as well on C.M.A. No. 2606 of 2002 under Order XXXIX, Rules 1 and 2, C.P.C.

The case of the Plaintiff, in brief, as set out in the plaint is that the Clifton Centre wherein the members of the plaintiffs Association have their respective offices situated on the right of Schon Circle falls within the Saddar Town Council. Initially, it is stated, few and small advertisement boards appeared on all sides of Schon Circle fixed on pedestrians pavements which activity was objected by the residents of the area. Only Clifton Cantonment Board responded to such objections, hoarding/Bill Boards were regulated and those fixed in front of the building blocking the views were removed and fixed atop of buildings. Grievance of the plaintiff is that Saddar Town Council did not pay any heed to such objections, and allowed mashroon growth of such hoardings impeding the view of the offices and commercial establishments thereby effecting the value and utility of the same besides being infringement of easement of necessity. It is stated that after the establishment of the Defendants Nos. 1 and 3 under the new Local Government Ordinance XXVII of 2001 unplanned growth is on the rise amounting to degradation of the whole area violating the quality of the life of the residents effecting business of the occupants/owners of the commercial establishments of plaintiffs' members. Through listed application, the plaintiff seeks restraining orders against the installation of a huge hoarding board of approximately 100 x 30 feet affixed in front of the Clifton Centre. Since protest were unheeded. In the wake another similar mammoth hoarding was in sight when the plaintiff brought the instant suit.

Saddar Town Council, the Defendant No. 2 also filed the counter affidavit for itself and Defendant No. 1 raising preliminary objections as to maintainability of suit under Sections 42 and 56(d) of the Specific Relief Act. The counter-affidavit of the Union Council almost adopts the factual assertion raised by Defendant No. 3. It was pleaded that subject advertisement boards are being installed on Municipal Land, as such. Plaintiff has no legal right to interfere in the function of the official defendants. It was additionally pleaded that the advertisement board of the proposed size is already on display at the FTC intersection.

Defendant No. 3, M/s. U.B. Advertising, contested the application. In counter-affidavit, it was stated that at their request Saddar Town Council, Defendant No. 2, granted the permission and issued the challan in the sum of Rs. 3,75,000 which was paid on 20.3.2002, accordingly they undertook the assignment to install the proposed advertisement work arid spent Rs. 500,000 on the foundation and another sum of Rs. 12,00,000 on its designing. It was pleaded that several other hoarding and advertisement boards are installed in the vicinity and no objection has since been raised. It was stated that the defendants are suffering on account of the restraining order. It was also pleaded that the proposed board will beautify the surrounding neither air nor light is hampered.

Mr. Abid S. Zubairi, learned counsel for the plaintiff contended that there is a vast difference between the implementation of the advertisement policy of the two civic agencies, one is the managed, control and supervised by the Cantonment Board across the road. Whereas the hoarding and mashroon growth of the advertisement boards are regulated to some extent as against the area under the management and control of District Government and Town Council established under the Ordinance No. XXVII of 2001. Learned counsel pointed out that the Karachi Advertisement and Beautification Authority Ordinance, 1988 was promulgated on 28th June, 1988 providing for development, improvement and beautification of city of Karachi wherein under Section 13 any neon-sign hoarding or structure found to be prejudicial to the environmental beauties of any board of the notified area could be removed under the direction of the authority, unfortunately Ordinance lapsed. He contended that under Sindh Local Government Ordinance, 2001 ("SLGO 2001.") as per Sections 191 and 192 read with Vth Schedule Item No. 39, the Government enjoys the rules making powers in respect of fixing any bill, notice, playcard or other papers or means of advertisement other than the places fixed for the purpose by the Local Government. According to him, since no bye-laws or rules to the above effect have been framed the executive functionaries have no absolute power to act at their whims and fancy, such powers are to be used for the public good, welfare and in the large interest of the public at large any arbitrary fanciful exercise of such powers are subject to judicial review by this Court. In support of his contention, he has placed reliance on the case-laws reported as (1) Ardeshir. Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2882 relevant page at 2290, (2) HajiGhulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156 relevant page at 165, (3) M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228, (4) Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607, and (5) Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Put.) Ltd. and 18 others PLD 2001 SC 1 relevant at page 5.

Mr. Salahuddin, learned counsel appearing for the official defendant Saddar Town, urged that Defendant No. 2 is within its right under law to grant permission for fixation of hoarding. He further questioned the right of the plaintiff to interfere in the function of Defendants Nos. 1 and 2. According to him, no injunction under Section 56(d) of the Specific Relief Act could be granted as the same amounts to interference in performance of public duties.

As against above Mr. Abrar Hassan, learned counsel for Defendant No. 3 contended that the plaintiffs are not the owner of the land over which subject hoarding is being installed. Neither any easementary nor legal rights are available to the plaintiff. According to the learned counsel, the fixation of the advertisement boards is a prerogative of the Sindh Local Government under SLGO, 2001. Plaintiff cannot be allowed to interfere in its functioning. The activity carried out by the defendants is not environmental degradation on the contrary it is a beautification campaign. In support of his contention, he has relied upon the cases-laws reported as (I) Cawashah Bonmaji Parakh :\ Prafulla Nath (AIR 1941 Nagpur 364, (2) P.C.E. Paul u. W. Robson AIR 1914 PC 45, (3) Ushabenv. Bhungyataxmi Chitra Mandir AIR 1978 Gujrat 13. and (4) Kausar Musajee v. Niaz Ahmed 2000 SCMR 1823 relevant Page at 1826.

I have heard the arguments of all the learned counsel for the parties at great length, perused the material available on record and thoroughly examined the case laws cited at bar.

Adverting to the foremost legal objections raised by learned counsel for the defendants as regard right of the plaintiffs to maintain suit, contention of Mr. Abrar Hassan, learned counsel for Defendant No. 3 that easementary rights are regulated under the easement Act. According to him, under Section 4 of the Easement Act, such easementary rights could only be enforced provided the same are in continuous enjoyment for a period of 20 years as against the private person and as against public functionary for over a period of 60 years. Mr. Abid S. Zubairi, learned counsel for ilu -''aintiff reluctantly concedes that it is not only the easementary rights that au> being pressed into service, the plaintiffs are pressing in service rights to enjoyment of life and property. He has relied upon a case of ArdeshirCowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others reported in (1999 SCMR 2882) (popularly known as 'Costal Liuma's case') at Page 2904, Apex Court with approval reproduced the following passage from W-.treaties on "Judicial Review of Administrative Action" (Fifth Edition) by de Smith, Woolf & Jowell:

"The general approach can be summarized as follows :--

(1) 'Sufficient interest' has to receive a generous interpretation. It has to be treated as a broad and flexible test.

(2) Only issues as to standing where the answer is obvious should be resolved on the application for leave. In other cases lack of standing should not prevent leave being granted.

(3) Issues as to standing at the leave stage do not depend on the remedy which is then being claimed.

(4) If the applicant has a special expertise in the subject-matter of the application that will be a factor in establishing sufficient interest. This applies whether the application is an individual or some type of association. The fact that the applicant's responsibility in relation to the subject of the application is recognized by statute is a strong indication of sufficient interest.

(5) A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community) environmental and cultural interests. The interests can be future or contingent.

(6) The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing.

(7) In deciding what, if any, remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant's interest. At this stage different remedies may require a different involvement by the applicant."

The above quoted passage from the well-known treaties indicates that the concept of locus standi has been whittled down inasmuch as the expression 'sufficient interest', inter alia, includes civic or (community) environmental and cultural interests.

The rights of life; property and business is guaranteed under the I Constitution, such rights can be enforced through Court of law. SLGO, 2001 and all other laws relating to the Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making. Such public functions and duties conferred on the functionaries of the District Government are to be exercised for the betterment of the Society at large. Under Section 54(g) of SLGO the District Municipal Administration besides other functions enumerated therein, is also required to regulate affixing of signboard and advertisement. Such powers and functions are to be exercised in consonance with the rules making power in terms of Sections 191 and 192 of the Ordinance thereof. Though the learned counsel argued that since no rules or bye-laws framed are under the Ordinance. According to him. even in absence of such bye-laws or rules the Executive functionaries are to discharge their function in accordance with mandate of law. Executive functionaries do not enjoy inherit or arbitrary powers to act at their whims and fancy. Indeed, no rules or bye-laws as mandated under the SLGO, 2001 have been framed. However, by virtue of Section 196 thereof, all rules, regulations, and bye-laws made under the predecessor law so far those are not inconsistent with the provisions of SLGO 2001 shall continue to be mforce until amended or varied by the competent authority. Mr. Salahuddin, learned counsel; however, states that under the Sindh People's Local Government Ordinance, 1972, Karachi Municipal Corporation (Advertisement) bye-laws 1978 were enforced and Defendant No. 2 is acting in accordance therewith. Section 191 of the Ordinance, 2001 do prescribe limitation for framing such rules, which are as follows :--

(a) consistency with democratic decentralization and subsidiarity ;

(b) enhancement of welfare of the people;

(c) fairness and clarity; and

(d) natural justice and due process of law.

Bye-law No. 7 of the Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978 dated 20,5.1979 provides as follows :

"7. (1) No advertisement or advertising device shall be placed in such manner as may cause a traffic hazard on a public street;

(2) No advertisement which is objectionable on social, ethical or moral grounds or is against public policy shall be displayed."

From the perusal of the above Bye-laws, it is abundantly clear that the advertisement is to be placed in such manner as it may not cause a traffic problem on a public street. Any advertisement that is objectionable on social, ethical or moral grounds or against public policy shall not be allowed to be displayed. Even sites for such advertisement neon-sign etc. are to be earmarked and invitation/offers for such site is to be invited through press. Under bye-laws, the Town Committee could allocate any site without inviting public offer only in case of prior concurrence of Government. In the instant case, there is nothing on record to show that any public offer was invited through press nor there is any material to show that any prior approval of the Government was obtained to allot the subject site without inviting of the public offer. Even at this juncture, for the sake of arguments, it is presumed that all above acts were carried out in accordance with above referred bye-laws then such bye-laws are subject to the limitation as prescribed under Section 191 of the Ordinance, 2001. One of the important requirement is natural justice and due process of law. By natural justice, it postulates invitation of the objections and hearing of all those persons who may be effected by such permission or fixation of the hoarding or neon-sign of the size subject-matter of the instant case. Apparently subject site was allotted without any invitation of offer through press, therefore, hearing of objection admittedly was not given.

Perpetual injunction is regulated under Section 54 of the Specific Relief Act, such injunction may be granted where it is shown that the defendant invades or threatens to invade the plaintiffs "right to enjoyment of property". Right to enjoy property is not simply a right to possess and occupy the property. By enjoyment of the property, it also includes the right to free ingress, and egress, right to reap benefit. One of the most important right which in this commercial world has acquired a significant importance is right of view or exposure to and from the particular property. More particularly when such property is of a commercial nature. People are more attracted towards the shops and establishment when it is exposed to the general view. Office premises may be more beneficially enjoyed in a multi-storeyed Buildings when it has an over view of scenaric landscaping of the city environment. Any invasion or encroachment of such right to enjoy the property was recognized as far back as in the case Campbell v. Mayor, Aldermen, and Councillors of the Metropolitan Borough of Paddington (1911) 1 King's Bench Division 869. In said case, plaintiff was in possession of a house in London from the windows of which there was an uninterrupted view of part of a certain main thoroughfare along which it was announced that a public procession of the Kings funeral was to pass. Plaintiff let out first and second floors of the house for view of the processions. The Metropolitan Borough erected a stand to accommodate the members of the Council and their friends to view the processions obstructing the view from the windows on the first floor of the plaintiffs house. Some more perspective viewers refused to hire the premises of the Plaintiff on account of such obstruction. Plaintiff brought a claim to recover damages for wrongful interference with the use and enjoyment of the house. Such claim for damages was allowed and maintained by the Appellate Court as well.

As far as the objections of learned counsel for the defendants that plaintiff has no right which could be enforced. In my humble opinion, Section 42 of the Specific Relief Act do give a right to institute a suit to any person who has (sic) Any right as to any property. As discussed above, such right read with Right of Enjoyment of a property as postulated under Section 54 of the Specific Relief Act do give such right to a Plaintiff who could establish that the right to view and exposure of his commercial establishment is of some beneficial interest to him. Right to life as has been expounded by the Hon'ble Supreme Court in Shela Zia's case reported in PLD 1994 SC 693 as approved in 'Costal Livina's case' in 1999 SCMR 2882 that Right to Life is not merely a vegetative living. Likewise, right to property or right to carry on business in a property are also recognized under the Constitution, 1973. Such right to property is not be interpreted in a narrow sense but must be given a broader perspective and meaning more particularly in present commercial environment where every bit of a commercial premises or establishment has its due importance and pecuniary benefit. Injunctive relief is also obtainable in case of invasion of civil right in the nature of Tort. A person seeking injunction must make out a case of actual or of threatened violation of its right. Reliance of learned counsel (1) Cawashah Bomanji Parakh v. Prafullah Nath (AIR 1941 Nagpur 364), (2) P.C.E. Paul v. W. Robson (AIR 1914 P.C. 45), (3) Ushabenv. Bhangyalazmi Chitra Mandir (AIR 1978 Gujrat 13), are of no avail. First two referred cases relates to nuisance and right to light under the Easement Act, last mentioned case relates to construction of building in residential area. Right of enjoyment of a property is independent right and if it is shown that the public functionaries acts in a manner as it may encroach upon a private right which may also be invasion of a public right than individual whose rights are encroached may bring an action against such invasion. "In the instant case, the manner in which the hoarding of the magnitude proposed to be installed is certainly to obstruct the view to and from the commercial establishment facing the main road and at the same time it will also be obstructing exposure of the frontage and elevation of their establishment. Defendant No. 3 may claim that they too have a right to carry on business, cannot be deprived of their right. When there is a clash of rights of two individual and private person then the right that first existed and matured would be preferred over the other. In instant case, it is right to enjoyment of property with all its easement, easement of necessity privileges, benefit both pecuniary and otherwise appurtenant thereto as discussed above, will have precedence over rights of Defendant No. 3, the Advertising Company. The subject Advertisement Board, if allowed to be affixed at the present site in the manner proposed, it will certainly effect the peaceful "enjoyment of the property" by the members of the Plaintiffs, therefore, prima facie case and balance of convenience under the circumstances leans in their favour. Under the facts and circumstances, it is directed that the proposed hoarding or the Advertisement Boards may be affixed at such height and in such manner as may not obstruct the view, vision and elevation of the plaintiffs' commercial establishment." It will be further examined at the trial as to whether the award and allocation of such site if at all were made in accordance with bye-laws as are claimed to be in force by the Saddar Town Council, the Defendant No. 2. The Applications in terms of the above, stand disposed of.

(M.Y.) Applications disposed of.

PLJ 2003 Karachi 168

Present: saiyed saeed ashhad, C.J.

NAZIMUDDIN-Applicant

versus M/s. THE BANK OF KHYBER and another-Respondents

C.T. Appln. No. 5 of 2003 and C.M.A. Nos. 305 & 669 of 2003, decided on 15.9.2003.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

—-S. 24-Transfer of suit from Banking Court to the High Court of Sindh-Both learned counsels conceded that the cause of action giving rise to two suits was one and the same and similar and identical questions and issues are involved for adjudication in both suits-Anxiety of Respondent Bank is that in one Suit evidence of applicant Respondent Bank has been recorded, cross-examination has been completed and the matter is now fixed for the evidence of bank's officers/representatives; whereas in second suit application for leave to defend the suit has not yet been decided and in view of the above, the Respondent bank is likely to suffer as consolidation of suits will result inordinate delay in disposal of suits—In first place, this is no ground for refusing permission for two identical suits between same parties before one and the same Court and secondly this situation can be brought to notice of the learned Judge on banking side of High Court and appropriate measures can be taken to ensure that suit of bank is not unnecessarily delayed or prolonged-With the above observations, transfer application is allowed. [Pp. 169 & 170] A

Mr. Saalim Salam Ansari,Advocate for Applicant. Mr. Arshad Tayebaly,Advocate for Respondent No. 1. Khawqja Muhammad Amir, Advocate for Respondent No.2. Date of hearing : 15.9.2003.

order

This transfer application has been moved on behalf of the applicant who filed a suit which is Suit No. B-20 of 2002 pending in the banking jurisdiction of this Court. This is a suit for Declaration (s), Permanent Injunction(s), Redemption/Release of Mortgage Property/Hypothecations/ Securities, Recovery of Excess paid amount of PKR 51,649,261/- only and US Dollars 209,850/- only with cost of fund of markup + cost(s) and consequential relief(s) under Section(s) 9 of the Financial Institutions (Recovery of Finances), Ordinance No. XLVI of 2001. The cause of action for the suit was the export refinance facilities granted by Respondent No. 1 to the applicant. In respect of the same export refinance facilities Respondent No. 1 has filed a suit being Suit No. 297/2001 for recovery of Rs. 48,959,776/- which is pending in Banking Court No. Ill, Karachi.

The contention of Mr. Saalim Salam Ansari, Advocate appearing oh behalf of the applicant is that the cause of action giving rise to the aforesaid suits is one and the same i.e. export refinance facilities granted by Respondent No. 1 to the applicant. It is the contention of the applicant that he had repaid the amount utilised by him in pursuance of the above export refinance facilities and as a matter of fact had made excess payment for which the suit had been filed. The contention of Mr. Arshad Tayebaly, Advocate appearing on behalf of respondent bank is that the funds utilised by the applicant under the aforesaid finance facilities have not been repaid, for the recovery of which the bank was forced to file the above suit.

Both the learned counsel conceded that the cause of action giving rise to the above two suits was one and the came and similar and identical questions and issues are involved for adjudication in both the above' suits. The anxiety of Mr. Arshad Tayebaly is that in Suit No. B-20 of 2002 evidence of applicant Nazimuddin has been recorded, cross-examination has been completed and the matter is now fixed for the evidence of bank's officers/representatives; whereas in Suit No. 297 of 2001 application for leave to defend the suit has not yet been decided and in view of the above, the respondent bank is likely to suffer as consolidation of suits will result in inordinate delay in disposal of the bank's suit. In the first place, this is no ground for refusing permission for two identical suits between the same parties before one and the same Court and secondly this situation can be brought to the notice of the learned Judge on the banking side of this Court and appropriate measures can be taken to ensure that the suit of the bank is not unnecessarily delayed or prolonged.

With the above observations, this transfer application is allowed. Suit No. 297 of 2001 pending in Banking Court No. Ill, Karachi stands transferred on the banking side of this Court to proceed alongwith suit No. B-20of2002.

(M.Y.) Application allowed.

PLJ 2003 Karachi 170 (DB)

Present: SABIHUDDIN ahmed AND S. ALI aslam jafri, JJ.

Mst. AMINA BIA & others-Petitioners

versus

KARACHI BUILDING CONTROL AUTHROITY KM.C., through its CHIEF CONTROLLER & others-Respondents

C.P. No. 3306 of 1993 and Misc. Nos. 5129/96 & 2206/94, decided on 31.1.2003.

Constitution of Pakistan (1973)--

—Art. 204-Contempt of Court-Show-cause under contempt of Court Act-Sections 3 and 5-Alleged contemnor is required to appear in person on next date of hearing and show-cause why action under Contempt of Court Act should not be taken against him for making a deliberately false statement in para-wise comments filed before High Court. [P. 171] A

Mr. Saalim Salam Ansari, Advocate for Petitioners. Mr. Rasheeduddin Ahmed, Advocate for Respondent No. 1. Mr. Suleman Habibullah Learned AAG. Date of hearing : 31.1.2003.

order

Mr. Saalim Salam Ansari learned counsel for the petitioner has contended that the order dated 7.3.1994 was obtained by fraud and misrepresentation inasmuch as the Respondent No. 1 in their parawise comments had clearly stated that they were helpless in performing their statutory duty on the ground that they have been restrained from demolishing the premises by interim order passed by VI Court of Senior

Civil Judge Karachi South, in Suit No. 1112/1993. Therefore since it was stated in Court that the injunction had since been vacated the petitioner in good faith believed that the Respondent No. 1 would now perform its duty ordained by law and therefore did not press the petition.

However, subsequently the petitioner came to know that the interim injunction had been vacated almost three months prior to the date of hearing in this Court and the contentions in the written statement to the effect that "the Respondent No. 1 is helpless due to status-quo-order" was false and

fraudulent.

In all fairness we are of the view that the petitioner might have withdrawn the petition tinder the bona-fide belief that the Respondent No. 1 was alive to and interested in performing its duty, and such believe was caused by a false statement, the order dated 7.3.1994 needs to be recalled and the case be decided on merits. This application is accordingly allowed.

1. The alleged contemnor is required to appear in person on the next date of hearing and show-cause why action under the Contempt of Court Act should not be taken against him for making a deliberately false statement in the parawise comments dated 7.3.1994 filed before this Court.

(M.Y.) Orders accordingly.

PLJ 2003 Karachi 171 (DB)

Present: SAiYED saeed ashhad, C.J. and S. ali aslam jafri, J.

TEXTILE PLAZA OWNERS ASSOCIATION-Petitioner

versus

KARACHI BUILDING CONTROL AUTHORITY-Respondent C. P. No. D-1813 of 2002, decided on 21.1.2003.

Sindh Regulation and Control(Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)--

—-S. 5-Sindh Buildings Control .Ordinance (V of 1979), S. 6-Constitutional petition-Notices petitioner to Association for removal of unauthorized construction by Karachi Building Control Authority-Seeking direction to respondent to receive its application for grant of permission to construct shed for car parking-Respondent made statement in writing that building in question had been constructed before enforcement of Sindh Building Control Ordinance, 1979; and if revised building plan for any fresh construction was filed by petitioner, same would be decided as per Rules and Regulations after demolition of present unauthorized construction as Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 did not provide for any relief in respect of new/fresh construction raised in violation of or without approved plan—Petitioner did not controvert such statement of respondent—Constitutional petition dismissed. [P. 174] A

Mr. Nisar A. Mujahid, Advocate for Petitioners. Mr. Shahid Jamiluddin Khan, Advocate for Respondent. Mr. Rashiduddin Ahmad Khan for Contemners. Date of hearing : 21.1.2003.

order

S. Ali Aslam Jafri, J.--The facts as disclosed in the petition are that petitioner Textile Plaza Owners Association (Ltd.) in September, 2002 moved an application before the respondents for authorization/grant of permission for raising artificial ACC sheds over RCC columns in open car parking space at car parking floi r of the building Jknown as "Textile Plaza" M.A. Jinnah Road, Karachi. According to the petitioner necessary documents and site plans as per requirements for the purpose including suitability report by the authorized engineer, etc., were also appended with the application, but the respondents refused to receive the said application on the ground that no record pertaining Textile Plaza was traceable. The petitioner wrote a letter to K.D.A. for supply of copies of necessary documents in respect whereof the respondents had regretted that there was no spare copy of the approved plan available in their file. On 25.10.1997 petitioner in response to a direction from respondents deposited requisite amount of Rs. 500 for supply of said copies, but despite several reminders the respondents failed to deliver the same. The petitioner made such complaints to the authority concerned from time to time but no attention was paid. Ultimately, the petitioner approached the Army Monitoring Cell, K.D.A. Building, Karachi, which borne fruit and the petitioner was informed that the file in question was not traceable in the K.B.C.A. Record Cell. Thus, it will be seen that the respondents took two contradictory stands so far availability of the said file is concerned. At one stage they said that file in question was "not traceable" whereas in their letter (Annexure 'C') they admitted the availability of the file in their office. Obviously it was being done with mala fide intentions.

1. It is the case of the petitioner that construction of the shed for parking of the vehicles is necessary for various reasons. At one hand it would provide protection to the owners of the vehicles which are parked in open whereas on the other hand it shall facilitate the smooth and unobstructed flow of the traffic on the road in front of Textile Plaza where there remains veiy short and narrow space available after parking of the cars. Instead of granting permission to raise such construction/shed over the RCC pillars which shall not be offensive to anybody, the respondents issued a notice to the petitioner on 26.4.2001 for removal of the pillars raised for the purpose of

parking shed on the plea that construction in open space is in violation of approved plan. The said notice was replied by the petitioner whereafter another notice dated 12.10.2002 was issued directing the petitioner to remove unauthorized construction of RCC columns at parking floor (2nd) in open space and thereafter the actual work of demolition was partially carried out. It was under these circumstances the petitioner filed this petition with a prayer, for issuance of a writ directing the respondents to receive the application of the petitioner alongwith its enclosure for grant of permission in order to provide appropriate indoor parking area at the available open vacant space of the Textile Plaza, and to decide the same on merits without any delay. A further prayer for a restraint order against the respondents from demolishing the already raised RCC columns has also been made. The petitioner has also prayed that notice dated 12.10,2002 be set aside and any other relief deemed fit and proper by the Court be granted. An application for interim relief pending the decision of the petition restraining the respondents from demolishing the constructed RCC columns was also filed.

1. In response to the notice, comments and counter-affidavit have been filed on behalf of the respondents stating therein that the building in question has been constructed before promulgation of Sindh Buildings Control Ordinance, 1979 and the record of approved building plan is not available/traceable in the office of the respondents. Photostat copy of NOC dated 2.6.1967 and approval letter dated 22.6.1977 have been placed on record in support of this contention. It has been further stated that construction of RCC columns in parking area at 2nd floor is without approval/permission and some illegally constructed RCC columns have been removed/damaged and many are still existing. However, it has been categorically stated that "the petitioner may submit revised building plan for any fresh construction which will be decided as per rules and regulation but Ordinance VIII of 2002 does not provide any relief in respect of regularization of new/fresh construction raised in violation of, or without approved plan". While opposing the prayer made by the petitioner, the respondents have prayed for a direction to the petitioner to remove unauthorized/illegal construction of RCC columns and then apply for revised building plan which will be considered in accordance with law.

2. It appears that by an order dated 22.10.2002 while issuing notice to respondents for 30.10.2002 the parties were directed to maintain status quo and Nazir was appointed as Commissioner to inspect the site at the earliest and submit his report. It further appears from the first report of the Nazir dated 29.10.2002 that he had to inspect the site and submit his report on 30.10.2002 as such he had fixed the date for inspection on 29.10.2002 at 2.00 p.m. but nobody appeared for the petitioner up to 2.45 p.m. in his office to take him to the site for inspection hence he was unable to inspect the site. However, he carried out the site inspection on 31.10.2002 in presence of the counsel for the petitioner and Assistant Controller of Buildings, Zone XI of KBCA, where he found eleven pillars of eight feet height intact and two pillars were found completely demolished and other two pillars partly damaged. On 6.11.2002 an application under Section 3/4 of the Contempt of Courts Act read with Order 39, Rule 2(3), C.P.C. was also filed on behalf of the petitioner alleging therein that after passing of an interim order by this Court, an officer of KBCA addressed a letter dated 28.10.2002 threatening demolition action. The said notice appeared to have been signed by Abdul Rehman Ansari, Deputy Controller of Buildings, hence the necessity had arisen to file such application. Notice of that application was issued for 21.10.2002 to Abdul Rehman Ansari to file his reply in writing and to appear in person on the next date. In response to the said notice Abdul Rehman Ansari appeared and sworn an affidavit stating that he had not signed the said notice and the same was signed by Deputy Controller of Buildings. Zahid Naeem, and initiated by one Mujahid Abbas. Messrs Zahid Naeem and Mujahid Abbas were directed to file duly sworn affidavits on the next date. A plea was taken that the order dated 22.10.2002 was received in the office of Chief Controller of Buildings on 26.10.2002 and in the office of concerned Deputy Controller on 29.10.2002 at about 4.30 p.m. It was, therefore, ordered that Chief Controller of Buildings or the officer concerned with the receipt and communication of Court Notice should file their affidavit and should remain present in Court on the next date of hearing. Affidavit of Subhan Baig. Upper Division Clerk of KBCA, was filed stating therein that he had received the notice dated 24.10.2002 on 26.10.2002. The next day was Sunday as such on 28.10.2002 he sent the said notice to legal section of KBCA. He denied to have disobeyed or violated the order of this Court.

3. Since the respondents have categorically made a statement in writing which is not controverted by the petitioner that the building in question viz. Textile Plaza'has been constructed before enforcement of Sindh Buildings Control Ordinance, 1979, and if a revised building plan for any fresh construction is filed by the petitioner it shall be decided as per rules and regulations after demolition of present unauthorized construction because Sindh Ordinance VIII of 2002 does not provide any relief in respect of new/fresh construction raised in violation of or without approved plan, we would, therefore, dismiss this petition in limine with an observation that petitioner shall be at liberty to avail the said offer made by the respondents who shall perform their statutoiy duties without creating unnecessary delay in the matter.

4. In view of the discussion made above and peculiar circumstances of the case, we also do not feel inclined to proceed further with the application under Section 3/4 of the Contempt of Courts Act 1976 read with Order 39, Rule 2(3) C.P.C. filed on behalf of the petitioner which also stands dismissed alongwith other listed application.

5. By a short order dated 21.1.2003 this petition was dismissed in liminealongwith the listed applications and these are the reasons for the same.

(T.A.F.) Petition dismissed.

PLJ 2003 Karachi 175

Present: S. ali ASLAM JAFRI, J.

Mst. SHAHANA KHAN-Petitioner

versus

Mst. KHALIDA PARVEEN-Respondent Revision Application No. 33 of 2002, decided on 14.4.2003.

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

—-Ss. 2(2), 96 & 100-Operative part of a judgment in civil suit or civil appeal-Appeal is to be filed against decree. [P. 180] B

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

—S. 115--Legal defect would result in dismissal of revision, unless exempted or time extended by Court to file same under circumstances of a particular case. [P. 180] A & C

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

—-S. US-Revision petition not filed with proper Court-fee under Section 3 of Court Fees Act, 1870-During specified time of 90 days would not be maintainable. [P. 180] D

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

—-O. XX, R. 6(2) & XLI, R. 35(3)-Non-preparation of decree in suit and appeal for a long time—Non-appehding memo, of costs at the time of preparation of such decree—Such course violative of statutory provisions of Appendix "D" to O.XX, R. 6(2) & O..XLI, R. 35(3), C.P.C. [P. 182] H & J

(v) Court Fees Act, 1870 (VII of 1870)--

—Ss. 4 & 6-Duty of Ministerial Officer of the Court to check suit or appeal in all respects before putting up same before Judge for admission or otherwise. [Pp. 181 & 182] G & I

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

—-Ss. 8 & 12-Qanun-e-Shahadat (10 of 1984), Arts. 17(2) & 117-Suit for possession-Agreement to sell-Proof-Plaintiff had denied execution of agreement to sell—Burden was, thus, lying on defendant to prove execution of agreement, which she had failed to discharge—Defendant was not party to agreement—Defendant's husband as D.W. had admitted not' to have filed suit for specific performance of agreement against plaintiff—Non-filing of suit for specific performance was a very important and relevant factor, which could not be ignored—Attesting witnesses of agreement had not been examined—View of Courts below that execution of alleged agreement by plaintiff was not proved, was unexceptionable- No right had, thus, accrued to the defendant's husband entitling him to alienate suit house by way of gift in her favour-Petition dismissed with costs. [Pp. 180 & 181] E & F S.

Abdul Waheed, Advocate for Petitioner. S. Muhammad Haider, Advocate for Respondent.

Dates of hearing : 14 £ 27.12.2002.

judgment

Being aggrieved of and dissatisfied with the judgment and decree dated 28.2.2001 and 17.3.2001 respectively passed by the learned Vth Senior Civil Judge, Karachi-West, decreeing Suit No. 223 of 1995 • filed by respondent/plaintiff Mst.Khalidu Parveen for possession, mesne profits and injunction in respect of Bungalow No. B-648, HajiFazal Town Sector 1, Sultanabad Society, Mangopir Road, Karachi, and the judgment/order dated 13.11.2001 passed in Civil Appeal No. 62 of 2001 by the learned IVth Additional District Judge, Karachi-West, dismissing the same (decree not filed with revision or thereafter); the applicant/defendant has filed this' revision application under Section 115, C.P.C. in order to assail the findings of the two Courts below.

1. The facts in brief relevant for the disposal of this revision application as pleaded by the parties appear to be that a suit for possession, mesne profits and injunction was filed by respondent/plaintiff Mst..Khalida Parveen stating therein that Bungalow No. B-648, HajiFazal Town, Sector 1, Sultanabad Society, Mangopir Road, Karachi, (hereinafter referred as "suit property") was purchased by her from Messrs M.Y. Corporation (Pvt.) Limited for a total sale consideration of Rs. 1,50,000 plus Rs. 60,000 being loan of House Building Finance Corporation and, as such, all the original title documents were lying deposited with the HBFC. Possession was delivered by the builder company to the plaintiff on 5.6.1993. According to the plaint, the parties to the suit viz. the plaintiff and the defendant had cordial relations being friends since their school days. Since the marriage of defendant was going to be performed with one Muhammad Farooq Khan hence she requested the plaintiff to allow her to reside in the suit property temporarily for some time which was lying vacant with an undertaking to vacate the same as and when desired and asked by the plaintiff. In view of such request and the longstanding friendly relations, defendant was allowed to occupy the suit property as a licensee. However, after some time on 27.1.1995 when plaintiff requested the defendant to vacate the suit property, the defendant became dishonest and refused to vacate the same. On 9.4.1995 plaintiffs husband made an application to the S.H.O. Mangopir who after necessary enquiry initiated proceedings under Section 107/117, Cr.P.C. against the defendant. However, since the defendant did not vacate the suit property hence the plaintiff filed Suit No. 223 of 1995 for the reliefs as mentioned in the plaint.

2. Written-statement was filed by the defendant denying the case of the plaintiff and stating therein that she has already filed Civil Suit No. 52 of 1995 in the Court of 1st Senior Civil Judge, Karachi-West, for declaration and permanent injunction hence the matter was subjudice and the suit filed by the present plaintiff could not proceed. Pleas regarding maintainability of suit and the same being bad for non-joinder of necessary parties were also raised It was also pleaded that actual value of the suit property was Rs. 2.10.000 hence the suit being valued at Rs. 1,60,000 was undervalued and proper Court-fee was not paid. Relations between the plaintiff and defendant as pleaded in the plaint were, however, not denied. Another plea was taken that plaintiff has already sold suit property to Muhammad Farooq Khan husband of the defendant through a sale agreement dated 31.5.1993 for a total sale consideration of Rs. 1,50,000 plus House Building loan amounting to Rs. 60,000 out of which Muhammad Farooq Khan has paid Rs. 40,000 to the plaintiff and he was put. in possession in part performance of the contract. The balance of the sale consideration amounting to Rs. 1,10,000 -was to be recovered by the plaintiff from Farooq Khan in twenty-two (22) equal installments of Rs. 5,000 each. It was further pleaded that copy of the provisional possession letter issued, by the builders to the plaintiff was also handed over to Farooq Khan by her and as per agreement, the plaintiff had recorded her no objection if the suit property was transferred/ mutated/gifted in the name of any other person by FArooq Khan. It is also the case of the defendant that Farooq Khan spent Rs. 48,000 on paints, electrical installations, sanitary works and other maintenance works and has orally gifted the suit property to defendant and such confirmation of oral gift though a declaration in writing was made on 7.6.1993 in presence of two witnesses. The defendant further pleaded that on 10.10.1993 and 7.1.1994 Farooq Khan has paid two installments of Rs. 25,000 and Rs. 15,000 each respectively to the plaintiff. Subsequently, Rs. 10,000 were demanded by the plaintiff in the month of August, 1994, but Farooq Khan could not arrange such payment in time due to an accident. However, when on 15.8.1994 defendant went to make such payment, plaintiff refused to receive the same and filed criminal proceedings against the applicant/defendant followed by, above referred, suit.

3. In view of the pleadings of the parties the learned trial Court framed the following six issues :

(1) Whether the defendant is the licensee of the plaintiff?

(2) Whether the plaintiff is entitled for possession of the Bungalow No. 648, Haji Fazal Town, Sector 1, Sultanabad Society, Manghopir Road, Karachi ?

(3) Whether the plaintiff is entitled to recover mesne profit at the rate of Rs. 2,000 per month from the defendant ?

(4) Whether the plaintiff has sold out the suit property to the husband of the defendant ?

(5) Whether the defendant is the owner of the suit property videdeclaration and confirmation of oral gift dated 7.6.1993 ?

(6) What should the decree be ?

1. In support of her case plaintiff examined herself and produced lease deed in her favour showing her title as Exh. P.2, original -letter of possession Exh. P.3 and its acceptance Exh. P.4, acknowledgment of possession Exh. P. 5, F.I.R. Exh. P. 6 and statements Exhs. P. 7 and 8, whereafter she closed her side. In rebuttal defendant examined herself and produced sale agreement in favour of Farooq Khan as Exh. P. 11, copy of possession letter in favour of Farooq Khan as Exh. P. 11, copy of possession letter in favour of plaintiff Exh. P. 12, an application allegedly made by Muhammad Qasim, Husband of plaintiff, to Mr. Munawar Suharwardy as Exh. P. 13. She also examined her husband D.Ws. Muhammad Farooq Khan and one Fakharuddin and thereafter closed her side.

2. After hearing the learned counsel for the parties learned trial Court decided Issues Nos. 1, 2 and 3 in "affirmative", Issue Nos. 4 and 5 as "not proved" while deciding Issue No. 6 suit was decreed in favour of the plaintiff. Appeal No. 62 of 2001 was filed by defendant in the Court of learned District Judge, Karachi-West, which was heard and dismissed on 13.11.2001 by the learned IVth Additional District Judge, Karachi-West, hence this revision.

3. In support of this revision application Mr. S. Abdul Waheed, learned counsel for the applicant/defendant, has argued that the two Courts below have riot appreciated the evidence of Jhe parties in accordance with the well-settled principles of law as laid down under the Qanun-e-Shahadat. The two Courts below have failed to appreciate that respondent/plaintiff did not examine any witness and, as such, there is no corroboration of her evidence. Learned counsel further argued that Muhammad Farooq, who is husband of the applicant/defendant, and the House Building Finance Corporation were not joined as defendants in the suit though Muhammad Farooq Khan has purchased the suit property from the respondent/plaintiff through a sale agreement executed in his favour by the respondent/plaintiff and that the suit property is admittedly mortgaged with HBFC, hence both were necessary parties and, as such, the suit was bad for non-joinder of proper and necessary parties. The main thrust of the arguments of learned counsel is that issues regarding maintainability of the suit, the suit being undervalued, non-payment of proper Court-fee, the suit being bad for misjoinder and non-joinder of necessary parties were also not framed by the learned trial Court though the said issues were necessary and essential for the purpose of decision of the suit on merits. Lastly it was argued that the findings of the two Courts below are based on misreading and non-reading of the evidence hence liable to be set aside. In support of his contentions, learned counsel has placed reliance on the cases of (1) Muslim Commercial Bank Ltd. and 2 others v. Muhammad Umar Malik PLD 1993 Lah. 281 and i2i Gul Muhammad Shah and another v. Shahak Dad 1993 CLC Quetta 1547 to show the revisional scope of this Court.

4. Mr. S. Muhammad Haider, learned counsel for the respondent/plaintiff, has argued that there are concurrent findings of the two Courts below and the same cannot be called in question through a revision application unless it is shown that the two Courts below either had no jurisdiction or failed to exercise the jurisdiction vested in them, or committed some illegality and material irregularity resulting in gross injustice while deciding the suit and the appeal. The fact that a different view of the evidence could be taken by the two Courts below is no ground for setting aside such findings in exercise of its revisional jurisdiction by this Court, unless the said findings are shown to be perverse, which according to the learned counsel is not the case here. On the point of non-joinder of proper or necessary parties learned counsel has argued that even otherwise neither any relief was claimed against HBFC nor Farooq Khan hence they cannot be deemed to be necessary parties. Moreover, he has referred to Order 1, Rule 9, C.P.C. which says that no suit shall be defeated for non­joinder of necessary parties. So far non-framing of issues, the learned counsel has argued that no such issue was suggested by the applicant/defendant in proposed issues filed before the trial Court. It is too late in the day to raise this ground in this revision application. Order XIV, Rule 5, C.P.C. is a complete reply to such type of objections as it is the duty of the concerned party to apply to the trial Court at the relevant time for recasting, refraining, addition or deletion of the issues. Even at the appellate stage no such attempt was made by the applicant/defendant and, as such, this plea cannot be taken at such belated stage. Learned counsel has referred to the evidence of the parties in order to show that evidence led by the respondent/plaintiff is natural and inspires confidence whereas the evidence adduced on behalf of the applicant/defendant is irrelevant and wroth no credence. In support of his contentions he has relied upon the cases of (1) Muhammad Amin v. Muhammad Yasin and another2002 CLC 231 to show that unless some illegality, infirmity or material irregularity is pointed out, concurrent judgments of the two Courts below are not to be disturbed. (2) Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 25C wherein the necessity of the calling of the two attesting witnesses in order to prove a document was under consideration and it was held that when both attesting witnesses of document in question were alive and were available but were not produced, in such case the two Courts below could not hold on the basis of evidence on record that execution of document in question was proved, and (3) Tanveer Mahboob v. Haroon and 12 others 2002 MLD 1901 where a Division Bench of this Court of which I was a member has held that non-examination of attesting witnesses or notary public before whom the two agreements were said to have been executed was fatal to the case of the party relying upon such documents and, as such, conclusion of Single Judge of this Court on original side to the effect that the two agreements relied upon by the appellant were collusive and fraudulent, was found unexceptionable.

5. 1 have heard the learned counsel for the parties and examined the martial placed on record as well as the cases cited by them. In order to appreciate the respective contentions of the learned counsel for the parties I had also sent for the R & P of the appeal and the civil suit from the two Courts below and have examined the same.

6. At the very outset I may observe that certified copy of the decree in appeal has not been filed alongwith this revision application and no reason has been shown in the memo, of revision application for not filing the same at the relevant time, or seeking exemption or extension of time, if the same was not prepared by the Appellate Court at the relevant time. A decree is the operative part of a judgment in a civil suit or civil appeal. Section 96, C:P.C. also provides that an appeal is to be filed against the decree. A revision application under Section 115, C.P.C. calling in question the judgment and decree passed in appeal without filing a copy of decree is a legal defect which may result in dismissal of the revision application unless exempted by the revisional Court or time extended to file the same'under the circumstances of a particular case.

7. There is another important point fatal to this revision application which cannot be ignored. From the perusal of the appeal file called from the Court of learned IVth Additional District Judge, Karachi-West, Court-fee ,pn appeal does not appear to have been paid by the defendant/applitfent. What I further find that this revision application even before this Court .was filed on 15.12.2001 without affixing any Court-fee and such objection was taken by the office whereafter Court-fee amounting to Rs. 4.800 which does not appear to be proper Qourt-fee, was paid on 16.1.2002 whereas the actual Court-fee paid by the plaintiff before the learned trial Court in view of the objection taken by applicant/defendant and order of the Court for making up the deficiency appears to be Rs: 7,580. This revision therefore, appears to have been filed with deficient Court-fee as such on this score as well it is not maintainable according to law having not been filed with proper Court-fee during the specified time of 90 days.

8. Coming to the merits of the case a careful scrutiny of the evidence adduced by the parties before the learned trial Court shows that admittedly the respondent/plaintiff has purchased the suit property from Messrs M.Y. Corporation and, as such, her ownership to that extent is not disputed. Even the defendant/applicant is also claiming the suit property through the respondent/plaintiff who has allegedly sold the same to Muhammad Farooq Khan husband of the defendant/applicant through an agreement to sell and Muhammad Farooq Khan on his part has gifted the same to the applicant/defendant being his wife. However, the moot point to be considered in view of the denial of execution of any such agreement by the plaintiff/respondent and admittedly non-filing a suit for specific performance of the contract by Farooq Khan so far, would be whether any such agreement was executed by the respondent/plaintiff in favour of Muhammad Farooq Khan. In view of the denial by the plaintiff/respondent the burden lies upon the applicant/defendant who has miserably failed to discharge the same. In the first instance the applicant/defendant is not a part)' to such agreement and she is not even an attesting witness of the same. Muhammad Farooq Khan who was examined as a witness in his evidence has admitted that he has not filed a suit for specific performance of the contract against the plaintiff/respondent Furthermore, in order to, prove the execution of the said document, even the attesting witnesses of the said agreement were not examined. Under these circumstances, the alleged sale agreement remained unproved and, as such, the view taken by the two Courts below that the alleged agreement of sale is not proved to have been executed by the plaintiff is unexceptionable and no right appears to have been created in favour of said Muhammad Farooq Khan so as to entitle him to alienate the suit property by way of a gift in favour of his wife viz. the applicant/defendant. Appraisal of the evidence on record by the two Courts below does not appear to be suffering from any illegality or material irregularity. The other witness namely Fakharuddin is also not a witness of the alleged transaction between Muhammad Farooq Khan and the respondent/plaintiff. Non-filing of the suit for specific performance is a very important and relevant factor, which cannot be ignored under the circumstances of the case.

9. So far the suit being undervalued for the purpose of valuation and Court-fee the contention is devoid of any force. Perusal of the record shows that an application under Order VII, Rule 11, f.P.C. was filed on behalf of the defendant before the trail Court on the same plea and by an order dated 18.11.1996 time was granted to the plaintiff/respondent to make up the deficiency in the Court-fee by treating the value of the suit to be Rs. 2,10,400 instead of Rs. 1,60,400. The case diary, dated 28.11.1996 shows that such deficiency was made up by the plaintiff/respondent. As a result of discussion made above this revision application merits no consideration and it is dismissed accordingly with costs.

10. Before parting with this judgment I would like to observe that rules and procedure as laid down under the relevant provisions of Court Fees Act, 1870, are not being followed by the lower Courts while entertaining suits and appeals, so also the provisions of Order XX, Rule 6 and Order XLI, Rule 35 are being ignored at the time of preparation of decrees in suits and appeals. From the perusal of the file of the appeal as already observed above it does not appear whether any Court-fee was paid on the memo, of appeal though it is the duty of Chief Ministerial Officer of the concerned Court to check the suit or appeal in all respects before putting up the same before the concerned Judge/Presiding Officer for admission or otherwise. The note prepared by the concerned Chief Ministerial Officer does not show as to whether any such objection was taken by him regarding non­payment of Court-fee by the appellant on the memorandum of appeal. What is more astonishing to note that the decree in the appeal was not prepared for a long time and furthermore the memo, of costs has not been appended to it as required under Order XLI, Rule 35, C.P.C., so is the case with the decree prepared by the trial Court which is in violation of the statutory provisions of Appendix ' D" to Order XX, Rule 6(2), C.P.C., Order XX, Rule 6(2), C.P.C. and Order XLI, Rule 35(3), C.P.C. are reproduced below for ready reference :-

"Order XX, Rule 6f2)--'The decree shall also state the amount of costs incurred in the suit, arid by whom or out of what property and in what proportions such costs are to be paid.

Order XLI, Rule 35(3)-The decree shall also state the amount of costs incurred in the appeal, and by whom, or orit of what property, and in what proportions such costs and the costs in the suit are to be paid."

1. Rule 188, Chapter XII of the Sindh Civil Courts Rules 1947 also does not appear to have been followed. All concerned are expected to be careful and vigilant enough in future while performing their duties. The learned IVth Additional district Judge, Karachi-West, is directed to examine arid check the office record and if it is found that no Court-fee at all or deficient Court-fee was paid on appeal by the applicant/defendant provisions of Section 12 of the Court Fees Act should be invoked and disciplinary action against the concerned officials should also be taken as per rules under intimation to the Registrar of this Court. Deputy Registrar of this Court should also be careful in future to see that proper Court-fee has been calculated and affixed by the appellants/applicants on memorandum of appeals, revisions, etc. as the case may be.

(M.Y.) Petition dismissed.

PLJ 2003 Karachi 183

Present: ATTA-UR-REHMAN, J.

Mst. NAZIRA BIBI-Petitioner

versus

VTH ADDITIONAL DISTRICT JUDGE, KARACHI EAST and 2 others—Respondents

C.P. No. 618 of 2002, decided on 24.10.2002. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-S. 15--Tenant-Ejectment of-Prayer for-Application for ejectment was filed by landlady through her son as attorney and she also thumb-marked the same-Attorney was co-owner and had stepped into witness-box to lead evidence on behalf of his mother-Rent Controller dismissed the application being incompetently filed and the order passed by the Rent Controller was maintained by the Appellate Court-Tenant had not suggested in the cross-examination that either the power of attorney was forged or the landlady had deliberately and with mala fide intention failed to appear in the Court and/or that the power of attorney was used to file false case on behalf of the landlady/mother-Held: Courts below having not discussed the merits of the case there was no reason to hold that the application as filed by the landlady was not maintainable—High Court set aside the orders passed by the Courts below and remanded the case to Rent Controller for deciding the same on merits after hearing the parties. [P. 185] A

2001 SC 238 and 1998 SCMR 2525 ref.

Mr. Abdul Aziz Khan, Assisted by Abdul Qadir, Advocate for Petitioner.

Mr. S.A. Ghaffar, Advocate for Respondents. Date of hearing: 24.10.2002.

order

This petition arises out of the order dated 21.1.2002, whereby the learned Vth Additional District Judge, Karachi East, dismissed F.R.A. No. 123 of 2000, preferred against the judgment dated 27.5.2000, passed by the learned VIII Rent Controller, Karachi East dismissing the Rent Case No. 217 of 1999 of the petitioner, filed under Section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the SRPO) on the ground of his personal bona fide requirement.

1. The rent case was filed before the learned Rent Controller through the attorney/son of the petitioner, although the same was thumb-marked by her/landlady besides, signing it by the attorney.

2. The respondent contested the proceedings by filing written statement.

3. The trial Court framed the following issues :--

(1) Whether the ejectment application as filed is maintainable under law ?

(2) Whether the applicant is entitled to get the opponent ejected under the provisions of Section 14 of the Sindh Rented Premises Ordinance, 1979.

(3) What should the order be ?

1. The attorney examined himself on behalf of the petitioner and closed the side. While Respondent No. 3 examined himself. Thereafter the learned trial Court dismissed the rent application, holding that the rent case was filed by the attorney who was not authorized to do so under Section 14 of the SRPO. It has also been observed that the attorney is co-owner and had stepped into witness-box to lead evidence on behalf of his mother. It further went to observe that no doubt law permitted that the applicant can produce/lead her evidence through attorney, but the ejectment application has to be filed by the specified class of a person by themselves and not through attorney. In the instant case the ejectment application is filed through the attorney.

2. The "Appellate Court maintained the above finding of the learned trial Cotirt relying upon the case-law reported as Mehmood Alam v. Tehseen Asghar PLD 2001SC 238.

3. I have heard the learned counsel for the parties and examined the record, copies of which have been procfuced alongwith the petition. A perusal of the rent application under Section 14 of the SRPO shows that it had been filed by the landlady through her attorney and son Muhammad Nawaz. It is signed by the attorney and thumb-marked by her as well. In the circumstances, the trial Court was not justified in holding that the application was not filed by the petitioner but by her attorney. It is however, correct that at the time of evidence her attorney entered into witness-box and not the landlady.

4. Learned counsel for the petitioner drew my attention to the case- law reported as Syed Abdul Raufv. Abdul Sattar 1998 SCMR 2525 wherein while dealing with the similar question, the Honourable Supreme Court in para. 6 observed that the applicant cannot be non-suited for the reasons that for some reason, he or she was incapable to appear in Court in person. The relevant portion of the judgment reads as under :--

5. The Courts are meant for the citizens from where they seek justice and, therefore, to put a clog or non-suit them on account of non-appearance even in genuine cases without any valid and cogent reasons would be a dangerous proposition for administering justice with even hands between the parties. In our opinion, it will not be in the interest of justice to lay'down that in every case where a party does not appear or arranges his appearance through attorney, an adverse inference should be drawn against him. Such a rule if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney."

6. In the present case, it has not been suggested by the respondent in the cross-examination that either the power of attorney is forged or the landlady deliberately and with mala fide failed to appear in Court, and or that the power of attorney is used to file false case on behalf of the landlady/mother.

7. Perusal of the judgment shows that neither Courts below discussed the merits of the case. There is no reason to hold that the rent application as filed by the petitioner is not maintainable.

8. The only resolution is to remand the matter to the trial Court for deciding the case on merits after hearing of both the parties.

9. The petition is heard at full length at Katcha Peshi stage. For reasons stated above the same is admitted to regular hearing and allowed. Consequently, the impugned orders are set aside and the matter is remanded to the trial Court for adjudication on merits after hearing both the parties.

(M.Y.) Case remanded.

PLJ 2003 Karachi 185 (DB)

Present: muhammad roshan essani and khilji arif HUSSAIN, JJ.

AghaFAKHRUDDIN KHAN-Appellant

versus Messrs RUBY RICE AND GENERAL MILLS-Respondent

High Court Appeal No. 1.1 of 2000, decided on 10.4.2003.

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

—-O. XXI, R. 85-Law Reforms Ordinance, 1972 (XII of 1972), S. 3-Sale in execution, setting aside of-Failure to deposit auction money-Appellants, in spite of extension of time by High Court for the payment of balance amount, failed to pay the same-Bid of appellant was accepted conditionally but he failed to fulfil the conditions, therefore, High Court recalled the bid and directed the official liquidator to re-advertise sale of the property-Plea raised by the appellant in the Intra-Court appeal was that after acceptance of bid, the appellant had acquired right in the property—Validity—Bid having been accepted conditionally and the appellant having failed to fulfil the conditions the appellant had not acquired any right or interest in the property so as to question the order passed by High Court—High Court, in ICA declined to interfere. [P. 188 & 189] A & C PLD 1953Lah. SSref.

(ii) Practice and Procedure-

—Previous order was passed in presence of appellant and next date was fixed by the Court-Counsel for the appellant was on general adjournment before the next date of hearing, therefore, office did not list the case in the cause list-Effect-Previous order having been passed in presence of the appellant, it was his duty to be present in the Court on the date fixed by Court, even if the case had not appeared in the cause list. [P. 189] B

Mr. Rashid Akhtar Qureshi, Advocate for Appellant. Mr. S.I.H. Zaidi, Advocate for Respondents. Mr. Bashir Ahmad Memon, Official Assignee. Date of hearing : 10.4.2003.

judgment

Khilji Arif Hussain, J.--The appellant filed appeal against the order dated 24.12.1999 whereby reference of the official assignee dated 24.12.1999 was considered by the learned Single Judge and after hearing the official liquidator passed following order :--

"On 21.12.1999, this Reference had come up for consideration when the matter was directed to be put up for today. I am informed by the learned Official Liquidator that the auction purchaser has failed to deposit the sum of Rs. 3,80,000 and to furnish security for the amount of Rs. 4,320,000 by 23.12.1999 accepting the bid of Agha Fakhruddin Khan Babar for purchase of Ruby Rice and General Mills Limited is recalled and the amount of Rs. 1,00,000 deposited by him is ordered to be forfeited. The learned Official Liquidator shall re-advertise sale of the above property and may also get in tough with the second highest bidder to ascertain his interest for purchase of the property. It may be noted that the auction purchaser Agha Fakhurddin Khan Babar is called absent despite having been notified the date of hearing. The time now is 11-10 a.m."

Brief facts for the purpose of appeal are that the appellant submitted offer for the purchase of M/s. Ruby Rice and General Mills Limited vide his offer dated 18.4.1999. The said offer contained two proposals in the first one, appellant proposed to purchase the premises in a sum of rupees fifty lacs out of which rupees ten lacs was to be paid at the time of handing over the possession with one year grace period then second installment of rupees twenty lacs in the year 2001 and final installement in the year 2002 and in the second proposal, the appellant offered to purchase premises in a total consideration of rupees forty lacs payable within three to six months after confirmation. The matter thereafter listed in the Court for consideration of official assginee's reference dated 6.5.1999 but the offer of the appellant was not accepted and parties were directed to appear before the official assignee to improve their offers. It appears from the record that official assignee submitted reference dated 6.10.1999 informing the Court that appellant has improved the bid from Rs. 4 Million to Rs. 4.8 Million and by order dated 25.10.1999 offer of the appellant for the purchase of the property was accepted on the undertaking of the appellant, to deposit an additional amount of Rs. 3,40,000 within 15 days from the date of the order. It was further ordered that for the balance amount the appellant will submit solvent security within the same period of 15 days and entire balance amount shall be deposited with the official assignee within three months from the date of order whereafter possession of the mills was to be handed over to the appellant subject to fulfilling other formalities. The appellant failed to deposit the balance amount within stipulated period of time. The official assignee submitted a reference dated 7.12.1999 for orders as the appellant failed to deposit Rs. 3,80,000 within 15 days from the date of confirmation of his offer and further failed to furnish solvent security for the amount of Rs. 43,20,000. The said reference came up for consideration before the learned Single Judge and after hearing the appellant vide order dated 21.12.1999 the learned Single Judge ordered that as a last hence the appellant is permitted to deposit a ;sum of Rs. 3,80,000 and to furnish security for the balance of a sum of Rs. 43,20,000 on or before 23.12.1999. The learned Single Judge further ordered that in case auction purchaser/appellant failed to do the needful then the matter will be taken up on 24.12.1999 to consider recall of confirmation of sale and forfeiture of amount deposited. On 24.12.1999 the matter was placed before the learned Single Judge who passed the order as under :--

"On 21-12-1999, this Reference had come up for consideration when the matter was directed to be put up for today. I am informed by the learned Official Liquidator that the auction purchaser has failed to deposit the sum of Rs. 3,80,000 and to furnish security. In the circumstances, the order, dated 25.10.1999 accepting the bid of Agha Fakhruddin Khan Babar for purchase of Ruby Rice and General Mills Limited is recalled and the amount of Rs. 1,00,000 deposited by him is ordered to be forfeited. The learned Official Liquidator shall re-advertise sale of the above property and may also be in touch with the second highest bidder to ascertain his interest for purchase of the property. It may be noted that the auction purchaser Agha Fakhruddin Khan Babar is called absent despite having been notified the date of hearing. The time now is 11-10 a.m.

I am informed that this matter was not notified in the daily cause list on account of grant of general adjournment to Mr. Mansoorul Arfin from 15th December, 1999 without exception. Notwithstanding the above, the Reference of the learned Official Liquidator dated 7.12,1999 had come up in Court on 21.12.1999 and order was passed thereon. Consequently, the office should not have taken this matter out of the list. Further, I cannot refrain from expressing my doubt about general adjournment through Administrative Order superseding orders passed on Judicial side fixing actual date of hearing in a matter. Let the office be careful in future."

Heard Mr. Rashid Akhtar Qureshi learned Advocate for the appellant, Mr. S. I. H. Zai.di for the respondent and Mr. Bashir Ahmed Memon, Official Assignee. The learned Advocate for the appellant mainly contended that since Mr. Mansoorul Arfin learned Advocate, who was appearing for the petitioner, was on general adjournment and matter was discharged as per cause list, the learned Single Judge ought to have not passed order on the said date and as such the order passed by the learned Single Judge is liable to be set aside.

We have gone through the record as well as considered the arguments advanced by the learned Advocates and we are afraid that contention of the learned Advocates have any force. It is an admitted position that the auction was confirmed in favour of the appellant subject to deposit a sum of Rs. 3,80,000 within 15 days from the date of the order and furnish solvent security within the same period of time for the balance of Rs. 4,320,000 to be paid within three months from the date of the order. It is also an admitted position that in spite of extension of time by the learned Single Judge for the payment of balance amount the appellant failed to pay the same. In our opinion as the bid of the appellant was accepted conditionally and the appellant admittedly failed to fulfil the conditions the appellant has not acquired any right or interest in the property so as to question the order passed by the learned Single Judge.

In the case of FerozeDin Faiz v. Chaman Lai and others PLD 1953 Lah. 83, Mr. M. R. Kayani, J. (as he then was) held that sale in execution of a decree does not require to be set aside if the purchaser fails to pay the full amount of purchase money within fifteen days.

The order dated 24.12.1999 was passed in presence of appellant and it was the duty of the appellant to be present in a Court on the date fixed by the Court, even if the case has not appeared in the cause list.

These are the detailed reasons of our short order dated 10-4-2003, whereby tha appeal was dismissed.

(M.Y.) Appeal dismissed.

PLJ 2003 Karachi 189

Present:S. ali ASLAM JAFRI, J.

Mst. KHALIDA FAROOQ-Petitioner

versus

Mst. MARIAM YOUSUF-Respondent C.P. No. S-963 of 2002, decided on 5.4.2003.

(i) Constitution of Pakistan (1973)--

—-Art. 199-Where, in appropriate cases, it is shown that determination of Tribunal is erroneous on the point of law, arbitrary or result of non- reading of material on record, High Court can exercise its jurisdiction under Art. 199 of the Constitution. [P. 194] B

(ii) Constitution of Pakistan (1973)--

—Art. 199—Where Tribunal makes an error of law in deciding matter before it, such matter goes outside the jurisdiction of the Tribunal and, therefore, determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under Constitutional jurisdiction on the ground that the same is in excess of its jurisdiction. [P. 194] A PLD 1974 SC 139 and 1974 SCMR 530 ref

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

-—S. 15-Tenant-Ejectment of-Prayer for-Tenant agreed to pay enhanced rent but the landlady declined to accept the same and stated before High Court that the demised shop was required by her for personal bona fide use by her husband—Landlady showed before High Court, her willingness to pay Rs. 3,00,000 to the tenant on account of security deposit and payment of electricity charges etc. though she was not liable to pay anything in excess to the amount of security deposit—Held : Landlady had no intention to re-let the demised shop to anybody else or to its use for purpose other than that for which she wanted to eject the tenant-High Court in exercise of Constitutional jurisdiction set aside the judgment passed by Appellate Court and passed eviction order against the tenant in circumstances. [P. 195] C, D & E

PLD 1981 SC 246; 2000 MLD 695; 2001 PLC 325; 2003 YLR 226 and

PLD 1987 SC 447 ref.

Mr. S.M. Afzal and Tughral Khan Yousuf Zai, Advocates for Petitioner.

Mr. S. Fazalur Rehman, Advocate for Respondent. Dates of hearing : 20.1.2003, 3, 17.2.2003 & 31.3.2003.

judgment

Judgment, dated 23.7.2002 passed by the learned District Judge, Karachi-East, allowing Rent Appeal No. 662 of 2001 (Mst. Mariam Yousuf v. Mst. Khalida Farooq) filed by the tenant and thereby setting aside the ejectment order, dated 10th October, 2001 passed by the learned Vth Rent Controller, Karachi-East, in Rent Case No. 732 of 1998, has been called in question through this Constitutional petition.

The facts in brief are that shop Bearing No. 5, Shadman Arcade, Sir Syed Road, P.E.C.H.S., Karachi, (hereinafter referred as the "demised shop") was let out by landlady Mst.Khalida Farooq to Mst. Mariam Yousuf initially at the rate of Rs. 16,000 per month somewhere in 1994, which was subsequently enhanced to Rs. 18,000 per month. After about four years landlady filed an application for ejectment of the tenant mainly on the ground of personal bona fide need as her husband desired to start his own business in the said shop and no other place was available for him for the said purpose, whereas the tenant and her sons have other places of business in Karachi such as."Usmania Sweet Mart" and "Usman Jewellers".

Written statement was filed by the tenant stating therein that initially the rent as settled was Rs. 16,000 per month which was. subsequently enhanced to Rs. 18,000 per month in view of the demand of the landlady. It was further stated that rent was paid up to December, 1998 at the said enhanced rent whereafter the landlady again started pressing for enhanced rent at the rate of Rs. 20,000 per month which was declined by the tenant. Since the landlady refused to accept the rent at the settled rate of Rs. 18,000 per month, hence the tenant started depositing the same in Court by filing M.R.C. No. 834 of 1998. It was denied that the demised shop was required by the landlady for bona fide personal need of her husband or that any such requests were ever made by her on that ground. According to the tenant a fake ground has been set up by the landlady to get the demise,d shop vacated as the request for the enhancement in rent was refused by the tenant. It was further stated that, in fact, the landlady and her husband were carrying on their business in the demised shop before letting out the same to the tenant, but it was given up and abandoned in the year 1994 as the husband of the landlady was unable to run and manage the said business. It was further pleaded that fixtures and furniture with huge investment for improvement of the business were made by the tenant. It was also pleaded that the tenant has also made other payments to the landlady such as security deposit amounting to Rs. 2,03,500 (Rupees two lac three thousand five hundred). It was further stated that the landlady had committed default in making payment of the electricity bills and tax to the Excise and Taxation Department for which notice was served upon the tenant who has paid the electricity dues amounting to Rs. 25,000 on 29.11.1994 and Rs. 11,887 and Rs. 7,598 respectively on behalf of the landlady.

In support of her case landlady examined herself and her husband Muhammad Farooq whereas the tenant examined her husband and attorney Haji Muhammad Yousuf and her son Muhammad Ashraf who appears to have been running the business on behalf of his mother Mst. Mariam Yousuf. After evaluating the evidence on record, the only point for determination "whether the applicant required the premises in question for bona fide need for her husband in good faith ?", was replied by the learned Rent Controller in affirmative and application for ejectment was allowed directing the tenant to hand over the vacant and peaceful possession of the demised shop to the landlady within 60 days from the date of order.

Rent Appeal No. 662 of 2001 was filed by the tenant in the Court of learned District Judge, Karachi-East, which was allowed and the ejectment order passed by the learned Rent Controller was set aside resulting in dismissal of the ejectment application. The petitioner/landlady wants to assail the said judgment through this Constitutional petition.

I have heard Messrs S.M. Afzal, Advocate for the petitioner/landlady, and Mr. S. Fazalur Rehman, Advocate for Respondent

No. I/tenant.

Contention of the learned counsel for the petitioner/landlady is that the learned District Judge/Appellate Court has failed to take into consideration the personal bona fide need of the landlady and the evidence adduced on her behalf has been ignored without any lawful justification. The main thrust of the arguments of learned counsel for the petitioner/landlady is that Muhammad Yousuf who is husband and attorney of the tenant, as well as her son Muhammad Ashraf who appears to be running the business on behalf of his mother had agreed and showed their willingness to vacate the demised shop subject to certain conditions, as is evident from their statements in cross-examination conducted on 9.1.2001, and the said admissions were given due weight by the learned Rent Controller, but the learned Appellate Court has discarded the same in an arbitrary manner. The learned counsel further argued that in view of various precedents from the High Courts and apex Court a landlord or landlady is not required to prove which business he/she shall do or from where the finances will be arranged for such business, hence that said ground cannot be made a basis for rejecting the ejectment application filed on the ground of personal bona fide need/requirement.

Learned counsel further argued that the learned Appellate Court has travelled beyond its jurisdiction while referring to certain documents referring to bank loan although the said documents were not exhibited at the trial stage. It was vehemently denied that landlady was going to sale the demised shop to one Saleem for Rs. 30,00,000. He further argued that it has been admitted on behalf of tenant/Respondent No. 1 in cross-examination that she has already two shops viz. "Usman Jewellers" and "Usmania Sweet Mart" whereas admittedly the petitioner/landlady has no other accommodation for the purpose of doing business by her husband. The learned counsel for the petitioner while denying the demand of higher rent has argued that even if it would have been so, it would not negate the bona fide requirement of a landlord. The learned counsel in support of his contentions has placed reliance on the cases of (1) Habib Bank Limited v. Anis Ahmad and 7 others 2001 SCMR 981 and (2) M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 and on the ground of personal bona fide requirement, he has relied upon the cases of (1) AgariaAmir Ali v. Abdul Majid 1993 SCMR 67, (2) Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559 and (3) Muhammad Aziz v. Mst. AzmatBegum PLD 2000 Kar. 41. So far the admission of tenant made in cross-examination and its effect reliance has been placed on the case of Abdul Rashid v. Baboo through his legal Heirs 2002 SCMR 168.

Mr. S. Fazalur Rehman, learned counsel for Respondent No. 1, has argued that the petitioner/landlady has failed to establish her bona fide personal requirement and use of the demised shop by her husband. He has referred to the statements of the landlady and her husband who in their cross-examination have admitted that before letting out the demised shop to Respondent No. I/tenant, husband of the petitioner was doing his business which was closed and shop was let out to the respondent/tenant. He further argued that it has been admitted by the landlady and her husband that- they had obtained a loan of about Rs. 2,50,000 from the Habib Bank by mortgaging the shop in question and they have not been able to repay the loan and they were negotiating to sale the shop to one Saleem for Rs. 30,00,000 but bargain has not been finalized. Copy of the judgment and decree in the suit filed by Messrs Habib Bank Limited against the landlady (Civil Suit No. 142 of 1999) was also placed on record to show the failure to repay the loan. Learned counsel has further argued that it has not been shown as to what business the husband of the landlady wanted to start after having abandoned the business about four years prior to the filing of the ejectment application. It was, thus, vehemently urged that the alleged need and requirement is neither bona fide nor genuine. With reference to the admissions made by son of the tenant in his cross-examination showing willingness to vacate the premises within a period of one year and subject to return of Rs. 3,00,000 being the amount of security deposit and payment of certain utility bills on behalf of the landlady, the learned counsel has argued that the view taken by the Appellate Court is just and reasonable and such willingness on the part of a young -nan appeared to be due to close relationship between the parties which is not disputed and furthermore such willingness expressed by the son of the tenant is not binding upon her as he was not even attorney of his mother viz. the tenant.

So far the maintainability of this Constitutional petition is concerned, Mr. S. Fazalur Rehman has argued that the Legislature in its wisdom did not provide any provision for revision or second appeal and, as such, a Constitutional petition is not maintainable. He further argued that a forum having jurisdiction to decide a dispute is competent to decide the same either rightly or wrongly and it cannot be called in question in a Constitutional petition. In support of his contention learned counsel has referred to the cases of (1) Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246, (2) Noor Ali and others v. Mst. Saycda Parvcen Iqbal and others 2000 MLD 695, (3) Mst. Huma and another i'. Muhammad Ashfaque. and others 2001 PLC 325 and (4) Suleman Mala and others u. Khawaja Muhammad Ramzan and others SBLR 2002 Sindh 149S.

Mr. S.M. Afzal, Advocate in rebuttal has argued that the earlier view that a Tribunal having jurisdiction has powers to decide a case rightly or wrongly is no more a good law in view of rule laid down by the Honourable Supreme Court in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447. He has further argued that indeed Constitutional jurisdiction of this Court is not a substitute of appellate or revisional jurisdiction, but in appropriate cases, this Court is competent to pass appropriate orders and to set aside, modify, or quash the impugned orders/judgments.

In order to appreciate the contentions of the learned counsel for the parties, I have given due consideration to their arguments, and with their able assistance have examined the pleadings of the parties, evidence on record and the two judgments passed by the two Courts below. I have also gone through the case-law cited at bar in support of the respective contentions.

There is no cavil with the proposition that Constitutional jurisdiction of this Court is not an alternate of a second appeal or revision. It is also well-settled that if a Court or Tribunal has the jurisdiction to decide certain issue, the discretion so vested in it should be exercised in accordance with the settled principles of law. The view expressed in the case of Muhammad Sharif (supra) is no more a good law. in view of the rule laid down by the Honourable Supreme Court in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 wherein it has been held with reference to the cases of Muhammad Hussain Mumr PLD 1974 SC 139 and Zulfiqar Khan Awan1974 SCMR 530 as under.

"It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has jurisdiction to decide i1 'rightly or wrongly' because the condition of the grant of jurisdictior is that it should decide the matter in accordance with law when the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."

It has been further held by the Honourable apex Court as under:

"It need hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, it is right of every individual to be dealt with in accordance with law where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out."

Thus, it will be seen that High Court in appropriate cases where it is shown that determination of the Tribunal is erroneous on the point of law, arbitraiy or result of non-reading of the material on record can exercise its jurisdiction under Article 199 of the Constitution of Pakistan. Each case has to be examined keeping in view the said rule more particularly when the Legislature in its own wisdom has decided not to give a right of second appeal or revision under a particular statute. Occasions may arise when the two Courts/Tribunals below or the First Appellate Court/Authority may have acted illegally, without jurisdiction, or committed gross illegality in reading the evidence or interpreted the same against the well-settled' principles of law. In the instant case the findings of the two Courts below are not concurrent. The learned Rent Controller has passed the ejectment order while holding that the demised shop was required by the landlady for personal bonq fide requirement of running business by her husband, particularly coupled with the willingness of the attorney of the tenant as well as her son as disclosed in their cross-examination that they were ready to vacate the demised premises within one year time subject to return of Rs. 3,00,000 which was obtained by the landlady from the tenant on account of security deposit, and payment of certain utility bills by the tenant on behalf of the landlady. The learned Appellate Court while allowing the appeal has observed that "merely because appellant's son in his cross-examination had shown willingness to vacate the premises, it cannot be said that personal need of respondent had been established" and "such willingness on the part of the young man expressed by him in cross-examination appears due to the close (sic) Appellate Court further observed that appellant could not be bound for such type of willingness by her son as there is nothing to show that he was authorized to do so as he was not her attorney. It was rightly pointed out by Mr. S.M. Afzal, learned counsel for the petitioner/landlady, that apart from the above-referred evidence of the son of the tenant showing willingness to vacate the demised shop, the attorney/husband of the tenant Mst.Maryam Yousif in his cross- "examination has also stated that he was ready to vacate the demised shop, subject to conditions stated therein. The relevant part of his evidence is as under:

"If the applicant gives in writing that the premises in question is x required for herself for doing the business personally and if he intend to rent out the premises she will give the premises to me on the same rate of rent which is Rs. 18,000 but I need one year time for vacating the premises subject to return of Rs. 3,00,000 which she had obtained from me."

The next sentence in continuation is "applicant is only ready to give two months time for vacating the premises in question".

During the hearing of this petition in order to get the matter amicably settled, the parties were called in Court. Tenant agreed to pay enhanced rent up to Rs. 25,000 per month but landlady declined to accept the same and stated that demised shop is required for personal bona fide use by her husband and, as such, there was no occasion for her to accept enhanced rent even at the rate of Rs. 50,000 per month. She also showed her willingness to pay Rs. 3,00,OOQ to the tenant on account of security deposit and the payment of electricity charges, etc. though she was not liable to pay anything in excess to the amount of security deposit. She was made to understand the implications of Section 15-A of the Sindh Rented Premises Ordinance, 1979, relating to imposition of fine which shall not exceed one years rent of the building or the premises, as the case may, to be paid immediately before the possession was obtained and the right of the tenant to apply to the Controller for an order directing the landlord/landlady to restore the possession of the demised premises to the tenant who was evicted, if the demised premises so got vacated was re-let to any person other than the previous tenant or if it is put to a use other than personal use, within one year of such possession. The landlady categorically stated that she has no intention to re-let the demised shop to anybody else or to use for purpose other than for which she wants to eject the tenant.

In view of the discussion made above, I am of the considered view that it is a fit and appropriate case for exercise of Constitutional jurisdiction under Article 199 of the Constitution of Pakistan. I would, therefore, set aside the order of the learned District Judge passed in appeal and restore the ejectment order dated 10th October, 2001 passed by the learned Rent Controller subject to payment of Rs. 3,00,000 (Rupees three lac) by the landlady in the Court of Rent Controller. Since more than one year has already passed from the date of statement of the son and the husband/attorney of the tenant, hence sixty days time is granted to the tenant to vacate the demised shop subject to payment of Rs. 3,00,000 by the landlady to her tenant being the amount of security deposit etc. as referred above.

These are the reasons for the short order announced on 31.3.2003 which is reproduced below and shall be deemed to be a part of this order in details:

"For the reasons to follow this Constitution petition is allowed. The judgment, dated 23.7.2002 passed by the learned District Judge, Karachi-East, in F.R.A. No. 662 of 2001 is set aside and the ejectment order passed by the learned Rent Controller is restored/maintained. Sixty days time from today is granted to the respondent/tenant to vacate the demised premises/shop. The petitioner shall pay Rs. 3,00,000 (Rupees three lac) to the respondent/tenant on account of security deposit and payment of certain bills by him on behalf of the petitioner by depositing the same in the Court of learned Vth Rent Controller, Karachi-East, in R.C. No. 732 of 1998 within thirty days from today and the tenant. • shall be entitled to withdraw the same after handing over the vacant possession to the petitioner/landlady. The tenant shall continue to deposit monthly rent at the agreed rate during this period of sixty days. In case of default in payment of rent or in case the demised premises/shop is not vacated within the specified, time, the learned Rent Controller shall issue writ of possession without any delay in the matter. In case the above-referred amount of Rs. 3,00,000 is not deposited by the petitioner/landlady as ordered above, this petition shall stand dismissed. There will be no order as to costs."

(M.Y.) Petition allowed.

PLJ 2003 Karachi 196

Present: gulzar ahmed, J.

ARBAB ALI and 4 others through Legal Heirs-Petitioners

versus

NOOR BAKHSH and 4 others-Respondents C.R. No. 57 of 1999, decided on 3.4.2003.

(i) Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--

—S. 19-Agreement to sell-Specific performance of agreement to sell was postponed to a date when the grantees would acquire the proprietary rights—Effect—Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of contracting parties to keep themselves well within the confines of law and to act in accordance with the requirements of law-Such agreement to sell was not violative of either the express provisions of S. 19 of Colonization of Government Lands (Punjab) Act, 1912, or of the public policy behind such statutoiy provisions. [Pp. 200 & 201] A

2002 SCMR 1821 ref.

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

—-S. 12-Qanun-e-Shahadat, 1984 (10 of 1984), Art. 79-Transfer of Property Act, 1882 (IV of 1882), S. 53-A-Civil Procedure Code. 1908 (V of 1908), O. VIII, R. 1-Specific performance of agreement to sell-Trial Court dismissed the suit on the ground of lack of jurisdiction whereas Appellate Court dismissed the appeal holding that agreement was invalid on the ground that it was not signed by the purchaser and there was no acceptance by the purchaser to constitute the agreement-Validity- Condition prescribed by law for proving the attested document stood fulfilled as both the attesting witnesses were produced and they admitted execution of the agreement in their presence-Finding of Appellate Court was based on misunderstanding of law and non-appreciation of evidence on record-Execution of the agreement was proved and its terms and conditions amply demonstrated that the agreement was accepted by the purchaser—Contract for transfer of immovable property under the provisions of S. 53-A of Transfer of Property Act, 1882 required signing of the same only by the transferor or on his behalf-Law did not require that the contract should also be signed by the purchaser-Labelling of the agreement as forgery in written statement was not enough as the written statement was not an evidence in law—Judgments and decrees passed by the Courts below were set aside and the suit was decreed by the High Court in revision. [Pp. 202, 203 & 204] B, C & D

2002 CLC 96 ref..

Mr. AM. Mobeen Khan,Advocate for Petitioners.

Mr. Qalandar Bux Phulpoto,Advocate for Respondents Nos. 1 and 2.

Date of hearing : 27.1.2003.

judgment

By this revision application, the applicants have challenged the judgment and decree, dated 13.5.1999 of the learned 1st Additional District Judge, Khairpur by which Civil Appeal No. 61 of 1991 filed by the applicants was dismissed and the judgment and decree of the trial Court by which the applicants' suit was dismissed was maintained.

The facts of the matter are that the applicants had filed Suit No. 96 of 1984 before the trial Court for declaration, specific performance of contract and permanent injunction against the respondents alleging therein that the Respondent No. 1, has purchased agricultural land bearing Survey Nos. 222, 223, 232, 233, 234, 245, 246, 247 and 248 and an area measuring 42 acres out of UA No. 442 total area measuring 62-26 acres bearing Lot No. 10 situated in Deb. Dadu Taluka Nara in the year 1967 in the open auction from the Barrage Department at the rate of Rs. 575 per acre w.e.f. Kharif 1968-69 and Form "A" No. 127 dated 18.5.1968 was issued in favour of the Respondent No. 1. Respondents Nos. 1 and 2 are the real brothers and the Respondent No. 2, has been managing the affairs of the Respondent No. 1 pertaining to the suit-land since the time of purchase. Respondent No. 1, in consultation with the Respondent No. 2, agreed to sell the land -measuring 43 acres in favour of the appellants and 19-26 acres in favour of the Applicant No. 4 an agreement dated 25.3.1970 was signed and executed between the Applicant No. 1, on behalf of all the applicants as purchaser and the Respondent No. 1, as vendor. The Applicant No. 1, paid consideration amount of Rs. 9,006-12-0 in full and final satisfaction and original "A" Form was handed over to the applicants and also the possession of the land was delivered to the applicants. The applicants after obtaining possession have brought the land under cultivation by making huge investment. It was further alleged that the Respondents Nos. 1 and 2 had agreed that the land will be transferred in favour of the applicants according to their respective shares and in this respect registered sale-deed will be executed or statement of transfer will be made before the authorities concerned. It was further alleged that the amount of installment to be paid to the Government was being recovered by the Respondent No. 1 from the applicants for the purpose of depositing with the authorities and the applicants remained under the impression that the same is being deposited regularly. It is further alleged that the Respondent No. 1 become dishonest and did not deposit the amount of installment with the authorities concerned resulting in cancellation of the land w.e.f. 1972-73 videorder, dated 9.4.1973. Respondent No. 1, applied for regrant of land in 1976 which was allowed on 11.10.1976 subject to payment of installment with penal interest. The Respondent No. 1 did not inform the applicants regarding cancellation of the land nor did the Respondent No. 1, inform the applicants about the order, dated 11.10.1976. Respondent No. 1 filed an application before the Board of Revenue for regrant of the land and report was sought from the Barrage authorities. At this stage, the applicants learnt about the fraud committed by the Respondent No. 1, with them and they filed an application before the Colonization Officer, Sukkur Barrage informing about their rights in the suit-land. Pursuant to the application of the applicant, the Additional Commissioner, Sukkur Division vide order, dated 2.7.1981 allowed regrant of the land in favour of the Respondent No. 1, the applicant filed a review application before the Additional Commissioner but the same was rejected on 14.7.1981 with advise to seek remedy from the competent authority. The review petition of the applicants before the Board of Revenue was also rejected on 16.4.1984. It is further alleged that during the pendency of the revision before" the Board of Revenue applicants deposited entire price of the land with the Government. It is alleged that the Respondent No. 1, refused to sign and execute a registered sale-deed in favour of the applicants or to have the land transferred by way of recording statement before the Barrage Mukhtiarkar.The applicants have further alleged that certain "Faisla" was made wherein the claim of the applicants were recognized. On these basis the suit was filed. Respondent No. 1 contested the suit who filed his written statement and denied that any agreement was ever executed or any sale consideration was received by him from the applicants. He stated that the agreement is forged. He has further stated that the possession of the land'was never handed over to the applicants nor the land ever been developed. He further stated that the brother of the Applicant No. 1, was "Hari" of Survey 245-E and he had bad eyes on the suit-land from very beginning and has concocted a document. He has stated that the possession of the land is with him. He has further stated that the installments of the land were deposited by him from his own source. The applicants claim to the authorities for the regrant of the land to them failed. With regard the allegation of deposit of price by the applicants, the Respondent No. 1 stated that it has not been done at his behest and no right is created in the suit-land in favour of the applicants. The alleged "Faisla" was also denied. Additional plea was taken that the suit was not maintainable in law and is bad for misjoinder and non-joinder of necessary party and is also time-barred.

The trial Court framed as many 10 issues and applicants produced evidence of its witnesses. No evidence was recorded from the side of the respondents and accordingly their side was closed. After hearing the arguments of the Advocate of the parties, trial Court gave its judgment, dated 30.4.1991 in which it decided only Issue No. 7 regarding the maintainability of the suit and found the suit is not maintainable and dismissed the same. The applicants preferred appeal against the judgment and decree of the trial Court which was dismissed by the impugned judgment.

Mr. A.M. Mubeen Khan learned counsel for the applicants has contended that both the trial Court as well as the Appellate Court have given the findings that the suit of the applicants was not maintainable by relying upon Clause 8 of conditions of grant contained in Form "A" and Section 19 of the Colonization of Government Land (Punjab) Act, 1912. He has argued that such finding of both the Courts below is illegal as the agreement by which Respondent No. 1, has agreed to sell the land in question to the applicants is not covered nor is hit by the said Clause 8 or Section 19 of the said Act as agreement was merely an agreement to sell with stipulation that sale-deed will be registered after price of the land is paid to the Government.

Mr. Qalandar Bux Phulphoto, learned counsel for the respondents Nos. 1 and 2 has contended that the question whether the suit is maintainable or not has become of secondary issue because the Appellate Court has considered all the issues framed by the trial Court and has given the findings that the Respondent No. 1 did not sign the agreement nor there is evidence of payment of consideration of Rs. 9,006-12-0 by the applicants to the Respondent No. 1 nor the possession of the suit-land was delivered to the Applicant No. 1. On its face, the argument appears to be correct but it loses significant in the wake of applicant's challenging the other findings of the Appellate Court regarding existence of agreement, payment of sale consideration and delivery of possession, therefore, the determination of the question regarding maintainability of the suit is to be dealt with. Learned counsel for the applicants has referred to Clause 8 of the condition of grant of land contained in Form "A" and has stated that such clause provides that the grantee or his heirs, executors and assignee may not without permission in writing of the Revenue Officer/Collector lease, mortgage, sale or otherwise however, encumber the land granted or any portion thereof before all the amount due on such land on account of occupancy price and interest thereon shall have been paid. Learned counsel has also referred to Section 19 of the Act which provides that except as provided in Section 17, none of the right or, interest vested in a tenant by or under the Government Tenant (Punjab) Act, 1893 or this Act, shall, without consent in writing of the Commissioner or of such Officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, Will, mortgage or other private contract other than a sublease for not more than one year in the case of a tenant who has not acquired a right of occupancy, any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collectors. Learned counsel has argued that the Respondent No. 1 has merely entered into an agreement for sale of the land to the applicants which does not amount to actual sale and is not hit by either Clause 8 of the condition of transfer contained in Form "A" or Section 19 of the said Act. He has stated that such question was considered in the case of Muhammad Sadique v. Muhammad Ramzan 2002 SCMR 1821, wherein the Honourable Supreme Court at page 1832 has observed as follows:

This is settled law that the title of the property cannot be conferred to a third person by the allottee of the Government land without obtaining the proprietary rights due to the prohibition contained in Section 19 of the Act of 1912 and the sale in either form would not be validated till the acquisition of proprietary rights by the vendor. The value of each sale-deed executed in favour of the respondents was less than rupees 100 and was not required to be registered, therefore, the same at the time of execution would acquire the status of contract of sale which would be enforceable as a legal document for. the purpose of establishing the title on the acquisition of proprietary rights by the vendor. This Court in the case of Muhammad Iqbal v. Muhammad Hussain (PLD 1986 SC 70) observed as under:

"It was held by this Court in paragraph 12 of its judgment in that case that a contract of this kind was not viola^iye of the provisions of Section 19 of the Colonization of Government Lands Act. 1912, Paragraph No. 12 may be reproduced here for facility of reference:

'On the facts of the case we are clear that the document was merely an agreement to- sell the specific performance of which was postponed to a date when the grantees had acquired the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of the contracting parties to keep themselves well; within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provisions of Section 19 of the Act or of the public policy behind such a statutory provisions.'

We respectfully follow the abovenoted view taken by a learned Full Bench of this Court and hold that the oral agreement of sale by Ghulam Rasool in favour of Mirza Muhammad Hussain (Respondent No. 1) is not hit by the provisions of Section 19 of the aforesaid Act. It may be mentioned that the same view has been taken in Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg PLD 1978 Lah. 421; Ghulam Muhammad v. Lakha Singh and Mst. Khurshid Begum v. Inam Rabbani 1979 CLC 570 on which the High Court has relied while delivering the impugned judgment."

In the light of the above discussion, we hold that sale of Government land by the allottee without proprietary rights would not take legal effect and operation of the same would remain suspended till the proprietary rights of the property are not acquired by the vendor.

I have examined the agreement and find that it is an agreement to sell with stipulation of registration of sale-deed on payment of all Government dues.

On the basis of above observation of the Honourable Supreme Court of Pakistan, I find that the findings of the two Courts below regarding non-maintainability of the suit on the basis that condition 8 of Form "A" and Section 19 of the Colonization of Government Land (Punjab) Act, 1912 did not confer the right on the Respondent No. 1, to sign and execute the agreement of sale was not based on correct application of law as has been laid down by the Honourable Supreme Court of Pakistan.

It was next argued by Mr. A.M. Mobeen Khan that the applicants have produced evidence and the statement of Arbab Ali the Applicant No. 1 that the Respondent No. 1 has entered into agreement to sell with him in the year 1970 and Rs. 9,006-12 was paid to the Respondent No. 1 as per agreement and the original document of land and possession were handed over by the Respondent No. 1 to the Applicant No. 1 was not challenged in the cross-examination and in this view of the matter, the assertion of the applicants regarding making of an agreement of sell payment of consideration and handing over of original documents and possession of land stands admitted. He has stated that the agreement was produced by this witness as Exh. 44 and the original grant order was produced by this witness as Exh. 45. He has further contended that no evidence in rebuttal was produced by the Respondents Nos. 1 and 2 Mr. Kalander Bux Phulpoto learned counsel for the respondents has contended that no agreement as alleged by the applicants exists as the agreement does not contain the names of the Applicants 2 to 4 but only the Applicant No. 1 and further it also does not contain the name of the Respondent No. 2, but only of Respondent No. 1. He has further argued that as alleged in the plaint, there is no document showing shares of the applicants in the suit-land and that the agreement has not been proved. He has further contended that in prayer Clause 1, the applicants have sought declaration against the order dated 16.4.1984 and 14.7.1981 passed by the Respondents Nos. 3 and 4 respectively, as illegal but no such order has been produced by the applicants and this prayer cannot be granted. He has stated that the Respondent No. 1, in his written statement has labelled the agreement to be forged.

I have considered these arguments and have gone through the evidence. The Applicant No. 1, in his evidence has specifically made allegation regarding the execution of the agreement by the Respondent No. 1 in his favour and has produced such agreement as Exh. 44. The agreement is signed by the Respondent No. 1 as vendor and is witnessed by Muhammad Mithal and Sobharo. In the said agreement it is mentioned that the suit-land has been agreed to be sold by the Respondent No. 1, to the Applicant No. 1 and payment of Rs. 9,006-12-0 is acknowledged. The agreement provides that further installments of Government land price would be paid by the Applicant No. 1, who will also be liable for payment of fine and interests. The agreement also provides that original Form "A" has been delivered to the Applicant No. 1 and possession of the land has also been delivered and responsibility for payment of Land Revenue would be that of Applicant No. 1. On final payment of Government land price, sale-deed will be signed and executed. Applicants have produced both the attesting witness of the agreement namely, Muhammad Mithal and Sobharo and both have stated that Respondent No. 1 has signed the agreement in their presence and have admitted their own signatures on the agreement as witnesses. Section 79 of Qanun-e-Shahadat Order, 1984 is as follows:

"79. Proof of execution of document required by law to be attested.-lf a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution", if there be two attesting witnesses alive, and subject to the "process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

The condition prescribed by the law for proving the attesting document stands fulfilled as both the attesting witnesses have been produced and they admitted execution of the agreement in their presence by the Respondent No. 1. Thus, the agreement Exh. 44 stood proved. The Appellate Court has held the agreement to be not valid on the ground that it was not

signed by the Applicant No. 1 and thus, there was no acceptance by Applicant No. 1 to constitute an agreement. In my view this finding of the Appellate Court is based on misunderstanding of law in this regard and non-appreciation of evidence on the record. The execution of the agreement stands proved and its terms and condition itself amply demonstrate that the agreement stood accepted by the Applicant No. 1. Besides Section 53-A of the Transfer of Property Act, 1882 is as follows:

"53-A. Part performance.-Where any person contract to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has performed or is willing to perform his part of the contract.

Then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transfer of any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof "

The above provision requires signing of contract of transfer of immovable property only by the transferor or on his behalf. There is no requirement of law that it should also be signed by the purchaser. Further the labelling of the agreement as forgery in the written statement of the Respondent No. 1 was not enough as the written statement is not evidence in law. Reference in this respect is made to the case of Mrs. Rahat All v. Dr. Saeeda Re.hm.an 2002 CLC 96 wherein it was held that the plea raised in the written statement without supporting evidence cannot be considered as a proof. Besides the agreement stands proved by the applicants. In this view of the matter, I am of the view that the Appellate Court has made serious error of law in giving the findings that the agreement was not valid. The Applicants plea of paying of consideration of Rs. 9,006-12 and handing over of possession of land and delivery of original Form "A" has also gone unchallenged and no evidence in rebuttal has been led by the Respondents Nos. 1 and 2. Respondents Nos. 1 and 2 have failed to explain as how applicants came in possession of original Form "A". The Applicant No. 1, in his evidence has stated that he has been paying the Land Revenue of the suit-land and has produced 41 original Land Revenue Receipts as Exh. 46/1 to 46/41. He has also produced 22 copies of Khasra Girdawari and Number Shumari as Exh. 47/1 to Exh. 47/20 and the original Ijazatnamaand sketch as Exhs. 48 and 49. The Applicant No. 1 in his evidence has stated that he has paid installments to the Respondent No. 1 who deposited the same and later on he learnt that the Respondent No. 1 has not deposited the amount but has misappropriated the same and the land was cancelled and filed application for regrant of the land. In the cross-examination the Applicant No. 1 stated that he has paid Rs. 40,000 to the Respondent No. 1 in two and half years before the cancellation of grant of land. No evidence in rebuttal has been produced by the respondents nor there is any specific cross-examination of the Applicant No. 1, on these points. The irresistible conclusion of the above state of evidence is that the Respondent No. 1 did enter into an agreement with the Applicant No. 1 and has received sale consideration of Rs. 9,006-12 and has handed over the possession of the land and original document of grant to the Applicant No. 1, and that the Applicant No. 1 has paid installments for deposit of price of the land with the Government to the Respondent No. 1. The findings of the Appellate Court on these matters and based upon misreading of evidence.

As regard the point that applicants have not filed copies of orders which they have prayed to be declared illegal in Prayer No. 1 of their suit, it may be mentioned that the applicants by virtue of agreement to sell in their favour had no right to the heard by Respondents Nos. 3 to 5 as on their record the land was in the name of Applicant No. 1 and the matter being of civil nature, Revenue Authorities were not competent to decide the same and applicants' only remedy was to approach Civil Court. From the plaint it appears that the Additional Commissioner in his order, dated 14.7.1981 has made observation that matter is of civil nature. Neither orders of the Revenue Authorities have been produced nor it is argued that such orders bars the applicants from- claiming of relief of specific performance of agreement which they have claimed in the suit.

The trial Court has not decided the case on merits but has dismissed the suit on the point of law that the suit was not maintainable. The Appellate Court has however, considered all the issues and while deciding them against the applicants has agreed with the trial Court on the point of maintainability of the suit. The question of maintainability of suit has already been adverted to and it is found that the suit was maintainable. The other findings recorded by the Appellate Court have been considered and found them to be based on misreading and non-reading of evidence and by not applying proper law to the facts and circumstances of the case which has led to giving of judgment which in law cannot be sustained being based on wrongful exercise of jurisdiction. It is settled law that Court has jurisdiction . to decide the case rightly and has no jurisdiction to decide wrongly. Reference is made to the case of Utility Stores Corporation of Pakistan v. Punjab Labour Appellate Tribunal PLD 1987 SC 447.

Applicants in prayer Clause 2 have sought the following relief:

"2. That a decree for specific performance of the contract may kindly be passed directing the Defendant No. 1 to execute registered sale-deed of the land in suit in favour of the plaintiffs according to the shares as mentioned ahove, after obtaining the T.O. Form in his favour and getting the Khata changed in his favour."

It has not come in evidence that Respondent No. 1 has paid full price of the land to the Government thus it appears that Respondent No. 1 right to alienate the land to the applicants has not matured. In any case, under the agreement the Respondent No. 1 is liable to deposit the price of the land with the Government on receipt of the same from the applicants. Applicant No. 1 has said in his evidence that he has paid to the respondent Rs. 40,000 in two and half years for depositing installments of price of the land with the Government. It has not come in evidence as to what was the actual price of the land which was to be deposited with the Government. Whatever the actual price of the land is, the same has to be paid by the applicants and deposited with Government through Respondent. No. 1.

Thus, this revision application is allowed and the judgment and decree of the trial Court as well as of the Appellate Court are set aside and applicants' suit is decreed as per prayer Clause 2 quoted above. The applicants shall pay the price of the land payable by them to the Respondent No. 1 who shall deposit the same with the Government or appropriate it to himself if he has paid full price to the Government. Respondent No. 1 is" directed to sign, execute and register the sale-deed of the land measuring 43 acres in favour of Applicants Nos. 1 to 3 and land measuring 19-26 acres in favour of legal heirs of Saheb Khan named in the title of this revision application. The applicants shall pay the price of the land to the Respondent No. 1 under proper written receipt within thirty days of this judgment and the Respondent No. 1 shall sign, execute and register the sale-deed in favour of the applicants within further thirty days of receipt of payment of price of land from the applicants. There shall however, be no order as to costs.

(M.Y.) Revision application allowed.

PLJ 2003 Karachi 205

Present:MUSHIR ALAM, J.

TAHIR JAHANGIR and another-Plaintiffs

versus

DON WATERS-Defendant Suit No. 248 of 1999, decided on 21.3.2003.

(i) Damages--

—"Special damages" and "general damages"—Distinction—Special damages means material and actual loss capable of assessment in terms of money, resulting as a natural or proximate consequences of wrongful act like loss of business etc.—Special damages must not only be pleaded with certainty and detail but are also required to be proved at trial-General damage is loss or injury sustained or caused as a direct or proximate consequence of a wrongful act not capable of exact assessment in terms of money-Such loss or damages under law are presumed and implied like loss of goodwill reputation and mental torture etc. [P. 209] D

(ii) Damages--

—Where a person claims special damages then it is incumbent upon him to show as to under which head of account and how such damages have been sustained-In absence of such proof, special damages cannot be allowed. [P. 209] E

(iii) Libel-

—No libel was committed if it was addressed to the person concerned only- Communication containing adverse comments against plaintiffs made to a representative trade body itself was sufficient to establish that a libelous act was committed—Once it was established that a wrong had been committed, injury was presumed howsoever trivial it might be-Libel is actionable per se and wrongdoer is exposed to its consequences, may it be in the form of special damages and/or general damages-Communication in question having not been circulated amongst the general body of traders or businessmen and it was only forwarded by the Chamber of Commerce to plaintiffs to clarify their position no further action was taken by the Chamber against plaintiffs—No repetition or circulation amongst other members or business community or social circle where plaintiffs were stated to move was made—Every person is entitled to protect his goodwill, image, reputation and' status in society-Goodwill, image, reputation and status acquires significant importance in commercial world, any bad word may ruin a person's business—Plaintiffs failed to place on record any material to show their respective reputation, status, financial or otherwise in the trade, commercial, business or social circle—Since defendant chose not to defend the cause, such non- appearance went against him to presume that he had no defence to offer- High Court looking at all factors, while assessing injury or general damages to the goodwill, esteem, status, reputation of plaintiffs, allowed only Rs. 1,000 as token of general damages to plaintiffs-Suit was decreed accordingly. [Pp. 209 & 210] C, F & H

(iv) Libel-

—In order to assess a fair quantum of general damages, Court must keep in view the nature of publication/communication, to whom it is made, quantum, circulation, range, extent and medium of publication/communication, status and reputation of a person in the community or society and impact of libel on the person targeted in such publication/communication--Each of such variable factors have its own impact on the assessment of injury, loss or damage caused to such person. [Pp. 209 & 210] G

(v) Words and Phrases

-—Insinuation expressed and communicated to third person by written word, sign or picture tantamounts to undermining, tarnishing and blotting the goodwill and reputation of a person is libel-To constitute libel, it is necessary that insinuation is communicated to third person-Libel is a defamatory statement or representation, communicated, transmitted or conveyed to a person other than the defamed through any medium of expression may it be in the form of printing, writing, image or other form comprehensible through sight or touch. [Pp. 208 & 209] A & B

Black's Law Dictionary, Sixth Edn. ref.

Mr. Muneer A. Malik and Zia ul-Haq Makhdoom, Advocate for Plaintiffs.

Nemo for Defendant. Date of hearing : 17.2.2003.

judgment

Through this suit, plaintiffs have claimed both special and general damages in the sum of Rs. 100 million against the defendant for libelous communication i.e.Rs. 50 million claimed as general damages for the loss to the reputation with interest (« 18% and Rs. 50 million as special damages for the loss of business suffered by the plaintiffs together with interest @ 18% from the date of institution of the suit till realization.

Defendant was served, undertaking was filed and later on Mr. S. Muhammad AH, Advocate filed a fax copy of the Vakalatnama, said to be signed by'the defendant. Original Vakalatnama was never filed. Later on, learned counsel for the defendant, Mr. S. Muhammad AH, filed an application seeking discharge under Rule 50 of the Sindh Chief Court Rules. Said application was granted. None has appeared for the defendant. Instant proceedings are non-contentious. Therefore, the arguments of plaintiffs' counsel was heard on merits. Facts relevant for disposal of this suit are that the Plaintiff No. 1 claims to be a businessman and Managing Director of Plaintiff No. 2 stationed at Lahore, it is averred that who commands great respect in the business and social circles of Pakistan. Plaintiff No. 2 a Corporate entity is manufacturer and exporter of terry towels and allied products worldwide. The case set up by the plaintiffs is that the defendant approached the plaintiffs with the business proposal for the import and market of the plaintiffs product in U.S.A. Plaintiff carried on business with the defendant. There appears to be some differences between the parties regarding the quality and range of product. It is claimed that the defendant obtained cheap imitations of the plaintiffs -product from the local manufacturers, which caused damage to the plaintiffs reputation. In the wake of such dispute, the defendant addressed a letter to the Chamber of Commerce and Industry, Karachi, which according to the plaintiff contained insinuating comments against the plaintiff in order to coerce -the plaintiff to accede its demand. According to the plaintiffs, by addressing such communique the plaintiffs have been defamed in the social circles as well as in business community which lowered the plaintiff esteem and goodwill in their eyes besides causing loss to their business. In the foregoing background, the plaintiff has claimed damages for the libelous communication.

Mr. Muneer A. Malik, learned counsel for the plaintiff contended that the Court without proof of special loss may grant general damages when it comes to a conclusion that general damages as to goodwill and reputation has been caused. In support of his contention, he has relied upon the case-laws reported as Dr. Q. M. Qarni v. Mir Khalilur Rehman and 4 others PLD 1975 Kar. 379 and Harold Robert Henry Lind v. British Initiated Calender's Construction Co. Ltd. PLD 1970 Kar. 315.

Having heard the arguments and perused the record.

Insinuation expressed and communicated to third person by written word, signs or picture tantamounting to undermine, tarnish, blot the goodwill, reputation of a person is libel. To constitute lible, it is necessary that insinuation is communicated to third person(s). In Blacks Law Dictionary Sixth Edition, it is defined to mean:

"A method of defamation expressed by print, writing, pictures, or signs. In its most general sense, any publication that is injurious to the reputation of another. A false and unprivileged publication in writing of defamatory material. Bright u. Los Angeles Unified School Dist, 51 Cal. App. 3d 852, 124 Cal. Rptr. 598, 604. A maliciously written or printed publication which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession. Corabi v. Curtis Pub. Co., 441 Power of Attorney, 432, 273 A. 2d 899, 904."

"Affects his reputation, tends to hold him up to ridicule, contempt, shame, disgrace, or obloquy, to degrade him in the estimation of the community, to induce an evil opinion of him, to make him an object to reproach, to diminish his respectability or abridge his comforts, to change his position in society for the worse, to dishonour or discredit him in the estimation of the public, or his friends and acquaintances, or to deprive him of friendly intercourse in society, or cause him to be shunned or avoided, or where it is charged that one has violated his public duty as a public officer. Almost any language which upon its face has a natural tendency to injure a man's reputation, either generally or with respect to his occupation."

From the above what is deducible is that libel is a defamatory statement or representation, communicated, transmitted or conveyed to a person(s) other than the defamed through any medium of expression may it be in the form of printing, writing, image or other form comprehensible through sight or touch.

No libel is committed if it was addressed to the person concerned only. In the instant case, as it could be seen from the'pleadings that, a communication was addressed by the defendant to the Chamber of Commerce and Industry, Karachi, containing allegations against the plaintiffs. In turn Chamber forwarded the letter to the plaintiffs for their comments. The plaintiffs through reply dated 8.1.1998 refuted the allegations contained in the said letter. Very fact that communication containing adverse comments against the plaintiffs and was made to a representative Trade Body, itself is sufficient to establish that a libelous act was committed. Once it is established that a wrong has been committed, injury is presumed howsoever trivial it may be. Libel is actionable per se wrongdoer is exposed to its consequences, it may be in the form of special damages and/or general damages. Special damages means material and actual loss capable of assessment in terms of money, resulting as a natural or proximate consequences of wrongful act, like loss of business etc. Special damages must not only be pleaded with certainty and detail but are also required to be proved at the trial. General damage is loss or injury sustained or caused as a direct or proximate consequence of a wrongful act not capable of exact assessment in terms of money. Such loss or damages under law are presumed and implied like loss of goodwill, reputation and mental torture etc.

At the very outset, it may be observed that the plaintiffs have claimed special damages in the sum of Rs. 50 million but no detail of such damages have been given. Where a person claims special damages then it is incumbent on him, as discussed above, to show as to under which head of account and how such damages have been sustained. Plaintiffs have not given any detail of loss or damage caused to them nor any evidence was produced to show that the quantum of such damages is a natural or direct consequence of such libel. Therefore, as far as claim for special damages is concerned, same is disallowed.

However, every person is entitled to protect his goodwill, image, reputation and statutes in society. Goodwill, image, reputation and status acquires significant important in commercial world, any bad word may ruin a person's business. In the instant case, personal insinuation as to financial credibility of the defendant has been made. In the case reported as PLD 1970 Kar. 315 (supra), it was held that general damages is not amenable to any legal standard of measurement. It was further hold that failure of plaintiff to give any evidence of his reputation or status is relevant to the question of quantum of damages. In view of the foregoing in order to assess a fair quantum of general damages, Court must keep in view, the publication/communication, to whom it is made, quantum, circulation, range, extent and medium of publication/communication, status and reputation of a person in the community or society. Impact of libel on the person targeted in such publication/communication. Each of said variable factor have its own impact on the assessment of injury, loss or damage cause to such person. Looking at the merits of the instant case, libelous communication containing the allegations of financial misconduct on the part of plaintiff was only addressed to Chambers of Commerce and Industry, Karachi. Such communication was not circulated amongst the general body of traders or businessmen, it was only forwarded by the Chambers to the plaintiff to clarify his position. Plaintiffs vindicated their position through a reply refuting the allegations contained in impugned defamatory communication. No further action was taken by the Karachi Chambers of Commerce against the plaintiff. There appears to be no repetition or circulation amongst other members or business community or social circle where the Plaintiff No. 1 stated to move. Plaintiffs have not placed on record any material to show their respective reputation, status financial or otherwise in the trade, commercial, business or social circle. Since defendant chose not to defend the cause is the circumstances that goes against him to presume that he has no defence to offer.

Looking at all the factors detailed above, while assessing injury or general damages to the goodwill, esteem, status, reputation of the plaintiffs, I would allow only Rs. 1,000 as token general damages to the plaintiffs as against the claim of rupees fifty million.

Suit stands decreed in terms set out above, with no orders as to

costs.

(M.Y.) Suit decreed accordingly.

PLJ 2003 Karachi 210

Present: ANWAR MANSOOR KHAN, J.

MUHAMMAD ABDULLAH and another-Plaintiffs

versus

Messrs KARACHI CUSTOMS AGENTS GROUP, CUSTOM HOUSE, KARACHI and 3 others-Defendants

Suit No. 1227, C. Misc. Appl. Nos. 7810 & 8034 of 2000, decided on 27.10.2000.

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

—-Ss. 42 & 54-Suit for declaration and injunction-Election dispute-Last date for filing of nominations was 4.9.2000-Plaintiffs by letter dated 5-9-2000 withdrew their nomination papers, whereas last date for withdrawal was 13.9.2000 but subsequently sought withdrawal of such letter through letters dated 6.9.2000 and 8.9.2000-Defendant displayed final list, wherein against plaintiffs' names was stated "Nomination withdrawn on 5th September, 2000 vide written request"—Challenged such order-Withdrawal of nominations made by letter dated 5.9.2000 had been considered and accepted by Scrutiny Committee-Subsequent letters for withdrawing letter dated 5.9.2000 were not valid as same would amount to filing a fresh nomination, which might not be allowed after last date of nominations-High Court directed that election be held on existing final list. . [Pp. 215 & 216] A, B & C

PLD 1982 SC 174; PLD 1984 Kar. 334; PLD 1994 SC 79 and PLD 1993 Kar. 286 ref.

Mr. Khalid Latif, Advocate for Plaintiff.

Mr. Munir A. Malik alongwith Ziaul Haq Makhdoom, Advocates for Defendants Nos. 1, 2 and 3.

Mr. Khalid Javed, Advocate for Defendant No. 4. Date of hearing : 27.10.2000.

order

This is a case filed by the plaintiffs being dissatisfied by the declaration made in the list of candidates displayed by the Defendant No. 1 after scrutiny of nominations. Under the Memorandum and Article of Association of the Defendant No. 1 a Managing Committee including the office-bearers are to be elected for a period of one year. The term of the Managing Committee being from the 1st of October, 2000 to 30th of September, 2000 each year. In view of the elections that were to be held for the year 2000-2001 the date of election was fixed as 23.9.2000 and a notice for general election for the said year was displayed by the Defendant No. 1. This fact is not in dispute, In the said notice it was stated that members who have paid their fees on or before 2nd September, 2000 shall be eligible to cast their votes.

"Last date of filing nominations for contesting election shall be 4th September, 2000 upto 4-00 p.m.

Meeting of the Scrutiny Committee will be held on 5th September, 2000.

List of valid nominations shall be displayed on 8th September, 2000.

Last date of withdrawal of nominations shall be 13th September, 2000 upto 4-00 p.m.

Final list of candidates will be displayed on the 14th September, 2000".

From the above it is clear that the dates of filing of nominations, meeting of the Scrutiny Committee display list of valid nomination and last date of withdrawal were specifically mentioned.

It is the case of the plaintiffs that both of them filed their nomination papers within time and after complying with all the requirements of Clause-XT of the election circular notice for the office of, in respect of Plaintiff No. 1, the Finance Secretary and for the Plaintiff No. 2 as member of the Managing Committee. The plaintiffs case is that a fraud was perpetrated on the plaintiffs whereby, the members and office-bearer of the incumbent ruling group, by misrepresentation, inducement and coercion persuaded the plaintiffs to write a letter dated 5.9.2000 (Annexure 'C' to the plaint) and the other being Annexure 'E' thereof, written by the Plaintiffs Nos. 1 and 2 respectively. It is the case of the plaintiff that in the meeting of the Scrutiny Committee, despite the fact that their nomination being held valid, due to the withdrawal letter of 5.9.2000 of aforestated, their names were displayed as valid candidates but it was stated against their names, "Nomination withdrawn on 5th September, 2000 vide written request". It is the case of the plaintiffs by other letters written by the both plaintiff dated 6.9.2000 (Annexure 'D') written by the Plaintiff No. 1 and another letter dated 8.9.2000 (Annexure 'F') written by the Plaintiff No. 2, the previous letters of 5.9.2000 whereby they sought, withdrawal of their nomination was withdrawn. It is therefore stated that the said letter of 5.9.2000 having been withdrawn by specific letters, their names should, therefore, appear in the list of candidates as valid nominations and that in the circumstances, they should be allowed to contest the election.

Mr. Khalid Latif has taken through me the plaint as also the said annexures filed therewith and has stated that in view of the averments made in the plaint and the documents filed, the plaintiff should be allowed to contest the elections.

Mr. Khalid Latif has also taken me to the order passed on 19.9.2000 whereby this Court had passed the following orders :--

1. Notice to defendants for 22.9.2000. Meanwhile, elections of Karachi Customs Agents Group for the term 2000-2001 to be held on 23.9.2000 are hereby suspended until further orders of this Court".

It was therefore stated by Mr. Khalid Latif that in view of Article 12(d), which read as under:

(d) On expiry of the fixed tenure period the President alongwith the Managing Committee will automatically cease to be in office and will automatically cease to be in office and will hand over the charge to the newly-elected President and the Managing Committee by 30th of September or to the Office Secretary if the election have not been held, who shall in such even immediately proceed to call an Emergent General Body Meeting to appoint a Care-taker Committee to manage and supervise the affairs of the Group and hold election within 90 days."

The fixed tenure of the President and the Managing Committee who were present at the elections, ceased to hold office, and were liable to, and had in fact handed over the office to Office Secretary. It has further stated that the Office Secretary acting in accordance with the 12(d) had also called a Emergent General Body Meeting on 21.10.2000 which has appointed a Caretaker Committee. By an order of this Court the Caretaker Committee was required to be present in Court. On 17.10.2000 the Committee was present in Court, as they were, thereafter not required, it was ordered that may not be present on the next date of hearing.

Mr. Khalid Latif stated that in view of the position that the Caretaker Committee had been appointed, there was a change in the situation and that it was now, the Caretaker Committee who was to hold election. In this context Mr. Khalid Latif referred to a judgment of the Supreme Court of Pakistan i.e. Sultan Mawjee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD 1982 SC 174 and said that in view of the change the order that may be passed by this Court could be in terms of the order passed in the said order of the Honourable Supreme Court which reads as under:

"The result will be that the proceedings of the election of the President of the Federation of Pakistan, Chamber of Commerce and Industry, Karachi, for the year 1981-82 shall be continued and be completed in accordance with the law from the stage these were interrupted by the impugned directive of the Director, Trade Organizations".

I pointed out to Mr. Khalid Latif that in view of the change the suit my become infructuous. However, Mr. Khalid Latif said that, no doubt, as regards the Defendants Nos. 2 and 3 the suit can be treated as infructuous but against Defendants Nos. 1 and 4 the contest will have to continue. This, he stated as according to him Mr. Muhammad Younas Soomro/Defendant No. 4, in view of his withdrawal of the letters dated 5.9.2000 (Annexure 'F') he was also a candidate for the election and that, declaring the Defendant No. 4 as unopposed candidate shall not be proper. He stated that only question, therefore, to be decided by this Court would be, whether the withdrawal letter of 6.9.2000 and 8.9.2000 written by the Plaintiff No. 1 and Plaintiff No. 2 respectively could withdraw the withdrawal of nominations by letter dated 5.9.2000 (Annexures 'C' and 'E') written by the Plaintiffs Nos. 1 and 2).

Mr. Khalid Javed stated that in Paras. 12 and 14 of the plaint there is an allegation of fraud, misrepresentation, inducement and coercion by the member and office-bearers of the incumbent ruling group and that, it was this fraud misrepresentation, inducement and coercion that was the ground on which the withdrawal was stated to have been written by the Plaintiffs Nos. 1 and 2 Mr. Khalid Javed referred" to his counter-affidavit and the annexures filed therewith. Mr. Khalid Javed stated that by the letter 5.9.2000 the Plaintiff No. 1 withdrew his nomination. He has referred to another letter Annexure 'D', 'D-2' his counter-affidavit which is another letter of withdrawal by the said Plaintiff No. 1 from all posts. The Plaintiff No. 1, it may be stated has not challenged or prayed for his name being placed as a candidate for any other post. However, Mr. Khalid Javed stated that the said letter of the Plaintiff No. 1 clearly showed that it was clear the intention to withdraw from the election in toto. Mr. Khalid Javed took me through the minutes of meetings of the Scrutiny Committee held on 5.9.2000 under the Chairmanship of Mr. Javed Ahmed Vohra who has been cited as, the Defendant No: 2. He has pointed out that the nominations forms to all of candidates were declared as valid by the Scrutiny Committee, however, there were withdrawal letters received from six candidates that were placed before the Scrutiny Committee. The Scrutiny Committee accepted the withdrawals, and as consequence it was stated by Mr. Khalid Javed that instead of his name being removed from the list of valid nominations, the nomination of the Plaintiff No. 1 and Plaintiff No. 2 were mentioned with a mark "Nomination withdraw on 5th September, 2000 videwritten request".

Mr. Khalid Javed thereafter referred to a letter written by the Defendants Nos. 1 and 2 to the Plaintiff No. 1 to confirm that his name will not appear in the final list of nomination as also on the valid paper as, he had withdrawn from the election per letter dated 5.9.2000 and that, the Scrutiny Committee had accepted his withdrawal request. It was stated that thereafter, the said Plaintiff No. 1 wrote a letter dated 6.9.2000 (Annexure 'D' to the plaint). Mr. Khalid Javed also referred to another letter addressed by the Plaintiff No. 1 dated 12.9.2000 and pointed out that the said Plaintiff No. 1 only referred to his candidature as member of the Managing Committee in the referred letter of 6.9.2000 and that, it was for the first time that the Plaintiff No. 1 stated that the said withdrawal letter of 5.9.2000 was obtained under the duress and coercion and should be treated as cancelled. Mr. Javed, therefore, stated that the said letters were placed before the meeting of the Scrutiny Committee held on 13.9.2000. The said withdrawal letters were discussed, according to Mr. Javed, at length. Such is also mentioned in the minutes filed by Mr. Javed dated 13.9.2000. It was after discussion that the Scrutiny Committee unanimously decided that in the light of the Memorandum and Articles of Association and.in the absence of any provision therein the request cannot be accepted and the name of Mr. Abdullah and Rashid, the Plaintiffs Nos. 1 and 2 as well as the name of the other members who had withdrawn their names would not appear in the final list of candidates and the ballot paper as well.

Mr. Khalid Javed argued that as regards the Defendant No. 4 he stands elected as there is not other candidate for the post of Finance Secretary and that therefore, he shall be deemed to be elected unopposed. On being pointed out that there were three candidates Mr. Khalid Javed stated that the other candidates had also withdrawn within the time prescribed or withdrawal of nominations. It was, therefore, stated that in the final list the name of the Defendant No. 4 has appeared as "elected unopposed as such there can be no elections for the post of Finance Secretary Mr. Khalid Javed has referred to a judgment namely Muhammad Bakhsh Rind and another versus Government of Sindh and others reported as PLD 1984 p. 334. He has read out various paragraphs from the said judgment and stated that the rules referred to in the said judgment namely Rule 14 was in para, material with the rule that Article 128 F and H of the Memorandum Articles of Association of the Defendant No. 1, therefore, the judgment would directly lend support to him. He referred to para. 25 of the said plaint. The relevant portion of the same reproduced as under:

"It may be remembered that the terms 'election' and 'poll' are not synonymous and a poll and a poll under Rule 18 is required to be held only in case of contest and not otherwise. Accordingly, the petitioners are deemed to have been elected."

In view of the said judgment is correct on the point that if a person is elected unopposed, there shall be no polls and therefore, no elections but the declaration of having been elected shall be in the Annual General Meeting which is provided in Article 28 of the Memorandum and Articles of Association.

Now I come to the question of validity of the withdrawal of the withdrawal of nominations by the Plaintiff Nos. 1 and 2. This is basically a factual issue. The last date of nomination for contesting the election was 4.9.2000 upto 4.00 p.m. and the meeting of Scrutiny Committee was to be held on 5.9.2000. The last date of withdrawal was on 13.9.2000. It is the case of the plaintiffs that the withdrawal of the withdrawal of the nomination was before the 13th of September, 2000, as such within time and that therefore their names should appear in the final list. I am afraid I am unable to accept this view. The position is that the withdrawal of nomination was made by letter on 5.9.2000 and considered of the Scrutiny Committee and upon consideration accepted. The letter subsequently written for the withdrawal of the letter of 5.9.2000, in my opinion would amount to filing a fresh nomination, which may not be allowed after the last date of nomination. Mr. Khalid Latif did accept this position, but argued that because there was fraud perpetrated therefore he should have been given right to contest the election. Mr. Munir A. Malik candidly referred to the judgment Abdul Razzique Khan versus Government of Sindh PLD 1994 Supreme Court 79 in which it was held:

"Anybody receiving the resignation has a duty to ascertain personally whether it was signed by the man resigning, whether it was voluntary and whether it was intended to act as a resignation, Unless all the three requirements of the resignation were satisfied it was dangerous in the political milieu in which people of Pakistan are living to give effect to such resignations".

In the said order Honourable Supreme Court the judgment reported as Abdul Razzique Khan versus Government of Sindh, reported as PLD 1993 Karachi Page 286 was reversed. Abdul Razzique Khan restored the position of the Speaker in this context as it was held that there should be an intention and these should a voluntary resignation and in that case there was none. Therefore, Mr. Khalid Latif points out that the resignation not been made voluntarily therefore he said withdrawals should be cancelled and he would be restored as a candidate. Mr. Khalid Javed has argued that this position was never taken up in the first letter i.e. letter of 6.9.2000 and 8.9.2000 and that, the signatures on the withdrawal of nomination were the signatures of the Plaintiffs Nos. 1 and 2 and not disputed by the plaintiffs, and that, the said letter were therefore, voluntarily and could not be withdrawn at the subsequent stage. He states that the letter dated 12.9.2000 of the plaintiff No. 1 was an afterthought, was motivated, as whilst referring to the letter of the 9.6.2000 it was stated by the Plaintiff No. 1 that he had mentioned in the said letter that withdrawal of the nomination was taken under duress and coercion it was stated that the letter of 6.9.2000 did not make a mention of the withdrawal of the nomination having been taken under duress or coercion it was stated that the Plaintiff No. 2 had not even written such a letter and therefore assertion in the plaint of fraud, misrepresentation and coercion being an afterthought, as such could not be accepted.

Mr. Munir A. Malik stated that the Domestic Tribunal namely, Scrutiny Committee looking into the matter and had passed their orders on thereon and it was beyond the scope of this Court at this stage to grant injunction unless it was perversed.

However, notwithstanding the above I am of the tentative opinion, that the subsequent withdrawal letter for withdrawing the letter of 5.9.2000 by the Plaintiffs Nos. 1 and 2 are not valid and that, having already withdrawn, their names may not appear in the final list of candidates.

In view of the above the application C.M.A. No. 7810 of 2000 is dismissed. Consequent upon dismissal of the said application it is directed by consent that the elections of the Defendant No. 1 shall be held on 7.11.2000 on the existing final list. The Caretaker Committee shall make all arrangements for holding the election on that date. The election shall be oversee and supervised by Mr. Abdul Latif Shakoor, Advocate, and submit his report to this Court within one week thereafter. The fees of Mr. Abdul Latif Shakoor is fixed at Rs. 20,000 to be paid in advance by the Defendant No. 1.

C.M.A. No. 8034 of 2000 has become infructuous and is dismissed as withdrawn. Ordered accordingly. The views expressed by me are tentative in nature and may not be used for the final decision, should the main suit be proceed with.

(M.Y.) Application dismissed.

PLJ 2003 Karachi 217 (DB)

Present: SAiYED SAEED ASHHAD, C.J. and ghulam rabbani, J.

MUHAMMAD ALTAF NIZAMI-Petitioner

versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN

through Secretary Defence and 5 others-Respondents

Const. P. No. 1219 of 2002, decided on 16.8.2002.

Constitution of Pakistan (1973)--

—Art. 199-Constitutional petition-Prayer in Constitutional petition for re- induction into shop from which petitioner had been dispossessed— Maintainability—Petitioner had adequate remedy under other laws for seeking such relief-Constitutional petition would not serve the purpose- High Court while exercising jurisdiction under Art. 199 of the Constitution could not resort to decide intricate, complicated and disputed questions of facts nor would proceed to record evidence in the case. [P. 218] A, B & C

Mr. Nisar Ahmed, Advocate for Petitioner.

Mr. Muhammad Sarwar Khan, Addl. A.G. for Respondents.

Date of hearing : 16.8.2002

order

Through this petition the petitioner has made the following prayer:

"it is therefore, most respectfully prayed that the writ may kindly be issued to the respondents that:—

(a) The petitioner should not be disposed or ejected from his shop Bearing No. 26 (presently No. 42), situated at Commercial Shopping area of Majeed S.R.E. (Sailors Residential Estate), Dalmian, Stadium Road, Karachi, without redressing his grievances under the law.

(b) The petitioner be allowed to open his shop and carry out his business to earn his livelihood for his family and his children the only source which he has. Presently he is at no work to that effect.

(c) The petitioner should not be harassed, humiliated or threatened of the dire consequences and should not be treated otherwise than lawfully entitled.

(d) The respondents should not interfere into the lawful business or the respondents should not create any coercion. The termination of petitioner's rent allotment and subsequent allotment to Respondent No. 6 be declared as illegal, void ab initio.

(e) The operation of the impugned notice order dated 9.7.2002 be set aside.

(f) In the meanwhile in pendency of the petition, the operation of the order dated 9.7.2002 be suspended.

(h) Any other relief or reliefs as this Hon'ble Court may deem think, fit and proper in view of the circumstances of the case to secure the end of justice."

Each and every prayer for its decision require enquiry into controverted and . disputed facts, which would necessitate recording of evidence of the parties. ' This Court in exercise of its Constitutional jurisdiction under Article 199 does not resort to decide intricate and complicated question of facts nor proceeds to record evidence. Even otherwise, in this petition, the petitioner seeks his re-induction into the shop from which he has been evicted and 1 dispossessed. In the circumstances he has adequate remedy under other laws for seeking restoration of the possession and a Constitutional petition will not serve the purpose.

Upon the above discussion this Constitutional petition is absolutely baseless, frivolous and not maintainable. Accordingly, it stands dismissed in limine alongwith listed application.

(M.Y.) Petition dismissed.

PLJ 2003 Karachi 219

Present:KHILJI ARIF HUSSAIN, J.

HajiGHOURI-Applicant

versus YAR MUHAMMAD CHANDIO and 16 others-Respondents

J. Misc. No. 45 of 2000 and Civil Suit No. 1005 of 1996, decided on 20.11.2002.

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

—S. 12(2)-Applicants claimed interest in respect of suit-land in their possession on basis of Sanad issued by Competent Authority in favour of applicants-Decree in respect of suit-land apparently having been obtained by.respondent by misrepresentation, same was liable to be set aside-Application filed by applicants under S. 12(2), C.P.C. was granted and judgment and decree passed was set aside. [P. 220] A

Mr. Muhammad Ikram Siddiqui, Advocate for Applicant. Mr. Zahid Sohrab Khan, Advocate for Respondents. Date of hearing : 20.11.2002.

order

Heard the learned counsel. The learned counsel for the applicants stated that applicants are in possession of Na-Class 21, Makrani Para, Manghopir, Karachi only and are not in possession of Survey No. 22 in respect of which the decree has been passed in favour of the plaintiff/DH in Suit No. 1005 of 1996. The applicant stated that the decree has been obtained by fraud and in collusion with defendant to deprive the applicants from the properties for which they are holding valid Sanads and their names were mutated in the Deh Form II on 2-11-1991.

On 6.12.2002 with the consent of the parties, Mukhtiarkar was appointed as Commissioner to carry out demarcation of Na-Class Nos. 21 and 22, Deh'Manghopir, Karachi.

The Mukhtiarkar, Suddo at Karachi submitted his report on llth April, 2002 and from the perusal of it, it appears that an-area of 1.28 acres overlapped from Na-Class 21 to Na-Class 22.

The applicant's case is that they are in possession of Na-Class 21 and have no interest of any nature in Na-Class 22.

The learned counsel for DH stated that let the applicants be joined as defendants in the Suit No. 1005 of 1996 and after examining the parties and officers of the department the Court may decide in the said suit whether the applicant was encroached upon Na-Class 22 claimed by the plaintiff and whether overlapped area is in fact part of the Na-Class 21 or is of NA-Class 22.

The applicants claimed interest in respect of land in their possession on the basis of Sanad issued by competent authority and their presence was necessary for the adjudication of the issue in Suit No. 1005 of 1996. The decree apparently has been obtained by misrepresentation and as such is liable to be set aside. The application is granted and the judgment and decree dated 10.5.1998 are set aside.

The plaintiff is directed to file amended plaint. Joining the applicants as defendants with copy of it to applicants who will file written statement within two weeks time from the date of receiving the copy of plaint and matter be fixed for issues thereafter immediately.

(M.Y.) Application allowed.

PLJ 2003 Karachi 220

Present:MUHAMMAD.ASHRAF LEGHARI, J.

GHULAM MUHAMMAD-Petitioner

versus

ANSAR AHMED and others-Respondents Civil Petition No. 395 of 2000, decided on 7.3.2003.

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

—-S. 9-Custody of minor (girl)-Question whether parentage of minor would fall within jurisdiction of Civil Court or Family Court-Declaration on correct parentage of minor could be given by Civil Court after examining evidence of both parties-Custody of minor would be decided on basis of her age by proper forum-If minor had become major or was sufficiently grown up, then in such event, question of custody would be resolved upon her statement. [P. 225] D , E & F

(ii) Guardians and Wards Act, 1890 (VIII of 1890)--

—-Ss. 25 & 47-Family Courts Act, 1964 (XXXV of 1964), Ss. 5, 14(l)(b) & Sched.-Constitutional petition-Custody of minor-Appeal against order of Judge Family Court would lie before District Judge and not before High Court as provisions of Family Courts Act, 1964 had overriding effect upon provisions of Guardians and Wards Act, 1890-Even under new proviso to S. 47 of Guardians and Wards Act, 1890, such appeal would lie before District Court-Constitutional petition would not lie before High Court in any manner. [Pp. 223 & 224] A, B & C

PLD 1999 Quetta 29 ref.

Mr. Ashraf Ali Butt. Advocate for Petitioner. Mr. Dilawar Hussain, Advocate for Respondents.

Date of hearing : 5.3.2003.

order

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

"The petitioners therefore, pray that this Honourable Court may please to issue writ/direction as under:—

(a) To set aside the order dated 20th May, 2000, annexed with the void having no legal effect and direct the Respondent No. 3 to proceed/try Guardian Wards Application No. 616 of 1998 and decide the same on merits after recording evidence.

Ib Any other equitable relief(s) as this Honourable Couit may deem fit and proper under circumstances of this Constitution petition."

The brief stoiy of this case is that Petitioner No. 2 is wife of Petitioner No. 1 whereas Respondent No. 2 is wife of Respondent No. 1, Petitioner No. 2 and Respondent No. 2 were admitted in hospital for delivery. Both the ladies gave birth to female children. It is stated in the petition that those female children were changed by Respondent Nos. 1 and 2 fraudulently in collusion with hospital staff and the baby of Petitioners Nos. 1 and 2 was given to the Respondents Nos. 1 and 2. On the complaint of petitioners, Dr. Syed Shakir Ali, Incharge of Pathology Department of Abbasi Shaheed Hospital, Karachi, was nominated as Inquiry Officer in October, 1989. The inquiiy report was submitted in the Court of learned District Judge, Karachi Central which indicated that the baby in dispute was real daughter of petitioners. After that respondents promised that they will return the baby to petitioners but subsequently they failed to stand by their promise and the F.I.R. was lodged under Section 365, P.P.C- at Police Station Nazimabad on 13.1.1990. This case was investigated by the police and the challan was submitted in Court. The trial proceeded in the Court of Ilnd Judicial Magistrate, Karachi Central but ultimately Respondent No. 1 was acquitted as the offence under Section 365, P.P.C. would not be proved. However, the finding was given in that judgment that the baby Fatima Shaikh was not the daughter of Respondents Nos. 1 and 2 but the petitioners should approach the proper forum having jurisdiction in the matter. Ultimately the civil suit for the custody of the minor was filed. The said suit was also dismissed with the directions to the petitioners to approach the Court of Guardians and Wards Act which are established for that special purpose.

Before filing the application for Guardians and Wards Act, the Petitioner No. 2 filed application under Section 491, Cr.P.C. before this Court but the same was withdrawn on an undertaking that they will approach proper forum for the custody of minor.

Thereafter the petitioners filed Guardians and Wards application in the Family Court. In the said application an interim order was passed by the Family Court for temporary meeting of the minor with the petitioners. On 3.11.1999 the Respondents Nos. 1 and 2 filed an application under Order 7, Rule 11, C.P.C. wherein it was urged that the application in Family Court under Guardians and Wards Act was not maintainable as the dispute between the parties was in regard to the identification of correct parentage of the minor and that question can only be decided by Civil Court by way of declaration on the aforesaid point.

Being dissatisfied by the aforesaid order passed by Family Court, the petitioners have filed this Constitution petition.

It is submitted by the learned counsel that Petitioner No. 2 Mst. Shahnaz had given birth to a baby in dispute who was later on fraudulently changed with the baby of Respondent No. 2. He stated that he had applied for his relief before almost all the forums but none of these Courts have entertained his plea. It is submitted that inquiry was conducted by the panel of Doctors consisting of 10 doctors under the Chairmanship of Dr. Masood Ahmed who gave their report on 6.12.1989 which reads as under :--

"The issue of exchange of babies was discussed in detail in the light of Enquiry Committee's report Mr. Ansar Ahmed son of Sheikh Ahmed to whom the baby of Mst. Shahnaz wife of Ghulam Muhammad was delivered by mistake agreed to return the exchanged baby to its parents through hospital authorities by close of office on 5.12.1989. Mr. Ansar Ahmed did not bring the child as promised till 12 noon."

Learned counsel further submitted that the petitioners have not been able to get justice from any of the forum, therefore, he submitted that justice may be imparted to them so that he may get the custody of their daughter which is apparently decided by the Board of Doctors that baby Fehmida Sheikh is the daughter of petitioners. Learned counsel for petitioner was confronted with the preliminary objection raised by learned counsel for respondent that the appeal against the order/decision passed by Family Court would lie before the District Judge and not in this Court. The learned counsel referred to Section 47 of Guardians and Wards Act wherein according to him the provision of appeal is provided against the orders passed by Family Court.

Mr. Dilawar Hussain learned counsel appearing for respondent has raised preliminary objection that appeal against the decision/order passed by Family Court is to be preferred before District Judge under Section 14 of West Pakistan Family Court Act, 1964.

I would first like to examine the implication of Section 47 of Guardians and Wards Act which reads as under :—

"Order appealable--An appeal shall lie to the High Court from an order made by a Court--

(a) under Section 7. appointing or declaring or refusing to appoint or declare a guardian, or

(b) under Section 9, sub-section (3), returning an application, or

(c) under Section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, or

(d) under Section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto, or

(e) under Section 28 or Section 29, refusing permission to a guardian to do an act referred to in the section, or

(f) under Section 32, defining, restricting or extending the powers of a guardian, or

(g) under Section 39, removing a guardian, or

(h) under Section 40, refusing to discharge a guardian, or

(i) under Section 43, regulating the conduct or proceedings of a guardian or setting a matter in difference between joint guardians, or enforcing the order, or

(j) under Section 44 or Section 45, imposing a penalty:

(Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court)."

The word "District" was substituted by word "Court" with an amendment in Guardians and Wards Act in the year 1926 whereas new proviso to Section 47 of Guardians and Wards Act was added to this section in the year 1980, which postulates that if that order under appeal is passed by an officer subordinate to District Court, then in that event the appeal shall lie to the District Court.

Section 14 of West Pakistan Family Courts Act, 1964 reads as under:-

"Appeal.-Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable-la) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b) To the District Court, in any other case. 2. No appeal shall lie from a decree passed by Family Court-­fa) for dissolution marriage except in the case of dissolution for reasons specified in Clause (d) of item (viii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939;

(b) for dower not exceeding rupees one thousand;

(c) for maintenance of rupees twenty-five or less per month."

Section 14 of Family Courts Act starts with the words "notwithstanding anything provided in any other law for the time being in force", wherein the appeal is to be preferred under Clause A of Section 14 to the High Court where the Family Court is presided over either by the District Judge, Additional District Judge or any other person notified by Government to be of the same rank having status of District Judge or an Additional District Judge and all other appeals would lie before district Court in Clause B of Section 14. This point was resolved in the case of Mst. Zubeda Naz v. Asif Rashid Minhas and another PLD 1999 Quetta 29, wherein their lordship have observed as under :--

"As far as Guardians and Wards Act is concerned, Section 47(l)(c) of the Act prescribes that appeal lies to the High Court from an order made by a Court under Section 25 of the Guardians and Wards Act. Section 14 of the Family Courts Act started with words "notwithstanding anything provided in any other law for the time being in force" the effect is to exclude any provisions of the Guardians and Wards Act which would be contrary to Section 14 of the Family Courts Act, 1964. This view was taken by the Sindh and Balochistan High Court reported in PLD 1973 Karachi 503 which was, subsequently, confirmed by the Hon'ble Supreme Court in Sakhawat All's case PLD 1981 SC 454 and Ehsan ur Rehman's case PLD 1986 SC 14 mentioned hereinabove.

For the foregoing reasons we are of the considered opinion that appeal lies before the District Judge under Section 14 of the Family Courts Act, 1964. The petition has no force which is accordingly dismissed."

Looking to the above the appeal against the order passed by Family Court which was passed by a Senior Civil Judge is to be preferred before the District Judge and not before this Court as the provisions of Family Courts Ordinance have overriding effect, upon the provisions of Guardians and Wards Act. Even otherwise according to new proviso to Section 47 of Guardians and Wards Act, the appeal would lie before the District Judge. The learned counsel for petitioners has not even preferred an appeal before this Court-but he has filed Constitution petition which does not lie in any manner.

However, I feel that the relief has been denied to the petitioners by Civil Court as well as Guardians and Wards Courts, therefore, in the interest of justice, the petitioners should not be non-suited everywhere and the relief ought to have been given to them by a proper forum. I am therefore of the view that the declaration in regard to the correct parentage of baby is to be given by the Civil Court after examining the evidence of both the parties.

The petitioners would be at liberty to file a fresh suit in regard to the declaration in the Civil Court, if they are so advised.

Thereafter, so far custody of minor is concerned, that is to be decided on the basis of age by a proper forum at an appropriate time. If she becomes major or sufficiently grown up, then in that event the point of custody is to be resolved upon the statement of girl.

I had dismissed this petition in limineby a short order dated 5.3.2003 and these are the reasons for the same.

(M.Y.) Petition dismissed

.

PLJ 2003 Karachi 225

Present: MUHAMMAD ASHRAF LEGHARI, J. Syed ZAFAR ALI SHAH-Petitioner

versus

ASIF JATOI-Respondent Senate Appeal, decided on 3.2.2003. Conduct of General Elections Order, 2002--

—- Arts. 8-A & ll(2)(e)--Chief Executive's Order No. 7 of 2002-Senate (Election) Act (LI of 1975), S. 13(5)(6)--Senate election-Educational qualification of candidate-Higher Education Commission (University Grants Commission) had opined that status of degree could not be authenticated through a letter in absence of degree-Such letter postulated that respondent had completed requirements of B.A. Degree in communication and diploma would be awarded within six months- Such letter nowhere mentioned that respondent had cleared his graduation and was possessing Degree of Bachelor in any subject- Respondent showed his inability to produce at least a letter from concerned University to effect that he had cleared his graduation and certificate in this regard would be issued to him in due course of time- Respondent was not possessing a Graduation Degree as required by law, thus, was disqualified under Art. 8A of Conduct of General Elections Order, 2002-Election Commission set aside impugned order and rejected nomination papers of respondent. [Pp. 228 & 229] A, B, C, D & E

C.P. No. 1615 of 2002; C.P. S. No. 1658 of 2002;-C.P. No. 1626 of 2002; C.P. No. 1673 of 2002; PLD 2003 Quetta 1 and 2003 SCMR 145 distinguished.

S. Zafar All Shah, Advocate for Appellant. Agha Faisal, Advocate for Respondent No. 1. S. Zaki Ahmed, D.A.-G. Date of hearing : 3.2.2003.

judgment

The powers to hear'appeals against the order passed by Returning Officer relating to nomination papers have been delegated to the Members of Election Commission by Hon'ble Chief Election Commissioner of Pakistan by an order dated 1st January, 2003 which reads as under:-

"No: F-3(l)2003, Cord.-ln exercise of powers under Section 13(5) of the Senate (Election) Act, 1975 (No. LI of 1975), the Chief Election Commissioner has been pleased to authorize Members, Election Commission to hear and decide the appeals filed against the orders of Returning Officers for the Senate Election, 2003 from the Province/area noted against each:--

(1) Mr. Justice Muhammad Ashraf Leghari, Sindh Province.

(2) Mr. Justice Nasim Sikandar, Punjab Province.

(3) Mr. Justice Ahmed Khan Lashari, Balochistan Province.

(4) Mr. Justice Qazi Ehansullah Qureshi, N.-W.F.P. and FATA."

This appeal under Section 13(5) read with sub-section (6) of the Senate Act, 1975 (LI of 1975), is directed against the impugned order dated 24.1.2003, passed by the Returning Officer for Election of Senate, 2003 (Sindh), Karachi, whereby he has accepted the nomination paper of Mr. Asif Jatoi, the Respondent No. 1.

He filed nomination form for Senate Election (General Seat) on the ticket of Pakistan National Alliance. He produced a party ticket before the Returning Officer. He alongwith his nomination form produced his academic qualification letter issued by Director, School of Communication from University of Southern California. It was sent to (University Grants Commission) Higher Education Commission, Islamabad, for verification. By their letter dated 24th January, 2003, the Returning Officer after verification was informed that the University of Southern California is accredited University of USA.

Resultantly his form for contesting Senate Election was accepted vide order dated 24.1.2003. which is challenged through this appeal.

It is contended by the appellant that the Respondent No. 1 has not cleared his graduation as no such certificate has been produced by him. He has simply filed a letter from Director School of Communication, which does

not fulfil the requirements of Section 11, sub-section 2(e). He further submitted that since he has not fulfilled the requirements of law and has filed to produce the degree of graduation, he is not eligible to contest the Election of Senate.

Mr. Agha Faisal learned counsel appearing for Respondent No. 1 submitted that the Election Appeal under Section 13(5) is not maintainable as the appeal under that provision would lie against the rejection of nomination form and not acceptance. It is further argued that required fee of Rs. 2.000 for presenting the election petition has not been paid by the appellant. He has referred to certain provisions for presenting appeals and submitted that the instant appeal is not preferred under the said provisions, therefore, this appeal cannot be maintained. Mr. Agha Faisal argued that appellant has not been prejudiced, therefore, he has no locus standi to file an appeal. He has produced Official Academic Transcript of University of Southern California, which shows the list of subjects, which the respondent had cleared during his academic years. He submitted that the letter produced by Respondent No. 1 is the certificate and as such the Respondent No. 1 has qualified for the contest of Senate Election. He referred to Clause (e) of sub-section (2) of Section 11 of Conduct of General Election Order, 2002, the Senate (Election) Act, 1975 (No. LI of 1975) and argued that the certificate is not necessarily to be produced but mere statement in this regard is sufficient for the proof of degree as provided by the aforesaid provisions. This appeal has not been addressed in the name of Chief Election Commissioner of Pakistan and therefore, the same is not validly presented. He has placed reliance upon the unreported cases of Ejaz Ahmed Shaffi v. Federation of Pakistan and others C. P. No. 1615 of 2002; Zafarullah Khan Dornki v. Saleem Jan Khan Mazari and others C.P.S. No. 1658 of 2002; Syed All Bux Shah v. The Election Tribunal and others C.P. No. 1626 of 2002; Abubakar Shekhani v. The Election Tribunal and others C.P. No. 1673 of

2002 and reported case of Ghulam Akbar Last and others v. ReturningOfficer for NA-270 Awaran-cum-Lasbella at Uthal and another PLD 2003 Quetta 1 and Waqas Akram v. Dr. Muhammad Tahirul Qadri and others

2003 SCMR 145.

I had issued notice to learned D.A.-G. for assistance. Mr. S. Zaki Ahmed learned D.A.-G. has .argued that the letter submitted by the Respondent No. 1 cannot be termed as degree of B.A. He further stated that it is mere can intimation.

I have heard learned counsel for the parties at length and perused the material available on the record.

It is the requirement of law that candidate for the Senate should not be qualified to be elected unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized equivalent by the University Grants Commission under the University Grants Commission

A

Act, 1974. For convenience sake Section 8-A, Conduct of General Election Order, 2002 is reproduced hereinbelow :--

"Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate 'possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974) (or any other law for the time being in force)."

The arguments that a simple statement by the candidate for the educational qualification is sufficient to fulfil the requirement of law and no certificate is required to be produced, has no force as the educational qualification of candidate is the prerequisite condition for contesting the Senate Election. Learned counsel for Respondent No. 1 relying upon Clause (e) of sub-section (2) of Section 11, argued that a simple statement is sufficient for which he has relied upon letter issued by Director, School of Communication University of Southern California. Perusal of material available on the record shows that copy of this letter was sent to Higher Education Commission which was replied by the Commission vide letter No. 8-64/HEC/A&B/2003/104 dated January, 24, 2003 which reads as under:

"Mr. Asif Jatoi, B.A. in Communication, University of Southern California is an accredited University of USA. However, the status of the degree cannot be authenticated in absence of degree and by simple letter intimating completion of requirements."

A bare reading of this letter shows that status of degree cannot be authenticated through a letter in absence of degree, I would like to reproduce the contents of aforesaid letter issued by Director, School of Communication which reads as under :--

"This letter is to confirm that Asif Jatoi has completed the requirements of his B.A. Degree in Communication from the University of Southern California. If you have any questions, you may contact me at 1-213-740-3949. The diploma will be awarded after the normal processing time of approximately 6 months.'

This letter postulates that Respondent No. 1 has completed the requirements for his B.A. Degree in Communication. And the Diploma will be awarded after formal processing within time of approximately six months. This letter no where mentions that the Respondent No. 1 has cleared his graduation and is possessing degree of bachelor in any subject. During the course of arguments the learned counsel for Respondent No. 1 was given offer to produce at least the letter from the concerned University to the effect

that the Respondent No. 1 has cleared his graduation and the certificate in this regard would be issued to him within due course of time but the learned counsel did not accede to that offer and stated that it will not be possible for the respondent in this span of time.

Since this matter has been entertained by me under Section 13, sub­section (a) of said Act, I find that the Respondent No. 1 is not possessing the degree of B.A. as required under the law and is disqualified under Article 8-A of the Conduct of General Elections Order, 2002 to contest the Senate election. The case-law cited at the Bar has no bearing and relevance to the facts and circumstances of the instant case. In the cited cases, these points involved in the instant case have neither been discussed nor resolved but the petitioners were given chance to contest the election and genuineness of certificate can be challenged at any subsequent stage but in the instant case, the certificate is not even produced.

I would therefore, set aside the order dated 24.1.2003 passed by Returning Officer whereby he accepted the form of Mr. Asif Jatoi Respondent No. 1 for contesting the general seat of Senate and reject his form. The list of validly nominated candidates shall be revised accordingly.

(M.Y.) Appeal accepted.

D

E

PLJ 2003 Karachi 229

Present: GULZAR AHMAD, J. Mrs. SHAMIM AKHTAR and others-Applicants

versus Mrs. SULTANA MAZHAR BAQAI and 5 others-Respondent

Revision Application No. 40 of 2001, decided fen 31.3.2003. (i) Islamic Law-

—Nomination, unless amounted to a valid gift inter uivos, cannot pass titlein property to nominee nor can give right to nominator to change law of Succession, which would be applicable in case of his death~nomination cannot operate as a valid gift under Islamic Law as gift, in order tu confer title on donee, must be accompanied by delivery of possession of property gifted—Nomination does not stop succession of estate of deceased to his legal hiers a's per succession law applicable to him. [P. 234] A & B

PLD 1974 SC 185 ref. (ii) Specific Relief Act, 1877 (I of 1877)--

....s. 42-Limitation Act (IX of 1908), Arts. 120 & 142-Civil Procedure Code (V of 1908), 0. VII, R. 11-Suit for declaration of ownership and

possession-Main claim of plaintiff was of ownership and claim for possession was merely consequential relief-Until right to possession was established, no question of allowing relief of possession would arise-Limitation period for filing suit for declaration of ownership of disputed shop would be governed by Art. 120 of Limitation Act, 1908 providing six years from date when right to sue accrued—Right to sue had accrued to plaintiff on 27.1.1969, when his brother died or on 19.3.1969 when Society refused to transfer shop in his favour on basis of inheritance or further on 25.3.1969, when Society asked for production of Letter of Administration and finally on 27.3.1969, when possession of shop was transferred to defendant-Plaintiff had himself claimed in plaint that cause of action had accrued to him on 25.3.1969-Suit filed by plaintiff in year 1991, thus, was hopelessly time-barred-Suit filed by plaintiff in year 1991, thus, was hopelessly time-barred-Appellate Court without examining contents of plaint or discussing its effect had decided matter merely on basis of case-law without at all examining whether such case-law was applicable to facts of case or not-High Court accepted revision petition, set aside impugned judgment and restored that of trial Court.

[Pp. 234, 235 & 236] C, D, E & F

PLD 1964 SC 329; PLD 1992 Kar. 167; 1992 CLC 2282; 1999 CLC 364; 2001 CLC 408; 1999 SCMR 1892; 1999 YLR 1694; AIR 1935 Bom. 91 and PLD

1996 Kar. 458 ref.

Mr. Tasawar Ali Hashmi, Advocate for Applicants.

Mr. Shahanshah Hussain, Advocate for Respondents Nos. 1 to 4.

Nemo for Respondents Nos. 5 and 6.

Date of hearing : 7.11.2002.

judgment

Applicant has challenged judgment dated 23.12.2000 passed by the Vlth Additional District Judge (South), Karachi allowing Civil Appeal No. 176 of 1999 and setting aside order dated 6.8.1999 passed in Suit No. 1333 of 1996 (Old No. 895 of 1979) by which the plaint was rejected.

The facts of the matter are that Mazharuddin Baqi predecessor of Respondents Nos. 1 to 4 had filed suit for declaration, recovery of possession and damages against Mst. Shamim Akhtar predecessor of the applicants and Respondent No. 5 (Pakistan Defence Services Officers Cooperative Housing Society Ltd.) and Respondent No. 6 (The Registrar Cooperative Societies, Government of Sindh). Mazhar-ud-Din has alleged in the plaint that his brother Lieut.-Col. M.A. Baqi has purchased for him Benami from Respondent No. 5 two shops on Plot No. 43-C measuring 90 Sq. yds. in 'A' Market Commercial area of Respondent No. 5 Society alongwith residential plot measuring 1000 sq. yds. in the year 1963 and share certificates, receipts and allotment order was received in the year 1964. He has further alleged

that some payments were made by him from his bank account for this purpose and as the transaction was Benami his brother Lieut.-Col. M.A. Baqi submitted nomination form making him nominee with right to transfer of title of the shops on the demise of Lieut.-Col. M.A. Baqi. Lease deed of the two shops was made in favour of Lieut.-Col. M.A. Baqi in or about 1967. On 27-1-1969 Lieut.-Col. M.A. Baqi died. It is further alleged in the plaint that Mazhar-ud-Din informed the Respondent No. 5 of the death of his brother on 14.2.1969 and asked for transfer/mutation of two shops in his favour as nominee of deceased. Respondent No. 5 through its letter dated 19.3.1969 refused to transfer/mutate the two shops in his favour on the ground that Mst. Shamim Akhtar daughter of late Lieut.-Col. M.A. Baqi has asked for transfer of the said two shops to her as heir of the deceased. It is alleged in the plaint that Mazhar-ud-Din wrote letter dated 24.3.1969 to the Respondent No. 5 challenging the claim of Mst. Shamim Akhtar on which Respondent No. 5 through its letter dated 25.3.1969 asked him to obtain letter of administration from Court of law. It is further alleged in the plaint that on 27-3-1969 the Respondent No. 5 took possession of the two shops and removed the name of Mazhar-ud-Din from nomination register and thereafter the possession of the shops with plot were transferred to Mst. Shamim Akhtar. It is alleged in the plaint that as his right to transfer of the shops on the basis of nomination was not accepted, on 3-4-1969 Mazhar-ud-Din invoked provision of Section 54 of the Cooperative Societies Act and requested for reference to Registrar's nominee for Arbitration. Arbitrators passed ex-parte award dated 28.5.1969 in favour of Mazhar-ud-Din. It is alleged in the plaint that Mst. Shamim Akhter then made an application for making her party to Arbitration. Her application was allowed and award was set aside by the Deputy Registrar, Cooperative Societies and matter was remanded for fresh arbitration. It is further alleged in the plaint that on

30.9.1969 award was given by Arbitrators in favour of Mst. Shamim Akhtar and Mazhar-ud-Din filed appeal before Deputy Registrar, Cooperative Societies who gave his decision dated 16.1.1970 upholding the award. Mazhar-ud-Din further appealed to the Respondent No. 6 who gave decision dated 22.4.1970 setting side the award and remanded the matter for fresh arbitration. Mst. Shamim Akhtar filed Writ Petition No. 1004 of 1970 in the erstwhile High Court of West Pakistan, Lahore against order dated 22.4.1970. However, fresh arbitration also took place and award dated

30.5.1969 was passed by which matter was again decided in favour of Mst.Shamim Akhtar. Mazhar-ud-Din again appealed to the Deputy Registrar. While the said writ petition of Mst Shamim Akhtar was pending and the appeal filed by Mazhar-ud-Din was pending before Deputy Registrar, Cooperative Societies, Mazhar-ud-Din filed aforesaid suit in or about 1979. Written statement was filed by Mst. Shamim Akhtar as well as by the Respondent No. 5 in which the questions of maintainability of the suit were also raised. On 13.10.1981 the following order was passed in the said writ petition :--

"In this Constitutional petition the prayer is that impugned order dated 22.4.1970 passed by Respondent No. 1 (Registrar, Cooperative Society) be declared to have been passed without lawful authority as against the petitioner. This order is stated to be order of remand. It is also submitted that Respondent No. 2 Mazhar-ud-Din Baqai has filed a civil suit Bearing No. 895 of 1979 in the High Court for declaration, possession and damages in which petitioner has been impleaded as defendant. By consent this Constitutional petition is allowed in the result whereof the impugned order mentioned above is hereby set aside. It is also agreed by both the learned counsel that this order is without prejudice to the contentions of Respondent No. 2 raised in the civil suit mentioned above. There will be no order as to costs."

Applicants filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on number of grounds including the ground that the suit is time-barred to which counter-affidavit was filed by Respondents Nos. 1 to 4. On 6.8.1999 the trial Court passed order by which the plaint was rejected holding that the suit was time-barred. Respondents Nos. 1 to 4 filed appeal in which the impugning judgment has been passed.

Mr. Tasawar AH Hashmi, learned counsel for the applicants has argued that the right to sue arose to the Respondents Nos. 1 to 4 on 27.1.1969 the date of death of Lieut.-Col. M. A. Baqai and at best on 19.3.1969 when the Respondent No. 5 refused to transfer the shops in question in their favour on the ground that the applicants have sought transfer of shops on basis of inheritance being heir of Lieut.-Col. M.A. Baqai. He stated that the Respondents Nos. 1 to 4 did not file suit but opted for determination of question of nomination under the provisions of Cooperative Societies Act in 1969. He further stated that when the Respondents Nos. 1 to 4 failed to obtain any relief in proceedings commenced by them under the Cooperative Societies Act, the present suit was filed in 1979 which was time-barred having been filed after ten years of arising of cause of action. He further argued that proceeding under Cooperative Societies Act is not covered by the provisions of Section 14 of Limitation Act and its benefit cannot be extended to the suit of Respondents Nos. 1 to 4. In this respect he has relied upon the following reported cases :--

Muhammad Akbar Shah v. Muhammad Yousuf Shah PLD 1964 SC 329, Muhammad Mubarak Hussain Siddiqui v. Sajjad Hussain Khan PLD 1992 Kar. 167, Asghar AH v. P.K. Shahani 1992 CLC 2282, Shafaatullah Qureshi v. Federation of Pakistan 1999 CLC 364, State Life Insurance Corporation of Pakistan v. Mst. Safia Begum 2001 CLC 408, Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892.

Mr. Tasawar All Hashmi has further argued that the Respondents Nos. 1 to 4 claim for ownership of two shops in the proceedings under Cooperative Societies Act was based on nomination. He stated that nominee does not acquire right of ownership of property on the death of nominator and has relied upon PLD 1974 SC 185. Referring to last para, of impugned judgment he has argued that it is none speaking as no reasons have been given by the Appellate Court for setting aside the order of trial Court and has relied upon 1999 YLR 1694. Lastly he has contended that in view of the order dated 13.10.1981 passed in the applicant's Writ Petition No. 1004 of 1970 the award has become final and relied upon AIR 1935 Bom. 91. He has supported the order passed by trial Court.

On the other hand Mr. Shahanshah Hussain learned counsel for the Respondents Nos. 1 to 4 has referred to para.' 9 of the plaint and stated that the Respondents Nos. 1 to 4 were in possession of the said two shops which was forcibly taken over as alleged in para. 18 of the plaint. He referred to prayer made in the suit and stated that the main relief of Respondents Nos. 1 to 4 is that of possession and declaration of ownership is ancillary to the question of possession. He has stated that under Article 142 of the Limitation Act, limitation for suit for possession is twelve years and thus the suit was within time. He has supported the impugning judgment and relied upon the following reported cases :--

Delhi Cloth and General Mills Company Ltd. v. Federation of Pakistan PLD 1964 Lah. 444, Chandi Prasad v. Awadh Narain Jal AIR 1952 Pat. 143, Pun Aung v. Briajlal AIR 1923 Rang. 11, RanduttRamkissen Dass v. E.D. Sassoon & Company AIR 1929 PC 103.

I have considered the submissions of the learned counsel for the applicants and Respondents Nos. 1 to 4. None appeared for Respondents Nos. 5 and 6. I have gone through the record. From the contents of the plaint, it is abundantly clear that the claim of the Respondents Nos. 1 to 4 in the proceedings under the Cooperative Societies Act was based upon "nomination" with the plea that the question of transfer of properly to the legal heirs of the nominator would arise only where there is no nomination. Respondents Nos. 1 to 4 elected to the proceedings under the Cooperative Societies after the Respondent No. 5 through letter dated 25.3.1969 has called upon them to obtain Letter of Administration from Court of Law and yet again when the Respondent No. 5 has already recognized the applicants to be entitled to the shops in question as legal heirs of a Member and transferred and handed over their possession to the applicants on 27.3.1969. With regard to the claim on the basis of nomination reference is made to the case of Mst. Amtul Habib v. Mst. Musarrat Parveen PLD 1974 SC 185 wherein at page 191 the Honourable Supreme Court has observed as follows:--

"Apart from this, it appears to us that, unless a nomination can amount to a valid gift inter viuos, it cannot pass title to the nominee in respect of immoyable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammeden Law, because such gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yaqoob, there could be no delivery of possession at the time the nomination was made, for, at that time, no plot had even been allotted to him."

Thus as per established law, nomination does not stop succession of the estate of the deceased to his legal heirs as per succession law applicable to him. Respondents Nos. 1 to 4 in para. 9 of the plaint have themselves alleged that on 30.11.1965 they took possession of the shops as attorney of the deceased Lieut-Col. M.A. Baqai from Messrs Sam Corporation of Respondent No. 5. Thus the possession was with the Respondents Nos. 1 to 4 as agent of the deceased on the basis of power of attorney and such power of attorney as per law came to an end on the demise of Lieut.-Col. M.A. Baqai and succession opened. Respondents Nos. 1 to 4 have not pleaded gift of the shops to them by the applicants.

In the plaint of the suit, the Respondents Nos. 1 to 4 have however, set up an altogether different case of "Benami" owner made the following prayers:-

(i) declaration that the plaintiff is the actual and real owner of Property No. 43-C admeasuring 90 sq. yds. with two shops within the commercial area of Pakistan Defence Housing Society Limited, Karachi, and is entitled to the benefits thereof which is being unlawfully enjoyed by the Defendant No. 1 at the connivance and conspiracy of other defendants.

(ii) Possession of the said property with mesne profit at Rs. 600 P.M. from the date of dispossession till restorating thereof to plaintiff.

(iii) Permanent injunction restraining the defendant from transferring and/or selling or otherwise traiislerring the said property to any other person.

(iv) Any other/further/additional relief this Hon'ble Court may deem fit in the circumstances of the case.

It is apparent from the contents of the plaint that the main claim of the Respondents Nos. 1 to 4 was of ownership which in the proceedings under the Cooperative Societies Act was based on "nomination" and in the suit is

based on "Benami" and the claim for possession is merely consequential because until right to possession is established, no question of allowing relief of possession arises. Reference is made to Allah Bux v. Dr. Abdul Waheed PLD 1996 Kar. 458. Mr. Hashmi has relied upon the case of Muhammad Akbar Shah (supra)in support of his contention that the Respondents Nos. 1 to 4 suit is to be reckoned on the limitation period provided for the prayer for declaration of ownership of the shops. In the cited case, the Honourable Supreme Court of Pakistan at page 335 has observed as follows :--

"We turn now to the question of limitation. The suit before us is one for possession and prima fade should be governed by Article 142 or 144. It is a settled principle however, that when the relief which a plaintiff seeks cannot be granted unless he succeeds in securing as a foundation for his relief another relief the suit cannot be filed after expiry of the limitation for a suit for such other relief. If this principle were not adopted the provisions of the Limitation Act would be defeated. If an order to obtain the relief of possession in this case it be essential for the plaintiff to secure a decree for setting aside the will before he is granted possession then the suit would be governed by the Article which applies to a suit' for setting aside the will."

Thus from the principle laid down by the Honourable Supreme Court of Pakistan, it is clear that Respondents Nos. 1 to 4 in order to get relief of possession essentially has to secure relief of declaratio'n of ownership of the two shops and the suit will be governed by the Article of Limitation which applies for declaration of ownership of two shops. Thus the argument of the learned counsel for the Respondents Nos. 1 to 4 that the main relief in the suit is for possession and Article 142 of the Limitation Act providing for twelve years for filing of the suit is applicable to the case is of no substance and is accordingly repelled.

The Appellate Court in its judgment has referred to some facts of the case and then reproduced quotations from cited law and thereafter gave its findings as follows :--

"The learned counsel for the respondent could not controvert that the order passed by the Hon'ble High Court in Constitutional Petition No. 949 of 1978 was not having force in the field. I fear to agree with the finding of trial Court it has failed to conceive the facts available on the file of the case and has not correctly applied Order VII, Rule 11, C.P.C. hence having gone through case-law produced by the respective parties and would advise to the trial Court to record the evidence as issues have already been framed and litigation is pending since last 30 years between the parties and about more than 21 years have passed to the present suit which has been different forums."

236 Kar. TAJiRANE maweshiyan welfare association v. PLJ

government or sindh (S. Ahmed Sarwana, J. )

The above findings, I am afraid is not an speaking one inasmuch as neither contents of the plaint have been examined nor its effects have been discussed and merely on case-law the matter has been decided without at all examining that such case-law is applicable to the facts and circumstances of the case. The finding of the Appellate Court on its face is not sustainable in law. The trial Court has examined the matter and concluded that the suit was time-barred and rejected the plaint under Order VII, Rule 11, C.P.C. There is no dispute that limitation period for filing of suit for declaration of ownership of the two shops will be governed by Article 120 of Limitation Act which provides for six years from the date when right to sue accrues. Right to sue accrued to the Respondents Nos. 1 to 4 on 27.1.1969 when Lieut. Col. M.A. Baqai died or on 19.3.1969 when Respondent No. 5 refused to transfer the shops in their favour on the basis that applicants have applied for transfer of these shops on the basis of inheritance or further on 25.3.1969 when the Respondent No. 5 asked for production of Letter of Administration and finally on 27.3.1969 when the shops possession was transferred to the applicants. In para. 52 of the plaint, the Respondents Nos. 1 to 4 have themselves claimed that cause of action for the suit has arisen on 25.3.1969. Looking from any angle, the Respondents Nos. 1 to 4 suit filed in 1991 was hopelessly time-barred. Learned counsel for the Respondents Nos. 1 to 4 has not argued any other ground to support the impugned judgment.

Accordingly this revision application is allowed. The impugned judgment of the Appellate Court is set aside and that of the trial Court restored and in the circumstances there will be no order as to costs.

(M.Y.) Petition allowed.

PLJ 2003 Karachi 229

Present: GULZAR AHMAD, J. Mrs. SHAMIM AKHTAR and others-Applicants

versus Mrs. SULTANA MAZHAR BAQAI and 5 others-Respondent

Revision Application No. 40 of 2001, decided fen 31.3.2003. (i)

Islamic Law-

—Nomination, unless amounted to a valid gift inter uivos, cannot pass title in property to nominee nor can give right to nominator to change law of Succession, which would be applicable in case of his death~nomination cannot operate as a valid gift under Islamic Law as gift, in order tu confer title on donee, must be accompanied by delivery of possession of property gifted—Nomination does not stop succession of estate of deceased to his legal hiers a's per succession law applicable to him. [P. 234] A & B

PLD 1974 SC 185 ref.

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

....s. 42-Limitation Act (IX of 1908), Arts. 120 & 142-Civil Procedure Code (V of 1908), 0. VII, R. 11-Suit for declaration of ownership and

possession-Main claim of plaintiff was of ownership and claim for possession was merely consequential relief-Until right to possession was established, no question of allowing relief of possession would arise-Limitation period for filing suit for declaration of ownership of disputed shop would be governed by Art. 120 of Limitation Act, 1908 providing six years from date when right to sue accrued—Right to sue had accrued to plaintiff on 27.1.1969, when his brother died or on 19.3.1969 when Society refused to transfer shop in his favour on basis of inheritance or further on 25.3.1969, when Society asked for production of Letter of Administration and finally on 27.3.1969, when possession of shop was transferred to defendant-Plaintiff had himself claimed in plaint that cause of action had accrued to him on 25.3.1969-Suit filed by plaintiff in year 1991, thus, was hopelessly time-barred-Suit filed by plaintiff in year 1991, thus, was hopelessly time-barred-Appellate Court without examining contents of plaint or discussing its effect had decided matter merely on basis of case-law without at all examining whether such case-law was applicable to facts of case or not-High Court accepted revision petition, set aside impugned judgment and restored that of trial Court.

[Pp. 234, 235 & 236] C, D, E & F

PLD 1964 SC 329; PLD 1992 Kar. 167; 1992 CLC 2282; 1999 CLC 364; 2001 CLC 408; 1999 SCMR 1892; 1999 YLR 1694; AIR 1935 Bom. 91 and PLD

1996 Kar. 458 ref.

Mr. Tasawar Ali Hashmi, Advocate for Applicants.

Mr. Shahanshah Hussain, Advocate for Respondents Nos. 1 to 4.

Nemo for Respondents Nos. 5 and 6.

Date of hearing : 7.11.2002.

judgment

Applicant has challenged judgment dated 23.12.2000 passed by the Vlth Additional District Judge (South), Karachi allowing Civil Appeal No. 176 of 1999 and setting aside order dated 6.8.1999 passed in Suit No. 1333 of 1996 (Old No. 895 of 1979) by which the plaint was rejected.

The facts of the matter are that Mazharuddin Baqi predecessor of Respondents Nos. 1 to 4 had filed suit for declaration, recovery of possession and damages against Mst. Shamim Akhtar predecessor of the applicants and Respondent No. 5 (Pakistan Defence Services Officers Cooperative Housing Society Ltd.) and Respondent No. 6 (The Registrar Cooperative Societies, Government of Sindh). Mazhar-ud-Din has alleged in the plaint that his brother Lieut.-Col. M.A. Baqi has purchased for him Benami from Respondent No. 5 two shops on Plot No. 43-C measuring 90 Sq. yds. in 'A' Market Commercial area of Respondent No. 5 Society alongwith residential plot measuring 1000 sq. yds. in the year 1963 and share certificates, receipts and allotment order was received in the year 1964. He has further alleged

that some payments were made by him from his bank account for this purpose and as the transaction was Benami his brother Lieut.-Col. M.A. Baqi submitted nomination form making him nominee with right to transfer of title of the shops on the demise of Lieut.-Col. M.A. Baqi. Lease deed of the two shops was made in favour of Lieut.-Col. M.A. Baqi in or about 1967. On 27-1-1969 Lieut.-Col. M.A. Baqi died. It is further alleged in the plaint that Mazhar-ud-Din informed the Respondent No. 5 of the death of his brother on 14.2.1969 and asked for transfer/mutation of two shops in his favour as nominee of deceased. Respondent No. 5 through its letter dated 19.3.1969 refused to transfer/mutate the two shops in his favour on the ground that Mst. Shamim Akhtar daughter of late Lieut.-Col. M.A. Baqi has asked for transfer of the said two shops to her as heir of the deceased. It is alleged in the plaint that Mazhar-ud-Din wrote letter dated 24.3.1969 to the Respondent No. 5 challenging the claim of Mst. Shamim Akhtar on which Respondent No. 5 through its letter dated 25.3.1969 asked him to obtain letter of administration from Court of law. It is further alleged in the plaint that on 27-3-1969 the Respondent No. 5 took possession of the two shops and removed the name of Mazhar-ud-Din from nomination register and thereafter the possession of the shops with plot were transferred to Mst. Shamim Akhtar. It is alleged in the plaint that as his right to transfer of the shops on the basis of nomination was not accepted, on 3-4-1969 Mazhar-ud-Din invoked provision of Section 54 of the Cooperative Societies Act and requested for reference to Registrar's nominee for Arbitration. Arbitrators passed ex-parteaward dated 28.5.1969 in favour of Mazhar-ud-Din. It is alleged in the plaint that Mst. Shamim Akhter then made an application for making her party to Arbitration. Her application was allowed and award was set aside by the Deputy Registrar, Cooperative Societies and matter was remanded for fresh arbitration. It is further alleged in the plaint that on award was given by Arbitrators in favour of Mst. Shamim Akhtar and Mazhar-ud-Din filed appeal before Deputy Registrar, Cooperative Societies who gave his decision dated 16.1.1970 upholding the award. Mazhar-ud-Din further appealed to the Respondent No. 6 who gave decision dated 22.4.1970 setting side the award and remanded the matter for fresh arbitration. Mst. Shamim Akhtar filed Writ Petition No. 1004 of 1970 in the erstwhile High Court of West Pakistan, Lahore against order dated 22.4.1970. However, fresh arbitration also took place and award dated was passed by which matter was again decided in favour of Mst.Shamim Akhtar. Mazhar-ud-Din again appealed to the Deputy Registrar. While the said writ petition of Mst Shamim Akhtar was pending and the appeal filed by Mazhar-ud-Din was pending before Deputy Registrar, Cooperative Societies, Mazhar-ud-Din filed aforesaid suit in or about 1979. Written statement was filed by Mst. Shamim Akhtar as well as by the Respondent No. 5 in which the questions of maintainability of the suit were also raised. On 13.10.1981 the following order was passed in the said writ petition :--

"In this Constitutional petition the prayer is that impugned order dated 22.4.1970 passed by Respondent No. 1 (Registrar, Cooperative Society) be declared to have been passed without lawful authority as against the petitioner. This order is stated to be order of remand. It is also submitted that Respondent No. 2 Mazhar-ud-Din Baqai has filed a civil suit Bearing No. 895 of 1979 in the High Court for declaration, possession and damages in which petitioner has been impleaded as defendant. By consent this Constitutional petition is allowed in the result whereof the impugned order mentioned above is hereby set aside. It is also agreed by both the learned counsel that this order is without prejudice to the contentions of Respondent No. 2 raised in the civil suit mentioned above. There will be no order as to costs."

Applicants filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on number of grounds including the ground that the suit is time-barred to which counter-affidavit was filed by Respondents Nos. 1 to 4. On 6.8.1999 the trial Court passed order by which the plaint was rejected holding that the suit was time-barred. Respondents Nos. 1 to 4 filed appeal in which the impugning judgment has been passed.

Mr. Tasawar AH Hashmi, learned counsel for the applicants has argued that the right to sue arose to the Respondents Nos. 1 to 4 on 27.1.1969 the date of death of Lieut.-Col. M. A. Baqai and at best on 19.3.1969 when the Respondent No. 5 refused to transfer the shops in question in their favour on the ground that the applicants have sought transfer of shops on basis of inheritance being heir of Lieut.-Col. M.A. Baqai. He stated that the Respondents Nos. 1 to 4 did not file suit but opted for determination of question of nomination under the provisions of Cooperative Societies Act in 1969. He further stated that when the Respondents Nos. 1 to 4 failed to obtain any relief in proceedings commenced by them under the Cooperative Societies Act, the present suit was filed in 1979 which was time-barred having been filed after ten years of arising of cause of action. He further argued that proceeding under Cooperative Societies Act is not covered by the provisions of Section 14 of Limitation Act and its benefit cannot be extended to the suit of Respondents Nos. 1 to 4. In this respect he has relied upon the following reported cases :--

Muhammad Akbar Shah v. Muhammad Yousuf Shah PLD 1964 SC 329, Muhammad Mubarak Hussain Siddiqui v. Sajjad Hussain Khan PLD 1992 Kar. 167, Asghar AH v. P.K. Shahani 1992 CLC 2282, Shafaatullah Qureshi v. Federation of Pakistan 1999 CLC 364, State Life Insurance Corporation of Pakistan v. Mst. Safia Begum 2001 CLC 408, Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892.

Mr. Tasawar All Hashmi has further argued that the Respondents Nos. 1 to 4 claim for ownership of two shops in the proceedings under Cooperative Societies Act was based on nomination. He stated that nominee does not acquire right of ownership of property on the death of nominator and has relied upon PLD 1974 SC 185. Referring to last para, of impugned judgment he has argued that it is none speaking as no reasons have been given by the Appellate Court for setting aside the order of trial Court and has relied upon 1999 YLR 1694. Lastly he has contended that in view of the order dated 13.10.1981 passed in the applicant's Writ Petition No. 1004 of 1970 the award has become final and relied upon AIR 1935 Bom. 91. He has supported the order passed by trial Court.

On the other hand Mr. Shahanshah Hussain learned counsel for the Respondents Nos. 1 to 4 has referred to para.' 9 of the plaint and stated that the Respondents Nos. 1 to 4 were in possession of the said two shops which was forcibly taken over as alleged in para. 18 of the plaint. He referred to prayer made in the suit and stated that the main relief of Respondents Nos. 1 to 4 is that of possession and declaration of ownership is ancillary to the question of possession. He has stated that under Article 142 of the Limitation Act, limitation for suit for possession is twelve years and thus the suit was within time. He has supported the impugning judgment and relied upon the following reported cases :--

Delhi Cloth and General Mills Company Ltd. v. Federation of PakistanPLD 1964 Lah. 444, Chandi Prasad v. Awadh Narain Jal AIR 1952 Pat. 143, Pun Aung v. Briajlal AIR 1923 Rang. 11, Randutt Ramkissen Dass v. E.D. Sassoon & Company AIR 1929 PC 103.

I have considered the submissions of the learned counsel for the applicants and Respondents Nos. 1 to 4. None appeared for Respondents Nos. 5 and 6. I have gone through the record. From the contents of the plaint, it is abundantly clear that the claim of the Respondents Nos. 1 to 4 in the proceedings under the Cooperative Societies Act was based upon "nomination" with the plea that the question of transfer of properly to the legal heirs of the nominator would arise only where there is no nomination. Respondents Nos. 1 to 4 elected to the proceedings under the Cooperative Societies after the Respondent No. 5 through letter dated 25.3.1969 has called upon them to obtain Letter of Administration from Court of Law and yet again when the Respondent No. 5 has already recognized the applicants to be entitled to the shops in question as legal heirs of a Member and transferred and handed over their possession to the applicants on 27.3.1969. With regard to the claim on the basis of nomination reference is made to the case of Mst. Amtul Habib v. Mst. Musarrat Parveen PLD 1974 SC 185 wherein at page 191 the Honourable Supreme Court has observed as follows:--

"Apart from this, it appears to us that, unless a nomination can amount to a valid gift inter viuos, it cannot pass title to the nominee in respect of immoyable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammeden Law, because such gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yaqoob, there could be no delivery of possession at the time the nomination was made, for, at that time, no plot had even been allotted to him."

Thus as per established law, nomination does not stop succession of the estate of the deceased to his legal heirs as per succession law applicable to him. Respondents Nos. 1 to 4 in para. 9 of the plaint have themselves alleged that on 30.11.1965 they took possession of the shops as attorney of the deceased Lieut-Col. M.A. Baqai from Messrs Sam Corporation of Respondent No. 5. Thus the possession was with the Respondents Nos. 1 to 4 as agent of the deceased on the basis of power of attorney and such power of attorney as per law came to an end on the demise of Lieut.-Col. M.A. Baqai and succession opened. Respondents Nos. 1 to 4 have not pleaded gift of the shops to them by the applicants.

In the plaint of the suit, the Respondents Nos. 1 to 4 have however, set up an altogether different case of "Benami" owner made the following prayers:-

(i) declaration that the plaintiff is the actual and real owner of Property No. 43-C admeasuring 90 sq. yds. with two shops within the commercial area of Pakistan Defence Housing Society Limited, Karachi, and is entitled to the benefits thereof which is being unlawfully enjoyed by the Defendant No. 1 at the connivance and conspiracy of other defendants.

(ii) Possession of the said property with mesne profit at Rs. 600 P.M. from the date of dispossession till restorating thereof to plaintiff.

(iii) Permanent injunction restraining the defendant from transferring and/or selling or otherwise traiislerring the said property to any other person.

(iv) Any other/further/additional relief this Hon'ble Court may deem fit in the circumstances of the case.

It is apparent from the contents of the plaint that the main claim of the Respondents Nos. 1 to 4 was of ownership which in the proceedings under the Cooperative Societies Act was based on "nomination" and in the suit is

based on "Benami" and the claim for possession is merely consequential because until right to possession is established, no question of allowing relief of possession arises. Reference is made to Allah Bux v. Dr. Abdul Waheed PLD 1996 Kar. 458. Mr. Hashmi has relied upon the case of Muhammad Akbar Shah (supra)in support of his contention that the Respondents Nos. 1 to 4 suit is to be reckoned on the limitation period provided for the prayer for declaration of ownership of the shops. In the cited case, the Honourable Supreme Court of Pakistan at page 335 has observed as follows :--

"We turn now to the question of limitation. The suit before us is one for possession and prima fade should be governed by Article 142 or 144. It is a settled principle however, that when the relief which a plaintiff seeks cannot be granted unless he succeeds in securing as a foundation for his relief another relief the suit cannot be filed after expiry of the limitation for a suit for such other relief. If this principle were not adopted the provisions of the Limitation Act would be defeated. If an order to obtain the relief of possession in this case it be essential for the plaintiff to secure a decree for setting aside the will before he is granted possession then the suit would be governed by the Article which applies to a suit' for setting aside the will."

Thus from the principle laid down by the Honourable Supreme Court of Pakistan, it is clear that Respondents Nos. 1 to 4 in order to get relief of possession essentially has to secure relief of declaratio'n of ownership of the two shops and the suit will be governed by the Article of Limitation which applies for declaration of ownership of two shops. Thus the argument of the learned counsel for the Respondents Nos. 1 to 4 that the main relief in the suit is for possession and Article 142 of the Limitation Act providing for twelve years for filing of the suit is applicable to the case is of no substance and is accordingly repelled.

The Appellate Court in its judgment has referred to some facts of the case and then reproduced quotations from cited law and thereafter gave its findings as follows :--

"The learned counsel for the respondent could not controvert that the order passed by the Hon'ble High Court in Constitutional Petition No. 949 of 1978 was not having force in the field. I fear to agree with the finding of trial Court it has failed to conceive the facts available on the file of the case and has not correctly applied Order VII, Rule 11, C.P.C. hence having gone through case-law produced by the respective parties and would advise to the trial Court to record the evidence as issues have already been framed and litigation is pending since last 30 years between the parties and about more than 21 years have passed to the present suit which has been different forums."

The above findings, I am afraid is not an speaking one inasmuch as neither contents of the plaint have been examined nor its effects have been discussed and merely on case-law the matter has been decided without at all examining that such case-law is applicable to the facts and circumstances of the case. The finding of the Appellate Court on its face is not sustainable in law. The trial Court has examined the matter and concluded that the suit was time-barred and rejected the plaint under Order VII, Rule 11, C.P.C. There is no dispute that limitation period for filing of suit for declaration of ownership of the two shops will be governed by Article 120 of Limitation Act which provides for six years from the date when right to sue accrues. Right to sue accrued to the Respondents Nos. 1 to 4 on 27.1.1969 when Lieut. Col. M.A. Baqai died or on 19.3.1969 when Respondent No. 5 refused to transfer the shops in their favour on the basis that applicants have applied for transfer of these shops on the basis of inheritance or further on 25.3.1969 when the Respondent No. 5 asked for production of Letter of Administration and finally on 27.3.1969 when the shops possession was transferred to the applicants. In para. 52 of the plaint, the Respondents Nos. 1 to 4 have themselves claimed that cause of action for the suit has arisen on 25.3.1969. Looking from any angle, the Respondents Nos. 1 to 4 suit filed in 1991 was hopelessly time-barred. Learned counsel for the Respondents Nos. 1 to 4 has not argued any other ground to support the impugned judgment.

Accordingly this revision application is allowed. The impugned judgment of the Appellate Court is set aside and that of the trial Court restored and in the circumstances there will be no order as to costs.

(M.Y.) Petition allowed.

PLJ 2003 Karachi 236 (DB)

Present: S. ahmed sarwana and muhammad mujeebullah siddiqui, JJ.

TAJIRANE MAWESHIYAN WELFARE ASSOCIATION-Petitioner

versus

GOVERNMENT OF SINDH and others-Respondents

C.P. No. 143 of 2003, decided on 4.2.2003.

(i) Constitution of Pakistan (1973)--

—Art. 199-If any tax is levied without following procedure laid down in law, High Court in its Constitutional jurisdiction is empowered to declare same to be ultra vireslaw and unenforceable. [P. 239] A

(ii) Sindh Local Government Ordinance, 2001 (XXVII of 2001)--

-—Ss. 116 & ISO-Constitutional petition-Cattle entry fee-Enhancement of cattle entry fee in days of Eid-ul-Azhaby Authorities-Plea raised by Authorities was that petitioner had alternate remedy available in shape of appeal 'under S. 190 of Sindh Local Government Ordinance, 2001- Validity-Where fee had been enhanced only in respect of animals to be sacrificed in forthcoming Eid-ul-Azha, remedy of appeal under S. 190 of Sindh Local Government Ordinance, 2001, was neither efficacious nor adequate-High Court directed Authorities to charge fee as publisher) in official Gazette-Petition allowed. [Pp. 239 & 240] B & C

Mrs. Naveen Merchant, Advocate for Petitioner.

Mr. Abbas Aii, Addl. A.-G. for Respondent No. 1.

Mr. Manzoor Ahmed, Advocate for Respondent No. 2.

Mr. Muhammad Nawaz Shaikh, Advocate for Respondent No. 3.

Mr. K.A. Wahab, Advocate for Respondent No. 4:

Mr. Sohail Abbas, Advocate for Respondent No. 6.

Date of hearing: 4.2.2003

order

S. Ahmed Sarwana, J.--This petition has been filed basically to seek declaration that the action of respondents in increasing the Cattle/Bakra Peeri Fee of the Cattle Markets over and above the Schedule of Rates prescribed by Notification No. BQT/GEN-635 dated 31.5.2002 in respect of Bin Qasim Town and Notification VD/PS/86/2000 dated 11.3.2000 in respect of City District Government Karachi, are without lawful authority, mala fide, arbitrary and colourable exercises of powers, to restrain them from charging high rates of Cattle Entry Fee in the Cattle Peeri and order them to recover the fee strictly in accordance with the aforesaid Notification for their respective areas.

1. The brief facts giving rise to this petition are that Bin Qasim Town Council Karachi vide Resolution No. 3 in its meeting dated 16.3.2002 approved the following Schedule of Rates in respect of Cattle/Bakra Peeri Fee which was published in Sindh Government Gazette dated 31 May, 2002.

(I) Camel Rs. 10 per animal

(II) Cow/Buffalo Rs. 5 per animal

(III) Goat/Sheep Rs. 2 per animal

1. Similarly, after following the required procedure the Administrator Karachi Metropolitan Corporation (now Nazim City District Government Karachi/Respondent No. 2) notified the following revised rates of Cattle Peeri Fee with effect from 5.3.2000 videSindh Government Notification dated llth March, 2000 as follows :--

(1) Goat/Sheep etc. Rs. 1 per animal

(2) Cow/Buffalo/Bull Rs. 3 per animal

(3) Camel Rs. 4 per animal

1. It is alleged that the Nazim, Bin Qasim Town (Respondent No. 3), increased the Cattle Peeri Fee and advertised the contract for collection of the increased fee in the Daily Jang of 21st January, 2003 at the rate of Rs. 100 per animal for Camel, Cow or Bufallo and Rs. 30 per animal for Sheep or Bakra which contract was alleged to have been given to Respondent No. 4. It is further alleged that similarly Nazim City District Government Karachi (Respondent No. 2 ) increased the rates for Camel Rs. Rs. 4 to Rs. 150, for Buffalo/Cow from Rs. 3 to Rs. 150 and for Goat/Sheep from Rs. 1 to Rs. 50 per animal. The petitioner asserted that enhancement of the fee was carried out without following the procedure provided in Sindh Local Government Ordinance, 2001 (SLGO). In view of the fact that the Fee had been increased for the period of Eid-ul-Azha only the Court on 28.1.2003 issued pre-admission notice of the petition to all the Respondents for 30.1.2003. The counsel for the contesting respondents sought time to place documents before the Court to show that the formalities required under Section 116 of the SLGO, 2001 were complied with before the fee was increased and the contracts for collection of the same were executed. The request was allowed and the matter was adjourned to 31.1.2003.

2. On 31.1.2003 Mr. Nawaz Shaikh, learned counsel for Respondent No. 3 (Nazim, Bin Qasim Town) appeared and vehemently contended that the collection at the enhanced rate was in accordance with law as it was levied after proper resolution had been passed for the period relating to Eid- ul-Azha. He also urged that the petition was not maintainable as adequate alternate remedy under Section 190 of the Sindh Local Government Ordinance, 2001 was available. He added that the petitioners had challenged the contract of recovery fee which requires investigation of facts which could not be done in a petition filed under Article 199 of the Constitution. Mr. Marizoor Ahmed, learned advocate for Respondent No. 2 and Mr. Abbas Ali, learned Additional Advocate-General frankly conceded that the procedure laid down under Section 116 of the Sindh Local Government Ordinance, 2001 had not been followed. As far as the case of Municipal Administration Bin Qasim was concerned Mr. Abbas Ali produced a copy of the Gazette dated 15.8.2002 containing the Corrigendum issued by the Nazim, Town Bin Qasim, Municipal Administration, for rectification and correction of the typing error as follows :--

"In partial modification of Gazette Notification No. BQT/GEN/635 Karachi dated 31st May, 2002 Schedule of Taxes the following may please be rectified and corrected as typing error.

(V) Fee. for Cattle & Bakra Peeri.

(i) Camel,- Buffalo & Cow Rs. 10 per animal

(ii) Sheep & Goat Rs. 5 per animal."

However, Mr. Nawaz Shaikh was not able to produce any document to show that his client had followed the procedure laid down in Section 116 of Sindh Local Government Ordinance, 2001 for enhancement of the Bakra Peeri Fee.

1. It is well established that if any tax is levied without following the procedure laid down in the law, the High Court in its Constitutional jurisdiction is empowered to declare the same to be ultra vires the law and unenforceable. It is also well established that in an emergent situation like the present one, where the fee has been enhanced only in respect of the animals to be sacrificed in the forthcoming Eid-ul-Azha, the remedy of an appeal under Section 190 of the Sindh Local Government Ordinance, 2001 is neither efficacious nor adequate. The objections of Mr. Nawaz Shaikh are accordingly rejected.

2. Mr. K.A. Wahab, learned counsel for Respondent No. 4 and Mr. Sohail Abbas, learned counsel for Respondent No. 6 the parties who had executed the contracts for collection of the Cattle Fee for Eid-ul-Azha period submitted that in case the Court came to the conclusion that the enhanced fee cannot be charged, an observation be made that their clients would be entitled to appropriate adjustment for the said period. The request of the counsel in the circumstances is reasonable.

3. In view of the above legal position and the admissions made by Mr. Manzoor Ahmed, learned counsel for Respondent No. 2 and Mr. Abbas Ali, learned Addl. A.-G. the petition is allowed and it is hereby ordered as follows :—

"(i) Respondents Nos. 3 and 4 shall not charge Cattle Entry Fee in excess of the rates specified in Sindh Local Government Gazette dated May 31st, 2002 read with Corrigendum dated August 13, 2002. published in Sindh Government Gazette dated August, 15,2002.

(ii) Respondents Nos. 5, 6 and 7 shall not charge Cattle Entry Fee in excess of the rates specified in Sindh Government Gazette dated March 11, 2000, unless the same has been modified lawfully and published in the Sindh Government Gazette for the area concerned.

(iii) It is clarified that Respondents Nos. 4 and 6 who have been awarded the contract for collection of the Cattle Entry Fee for Eid-ul-Azha period shall be entitled to appropriate adjustment in light of the above for the said period only".

The above are the reasons for short order dated 4.2.2003 whereby Cjthis petition was allowed.

(M.Y.) Petition allowed.

PLJ 2003 Lahore 1

Present: IJAZ AHMAD CHAUDHRY; J. MALIK KHALID MEHMOOD-Petitioner

versus

STATE and 6 others-Respondents W.P. No. 10947 of 2002, decided on 24.6.2002

Criminal Procedure Code, 1898 (V of 1898)--

—S. 523-Constitution of Pakistan (1973), Art. 199-Superdari of vehicle handed over to respondent by Magistrate and Sessions Judge, assailed by petitioner-Judicial Magistrate had satisfied himself and came to conclusion prima facie finding better claim of respondent over disputed vehicle—Similar grounds which weighed before Sessions Judge for disposal of revision petition of petitioner by dismissing same were cogent-Vehicle in question, was still in the name of respondent which had never been transferred to petitioner and same could not be handed over to him on the basis of documents which he claims to be genuine but respondents denies genuineness thereof—Impugned order of superdariwas not a final order but interim arrangement-Petitioner has remedy by filing civil suit and can have interim relief if he was found entitled to same- Constitutional petition was thus, without merit and was not maintainable. [Pp. 3 & 4] A

2001 P.Cr. L.J. 428; 1994 PCr. L.J. 2148; 1986 SCMR 1539 ref, Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Date of hearing: 24.6.2002.

order

Through this Constitutional petition the petitioner seeks setting aside of the order dated 4.6.2002 passed by the learned Judicial Magistrate and the order dated 20.6.2002 passed by the learned Sessions Judge, Lahore, by declaring the same as illegal and unlawful.

1. The brief facts of the case are that the petitioner claims that he purchased Toyota Corolla Car Model 1987 bearing Registration No. B-1277, Sawabi (Old No. SBD-7 Sawabi) from Respondent No. 5, through Respondent No. 7, who is running Show Room and Respondent No. 5 had parcked the same there for its sale. The petitioner paid total amount of Rs. 2,25,000/- to Respondent No. 5 and he handed over the physical possession of the car alongwith registration book, transfer deed/ transfer letter and sale receipt. All these documents were thumb marked by Respondent No. 6 as a witness.

2. The petitioner claims that the token tax for certain period had not been paid which was the obligation of Respondent No. 5 to be paid upto date. The petitioner handed over the original registration book to Respondent No. 5 for the clearance of the token tax and Respondent No. 5 undertook to make the payment within few days but did not return the original book to the petitioner and demanded an additional amount of Rs. 50,000/- for handing over the book to the petitioner which he did not accept. The petitioner was enjoying the possession of the car without there being any hindrance from any side. Respondent No. 5 was in negotiation with the petitioner and punchayatwas convened between the parties but suddenly on 19.1.2002 the car was taken into possession by the staff of Respondent No. 4 near the Chowkof Lahore Hotel showing it as a suspected property and to examine the same from the Forensic Science Laboratory. The petitioner filed an application for the superdariof the car before the Special Magistrate Model Town Courts Lahore. With the similar prayer an application was also moved by Respondent No. 5. Both the applications were dismissed by the learned Judicial Magistrate vide order dated 13.4.2002. Both the parties aggrieved by the said order filed revision petitions which were accepted by the learned Sessions Judge with the direction to the learned Judicial Magistrate to decide both the applications of petitioner and Respondent No. 5 on merits afresh and these applications shall be deemed to be pending before him. The learned Judicial Magistrate in order to resolve the factual controversies called in the witness-box Respondents Nos. 5 and 6 and passed the impugned order by which has handed over the superdariof the car to Respondent No. 5 while the revision petition filed by the petitioner has been dismissed by the learned Sessions Judge vide order dated 20.6.2002.

3. Learned counsel for the petitioner contends that both the orders passed by the learned Judicial Magistrate and the learned Sessions Judge are illegal and unlawful being based on mis-conception of facts and law. It is further contended that the petitioner was in possession of the ear and had a better claim over the disputed car and the consistent view of the Courts is to hand over the possession of the car to the person who lastly possessed the same. He relies on judgments reported as "2001 Pak. Cr. L.J. page 428", "1994 Pak. Cr. L.J. page 2148", "1986 SCMR page 1539". It is further contended that the procedure adopted by the learned Judicial Magistrate of recording the statement of Respondent No. 6 is illegal and unlawful. The petitioner was not afforded an opportunity of cross-examination on Respondent No. 6 who has admitted his signatures and thumb impression as a witness on the said agreement but has denied the contents hence the inference has to be drawn that these documents have been executed and signed and the onus was on Respondents Nos. 5 and 6 to prove that the documents were not genuine, thus prima facie the petitioner has succeeded in making out the case for the entitlement of the car but the learned Courts below have acted illegally by not accepting the application of the superdariof the petitioner. It is further contended that the petitioner was proceeded under Efficiency and Discipline Rules and has been exonerated. The case has been registered by the Anti-Corruption Department and it cannot be made basis for not granting the superdarito the petitioner. It is further contended that the action of the police was illegal hence the car may be taken from the custody of Respondent No. 5 and may be handed over to the petitioner on superdariby accepting this petition.

4. I have heard the arguments of the learned counsel for the petitioner at length and also perused the impugned orders including the documents attached with this petition. The learned Judicial Magistrate has adopted the procedure in order to unearth the truth and has come to a.primafacie, view that Respondent No. 5 has better case for the grant ofsuperdariof the vehicle to him as his name still exists according to the registration book, as owner and he was also in possession of the said book admittedly since its alleged sale. Respondent No. 6 who was the witness to the deal has denied the contents of the documents which are in possession of the petitioner. The learned Judicial Magistrate has satisfied himself and has come to a conclusion prima facie finding the better claim of Respondent No. 5 over the disputed car. Similarly grounds which weighed before the learned Sessions Judge for the disposal of the revision petition of the petitioner by dismissing the same also are cogent and when the car is still in the name of the Respondent No. 5 which has never been transferred to the petitioner it cannot be handed over to him on the basis of the documents which he claims to be genuine but the other party denies the genuineness of these documents. Mere possession of the said document does not entitle him for the grant of superdarispecially when there is no case pending against the, aid property in any Court of law. I do not find any reason for dis-agreeing with the view taken by the Courts below at the time of disposal of the car on superdarito Respondent No. 5. Prima facie case has been found and Superdarihas been given to Respondent No. 5. The petitioner can avail the remedy by filing a civil suit before the learned Civil Judge and interim relief he claims to be entitled as the final verdict on the documents which are being relied upon by the petitioner can only be given by the Civil Court which is also competent to pass the appropriate orders for the interim relief as well after hearing both the parties while considering the material and grounds. The impugned order regarding superdariof the car is not a final order but is an interim arrangement and the Civil Court still can decide the issue in a judicious manner by affording equal opportunities to both the parties regarding claim ovar the ownership of the car.

5. For the foregoing reasons this petition has no merit and is dismissed in limineas Respondent No. 5 has a better claim over the petitioner.

(A.A) Petition dismissed.

PLJ 2003 Lahore 4

Present:RUSTAM ALI MALIK, J.

RanaMUHAMMAD SALEEM-Petitioner

versus ADDITIONAL SESSIONS JUDGE, NAROWAL and 4 others-Respondents

W.P. No. 28603 of 1997, decided on 27.6,2002.

Criminal Procedure Code, 1898 (V of 1898)--

—-S. 173-Constitution of Pakistan (1973), Art. 199-Cancellation of theft case by Illaqa Magistrate on the instruction of Additional Sessions Judge without waiting for report under S. 173 of Cr.P.C.-Procedure adopted was clearly illegal and irregular, as such order of Additional Sessions Judge whereby he had directed Magistrate to pass order after going through proceedings of investigation and his subsequent order of same date directing Magistrate to try petitioner under S. 476 Cr.P.C. for offence defined in S. 211 PPC and also subsequent order passed by Magistrate whereby he had cancelled case and discharged accused cannot be legally sustained as those orders were without lawful authority and were liable to be set aside-Orders in question, were set aside and S.H.O concerned was directed to put up proper report under S. 173 Cr.P.C. on the basis of investigation conducted in relation to F.I.R in question-­ Magistrate concerned on receipt of that report would pass fresh order, applying his independent mind. [P. 7] A & B

1994 Cr. L.J. 842; PLD 1987 SC 103 ref.

Mr. Manzoor Hussain Basra, Advocate for Petitioner. Mr. Ishfaque Qayyum,Advocate for Respondent No. 3. Date of hearing: 27.6.2002.

order

This writ petition is based on certain very strange facts. On 13.11.1997, the petitioner had submitted an application for the registration of the case against Respondent No. 3 and on 19.11.1997 F.I.R. No. 223/1997 was registered in Police Station, Narowal under Section 379 P.P.C. On 22.11.1997, Respondent No, 3 filed an application for bail before arrest which was entrusted to Respondent No. 1 and who issued notice for 6.12.1997. On 6.12.1997, instead of deciding the application for bail in accordance with law, the learned Addl. Sessions Judge, Narowal passed the following order:-

"It is enjoined from the lastzimnirecorded by the 1.0 that the case is a false one. This being so, the file of the case is sent to the Court of the learned Illaqa Magistrate for today. The learned fllaqa Magistrate should evaluate the proceedings of the investigation and then pass the orders today as to the cancellation or otherwise of the case. The petitioner and the learned counsel for the petitioner are directed to put in their appearance in the Court of learned Illaqa/Duty Magistrate today before the close of the Court hours. Bail application be put up again after the wait of the decision of the learned Illaqa Magistrate."

On the same date i.e. on 6.12.1997, in compliance with the orders of the learned Addl. Sessions Judge, Narowal, the learned Magistrate Section 30 Narowal passed the following order:-

"Police file was produced before the undersigned on the direction of learned Addl. Sessions Judge, Narowal for making appropriate order regarding the cancellation of case or otherwise. I perused the record and last Zimnidated 5.12.1997 reveals that no theft was committed. The case is false and complainant got registered case on the enmity that he was sent to jail by the accused, due to non payment of arrears of Gpvt. revenue. From the perusal of whole record I am of the view that case is false, hence the case is hereby cancelled and accused is discharged from the case."

After the learned Magistrate Section 30, Narowal had passed the aforesaid order, the file of the bail application alongwith the record was again put up before the learned Addl. Sessions Jxidge, Narowal and who then passed the second order on 6.12.1997 which is as follows:-

"The file has again been put up. The learned Judicial Magistrate has cancelled the case. Therefore, this bail application is disposed of as having become infructuous.

As the complainant of the case Rana Muhammad Saleem son of Fazal Muhammad ventured to frivolously file a false case against a public servant who put his hand on him just in discharge of the public duties. I consider it pertinent that he should be tried U/S. 476 Cr.P.C. for the offence defined in Section 211 P.P.C. Accordingly the learned Judicial Magistrate is called upon to summon the complainant Rana Muhammad Saleem in his Court on 15.12.1997 and then try him U/S. 476 Cr.P.C. for the offence defined in Section 211 P.P.C.

Copy of this order be immediately sent to the learned Judicial Magistrate for action and compliance."

1. Aggrieved of the said order of the learned Addl. Sessions Judge, Narowal, the present Writ Petition has been filed by Rana Muhammad Saleem petitioner.

2. I have carefully considered the arguments and have also perused the copies of the record appended with the Writ Petition. As it appears from the orders mentioned above, the Police had not submitted any report under Section 173 Cr.P.C. before the learned Magistrate and the learned Magistrate had passed the order dated 6.12.1997 for the cancellation of the case merely under the direction of the learned Addl. Sessions Judge, Narowal and by perusing the last Zimni(entry of case diary) dated 5.12.1997. It was held in the case of Mehmood All us. State (1994 Cr. L.J. 842 (Lahore) that the learned Illaqa Magistrate should have waited for the final report of the police under Section 173 Cr.P.C. before passing the order of discharge of the respondents and that anomalous situation would arise if on the mere observation of one Investigating Officer without proper verification by the competent authorities, the accused are discharged in a case of serious nature. It was held in the case of Muhammad Alam and another vs. Additional Secretary, Government of N.W.F.P. and others (PLD 1987 SC 103) that although application of Investigating Officer to the Deputy Commissioner was under Section 169 Cr.P.C. and was also not in form prescribed for report under Section 173 Cr.P.C., the presumption would be that the Investigating Officer intended the application to be the second report under Section 173 Cr.P.C. which was permissible under the law and that the report under Section 169 Cr.P.C. otherwise too, was not proper course in the circumstances and order of the Addl. Deputy Commissioner releasing the petitioner and discharging him of his bond, could be made under Section 173 Cr.P.C. and not under Section 169 Cr.P.C. and that cancellation of case also, if validly made, would have to be under Section 173 Cr.P.C.

3. In this case, the learned Addl. Sessions Judge, Narowal had acted in a very strange manner and probably for the learned Magistrate there was left no other alternative but to comply with the orders of the learned Addl. Sessions Judge, Narowal and to proceed to cancel the case and to discharge the accused pursuant to the last entry of the case diary. The procedure so adopted was clearly illegal and irregular and as such the order of the learned Addl. Sessions Judge, Narowal whereby he had directed the learned Magistrate to pass an order after going through the proceedings of the investigation and his subsequent order of the same date directing the learned Magistrate to try the petitioner under Section 476 Cr.P.C. for the offence defined in Section 211 P.P.C. and also the-subsequent order passed by the learned Magistrate Section 30 whereby he had cancelled the case and had discharged the accused cannot be legally sustained as the said orders are without lawful authority and as such are liable to be set aside.

4. In view of what has been stated above, the Writ Petition is accepted and the impugned order dated 6.12.1997 passed by the Respondents No, 1 and 2 and consequent cancellation of case F.I.R. No. 223/1997 of Police Station City, Narowal are set aside. The S.H.O. of Police Station City, Narowal is directed to put up a proper report under Section 173 Cr.P.C. on the basis of the investigation conducted in relation to F.I.R. No. 223/1997 of his Police Station before the learned Iliaqa Magistrate who shall pass a fresh order, applying his independent mind regarding the cancellation or otherwise of the case.

(A.P.) Case remanded.

PLJ 2003 Lahore 7

Present: KARAMAT NAZIR BHANDARI, J.

PROVINCE OF PUNJAB through its SECRETARY TO GOVT. OF

PUNJAB, HOUSING & PHYSICAL PLANNING DEPARTMENT, LAHORE and another-Appellants

versus

Sufi ABDUL HAMEED-Respondent FAO No. 213/92, decided on 17.7.2002

(i) Arbitration Act, 1940 (X of 1940)--

—S. 20(4) & (5)-Application for appointment of receivel'-Essentials-Filing of agreement has to precede appointment of arbitrator or arbitrators— Once such steps were taken, thereafter arbitration would proceed in accordance with and would be governed by other provisions of Act so far as they can be made applicable. [P. 10] A

(ii) Arbitration Act, 1940 (X of 1940)--

—-Ss. 20 & 39-Appointment of arbitrators without direction of filing of agreement-Court straightaway proceeded to appoint arbitrators directing them to file award—Such procedure being illegal vitiates all proceeding- Participation of appellants in proceedings before arbitrators without protest does not disentitle appellants to urge such point in as much as, neither Court nor parties themselves can circumvent mandatory provision of S. 20(4) & (5)-Impugned decree/award was set aside and case was remitted to Trial Court for fresh direction in accordance with law. [P-10] B

PLD 1960 (W.P) Karachi 78; PLD 1980 Lahore 305; AIR 1965 All. 269 ref.

Mr. Muhammad Amin Lone Asstt. A.G. Punjab assisted by MianGhulam Hussain, Advocate for Appellants.

Mr. Riaz Karim Qureshi,Advocate for Respondent. Date of hearing: 12.7.2002.

judgment

Respondent on 16th December 1982 filed an application under Section 20 of the Arbitration Act 1940, (hereinafter referred to as the Act) seeking a direction for filing of the arbitration agreement in Court and for initiating the arbitration proceedings. The application was contested by filing reply. Arising out of the pleadings, the Court framed as many as seven issues. Learned counsel for both the parties made a statement that the issues can be decided without recording of evidence, the same being legal. Thereafter the case remained pending for consideration of the application for amendment, which was ultimately allowed on 13.3.1985. The Court directed filing of amended application/plaint, which was done. However, learned counsel for the appellant made a statement that there was no need to file an amended reply. On 21.12.1985 two Arbitrators were nominated to give the award which was filed in Court on 27.10.1989. The award was in favour of the respondent in the sum of Rs. 2,46,277/-. The appellant filed objections to the award, which gave rise to two issues. The appellant examined two persons as witnesses. Thereafter the evidence of the appellants was closed against which the appellant filed Civil Revision No. 1136 of 1991 in this Court. The revision was disposed of on 8.2,1992 with the permission to the petitioner to attack the order of closure in appeal against the award, if any. No evidence was produced by the respondent. The trial Court over ruled the objections and made the award the Rule of the Court.

1. In this appeal under Section 39 of the Arbitration Act 1940, it has been strenuously argued by learned counsel for the appellant that the award is illegal and invalid as the trial Court never decided the original seven issues and further never allowed the application under Section 20 of the Act. It is urged that the procedure adopted by the Court has no sanction of law. It is also urged that application under Section 20 of the Act is not competent as the respondent did not act in accordance with condition 25-A of the agreement and never asserted his grievance before the Superintending Engineer as required by the above condition. In reply, it is urged by learned counsel for the respondent that the appellant participated in the arbitration proceedings without any protest and took the chance of success and, therefore, it cannot now be remitted to turn around and raise objection to the jurisdiction of the Arbitrators. He has relied on Suleman Haji Muhammad and Co. v. State Bank of Pakistan (PLD 1960 (W.P.) Kr. 78). He has further elaborated that the appellant appointed Mr. Saeed Khokhar, Superintending Engineer as its Arbitrator after revocation of the authority of Hafiz Aslam by the Court.

2. The record of trial Court shows that the application under Section 20 of the Act has never been disposed of by the Court. It has never directed the agreement to be filed in Court. Resultantly, there is no arbitration agreement on the file. There is no disposal of seven issue framed on 12.10.1983. It is, however, correct that without such disposal of application under Section 20 of the Act, the parties proceeded to nominate their respective Arbitrators. On 21.12.1985 the Court referred the matter to the Arbitration of Mr. Saeed Ahmed Khokhar, Superintending Engineer, Gujranwala and Muhammad Ashraf Khan, Superintending Engineer, Gulberg, Lahore and directed them to file the award by 28.3.1986. It is also' correct that appellants did not object to the jurisdiction of the Arbitrators and participated in proceedings before the Arbitrators without any reservation. It is also correct that in the objection petition, the point now being raised has not been taken. The question, therefore, is whether this illegality can be ignored on the ground that the appellants are estopped to challenge the award on the basis of their conduct?

3. SECTION 20 APPEARS IN CHAPTER 3 OF THE ACT WHICH IS HEADED "ARBITRATION WITH INTERVENTION OF A COURT WHERE THERE IS NO SUIT PENDING ". Sub-section (1) enables any person, party to arbitration agreement to apply to the Court for filing of the agreement in Court. Under sub-section (2) such an application has to be in writing and it has to be umbered and registered as a suit. Sub­section (3) provides that the Court will issue notice to all the parties to the agreement other than the applicants requiring them to show as to why the agreement be not filed. Sub- sections (4) and (5) are crucial to this case and, therefore, are reproduced:-

(4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court.

(5) Thereafter the arbitration shall proceed in accordance with and shall be governed by, the order provisions of this Act, so far as they can be made applicable.

1. It will be appreciated that the language of sub-section (4) is mandatory inasmuch as if no sufficient cause is shown the Court has to order the agreement to be filed and thereafter "shall make an order of a reference to the Arbitrator appointed by the parties ". The mandate of the lawgiver is very clear. The filing of agreement has to precede the appointment of the Arbitrator or the Arbitrators. Language of sub-section (5) further confirms the mandatory requirement of filing of agreement in the first instance. The expression thereafter in sub-section '(5) confirms that once the steps mentioned in sub-section (4) have been taken, thereafter the arbitration shall proceed in accordance with and shall be governed by, the other provision of the Act, so far as they can be made applicable. The view I have taken is fortified by the decisions reported as University of the Punjab v. Perfect Electric Concern (PLD 1980 Lahore 305) Union of India v. Mohammad Usman and (AIR 1965 Allahabad 269).

2. In this appeal, unfortunately, the trial Court has fell into error in proceeding to appoint the Arbitrator without directing the filing of agreement. In other words without even deciding the application under Section 20. It was only when the agreement had been-filed that the Court could have ascertained whether the dispute between the parties is covered by the arbitration clause or not. On such a finding the Court could have proceeded to direct reference to arbitration in accordance with the terms of arbitration agreement. As it is, the Court straightaway proceeded to appoint arbitrators and directed them to file the award. In my judgment, such a procedure is illegal and vitiates all the proceeding notwithstanding the failure of the learned counsel appearing for the parties to point out the exact procedure or failure of the learned counsel for the appellant to object to the manner in which the Court proceeded. Similarly, participation of the appellants in proceedings before the arbitrators without protest does not disentitle the appellants to urge this point. The reason is that neither the Court nor the parties themselves can circumvent the mandatory provision of Section 20(4) and (5). Such an agreement will be void being opposed to public policy, under Section 23 of the Contract Act 1872.

3. No other point has been urged. For the reasons noted above, this appeal is allowed. The impugned decree/award is set aside and the case is remitted to the trial Court for fresh decision in accordance with law. The trial Court will proceed to decide the question of filing an arbitration agreement in the first instance before making reference to Arbitrators. No order as to costs.

(A.A) Case remanded.

PLJ 2003 Lahore 11

Present: maulvi anwarul haq, J. MalikGUL MUHAMMAD-Petitioner

versus MUSSARAT BEGUM and 18 others-Respondents

C.R. No. 1651 of 1995, decided on 18.2.2002.

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

—0. XLI, R. 33--Appeal against consolidated payment-Appellant Court was vested with powers under O. XLI, R. 33 C.P.C. to pass any decree which ought to have been passed-Such power is not subject to filing appeal by a party provided that party was before Court-Where only reason for dismissing suit for partition stated in same judgment was that suit for specific performance was being decreed, First Appellate Court ought to have passed preliminary decree for partition—High Court was empowered in terms of S. 115 C.P.C. to correct such error as a result where of, preliminary decree of partition was passed in terms of respective shares of parties. [P. 14] B

(ii) Qanun-e-Shahadat Order (10 of 1984)--

—Art. 84 Powers conferred on Court under Art. 84 of Qanun-e-Shahadat include examination of suspected documents by Court to determine as to whether signature was tracing. [P. 14] A

Kh. Mukhtar Ahmad Butt, Advocate for Petitioner. Mr. Muhammad Iqbal, Advocate for Respondents 2 to 18. Nemo of Respondents Nos. 1 and 19. Date of hearing: 18.2.2002.

judgment

On 7.2.1968 the petitioner filed a suit against the respondents. It may be stated here that the suit shop was admittedly owned by Bagh AH who died on 1.10.1967. The Respondent No. 1 is widow while Respondents Nos. 2 to 8 are successor-in-interest of Muhammad Munir the brother of said Bagh Ali while Respondents No. 9 to 18 are successor-in-interest of Mst. Sharifan Begum sister of said Bagh Ali. In his plaint the petitioner stated that Bagh Ali promised to sell the suit shop in his favour for consideration of" Rs. 12,000/-. Out of this amount he paid a sum of Rs. 6000/- in cash and Rs. 2000/- through bank draft. The agreement dated 12.3.1967 was executed and it was promised that within six months upon receipt of balance amount of Rs. 4000/- he will execute a sale-deed in favour of the petitioner and get it registered; that the PTD of the shop was delivered to him; that Bagh Ali died on 1.10.1967 before he could complete the contract, whereas the said widow, brother and sister of the deceased despite notice refused to perform the agreement. It may be noted here that it was stated in this plaint the deceased in his life time used to do business in the shop in partnership with present Respondent No. 19.

1. The Respondent Nos. 1 and 19 conceded the suit vide written statement filed on 18.4.1968. It was contested by the said predecessors of Respondents Nos. 2 to 18. They denied that Bagh Ali had executed any agreement. Their plea was that the petitioner in collusion with Respondent No. 1 is trying to deprive them of lawful share in the suit property. Regarding PTD it was stated that the widow of the deceased had handed over the same to the petitioner after the death of Bagh Ali.

2. The said sister and brother of the deceased filed a suit against Respondents Nos. 1 and 19 for separate possession of their share in the suit shop by partition as also for rendition of accounts for the business in the shop. The suits were consolidated. Evidence of the parties was recorded. Vide consolidated judgment and decree dated 23.7.1975 the learned trial Court decreed the suit filed by the petitioner, the suit for partition was dismissed but a decree-for rendition of accounts regarding business in the shop was passed in favour of Respondents Nos. 2 and 18. Against the said judgments and decrees two first appeal were filed by Respondents Nos. 2 to 18 while one appeal was filed by Respondent No. 19. All the three appeals were heard by a learned Addl. District Judge Sialkot. He found that the minor defendants in the case filed by the petitioner had not been sued through guardian ad-litem. The decree in favour of petitioner was accordingly set aside. Since the suit for partition was dismissed only on the ground that the suit of the petitioner for specific performance has been decreed, the said decree of dismissal was also set aside. The result was that both the suits were remanded back to the learned trial Court vide order dated 16.3.1983. After remand the learned trial Court framed the following issues:-

3. Whether the plaintiff and Bagh Ali deceased entered into any agreement regarding the shop in dispute, is so, what that agreement was? OPP

4. It Issue No. 1 is proved, whether the plaintiff is entitled to the possession of shop, through specific performance of the said agreement by the defendants, if so, on what terms? OPP

5. Whether the alleged agreement to sell is based upon fraud and the signatures of Bagh Ali deceased are also result of fraud and are forged one, if so, its effect? OPD

6. Whether the C.S. 348/1985, the plaintiffs are entitled to revolution of accounts and partition of the disputed shop? OPD

7. Whether this suit is not maintainable in its present form? OPD

8. Relief.

The learned trial Court vide consolidated judgment and decree dated 22.11.1986 again proceeded to decree the suit filed by the petitioner, dismiss the suit for partition and to decree the prayer for rendition of accounts. Against this judgment and decree two first appeals were filed by respondents. Both these appeals were taken up by a learned Addl. District Judge, Sialkot, vide judgment and decree dated 6.6.1995 the appeal in the specific performance suit was allowed and suit filed by the petitioner was dismissed. Regarding the other suit it was observed that the appeal has not been filed against the decree whereby the suit was dismissed and in the said suit qua the rendition of accounts a final decree was passed on 3.10.1987. The other appeals was referred to as an appeal against the interim order passed on 28.9.1987 and was dismissed.

1. Learned counsel for the petitioner contends that the evidence on record has been misread by the learned Addl. District Judge while passing the impugned judgment and decree dismissing the suit of the petitioner for specific performance of the agreement to sell. According to the learned counsel notwithstanding the relationship of all witnesses with the petitioner, the execution of the agreement by deceased Bagh Ali stood proved. Learned counsel for Respondents Nos. 2 to 18 on the other supports the impugned judgment and decree of the learned Addl. District Judge, 5. I have gone through the copies of the record appended with this civil revision by the petitioner. The copy of the agreement dated 12.3.1967 Exh. PI is available on file. The agreement is scribed by alik Karamat Khan, purports to bear the signatures of Bagh Ali and his witnesses by Malik Sher Khan and Malik Shukar Ilahi. It narrates that Bagh Ali had borrowed Rs. 2000/- from Malik Gul Muhammad, his " through Muhammad Aslam which is due and that he has suffered losses in his business and duetto lack of capital his business in the said shop is running properly. Therefore, he has agreed to sell the shop to said Gul Muhammad petitioner for Rs. 12,000/- out,of which he has received Rs. 2000/- through bank draft issued by Muhammad Aslam while Rs. 6000/- has been paid in cash in presence of witnesses and scribe and that he shall transfer the shop in the favour of petitioner within 6 months and that PTD has been delivered to the petitioner. Now the said persons i.e. witnesses, scribe and the petitioner are inter-related Karamat Khan PW1 scribe is the brother of said Sher Khan PW3 witnesses. Respondent No. 1 i.e. widow of Bagh Ali is the real sister of wife of Gul Muhammad petitioner and both the ladies are the nieces of Malik Karamat Khan PW-1 and Malik Sher Khan PW-3. The mother-in-law of the petitioner is cousin of father-in-law of Malik Shukar Khan PW-2. The document was admittedly written at the house of Karamat Khan PW-1. The scribe i.e. PW-1 insisted that no time was fixed for completion of the document. It is true that the witnesses cannot be attributed the knowledge of the contents of the document but this rule would not be applicable to a scribe who claims to have written the document. Now document narrates that agreement was to be performed within 6 months. It so happened that Bagh All died at a point of time i.e. on 1.10.1967 after expiry of said period. There is no explanation either in the plaint or in the evidence of the petitioner as to why the agreement was not performed during life time of the deceased. As per document Exh. PI it appears to have been written on a plain paper, when it is evident that stamp vendor runs his operation just near the shop of the deceased. So far as the petitioner himself is concerned, his statement is replete with the notes made by the learned trial Court as to his demeanour and ultimately the learned trial Court was constrained to note that the petitioner is liar of deepest die. He was unable to face cross-examination with reference to matter of payment of earnest etc. The learned Addl. District Judge has considered the evidence in its entirety in the back ground of the peculiar circumstances of this case which is apparent on the face of record. Learned counsel for the petitioner has been unable to point out any mis-reading or non-reading of the evidence on record by the learned Addl. District Judge. I also find that the learned Addl. District Judge examined the document and has proceeded to observe that signatures of late Bagh Ali appeared to be tracing. To my mind, the powers conferred on a Court under Article 84 of Qanun-e-Shahadat Order 1984 (Section 73 of Evidence Act, 1872) clearly do include the examination of suspected document by the Court to determine as to whether the signatures is tracing. Be that as it may. apart from the said observations of the learned Addl. District Judge the reading of the entire evidence on record does support the conclusion arrived at by him.

2. I, therefore, uphold the findings of the learned Addl. District Judge on Issues Nos. 1 to 3.

3. The matter however, does not end here. As narrated by me above the suit filed by the petitioner and suit filed by Respondents Nos. 2 to 18 were consolidated Issues were framed and decision was given in consolidated judgment. I have already referred to the earlier judgment of the learned trial Court dated 23.7.1975 and remand order dated 16.3.1983. I find that the learned trial Court virtually copied down the judgment of his learned predecessor in the post remand proceedings. Only one line has been written by him while discussing Issue No. 4 as to why he is dismissing suit for partition. It is reproduced herein "but as discussed above, Bagh Ali had already agreed to sell disputed shop, no question of partition arises." This is a civil revision. I do find that when consolidated judgment was before the learned Court of appeal it was vested with powers under Order 41 Rule 33 CPC to pass any decree which ought to have been passed. This power is not subject to filing of an appeal by a party provided the party is before the Court. In the present case I find that learned Court of first appeal has failed "to exercise the said jurisdiction vesting in him under Order 41 Rule 33 CPC. To my mind, the appropriate decree or order to be passed and made in this case when it was found that decree in favour of the petitioner is not sustainable and particularly when only reason for dismissing the suit for partition stated in the same judgment was that suit for specific performance is being decreed, the learned First Appellate Court ought to have passed a preliminary decree for partition. To my mind, Section 115 CPC does authorize this Court to correct the said error.

4. In view of the above discussion, the judgment and decree of the learned Addle. District dismissing the suit filed by the petitioner is upheld and at the same time the findings of the learned trial Court on Issue No. 4 pertaining to the suit for partition is reversed. The result is that while upholding dismissal of the suit of the petitioner for specific performance of the said agreement to sell dated 12.3.1967, a preliminary decree is passed in favour of Respondents Nos. 2 to 18 and against Respondents Nos. 1 and 4 for separate possession of 3/4 share in the suit shop by partition. Copy of this judgment be immediately remitted to the learned trial Court where the parties shall appear on "28.3.2002. The learned trial Court shall requisition the record and proceed to pass the final decree in accordance with law. No order as to costs.

(A.P.) Case remanded.

PLJ 2003 Lahore 15

Present:maulvi anwarul HAQ, J.

MUHAMMAD KHALID WASEEM and another-Petitioners

versus MANSOOR AKBAR KOKAB and 8 others-Respondents

W.P. Xo. 9887 of 2001, heard on 26.3.2002.

(i) Punjab Local Government Election Order, 2000--

—-S. 14(J)-Disqualification to be elected or to hold elective office or membership of Local Government-Default which constitutes disqualification is not mere default of financial dues, owed to, inter alia,any financial institution within meaning of S. 14(J) of Punjab Local Government Election Order, 2000, but same has to be "wilful" and there must be some element of adjudication involved in the matter of declaring default to -be wilful. [P. 18] A

(ii) Punjab Local Government Election Order, 2000--

—S. 14(J)--Petitioner whether adjudicated to be a "wilful defaulter"-Decree for recovery of loan amount against petitioner had not been fully satisfied and was certainly not satisfied by the time nomination papers were filed by petitioner—Petitioner in his written reply filed before Election Tribunal, offered no explanation as to why amount in question, was not paid much less, statement of a cause recognized by law to be sufficient for non-performance of a .duty or an obligation or to disregard order contained in decree of Judge Banking Court-Petitioner, thus, stood adjudged to be a "wilful defaulter" within meaning of S. 14(J) of Punjab Local Government Election Order, 2000. [P. 19] B

(iii) Punjab Local Government Election Order, 2000--

—R. 20-Election Tribunal declared respondents/contestants to be elected Nazim and Naib Nazim of specified Union Council after adjudging election of petitioners to be void-Election Tribunal, thus, had proceeded in a manner not warranted by law-Entire election petition did not contain a word that disqualification attributable to petitioner was "notorious" and known in entire constituency—Respondents in their election petition had stated that they came to known about the matter of decree against petitioner and .its execution sometime after elections-If respondents who were direct contestants in election were not aware of such disqualification it can safely be assumed that majority who voted for petitioner and his co-candidate were also not aware of said disqualification-Election Tribunal thus, acted without lawful authority while declaring respondent, to be returned candidates—Order to the extent of declaring respondents to be elected Nazim and Naib Nazim of Union Council was set aside. [Pp. 20 & 21] C & D

PLD 1967 SC 530; PLD 1976 SC 6 re/1 Mr. Hamid Khan, Advocate for Petitioners.

Rana Muhammad Arshad Khan, Advocate for Respondents Nos. 2 and 3.

Nemo for other Respondents. Date of hearing: 26.3.2002.

judgment

The petitioners on the one hand and the private respondents on the other, in the form of panels, contested election to the seats of Nazim and Naib Nazim in Union Council No. 28 Aggoki, Sialkot. The petitioners having polled 3802 votes as against 3593 votes of Respondents Nos. 2 and 3 were declared returned. The election was challenged by Respondents Nos. 2 and 3 by filing an 'election petition on 7.4.2001. In this election petition it was alleged that Petitioner No. 1 (Muhammad Khalid Wa'seem) stands disqualified from contesting the election inasmuch as there is a decree outstanding against him issued by a Banking Court at Gujranwala and execution is in progress. The Respondents Nos. 2 and 3 filed written statement objecting to the impleadment of Muslim Commercial Bank Limited as a party to the petition, non-verification of the election petition according to Rules and the election petition being premature. While replying the petition on merits it was admitted that Muslim Commercial Bank filed a suit against M/s Leather Leaves (Pvt.) Ltd. and a decree in the sum of Rs. 51,78,821/- was passed. It was, however, pleaded that a first appeal is pending against the said decree in the High Court.. It was also admitted that the said Petitioner No. 1 was a party to the said suit being a Director of the said Company. It was then stated that the said petitioner holds only 3.54 percent of the total share holding of the said Company. It was further stated that the said Bank has agreed to the adjustment of the entire claim if a sum of Rs. 42,45,000/- is paid in terms of the agreement. A letter of the Bank to the said effect was annexed with reply. It may be noted here that petitioners as well as the Manager of the said Bank put in appearance on 20.4.2001 when the case was adjourned to 4.5.2001 for reply of the said petitioners. On this date the adjournment was prayed for on behalf of the petitioners because the learned counsel was not well. The adjournment was granted. The petitioners were directed to file their reply on 23.5.2001 and also to be present in person on the said date. On 23.5.2001 the replies were filed. Arguments of the learned counsel were heard and the petition was allowed, with the result that the election of the petitioners was declared to be void while Respondents Nos. 2 and 3 were declared as duly returned.

1. Mr. Hamid Khan, learned counsel for the petitioners argues that the learned Tribunal has acted without lawful authority inasmuch as he has proceeded to decide the election petition without recording any evidence. Further contends that the mere fact that a decree was passed or that it was being executed against his clients would not make his client a person who has been "adjudged a wilful defaulter" within the meaning of Section 14(j) of P.L.G.E.O. 2000. According to the learned counsel the term "wilful defaulter" has not been defined in the said Ordinance and as such shall have to be interpreted with reference to the definition of the offences as given in the National Accountability Ordinance 1999. Also complains that Respondents Nos. 2 and 3 could not have been declared elected Rana Muhammad Arshad Khan, learned counsel for the Respondents Nos. 2 and 3, on the other hand, argues that in view of the pleadings of the parties and the admitted fact that the decree had been passed and was under execution, no evidence was needed to be recorded to resolve the preliminary question as to whether or not the Petitioner No. 1 was qualified to contest the election. He supports the impugned judgment of the learned Tribunal.

2. I have gone through the copies of the records, appended with this Writ Petition. I have already reproduced the pleadings of the parties and given the details of the proceedings that took place before the learned Tribunal above. I may reproduce here Section 14(j) of the P.L.G.E.. 2000:-

"14. Qualification for candidates and elected members:-

A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he:-

......... (j) has not been adjudged a wilful defaulter of any tax or

other financial dues owed to the federal, a provincial or a local Government or any financial institution, including utility bills outstanding for six months or more; "

A reading of said Section would show that as stated by Mr. Hamid Khan, Advocate it is not a mere default of financial dues owed to, inter alia, any financial institution, which constitutes disqualification within the meaning of the said provisions of law. The default has to be wilful and there must be some element of adjudication involved in the matter of declaring the default to be wilful. Now examining the pleadings in the light of the said provision of law, I find that it stands admitted that a decree was passed in favour of Muslim Commercial Bank Limited and against, inter alia, the Petitioner No. 1; that the decree is under execution and that it remains unsatisfied. On the other hand, the Petitioner No. 1 relied upon a letter (Annex-H to the Writ Petition) issued by the said Batik wherein a commitment has been made for repayment of the amount somewhere in May, 2001 and a revised schedule was agreed to by the Bank. There is no dispute that the decree was passed on 15.5.1999 and the copy thereof is annexed R/l filed on record by the Respondents Nos. 2 and 3 alongwith their written statement. At this stage, I may state that whereas the learned counsel for the Respondents Nos. 2 and 3 stated at the bar that no appeal stands filed against the said decree, the learned counsel for the petitioners was not in a position to controvert the said statement or to give any particular of the said appeal. Be that as it may, claim of the Bank before the Banking Court was that the Company through the petitioner, its Chief Executive, requested the Bank for the financial facility which was allowed from time to time that the defendants including the Petitioner No. 1 mortgaged their properties. The Bank then alleged that the defendants including the petitioners failed to liquidate their liabilities and a sum of Rs. 50,42,358/- was outstanding against the said defendants as per the statement of accounts. It was further alleged that the Chief Executive i.e. the Petitioner No. 1 availed the facility of master card in the sum of Rs. 1,36,463/-. According to the Bank the legal notices were served for payment of the said amount but the same was not paid necessitating the filing of the suit. The defence sought to be taken by the defendants including the Petitioner No. 1 was that only Rs. 36,41,000/- were owed to the Bank. The parties were heard and the learned Judge Banking Court, Sialkot found that plausible defence had not been made out; I have noted with some interest that one of the pleas raised before the learned Banking Court was that the said master card facility was availed only by the Petitioner No. 1 and as such other defendants in the case cannot be held responsible to pay the said amount. The learned Banking Court then concluded that the defendants in the suit have not repaid any amount, when they were required to repay the same upto 31.12.1996. It was also noted that defendants in the case has failed to explain as to why they have not paid the outstanding amount. The decree was accordingly passed in the said amount jointly and severely against the defendants in the suit.

1. As noted by me above Mr. Hamid Khan, Advocate for the petitioners has tried to argue that the term "wilful default" has to be construed with reference to the said N.A.B. Ord. 1999. However, while going through the relevant provisions of the said Ordinance, the learned counsel had to concede that the said Ordinance primarily being a penal law defines wilful default as an offence and the perpetrator whereof has to be penalized in the manner prescribed in the said Ordinance. To my mind, the definition or explanation contained in the said N.A.B. Ordinance are not at all relevant in construction of the term as used in P.L.G.E.O.
2. The term default came for discussion before the Honourable Supreme Court of Pakistan in the case of GhulamMuhammad Khan Lundkhor vs. Safdar All (PLD 1967 S.C. 530). A case decided under the provisions of West Pakistan Urban Rent Restriction Ordinance (VI of 1959). Reference was made to the meaning of the word as given in Stroud's Judicial Dictionary which according to the contention raised before their Lordships would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he has no control such as stress of weather or unless hindered by the plaintiffs non-performance of some condition precedent or unless there has been a waiver of performance. Their Lordships after re­capitulating the some case law on the subject concluded as follows at Page 539 of the report:

"The word "default" in legal terminology necessarily imports an element of negligence or fault and means something more the mere non-compliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear, that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 1 default" should mean an act done in breach of a duty or in disregard of an order or direction."

Applying the said test to the present case, there is a findings recorded by the learned Judge Banking Court that no explanation has been forwarded by the defendants before him for non payment of the amount due to the Bank. Admittedly the amount has not been paid. In fact, the decree has not been fully satisfied and was certainly not satisfied by the time the nomination papers were filed by the Petitioner No. 1. I have already referred to the written statement filed by the petitioners before the Election Tribunal and there still is no explanation forthcoming as to why the amount was not paid much less statement of a cause recognized by law to be sufficient for non-performance of a duty or an obligation or to disregard the order contained in the decree of the Judge Banking Court. In this view of the matter, I do hold that the Petitioner No. 1 stood adjudged to be a wilful defaulter within the meaning of the said Section 14(j) of the P.L.G.E.O. 2000.

1. The learned Tribunal has further proceeded to declare Respondents Nos. 2 and 3 to be the elected Nazim and Naib Nazim of the said Union Council No. 28, Sialkot after adjudging the election of the petitioners to be void. Here, I agree with the learned counsel for the petitioners that the learned Election Tribunal has proceeded in a manner not warranted by law declared by the superior judiciary on the subject. I have already stated above that in the said election held on 27.3.2001, the petitioners polled 3802 votes while Respondents Nos. 2 and 3 polled 3593 votes. The other two panels comprising Respondents Nos. 4 and 5 on the one hand and Respondents Nos. 6 and 7, on the other polled 21 and 107, respectively. Thus the petitioners polled votes in excess of the votes polled by all the other panels put together. It has to be seen as to whether the majority votes could have been treated as thrown away votes as has been done by the learned Tribunal. To my mind, the answer has to be in the negative. I have examined the election petition. It is true that Respondents Nos. 2 and 3 did make a prayer in terms of Rule 80 'of P.L.G.E. Rules, 2000 that they be declared elected. However, there is not a word in the entire election petition C that the said disqualification attributable to the Petitioner No. 1 was notorious and known in the entire constituency. On the other hand, it is in the election petition itself that the Respondents Nos. 2 and 3 came to know about the matter of the said decree and its execution sometimes after the elections. The election petition was filed on 7.4.2001 and para 4 starts as

under: If the Respondents Nos. 2 and 3 who were the direct contestants in the election were not aware of the said disqualification it can safely be assumed that the majority who voted for the Petitioner No. 1 and his co-candidate were also not aware of the said disqualification. Needless to state that there is not a word in the judgment of the learned Tribunal as to why he declared Respondents'Nos. 2 and 3 to be elected candidates after holding the election of petitioners to be void. The criteria in the matter was laid down by the Honourable Supreme Court of Pakistan quarter century back in the case of Syed Saeed Hassan vs. PyarAli and 7 others (PLD 1976 S.C. 6). Mr. Justice Muhammad Afzal Cheema (as his Lordship then was) in his leading opinion thus observed at page 35 of the report:

"It may be observed with respect that on the view taken by us we hardly find any point of conflict between the aforesaid provision and the principles laid down in Halsbury's Laws of England adopted and approved by this Court in several authorities. The well known principle in substance is that "votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."

I, therefore, find that the learned Election Tribunal has acted without lawful authority while declaring the Respondents Nos. 2 and 3 to be returned candidates.

1. As a result of above discussion, this writ petition is partly allowed inasmuch as while upholding the decision of the learned Election Tribunal in declaring the election of the petitioners to be void for the reasons stated therein. The order declaring the Respondents Nos. 2 and 3 to be elected Nazim and Naib Nazim of Union Council No. 28 is set aside being without lawful authority.

2. No order as to the costs.

3. Copy of this petition be immediately remitted to learned Chief Election Commissioner and D.R.O Sialkot.

(A.A) Order accordingly.

PL J 2003 Lahore 21

[Multan Bench Multan]

Present:FARRUKH LATEEF, J.

MUHAMMAD ASLAM-Petitioner

versus

DISTRICT OFFICER REVENUE, SAHIWAL and another-Respondents

W.P. No, 4417 of 2002, decided on 6.6.2002

Constitution of Pakistan, 1973--

—- Art. 199 Specific Relief Act (I of 1877), S. 42-Declaratory decree declaring title of decree holder to property in question, with consequential relief of perpetual injunction sought to be executed by filing constitutional petition-First portion of decree being purely declaratory cannot be executed-Second portion thereof, provides preventive relief-Execution of decree could have been possible only if terms of decree contained mandatory injunction under S. 55 of Specific Relief Act 1877, to compel performance of requisite act-Direction sought by petitioner cannot be issued in as much as, declaratory decree was not capable of execution. [P. 23] A & B

Mr. TJariq Muhammad Iqbal, Advocate for Petitioner. Date of hearing: 6.6.2002.

order

He has been heard; writ petition and its annexures have also been perused.

1. Facts of the writ petition are that Muhammad Aslam son of Nazir Ahmad filed a suit against Province of Punjab. A. C. Saddar District, Sahiwal and one Abdul Sattar for a declaration that he is in possession of Plot No. 9/1/1/1 measuring 1 Maria situated in Jinnah Colony, Tehsil and District Sahiwal, by virtue of being allottee thereof.

2. By way of consequential relief it was prayed that Defendant No. 2 be perpetually restrained from changing entries in the revenue record thereby showing Respondent No. 3 as owner of the said plot and all the respondents be restrained from denying his ownership or from interfering with his possession over the said plot for all times to come.

3. The said suit was decreed on 8.6.1994. On 30.7.1999 decree- holder moved an application (Annex. F) to the Tehsildar, Sahiwal (Respondent No. 2), a functionary of the judgment-debtor for implementing the said decree by attesting a mutation on the basis thereof in his favour and incorporating his ownership in the revenue record.

4. It is urged that Respondent No. 2 is bound to implement the said decree but he is not performing his statutory duty and there is no other remedy available to the petitioner except to invoke the Constitutional jurisdiction of this Court. Prayer is that a direction be issued to judgment debtor (Respondent No. 1) to implement the said decree in the aforesaid manner.

5. Through this constitutional petition, in fact, decree of Civil Court is desired to be enforced/implemented. The petitioner has got remedy of filing an execution application before the Court which had passed the decree, under Rule 10 of Order XXI CPC which provides that where holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the Court to which it is sent for execution.

6. Decree (Annex. E) which is required to be implemented is purely a declaratory decree declaring title of the decree holder in the suit property with consequential relief of perpetual injunction restraining the judgment debtors from denying his title and from interfering with his possession over the said property.

7. A decree, in order to be executed, should be capable of execution i.e. it should order the doing or restrain the doing of an act.

8. First portion of the decree is purely declaration and as such cannot be executed. Second portion thereof provides preventive relief granted under Section 54 of the Specific Relief Act whereby judgment- debtors have been restrained from denying ownership of the decree-holder and have been forbidden to interfere with his possession.

9. It is not complained that any of the judgment-debtors has denied title of or has interfered with possession of the decree-holder.

10. "Demand of the decree-holder (petitioner) is that Respondent No. 2 (Tehsildar) a functionary of judgment-Debtor No. 1 (Province of Punjab) be directed to implement the decree by attesting a mutation in favour of the decree-holder and incorporating his ownership in the revenue record. This could have been possible only if terms of the decree contained a mandatory injunction under Section 55 of the Specific Relief Act to compel performance of the requisite act.

11. Copy of judgment (Annex. B) shows that issuance of mandatory injunction by way of consequential relief was neither prayed for in the plaint nor the said relief was granted by the Court. Consequently mandatory injunction to compel the requisite act was hot granted in the decree.

12. A decree is to be executed in accordance with its terms and conditions without modification.

13. Section 51 of CPC enumerates generally the modes to be adopted by a Court executing decree. Mode of execution mentioned in clause (e) of Section 51 CPC whereby executing Court is empowered to order execution of the decree in such other manner as the nature of relief may require, is a residuary clause and is resorted to when the decree cannot be executed by any of the means provided by clauses (a) to (d). Clause (e) does not authorise granting supplementary or alternate relief or a relief not allowed by the decree.

14. It appears that being mindful of the above situation that decree was not executable, application for its execution/implementation was not filed before the Court which had passed the decree but was moved before the Tehsildar (Respondent No. 2) requiring him to do an act which the terms of the decree did not direct to be done by the judgment-debtors and on his reluctance to do the needful now a direction is being sought from the High Court through this Constitutional petition for directing Respondent No. 1 (judgment-debtor) to do that which he is not required by the law to day.

15. For the reasons stated above, the direction sought by the petitioner cannot be issued, writ petition is accordingly dismissed in limine.

(A.P.) Petition dismissed.

PLJ 2003 Lahore 24

Present: maulvi anwarul haq, J.

MUHAMMAD ALI and another-Petitioners

versus

NAZIRAN BIBI and 9 others-Respondents

C.R. No. 162 of 2001, decided on 28.2.2002

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

—-O. VII, R. 11 & S. US-Rejection of plaint-Essentials-Where alongwith plaint other documents were available on record which by their own force, upon a reading by Court, can lead to conclusion that suit in question, was bound to fail, then same can be read and considered by Court for purpose of 0. VII, R. 11-Material on record alongwith contents of plaint showed that suit was bound to fail ultimately and to take parties to trial would be fruitless-Rejection of plaint would not call for interference.[Pp. 25 & 26] A, B

2002 SCMR 338 ref.

Mr. Zafar Ullah Cheema,Advocate for Petitioners. Nemo for Respondents. Date of hearing: 28.2.2002.

order

Records have been received and perused, with the assistance of the learned counsel.

1. On 16.3.1991, the petitioners filed a suit against the respondents. In the plaint, it was stated that the suit land mentioned in Para 6 of the plaint, was owned by Habib Ullah who is deed and the pedigree has been drawn up in Para 3 of the plaint; that after the death of Habib Ullah the mutation of inheritance was not entered or attested and that they have been calling upon the respondents to get the entries in the revenue record corrected in accordance with Muslim Law with regard to shares of the parties in the estate of the said Habib Ullah but they have refused. With these averments, a declaration was sought that the entries in the revenue records are wrong and prayer was made for joint possession for 4/7 shares in the suit land. In the written statement the respondents stated that in a suit filed by Allah Rakha, the predecessor-in-interest of the Respondents Nos. 1 to 8 against the said Habib Ullah, the latter admitted Allah Rakha to be owner of the land being his transferee and a decree was passed on 2.5.1973. It was also explained that one of the petitioners in the life time of Habib Ullah filed a suit challenging the transfer by Habib-Ullah in favour of Allah Rakha but then withdraw it. Thereafter the suit under custom was filed which was dismissed. Yet another suit was filed in the year 1984 for possession of the land which was withdrawn. In this back-ground prayer was made that the plaint be rejected. The matter was taken up by the learned trial Court who vide an order dated 31.3.1993 rejected the plaint. A first appeal filed by the petitioners -was dismissed by a learned Addl. District Judge Daska, District Sialkot on 16.11.2000.

2. The learned counsel for the petitioner contends that the learned trial Court has committed an error of jurisdiction inasmuch as for the purpose of Order VII, Rule 11 C.P.C. the only document that was to be looked into was plaint and since the impugned order finds reference to some other earlier litigation and decisions, the same is not sustainable.

3. There can probably be no cavil to the proposition being stated by the learned counsel. However, in this particular case, upon an examination of the record I find that a decree regarding this very land was passed in favour of Allah Rakha against the said Habib Ullah 2.5.1973. (i.e. more than 17 years before the filing of the present suit). The petitioners thus proceeded to state in the plaint dated 10.1.1984 that they called upon their father Habib Ullah to hand over their share in the land to them when Habib Ullah informed them that he had already transferred the land to Allah Rakha by means of a decree; that they made enquiries and confirmed that, in fact, a decree was passed in favour of Allah Rakha against Habib-Ullah on 2.5.1973 whereby the decree for possession of land was passed; that both Allah Rakha and Habib Ullah had been promising that the share will be given to the petitioners. This suit was according to the plaint, dismissed as withdrawn with permission to file afresh. On the record, there is also a suit filed by Muhammad Ali petitioner challenging the alienation by means of the said decree under custom. This suit was filed on 13.11.1975 and after a full dressed trial was dismissed on 12.4.1978. Now the learned Courts below have referred to the said documents to hold that the petitioners who were parties to the said suit have deliberately omitted to mention the fact of said alienation of Habib Ullah in favour of Allah Rakha and the dismissal of the suit filed by Muhammad Ali petitioner and have accordingly found the suit to be barred by law. Now the learned Courts below have found that no pleadings have been made with regard to the said earlier alienation and particularly the litigation pertaining thereto and as such the suit is ultimately bound to fail.

4. Reverting back to the said contention of the learned counsel, as observed by me above, there can be no cavil with the said proposition but at the same time, where documents are available on record which by their own force, upon a reading by the Court, can lead to the conclusion that the suit is bound to fail, then the same can be read and considered by the Court while examing the plaint for the purpose of Order VII, Rule 11 C.P.C. I may refer here to a recent judgment of the Honourable. Supreme Court of Pakistan in the case of S.M. Shafi Ahmad Zaidi through Legal Heirs vs. Malik HassanAli Khan (Main) through Legal Heirs (2002 S.G.M.R. 338), wherein the apex Court had opined while dealing with the case in somewhat similar circumstances that where material is available on record which on its own strength is legally sufficient to refute the claim of the plaintiff then the same can also be looked into for the purposes of rejection of the plaint. His Lordship has, of course, added a note of caution by observing that it does not necessarily mean that the other material shall be taken as a conclusive proof of the facts stated therein, but it actually moderated that other material on its own intrinsic value to be considered alongwith the averments made in the plaint. Now in the present case the said material referred to by me above if considered alongwith the contents of the plaint does go to show that the suit is bound to fail ultimately and as such it would not be proper to take the Gjparties to trial when the matter stands fore-closed. I, therefore, do not find a case being made out for interference in revisional jurisdiction. This Civil Revision accordingly is dismissed in limine.

5. Record of the learned trial Court be remitted back immediately. (A.A) Revision dismissed.

PLJ 2003 Lahore 26

Present: maulvi anwarul.haq, J.

WASEEM AKHTAR and another-Petitioners

versus

RETURNING OFFICER UNION COUNCIL NO. 62, URBAN 26, GUJRANWALA and 7 others-Respondents

W.P. No. 2397 of 2002, decided on 11.2.2002

Punjab Local Government Election Rules, 2000-

—R. 80(c)-Constitution of Pakistan (1973), Art. 199-Election petition of petitioners against returned candidate was accepted and direction for holding re-election was issued by Election Tribunal-Petitioners, entitlement to be declared as elected Nazim was repelled on ground that unless and until there was evidence on record that electorate was aware of disqualification of Candidate, votes cast in his favour were not to be - treated as thrown away votes and electorate was to be given chance to elect person of their own choice in case election of returned candidate was declared void-No plea was taken and no evidence was brought on file that disqualification of respondent was so notorious that electorate could be presumed to be aware of same-Prayer of petitioner to declare him elected was declined. [Pp. 27 & 28] A & B

PLD 1976 SC 6 ref.

Mr. Muhammad Aslam Khan Buttar, Advocate for Petitioners. Date of hearing: 11.2.2002.

order

The private parties to this writ petition contested elections to the seats of Nazim and Naib Nazim in Union Council No. 62 (Urban-26), Gujranwala. The Respondents Nos. 2 and 3 were declared returned vide a Notification dated 28.3.2001. To challenge the said election, the petitioners filed an Election Petition on 18.4.2001. The election was challenged primarily 'on the ground that Haji Muhammad Siddique, Respondent No. 2 had not passed his Matriculation Examination and as such was not qualified to contest the election or to hold the said office. The petition was resisted by Respondents Nos. 2 and 3. Issues were framed. Evidence of the parties was recorded. The learned Election Tribunal accepted the election petition vide judgment dated 12.1.2002 and directed that a re-election be held for the said seats.

1. The learned counsel for the pea contends that since his client had made a prayer in their Election Petit m for being declared elected upon the quashment of the election results oi espondents Nos. 2 and 3, the learned Election Tribunal was bound to declare them elected in terms of Rule 80(c) of the P.L.G.E. Rules, 2000.

2. I have examined the copies of the record appended with this writ petition, with the assistance of the learned counsel for the parties. As per consolidated statement of result 3905 ballots were cast out of which Respondents Nos. 2 and 3 polled 1500 while the petitioner polled 1289. It is true that the petitioners had stated in their petition that they be declared elected. However, there is not a word in the evidence including the statement of Waseem Akhtar Petitioner No. I,/ PW-2 that the said disqualification of the Respondent No. 2 was known to the electorate. In fact, I find that he himself has stated that he came to know about the factum of presentation of forged certificate by the said respondent after the elections. Now rule is that unless and until there is evidence on record that the electorate was aware of the disqualification of the candidate, the votes cast in his favour are not to be treated as thrown away votes and the electorate is to be given a chance to elect a person of their own choice in case the election of the returned candidate is declared void. Reference be made to the case of Syed Saeed Hassan vs. Pyar Mi and 7 others (P.L.D. 1976 SC 6). I deem it proper to reproduce here the following excerpts from the opinion of Justice Muhammad Afzal Cheema (as his Lordship then was) appearing at Page 35 of the report:

"It may be observed with respect that on the view taken by us we hardly find any point of conflict between the aforesaid provision and the principles laid down in Halsbury's Laws of England adopted and approved by this Court in several authorities. The well known principle in substance is that "votes given for a candidates who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to-give the seat to the candidate with the next highest number of votes."

1. As stated by me above, there is no plea and there is no evidence on record that the said disqualification of Respondent No. 3 was so notorious athat the electorate could be presumed to be aware of this. This Writ Petition is thus without any force and is accordingly dismissed in limine.

(A.A) Petition dismissed.

PLJ 2003 Lahore 28

Present: maulvi anwarul haq, J.

MUHAMMAD SHAFIQUE KHAN-Petitioner

versus

SAEED AKHTAR KHAN and 15 others-Respondents

C.R. No. 446 of 1991, heard on 15.2.2002

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

—-Ss. 12(2), 104 & O. XLIII, R. 1-Dismissal of application for restoration of application under S. 12(2) C.P.C. by Trial Court-Such order was to appealable under S. 104 Order XLIII, R. 1 C.P.C.- Appeal would however, be competent against order refusing to restore suit and not an application. [P. 29] A

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

—-Ss. 104 & O. XLIII, R. 1 and S. 115-Appeal against dismissal of application for restoration of application under S. 12(2) C.P.C. found to be incompetent and dismissed by Appellate Court that scope of revision was narrow-Impugned order was liable to struck down being in direct contravention of law laid down by Supreme Court in Karmat Hussain Case (PLD 1987 SC 139)-Appellate Court ought to have first converted appeal into revision and to have decide whether interference with impugned judgment before him was possible or not-Impugned order was set aside and case was remanded for decision afresh in accordance with law. [P.30JB, C

PLD 1987 SC 447 and PLD 1987 SC 139 ref.

Nemo for Petitioner.

Mr. Masood Abid Naqvi,Advocate for Respondent No. 10.

Nemo for others Respondent.

Date of hearing: 15.2.2002.

judgment

In order to challenge a decree dated 14.4.1984, the petitioner filed an application under Section 12(2) CPC. This application was dismissed for non-prosecution on 10.1.1989. An application was filed for restoration on 12.1.1989. It was stated in the application that the Attorney of the petitioner had to come from Gujranwala, to attend the hearing and he got late while the learned counsel could not put in appearance because of busy before another Court. The application was resisted by filing a written reply. The learned trial Court framed issues. Evidence of the parties was recorded. The said application for restoration was dismissed on 2.6.1990. The petitioner filed a first appeal against the said order which was dismissed by a learned Addl. District Judge Jhang, on 9.2.1991. The learned Addl. District observed that the appeal is not competent. A request for converting the appeal into a revision was rejected with the observation that even if decision of the lower Court is incorrect revision would not be competent. No one has turned up for the petitioner.

1. Having examined the records of this case I am not inclined to dismiss it for non-prosecution.

2. Learned counsel present contends that the appeal was not competent and learned Addl. District Judge has not committed any error in dismissing the same. As to the non-competency of the appeal I do agreed with the learned counsel for Respondent No. 10. Vide order dated 2.6.1990 learned trial Court had dismissed an application for restoration of application under Section 12(2) CPC. Such an order is not appealable under Section 104 CPC read with Order 43, Rule 1 CPC. The appeal is provided only against an order refusing to restore the suit not an application.

3. The question which arises is as to what was to be done once learned Addl. District Judge had concluded that the appeal was not competent. It is apparent that the request was made before the learned Addl. District Judge for conversion of appeal into revision. He has dealt with the matter of follows: -

"Even if the appeal be treated as a revision, the, scope becomes very narrow". It is well settled law that incorrect decision of the lower Court cannot form subject-matter of revision petition."

1. The impugned order is liable to be struck down for the reasons that it has been passed in direct contravention of law laid down by Supreme Court of Pakistan in the case of KaramatHussain and others v. Muhammad Zaman and others (PLD 1987 S.C. 139), wherein it has been held that right to invoke exercise of revisional jurisdiction is not a privileged but a most valuable right. Several judgments of this Court were set aside with the observations that High Court should have allowed conversion of second appeal into revision and then to see whether interfefeifee was called for in the judgment of the subordinate Court. The learned Addl. District Judge has simply thrown away the case holding that the appeal was incompetent and the scope of revision is narrow. He ought to have first converted the appeal into revision and then to have decided whether interference with the impugned order before him is possible or not. Similarly the said observation of the learned Addl. District Judge that incorrect decision of the lower Court cannot form subject-matter of revision is wholly unfounded. In the case of Utility Stores. Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447). Mr. Justice Nasim Hassan Shah (as his lordship then was), while agreeing with the leading opinion of Chief Justice Muhammad Haleem (as his lordship then was) observed as follows at page 452 of the report:

"It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."

1. In view of above discussion, the impugned order of learned Addl. I District Judge Jhang, dated 9.2.1991 cannot be sustained. This civil revision is accordingly allowed. The impugned order of the learned Addl. District Judge is set aside. The result would be that the Civil Appeal No. 30/14 of 1990 filed by the petitioner shall be treated as Civil revision against the order dated 2.6.1990 of the learned trial Court dismissing the application of the petitioner for restoration of his application under Section 12(2) CPC. Learned Addl. District Judge shall requisition the record, summon the parties and after hearing then to decide civil revision is accordance with law and observations made above. No order as to costs. Copy of this order be immediately remitted to the learned District Judge, Jhang, for further compliance.

(A.A) Case remanded.

PLJ 2003 Lahore 31

[Multan Bench Multan]

Present: FARRUKH LATEEF, J.

MUHAMMAD IDREES-Petitioner

versus

PAKISTAN RAILWAYS through GENERAL MANAGER, PAKISTAN

RAILWAYS, HEADQUARTERS OFFICE, LAHORE

and 5 others-Respondents

C.R. No. 99 of 2002, heard on 11.6,2002.

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

—-O. XXXIX, Rr. 1, 2 and S. 115-Suit for declaration that petitioner being Railway Guard was entitled to retain quarter in question till decision of his appeal against removal from service pending before Service Tribunal-­ Petitioner who sought interim injunction restraining respondents from evicting him from quarter in question till decision of service appeal which was refused by Courts below-Petitioner's claim, that as per notification of specified date be could retain accommodation on payment of normal rent or in alternative on commercial rent, was repelled in as much as, notification in question, related to officer dismissed from service and same did not apply to Railway employee-Besides even if sam£ applied to Railway officers, petitioner was not officer-Petitioner thus, had no right to retain accommodation in question. [P. 32] A

Ch. Muhammad Ilyas, Advocate for Petitioner. Rao Muhammad Iqbal, Advocate for Respondents. Date of hearing: 11.6.2002.

judgment

This revision petition is directed against order dated 22.1.2002 passed by Muhammad Aslam Chaudhry, learned District Judge, Khanewal .affirming the order of Civil Judge, Khanewal passed on 4.1.2002 whereby stay application of the petitioner was dismissed.

1. The petitioner had filed a suit against the respondents for a declination that as Railway Guard Grade-II, he is entitled to retain Quarter No. 84/B, Railway Colony, Khanewal till the decision of his appeal against removal from service, pending before Federal Service Tribunal Lahore. By way of consequential relief it was prayed that on the basis of notice No. 83/Q/2001 dated 26.4.2001, issued by Respondent No. 5, the respondents be restrained from evicting him from the said quarter till the decision of his said service appeal.

2. Alongwith the suit a stay application was also moved for issuance of an interim injunction restraining the respondents from interfering with his possession over the said quarter till the final disposal of the civil suit.

3. It is urged by the learned counsel for the petitioner that orders of both the Courts below suffer from non-reading and mis-reading of Notification No. 716-W/O/2/Policy dated 10.7.2000 according to which dismissed employees can retain the accommodation on payment of normal rent till the disposal of their service appeal or for a period of six months which ever is less and in case of further retention commercial rent could be charged from them.

4. The petitioner had given undertaking that he is willing to pay commercial rent and that both the Courts did not go through the contents of the aforesaid Notification and had passed the impugned orders without applying judicial mind.

5. The revisions opposed by the learned counsel for the respondents.

6. I have perused the civil revision alongwith its annexures and I have also heard the learned counsel for the parties.

7. A perusal of aforesaid Notification which is Annexure-B. 1, shows that it relates to officers dismissed from service and does not apply to employees of Pakistan Railway, who do not fall in the category of officers. The petitioner was admittedly a Railway Guard in Grade-II and did not fall in the category of officers. The said Notification was, therefore, not applicable to the case of the petitioner and he could not claim retention of quarter on payment of commercial rent on the basis of the said Notification.

\

1. .For the sake of argument if it be assumed that the said Notification applies to the case of the petitioner in that event too it is stated therein that the period of holding over shall be treated as unauthorized and commercial rent will be charged for that period. It is merely a penal provision which does not create legal right in favour of the person holding over, on the basis of which a declaration or injunction could be issued.

2. The civil revision is without any merit, it is accordingly dismissed.

(A.A) Revision dismissed.

PLJ 2003 Lahore 33

Present: M.A. SHAHID SIDDIQUI, J.

AADIL (deceased) through his LEGAL REPRESENTATIVES and 4 others-Appellants

versus

ASHIQ HUSSAIN and 5 others-Respondents R.S.A. No. 53 of 1991, decided on 10.6.2002.

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

—-Preamble-Provisions of C.P.C. do not relate to substantive rights of individuals-Premeable of C.P.C. showed that code was enacted to consolidated procedure of civil Courts-Procedural laws prescribe machinery and method of enforcing rights-Procedural law is, thus, means to an end and not an end in itself. [P. 37] A

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

—-O. XXXII, R. 1-Basic object of Rules incorporated in O. XXII of C.P.C. is to ensure due and proper representation on behalf of minor defendant-Any departure from such rules should not be condoned by Courts if the same affects interest of minor adversely, but if no prejudice was caused to minor, then non-compliance of such rules would be inconsequential. [P. 37] B

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

—0. XXIII, R. 3 & S. 100-Omission on the part of Court to appoint guardian ad-litem,when no prejudice was shown to have been caused to minor was not fatal to plaintiffs suit. [P. 37] C

PLD 1978 SC (AJ&K) 40; PLD 1986 Lahore 373 and AIR 1927 Lahore 861 ref.

Mr. Shaukat Alt Mehr, Advocate for Appellants. Mr. Khizar Abbas,Advocate for Respondents. Date of hearing: 23.4.2002.

judgment

This regular Second Appeal has been directed against the judgment dated 27.7.1991, whereby the learned Additional District Judge, Chiniot, upheld the judgment and decree dated 27.10.1978 passed by Malik Ata Rasul Joya, Civil Judge 1st Class, Chiniot, in Civil Suit, No. 273 of 1975.

1. The facts of the case are that the petitioners/defendants purchased 245 Kanalsand one Maria of land situated in Mauza Thatti Bala Raja, Tehsil Chiniot, fully described in the head-note of the plaint for a sum of Rs. 65,000/-. The sale was given effect in the Revenue Record through Mutation No. 1127 dated 16.5.1974. The plaintiffs brought a suit on 16.5.1975 pre-empting the sale on the ground of being co-owners in the Estate. Ata Muhammad and Fateh Sher, Defendants Nos. 4 and 5, both sons of Aadil petitioner, were minors, therefore, they were arraigned as Defendants Nos. 4 and 5 through their father Aadil, Defendant No. 1. In Para No. 1 of the plaint, the plaintiffs alleged th."t Defendants Nos. 4 and 5 were minors and they were being brought up by their father Defendant No. 1, who had no interest adverse to the minors, as such they were being sued through their father. The plaintiffs appended an application with the plaint seeking appointment of guardian ad-litem of the said two defendants. The defendants contested the suit and filed written statement in which they took up several preliminary objections, besides controverting the allegations made by the plaintiffs in the plaint. On the pleadings of the parties, the learned trial Court framed the following issues:

ISSUES:

1. Whether the plaintiffs are estopped by their conduct to bring this suit? OPD.

2. Whether the plaintiffs have waived their pre-emptive right? OPD.

3. Whether the suit is time-barred? OPD.

4. Whether the defendants have affected improvements on the suit land? If so, when, its value and effect? OPD.

5. What is the effect of preliminary Objection No. 5 of the written statement? OPD.

6. Whether the plaintiffs have a superior right of pre-emption? OPP.

7. Whether the ostensible sale price of Rs. 65,000/- was fixed in good faith or actually paid? OPD.

8. If Issue No. 7 is not proved, what was the market value of the suit land at the time of sale? OPD.

9. Relief.

10. The plaintiffs were required only to prove that they possessed superior right of pre-emption, therefore, they produced of certified copies of Jamabandi(Ex. P. 2) for the year 1972-1973 and Ex. P. 5 for the year 1976-1977, and copy of Mutation No. 941 (Ex. P. 6) and closed their evidence in support of their claim. The defendants produced three witnesses including Defendant No. 4. Maula Bakhsh (D.W. 1), who claimed to own land contiguous to the land in dispute. According to him, the defendants had obtained possession of disputed land and paid Rs. 65,000/- 4/5 months prior to the attestation of the Mutation. According to him, Pir Kamal, Mumtaz Hussain and "Allah Bakhsh were present besides him at the time of payment of sale price. He categorically stated in his examination-in-chief that he did not gee Aashiq Hussain plaintiff at the time, when the transaction took place. In cross-examination, he disclosed that a receipt was also executed, which was scribed by one Allah Bakhsh and attested by him and one Noora Ghulam Muhammad (D.W. 2) stated that the agreement was made 4/5 months prior to the attestation of the mutation, whereas the payment was made at the time of the attestation of the Mutation. In cross-examination, he disclosed that a sum of Rs. 15,000/- was paid as earnest money at the time of the agreement in respect of which a receipt was executed, which was scribed by Kamal Shah and attested by Maula Bakhsh and Muhammad Bakhsh. Noor (D.W. 3) stated that the payment was made on the table and that the defendants had obtained possession of the land 2/4 months prior to theregistration of the sale and one month after the agreement. Ata Muhammad, Defendant No. 4, stated that the suit land was sold for Rs. 65,000/-.According to him, when they were having a round of the disputed land, they told the plaintiff on their query that they wanted to purchased the disputed land, whereupon plaintiffs advised them not to purchase the suit land. He further stated that the payment of the sale price was made at the time of the agreement and that the mutation was entered 2/3 days after the agreement. In cross-examination, he disclosed that they had obtained possession of the land as tenants 4/5 months prior to the agreement.

11. The suit was decreed by the trial Court but in appeal, the learned Additional District Judge, Chiniot, framed an additional issue to the following effect: "Whether the suit has not been properly instituted against Defendant No. 5?" and remanded the case back to the trial Court for a fresh decision in accordance with law, vide judgment dated 4.4.1988. The validity of the remand order was assailed before this Court through F.A.O. No. 126/1988, which was accepted vide judgment dated 10.1.1990, with the result that the judgment and decree of the trial Court stood restored. Feeling dis-satisfied » with the said judgment, the vendees/defendants filed Civil Appeal No. 35/1990, before the Supreme Court, which was allowed vide judgment dated 16.1.1991 remanding the case back to the First Appellate Court for disposal of appeal in accordance with law by giving findings on all the issues after appraisement of evidence recorded by the trial Court including the additional legal issue framed by that Court.

12. In the above circumstances, the learned Additional District Judge, Chiniot, once again heard the appeal against the judgment of the trial Court dated 27.10.1979 and upheld the findings of the learned trial Court on all the issues. As regards, the additional legal issue, the learned Additional District Judge came to the conclusion that no prejudice in any way had been caused to the Defendant No. 5, as such the omission to formally appoint the father of Defendant No. 5 as guardian ad-litem was not fatal to the plaintiffs case. Accordingly, he decided the issue and dismissed the appeal.

13. Learned counsel for the appellants has again attempted to challenge the finding of the learned trial Court on Issues Nos. 1 and 2 relating to the waiver. Learned counsel for the appellants simply relied upon the statement of Ata Muhammad (D.W. 4), who deposed that the plaintiffs had asked them not to purchase the suit land because its level was a bit high. The statement of Ata Muhammad defendant is not corroborated by any other witness. Learned counsel for the appellants has failed to show any mis­ reading or non-reading of evidence. D.W. 1, in his cross-examination, stated in unequivocal words that Aashiq Hussain was not present at the time of agreement. The finding of facts recorded by the two Courts below need no interference by this Court. The evidence regarding completion of sale and transfer of possession produced by the defendants with reference to Issue No. 3 being inconsistent has been rightly discarded by the Courts below. The contention of the learned counsel for the appellants that the suit was instituted on 16.5.1975 is also factually incorrect. The plaint bears the endorsement made by the learned Civil Judge, which shows that it was entertained on 15.5.1975. However, it was entered in the relevant Register on 16.5.1975: The Mutation was attested on 16.5.1974, therefore, the suit was within time.

14. Lastly, the learned counsel for the appellants disputed the finding of the Court below on the Additional Issue framed by the First Appellate Court. It has been argued that Fateh Sher (Defendant No. 5) was admittedly a minor at the time of the institution of the suit and that the plaintiffs were required to file a list of relatives of the minor and other persons, who prima faciewere most likely to be capable of acting as guardian of the minor for the suit as required under Order 32, Rule 3(3) (as per High Court Amendments Lahore). This list was to be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matter in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appionted. In the absence of such an affidavit, the plaintiff would be deemed to have committed default of compliance of the order of the Court, which would render the plaint liable to rejection.

15. Learned counsel for the respondents contended that under sub- rule (1) or Rule 3 where the defendant is found to be a minor, it is the duty of the Court to appoint a proper person to be the guardian for the suit for such minor and that the omission to appoint a guardian would be fatal only if any prejudice is caused to the minor. Before I proceed further, I would like to reproduce the law as per amendment introduced by the Lahore High Court by way. of substituting sub-rule (3) and (4):--

"(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons with their addresses; who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above.

(4) The Court may, at any time after institution of the suit, call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint."

(6) Any application for the. appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor, and that each person proposed is a fit person to be so appointed.

(7) No order shall be made on any application under this rule, except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule: Provided that the Court may, if it sees fit, issue notice to the minor also."

1. The provisions of the Code of Civil Procedure do not relate to the substantive rights of the individuals. Its preamble shows that it was enacted to consolidate the procedure of the Civil Courts. Procedural laws prescribe method of enforcing rights. It is simply a machinery to achieve an end. The Court has to administer the machinery for enforcing rights and duties recognized by substantive law. In other words, the procedural law is a means to an end and not an end in itself. Order 32 CPC relates to suits by or against minors and persons of unsound mind. The basic objet of these rules is to ensure due and proper representation on behalf of a minor defendant. Any departure from these rules should not be condoned by the Courts, if it affects the interest of the minor adversely, but if no prejudice is caused to the minor, then the non-compliance of these rules would be inconsequential. In the case in hand, Fateh Sher (minor) was arraigned as defendant alongwith his elder brothers and father, who admittedly purchased the suit land jointly. A perusal of the plaint shows that Fateh Sher was impleaded as defendant through his father as guardian, who is otherwise his natural guardian. He contested the suit, filed written statement and produced evidence not only on his behalf, but also on behalf of his minor son. The plaintiffs not only sued the minor through his father but also made an application for the appointment of the guardian of the minor. Under sub-rule (1), as observed earlier, it was the duty of the Court to appoint a proper person to be guardian for the minor and under sub-rule (4), the Court could ask the plaintiff to furnish such a list of relatives of the minor capable of acting as guardian for minor defendant and in default of compliance the Court had the discretion to reject the plaint. In the circumstances of the case, the omission on the part of the Court to formally appoint a guardian ad-litem, when no prejudice is shown to have been caused to the minor is not fatal to plaintiffs suit. I may safely rely upon PLD1978 S.C. (AJ&K) 40; PLD 1986 Lahore 373 andAI.R. 1927 Lahore 861. I, therefore, uphold the finding of the learned Additional District Judge, on the additional issue, as I find on reason to take exception. In find no substance in this appeal, therefore, it is dismissed. No order as to costs.

(A.P.) Appeal dismissed.

PLJ 2003 Lahore 38

Present: MUHAMMAD SAIR ALI, J. MUHAMMAD RAMZAN-Petitioner

versus

MUHAMMAD SARDAR and another-Respondents

C.R. No. 1128 of 1999, decided on 13.3.2002

(i) PunjabPre-emption Act, 1991 (IX of 1991)--

—S. 13(3) Suit for pre-emption-Plaintiffs failure to produce notices of talb- i-Ishhadin terms of S. 13(3) of Punjab Pre-emption to show timely performance thereof-Plaintiff having set up concise case and having specifically "made pleadings in plaint, he was required to prove same in evidence which he admittedly failed to do-In plaint, plaintiff did not mentioned that no post office existed in village in question, therefore, such plea set up by him before Courts below as well as in High Court cannot be allowed to be raised as being different from one raised in plaint. [P. 39 & 40] A, B

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—S. 13(3)--Civil Procedure Code (V of 1908), S. US-Findings of Courts below that plaintiff failed to serve notice of talb-e-Ishkad, as mandatory required by S. 13(3) of Punjab Pre-emption Act 1913, was based on proper and detailed analysis and appreciation of evidence-Findings of fact being-concurrent, proposition of substantial compliance, as advanced by petitioner was, in fact admission of non-compliance with express provisions of law and does not provide any escape route to petitioner. [P. 40] C 1999 SCMR 717 ref.

Rana Abdul Rahim Khan, Advocate for Petitioner. . Rana Muhammad Anwar, Advocate for Respondents Date of hearing: 13.3.2002.

order

Upon sale of the suit property, petitioner/pre-emptor claiming superior right and performance of Talabs, filed a suit for possession through pre-emption. He was, however, non-suited by the learned Civil Judge, Sargodha through judgment and decree dated 4.11.1997 on the ground that petitioner failed to serve notice of Talab-e-Ishhadas was required under Section 13(3) of the Punjab Pre-emption Act, 1991. On appeal, learned Addl. District Judge Sargodha by judgment and decree dated 23.6.1999, concurred with the above referred findings of the learned Civil Judge and dismissed the appeal, hence the present civil revision.

1. Learned counsel for the petitioner stated that learned Courts below erred at law and exceeded their jurisdiction by not considering the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Abdul Malik (1999" SCMR 717) that upon substantial compliance of the requirements of Talab-e-Ishhad/Talab-e-Khusumat, petitioner could not have been non-suited. It was further contended that petitioner, in para 3 of the plaint, pleaded that he, upon coming to know, went alongwith seven other persons to the vendees to receive the money and to accept petitioner's superior right of pre-emption and that delayed service of notice or non- service thereof is not an adequate ground to dismiss the suit as well as appeal.

2. I have considered the submissions of the learned counsel for the parties and have also examined the record as well as the judgment. There is no doubt that in Para 3 of the plaint, petitioner/pre-emptor pleaded that he had taken seven truthful witnesses with him to the vendees to press his superior right of pre-emption by making an offer of the sale price, but the vendees refused. However, in para 4 of the plaint, petitioner categorically, concisely and clearly set up a case that finally on 2.7.1991 he separately sent to each of the vendees written notices through registered post vide Registry Nos. 3 and 4, but respondents/defendants refused to receive the same and both registered envelopes were returned to the petitioners as having been refused by the said respondents/vendees. In view of this assertion in the plaint, the entire case of the petitioner became evident. He specifically pleaded service of registered notices of Talab-e-Ishhadin terms of Section 13(3) of the Punjab Pre-emption Act, yet failed to produce such notices on record to show timely performance of Talab-e-Ishhad, as per express provisions of sub-section (3) of Section 3 ibid. Having set-up a concise case and having specifically made pleadings in the plaint, it was the duty of the petitioner to prove the same in evidence which he admittedly failed to do. The case set-up before this Court and also before the learned Courts below was that his visit alongwith other witnesses to the vendees, as stated above, should be taken to be substantial compliance of the provisions of law, as.no Post-Office existed in the village and the case fell within the proviso to the above said Section.

3. I am afraid, this contentions cannot be accepted. In the case of Abdul Maalik (1999 SCMR 717), the Hon'ble Supreme Court of Pakistan accepted substantial compliance in the perspective that notice of Talab-e- Ishhadwas admittedly sent by the pre-emptor but the same had not been signed by two truthful witnesses. It was in this circumstance that the Hon'ble Supreme Court of Pakistan pronounced such Talab-e-Ishhadas substantial compliance with the provisions of law. In the present case, petitioner failed to advance a case under proviso to Sub-section (3) of Section 13 ibid, in the paint that no Post-Office existed, therefore, he adopted other permitted modes to exercise his right of Talabsthan to serve a registered notice as required by Section 13(3) ibid. In view thereof, petitioner cannot be allowed to raise a case different from one raised in the plaint.

4. Learned Courts below through proper and detailed analysis and appreciation of evidence held that petitioner failed to serve notice of Talab-e- Ishhad, as mandatorily required by Section 13(3) of the Punjab Pre-emption Act, 1991. Findings of fact thereof are concurrent. I am afraid, the proposition of substantial compliance, as advanced by the learned counsel for the petitioner, is in fact an admission of non-compliance with the express provisions of law and does not provide any escape route to the petitioner.

5. In view thereof, this petition is dismissed.

(A.A) Revision dismissed.

PLJ 2003 Lahore 40

[Rawalpindi Bench Rawalpindi]

Present: MUHAMMAD AKHTAR shabbir, J.

ABDUL REHMAN and 5 others-Petitioners

versus

AMRIT-Respondent C.R. No. 220 of 1991, heard on 13.5.2002

(i) Co-sharer-

—Possession of one co-sharer on every inch of land is for the benefit of other co-shares-Where mutation had been attested in favour of some of co-sharer, same would not extinguish title of other co-sharers. P. 44] B

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 53 Entry in record of rights if adverse to interest of plaintiff and if on every such entry at every four years there would nail of right of plaintiff, he has option to file suit on every denial and every denial would furnish fresh cause of action. [P. 44] C

(iii) West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--

—-S. 3 Extinction of limited estate by operation of law-Legal heirs of deceased male owner were entitled to their legal share out of property of original owner-Widow being limited owner of property could not transfer same to respondents and after termination of her estate, she was entitled to the extent of her l/8th legal share—Alienation by window to the extent of her legal share would be valid and surplus to that of her legal share, would revert to her reversioners/sons of deceased owner who were alive at the time of his death. [P. 44] A

(iv) West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--

—- S. 3-Civil Procedure Code (V of 1908), S. 115-Termination of limited estate-Legal heirs of last male owner would be entitled to inherit such estate-Appellate Court had wrongly concluded that suit by heirs of last male owner was barred by limitation-Suit of plaintiffs being in time judgment and decree of Appellate Court dismissing plaintiffs suit was set aside while that of Trial Court decreeing plaintiffs suit was restored.[P. 45] D

1993 MLD 763; 1995 SCMR 284; PLD 1998 SC 1512; PLD 1985 SC 407; 1995 SCMR 868; NLR 1994 SCJ 632; 1997 SCMR 1218 ref.

Mr. Munir Ahmad Kayani, Advocate for Petitioners. Mst. Zahida Amin, Advocate for Respondent. Date of hearing: 13-5-2002.

judgment

One Rajwali, predecessor-in-interest of the present petitioners, who died in the year 1939, was owner of agricultural land, which was transferred in favour of his widow Mst.Gahran and she out of the said property, had transferred 146 Kanals,6 Mariasof land to Amrit, predecessor-in-interest of the respondents, who died during the pendency of this petition and his legal heirs had been impleaded as respondents. Fateh Muhammad son of Rajwali, Mst. Anaran and Ghuffar Khan, widow and son of Banaras respectively, filed a suit for declaration to the effect that they were the reversionaries of Rajwali and their reversionary right would not be effected after the death or re-marriage of the alienor namely Mst. Gahran. It is an admitted position that Mst. Gahran had succeeded Rajwali under custom and she had no right to alienate the land in dispute, therefore, the sale in favour of Amrit defendant was not binding upon the rights of the plaintiffs. The trial Court vide its judgment and decree dated 18-5-1954 decreed the suit for declaration in favour of the plaintiffs to the effect that the sale of the land in dispute made by Mst. Gahran in favour of Amrit through Mutation No. 2505 was null and void and the reversionary rights of the plaintiffs in the land in dispute after re-marriage or death of Mst.Gahran would not be effected.

1. Mst. Gahran died on 26-10-1985 and after her death, the present petitioners had instituted a suit for possession on 22-12-1985 with regard to the land measuring 146 Kanals,6 Marias, out of the total land measuring 500 Kanals, 6 Marias,belonging to Rajwali deceased, situated in KhasrasNos. 601, 767, 1453 1652, 1667, 1668, 1670, 1703, 1718, 1738, 1745, 1739, 1801, 1803, 2009, 2455, 2943, 3271, 3344, 3701, 3705, 3713, 3718, 142, 143, 154, 156, 1651, 2798, 4498 and 1783, Village Langar, Tehsil Jand.

2. Rajwali deceased had two wives. One of them had two sons from the deceased) namely Fateh Muhammad and Banaras who were alive at the time of death of Rajwali, whereas Mst. Gahran, the other wise of Rajwali deceased was issueless. The claim of the plaintiffs-petitioners is that Mst.Gahran after termination of limited estate on the enforcement of West Pakistan Shariat Application Act, 1962, with effect from 21-12-1962 was entitled only l/8th share out of 146 Kanals, 6 Mariasof land, which she could sold to Amrit, predecessor-in-interest of the present respondents.

3. The suit of the plaintiffs-petitioners had been contested who filed their written statement taking the stand that the plaintiffs have no cause of action against the defendant and that the maintenance right under agricultural custom had been extinguished and after the promulgation of West Pakistan Shariat Application Act, 1962, the said suit had become barred by time as it had not been filed within a period of twelve years from 1962.

4. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame the following issues:--

(1) Whether the suit is within time? OPP.

(2) Whether the suit has been incorrectly valued for the purpose of Court-fee and jurisdiction, if so, what is the correct valuation for both the purposes? OPD.

(3) Whether the suit property is correctly described, if not what is the correct description and with what effect? OPD.

(4) Whether the plaintiffs are owners of the suit property measuring 146 Kanals, 6 Mariasand as such are entitled to its possession? OPP.

(5) Relief.

1. After recording and appreciating the evidence of the parties, pro and contra, the Court decreed the suit of the plaintiffs. Feeling aggrieved, the defendant respondent-Amrit son of Ghulam Muhammad and preferred an appeal which came up for hearing before learned Additional District Judge, Attock, who vide his impugned judgment and decree dated 13-3-1991 while accepting the appeal set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs-petitioners herein observing that the suit is barred by limitation. The above said judgment of the appellate Court has been assailed through the present revision petition.

2. Learned counsel for the petitioners contended that the limited estates had been terminated with effect from 31-12-1962 and after its termination, the property in dispute devolved upon the legal heirs of Rajwali deceased, the original owner of the property. He further contended that the sale in favour of Amrit by Mst. Gahran, widow of Rajwali deceased, to the extent of her legal share would continue but the sale of the property in excess of her legal entitlement would be reverted to the plaintiffs-petitioners. He argued that the limitation in the cases of inheritance would not be attracted. In this respect, learned counsel has relied upon the cases of Bahadur through LRs. vs. Muhammad Asium and another (NLR 1994 SCJ 632) and Muhammad Bakhsh through legal heirs, vs. Muhammad Shaft and 8 others (1997 SCMR 1218), 7. On the other hand, the arguments of the learned counsel for the petitioners have been opposed vehemently by the learned counsel for the respondents contending that the limited estate had terminated in the year 1962 and the respondents were in possession of the suit property. The plaintiffs-petitioners should have filed suit within twelve years of termination of the limited estate.

3. I have heard the learned counsel for the parties and perused the record. There is no cavil with the fact that the original owner of the property Rajwali died in the year 1939 before the promulgation of Shariat Application Act, 1948, and his widow Mst. Gahran became the owner of the property to the extent of her maintenance allowance as a limited owner but vide Mutation No. 2505 dated 31-12-1953, she sold 146 Kanals, 6 Mar/as of land put of the property left by her deceased husband in favour of Amrit, predecessor-in-interest of the present respondents. The Shariat Application Act had been enforced on 31-12-1962 and Section 3 of the said Act has provided that the limited estate in respect of immoveable property held by the Muslim females under the customary law would be terminated. Since the Act was applicable from 31-12-1962, therefore, the limited estate in respect of .immoveable property was terminated with immediate effect from the above said date. Theinheritance of a Muslim deceased opens at the time of death of Muslim owner of the property and after the termination of the limited estate would devolve on the legal heirs of the original male owner of the property and every legal heir shall be entitled to inherit his share as if the original owner has died now. Therefore, after the termination of the limited estate of Mst. Gahran, two sons of Rajwali deceased, who were alive at the time of his death, and his widow Mst. Gahran were entitled for his inheritance in accordance with their legal share, as per provisions of the Muslim Law of Inheritance.

4. Mst. Gahran widow of the deceased during her life time had transferred 146 Kanals, 6 Mariasof land out of total holding of Rajwali, her husband, in favour of Amrit for which she had no authority under the law. The suit filed by the reversionars, the sons of Rajwali had been decreed in the year 1954 and it was held that their reversionary rights would not be effected after the death or re-marriage of the limited estate owner Mst. Gahran. Be that as it may, since the limited estate had been extinguished by the West Pakistan Muslim Personal Law (Shariat) Act, 1962, and the legal heirs were declared entitled to their legal share out of the property left by their predecessor-in-interest, the original owner. As observed earlier, Mst. Gahran being the limited holder of the property could not transfer the same to the respondents and after the termination of her estate, she was entitled to the extent of her l/8th legal share, therefore, the alienation in favour of Amrit to the extent of her legal share would be valid and surplus to that of her legal share would revert to her reversionars/sons of the deceased Rajwali, who were alive at the time of his death. In this respect, reference can be made to the case of Abdul Ghafoor and others, vs. Muhammad Shaft and others (PLD 1985 Supreme Court 407) and Mst. Zainab Bibi and others vs. Muhammad Yousafand 4 others (1995 SCMR 868).

5. As to the agrument of the lower appellate Court that the suit being barred by time cannot be succeeded. This proposition had already been dealt with by the Hon'ble Supreme Court of Pakistan in Muhammad Bakhsh's case cited supra.In this case, Mst. Zainab, the limited estate holder died on 15.7.1949 and after her death mutation of inheritance had been sanctioned in 1949 and the suit by the reversioner had been filed in 1974, it was held by the Hon'ble Supreme Court that the parties admittedly being co-sharers the suit of the plaintiffs was not barred by limitation. In Bahadur's case (supra), the Hon'ble Judges of the Supreme Court had observed that the bar of limitation does not apply to the suit of co-sharer unless there is a proof of complete ouster. Admittedly, in the present case, the petitioners and the vendor Mst. Gahran were entered as co-sharers and legal heirs of Rajwali deceased and it is also settled principle of law that possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of co- sharer, it will not extinguish the title of other co-sharers, as observed in the case of Shahro and others vs. Mst. Fatima and others (PLD 1998 Supreme Court 1512).

6. The other aspect of the case is that an entry in the record of rights if is adverse to the interest of the litigant/plaintiff and if on every such entry at every four years there would be denial of the right of the plaintiff, he has the option to file a suit on every denial and every denial would furnish a fresh cause of action. Reference in this context can be placed on the cases of Wall and 10 others vs. Akbar and 5 others (1995 SCMR 284) and Muhammad Yousaf through his L.Rs. and others vs. Noor Din and others(1993 M.L.D. 763).

7. The above legal aspect of the case has not been adverted to by the lower appellate Court and passed the judgment in violation of the dictum laid down in the cases referred to above, therefore, the same is not sustainable in law. Resultantly, this revision petition is accepted and the judgment and decree dated 13-3-1991 passed by the lower appellate Court is set aside and that of the judgment and decree dated 20.11.1989 of the trial Court is restored. There is no order as to costs.

(A.A) Revision accepted.

PLJ 2003 Lahore 45

Present: saved zahid hussain, J. ZULFIQAR ALI-Petitioner

Versus

Mst. HASHMAT BIBI and 13 others-Respondents

W.P. No. 22371 of 2001, heard on 28.6.2002

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--

—-S. 10-Constitution of Pakistan (1973), Art. 199-Original allotment order of Land in question was in name of predecessor of respondents-Petitioner predecessor got entry of allotment by interpolation in his own name by fraud, fabrication and forgery of record-Such fact was noted in his report by Extra-Assistant Commissioner, Deputy Commissioner and Commissioner but they did not rectify record-Mere lapse of time and inaction on the part of predecessor of respondents would not have deprived 6r denuded Authorities of power to rectify their own record by taking corrective and remedial steps and undo injustice-Board of Revenue being at the apex of statutory hierarchy, .exercising provisional jurisdiction had justifiably exercised its jurisdiction intervening events would not alter reality-Finding of Board of Revenue, would not warrant interference.[Pp. 48 & 49] A, B

(ii) Constitution of Pakistan, 1973--

—Art. 199 Conlonization of Government Lands (Punjab) Act (V of 1912), S. 10-Rectification of entries in record of right by Board of Revenue-­Challenge to such order under Art. 199 of Constitution by a person found to have interpolated and tampered record could not be countenanced nor writ jurisdiction was meant for perpetuating fraud and forgery-Such discretionary jurisdiction cannot be invoked for retention of ill-gotten gains-Order of Board of Revenue being amply justifiable warrants no interference by High Court in its constitutional jurisdiction. [P. 49] C

Mr. Shamas Mahmood, Advocate for Petitioner.

Mr. Talib H. Rizvi,Advocate for Respondents Nos. 1 to 5.

Mr. Muhammad HanifKhatana Addl. A.G. for Respondents Nos. 12 to 14-.

Date of hearing: 28,6.2002.

judgment

In essence the point in issue in this matter is as to whether Fazal Karim son of Ali Muhammad Khan or Fazal son of Mallay Khan was really the allottee of the land. The Board of Revenue has through the impugned order dated 3.5.2001 recorded a finding and conclusion that it was Fazal Din who was allottee of the land. This order has been assailed through this petition by Zulfiqar. Ali son of Fazal Karim. The background of the dispute briefly stated is as under:

Lot No 5 situated in Chak No. 10/3-L Shorkot District Jhang was allotted by the Extra Assistant Colonization Officer in the year 1950. It was in the name of Fazal son of Mallay Khan. In the year 1980 an application was made by Fazal Din son of Mallay Khan to the Collector for enquiry and correction of the record detailing the-circumstances and the background how the record was interpolated to deprive him of the land comprising of Lot No. 5. An enquiry was ordered by the Deputy Commissioner, which was conducted by the Extra Assistant Colonization Officer (R) Jhang to examine the record and submit a report. The latter than conducted an enquiry and in his report dated 31.8.1982 observed "in the orders issued under Section 10(3) of the Colonization of Government Lands Act, originally the name of Fazal son of Mallay Khan was recorded which bears a thumb impression. Subsequently, the entry has been tampered with so as to read as Fazal Karim son of Ali Muhammad Khan" and thus name of Fazal Karim continued on the record who later on joined with him his two sons Zulfiqar Ali petitioner herein and Muhammad Iqbal Javed. He has also observed that in the year 1966 such a dispute had surfaced as to who was the real allottee. The Land Reclamation Officer's view has been noted in the report that "land was actually in the name of Fazal son of Mallay and Fazal Karim was only managing the land on his behalf and he had got his two sons associated through misrepresentation. Similarly, Naib Tehsildar, Ahmadpur Sial also made such a report on 28.2.1966. No action appears to have been taken on these references." In action, on the part of Fazal Din for a long time in the matter, however, prevailed upon the enquiry officer despite the fact that the allotment was in the name of Fazal Din to report that "the claim of the petitioner is not fully borne out from the record, although in early years of allotment his name appeared here and there. It was Fazal Karim who reclaimed the area an faced litigation in different Courts and finally the allotment was restored in favour of his sons by the Member (Colonies) Board of Revenue. The petitioner, therefore, cannot be helped at this stage." The matter then came before the Deputy Commissioner/District Collector who in view of the report of the Extra Assistant Colonization Officer (R), Jhang turned down the application of Fazal Din vide order dated 30.12.1984. An appeal was filed by Fazal Din which was dismissed by the -learned

Commissioner, 'Faisalabad Division, Faisalabad on 12.1.1987, which order was assailed before the Board of Revenue, when on 3.5.2001 the learnecl. Member (Colonies) accepted the revision petition filed by Fazal Din and came to the conclusion that the allotment of Lot No. 5 was made in favour of Fazal son of Mallay Khan which merits to be restored in his favour and that the subsequent orders passed on the basis of fraud are without any legal footing and are also set aside."

1. In assailing the said order, it is contended by the learned counsel for the petitioner that the report of the Extra Assistant Colonization Officer (R), Jhang has not been correctly appreciated by the learned Member, Board of Revenue who has interfered with the findings of the Deputy Commissioner and the Commissioner without any valid basis. According to him such a jurisdiction did not vest with the learned Member; Board of Revenue. It is .contended that such a disputed issue of allegations and counter allegations of interpolation to record and fraud could not have been gone into by the Board of Revenue, which matter could appropriately have been dealt with in a proper suit before the Civil Court. It is further contended that long standing entries in the revenue record nomad not be interfered with. The learned counsel for Fazal Din supports the orders passed by the learned Member, Board of Revenue and contends that in a matter where fraud has been practiced and record had been interpolated, the Member Board of Revenue could exercise jurisdiction, which he did on the basis of the record, which was produced before and examined by him. It is contended that no sanctity can be claimed to an entry, which has no valid basis and that mere lapse of time would not validate something which was from its inception, invalid.

2. The order of allotment has not been placed on record, the same, however, had been perused and examined by the Member, Board of Revenue. He has come to the conclusion that the allotment was in the name of Fazal son of Mallay Khan. He has on a quite minute examination of the record observed in paragraph 8 of the order, relevant portion whereof is reproduced, as under: "A perusal of allotment order (Annexure P/l) shows that land in question was allotted to Fazal Son of Mallay Khan, the predecessor- in-interest of the present petitioners. It is also crystal clear that the word 'Karim" has been added after word Fazal and word 'All' has been added before Mallay in the parentage whereas the word Mallay has been interpolated as 'Ahmad'. The interpolation has been made with a different ink and pen. The original allottee Fazal son of Mallay had thumb marked the allotment order in token of acceptance of terms and conditions of the Scheme whereas the signature reading as been added below the thumb impression while the word f-yhas been added in different ink after the entries reading as " 3\ I Uo\i ciUi ". The date of allotment has also been interpolated. All these insertions and overwriting are very dear on the original allotment order, which is iscorded in a different ink. The entries in the Khosra girdawari also show the cultivation of Fazal-ud-Din son of Mallay Khan from Kharif1952 to Rabi 1961. The name of allottee Fazal son of Mallay Khan has been entered in the "Fard Taqseem Arazai"for the year 1950-1951."

Such is a finding recorded on due perusal of the record. It may be appreciated that even the Extra Assistant Colonization Officer (R) had noted in his report that the allotment order was in the name of Fazal son of Mallay Khan but the entry was tampered withso as to read as Fazal Karim son of Ali Muhammad Khan". It has also been noted that "lot No. 5 stood allotted in the name of Fazal son of Mallah, but subsequent order of allotment in favour of Fazal Karim was not forthcoming". When the matter came before the Deputy Commissioner, it was noted by him also that "in the allotment order under Section 10(3) of the Colonization of Government Lands (Punjab) Act, 1912 originally the name of Fazal son of Mallay Khan was recorded, which also bears a thumb impression. Subsequently the entry appears to have been tampered, so as to read as Fazal Karim". The learned Commissioner, however, dealt with the matter in somewhat different manner observing that "the appellant submitted an application in 1980 for the first time for the correction of the entries of the revenue record having remained silent for a period of about 30 years. It appears that either the appellant was not allottee of the land in question or he was not interested in the same". In such state of the record, which indeed explicitly showed the allotment of lot in the name of Fazal son of Mallay Khan, the learned Member Board of Revenue was justified to record his conclusion on perusal and examination of the record by himself. He clearly arrived at the conclusion that fraud had been committed and record had been interpolated and tampered so as to convert the allotment order from Fazal son of Mallay Khan to Fazal Karim son of Ali Muhammad Khan. The allotment order, which was of immense importance, has not been annexed with the petition and thus an important piece of evidence has been suppressed from the Court. A photocopy of the same duly attested by the office of the District Collector has, however, been showed to me by the learned counsel for the respondents, the perusal whereof supports the finding recorded by the learned Member Board of Revenue. The finding to the effect that the allotment was indeed in the name of Fazal son of Mallay Khan is fully supported and backed by the allotment order. No exception can, therefore, be taken to such a view taken by the learned Member, Board of Revenue.

The contention of the learned counsel for the petitioner that concurrent findings should not have been interfered with by the learned Member Board of Revenue has no substance in the facts and circumstance of the case. As observed above even the enquiry officer (Extra Assistant Colonization Officer (R) had noted this fact as also the learned Deputy Commissioner that 'the original Allotment was in the name of Fazal son of Mallay Khan', which entries had been altered by interpolations in the record. It was a clear case of fraud, fabrication and forgery of record. Mere lapse of time and inaction on the part of Fazal would not have deprived or denuded the authorities, of the power to rectify their own record by takingcorrective and remedial steps and undo an injustice. The learned Member Board of Revenue being at the apex of the statutory hierarchy,exercising evisional jurisdiction could justifiably exercise his jurisdiction, in the peculiar facts and circumstances of the case. Even the intervening events and litigation to which Fazal Din was not party would not alter the reality. Fazal Din was the original allottee and fabrication was made in the record later on showing Fazal Karim as allottee, in place of Fazal. The truth having -come to light, there was no impediment in the way of Board of Revenue to remedy a wrong.

Challenge to such an order in writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by a person found to have interpolated and tampered the record cannot be countenanced nor the writ jurisdiction is meant for perpetuating fraud and forgery. Such a discretionary jurisdiction cannot be invoked for the retention of ill-gotten gains. The contention of the learned counsel that the Board of Revenue instead of interfering in the matter should have directed the respondents to approach Civil Court stands negated by the conduct of the petitioner himself „who instead of challenging the order of the Board of Revenue before the Civil Court has invoked the writ jurisdiction of this Court. Since the order passed by the learned Member Board of Revenue has been found to be amply justifiably, it warrants no interference by this Court.

| | | --- | | |

The petition accordingly is dismissed.

(A.A) Petition dismissed.

PLJ 2003 Lahore 49

Present:abdul shakoor paracha, J.

Mst BILQEES AKHTAR-Appellant

versus

Mst. RASHIDA BEGUM and another-Respondents

R.S.A. No. 40 of 1992, heard on 25.6.2002

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

—S. 27(b)-Suit for specific performance of agreement to sell-Relief by way of cancellation of sale-deed not sought by petitioner-Both Courts below had not suited plaintiff on ground that he had not sought relief by way of cancellation of sale-deed in respect of property in question, which had been got registered in favour of subsequent vendee (respondent)-Such findings being in derogation of S. 27(b) of Specific Relief .Acts 1877, were not maintainable. [P. 53] A

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

—-S. 12-Subsequent vendee while appearing in witness-box had not stated that he was not aware of previous agreement to sell executed by vendor respondent in favour of plaintiff-Evidence .and circumstances clearly showed that subsequent vendee had knowledge of agreement to sell entered into by vendor lady with plaintiff before sale-deed which was executed and registered in his favour-Findings of Courts below non­suiting plaintiff were set aside and plaintiffs suit was decreed with direction to deposit remaining sale price within specified period. [P. 55] B, C

1984 SCMR 1139; 1984 CLC 2248; PLD 1972 SC 25; PLD 1975 Karachi 930; PLD 1972 SC 25 ref.

Mian Shahid Iqbal, Advocate for Appellant. Nemo for Respondents. Date of hearing: 25.6.2002.

judgment

This appeal impugns the judgment and decree dated 3.2.1992 passed by the learned Additional District Judge, Lahore dismissing the appeal of the appellant filed against the judgment and decree dated 4.4.1991 of the Civil Judge, Lahore whereby the, suit for possession through specific performance of a contract in respect of Plot No. 828, Block-C, measuring 10 Marias, Faisal Town Scheme, Lahore, was dismissed.

1. Brief facts of the case are that the appellant entered into an agreement to sell on 20.11.1982 with Mst. Rashida Begum wife of Ghulam Nabi in respect of Plot No. 828 measuring 10 Mariasin Faisal Town Scheme, Lahore in consideration of Rs. 98,000/-. An amount of Rs. 25000/- was paid as earnest money by the appellant Mst. Bilqees Akhtar to Mst. Rashida Begum, Respondent No. 1 at the time of execution of the agreement to sell dated 20.11.1982. It was agreed that Mst. Rashida Begum would execute sale-deed in favour of the appellant. The agreement was not specifically enforced in spite of repeated visits by the appellant. The appellant filed a suit for specific performance of the above stated agreement, in the Civil Court on 19.7.1984. During the pendency of the suit, it came to the notice of the appellant-plaintiff that the plot in dispute has been transferred by Mst.Rashida Begum, Respondent No. 1, in favour of one Ashfaqur Rehman, Respondent No. 2 herein, through a sale-deed dated 17.12.1983 therefore an amended plaint was filed by the appellant claiming the enforcement of the agreement against the subsequent vendee also.

2. The suit was resisted by both the respondents-defendants. It was asserted by Mst. Rashida Begum Respondent No. 1 in her written statement that one Muhammad Hussain, a property dealer, had paid Rs. 25000/- to her as earnest money and had obtained her signatures on certain papers which were subsequently converted into an agreement dated 20.11.1982 for the sale of property in question. This fact came to her knowledge after the institution of the instant suit by the appellant-plaintiff. However, through an agreement dated 20.10.1982 she paid back Rs. 250007- with another amount of Rs. 4000/- as compensation to said Muhammad Hussain and thus sold the said plot to Ashfaqur Rehman, Respondent No.. 2.

3. Ashfaqur-Rehman, Respondent No. 2 defendant contended that the suit is collusive between the appellant Mst. Bilqees Akhtar and Respondent Mo. 1 Mst.Rashida Begum. The alleged greement between the appellant and Respondent No. 1 Mst.Rashida Begum is ante-dated to defeat his right of ownership. It was further contended that the suit is not maintainable in the present form and that the agreement dated 20.11.1982 was not enforceable under the law and that the suit is not maintainable against him as he claims to be bonafidepurchaser with consideration without notice. Further it was contended that the appellant-plaintiff was stopped by her own Act and conduct to file the suit. From the divergent pleadings of the parties, the learned Civil Judge proceeded to frame the following issues:-

4. Whether the suit is not maintainable in its present form? OPD.

5. Whether the suit is collusive? OPD-2

6. Whether the suit is bad for non-joiner of necessary parties? If so its effect? OPD-2

7. Whether the plaintiff is stopped by her conduct to file the instant suit? OPD-2.

8. Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction, if so, correct valuation? OPD-2.

9. Whether the Defendant No. 2 is entitled to special costs u/S. 35-A CPC? OPD.

10. Whether the plaintiff has not come to the Court with clean hands? OPD.

11. Whether the Defendant No. 1 agreed to sell the suit property in favour of the plaintiff vide impugned agreement to sell? OPP.

12. Whether the Defendant No. 2 is a bonafidepurchaser for consideration of the suit property without notice?

13. Relief.

14. To prove the agreement to sell dated 20.11.1982 the appellant examined Muhammad Sha.fi and Sardar Muhammad as PW-1 and 2. Power of attorney in favour of Sardar Muhammad and agreement were produced in evidence as Exh. P.I and 2. On the other hand, Muhammad Ali and Shah Din appeared as DW-1 and 2, whereas Mst. Rashida Begum respondent-defendant appeared as DW-3. On behalf of respondent-Defendant No. 2 Ashfaq-ur-Rehman, Syed Shabbir Hussain appeared as DW-4, Maqbool Ahmad DW-5 and Defendant No. 2 himself appeared as DW-6. Issue No. 1 was decided in favour of Defendant No. 2 and it was held by the learned Civil Judge that the suit was not maintainable in its present form. Issue No. 2 was decided in favour of the appellant-plaintiff holding that there is no evidence on record to prove any alleged collusion. Issues Nos. 3, 4 and 5 were decided against the respondent. Issues Nos. 6 and 7 remained undecided. On Issues Nos. 8 and 9, the learned Civil Judge observed that:-

"However as per contents of her written statement she has admitted the execution of agreement but has alleged that it was entered into through said Muhammad Hussain who subsequently not only got back the earnest money but also Rs. 4000/- as compensation. In this way it can be concluded that agreement was entered into between the parties and Rs. 25000/- were paid. Now onus shift to Defendant No. 1 to prove that she paid back Rs. 25000/- to Muhammad Hussain or for that matter to plaintiff but there is no evidence from her side."

Issue No. 9 regarding bonafidepurchaser without notice and with consideration was decided in favour of respondent-Defendant No. 2. The learned Judge observed:-

"... Plaintiff is not entitled to get specific performance of the

agreement due to the reasons that she has not sought declarations against the registered sale-deed in favour of Defendant No. 2. However she is entitled to get recovery of Rs. 25000/- from Defendant No. 1."

The learned Civil Judge proceeded to decree the suit against the respondent/ Defendant No. 1 to the extent of recovery of Rs. 25000/-. However, the suit against the Respondent No. 2 was dismissed vide judgment and decree dated 4.4.1991.

1. On appeal filed by the appellant against the judgment and decree passed by the learned Civil Judge dated 4.4.1991, the learned Additional District Judge endorsed the findings on all the issues by observing that:-

"The evidence on record proved the execution of agreement Exh. P. 2 and payment of Rs. 25000/- as advance money by the appellant to Respondent No. 1. The learned trial Judge, therefore, in view of the evidence on record had rightly decided Issue No. 8 in favour of the appellant against the respondents."

1. On Issue No. 9 the learned Additional District Judge observed:-

"The evidence on record specially the sale-deed Exh. PW-4/1 proved that Respondent No. 2 had purchased the property in question for consideration in good faith. Since Respondent No. 2 according to the evidence available on record was bonafidepurchaser for consideration without notice of previous agreement in favour of the appellant relating to the sale of the property in question, the learned trial Judge had rightly held that the appellant had failed to prove that she was entitled to decree for possession of property in question through specific performance of the agreement in question, specially when she had not sought any specific relief against Respondent No. 2 in the form of cancellation! of sale-deed existing in his favour in respect of the property in question and was entitled to recover only the amount paid by her under the agreement to Respondent No. 1."

1. Learned counsel for the appellant contends that both the Courts below decided Issue No. 8 in favour of the appellant holding that she had purchased the disputed property from Respondent No. 1 through an agreement to sell dated 20.11.1982. But on Issues Nos. 1 and 9 both the Courts below erroneously recorded the findings that the suit was not maintainable and that the Respondent No. 2 was a bonafidepurchaser with consideration without notice. Further contends that there was no defect in the form of the suit nor defendant-Respondent No. 2 was a bonafidepurchaser for value without notice. According to him, both the Courts below did not give any reason for giving the findings in favour of the respondents and the findings recorded on issues Nos. 1 and 9 by both the Courts below do not satisfy the requirement of bonafidepurchaser with consideration without notice. The learned counsel placed reliance on:- 1984 SCMR 1139 Muhammad Sharif vs. Mst. Sughra Bano etc. 1984 CLC 2248 Bakhtawar vs. Sher Muhammad etc. PLD 1972 SC 25 Mst. Khair-ul-Nisa etc. vs. Malik Muhammad Ishaque etc.

2. With the assistance of the learned counsel for the appellant I have examined the findings of the two Courts below on Issues Nos. 1 and 9. While deciding the Issue No. 1, both the Courts have non-suited the appellant on the ground that no relief had been claimed by the appellant seeking setting aside of the sale of the property in question in favour of Respondent No. 2 or relief by way of cancellation of the sale-deed in respect of the property got registered in favour of the Respondent No. 2. The above stated findings do not fulfil the requirement of law as envisaged in Section 27(b) of the Specific Relief Act, which reads as unden-

"27. Relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against:-

(a) .........................................

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."

1. The above view of both the Courts below that suit for possession through specific performance was not maintainable and could have not been decreed because of failure of the plaintiff to sue for cancellation of the registered sale-deed executed in favour of subsequent vendee, found favour in case of SyedMithal Shah us. Khawaja Rafiullah and another (PLD 1975 Karachi 930) but this authority was over-ruled by the Hon'ble Supreme Court in case of Muhammad Sharif vs. Mst. Sughran Bano and others (1984 SCMR 1139).' The Hon'ble Supreme Court While interpreting the provisions of Section 39 of the Specific Relief Act (I of 1877), which deals with the cancellation of documents, has ruled:- "Suit for specific performance and injunction is maintainable even if plaintiff failed to sue for cancellation of registered sale-deed executed in favour of some other party while asking for specific performance of earlier agreement."

2. The onus of proving the bonafidepurchaser with consideration without notice under the law was on Ashfaq-ur-Rehman, Respondent No. 2, the subsequent vendee. It has been held in the case reported as Mst. Khair- ul-Nisaand 6 others vs. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) as under:-

"Held. Under the provision of Section 27(b) of the specific Relief Act, 1877 a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract. It is, therefore, for the transferee to prove that he was a transferee in good faith and without notice of the original contract for valuable consideration. In a suit for specific performance of contract the onus lies heavily on the person whose title arises subsequent to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original, contract. Under Section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract"

1. On the touchstone of the above stated judgment of the Hon'ble Supreme Court the appellant's attorney Sardar Muhammad appeared as PW-3 in the witness-box. He has specifically stated that Respondent No. 2 was aware of the earlier agreement to sell dated 20.11.1982 regarding sale of Plot No. 828, Block-C, Faisal Town Scheme in favour of the appellant. In this view of the matter, the appellant has discharged the onus of proving that the respondent-defendant had notice of the earlier agreement to sell executed by Respondent No. 1 in favour of the appellant. Respondent Ashfaqur Rehman appeared in the witness box as DW-5. He no-where stated that he had no notice of the agreement to sell dated 20.11.1982 in favour of the appellant. In the written statement, Respondent No. 2-defendant has taken a plea that the suit is malafideand collusive inter-se the plaintiff and Defendant-Respondent No. 1 who has prepared an ante-dated agreement to sell in order to deprive the Respondent-Defendant No. 2 of the suit property. The registered sale-deed produced by the Respondent No. 2 defendant dated 17.12.1983 shows that the plot was purchased by Respondent No, 2 in consideration of Rs. 18000/-, where as Respondent No. 2 asserted in his written statement that Defendant No. 1 contracted to sell with him regarding suit property for Rs. 1,25,000/- as per agreement dated 15.9.1983 and Defendant No. 1 received Rs. 25000/- as earnest money. The Defendant No. 1 subsequently received the balance amount of Rs. 1. Lac and executed the sale-deed in his favour on 17.12.1983. At the time of execution of the sale-deed as'well as receipt of balance amount the actual and physical possession of the suit plot was also delivered to the Defendant No. 2-Respondent No. 2. A perusal of the sale-deed would show that there was no mention of the agreement to sell dated 15.9.1983 or receiving of Rs. 100QOO/-(one lac) at the time of registration of the sale-deed by the Registrar. The Defendant-Respondent No. 2 appeared in the witness-box and has not stated that he was not aware of the previous agreement to sell executed by Respondent No. 1 in favour of the appellant. The evidence and the circumstances clearly show that Respondent .No. 2 had the knowledge of agreement to sell dated 20.11.1982 entered into by Mst. Rashida Begum, Respondent No. 1 with appellant before the sale-deed dated 17.12.1983 which was executed and registered in favour of Respondent No. 2.

2. In this view of the matter, both the Courts below have recorded a finding on Issue No. 9 erroneously, which cannot be sustained. Resultantly, the findings on Issue No. 9 are reversed and it is observed that Respondent No. 2 is not the bonafidepurchaser with consideration without notice. For what has been discussed above, this appeal is accepted, judgment and decree of the Civil Judge as well as of the Additional District Judge are set aside. The suit for possession through specific performance filed by the appellant is decreed. The appellant shall deposit the remaining sale price of Rs. 73000/- in the Court to be paid to the Respondent No. 1, within one month from today and registered sale-deed shall be executed by Respondent No. 1 in favour of the appellant, failing which the suit of the appellant shall stand dismissed.

(A.A) Appeal accepted.

PLJ 2003 Lahore 56

Present: maulvi anwarul haq, J.

MUHAMMAD HANIF-Petitioner

versus

ARSHAD ALI and 5 others-Respondents

C.R. No, 929-D of 1992, heard on 18.6.2002

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

—S 33. 115-Female proforma defendant having died during pendency of appeal, relief was claimed against such female defendant-Upon a report on process that lady was dead application for impleading her legal representations was made, and they were brought on record-Even non- irnpleading of such lady would not he material so far as decision of revision on merit was concerned-Suit of plaintiffs who had filed suit after 3 years of attaining majority was dismissed while that of other plaintiff was decreed to the extent of her share. [P. 59] B

(ii) Limitation Act, 1908 (IX of 1908)--

—S. 3 & Art. 44-Suit filed hy respondents after expiry of 3 years of date of attaining majority would be barred by time and was liable to be dismissed in terms of Art. 44 and S. 3 of Limitation Act 1908.[P. 58] A

PLD 1963 SC 244; 1973 SCMR 420; 1983 SCMR 420; PLD 1987 Lahore 232; PLD 1987 Lahore 387 and 2001 SCMR 286 ref.

Mr. Habibullah Chaudhary, Advocate for Petitioner. Mr. S.M. Masood, Advocate for Respondents. Date of hearing: 18.6.2002.

judgment

On 20.1.1983 the Respondents Nos. 1 to 3 alongwith Mehmood Ahmad S/o Mst.Ghafooran and Manzooran, the daughters of Ghulam Qadir filed suit against petitioner and Mst. Niamat Bibi, Respondent No. 4. In the plaint it was stated that the suit land is owned by the said plaintiffs and the said Respondent No. 4 being th'e heirs of late Ghulam Qadir; that 14/15 years ago the said persons Shifted their residence to another village and the land was given on contract to Inayat Muhammad for 12 years and the Respondent No. 4 accepted the terms on behalf of Respondents Nos. 1 to 3 who were minors at the relevant time; that it was now come to their knowledge that the said Inayat got the mutation of sale attested on 18.3.1970 in favour of his son i.e. the petitioner. It was further stated that Respondent No. 4 had never been appointed as a guardian of the minors. With these averments a declaration was sought that the said mutation of sale is illegal and void. The suit was contested by the petitioner \vho ^ujected that the suit is barred by time; that it is collusive inter se the mother and the children who were the plaintiffs. On merits it was stated that the land had been purchased for consideration. Issues were framed. Evidence of the parties was recorded. Vide a judgment and decree dated 16.1.1988 the learned trial Court partly decreed the suit inasmuch as the suit of the Respondents Nos. 1 to 3 was decreed against the petitioner while the suit of the said 3 plaintiffs was dismissed. The reason recorded for the said partial decree was that the Respondents 1 to 3 were minors at the time of the sale and as such the sale was void. Against the said decree dated 16.1.1988 the petitioner filed a first appeal. It is a matter of record that the other 3 plaintiffs whose suit had been dismissed also filed a first appeal. Both the appeals were heard together by a learned Addl. Distt. Judge, Faisalabad. The learned Addl. Distt. Judge found that although the respondents 1 and 2 were minors yet the sale being voidable and not void the suit filed bj them beyond 3 years of attaining majority was barred by time. The appeal filed by the said other plaintiffs was also dismissed. Despite the said finding on the question of limitation, the learned Addl. Distt. Judge dismissed the appeal of the petitioner on the sole ground that he had not impleaded the said other 3 plaintiffs in his first appeal. This was done videa consolidated decree dated 11.3.1992.

1. The said other plaintiffs have not but the petitioner has filed this C.R. to challenge the said judgment and decree of the learned Addl. Distt. Judge.

2. Learned counsel for the petitioner relying upon the case of Sarshar All vs. Roberts Cotton Association Ltd. and another (PLD 1963 SC 244), Haji Sikander vs. Malik Khan Muhammad and another (1973 SCMR 420). and NoorMuhammad vs. The State (1983 SCMR 420) argues that in the first instance no relief was asked against the non-impleaded plaintiffs and in the second the said persons have themselves filed an appeal and both the appeals were heard together and as such the appeal could riot be have been dismissed on the sole ground of non-joinder of the parties. Learned counsel for the respondent on the other hand, relying upon the case of Abdul Qadir and 5 others vs. Muhammad Umar and others (PLD 1987 Lahore 232) and Muhammad Suleman vs. Abdul Rashid and 13 others (PLD 1987 Lahore 387) had argued that the said left out plaintiffs were necessary parties and could not have been impleaded after the lapse of the period of limitation for the first appeal. Learned counsel also objects that the civil revision was filed against Niamat Bibi Respondent No. 4 when she had died on 27.3.1991. Her L.Rs. were impleaded on 16.4.1994 and according to the learned counsel the C.R. has become barred by time and is liable to be dismissed. Relies upon the case of Allah Dino and another vs. Muhammad Shah and others (2001 SCMR 286). Further contends that the mutation was entered on 18.3.1970 whereas the certificate of guardianship was issued on 20.3.1970 and as such the sale was void and not voidable.

3. I have gone through the records of this case with the assistance of the learned counsel for the parties. There is no denial of the fact that out of the 6 plaintiffs who filed the suit against the petitioner the suit was decreed in favour of the 3 while it was dismissed regarding the remaining 3 plaintiffs. It is also an admitted fact that in the first appeal the said plaintiffs whose suit was dismissed had not been impleaded. It is also-a matter of record that the said plaintiffs had filed their own appeal and as such both the appeals were heard together by the learned Addl. Distt. Judge. Another fact which I would like to note is that the first appeal was filed by the petitioner against the judgment and decree of the learned trial Court dated 16.1.1988 on 11.2.1988 i.e. well within time. From the perusal of the impugned judgment of the learned Addl. Distt. Judge (relevant discussion in para 11 thereof) it appears that the objection was taken or the defect was noticed at the time when the appeal was being heard and decided. It further appears that the question of impleadment of the said left out parties did not crop up. As the learned Addl. Distt. Judge thought it fit to dismiss the appeal forthwith upon noting or raising of the said objection. Be that as it may, the fact remains that the said persons had also filed an appeal and all the parties were heard. So far as the judgments cited by both the parties are concerned I do find that the judgment reported as 1973 SCMR 420 does support the contention of the learned counsel for the petitioner. In a later judgment in the case of Said Muhammad and another us.M. Sardar and others (PLD 1989 SC 532) the rigid view taken in the case of Labha Ram and others us. Ram Partab and others (AIR 1944 Lah. 76) hithertofore followed by this Court consistantly, was not approved of.

4. Since in the present case all parties were heard and decision was recorded by the learned Addl. Distt. Judge on all issues I feel that a remand would not serve any purpose. The said finding of the learned Addl. Distt. Judge holding the first appeal to be incompetent is accordingly set aside.

5. Coming to the said contention of the learned counsel for the respondents it is true that the sale was reported on 18.3.1970 however the matter was taken up by the revenue officer on 21.3.1970 when he took note of the fact that Niamat Bibi is the certified guardian of the minor vendors. A copy of the said certificate is on record as Ex. D-2. According to this document guardianship Case No. 52/^ was instituted on 14.5.1969 and was decided on 11.3.1970. It is true that the certificate was issued on 20.3.1970. However the certificate was issued pursuant to the orders passed on 11.3.1970 and it cannot be said that Niamat Bibi was not a certified guardian of the minors on the said date. This being so the learned Addl. Distt. Judge has correctly held that Article 44 of the Schedule to the Limitation Act, 1908 would apply and suit filed by Respondents Nos. 1 and 2 after expiry of 3 years of the date of attaining of majority would be barred by time and is liable to be dismissed, under Section 3 of the Limitation Act, 1908, the sale transaction being voidable and not void. Nothing therefore turns on the said contention of the learned counsel.

7.As to the defect pointed out in this C.R. I find that the lady died on 27.3.1991 when the first appeals were still pending. The petitioner may not be but respondents being children of the lady must have been aware of the said fact but it v/as not brought to the notice of the Court of appeal and the L.Rs. were riot brought on record. The result was that in the decree sheet prepared by the learned Addl. Distt. Judge the name of the lady appeared as a party. In any case the lady was impleaded only as a proforma defendant in the suit and no relief was claimed against her. Upon a report made on the process that the lady is dead, application for impleading the L.Rs. was filed who were accordingly impleaded. No prejudice stand caused in the matter to the deceased lady or her L.Rs. Besides keeping in view the attributes of revisional jurisdiction and its exercise even non-impleading of the said lady would not be material so far as the decision of the C.R. on the merits is concerned.

1. For all that has been stated above this C.R. is allowed and the result would be that the suit filed by the Respondents 1 and 2 as well shall stand dismissed while suit only of Mst, Shehnaz Akhtar, Respondent No. 3 shall stand decreed in her favour and against the petitioner to the extent of her share in the suit land. No orders as to costs.

(A.P.) Order accordingly.

PLJ 2003 Lahore 59

Present: IJAZ AHMAD CHAUDHARY, J.

MUHAMMAD KHALID, BLOCK OFFICER, FOREST DEPARTMENT, DISTT. NAROWAL-Petitioner

versus

S.H.O. P.S. LACER KALAN, DISTT. NAROWAL and another—Respondents

W.P. No. 11265 of 2002, decided on 27.6.2002.

(i) Criminal Procedure Code, 1898 (V of 1898)--

—-S. 154-Constitution of Pakistan (1973), Art. 199-F.I.R registered against petitioner sought to be quashed-Allegation of mala fide in registration of F.I.R against petitioner was not shown to have motivated complainants lodge F.I.R. against petitioner-Factual controversy alleged by petitioner could only be resolved after recording of evidence and same could not be done in writ jurisdiction. [P. 61] A

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—- S. 154-Constitution of Pakistan (1973) Art. 199-High Courts power to quash FIR-Essentials-High Court can quash criminal proceedings and can also quash F.I.R. by exercising powers under Art. 199 of Constitution-If case was found to be baseless and no case was made out from facts of case and had been registered with mala fide intention and ulterior motive-No such conditions were available in present case-­ Petitioner had failed to show any reason for interference by High Court under Art. 199 of Constitution. [P. 61] C

(iii) Interpretation of Statutes-

—Rules framed by Executive Authorities would not prevail over law. [P. 61]B

PLD 2000 Lahore 164; 2000 PCr. L.J 1995 and PLD 1999 Lahore 109 ref. Mr. Nazir Ahmad Ghazi, Advocate for Petitioner. Date of hearing: 27.6.2002.

order

Through this Constitutional petition the petitioner seeks quashment of case FIR No. 74 registered on 13.6.2002 under Section 409/411/34 PPG at Police Station Lacer Kalan District Narowal.

1. Learned counsel for the petitioner contends that the registration of the FIR is with mala fide intention and ulterior motive by the police as case FIR No. 66 dated 4.6.2002 was registered at the same Police Station on the application of Amanat Alim under Sections 332, 186, 337-L (ii)/336- F(i)/34 PPC in which allegation has been levelled against Ishtiaq Ahmad etc. and the petitioner was a witness in that FIR. The complainant Abdul Ghafoor Khan ASI has got lodged this case against the petitioner in order to restrain the petitioner from supporting the complainant in the said FIR and the case is registered with mala fide intention and ulterior motive and is liable to be quashed. It is further contended that the case property was not the stolen property as is stated by the complainant but the Forest Department has received the penalty of that stolen properly and has issued letter dated 17.6.2002 addressed to the Range Officer that the case be got cancelled as the stolen property is the same wood which was recovered from Ghazanfar co-accused and the petitioner is not involved in this case. It is further contended that the petitioner admittedly is a civil servant and Section 409 PPC is a scheduled offence and case could be registered and investigated by the Anti-Corruption Department as Establishment of Anti- Corruption Rules, 1985 provides for holding of inquiry before the registration of the case against the public servant. He relies upon judgment reported as "2000 Pak. Crl. L.J, page 1924" and contends that the FIR is liable to be quashed. He also relies on "PLD 2000 Lah. 164" in which this Court has held that if the registration of the case is with mala fide intention it can be quashed by this Court.

2. I have heard the arguments of the learned counsel for the petitioner at length and also perused the documents attached with this petition. The petitioner has failed to show any mala fides on the part of the complainant for the false implication of the petitioner by levelling serious allegations against him for mis-appropriation of the Government property (stolen wood). The contentions raised by the learned counsel for the petitioner that this case has been registered due to the relations between Ishtiaq etc. who are accused in the earlier case are not supported by any documentary evidence and the contention of the petitioner cannot be accepted as this is a factual controversy which can only be resolved after the recording of the evidence and same cannot be done in writ jurisdiction. The other contention that the petitioner is innocent and the Forest Department has mentioned that the stolen property is the case property of another case is also a question of fact which can only be resolved after the recording of the evidence. Annex: 'G' which has been shown by the learned counsel for the petitioner apparently has been sent by the earlier officer after four days after the registration of the case in order to save the skin of the petitioner which cannot be relied upon at this stage for the quashment of the FIR, The other ground that the local police has no jurisdiction, this matter has already been decided by this Court in "PLD 1999 Lah: 109" (Sardar Muhammad Iqbal us. The State) in which it has been held that the rules framed by the Executive authorities will not prevail over the law and this Court in a case reported as Shafqat Hussain vs. The State (2000 Pak. Crl, L.J. 1995) has already held that the local police can investigate the case against the civil servants and if the case is registered by the local police against the civil servant it cannot be quashed on this score. This is a D.B. judgment and is binding on Single Bench. As far as the decision reported in "PLD 2000 Lah: 164" is concerned there is no cavil to the proposition that this Court can quash the proceedings and can also quash the FIR by exercising the powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, if the case is found baseless and no case is made out from the facts of the case or has been registered with mala fide intention and ulterior motive. No such conditions are available in this case hence this case is not applicable to the facts and circumstances of the case in hand. The petitioner has failed to show any reason for interference by this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. This petition has no merit and is dismissed in-limine.

(A.A) Petition dismissed.

PLJ 2003 Lahore 61

Present: IJAZ AHMED CHAUDHARY, J.

MUHAMMAD SARWAR-Petitioner

versus

SESSIONS JUDGE, HAFIZ-ABAD and 3 others-Respondents

W.P. No. 11362 of 2002, decided on 28.6.2002

Criminal Procedure Code, 1898 (V of 1898)--

—-S. 154-Constitution of Pakistan (1973), Art. 199-Order of respondent for registration of criminal case against petitioner assailed No reason were pointed out for setting aside order passed by Sessions Judge for registration of criminal case against petitioner and other police officials who participated in fake police encounter with deceased who had lost his life-Petitioner contention that deceased was involved in 91 cases would hardly give licence to police to murder him-Deceased had a right to be dealt with in accordance with law but could not be done to death if allegations levelled against police officials were correct-Judicial Magistrate is finding that police encounter was suspicious and that occurrence had not taken place in manner as has been narrated by police, Sessions Judge had rightly directed police to register criminal case.[P. 63] A

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 154-Constitution of Pakistan (1973), Art. 199-Registration of criminal case—Registration of criminal case would be binding on police even otherwise if any application was submitted before police constituting commission of cognizable offence-Judicial Magistrate having recommended on the basis of evidence and Sessions Judge after personal of evidence having concluded thatprima facie, offence was made out, his order for registration of case has to be carried out—Petitioner cannot be considered aggrieved by said order due to registration of case-No interference in order of Sessions Judge for registration of case was warranted. [P. 63] B

Mr. Farooq Amjad Meer, Advocate for Petitioner. Date of hearing: 28.6.2002.

order

Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside of the order of Respondent No. 1 dated 18.6.2002 whereby he has recommended for the registration of the criminal case against the petitioner and others directing Respondent No. 4 and has also prayed for declaring the same as illegal and unlawful.

1. The brief facts of the case are that the petitioner was posted as SHO P.S. Sukheki District Hafizabad in the year 1999. On 9.6.1999 a police encounter took place within the jurisdiction of his Police Station were one Talib Hussain who was previously involved in 91 criminal cases\ of various nature was murdered, in self defence by the police and FIR No. 183 was registered on 9.6.1999 under Sections 353, 324 PPG read with Section 13(XX) of the Arms Ordinance, 1965 at the same Police Station. District Magistrate Hafizabad vide his order dated 15.6.1999 directed the Assistant Commissioner Pindi Bhattian to hold a judicial inquiry. He recorded the statements of 35 witnesses including the statement of the present petitioner and four police officials but the post of Assistant Commissioner was abolished due to the introduction of new City Government and Respondent No. 3 submitted the judicial inquiry to Respondent No. 2 for its entrustment to Respondent No. 2. Respondent No. 2 instead of starting denovoinquiry has given his report with the recommendation on 10.6.2002 for the registration of the murder case against the petitioner and other police officials. On 18.6.2002 the petitioner submitted an application to Respondent No. 1 for setting aside of the judicial inquiry report of Respondent No. 2 but this application was rejected and a direction was issued to Respondent No. 4 to register the criminal case.

2. Learned counsel for the petitioner contends that the judicial inquiry report of Respondent No. 2 is illegal and unlawful as he was not initially entrusted the inquiry, thus he was bound to hold the denovoinquiry and afford an opportunity of hearing to all the parties before holding that the petitioner is liable to face the trial of the murder case of said Talib Hussain, hence direction issued on the basis of earlier inquiry is illegal and unlawful and is liable to be set aside by this Court. It is further contended that the petitioner has been condemned unheard and the petitioner will suffer irreparable loss in case the inquiry proceedings are not set aside. It is also contended that the petitioner is ready to face the inquiry by any Judicial Officer and to prove his innocence.

3. I have heard the learned counsel for the petitioner at length and also perused the documents attached with this petition. I do not find any reason for setting aside the order dated 18.6.2002 passed by the learned Sessions Judge, Hafizabad, for the registration of the criminal case against the petitioner and other police officials who participated in the fake police encounter with Talib Hussain who has lost his life. The contention of the learned counsel for the petitioner is that Talib Hussain was involved in 91 cases but it hardly gives a licence to the police to murder said Talib Hussain. He had a right to be dealt with in accordance with law but could not be done to death if the allegations levelled against the police officials are correct. Since the Judicial Magistrate, who was entrusted the inquiry by Respondent No. 1, after perusal of the evidence recorded by the Assistant Commissioner has come to a definite conclusion that.the police encounter was suspicious and the evidence has been brought on the record which is sufficient toprimafacie arrive at a conclusion/finding that the occurrence has not taken place in the manner as has been narrated by the police, as such the learned Sessions Judge has rightly directed Respondent No. 4 to register the criminal case. The registration of the criminal case is binding on the police even otherwise if any application is submitted for the same before the police constituting the commission of cognizable offence. As the learned Judicial Magistrate has recommended after the perusal of the evidence and the learned Sessions Judge has also come to the conclusion that prima facie the police encounter is fake and the matter requires to be thoroughly investigated, the petitioner if is innocent can prove his innocence before the Investigating Officer by producing evidence but the direction for registration of the case cannot be declared as illegal and unlawful as the registration of registration of criminal case against petitioner and other police officials who participated in fake police encounter with deceased who had lost his life-Petitioner contention that deceased was involved in 91 cases would hardly give licence to police to murder him-Deceased had a right to be dealt with in accordance with law but could not be done to death if allegations levelled against police officials were correct-Judicial Magistrate is finding that police encounter was suspicious and that occurrence had not taken place in manner as has been narrated by police, Sessions Judge had rightly directed police to register criminal case. [P. 63] A

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—-S. 154-Constitution of Pakistan (1973), Art. 199-Registration of criminal case-Registration of criminal case would be binding on police even otherwise if any application was submitted before police constituting commission of cognizable offence-Judicial Magistrate having recommended on the basis of evidence and Sessions Judge after personal of evidence having concluded that prime facie, offence was made out, his order for registration of case has to be carried out-Petitioner cannot be considered aggrieved by said order due to registration of case-No interference in order of Sessions Judge for registration of case was warranted. [P. 63] B

Mr. Farooq Amjad Meer, Advocate for Petitioner. Date of hearing: 28.6.2002.

order

Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside of the order of Respondent No. 1 dated 18.6.2002 whereby he has recommended for the registration of the criminal case against the petitioner and others directing Respondent No. 4 and has also prayed for declaring the same as illegal and unlawful.

1. The brief facts of the case are that the petitioner was posted as SHO P.S. Sukheki District Hafizabad in the year 1999. On 9.6.1999 a police encounter took place within the jurisdiction of his Police Station were one Talib Hussain who was previously involved in 91 criminal cases\ of various nature was murdered, in self defence by the police and FIR No. 183 was registered on 9.6.1999 under Sections 353, 324 PPC read with Section 13(XX) of the Arms Ordinance, 1965 at the same Police Station. District Magistrate Hafizabad vide his order dated 15.6.1999 directed the Assistant Commissioner Pindi Bhattian to hold a judicial inquiry. He recorded the statements of 35 witnesses including the statement of the present petitioner and four police officials but the post of Assistant Commissioner was abolished due to the introduction of new City Government and Respondent No. 3 submitted the judicial inquiry to Respondent No. 2 for its entrustment to Respondent No. 2. Respondent No. 2 instead of starting denovoinquiry has given his report with the recommendation on 10.6.2002 for the registration of the murder case against the petitioner and other police officials. On 18.6.2002 the petitioner submitted an application to Respondent No. 1 for setting aside of the judicial inquiry report of Respondent No. 2 but this application was rejected and a direction was issued to Respondent No. 4 to register the criminal case.

2. Learned counsel for the petitioner contends that the judicial inquiry report of Respondent No. 2 is illegal and unlawful as he was not initially entrusted the inquiry, thus he was bound to hold the denovoinquiry and afford an opportunity of hearing to all the parties before holding that the petitioner is liable to face the trial of the murder case of said Talib Hussain, hence direction issued on the basis of earlier inquiry is illegal and unlawful and is liable to be set aside by this Court. It is further contended that the petitioner has been condemned unheard and the petitioner will suffer irreparable loss in case the inquiry proceedings are not set aside. It is also contended that the petitioner is ready to face the inquiry by any Judicial Officer and to prove his innocence.

3. I have heard the learned counsel for the petitioner at length and also perused the documents attached with this petition. I do not find any reason for setting aside the order dated 18.6.2002 passed by the learned Sessions Judge, Hafizabad, for the registration of the criminal case against the petitioner and other police officials who participated in the fake police encounter with Talib Hussain who has lost his life. The contention of the learned counsel for the petitioner is that Talib Hussain was involved in 91 cases but it hardly gives a licence to the police to murder said Talib Hussain. He had a right to be dealt with in accordance with law but could not be done to death if the allegations levelled against the police officials are correct. Since the Judicial Magistrate, who was entrusted the inquiry by Respondent No. 1, after perusal of the evidence recorded by the Assistant Commissioner has come to a definite conclusion that,the police encounter was suspicious and the evidence has been brought on the record which is sufficient toprimafacie arrive at a conclusion/finding that the occurrence has not taken place in the manner as has been narrated by the police, as such the learned Sessions Judge has rightly directed Respondent No. 4 to register the criminal case. The registration of the criminal case is binding on the police even otherwise if any application is submitted for the same before the police constituting the commission of cognizable offence. As the learned Judicial Magistrate has recommended after the perusal of the evidence and the learned Sessions Judge has also come to the conclusion ihatprimafacie the police encounter is fake and the matter requires to be thoroughly investigated, the petitioner if is innocent can prove his innocence before the Investigating Officer by producing evidence but the direction for registration of the case cannot be declared as illegal and unlawful as the registration of lue criminal case means to set the criminal machinery at motion against the alleged crime. It cannot be stayed as the purpose for the investigation defined under Section 4 of the Criminal Procedure Code is to collect the evidence for the alleged commission of the offence and the prosecution cannot be deprived of collecting the evidence against the accused persons against whom the complaint is made for the commission of cognizable offence. The petitioner cannot be considered as an aggrieved by the said order due to the registration of the case. It is not necessary or incumbent upon the police or the Investigating Officer to hear the accused persons before the registration of the case against them, because the accused persons have to be afforded opportunities of proving their innocence during the investigation and in case they are challaned have to face the trial before the Court.

4. In view of the foregoing discussion I do not find any merit in this writ petition which is dismissed, in limine.

(A.A) Petition dismissed.

PLJ 2003 Lahore 64

Present: ijaz ahmad chaudhry, J.

MUHAMMAD YASIN SAQIB-Petitioner

versus

CHAIRMAN PAKISTAN TELECOMMUNICATION CORPORATION, HEADQUARTER, ISLAMABAD and 7 others-Respondents

W.P. No. 24009 of 2000, decided on 8.8.2002.

Constitution of Pakistan, 1973--

—Art. 199-Formulation of committee, issuing of equivalence of diploma of B-Tech (Hon.) to B.SC. Engineering Degree and power of equivalising respondents (employees) as Professional Engirfeers vide letter dated specified date, purported to have been vested with respondent/officials through said notification, sought to be declared without lawful authority and without jurisdiction being against law laid down by Supreme Court and existing law-Order of formation of committee was passed on 28.10.1997, while respondents were promoted m the year 1998-Constitu- tional petition filed in year 2000, was hit by laches-Even otherwise, petitioner having felt aggrieved by promotion of respondent; could have challenged same before Federal Service Tribunal-Writ of quo-warrantowas not maintainable having been filed by interested person who was affected by impugned order. [P. 66] A

PLD 1995 SC 53 ref.

Ch. Irshadullah Chatha, Advocate for Petitioner. Date of hearing: 8.8.2002.

ORDER

Through this petition, the petitioner seeks declaring the act of Respondent No. 2, formulating the Committee through Notification dated 28.10.1997, having issued the equivalence of the diploma of B-Tech (Hon.) to B.Sc. Engineering Degree and thus power of equivalising Respondents Nos. 7 and 8 as Professional Engineers vide letter dated 12.8.1998 purported to have been vested with them through the said Notification, to be without lawful authority and without jurisdiction being against the law laid down by the August Supreme Court of Pakistan, and the existing law. Also prays for issuance of a direction, in the nature of quo-warranto asking Respondents Nos. 7 and 8 as to under what authority of lav/ they are holding the posts and they be restrained to act as such.

1. The brief facts of the case are that the petitioner is Electrical Engineer, which was registered with Pakistan Engineering Council on 4.11.1998. Respondent No. 1 has laid down criteriafor promotion and recruitment of Assistant Divisional Engineers in BPS-17 out of different sets of employees of itself having different qualification, whereby 40% of the posts of Assistant Divisional Engineer shall be filled by promotion, 20% posts shall be filled by promotion of persons possessing Diploma in engineering and 5% shall be filled by promotion of departmental employees possessing Degree of Engineering or AMIE Degree. 60% of posts shall be filled by direct recruitment possessing Engineering Degree having registration with Pakistan Engineering Council. Respondents Nos. 7 and 8, according to the petitioner have not been considered as professional engineers by Respondent No. 6, as they were not registered with Pakistan Engineering Council. It is also stated that after the judgment of August Supreme Court of Pakistan dated 17.6.1997, Notification was issued by Respondent No. 2 on 28.10.1997, by which he formulated a committee which on the degrees of Respondents Nos. 7 and 8 has decided that candidates holding qualification of B-Tech (Hons) are to be considered for promotion in the DPC and they were promoted vide Notification dated 12.5.1998 w.e.f. 1.8.1986 and 16.12.1987 respectively.

3, Learned counsel for the petitioner contends that Respondents. Nos. 1 to 5 have mis-interpreted and mis-construed the judgment of Supreme Court of Pakistan and the procedure adopted by the respondents is in violation of law as only Pakistan Engineering Council can declare Diploma B-Tech as equivalent to B.Sc. Engineering Degree and the committee which was formed for the purpose was not empowered to do so. As Respondents Nos. 7 and 8 were not registered with Pakistan Engineering Council, hence, they could not be appointed as they do not possess the basic qualification equivalent to B.Sc. Engineering. It is also contended that Respondent No. 6 was not competent to register the professional engineers, hence, action of respondents is illegal and unlawful and is liable to be set aside. Pakistan Engineering Council under Rule 8.10 of PEC Act can only declare that Diploma B-Tech is equivalent to B.Sc. Engineering Degree; and formation of the committee be declared as illegal and the super structure may also be declared so as the basic order is void and illegal. It is also contended that the petitioner has also suffered due to the appointment of Respondents Nos. 7 and 8 w.e.f. 1.8.1986 and 16.12.1987 as at the time of promotion to Divisional Engineers the promotion of the petitioner will effect because they have become seniors to the petitioner, hence, quo-warranto be issued against them.

1. I have heard the learned counsel for the petitioner at length and also perused the documents attached with this petition. The August Supreme Court of Pakistan in Appeals filed by Javed Iqbal and Haq Dad Khan Respondents Nos. 7 and 8 arising out of the judgment of Federal. Service Tribunal, Islamabad gave the following directions to respondents, which is re-produced as under:-

"We see no reason as to why the/present appellants should be discriminated and their cases also deserve consideration as of the aforesaid appellants. We, therefore, allow the appeals and remand the same to the department to consider the appellants case alongwith other incumbents for promotion and to decide the same in accordance with law."

After the receipt of the copy of this decision dated 17.6.1997, the department in order to implement the direction of the August Supreme Court of Pakistan, issued Notification dated 28.10.1997 by which a committee was constituted to consider equivalence of B-Tech (Hons) Degree with B.Sc. B.E. Degree in the light of the decision of Hon'ble Supreme Court of Pakistan. It is stated in the said Notification that the case of equivalence was discussed in detail by the committee on 27.10.1997 and it was decided that candidates holding qualification of B-Tech (Hons) are to be considered for promotion in the DPC. Hence, particulars of the officials were directed to be arranged. In view of the order of Supreme Court and the recommendations of the committee, Respondents Nos. 7 and 8 were promoted as ADE w.e.f. 16.12.1987 and 1.8.1986. This order was passed on 12th of May, 1998 and the order for formation of the committee was passed on 28.10.1997 and nobody A challenged the such order, of formation of the committee and order of promotion of Respondents Nos. 7 and 8 in the year 1998. Learned counsel for the petitioner has failed to show any reason that why he had not challenged formation of committee in the year 1997 when it was decided that Degree of B.T. (Hons) is equivalent to B.Sc. Engineering Degree and the cases were to be directed to be arranged for consideration by the DPC is its next meeting. Again the petitioner did not challenge the promotion of Respondents Nos. 7 and 8 which was made in the year 1998. This writ petition was filed in the year, 2000 after about three years after formation of the committee and the promotion of Respondents No. 7 and 8. Writ petition is hit by laches. Even otherwise, the petitioner is aggrieved by the promotion of Respondents Nos. 7 and 8, which had affected the promotion, of the petitioner and the petitioner if had any grievance it was open to him to file representation against the promotion of Respondents Nos. 7 and 8 whereafter in case of dismissal of the same, he could approach the Federal Service Tribunal, as the employees of PTCL are civil servants after the induction of Section 2-A and there is no doubt that its employees if aggrieved by promotion of a person, can approach to Federal Service Tribunal, if the official promoted was not qualified for promotion. Due to the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, the matters relating to terms and conditions of service cannot be entertained in writ jurisdiction even under the garb of issuance of illegal notification as the orders even if are passed without jurisdiction, coram-non-judice, with malafideintention or on political basis can only.be challenged before Federal Service Tribunal as is laid down in Zahid Akhtar's case reported in (PLD 1995 SC. 530). The writ of quo-warrantocannot be issued as the petitioner himself is the party and writ petition of quo-warranto is not maintainable if is filed by an interested person or who is affected himself by the order so impugned.

1. This writ petition due to the above reasons is not maintainable and is dismissed in limine.(A.A) Petition dismissed:

PLJ 2003 Lahore 67

Present: CH. IJAZ AHMED, J.

LAHORE DEVELOPMENT AUTHORITY through its DIRECTOR GENERAL and another-Petitioners

Versus

M/s. SEA HAWK INTERNATIONAL (Pvt.) LTD. LAHORE-Respondent

C.R. No. 2017 of 2001, decided on 8.10.2002

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

—-S. 115-Limitation Act (IX of 1908), S. 5-Delay of 121 days in filing revision-Coadunation of delay-Entitlement-Revision filed by petitioner was for considerable delay of 121 days-Government/Statutory bodies were at par with general public under law-Ground mentioned in application that record of petitioners was misplaced was not sufficient ground-Provisions of S. 5, Limitation Act 1908, however, was not applicable to revision proceedings—Revision was, thus, not maintainable being time-barred. [P. 69] A

2001 SCMR 286; PLD 2001 Karachi 396; 2001 CLC 1410; 1999 SCMR 2260;

2000 SCMR 1371; 1998 SCMR 307; 1985 CLC 2234 and

PLD 1975 SC 678 ref.

Ch. Muhammad Rashict Ahmad, Advocate for Petitioners. Mr. Muhammad Salim Chaudhry, Advocate for Respondent. Date of hearing: 8.10.2002.

order

The brief facts out of which the present revision petition arises are that the respondent filed a suit for declaration with permanent injunction against the petitioners on 2.2.1994 before the Civil Judge 1st Class, Lahore. The petitioners filed written statement, controverter the allegations leveled in the plaint. Out of the pleadings of the parties the following issues were framed:-

1. Whether this Court lacks jurisdiction to try this suit? OPD.

2. Whether the plaintiffs lack cause of action and locus standi to file the suit? OPD.

3. Whether the suit is malafide? OPD.

4. Whether the suit is improperly valued for the purposes of Court-fee and jurisdiction? OPD.

5. Whether the plaintiffs have raised unauthorised construction which is liable to be demolished? OPD.

6. Whether the notices issued to the plaintiffs are illegal, malafide, ultra vires,incompetent, void, unjust and without jxirisdiction and lawful authority, hence liable to be set aside? OPP.

6-A. Whether the plaintiffs are lawfully using the premises as commercial? OPD

1. Relief.

2. The trial Court decreed the suit vide judgment and judgment and decree dated 8.4.1996. The petitioners being aggrieved filed an appeal before the learned Addl. District Judge, Lahore, who dismissed the same vide judgment and decree dated 15.2.2001. Hence, the present revision petition alongwith arr application for condonation of delay under Section 5 of the Limitation Act. 3. Pre-admission notice was sent to the respondent. The learned counsel of the respondent submits that Section 5 of the Limitation Act is not applicable qua the proceedings arising in the revision petition. In support of his contentions, he relied upon the following judgments:

3. Allah Dino and another vs. Muhammad Shah (2001 S.C.M.R. 286).

4. Izzat Khan vs. Mst. Insha Allah Begum and others(PLD 2001 Karachi 396).

5. Mughla and others vs. Jaffar and others (2001 C.L.C. 1410).

He further urges that the petitioners had taken a ground for condonation of delay that the record of the petitioners was misplaced. The same is not a sufficient ground for condonation of delay under Section 5 of the Limitation Act in case Section 5 is applicable in the proceedings arising in the revision petition. In support of his contention, he relied upon the following judgments:-

1.Government of the Punjab vs. Syed Khizar Abbas (1999 S.C.M.R. 2260).

1. Evacuee Trust Property Board vs. Abdul Aziz Khan(2000 S.C.M.R. 1371).

He further urges that the Government and the citizens are at par before the Courts, therefore, revision petition be dismissed as time-barred. In support of his contentions, he relied upon the following judgments:--

1. Central Board of Revenue vs. Messrs Raja Industries (1998 S.C.M.R. 307).

2. Government of Pakistan vs. Messrs Raft Associates Ltd. (1985 C.L.C. 2234).

3. The learned counsel of the petitioners submits that the judgments cited by the learned counsel .of the respondent are distinguished on facts and law. He further urges that the Honourable Supreme Court insisted that the cases must be decided on merits instead of technicalities. In support of his contention he relied upon the case of Manager, Jammu and Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 S.C. 678).

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. I would like to state facts in chronological order to resolve the controversy between the parties:

(i) The judgment and decree of. the First Appellate Court is dated 15.2.2001.

(ii) The date of filing the application for obtaining certified copies of the judgment and decree of the First Appellate Court is 13.3.2001.

(iii) Copy was prepared on 11.4.2001. (iv) Copy was delivered on 11.4.2001.

(v) Revision petition was filed on 25.9.2001 along with an application for coadunation of delay on the ground that the record of the petitioners was misplaced.

(vi) Revision petition is time-barred for 121 days.

1. The revision petition filed by the petitioner for a considerably delay of 121 days. It is settled principle of law that the Government/ statutory bodies are at par with the general public. The ground mentioned in the application that the record of the petitioners was misplaced is .not a sufficient ground. Even otherwise Section 5 of the Limitation Act is not applicable in the revision proceedings as held by the Honourable Supreme Court in the aforesaid judgments.

2. In view of "what has been discussed above, this revision petition is dismissed as time-barred.

(A.A) Revision dismissed.

PLJ 2003 Lahore 70 (DB)

[Multan Bench Multan]

Present: ch. IFTIKHAR hussain and raja muhammad sabir, JJ.

M/S COLONY TEXTILE MILLS LTD, MULTAN through its FACTORY MANAGER-Appellant

versus

CHIEF EXECUTIVE MULTAN ELECTRICITY POWER COMPANY LTD. (MEPCO), MULTAN and 2 others-Respondents

I.C.A. No. 83 of 2002, decided on 10.7.2002

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

—-0. VI, R. 17-Amendment in pleading is only permissible when same does not change character of original petition. [P. 75] A

(ii) Constitution of Pakistan (1973)--

—Art. 199-Writ petition-Direction for restraining respondents from proceeding with the case sought by appellant as also amendment sought for order of specified date was rightly refused by single Bench-Such relief could only be done through independent proceedings in as much as, prayer in writ petition and application for amendment were contrary to each other changing nature of proceedings-Amendment thus, rightly refused by single Bench. [P. 75] B

(iii) Law Reforms Ordinance, 1972 (XII of 1972)--

—-S. 3--Validi1y of order passed by respondent on specified date-Such order having not been challenged in writ petition, could not be examined in intra Court appeal-Appellant, however, could challenge through independent proceedings before appropriate forum. [Pp. 75 & 76] C

PLD 1968 SC 119; PLD 1995 Lahore 56 ref.

Raja Muhammad Akram and Ms. Aniqa Mughis Sh., Advocates for Appellant.

Mr. Muhammad Qasim Khan A., A.G. for Respondents.

Mr. Muhammad Siddique Malik, by Director (L)MEPCO. Mr. Abdul Majeed Rind, by Director (Tech) MEPCO. Cap. (R) SarfrazXEN, Cantt. Multan MEPCO. Date of hearing: 9.7.2002.

judgment

Raja Muhammad Sabir, J.-This appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against the order of learned Single Judge in Chamber dated 22.5.2002 whereby he dismissed the appellants writ Petition No. 3197/2002 seeking a direction to he respondents to act in accordance with order dated 31.5.2001 of the Supreme Court of Pakistan passed in Civil Appeal No. 1647/1997, declare all other proceedings being conducted by them beyond the scope of aforesaid order and in the meantime Respondent No. 1 be restrained from further proceeding in the matter.

1. Brief facts of the case are that appellant-mill was raided by a committee constituted by WAPDA Authorities on 23.9.1997 consisting of Muhammad AM XEN, Muhammad Ali Ghuman SE, Ahmad Din Deputy Director Technical and Talib Hussain Malik XEN. Electricity of the mill was disconnected and the detection bill in the sum of Rs. 3,60,77,676/- was issued. A criminal case under Section 39-A of the Electricity Act 1910 for theft of electricity vide FIR No. 254/1997 was got registered against the management of the mill on 24.9.1997. Appellant challenged the detection bill in writ Petitions Nos. 7555/1997 and 7835/1997, the first one was withdrawn and the second was disposed of with certain directions to appear before the Electric Inspector. Electric Inspector dismissed the appellant's application holding that he has no jurisdiction in the matter as the dispute relates to theft of electricity and under Section 26-A of the Electricity Act he was not competent to resolve said issue. Appellant thereafter filed writ Petition No. 7835/1997 which was dismissed by this Court on 9.10.1997 and same was further challenged in the Hon'ble Supreme Court. The appeal was disposed of in accordance to the agreement of the parties in the following terms:-

"During arguments it was agreed between the counsel for the parties that the appellants would be afforded opportunityto join the process of checking/examination of the electric meters and other relevant apparatus and then the matter will be resolved in accordance with law.

Consequently, we dispose of these appeals in the above terms and direct the parties to appear before the Chief Executive concerned on 8.6.2001 who shall determine the dispute in accordance with law after associating both the sides with the process of checking the meter and other disputed apparatus and also giving opportunity of hearing to both the sides. Any party feeling aggrieved from the decision made by the Chief Execution, can redress his grievance in accordance with law."

Pursuant to the order of the Hon'ble Supreme Court the proceedings remained pending adjudication with the Chief Executive MEPCO for a considerable long period. Appellant was associated in the proceedings who submitted written comments and ultimately case was decided by the Chief Executive MEPCO on 29.4.2002.

1. Precise grievance of the appellant agitated in the writ petition filed on 29.4.2002 and fixed before the Court on 30.4.2002 was that Respondent No. 1 was not proceeding in the matter in accordance with the direction contained in the order of the Hon'ble Supreme Court dated 31.5.2001 and prayed as under:-

"(i) Respondents be directed to act in accordance with the order dated 31.5.2001 of the Supreme Court of Pakistan passed in Civil Appeal No. 1647/1997.

(ii) Declare all other proceedings being conducted by the respondents beyond the scope of the order dated 31.5.2001 without lawful authority and of no legal effect.

(iii) In the meantime an interim direction may kindly be made restraining Respondent No. 1 not to proceed further in the matter."

1. Appellant's writ petition was fixed in Court on 30.4.2002 and a restraint order directing the Respondent No. 1 not to pass any final order was made on the said date but according to appellant Respondent No. 1 in violation of the restraint order decided the case subsequently but put the date as 29.4.2002 to frustrate the order of this Court dated 30.4.2002. Appeallnt contends that no order was passed till 30.4.2002. Reference is made to the postal envelope to substantiate the contention that the envelope contained the seal-dated 3.5.2002 meaning thereby that the order was despatched from the office of Respondent No. 3 on 3.5.2002 and not on 29.4.2002. It is further asserted with reference to letter dated 4.6.2002 addressed to the Manager of the appellant-mill that the time for submission of the requisite comments by the appellant was extended upto 30.4.2002, therefore till 30.4.2002 no decision could have been given. Appellant added that in terms of the order of the Hon'ble Supreme Court respondents were required to associate the appellant for checking up of the meter and other apparatus but no one from the appellant's side was associated, therefore, the proceedings held and conducted are in violation of the order of the apex Court. In the end it was submitted that the Electric Inspector or Board of Elector Inspectors be deputed at their cost to examine the disputed meter.

2. The case of the respondents is that the theft is evident from registration of a criminal case FIR No. 254/1997 and dispute is not covered under sub-section. (6) of Section 26 of the Electricity Act, 1910 and it falls under the provisions of Section 26-A of the said Act and the reference to the Electric Inspector is neither necessary nor required in the instant case. They further asserted that the Hon'ble Supreme Court specifically referred the parties to the Chief Executive MEPCO. He was to hear both the parties i.e.appellant and the WAPDA authorities and render the decision in accordance with law and, as such, the question of referring the matter or involving the Elector Inspector was unwarranted. Respondents specifically Executive MEPCO on 29.4.2002 decided the case in accordance to direction of the Hon'ble Supreme Court. Vide letter dated 16.4.2002 Manager of the, mill was intimated that time for submission of comments has been extended to 30.4.2002 but the comments having been received on 27.4.2002 without any further delay the case was decided on 29.4.2002. The meter in question was examined on the direction of Chief Executive MEPCO in presence of the parties particularly Sardar Ali Shah, Farid Ahmad Sheikh and Muhammad Iqbal from the appellant's side on 12.12.2001 and 13.12.2001. He also submitted that the case is covered under Section 26-A of the Electricity Act and it is the only functionaries of the licensee i.e.the respondents who were entitled to examine the meter/apparatus, therefore, the appellant's request for reference to the Electric Inspector is not only illegal but is also un­acceptable to the respondents. After hearing the arguments of the parties.at length learned single Judge dismissed the petition mainly on the ground that the prayer of the appellant in the writ petition could not be granted as the case had already been decided on 29.4.2002 and the writ petition came up for hearing befor'e the Court on 30.4.2002.

3. The appellant's application (C.M. No. 868/2002) seeking amendment in the writ petition for the purposes of challenging the order dated 29.4.2002 was also dismissed on the strength of the Full Bench judgment of this Court reported in PLD 1995 Lahore 56 holding that the petitioner may approach the Civil Court to challenge the aforesaid order. He further observed that the case is not covered by Section 26(6) of the Electricity Act and falls within the purview of Section 26-A of the Electricity Act. Appellant aggrieved against the dismissal of their writ petition have instituted the instant appeal.

4. Raja Muhammad Akram learned counsel for the appellant submits that the Chief Executive MEPCO has not passed order on 29.4.2002. The date has been forged to avoid the consequences of the restraint order passed by the learned Single Judge in Chamber on 30.4.2002. He submits that the post office seal dated 3.5.2002 clearly shows that the order was passed some time subsequent to 30.4.2002 in violation of the order of the High Court dated 30.4.2002. It is also yiolative of direction of the Hon'ble Supreme Court of Pakistan dated 31.5.2001. He further submits that C.M. No. 868/2002 was erroneously dismissed. Appellant came to know about said the order of Chief Executive MEPCO on 4.5.2002 and an application for amendment in the writ petition was submitted on 6.5.2002 which was unlawfully declined. He has lastly argued that the dispute between the parties falls within the purview of Section 26(6) of the Electricity Act and only Electric Inspector is competent to resolve it.

5. Malik Muhammad Qasim Khan Assistant Advocate General, counsel for respondents on the other hand submits that the Chief Executive MEPCO decided the case on 29.4.2002 in accordance to the order of Hon'ble Supreme Court dated 31.5.2001. He has substantiated the arguments on the strength of the original record produced before us and the order conveyed through fax. He further submits that the case is covered by Section 26-A of the Electricity Act, 1910 and referred Water and Power Development Authority and others vs. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) in support of his contention.

6. Heard. Record perused. On 23.5.2002 we wanted to hear the respondents at liminestage and notice was issued to them for 18.6.2002 and the order dated 29.4.2002 of Respondent No. 1 was suspended subject to furnishing of bank guarantee by the appellant of the disputed amount of Rs. 3,10,77,676/- within a fortnight and the claim of the respondents with regard to the other amount was ordered to be considered in the presence of respondents. The matter could not be taken up to the aforesaid date. However, finally the case was argued by both the sides on 9.7.2002 and the judgment was postponed for today. The pivotal question involved in the appeal is whether Chief Executive MEPCO decided the case on 29.4.2002 or on any subsequent date and back dated it for 29.4.2002. The writ petition was filed on 29.4.2002 and fixed before the Court on 30.4.2002. The learned Single Judge in chamber directed that meanwhile no final order shall be passed while directing Respondent No. 3 to eater appearance with record and comments on 21.5.2002 in the main petition. If the proceedings were pending on 30th of April, 2002 the -final order could not be passed in view of the restraint order passed by the learned Single Judge in Chamber on 30.4.2002. In order to ascertain the seriously contested contentions of the parties on the issue of date of passing of the order by Chief Executive MEPCO the original record was produced by the respondents before us. Chief Executive MEPCO has put his signatures and date at the end of order with the same ink. There is no tampering with the record or the date i.e.29th of April, 2002. It is also evident from the receipt of fax dated 29.4.2002 at 5.29 p.m. despatched to fax No. 061-539509. The order was faxed to the fax number of the mill. The fax number of the mill is not disputed by the appellant meaning thereby that the order was received through fax by the appellant on 29.4.2002. The original receipts have also been shown to us by the respondents during hearing of the arguments. Moreover Chief Executive MEPCO is an independent responsible serving Brigadier of Pakistan Army and is not expected to tamper with the record to favour any party. The sealed envelope under the direction of Chief Executive was sent through Abdul Hameed Steno Grade-II through WAPDA Vehicle. No. MNT-5605 driven by Gulsher driver who reached at the gate of Colony Textile Mill Islamabad. They were stopped at the gate by the staff of CTM. When they informed that Chief Executive MEPCO office sealed envelope is to he delivered to concerned officer, they stopped him, through telephone got the order from the superior officers who directed them not to receive any letter, therefore the staff of the Colony Textile Mill told them that they will not permit any body to enter the gate. The said envelope was brought back and a report was submitted to the Chief Executive who ordered to the DD Legal MEPCO on same date i.e. 29.4.2002 to fax the decision and also send through post, consequently the order was faxed on the number of the mill. The aforesaid documents produced before us clearly indicate that Chief Executive MEPCO decided the case on 29.4.2002. The denial of the appellant of the aforesaid date of decision is baseless. We are clearly of the view that the matter was decided by the Chief Executive MEPCO on 29.4.2002 after he received the comments of the mill on 27.4.2002. The mere fact that the appellant was given time for submission of the comments till 30.4.2002 does not mean that case could not be decided on 29.4.2002. Since the comments had been received on 27.4.2002, the case was mature for decision and accordingly decided on 29.4.2002. Respondent No. 1 after having received the comments was competent to decide the matter as the appellant was already associated with the checking of meter and apparatus on 12.12.2001 and 13.12.2001. Since the case had already been decided by the Respondent No. 1 the direction sought for in the-writ petition could not be issued.

7. Appellants contention regarding dismissal of his application for amendment by the learned Single Judge has no force. The order dated 29.4.2002 was faxed to the mill on the same day, appellant instituted the writ petition on 29.4.2002 and was fixed in the Court on 30.4.2002. These facts indicate that appellant was aware of the order of the Chief Executive MEPCO and same could be challenged before appropriate forum in independent proceedings. It is settled law that amendment in pleading is only permissible when same does not change character of original petition. The Hon'ble Supreme Court in the case of A. R. Niazi Advocate and others v. Pakistan etc. (PLD 1968 Supreme Court 119) has observed that an amendment sought being contradictory of basic position adopted in the writ petition was rightly refused by the High Court. In the writ petition a direction was sought for restraining the respondents from proceeding with the case and in the amendment sought for the order dated 29.4.2002 was sought to be challenged. This could only be done through independent proceedings as prayer in the writ petition and the application for amendment were contrary to each other changing the nature of the proceedings, as such not permissible under the law. The amendment was rightly refused. So far as the validity of the order of Respondent No. 1 dated 29.4.2002 and increase of liability of appellant from Rs. 3,60,77,676/ to Rs. 12,23,30,881/ concerned, same cannot be examined in this appeal. The afore-referred order was not under challenge out of which the instant appeal has arisen. In these circumstances we need not dilate upon the vires of the afore-referred order. Appellant could challenge the aforesaid order through independent proceedings before appropriate forum in terms of the order of Hon'ble Supreme Court dated 31.5.2001. The observation made in relation to the merits'of aforesaid order by the learned Single Judge in Chamber with reference to disposal of the application for amendment of the appellant cannot be deemed to be the decision on merits of aforesaid order.

8. For the reasons stated above the appeal has no merit and is dismissed with no order as to costs.

(A.P.) Appeal dismissed.

PLJ 2003 Lahore 76

Present: maulvi anwar-ul haq, J.

ALI RAZA and others-Petitioners

Versus

MUHAMMAD ALI and 3 others-Respondents

C.R. No. 16 of 1995, heard on 28.1.2002

Limitation Act, 1908 (IX of 1908)--

—Art. 144-Civil Procedure Code (V of 1908), S. 115-Suit based on adverse possession-Plaintiffs were recorded as tenants while defendants were recorded as owner of land in question, receiving rent from plaintiffs- Mere nori-payment of rent, however, would not render possession of tenant to be adverse-Reliance of Courts below on mere fact that rent had not been paid or received was absolutely misplaced and would constitute mis-reading of evidence on record and oblivion of correct legal position- Judgment and decrees of Courts below to the effect that plaintiff had become owners of land in question, on basis of non-payment of rent were set aside and plaintiffs suit was dismissed. [P. 78] A

Mian Ghulam Rasool, Advocate for Petitioners. Nemo for Respondents. Date of hearing: 28.1.2002.

judgment

On 2.4.1986, the respondent filed a suit against the petitioner for possession of the suit land. In the plaint it was stated that they are in possession of the suit land since the last more than 12 years and since they are not paying any rent or share-produce to the petitioners, they have become the owners of the suit land by adverse possession. A declaration was accordingly sought. The petitioners in their written statement denied the said allegation and stated that the respondents are their tenants and they were called upon to pay rent or vacate the land and as such they have filed the suit. Following issues were framed by the learned trial Court:-

1. Whether the plaintiffs have become owner of the suit land through adverse possession? OPP.

2. Whether the plaintiffs are entitled to the decree as claimed and prayed for? OPP.

3. Whether the present suit is bad for mis-joinder and non-joinder of necessary parties? OPP.

4. Whether the suit has been incorrectly valued for the purposes of Court-fee and jurisdiction? If so, what is the correct valuation and its effect? OPD.

5. Whether the suit is not maintainable in its present form in the light of preliminary Objections. Nos. 3 and 4, of the written statement? OPD.

6. Whether the plaint of the present suit is liable to be rejected under Order VII Rule 11 C.P.C.? OPD.

7. Whether the plaintiffs are tenants on the suit land under the defendants? If so, its effect? OPD.

8. Relief.

9. Evidence of the parties was recorded while the evidence of the petitioners was closed in terms of Order XVII Rule 3 C.P.C. The suit was dismissed vide a judgment and decree dated 4.11.1991. The first appeal filed by the petitioners was dismissed by the learned Addl. Sessions Judge, Sheikhupura on 13.5.1993.

10. The learned counsel for the petitioners contends that both the learned Courts below have misread the evidence on record. According to the learned counsel notwithstanding the fact that the evidence of the petitioners was closed, the learned Courts below were bound to see as to whether a case for adverse possession has been made out on the basis of evidence on record. The respondents are represented by Mr. Tahir Qureshi, whose name stands duly listed in the Cause List for today. This case was called before the break when it was informed that the learned counsel is on his way. It was then called twice after the Division Bench cases but the learned counsel has not turned up. The respondents are accordingly proceeded ex-parte.I have gone through the copies of the record appended with this Civil Revision. The P.W. 1 is Mehr Din. He states that the respondents are in possession since their ancestors and no one has received a share produce from them. Rehmat Ali, P.W. 2 has made a similar statement and so is the case with Muhammad Ali petitioner who appeared as PW-4. So far as the documentary evidence is concerned Manzoor, Patwari,PW-3 produced the Fard-e-Intekhab(Exh. P-l) from Jamabandifor the year 1915-16 to 1984- 1985. In all these documents the respondents or their predecessor-in-interest have been recorded as owners while the petitioners or their predecessor-in- interest have been recorded as tenants paying either cash or share-produce. Exh. P2 Jamabandifor the year 1980-1981 shows the respondents as owners and the petitioners as tenants on payment of cash. This is the entire evidence in the case. The respondents have not at all been able to show as to how they claim adversely to the petitioners who are admittedly the owners of the land while respondents are recorded to be their tenants paying rent. Needless to state that by now it is well settled that mere non payment of rent for any period of time would not render the possession of a tenant to be adverse. In this view of the matter, the reliance of the learned Courts below on the mere fact that the rent had not been paid or received is absolutely mis-placed and this constitutes mis-reading of the evidence on record and oblivion of the correct legal position. Both the Court below have thus acted without jurisdiction while proceeding to hold the respondents to be owners of the land admittedly owned by the petitioners. The Civil Revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside and the suit of the respondent is dismissed with no order as to the costs.

(A.A) Revision accepted.

PLJ 2003 Lahore 78

Present: saved zahid hussain, J. SAFDAR AHMAD-Petitioner

Versus

MalikAHMED KHAN and 5 others-Respondents

C.R.No. 1443 of 2002, decided on 20.9.2002

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

—-S. 94 & O. XXXIX Rr. 1, 2-Interim order passed by Appellate Court modified by High Court in terms, that petrol-pump would continue to be operated/run by plaintiff who was already in physical control of the same-Plaintiffs, however, would maintain proper accounts to be supervised and authenticated by nominee of Shell Pakistan Ltd. and would furnish security to the satisfaction of trial Court, plaintiff would furnish Bank Guarantee in the sum of specified amount before Trial Court in order to assess cost of construction, incurred in setting up petrol-pump-Trial Court would depute commission and then would direct plaintiff to furnish security for the same that would be subject to final determination as to who had incurred said cost and expenditures-Compliance of High Court order would be made within fortnight and case would be decided before commencement of winter vacation. [Pp. 80 & 81] A

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

—Ss. 94 & US-Respective pleas of parties-High Court clarified that any view expressed as observation made in any of order would be construed as of tentative nature concerning within an interim interlocutory matter only-Trial Court would be absolutely un-influenced by same in deciding suit on its merits. [P. 81] B

1980 SCMR 588; 1983 SCMR 238 nf.

Malik Noor Muhammad Awan, Advocate for Petitioner.

Muhammad Ramzan Chaudhry, Advocate for Respondent No. 1. Date of hearing: 20.9.2002.

order

A declaratory suit with injunction as a consequential relief instituted by Malik Ahmed Khan Respondent No. 1 is pending before the trial Court. He had also made application for the grant of temporary injunction that the petrol-pump may not be shifted to some other place. While that application was pending another application was brought by him that the supply to the petrol-pump should not be discontinued. In the suit the petitioner was arrayed as Defendant No. 1 whereas Shell Pakistan Limited and its functionaries as Defendants Nos. 2 to 5. In his reply submitted by the petitioner, to the first application, the position taken by him was that there was" no intention of shifting of the petrol-pump from the site. However, in the reply to the second application, it was averred that since the petrol-pump had been setup with efforts and N.O.C. issued to him, the plaintiff had no locus standi for any interim injunction. Shell Pakistan Ltd. also submitted their reply. It was averred therein that the plaintiff had never been appointed as dealer, therefore, he had no cause of action against them. The matter came to be considered by the learned trial Court, who vide order dated 8.4.2002 dismissed the application taking the view that the plaintiff had noprima facie case in his favour. On an appeal instituted by Respondent No. I/plaintiff, the learned Additional District Judge, Mianwali has reversed the order passed by the learned trial Judge, directing that the respondents "not to interfere into the business of petrol-pump of the appellant and continue the supply of diesel/petrol subject to the payment of the price by him in accordance with the terms and conditions till final disposal of the suit." It is this judgment dated 14.6.2002 which has been assailed by the petitioner/Defendant No. 1.

Respondent No. 1 is represented by his learned counsel whereas Shell Pakistan Ltd. are not represented. Their non presence is understandable by the fact that the order passed by the appellate Court has not been challenged by them.

1. The learned counsel for the parties have argued the matter at some length.

2. In view of the main controversy between the parties being still pending, I have avoided and refrained from making any detailed reference to the contentious stance of the parties and the documents on the record, the authenticity and credibility whereof is yet to be proved and examined before the trial Court. Any observation in this regard may prejudice the case of either party or may tilt the approach of the Court below. The admitted position on the record and also before me is that there is a petrol-pump installed, established, and being run, according to the plaintiff, by him. The trial Court had refused the temporary injunction to Respondent No. 1 for the reason that Respondent No. 1 had no dealership in his name. The learned appellate Court. However, by going into somewhat detailed examination of the matter had granted the temporary injunction in the form, reproduced above. Whether the petitioner had been 'gifted the land/site where the petrol-pump .has been established or he was Benamidarand the real beneficiary was the respondent/plaintiff or that it was only the petitioner who was granted the dealership and necessary permission, are all substantial issues to be decided by the Court in due course of time, on appreciation and scrutiny of the evidence that may be produced by the parties. Any view expressed at this interlocutory stage could prejudice the case of either party. I am, therefore, inclined to follow the course that was adopted by the Hon'ble Supreme Court of Pakistan in Muhammad Arif Effendi vs. Egypt Air (1980 SCMR 588). That was a case relating to a sales agency, in which the temporary injunction was declined by the High Court of Sindh exercising original jurisdiction in a suit. After hearing the matter their lordships of the Supreme Court converted the petition into appeal and proceeded to grant temporary injunction on terms to meet the ends of justice and maintain the interests of both sides. From the precedent case, it is discernable that temporary injunction can be granted by the Court to regulate the conduct and dealings of the parties for securing their interests. The petition was disposed on terms stated in the order. The controversy between the same parties again reached before the Hon'ble Supreme Court of Pakistan i.e. Muhammad Arif Effendi vs. Egypt Air (1983 SCMR 238), when again a restraint order was passed on terms. Keeping in view the power of the Court spelt out from the above precedents and provisions of Section 94 CPC, I am inclined to modify the order passed by the learned appellate Court and pass a regulatory order for the interim period as under.-

(1) The petrol-pump will continue to be operated/run by Respondent No. 1 who is already in physical control of the same. He will, however, maintain proper accounts to be supervised and authenticated by a nominee of the Shell Pakistan Ltd. and will furnish security to the satisfaction of the trial Court to recompense the petitioner, in case he (Respondent No. 1) looses the litigation;

(2) for the security deposit, made by the petitioner, Respondent No. 1 will furnish a bank guarantee in the sum of Rs. 6,50,000/- before the trial Court.

(3) In order to assess the cost of construction incurred in setting up of the petrol-pump tha learned trial Court will depute a commission and then will direct the plaintiff/Respondent No. 1 to furnish security for the same, that will be, however, subject to final determination as to who had incurred the said cost and expenditure.

(4) compliance of Items Nos. 1 and 2 above will be made within a fortnight, whereas of Item No. 3 within one month. The learned counsel for the parties are agreeable for the expeditious disposal of the suit. The learned trial Court will thus explore all possibility to conclude and decide the suit before the commencement of winter vacation of this year.

It may be observed that the perusal of the order of the trial Court and in particular of the appellate Court leaves an impression as if they have expressed the view qua the merits of the respective pleas of the parties. It need to be clarified that any view expressed or observation made in any of the order will be construed as of Tentative nature concerning with in an inter locutory matter only, and the learned trial Court will be absolutely uninfluenced by the same in deciding the suit on its merits.

The petition is disposed of in the above terms. (A.A) Order accordingly.

PLJ 2003 Lahore 81

Present:IJAZ AHMAD CHAUDHARY, J.

MUHAMMAD TUFAIL and another-Petitioners

versus

SALAH-UD-DIN and others-Respondents

C.R. No. 865-D of 1991, heard on 15.8.2002.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

—Art.s 117 & 118-Civil Procedure Code (V of 1908), S. 115-Plaintiffs while claiming property of deceased asserted that they were only heirs of deceased and that defendants were not daughters of deceased-Onus to prove such issue was on plaintiff who failed to discharge same-Defendants however, succeeded to prove that one of plaintiff had filed petition before Chief Settlement Commission for transfer of house owned by deceased wherein he had stated that defendants being daughters of deceased were also entitled to the same-Mere denial subsequently by plaintiff w.ould not be sufficient to deny relationship of defendants with deceased-Judgement and decree of appellate Court to the contrary being based on surmises and conjectures was not sustainable and same was set aside while that of Trial Court dismissing plaintiffs suit was restored.[Pp. 84 & 85] A, B

Mr. Imtiaz Hussain Khan Baloch, Advocate for Petitioner. Syed Muhammad Javed Rizvi, Advocate for Respondent. Date of hearing: 15.8.2002.

judgment

Through this civil revision under Section 115 of C.P.C. the petitioner has sought setting aside of judgment and decree of lower Appellate Court dated 6.4.1991. 2. Brief facts of the case are that Meraj Din died on 5.10.1971, according to Respondents Nos. 1 to 3 he left behind three sons namely Salah ud'Din, Siraj Din (since died) and Ahmad Khan and two daughters Akhtar Bano and Nazir Begum. The said Meraj Din deceased left behind the estate, consisting of some agricultural land in village Tibbi district Sheikhupura and also a house in Krishan Nagar. Mutation regarding the house at Krishan Nagar was sanctioned in favour of said three sons and two daughters. This mutation was challenged in the Court of learned Civil Judge and a declaration was sought by Respondents Nos. 1 to 3 that they are only legal heirs of said Meraj Din and Akhtar Bano and Nazir Begum were not daughters of said Meraj Din. Written statement was filed by Respondents Nos, 1 and 2 and they claimed that Mst. Akhtar Bano and Mst. Nazir Begum, predecessor-in-interest of Respondents Nos. 1 and 3, were daughters of said Meraj Din. The divergent pleadings of the parties necessitated the framing of the following issues:-

1. Whether the suit is barred by time? OPD.

2. Whether the suit is not maintainable in its present form? OPD.

3. Whether the suit has been incorrectly valued for the purposes of Court-fee and jurisdiction if so what is the correct valuation for the said purposes? OPD.

4. Whether the Civil Court has no jurisdiction to try this suit? OPD.

5. Whether the suit is false and vexatious? OPD.

6. Whether the suit property has been incorrectly described in the plaint, if so, what is its effect? OPD.

7. Whether Mst. Nazir Begum, the predecessor-in-interest of Defendant No. 3 and Mst. Akhtar Bano the predecessor-in- interest of Defendants Nos. 1 and 2 were not the real daughters of Meraj Din, deceased? OPD.

8. Whether Defendants Nos. 1 to 3 are not entitled to inherit the property of Meraj Din, deceased? OPP. Whether the impugned order dated 2.6.1972 passed by Defendant No. 4 regarding the appointment of legal heirs is illegal, without jurisdiction based on fraud mis-representation, collusive void and in effective against the rights of, the inheritance of the plaintiffs of Meraj Din deceased? OPP.

9. Whether the plaintiffs are entitled to a decree for permanent injunction as prayed for? OPP.

10. Relief.

11. The evidence of both parties was recorded. PW. 1, Abdul Majeed appeared and supported Salah-ud-Din etc./Respondent/plaintiffs. He stated that he knew, Meraj Din, who left Salah-ud-Din, Siraj Din and Ahmad Khan as sons and Mst. Akhtar Bano and Nazir Bano were not his daughters. PW. 2, Munawar All also supported the plaint. PW. 3, Ahmad Khan, one of plaintiffs has supported the plaint also. On the other hand the defendant/appellants produced Haji Muhammad Akbar Khan, D.W. 1, who supported the assertion that Nazir Begum and Akhtar Bano were daughters of said Meraj Din. He further stated that the said two ladies had died. He further staied that Muhammad Tariq Iqbal, appellant, is son of Mst. Akhtar Bano and Muhammad Tufail, appellant was her husband. DW. 2, Muhammad Ahmad also appeared and supported the assertions that Mst.Akhtar Bano and Nazir Begum were daughters of Meraj Din alongwith three sons. DW. 3, Muhammad Tufail appeared from one of the defendants as he was husband of Akhtar Bano and supported the defence plea. The learned counsel for defendants also produced documentary evidence and after closure of evidence of both parties, the learned Civil Judge decided Issues Nos. 1 to 6 against the defendants while Issues Nos. 7 to 10 were decided against the plaintiffs/respondents and the suit was dismissed, vide judgment and decree dated 27.3.1988. The appeal was filed by the respondents, which was accepted vide judgment and decree dated 6.4.1991 and suit was decreed. Hence this civil revision.

12. The learned counsel for petitioners has argued that sufficient documentary evidence was available on record which was supported by oral statements of. defendants witnesses that Mst.Akhtar Bano Begum and Nazir Begum were daughters of Meraj Din, but the learned Addl. District Judge has relied upon the oral statements of the plaintiffs/respondents while passingthe impugned judgment. The learned counsel has referred to Ex.D. 1, according to which the house was in the name of three sons and two daughters and similarly Ahmad Khan, plaintiff/respondent made an application before Deputy Settlement Commissioner, which is Ex. D-2, in which he has stated that Meraj Din survived by three sons and two daughters. The learned counsel has further referred to an affidavit of Ahmad Khan, which is Ex. D. 8 on record while Ex. D. 9 is PTD and Ex. D. 11 is the compensation, which had been paid by LAC to the legal heirs of the Meraj Din deceased including daughters. The learned counsel has also contended that the onus to prove that the said ladies were not daughters of Meraj Din, was on the plaintiffs, who have produced only witnesses who stated orally that Mst. Nazir Begum and Akhtar Bano were not daughters of the deceased. According to the learned counsel these oral statements were not only rebutted orally by the witnesses of defendants but they also produced cogent and convincing documentary evidence. The learned counsel further contended that the judgment of the learned Addl. District Judge is not based on cogent evidence and no reasons for disbelieving the documentary evidence of appellants/defendants has been given, thus it is liable to be set aside.

13. On the other hand, the learned counsel appearing on behalf of the respondents has opposed this civil revision on the ground that Nazir Begum was survived by Zaka Ullah, son, who has conceded that his mother was not daughter of Meraj Din and similarly the statements of witnesses of the plaintiffs show that Nazir Begum and Akhtar Bano were not daughters of Meraj Din. He has further urged that PW. 1 has stated that the said ladies were not his sisters. According to the learned counsel in such circumstances cogent evidence has been produced to prove that they were not daughters of deceased, therefore, the impugned judgment is based on cogent reasons and is sustainable. The learned counsel has also referred case law to assert that the previous statements cannot be relied upon unless these are put to the persons who allegedly made them.

14. I have heard the learned counsel for the parties and perused the record consisting of oral as well as documentary evidence. The onus to prove Issues Nos. 6 to 10 was on the respondents/Ahmad Khan etc. but they have failed to discharge the same. On the other hand legal heirs of Mst.Akhtar Bano have succeeded to prove that Ahmad Khan filed petition before the Chief Settlement Commissioner for transfer of the house situated in Krishan Nagar and his appeal remained pending, which was supported by an affidavit. On the basis of appeal filed by Ahmad Khan citation was published in daily 'Nawa-i-Waqt showing that Nazir Begum and Akhtar Bano were also A legal heirs of said Meraj Din. Mere denial of Ahmad Khan that he has not filed any appeal before the Chief Settlement Commissioner is not sufficient to hold that he has discharged onus upon him and the document was not got sent to hand writing expert for verification of his hand writing and signatures. He also appeared before the Chief Settlement Commissioner on 2.6.1972 and Chief Settlement Commissioner vide order dated 2.6.1972 declared that Mst.Nazir Begum and Akhtar Bano were legal heirs of deceased Meraj Din alongwith his three sons. These documents have been supported by the defendants witnesses who are not related to them. The oral statements of plaintiffs/respondents witnesses were not sufficient to dislodge the documentary evidence and the learned Civil Judge had rightly held that the plaintiffs alongwith Mst. Nazir Begum and Akhtar Bano were legal heirs of Meraj Din deceased. The learned Addl. District Judge has given preference to oral evidence against documentary evidence which is also supported by oral statements of witnesses of defendants. The plaintiffs have claimed that they were the only legal heirs of Meraj Din, having no sisters as legal heirs of the deceased. It is tendency in our rural society that often the daughters and sisters, in order to be deprived of inheritance are denied their relationship with the deceased. The onus was upon Ahmad Khan etc./plaintiffs that he did not file petition before the Chief Settlement Commissioner and simple denial was not sufficient to prove the facts asserted by them. The impugned judgment of the learned Addl. District Judge being based on surmises and conjecture, not supported by the evidence on record is not sustainable in the eye of law.

15. In view of above discussion I accept this revision petition set aside the impugned judgment and decree dated 6.4.1991 passed by the learned Addl. District Judge, Sheikhupura, restore the judgment and decree dated 23.7.1988 passed by the learned Civil Judge, Sheikhupura and suit filed by plaintiffs/Respondents Nos. 1 to 3 stands dismissed with no order as to costs.

(A.P.) Revision accepted.

PLJ 2003 Lahore 85

Present: CH. IJAZ AHMED, J.

MAJOR (Rtd.) HABIB-UR-REHMAN KHAN-Petitioner

versus

RETURNING OFFICER, HALQA NA. 139, KASUR and another-Respondents

W.P. No. 17389 of 2002, decided on 23.9.2002.

Constitution of Pakistan, 1973--

—Arts. 199 & 225-Petitioner claiming to be eligible candidate of "Muthida Majlis-e-Amal" and" and holding valid ticket thereof, seeking setting aside symbol of "book" allotted to respondent and allotment of the same to him- -Matter agitated in writ petition pertains to election, schedule whereof, has already been issued-Court has no jurisdiction to talk cognizance of matter in view of bar contained in Art. 225 of onstitution-Provision of Art. 225 of Constitution is explicit i.e. not to brook and obstructional spoke in any of election which might have effect of hampering same- Constitutional petition was thus, not maintainable. [Pp. 86 & 87] A

PLD 2002 SC 184; PLD 1989 SC 396; AIR 1952 SC 64 and AIR 1985 SC 1233 ref.

Ch. Muhammad Zahoor Nasir, Advocate for Petitioner. Date of hearing: 23.9.2002.

order

The petitioner has filed this writ petition with the following prayer:-

"It is, therefore, respectfully prayed that the order dated 15.9.2002 passed by the Returning Officer Respondent No. 1 may kindly be set aside and the symbol allotted to Respondent No. 2 (i.e.Book) may be withdrawn and same may be allotted to the petitioner as the petitioner is eligible candidate of Muthida Majlis-e-Amal and holds valid ticket Jamiat-e-Ulmai-IslamMaulana Samiul Haq group, in the interest of justice."

1. The learned counsel of the petitioner submits that petitioner is a candidate for National Assembly from N.A. 139 Kasur and is active Member of Jamiat Ulami Islam Samiul Haq Group and was also granted ticket for N.A. 139 by Majlis-e-Aamal Pakistan on 10.9.2002 as is evident from Annexure-A -and Press clippings Annexure-A/1. The petitioner appeared before Respondent No. 1 for allotment of symbol and the petitioner was told that Respondent No. 2 who is member of Jamiate Islam submitted ticket issued by Muthida-Majlis-e-Aamal Pakistan as is evident from Annxure-B. The petitioner contacted the Provincial and Central command of Muthida Majlis-e-Aamal Samiul Haq Group's Markazi Amir Maulana Bashir Ahmad Shah, Provincial Amir Maulana Abdur Rauf Farooq General Secretary, Maulana Naeem Ahmad Farooqi Provincial Naib Amir, Maulana Hassan Naser who assured the petitioner that his ticket is in tact and genuine and is valid and has not been cancelled by Majlis. He further submits that Respondent No. 2 produced a bogus ticket of the Muthida-Majlis-e-Aamal. The petitioner approached the Returning Officer on the same day about 9.20 p.m. in his office and produced the FAX copy issued by one Azhar Iqbal Hassan, Member Council Muthida-Majlis-e-Aamal, Punjab which shows that Abdul Karim is not the candidate of party which was rejected by the Returning Officer on the ground that he had allocated the symbol to Respondent No. 2. He further submits that impugned order is not sustainable in the eyes of law, 3. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record myself. The matter pertains to the election and the election schedule had already been issued. This Court has no jurisdiction to take the cognizance of the matter in view of the bar contained in Article 225 of the Constitution, A and the law laid down by the Honourable Supreme Court in the following judgments:-

Ch. Nazir Ahmad and others us. Chief Election Commissioner etc. (PLD 2002 S.C. 184).

Election Commission of Pakistan vs. Javaid Hashmi and others.(PLD 1989 S.C. 396).

I may add that the letter and intent of law i.e.Article 225 is explicit i.e. not to brook and obetructional spoke in the way of an election which may have the effect of hampering it. It is pertinent to mention here that the superior Courts of India have also taken the same view as our own Supreme Court in the aforesaid judgments as per principle laid down by the Indian Supreme Court in the case of N.P. Ponnuswami vs. Returning Officer, Namakkal (A.I.R. 1952 S.C 64). The relevant observation is as follows:-

"Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted."

The aforesaid observations were noted with approval in Lakshmi CharanSen us. A.K.M. Hassan Uzzaman (A.I.R. 1985 S.C. 1233).

1. In view of what has been discussed above, this writ petition is not maintainable and the same is dismissed.

(A.A) Petition dismissed.

PLJ 2003 Lahore 87 (DB)

Present: MAULVI ANWAR-UL-HAQ AND MlAN HAMID FAROOQ, JJ.

COLLECTOR OF CUSTOMS, CUTOMS HOUSE, LAHORE and 2 others-Appellants

Versus

NISHAT MILLS LIMITED, NISHATABAD, FAISLABAD-Respondent

I.C.A. No. 645 of 2001 in W.P. No. 10626 of 2001, heard on 11.2.2002.

(i) Customs Act, 1969 (IV of 1969)--

—-S. 19-Law Reforms Ordinance (XII of 1972), S. 3-SRO No. 554 (l)/98 dated 12.6.1998-Import of machinery and spare parts-Exemption from payment of Customs Duties, Sales Tax and other charges under S.R.O. dated 12.6.1998-Conditions for entitlement to exemption were absence of local manufacture and purpose for which machinery and spares were to be imported subject to performance of conditions laid down in S.R.O. by importers-Where machinery or spares have been imported for the purpose mentioned in S.R.O. and were not locally manufactured, there would be no hurdle in way of importers to enjoy exemption granted under said SRQ-Respondents were not entitled to curtail or to enhance operation of SRO by means of executive order-Such process can only be undertaken by amendment of SRO in prescribed manner which has not been done in present case. [P.] A

(ii) Law Reforms Ordinance, 1972 (XII of 1972)-

—-S. 3-Customs Act (IV of 1969), S. 19-SRO No. 554 (1) 98, dated 12.6.1998-Single Judge in their respective orders had seen to it that exemption is to be enjoyed by importers within four corners of Notification in question, and upon fulfillment of all conditions thereof and not otherwise-Appeal, against such decision, were without any force. [P. ] B

1993 SCMR 1232 ref.

Mr. A Karim Malik, Advocate for Appellants.

Mr. Imtiaz Rasheed Siddiqui, Mr. Noman Akram Raja and Mr. Umar Atta Bandial, Advocates for Respondent.

Date of hearing: 11.2.2002.

judgment

Maulvi Anwar-ul-Haq, J.--This judgment shall decide I.C. A. No. 645/2001 (in W.P. No. 10626/2001), I.C. A. No. 646/2001 (in W.P. No. 11046/2001), I.C. A. No. 647/2001 (in W.P. No. 11288/2001), I.C. A. No. 688/2001 (in W.P. No. 12170/2001), I.C. A. No. 689/2001 (in W.P. No. 12171/2001), I.C. A. No. 721/2001 (in W.P. No. 14131/2001), I.C. A. No. 814/2001 (in W.P. No. 16236/2001), I.C. A. No. 815/2001 (in W.P. No. 16235/01 and I.C. A. No. 791/2001 (in W.P. No. 15377/2001), as common points are involved.

1. The appellants are manufacturing concerns and claim the benefit of S.R.O. No. 962Q/90, dated 12.9.1990 whereby subject to conditions stated therein exemption was granted from payment of the customs duties, sales tax and other surcharges mentioned therein livable and charge-able under the Laws mentioned in the said Notification, This Notification was later amended vide a Notification No. SRO. 423(I)/97 dated 13.6.1997. This later Notification was superseded by SRO No. 554(I)/98 dated 12.6.1998. The effect is that subject to the conditions noted in the said Notification such machinery or spares as are not manufactured locally, imported for setting up a manufacturing unit or for the expansion, balancing or modernization and replacement of existing unit in bond, shall be exempted from payment of the customs duties and the sale tax.

2. The respondents felt aggrieved of the refusal of the appellant's officers to clear the spares imported by them, in the light of a letter issued by the Central Board of Revenue on 8.5.2001 opining that "maintenance spares/consumable parts" are not -eligible for the benefit of SRO No. 554(I)/98 dated 12.6.1998. The writ petitions, out of which these I.C. As. have arisen, were accordingly filed and have been allowed by the learned Single Judges in Chamber of this Court videimpugned judgments.

3. Mr. A. Karim Malik, Advocate for the appellant contends that the letter referred to in the impugned letter dated 8.5.2001 throve/s some light on the said opinion of the Board which according to the learned counsel ought not to have been interfered with by the learned Single Judges. This letter is dated 3.4.2001 and expresses the opinion of the Collector of Customs that the said maintenance spares/consumable parts would not be covered by the exemption granted under the said Notification dated 12.6.1998. The diction was sought to be drawn with reference to SRO. No. 279(I)(/94 dated 2.4.1994 which distinguishes spares and maintenance parts. Reference has also been made to the C.G.O. 8 of 1995. The learned counsel appearing for the respondents in these cases, on the other hand, .contend that the matter involves interpretation of the said S.R.O. which has to be made in the process of adjudication by the hierarchy of the officers/authorities dealing with the original and appellate matters respectively and that the C.B.R. has no lawful authority to interpret the same in vacuum. Reliance is placed on the case of Messrs Central Insurance Co. and others vs. -The Central Board of Revenue, Islamabad and others (1993 SCMR 1232). It has further been argued that in any case the document is to be interpreted as a whole and if upon proper interpretation in the course of adjudication the respondents are found entitled to the benefit of the same, they are to be awarded the same notwithstanding the said opinion of the C.B.R.

4. We have given some thought to the respective contentions of the learned counsel for the parties. So far as the said contention of the learned counsel for the appellants in these cases is concerned, we fell no hesitation in stating that the same is without any force. The said SRO No. 554(1)/98 dated 12.6.1998 clearly lays down the parameters within which the exemption stands granted. The conditions for the entitlement to exemption are also stated therein. There is no classification of the machinery or the spares the import whereof is to enjoy the said exemption. What is important is the condition of absence of local manufacture and the purpose for which the machinery and spares are to be imported subject to the performance of the conditions laid down in the SRO by the importers. If it is to be found that the machinery or the spares have been imported for the purpose mentioned in the SRO and are not locally manufactured, to our mind there is to be no hurdle in the way of the importers to enjoy the exemption granted under the said SRO. The law does not cater for any attempt on the part of the respondents to curtail or for that matter to enhance the operation of the SRO by means of executive order or formulation of an opinion by an executive authority. Such a process can only be undertaken by amendment of SRO in the manner prescribed by law, which of course is not the case here.

5. We have also noted that the learned Single Judges in their respective impugned judgments have seen to it that the exemption is enjoyed by the importers within the four corners of the said Notification and upon n fulfillment of all the conditions thereof and not otherwise. These I.C. As. are without any force and are accordingly dismissed, leaving the parties to bear their own costs.

(A.P.) Appeals dismissed.

PLJ 2003 Lahore 90

[Multan Bench Multan]

Present: FARRUKH LATEEF, J. HAQ NAWAZ-Petitioner

versus

MUKHTAR AHMAD-Respondent C.R. No. 879 of 2002, decided on 26.8.2002

(i) Civil Procedure Code, 1908 (V of1908)--

—S. 115-Revisional jurisdiction would be available against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against - conclusion of fact or law not involving question of jurisdiction-No breach of any provision of law or of procedure by Appellate Court was pointed out so as to justify interference in provisional jurisdiction-Conclusions arrived at by Appellate Court being based on sound and plausible reasons, no interference was warranted in provisional jurisdiction. [P. 92] B

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

—S. 42-Suit for declaration on the basis of title-Plaintiffs stay application accepted by Trial Court was dismissed by Appellate Court-Legality- Matrial on record showed that plaintiff was inducted in suit property as a tenant by respondent, therefore, be could not challenge title of respondent (landlord) without first surrending possession to him- Plaintiff, thus, could hardly be deemed to possess prima facie case for grant of interim injunction. [P. 92] A

Mr. Ashfaque Ahmad Khan, Advocate for Petitioner. Date of hearing; 26.8.2002.

order

This civil revision is directed against order dated 30.5.2002 passed by the learned Additional District Judge, Khanewal whereby he accepted the respondents appeal.

2.Brief facts necessary for the disposal of this petition are that a suit was filed by the petitioner against the respondent and Province of Punjab for seeking declaration that he is owner of the suit property and that Mukhtar Ahmad has got no concern with the said property; by way of consequential relief it was prayed that the respondent by perpetually restrained from interfering with his possession over the said property. Alongwith the plaint a stay application was also moved. It was contested by Mukhtar Ahmad and vide order dated 27.6.2001 it was accepted by the learned trial Court.

1. Mukhtar A.hmad filed an appeal against the said order which was accepted by the learned Additional District Judge, Khanewal on 30.5.2002, consequently petitioner's stay application was dismissed.

2. Learned counsel for the petitioner has assailed the aforesaid order of learned Additional District Judge, Khanewal on the following grounds:-

(i) The learned appellate Court had failed to appreciate that the petitioner was not only in possession but also had a registered sale-deed in respect of the said property in his favour and the said deed coupled with his possession were sufficient to establish strong prima facie case. Balance of convenience was also in favour of the petitioner because he was likely to suffer an irreparable injury in case he was dispossessed.

(ii) Bonafidepurchase of the said property by the petitioner was not denied by the respondent; and

(iii) The learned appellate Court had committed illegality and material irregularity in accepting the appeal and dismissing the stay application by mis-interpreting the relevant law.

1. I have heard learned counsel for the petitioner and have also perused civil revision and the annexures appended therewith.

2. The learned appellate Court had accepted the appeal for the reasons that it was on record that the respondent had filed an ejectment applications against the petitioner before the learned Rent Controller for seeking his eviction from the suit property which was accepted on 27.5.2000. The petitioner's appeal against that ejectment order of learned Rent Controller was dismissed by the learned Additional District Judge on 6.4.2001; the- said order attained finality as it was not challenged by the petitioner in any higher forum; the petitioner had thereafter on 30.5.2001 come up with the declaratory suit. The learned trial Court had failed to consider that the contesting respondent also possessed a registered sale-deed in respect of the said property which was executed in the year 1990 on the basis of which Mutation No. 8 was also entered in favour of the contesting respondent in the Revenue Record in the year 1991. For the said reasons it was held by the learned appellate Court that the petitioner did not possess a prima facie case and before claiming against the contesting respondent (landlord) the petitioner should have first surrendered possession.

3. Learned counsel for the petitioner did not deny before me that order of ejectment in respect of the suit property was passed by the learned Rent Controller against the petitioner which was upheld in appeal and the petitioner did not assail that order in any higher forum. From the record it was, therefore, clear that the petitioner was inducted in the suit property as a tenant by Mukhtar Ahmad respondent hence he could not challenge the title of the said respondent (landlord) without first surrendering possession to him. In the given situation, the petitioner could hardly be deemed to possess a prima facie case for the grant of interim injunction.

4. Contention of the petitioner's counsel that bonafidepurchase of the petitioner was not denied by the respondent is entirely misconceived

5. Section 115 CPC is directed against irregular exercise, non- exercise or illegal assumption of jurisdiction and not against the conclusion of fact or law not involving the question of jurisdiction. Learned counsel for the petitioner could not draw my attention to the breach of any provision of law or commission of any error of procedure by the learned appellate Court.

6. The conclusion arrived at by the learned appellate Court is based on sound and plausible reasons, hence interference in the provisional jurisdiction is not warranted. Civil Revision is accordingly dismissed inlimine.

(A.A) Revision dismissed.

PLJ 2003 Lahore 92

[Multan Bench Multan]

Present: FARRUKH LATEEF, J.

BRIG (R) AZIZ MUHAMMAD KHAN-Petitioner

versus

SECRETARY, MINISTRY OF DEFENCE GOVT. OF PAKISTAN-Respondent

W.P. No. 7170 of 2002, decided on 3.9.2002.

(i) Constitution of Pakistan, 1973--

—-Art. 199--Discretion in writ jurisdiction cannot be exercised in favour of petitioner who cannot himself take benefit of order given by Court. [P. 93] A

(ii) Constitution of Pakistan, 1973--

—-Art. 199(a) (l)--Existence of legal right-Foundation of writ of mandamus-Petitioner in obtaining relief must satisfy Court that he was possessed of legal right to compel performance of duty; that person against whom right was sought was under legal obligation to perform that duty-­Petitioner claming cancellation of lease in question, being not a party to lease deed'could not claim any interest therein-Petitioner, thus, cannot be deemed to be aggrieved person within the meaning of Art. 199(a)(l) of the constitution, therefore, he was not entitled to maintain writ petition. [P. 94] B

Petitioner in person. Date .of hearing: 3.9.2002.

order

He has been heard.

1. Brief facts of this writ petition are that house of the petitioner is situated opposite to Plots Nos. 217-E and E-l which were obtained by Mst. Salma Anwaar Respondent No. 4, for residential purpose on lease from Military Estates Officer (Respondent No. 3.). She converted the said premises into schools, in violation of the terms and conditions of the lease, which became source of nuisance to the petitioner and his family; consequently the petitioner was constrained to enter into a protracted litigation with Respondent No. 4 which eventually culminated in his favour; resultantly Respondent No. 4 vacated the said premises.

2. Grievance of the petitioner is that Respondent No. 3 is not taking action against Respondent No. 4 for violating the terms and conditions of the lease, as is provided in the lease contract. Prayer in the writ petition is that a direction be issued to Respondent No. 3 to;

(i) take over the said premises forthwith and to get the lease cancelled on account of violation of its terms and conditions by Respondent No. 4; and

(ii) not to accept, .forward or approve application of Respondent No. 4 for transfer of any right held by her under the lease to any other person.

1. Discretion in writ jurisdiction cannot be exercised in favour of a petitioner who cannot himself take benefit by the order given by the Court.

2. Existence of a legal right is the foundation of every writ of mandamus. In order to succeed in obtaining relief by way of such writ the petitioner must satisfy the Court that he has a legal right to compel the performance of the duty and the person against whom the right is sought was under a legal, obligation to perform that duty.

3. The petitioner is admittedly not a party to the said lease deed and also does not claim any right, title or interest in the premises which he desires to be cancelled from the name of Respondent No. 4. The lease contract is between Respondents Nos. 3 and 4.

4. In my view the petitioner cannot, be therefore, deemed as an aggrieved party within the meaning of Article 199(a) (1) of the Constitution, The writ petition being not maintainable is accordingly dismissed in limine.

(A.A) Petition dismissed.

PLJ 2003 Lahore 94

[Multan Bench Multan]

Present:FARRUK LATEEF, J.

GUL MUHAMMAD TABASSAM-Petitioner

versus

Mst. GULSHAN ARA etc.-Respondents

W.P. No. 1957 of 2002, decided on 20.8.2002

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

—S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Suit for recovery of dower amount decreed by Courts below, assailed-Concurrent findings by Family Court and Appellate Court cannot be successfully assailed in writ jurisdiction, unless Courts had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence-High Court in its constitutional jurisdiction cannot sit as a Court of appeal and cannot substitute findings of facts recorded by Courts below, as such, matter should be decided by Courts invested with jurisdiction to decide them. [P. 95] A

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

—- S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Plausible reasons have been given in impugned judgments in support of conclusions arrived at-No portion of judgment was pointed out in support whereof, evidence was overlooked or mis-read by any of Courts below-Judgment and decrees of Courts below were maintained. [P. 95] B

Mr. Anwarul-Haq Bari, Advocate for Petitioner.

Mr. Muhammad Sadiq Chughtai, Advocate for Respondent No. 1.

Date of hearing: 7.8.2002.

judgment

Brief facts of this writ petition are that Respondent No. 1, Mst.Gulshan Ara filed a suit against her husband (writ petitioner) for recovery of her dower i.e. 7-tolas of gold ornaments, alleging therein that previously she had filed a suit for the same .relief during, the proceedings whereof matter was compromised in the manner that the petitioner had given an undertaking in the Court that he would pay her aforesaid dower in view of which she had withdrawn that suit and started living with him.

1. It was alleged that after some period the petitioner had not only deserted her but had also resoled from his undertaking given before the Court and declined to pay her dower.

2. The suit was contested by the petitioner. After framing necessary issues and record evidence, the learned Family Court (Respondent No. 3) decreed the suit vide judgement dated 31.5.2000 (Annex-F). Petitioner's appeal against that decree was also dismissed by Addl. District Judge, (Respondent No. 2) vide judgment dated 31.1.2002 (Annex-g).

3. In this constitutional petition both the aforesaid judgments and decrees called in question.

4. Learned counsel for the petitioner had argued that both the aforesaid judgments are against law and facts for the following reasons;

(i) from the evidence produced by Respondent No. 1, her claim for recovery of dower was not established and;

(ii) evidence was not correctly appraised and the impugned judgments suffer from non-reading and mis-reading of evidence.

1. The petition is contested by learned counsel for Respondent No. 1, Arguments, heard; petition and its annexure perused.

2. Concurrent findings by the Family Court and the Appellate Court cannot be successfully assailed in writ jurisdiction, unless the Courts had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence. Constitutional petition also does not lie to challenge an order on the ground that evidence in the case was not correctly appreciated because findings of facts recorded by Courts of competent jurisdiction cannot be disturbed simply on the ground that another view could be possible on the same evidence.

3. High Court in its constitutional jurisdiction cannot sit as a Court of appeal and cannot substitute findings of facts recorded by the Courts below as such matters should be decided by the Courts invested with jurisdiction to decide them.

4. A perusal of the impugned judgments reveals that plausible reasons have been given therein in support of the conclusions arrived at.

5. Learned counsel for the petitioner had failed to draw my attention to any portion of evidence which was allegedly overlooked or was misread by any of the Courts below.

6. Neither their appears to be any mis-reading of evidence nor any material piece of evidence appears to have been overlooked by the Courts below. For the foregoing reasons, writ petition is without any merit, it is accordingly dismissed.

(A.A) Petition dismissed.

PLJ 2003 Lahore 96

[Multan Bench Multan]

Present: FAH.RUK LATEEF, J.

GUL MUHAMMAD TABASSAM-Petitioner

versus

GULSHAN ARA, etc.-Respondents

W.P. No. 1958 of 2002, decided on 20.8.2002.

(i) Constitution of Pakistan, 1973-

—Art. 199-West Pakistan Family Courts Act (XXX of 1964), S. 5 & Sched.- Concurrent findings by Family Court and Appellate Court cannot successfully assailed in writ jurisdiction unless Courts had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence-Constitutional petition does not lie to challenge order of Courts below on the ground that evidence in impugned case was not correctly appreciated-Findings recorded by Court of competent jurisdiction cannot be disturbed on the ground that another view could be possible on the same evidence. [P. 97] A

(ii) Family Court Act, 1964 (XXXV of 1964)--

—-S, 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Concurrent findings of Courts below being based on plausible reason-No interference in constitutional jurisdiction was warranted. [Pp. 97 & 98] B

Mr. Anwar-ul-Haq Bari, Advocate for Petitioner.

Mr. Muhammad Sadiq Chughtai Advocate for Respondent No. 1.

Date of hearing: 7.8.2002.

judgment

Brief facts necessary for the disposal of this constitutional petition are that Gul Muhammad Tabbasam (writ petitioner) filed an application under Section 25 of the Guardians and Wards Act, against his ex-wife Mst.Gulshan Ara (Respondent No. 1) for seeking custody of their children Muhammad Azad Gul aged 5-years, Muhammad Akash Gul-aged 3% years and Muhammad Hassan Gul-aged 6-months. The said application was contested by his ex-wife. After framing relevant issues and recording evidence thereon the learned Guardian Judge (Respondent No. 3) dismissed the said application vide order dated 31.5.2000 (Annex-f). Petitioner's appeal against that order was also dismissed by Respondent No. 2, Addl. District Judge, Multan vide (Annex-g).

1. In this constitutional petition both the aforesaid decisions are called in question.

2. Learned counsel for the petitioner contended that both the aforesaid judgments are against law and facts for the following reasons;

(i) from the evidence produced on record it was established that the welfare and interest of the minors demanded that their custody should be made over to the petitioner and;

(ii) evidence was not correctly appraised and the impugned judgments suffer from non-reading and mis-reading of evidence.

1. The petition is contested by the learned counsel for Respondent No. 1. Arguments heard; writ petition and its annexures perused.

2. Concurrent findings by the Family Court and the Appellate Court cannot be successfully assailed in writ jurisdiction unless the Courts had exceeded jurisdiction, acted without jurisdiction or finding were based on no evidence. Constitutional petition also does not lie to challenge an order on the ground that evidence in the case was not correctly appreciated because findings of facts recorded by Courts of competent jurisdiction cannot be disturbed simply on the ground that another view could be possible on the same evidence.

3. High Court in its constitutional jurisdiction cannot sit as a Court of appeal and cannot substitute findings of facts recorded by the Courts below as such matters should be decided by the Courts invested with jurisdiction to decide them.

4. A perusal of the impugned judgments reveals that plausible reasons have "been given therein in support of the conclusion arrived at.

5. Learned counsel for the petitioner had failed to draw may attention to any portion of evidence which was allegedly overlooked or was mis-read by any of the Courts below.

6. Neither their appears to be any mis-reading of evidence nor any material piece of evidence appears to have been overlooked by the Courts below.

For the foregoing reasons, writ petition is without any merit, it is accordingly dismissed.

(A.A) Petition dismissed.

PLJ 2003 Lahore 98 (DB)

Present: jawwad S. khawaja and abdul shakoor paracha, JJ.

Mst.FARIDA KHATOON-Appellant

versus

Dr. MASOOD AHMAD BUTT and 4 others-Respondents

R.F.A No. 499 of 2000, heard on 29.5.2002.

(i) Muhammadan Law-

—-Succession-Gift of one half of property in question by deceased owner in favour of his wife-Gift deed was duly stamped and had also been registered-Deceased owner of property thus, divested himself of title in over half of property in question, and had conveyed same to his wife inter muos-Wife of deceased being owner of one half of such property on basis of gift, respondents could not have any claim in respect of one half of property in question. [P. 100] A

(ii) Muhammadan law-

-—Will relating to other half of property-Contention that though instrument comprising will has been termed as ivasiyatnama,yet same in actual fact constituted gift in favour of wife of executant was repelled- Contents of such document showed that same was to operate after death of her husband and did not convey any right, title or interest in favour of his wife (defendant) inter vivos. [P. 100 B

(iii) Muhammadan Law--

—Civil Procedure Code (V of 1908), S. 96-Trial Court found plaintiff to be entitled to 3/4 of mense profits of property of deceased-Such finding was however, not based on any evidence, therefore, same was set aside. [P. 101 C

PLD 1997 SC 730; A Code of Muslim Personal Law by Tanzil-ur-Rehman S. 249-A ref.

Mirza Hafeez-ur-Rehman,Advocate for Appellant. Ch. Shah Muhammad, Advocate for Respondents, Date'of hearing: 29.5.2002, judgment

Jawwad S, Khawaja, J.-This appeal impugns the preliminary decree dated 10.10.2000 passed by the learned Civil Court at Lahore.

2, The facts of this case are straightforward. One Muhammad Ahmed Butt was the owner of Property No. 27-B, New Muslim Town, Lahore comprising of land measuring 2 Kanals9 Marias76 Sq. ft. together with a residential house constructed thereon. The appellant Mst. Farida Khatoon is the widow of Mahmood Ahmed Butt. Respondent No. 1 is the brother of Mahmocd Ahmed Butt while the remaining four respondents are his sisters.

1. Mahmood Ahmed Butt died issueless on 18.5.1989. As a result his widow named above and the respondents are his legal heirs entitled to inherit his estate in accordance with the Islamic Law of Inheritance. The respondents filed a suit seeking administration of the estate of Mahmood Ahrned Butt and also seeking rendition of accounts. It was among other things alleged in the plaint that Mst. Farida Khatoon widow of Mahmood Ahmed Butt had taken over exclusive possession of the properties owned by Mahmood Ahmed Butt and was enjoying the usufruct of the same to the exclusion of the plaintiffs/respondents. The suit was resisted by Mst.Farida Khatoon, who filed a written statement. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:-

2. Whether Mahmood Ahmed Butt deceased was owner of the suit properties mentioned in Para No. 2 of the plaint at the time of his death?

3. Whether Mahmood Ahmed Butt was Sunnior Shiaby faith? OP Parties.

4. Whether the plaintiffs have got no locus standi to bring this suit? OPD.

5. Whether the plaintiffs are entitled to get any share in the suit properties, if so, what are their legal shares? OPD.

6. Whether the plaintiffs are entitled to get decree for mesne profit, if so, to what extent? OPD.

7. Relief.

8. Before us, learned counsel for the appellants confined his arguments to Issues Nos. 1 and 5. In this behalf also he limited his arguments to the above referred Property No. 27-B, New Muslim Town, Lahore. It was his contention that the said property had been conveyed in its entirety by Mahmood Ahmed Butt in favour of his wife Mst .Farida Khatoon. In support of this submission, he\ firstly, referred to a Hibanamadated 7.3.1989 (Exh. D. 2), whereby one-half of the said property was conveyed by way of gift to Mst .Farida Khatoon (appellant/defendant). We have examined the Hibanama. It is duly stamped and has also been registered under the provisions of the Registration Act with the Sub-Registrar, Model Town, Lahore. We therefore, find that late Mahmood Ahmed Butt had divested himself of title in one-half of the aforesaid property and had conveyed the same to Mst.Farida Khatoon inter vivos. As such Mst .Farida Khatoon is the owner of the one-half gifted to her. The respondents, therefore, cannot have any claim in respect of the said one-half of the above-referred property. This position was not contested by learned counsel for the respondents. It was also pointed out that vide statement dated 16.5.1992 learned counsel for the respondents had admitted the fact that one-half of the property had been gifted to Mst .Farida Khatoon and title therein stood vested in her.

9. Learned counsel for the appellant then contended that even the other half of the above property stood vested in the appellant. This submission was made on the basis that Mahmood Ahmed Butt had executed and registered another instrument, which though termed as Wasiyatnama,in actual fact constituted a gift in favour of Mst. Farida Khatoon. We have examined the said document, which is executed on Rs. 10/- stamp paper and has been registered with the Sub-Registrar, Modle Town, Lahore. The contents of the said Wasiyatnamaclearly show that it cannot, by any stretch of reasoning, be construed as a gift in favour of Mst. Farida Khatoon. It is obviously and clearly meant to operate after the death of Mahmood Ahmed Butt and does not convey any right, title or interest in favour of Mst. Farida Khatoon inter vivos.

10. Learned counsel referred to portions of the said document appearing at Page 2 thereof, which reads as under:- Based on the above contents of the Wasiyatnama, learned counsel for the appellant firstly contended that it was possible for a Muslim to create a will of the usufruct of any immovable property and if this was done the other conditions applicable to wills would not apply to such will. In support of this contention, he referred to the law encapsulated in Section 249 of the Book titled 'A Code of Muslim Personal Law' compiled by Dr. Tanzil-ur-Rehman. The said Section 249 is reproduced as under:- "249. A will made regarding usufructs permanently or for a fixed period, shall be valid.

11. There is nothing in the aforesaid text, which can even remotely suggest that the restrictions otherwise applicable to wills will not apply in the case of a will of the usufruct of immovable property. Learned counsel for the appellant next referred to the case titled Abdul Hameed and 23 others vs. Muhammad Mohiyddin Siddique Raja and 3 others (PLD 1997 S.C. 730). We have gone through the said precedent and note that it is hardly applicable to the circumstances of the present case. Firstly, we note that the cited precedent does not pertain to a Muslim will at all. It only holds that a condition attaching to a gift made by a Muslim donor is not operative and the donee takes the gift without the condition attached to it. The said precedent, therefore, does not advance the case of the appellant in any manner.

12. Finally, it was argued by learned counsel that Issue No. 5 has been decided by the learned trial Court in favour of the respondents/ plaintiffs, who have been held entitled to 3/4 of the mesne profit of the property of Mahmood Ahmed Butt mentioned in the Wasiyatnama. This finding has been given even though, according to the learned trial Court itself, the plaintiffs/respondents have not produced any .evidence to support their claim. This contention does appear to be well founded and is apparent from the impugned judgment also. The rinding of the learned trial Court on Issue No. 5 is, therefore, reversed.

13. The result of the above discussion is that the finding of the learned trial Court on Issue, No. 1 is upheld. However, the appeal succeeds partially, as we have reversed the finding of the learned trial Court on Issue No. 5.

(A. A) Appeal partially accepted.

PLJ 2003 Lahore 104

[Rawalpindi Bench Rawalpindi]

Present:maulvi anwar-ul-haq, J.

Subedar (Rtd.) NOOR ABDULLAH-Appellant

versus

MUHAMMAD NAWAZ-Respondent

S.A.O. No. 6 of 2001, decided on 17.9.2002.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 15--Court-fee payable on first appeal being Rs. 1650/ only Court-fee of Rs. 15/- had been paid-Neither office of Appellate Court nor appellant/ tenant raised any objection-Provision of S. 28 of Court-Fee Act, 1870, would apply which authorizes Court to order that memorandum of appeal be stamped and document having been so stamped, every proceeding thereto would be as valid as if properly stamped in the first instance-Respondent was directed to pay Court-fee of Rs. 1635/- on memo of first appeal before First Appellate Court on or before 15-10- 2002-If Court-fee was deposited on or before said date present S.A.O would stand dismissed as barred by time-In case of failure of respondent to deposit requisite Court-fee in First Appellate Court before said date, first appeal would stand dismissed. [P. 105] A

PLD 2001 SC 514; 1996 SCMR 856; PLD 1970 Lah. 428 ref.

Malik Muhammad Akram, Advocate for Appellant. Mr. Abdul Rasheed Awan, Advocate for Respondent. Date of hearing: 17.9.2002.

judgment

For the order, I propose to pass in this case, reference to pleaded facts would not be necessary. Suffice it to say that an ejectment petition filed by -the respondent against the appellant was dismissed by a learned Rent Controller Tallagang on 26.4.2000. Feeling aggrieved, the respondent filed first appeal, which was heard by the learned Additional District Judge Chakwal, Camp at Talagang who allowed the same and directed the appellant to hand over the vacant possession of the shop in dispute. This was done vide order date 19.12.2000.

1. The instant S.A.O. is admittedly barred by time. Learned counsel asserts that the impugned order is void and as such no limitation would run. Relies on Land Acquisition Collector, Nowshera and others v. Sarffaz Khan and others (P.L.D. 2001 Supreme Court 514) and Muhammad Shaft vs. Mushtaque Ahmad through legal heirs and others (1996 S.C.M.R. 856). According to the learned counsel, the first appeal filed by the respondent could not even be heard as the memorandum of appeal did not bear the requisite Court-fee. Learned counsel with reference to the case of HabibIsmail Bajwa v. Khawqja- Ghulam Mohy-ud-Din (P.L.D. 1970 Lahore 428) asserts that the Court-fee is payable on the said memorandum ad-valorem.

2. I have examined the record of appellate Court. The memorandum of appeal bearing Court-fee of Rs. 15/- was filed on 12.6.2000 to question the said order of .the learned Rent Controller. It appears that neither the office nor of course "the appellant who had put in appearance on 11.7.2000 raised any objection to this effect till 19.12.2000 when the appeal was heard and decided.

3. There is no doubt that the memo of the said first appeal had to bear a Court-fee to be calculated on the yearly rent. The agreed rate of rent is Rs. 1900/- per month and the Court-fee payable on the said amount comes to Rs. 1650/- but only a Court-fee of Rs. 15/- has been paid. This fat is apparent on the face of the record that neither the office of the appellate Court nor the present appellant raised any objection. To my mind, the matter squarely falls within the ambit of Section 28 of the Court-Fee Act, 1870. This is certainly a case where the memorandum of appeal was filed in the appellate Court, received by it and proceeded with inadvertently while it was not properly stamped. Now Section 28 of the ibid. Act authorizes this Court to order that the said memo of appeal be stamped and the documents having been so stamped and every proceedings thereto shall be as valid as if properly stamped in the first instance. I, therefore, hereby directed that the respondent shall pay Court-fee of Rs. 1635/- on the said memo of first appeal before the learned first appellate Court on or before 15-10-2002. In case, the Court-fee is deposited on or before the said date, the present S.A.O. shall stand dismissed as barred by time. In case of failure of the respondent to deposit the requisite Court-fee in the said appellate Court on or before the aforesaid date, the said first appeal shall stand dismissed. No order as to costs.

4. The record of the lower appellate Court be remitted back immediately.

(A.P.) Order accordingly.

PLJ 2003 Lahore 114

[Multan Bench Multan]

Present: FARRUKH lateef, J. SHAFIQ AHMAD-Petitioner

versus

MEPCO, WAPDA etc.-Respondents W.P. No. 6931 of 2002, decided on 3-9.2002.

Electricity Act, 1910 (XI of 1910)--

—-S. 39-A-Constitution of Pakistan (1973), Art. 199-Disconnection of electric supply and removing of meter installed at tube-well of petitioner without notice, lodging of F.I.R. and .issuing of inflated bill assailed- Material on record showed that premises were disconnected and meter was removed before issuance of notice-Notice allegedly issued to petitioner did not relate to disconnection or removal of meter-Action of respondents in disconnecting premises, removing meter, lodging of F.I.R. and issuing of detection bill were without notice to- petitioner, against mandatory provisions of law, without justification and without lawful authority-F.I.R. registered against petitioner was quashed-Respondents were directed to instal meter at the premises of petitioner forthwith- Case would be deemed to be pending at the stage of notice to be served in accordance with law on petitioner and to pass fresh order according to law. [Pp. 116 & 117] A, B & C

Mr. Muhammad ArifAlvi, Advocate for Petitioner.

Malik Haider Jamal, Advocate for Respondents Nos. 1 to 3 and 5.

Date of hearing: 2,9.2002.

judgment

Shafique Ahmad son of Rehmat Ullah, a consumer of electricity supply by Respondent No. 1, through this constitutional petition, calls in question the actions of Respondent No. 3, functionary of Respondent No. 1, in;

(i) disconnecting the electric supply and removing the meter installed at the tube-well of the petitioner;

(ii) lodging a false FIR No. 148/2002 under Section 39-A, Electricity Act with the allegation that meter was tempered; and

(iii) issuance of bill through Respondent No. 5, for a sum of Rs. 1,27,877/- for 51,993-units.

1. It was argued by the learned counsel for the petitioner that Respondent No. 3, had, without notice to the petitioner, disconnected his premises and had removed the electric meter with mala fide intention. Previously also on the same allegation the meter was removed and FIR was also got registered against the petitioner in which he was challaned and after facing trial was eventually acquitted. That annoyed by his acquittal the respondents, had, also previously issued an incorrect and excessive bill whereupon the petitioner was constrained to file a complaint against them before the Electric Inspector, Government of the Punjab, Multan Region, Multan, which was contested by the respondents and was eventually accepted on 3.8.2002. It was held in the said order that detection bill raised by respondents was not justified and they were directed to withdrawn/waive of late payment, surcharges and to overhaul the account of the petitioner in the light of the observation made in the order.

2. It was farther submitted that before the announcement of the said order by the Electric Inspector, Respondent No. 3, without any notice, served the connection and removed the meter on 2.8.2002 and on the day when the said order was announced respondent had lodged another false FIR against the petitioner levelling the same allegation against him on which he had been acquitted earlier by the WAPDA Magistrate. It was further contended that again another false detection bill calling upon the petitioner to pay Rs. 1,27,877/- has been issued, on the same grounds on which the previous detection bill was issued which was eventually found by the Electric Inspector as unjustified.

3. Malik Haider Jamal, Advocate counsel for Respondents Nos. 3 to 5 had opposed the petition on the grounds that the petitioner was served with a notice as on checking his premises the meter was found tempered with. He produced before me photo copy of notice which was according to him served upon on the petition. It was further argued by him that the meter was removed after complying with the provisions of Section 26-A of the Electricity Act and that FIR was lodged against the petitioner as he was found stealing electricity by tempering the meter.

4. Arguments heard; writ petition, its annexures, attested copy of the order of Electric Inspector dated 3.8.2002 and photo copy of notice issued on 3.8.2002 by Respondent No. 3, perused.

5. Contentions raised by the learned counsel for the petitioner which have been stated hereinbefore regarding allegations against the respondents, are mentioned in the writ petition which is supported by an affidavit of the petitioner. Learned counsel for the respondents did not deny that on the same allegation a criminal case was also previously instituted against the petitioner which was contested by the respondents and the petitioner was ultimately acquitted in the said case. Filing of complaint against the respondents, regarding a previous detection bill issued by the respondents and verdict given thereon by the Electric Inspector is also not denied by him. Although the learned counsel for the respondents asserted that meter was removed after service of notice in accordance with law but he did not produce anything in black and white to show as to on which date the meter was removed hence in the absence of any rebuttal on that point, contention of the petitioner that meter was removed on 2.8.2002 appears to be correct.

6. A perusal of photo-copy of notice produced by the respondents counsel shows that it was issued on 3.8.2002. It is mentioned therein that premises of the petitioner were checked on 2.8.2002 and it was found that meter was tempered with. In this notice the petitioner was required to explain within seven days of the receipt of notice as to why detection/ assessment bill as per provisions of Section 26-A, of Electricity Act should not be charged and he was also requested to associate with the detection committee with all relevant record in connection with the preparation of detection bill.

7. Photp-eopy of this notice simply shows that it was issued on 3.8.2002. Notice was produced in support of the assertion that it was also served on the petitioner, however, relevant record showing service of the petitioner which in the ordinary course, should be with the respondents was not produced. On top of the photo copy of the notice the word "Registered" is written. No receipt issued by the post office was produced to show that it was also delivered in the post office for transmission to the petitioner.

8. Last, but not the least in the said notice, the petitioner was not called upon to show-cause as to why his premises should not be disconnected and the meter should not be removed. He was simply asked to explain as to why detection, assessment bill should not be charged from him.

9. It was, therefore, amply clear that the premises was disconnected and meter was removed on 2.8.2002 before the issuance of notice and secondly the notice did not relate to disconnection or removal of meter.

10. Now coming to the detection bill Annex-J, date of its issue is 16.8.2002. It has already been observed herein-before that service of notice was not proved, according to which he was directed to show-cause against the issuance of detection bill and was also requested to associate with the

detection committee with all the relevant record in connection with preparation of the detection bill.

1. The detection bill was, therefore, obviously prepared without service of notice on the petitioner and without his association in the detection committee. Nothing was produced to show that the petitioner had associated with the detection committee.

2. It is also not disclosed in the detection bill as to on what basis it was prepared and to which period it relates.

3. The premises were disconnected and meter was removed on 2.8.2002 when the complaint of the petitioner against the respondents was pending before the Electric Inspector. Attested copy of the decision of the Mr. Iqbal Ahmad Qureshi, Advocate for Appellant. Syed Misbah-ul-Hassan, Advocate for Respondent. Date-of hearing: 25.7.2002.

judgment

Parvez Ahmad, J.--The appellant through this RFA has challenged the judgment and decree of the trial Court dated 17-5-1995 hy virtue of which the evidence of the appellant/defendant was closed under Order XVII Rule 3 of CPC and the suit for recovery of Rs. 10,00,000/- instituted by the respondent/plaintiff against the appellant/defendant was decreed.

1. Briefly stated the facts are that present respondent/plaintiff filed a suit for recovery of Rs. 10,00,000/- with the averments that both the parties were known to each other and the present appellant/defendant on account of some emergency took a loan of Rs. 10,00,000/- with the promise to repay it by 31-5-1993 on demand. The appellant/defendant also executed a promissory note and receipt dated 15-2-1992 in this behalf. The respondent on 31-5-1993 contacted the appellant for the receipt of the amount but it transpired that the appellant had shifted his residence. The appellant then contacted the appellant at his new address but the payment of the amount was not made to him, hence the above said suit. The appellant/defendant contested the suit and the learned trial Court, from the divergent pleadings of the parties, framed the following issues on 20-7-1994:-

2. Whether this suit is not maintainable in view of preliminary Objections Nos. 1 to 3 of the written statement? OPD.

3. Whether the plaintiff is entitled to a decree for recovery of Rs. 10,00,000,00 on the basis of receipt and pronote enunciated in the plaint? OPP.

4. Relief.

After the completion of the evidence of the plaintiff on 17-11-1994, the case was adjourned to 25-1-1995, firstly, for evidence of the defendant and finally on account of failure of the defendant to produce his evidence, his evidence was closed under Order XVII Rule 3 of CPC on 17-5-1995 and resultantly the suit of the plaintiff/respondent was decreed in his favour, hence this appeal by the appellant/defendant.

1. We have heard the learned counsel for both the parties and also gone through the material made available before this Court.

The submission of the learned counsel for the appellant is that no sufficient opportunity for production of evidence was given to the appellant. It is submitted that for the first time the case was fixed on 14-12-1994 and on 14-12-1994 it was adjourned to 25-1-1995 and then to 14-3-1995 and then to 15-4-1994 and then for 17-5-1995 when his evidence was closed under Order

XVII Rule 3 of CPC. It is added that the order of the learned trial Court is harsh and unjustified.

1. On the other hand the learned counsel for the respondent/ plaintiff submitted that the appellant was provided sufficient opportunities to lead his evidence but he failed to avail benefit .of the same. It is added that the appellant never produced in evidence any of the witnesses on any date of hearing fixed for this purpose; that the appellant did not summon any of the witnesses through the process of the Court and all the adjournments were allowed to the appellant at his request. It is added that the appellant on that day, as per Para No. 1 of his grounds of appeal, was leading a procession being a political worker and as such did not appear before the Court and also did not produce his evidence, therefore, his appeal is liable to be dismissed.

2. The scanning of the record reveals that the civil suit was fixed for evidence of the appellant/defendant for the first time on 14-12-1994. The defendant did not produce his evidence. None of the witnesses was summoned by him for this date it was he who made a request to the Court for adjournment and the suit was adjourned to 25-1-1995. On 25-1-1995 it was adjourned to 14-3-1995. On 14-3-1995 at the request of the appellant the case was again adjourned to 15-4-1995. Even on this date neither the appellant nor any of his witnesses was present. There is nothing on record that any witnesses was summoned by him through the process of the Court. Similar is the situation on 16-4-1995 and on this date also the adjournment was sought by the appellant and he was given one more opportunity for production of his evidence on 17-5-1995. On 17-5-1995 neither any of the witness as per record was summoned through the process of the Court nor any witness was present before the Court. The appellant himself was also not present before the Court. The appellant as per Para No. 1 of grounds of appeal on the day when his evidence was closed was leading a procession and did not bother to appear before the Court. This was the priority adopted by the appellant for the conduct of the civil suit before the competent Court of law and this conduct of the appellant is not appreciable in any respect as such disentitles him to have relief by the exercise of discretion for grant of adjournment in his favour, as such the learned trial Court rightly did not

"allow any further opportunity and closed his evidence.

1. Apart from this situation, there is nothing on record that on any date the Presiding Officer of the Court was on leave or on any other reason the case had been adjourned. Record further reveals that the appellant was given sufficient opportunity for the production of his evidence but he failed to produce his evidence, therefore, the trial Court was left with no option but to invoke the provisions of Order XVII Rule 3 of CPC. In this behalf, we seek guidance from the law laid down by the Hon'ble Supreme Court in the cases reported as 1998 SCMR 1067 and PLD 1997 SC 73.

In view of the above discussion, we do not find any scope for interference in the judgment dated 31-5-1993 of the learned trial Court, therefore, we dismiss this appeal with no order as to costs.

(A.A) Appeal dismissed.

PLJ 2003 Lahore 120

Present: ABDUL SHAKOOR PARACHA, J. RAJA MUHAMMAD AFZAL-Petitioner

versus MALIK MUHAMMAD MOAZAM and 15 others-Respondents

C.R. No. 2792 of 1996, heard on 5.8.2002. Civil Procedure Code, 1908 (V of 1908)--

—-S. US-Partition of property alleged to he joint-Essentials-Property in question, had already been partitioned and parties were not joint owner of such property-Unity of title and unity of possession is condition precedent for possession through partition-Concurrent finding of fact against plaintiff on basis of evidence recorded by Courts of competent jurisdiction cannot be interfered in revisional jurisdiction.

[Pp. 122 & 123] A, B

1993 CLC 31 re/:

Mr. Abdul Majeed Khan, Advocate for Petitioner.

Mr. CM. Sarwar, Advocate for Respondents.

Mr. Tahir Ahmad Khan, Advocate for Respondent (Bank).

Date of hearing: 5.8.2002.

judgment

This civil revision is directed against the order dated 22.7.1996 passed by the learned Addl. District Judge Gujrat dismissing the appeal of the petitioner against the judgment and decree dated 20.1.1993, whereby the suit filed by the petitioner-plaintiff against the respondent-defendant has been dismissed.

1. The brief facts of the case are that the petitioner filed a suit against the respondent-defendant for possession through partition of the Plot No. 1/71 measuring one Maria and 153 sq.ft. situated at Muhallah Bagh Sanat Ram Qujrat. It was alleged that the property had been joint with the respondents-defendants. According to the petitioner remaining portion of Property No. 1/71 had been allotted to the predecessor-in-interest of the respondents-Defendants Nos. 1 to 15. So they are also joint owners. He prayed for separate possession of the portion which was transferred to him.

2. The respondents contested the suit. It was contended that Property No. B-l/71 measuring 6 Mariasand 141 sq. ft. had been duly transferred after partition and in that connection a permanent Transfer Deed had been issued in favour of the respondents-Defendants Nos. 1 to 15. It was further asserted Respondents No. 1 to 15 have sold their property through a registered sale-deed dated 22.1.1987 to the Respondent No. 16, who had made construction over the suit property from his own pocket and that the petitioner had no concern whatsoever with the suit property.

3. From the divergent pleadings of the parties the learned trial Court framed the following issues:-

(1) Whether the disputed property is jointly owned by the parties? OPP.

(2) Whether plaintiff is entitled to decree prayed for in the main suit? OPP.

(3) Whether the plaintiff has no cause of action and locus standilOPP.

(4) Whether the present Court has got no jurisdiction to entertain this suit? OPD.

(5) Whether the suit has been wrongly valued for the purposes of Court-fee and jurisdiction? OPD.

(6) Whether the map is not according to High Court Rules & Orders, if so its effect? OPD.

(7) Relief.

1. The parties produced the evidence. Issues Nos. 1 and 2 were decided against the petitioner. Issues Nos. 3 and 4 were decided in favour of the respondents. Issues Nos. 5 and 6 were found in negative. The learned Civil Judge proceeded to dismiss the suit of the petitioner vide his judgment and decree dated 20.1.1993.

2. Aggrieved by the judgment and decree of the learned trial Court the petitioner preferred an appeal which was also dismissed by the learned Addl. District Judge, on 22.7.1996, by observing that, it has been proved on the record of the trial Court that according to Ex. P. 3, Ex. D. 1, the statement of AW. 1 Mirza Ghulam Hussain, Ex. D. 2, Ex. D. 3, and Ex. D. 4, the respondents/Defendants 1 to 15 were fully owners of the plot measuring 6 Marias, 141 sq. ft. with specific boundaries, who later on sold the same to the appellant/Defendant Nos. 16. Under these circumstances the appellant/plaintiff could not be able to prove his title over the suit property at all."

3. The learned counsellor the petitioner contends that the property was not an evacuee property in view of Section 3 of the Displaced Person Rehabilitation and Compensation Act, 1975 and the same vest in the Central Government and after the repeal of the Evacuee Law, the property was transferred to Government of Pakistan, therefore, the Civil Court has the jurisdiction to pass the decree for partition. Further contends that the findings of the Courts below that the property is not joint between the parties and the same has also been partitioned, is result of complete mis­reading of evidence.

4. Conversely, the learned counsel for the respondents contends that the property had been transferred with specific boundaries separately by the Settlement Authorities in favour of the parties. Respondent No. 16 has purchased the same through registered sale-deed a specific boundary. Paramount title of Respondent No. 16 acquired through registered sale has not been challenged by the petitioner in the suit, therefore, according to him the suit for possession through partition was not maintainable.

5. According to the transfer deed Ex. P. 1 Plot No. 1/71 measuring one Maria and 153 sq. ft. has been transferred in the name of Raja Muhammad Afzal son of Raja Khushi Muhammad which he purchased through open auction and bid was confirmed in his name. Ex. P. 3 is the site- plan signed by the Deputy Settlement Commissioner Gujrat shows that the petitioner was transferred 35x 10 sq. ft. of plot which the specific boundaries, Combined reading of site-plan Ex. P.

6. and Ex. P. 3. would show the separate dimention and portion of petitioner Muhammad Afzal and the Respondents Nos. 1 to 15, alongwith portion which was claimed by Zulifqar. Ex. P. 7 is the PTD in favour of the petitioner. According to the T.O. Ex. D. 2 Plot No. 1/71 measuring 6 Mariasand 141 sq. ft. has been transferred to the respondents. The Deputy Settlement Commissioner vide his order dated 17.4.1978 Ex. D. 3 transferred the same in favour of the respondents, who further sold it to the Respondent No. 16 on the basis of the registered sale- deed Ex. D. 1. The boundaries have been given in the sale-deed dated 22.1.1987 on the basis of the above stated document, both the Courts were right in saying that the property has been partitioned and the parties are not the joint owners of the suit property. Unity of title and unity of possession is condition precedent for bringing a suit for possession through partition. In the case reported as Syed Mohsin Raza Bukhari and 4 others vs. Syed AzraZenab Bukhari (1993 CLC 31), it has been held that.

It is well settled that the necessary condition for a suit for partition are; first; that there must be unity of title; and, secondly, there must be unity of possession.

Unity of title and unity of possession must exist between the parties impleaded in the suit for partition qua the property sought to be partitioned. If any one impleaded in the suit claims a paramount title in the property, obviously he is negating unity of title and as such the plea falls outside the scope of a partition suit."

1. There is concurrent finding of fact against the petitioner on the basis of evidence recorded by the competent Court of jurisdiction; which cannot be interferred in exercise of the revisional jurisdiction of this Court under Section 115 CPC. -

Resultantly, this civil revision fails and is dismissed with costs. (A.A) Revision dismissed.

PLJ 2003 Lahore 128

Present: M.A. SHAHID SlDDIQUI, J. GHULAM HAIDER-Appelalnt

versus

ZAFAR-ULLAH KHAN--Respondent R.F.A. No. 348 of 1995, heard on 6.9.2002

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

—0. XXXVII, Rr. 2 & 3 & S. 96--Suit for recovery of loan amount on the basis of Promissory Note dismissed by Trial Court-Legality-Plaintiffs son while appearing as a witness mentioned names of certain persons who were present at the time of execution of Promissory Note-Other witnesses produced by plaintiff made contradictory statement in so much as, that one of witness omitted to mention persons in whose presence Promissory Note was executed while remaining witness denied passing of money in their presence-Plaintiffs evidence being patently inconsistent was rightly disbelieved-Other issues being of no consequence-Trial Court had rightly omitted to give its finding thereon-No case was made out for interference. [Pp. 129 & 130] A

Mr. Zahid Hussain Khan, Advocate for Appellant. CM. LatifRawn, Advocate for Respondent. Date of hearing: 6.9.2002.

judgment

This appeal arises out of a suit for the recovery of Rs. 1,00,000/- filed by Ghulam Haider, plaintiff/appellant under Order XXXVII C.P.C against Zafar Ullah Khan, respondent on the basis of a promissory note and an agreement allegedly executed by the defendant on 18.8.1992. Zafar Ullah Khan defendant after obtaining leave to defend the. suit filed a written statement in which he refuted the claim of the plaintiff and raised a number of preliminary objection. On the basis of the pleadings of the parties the learned trial Court framed the following issues:-

1. Whether the plaintiff has no cause of action? OPD.

2. Whether the plaintiff has not come to the Court with clean hands and does not deserve any relief? OPD.

3. Whether the suit is based on malafide! OPD.

4. Whether the suit is time-barred? OPD.

5. Whether the plaintiff is entitled to a decree for a sum of rupees one lac. On the basis of pronote in question? OPP.

6. Whether the pronote in without consideration? OPD.

7. Relief.

The learned trial Court after taking into consideration the evidence brought on the record came to the conclusion that the plaintiff failed to prove that the promissory note was with consideration. Accordingly Issue No. 6 has been decided in favour of the defendant and against the plaintiff. Consequently the suit has been dismissed.

1. Learned counsel for the appellant contended that the defendant in his application for leave to defend the suit had not denied the execution of the promissory note specifically as such the execution of the documents would be deemed to have been admitted which is otherwise established from the statements of Ajmal Khan (PW-3) the scribe and the two marginal witnesses Muhammad Hussain (P.W. 2 and Manzoor Elahi (P.W. 4). He also argued that the learned trial Court has omitted to give findings on Issues Nos. 1 to 4. Therefore, the case may be remitted to the trial Court for recording separate findings and deciding the case afresh.

2. Learned counsel for the respondent contended that the plaintiffs evidence in regard to the payment of consideration is inconsistent as such the finding of the learned trial Court on Issue No. 6 needs no interference and the omission to record finding on the remaining issues is of no consequence.

3. I have made re-appraisal of the plaintiffs evidence. Javed Akhtar being the son as well as the attorney of Ghulam Haider plaintiff appeared in the witness-box as P.W. 1. He deposed that the defendants borrowed a sum of Rs. 100,000/- for his business from his father on 18th August, 1990 and executed a pro-note Ex. P.B. and agreement Ex. P. B which was drawn by Azmat petition-writer. In cross-examination he stated that the defendant obtained Rs. 1,00,000/- from his father in his presence before Azmat P.W and at that time Muhammad Hussain, Manzoor Elahi, his brother Farooq were also present. Muhammad Hussain (P.W. 2) deposed about the execution of Ex. P.B. and Ex. P.C. but omitted to mention the presence of Javaid Akhtar (P.W. 1) at the relevant time. Azmat Khan P.W. 3 and Manzoor Elahi (P.W. 4) to the extent of the execution of the documents. He categorically denied the passing of money in their presence. Thus the plaintiffs evidence being patently inconsistent has been rightly disbelieved.

4. Learned counsel for the respondent has rightly argued that the omission of the trial Court to record finding on other issues is of no consequence. Therefore, it would be futile to remand the case back to the trial Court. There is no substance in this appeal. Accordingly it is dismissed. ( A.A) Appeal dismissed.

PLJ 2003 Lahore 130

Present: ijaz ahmad chaudhary, J.

SHAHID WAQAS TRADERS through its PARTNER-Petitioner

versus

PAKISTAN AGRICULTURAL STORATE & SERVICES CORPORATION

LTD. LAHORE through its MANAGING DIRECTOR

and 4 others-Respondents

W.P. No. 13858 of 2002, decided on 29.8.2002. (i) Contract Act, 1872 (IX of 1872)--

—-S. 2(h)--Constitution of Pakistan (1973), Art. 199-Petitioner claiming grant of contract in question in his favour on ground that he being highest bidder was entitled to the same--Record indicated that during negotiations petitioner was not highest bidder-Petitioner's offer was lesser than respondents to whom contract had been awarded-Petitioners claim that he being highest bidder was entitled to contract in question was, thus, not established. [P. 136] A & B

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

—-S. 2(h)-Constitution of Pakistan (1973), Art. 199-Petitioner claiming entitlement to grant of contract--Respondents being highest bidders of contract in question was granted to them on the basis of negotiations in which petitioner also participated-Petitioner in his writ petition had concealed facts-Respondens had given undertaking in Court through their counsel that despite being highest bidders they would further enhanced rate at Rs. 100/- per M/tons over and above in rate settled between official respondent and contracting respondents-Petitioner being not entitled to grant of contract, his writ petition was dismissed being out maintainable. [P. 137] C

PLD .1994 Lahore 315; 1998 SCMR 2268; PLD 1973 SC 733; AIR 1988 SC 157; 2000 CLC 535; PLJ 1983 Lahore 43 and PLD 2001 SG 116 ref.

Mr. Muhammad Shahzad Shaukat and Sardar Tariq Mehmood, Advocates for Petitioner.

Mr. Muhammad Akram Khawaja, Advocate for Respondents 1 to 3. Kh. Saeed-uz-Zafar and Sh. Abdul Manan, Advocates for Respondent No. 5.

Mr. Muhammad Iqbal Akhtar and M. Nawaz Awan, Advocates for Respondent No. 4.

Date of hearing: 29.8.2002.

order

Through this petition under Article 199 of the. Constitution of Islamic Republic of Pakistan, 1973 a direction is being sought to be issued to Respondents 1 to 3 to process the tenders of all the parties strictly in accordance with the terms and conditions stipulated by them and processed in a transparent manner justly, fairly and without any discrimination. It is also prayed that the contract be granted in favour of the petitioner.

1. Brief facts of this petition are that Respondent No. 1 through Respondent No. 2 invited the tenders for the sale of 92,428 metric tons of wheat through an advertisement published in different newspapers. Petitioner also opened the tender alongwith other parties. The necessary conditions of the tender were as follows:-

(?) Bids will be received in HQ PASSCO (Commercial Wing) not later than 1100 hours on 20.7.02 and-will be opened in the Committee Room the same date at 1130 hours in the presence of the tenders or their representatives who may like to be present.

(ii) Tender bids must be accompanied with a Bid Bond in the form of Bank Draft/Call Deposit drawn on any scheduled bank at Lahore in favour of PASSCO, Lahore equivalent to 1% of the tendered value of the stock. Cash/cheques or bank guarantee will not be acceptable as Bid Bond.

(iii) Rate will be quoted for a unit of per metric ton wheat with bag Ex.-storage Points. Loading charges will be borne by the buyer. Bidder shall quote rate for the entire lot of wheat at each zone/group of zones (details at schedule-I).

(iv) The tenderer may bid for any quantity but the stocks at each zone are indivisible and will have to be lifted as such by the buyer.

The petitioner also submitted the tender and quoted rate of Rs. 6277/- per metric ton and deposited a call deposit of 1% amounting to Rs. 66,55,000/-. According to the petitioner he was the sole bidder and nobody matched the price quoted by him while Respondent No. 2 started creating hinderance in the way of the petitioner. Resultantiy various other persons who had not submitted their tenders were treated with preference. Petitioner came to know that the following firms gave the tender by.quoting the below rates:

Zone Name of person/firm Rate per M.T

Khanewal Afaz Associates .(Respondent

No. 4 Rs. 7010/-

Alipur Yousaf Brothers (Respondent 6700/-

Layyah No. 5)

Bahawalnagar -do- 6700/-

Burewala. -do- 7070/-

Sahiwal. -do- 6950/-

Multan/Vehari. Mashaallah Traders Karachi. 7120/-

1. Learned counsel for the petitioner contends, that Respondents Nos. 4 and 5 were not qualified and their bids have been wrongly accepted by the respondents as Respondent No. 4 had not filed the tender for Khanewal Zone and he was bidder of 1 centre of Pakpattan Sahiwal Zone and not the whole Zone of Sahiwal, who quoted the rate of Rs. 6771/- per metric ton but he has been awarded the contract of Zone Khanewal. Respondents Nos. 4 and 5 also gave partial tenders and having not fulfilled the conditions mentioned in the tender were not qualified but the Respondents Nos. 2 and 3 have also granted the tender to the said respondents. It is contended that this position is accepted by the Respondents Nos. 2 and 3 in their report and parawise comments through statement attached as Annexure-R. Afaq Associates respondent had given the tender only for Sahiwal of Rs. 6,7707-. It finds mentioned in the column of Remarks against said party that rate quoted is for only 5,161,400 M/tons of Pakpattan godowns only. Similarly Respondent No. 5 Muhammad Yousaf did not gave the tender for all the Zones and only had offered the bid for Multan-Vehari and Alipur-Layyah of Rs. 6110/- and 6115 respectively arid in the Remarks it has been mentioned that out; of Vehari Zone only Jehanian had been selected by Respondent No. 5 for the purpose of tender. Similarly Fatehpur and Jatoi were selected by him and he had not offered the purchase of wheat for the Zone as was the condition in the tender form. It is contended that the respondents in order to give favour to the Respondents 4 and 5 started negotiations and the comparative statement after the negotiation was prepared which is Annexure-R4 attached with the comments of Respondents Nos. 1 to 3 and Afaq Associates offered Rs. 6,800/- for Sahiwal Zone only and in the column of Remarks it has been mentioned that they are ready to lift the whole stock of Sahiwal Zone at the above said price but thy requested for extension of time to deposit the balance earnest money/amount. Similarly Respondent No. 5 also offered lifting of wheat from Sahiwal, B/Nagar, Alipur-Layyah and Burewala on different rates and earnest money of this party was also less than the required amount. It is contended that letter dated 27.7.2002 in favour of Afaq Associates is anti-dated and got issued with malafide intention by the Respondent No. 2 as the comparative statement which is annexure-R-4 shows the different situation but the letter referred as R-5 shows that negotiations were held on 20.7.2002 and the bids of Afaq Associates were accepted for Khanewal Zone at the rate of Rs. 7010 per M/ton inspite of the fact that Afaq Associate had never offered for lifting the wheat for the said Zone. Letter dated 29.7.2002 which is part of parawise comments and report of Respondents Nos. 1 to 3 as Annexure-R7 shows that the negotiation was conducted with Respondent No. 5 on 20.7.2002 and 29.7.2002 and this letter has been issued by approving the sale of Rs. 20,598 y M/tons as Sahiwal Zone. It is contended that this letter shows that the negotiation remained continued with Respondents Nos. 4 and 5 till 29.7.2002. It is further contended that the petitioner addressed a letter to Respondents Nos. 1 to 3 and offered the price which was higher than that of Respondents Nos. 4 and & Respondents Nos. 1 to 3 had not entertained this application with malafide intention and with ulterior motive. Respondents had mentioned that the negotiations had already been concluded and no negotiation can be held. The main contention of the learned counsel for the petitioner is that if the negotiations continued till 29.7.2002, the mentioning of the fact that the negotiation had already been concluded itself shows the malafides on the part of the Respondents Nos. 1 to 3. He further contends that in the parawise comments and report submitted by the Respondents Nos. 1 to 3 para 4 of the petition is admitted hence they admitted that the 1% earnest money was deficient to the extent of Respondents Nos. 4 and 5 but even then the bid was given in favour of such respondents who were not qualified for the same. Also relied upon para 9 of the written statement of Respondent No. 4 according to which Afaq Associate, Munir Mahar and Suresh Kumar entered into an oral partnership under the name and style of Afaq Associates and revised bids were offered by this partnership. Subsequently a partnership deed was also executed. The amounts already deposited by M/s. Munir Mahar and Suresh Kumar were adjusted towards

-V- the earnest money/bid bond. Also relied the agreement which is at page 8 of their written statement dated 21.7.2002. It is also contended that the agreement at page 11 finds mentioned that the conditions of this agreement will be read alongwith contents of the authority letter dated 2.8.2002. The main contention is that when the agreement was executed on 31.7.2002 the authority letter issued on 2.8.2002 how is applicable in the earlier agreement and it is crystal clear that this agreement has been manoeuvred

subsequently to cover up illegalities committed by the Respondents Nos. 2 and 3. According to this agreement Afaq Associate had not spent even a single penny and will get the profit of Rs. 30% of the total profits. It is contended that the bid has not been given in a legal manner by the respondents and documents are sufficient to prove that respondents had acted in a haste and not granted the bid after due care and caution. It is further contended that the stay order was granted by this Court on 12.8.2002 with the condition that the petitioner will deposit 70 lacs with the Respondent No. 2. According to the petitioner this pay order was prepared on 15.8.2002 and was submitted in the office of Respondent No. 2 on 16.8.2002 at 9.15 a.m. butinspite of this order lifting of wheat was not stayed by Respondent No. 2 and order was passed in this respect on 17.8.2002. He relied upon the following judgments:

PLD 1994 Lahore 315

1998 SCMR 2268

PLD 1973 S.C. 733

AIR 1988 S.C. 157

and re-affirms the earlier offer made by him on 12.8.2002 for payment of excess amount of Rs. 2 crore to the Respondent No. 2 for lifting of the wheat over and above the rates on which contract issued to the Respondents Nos. 4 and 5.

1. On the other hand learned counsel appearing on behalf of Respondent No. 4 contends that the writ petitioner has concealed the true facts and writ petition is liable to be dismissed on this ground alone. It is contended that document R-l attached with the parawise comments and report of Respondent No. 2 shows that writ petitioner was asked to join the negotiation on 23.7.2002 at 11 hours on the said date. On 24.7.2002, the petitioner offered price of per M/Tons at the rate of Rs. 6417.70. Note has been given by him that this bid will be executable only if the wheat lifting contract is given of all the Zones to him. This matter has not been mentioned in the writ petition. It is contended that as far as the shortage, which is claimed, in the deposit of the security is concerned that was due to the enhancement of the rates through negotiations hence after the settlement of the .total amount the securities or the amount could only have to be deposited. It is further contended that maximum rate wais offered by Respondent No. 4 and Respondents Nos. 4 and 5 have already lifted 10% wheat as contract had been acted upon and it has become past and closed transaction. It is further contended that this Court can only interfere while exercising jurisdiction under Article 199 of the Constitution if malafides or dishonestly is mentioned anywhere in the writ petition. The petitioner who himself joined in the negotiation proceedings is estopped to allege malafides as he himself participated in the negotiations. It is contended that once he had participated he cannot back out and claim the setting aside of the negotiation proceedings. He relied upon the following judgments:

2000 CLC 535

PLJ 1983 Lahore 43.

As he himself has availed chance in the proceedings by participating earlier, opportunity cannot be allowed to raise objection on this ground. As far as acting upon of the contract, he relied upon 1998 CLC 1890, relevant portion is at page 1097. It is also contended that Supreme Court of Pakistan in case reported in PLD 2001 S.C. 116 has held that concluded contracts should not

be interferred by the Court in the public interest and interferring by the Court shall shatter the confidence of the general public and nobody will be ready to take contract from the Govt. functionaries under the apprehension of interference.

1. Learned Senior Counsel S.A. Manan Advocate for Respondent No. 5 has also addressed the arguments with the permission of this Court and has contended that the prayer made cannot be granted to the petitioner as the contract was awarded to the Respondents Nos. 4 and 5 and has been acted upon and the petition has become infructuous. It is also contended that total quantity 83500 M/Tons including Khanewal has been given out to Respondents Nos. 4 and 5 and already Respondent No. 4 has enhanced the

rate from the original bid to the tune of Rs. 3193983/-hence the writ petition

is liable to be dismissed as though this Court has wide powers in the

Constitutional jurisdiction but the .Supreme Court has laid down certain

principles in 1994 SCMR 55 and the interference of this Court is subject to

jurisdictional defect or patent illegality.

1. Learned counsel for Respondents Nos. 1 to 3 has denied the allegations that inspite of the receipt of the notice the' wheat was allowed to be lifted till 17.8.2002. It is explained that 16th was Friday and on 17.8.2002 the order was conveyed as the pay order was received after 12.00 noon.

Lastly learned council for Respondents Nos. 4 and 5 has given undertaking as under:

"Learned counsel on instructions in the presence of the

representative of Respondents Nos. 4 and 5 state that they will make a payment to PASSCO at the enhanced rate of Rs. 100 per M/Tons over and above which has been settled between PASSCO and Respondents Nos. 4 and 5 in the final negotiation Respondent No. 2 should extend time for 30 days for the lifting of the wheat."

1. I have given my anxious consideration to the arguments of both the parties and also perused the record with the assistance of their counsel. Petitioner who had participated in the bid was not the highest bidder and also had not offered the lifting of wheat from all the Zones according to

clause 6 of the tender which is reproduced in Para 3 (iii) of the writ petition which is to the following effect:

"Rate will be quoted for a unit of per metric ton wheat with bag Ex-storage Points. Loading charges will be borne by the buyer. Bidder shall quote rate for the entire lot of wheat at each zone/group of zones."

Though the petitioner had offered lifting of the wheat from all the Zones but the other participants had given the higher rates for the purchase of the wheat from different Zones hence the authorities had decided to negotiate with the parties and letter was also addressed to the petitioner dated 20.7.2002 but he offered the maximum price of Rs. 6417/- Per M/tons and it is mentioned at the bottom of the Annexure-R-2 that he is ready and willing to lift the wheat if the contract of all the Zones is given to him and if any of the zone is not given to him, his offer may be rejected. Hence from this letter it is crystal clear that the petitioner himself joined in the negotiations on 24.7.2002 in pursuance of the above said order and gave the offer but the Respondent No. 4 had given the offer of Rs. 6,800/- for lifting of wheat from Sahiwal while Respondent No. 5 had given the offer of Rs. 6,910/6670/6655 and 7070 from Sahiwal, Bahawalnagar, Alipur and Burewala Zones and had already deposited 35 lac twenty thousand. In such circumstances, it is established on the record that during the negotiations the petitioner was not highest bidder in the earlier comparative statement made on 20.7.2002 for all the zones and as a result of the negotiation the rate was enhanced by Respondent No. 4 than offered earlier but the petitioner was not highest bidder He offered Rs. 6417 while the other offered enhanced rate than the petitioners of per M/tons hence the Respondents Nos. 1 to 3 had opted to sell the wheat by entering contract with Respondents Nos. 4 and 5. In such

circumstances it seems that they have not acted against the interest of the public exchequer and PASSCO but tried their best to get lifting of wheat on he highest rate but subsequently some petition was filed by the petitioner on 30.7.2002 in which he did not make the offer that he is ready and willing to purchase the wheat by putting more amount of Rs. 2 crore than the Respondents Nos. 4 and 5. In such circumstances offer was not made on 1.8.2002 and when this petition came for hearing for first time this offer had been made by the petitioner on 12.8.2002, who was directed to deposit Rs. 70 lac and this Court restrained Respondents Nos. 4 and 5 from lifting the wheat. In the circumstances the contention raised by the petitioner that hew as highest bidder and was ready and wiling to pay the highest rates then the Respondents Nos. 4 and 5 is not established on the record. The other contention that the petitioner had not joined the negotiations is not borne out from the record which is placed alongwith the parawise comments and report filed by the Respondents Nos. 1 to 3. The fact otherwise, rather the petitioner joined in the negotiations and had participated actively but his offer was not accepted as it was conditional and also on the lessor rate then 3 Respondents Nos. 4 and 5.1 agree with the learned caunsel for Respondents Nos. 4 and 5 after perusal of the documents that the agreement had been arrived at between Respondents Nos. 1 to 3 and Respondents Nos. 4 and 5 and some portion of the contract has already been acted upon. Learned

counsel for the petitioner had failed to counter the case law cited by learned counsel for Respondent No. 5 reported in PLD 2001 S.C. 116, the relevant portion is at page 127, which is reproduced as under:

"We would conclude the above discussion with the observations that the impugned judgment is not sustainable as the administrative decision challenged by the respondent neither lacks transparency nor is tainted with malafide or is unfair, unjust or unreasonable or based on bias of favouritism and the discretion vested in the Pakistan Railways having been properly structured by reference to objective standards cannot be said to have been exercised arbitrarily.

The public interest would be best served if the concluded contracts in question are preserved."

Following this dictum the contracts cannot be set-aside on suspicion alone unless the illegalities or mal-practices are available from the record. There is not visible from the record anything, rather the petitioner has concealed certain facts i.e. negotiation held between him and Respondents Nos. 1 to 3 subsequent to the preparation of comparative statement after obtaining bids. Even otherwise learned counsel appearing on behalf of Respondents Nos. 4 and 5, on instructions, have given undertaking that the Respondents Nos. 4 and 5 will pay at the enhanced rate of Rs. 100 per M/tons over and above which has been settled between PASSCO and Respondents Nos. 4 and 5 in the final negotiation. It is, however, observed that Respondent No. 2 can extend time for 30 days for the lifting of the wheat from today.

Due to the above reasons I do not feel the necessity of interfering in the contract already awarded to the Respondents Nos. 4 and 5 for the lifting of the wheat. However, the Respondents Nos. 4 and 5 are bound to make the payment of the wheat according to the final settlement with the Respondents Nos. 1 to 3 with an enhanced rate of Rs. 100 per M/tons. Respondents Nos. 1 to 3 shall ensure that not only the settled amount between them but the enhanced amotint undertaking of which has been given by Respondents Nos. 4 and 5 today is also received by it before the lifting of the total wheat. The other reason for the non-interference in the awarding of contract is also that wheat may be wasted in the rainy season if is not lifted and can cause huge loss to the public exchequer in this manner as well. Draft. pay order deposited by the petitioner amounting to Rs. 70 lacs will be handed over to the petitioner immediately after the receipt of this order.

For the reasons mentioned above I do not want to exercise my powers under Article 199 of the Constitution. This petition is dismissed.

(A.A) Petition dismissed.

PLJ 2003 Lahore 137

[Multan Bench Multan]

Present: FARRUKH LATEEF, J.

KHAN MUHAMMAD-Petitioner

versus

GOVERNMENT OF PAKISTAN, MINISTRY OF MINORITIES AFFAIRS etc.-Respondents

W.P. No. 7114 of 2002, decided on 2.9.2002: (i) Constitution of Pakistan, 1973--

—-Art. 199--West Pakistan Land Revenue Act, 1967 (XVII of 1967), S. 164-Dismissal of application for restoration of revision for non-prosecution assailed-Reasons mentioned in impugned order for non-prosecution, as well as for dismissing application for restoration of revision petition were plausible-Member Board of Revenue, had jurisdiction to pass impugned order, therefore,same cannot be deemed to have been passed by him without lawful authority-Merits of revision petition were not required to be gone into and discussed in application for restoration. [P. 139] A

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 164-Constitution of Pakistan (1973), Art. 199-Petitioner did not appear on date fixed for hearing of restoration application—Impugned order was passed after hearing arguments and perusing record-- Impugned order was entirely reasonable and same was not a case of illegal assumption of jurisdiction-Impunged order cannot be deemed to have been passed without lawful authority—Writ petition being without merit was_not maintainable. [P. 139] B

Ch. Muhammad Saleem Iqbal, Advocate for Petitioner. Date of hearing: 2.9.2002.

order

The petitioner is aggrieved of order dated 20.7.2002 passed by Respondent No. 1, whereby he rejected the petitioner's application for restoration of his revision petition which was dismissed for non-prosecution.

1. Facts necessary for the disposal of this writ petition are that 27 acres of agricultural land belonging to Evacuee Trust Board was on lease with the petitioner. The said lease was cancelled by Respondent No. 3, videorder dated 15.12.1996 (Annex-A). Appeal against that order filed by the petitioner was dismissed by Respondent No. 2, on 11.9.2000 (Annex-B). Revision against that order was dismissed due to non-prosecution by Respondent No. 1, vide order dated 31.3.2001 (Annex-C).

2. Petitioners application for restoration of the said revision petition was also dismissed by Respondent No. 1 vide order dated 20.7.2002 (Annex-D).

3. The said order (Annex-D) is called in question in this Constitutional petition as without lawful authority and of no legal effect with the prayer that it be declared as such with a further declaration that the petitioner is entitled to the grant of lease in respect of the said land.

4. It is argued by the learned counsel for the petitioner that the impugned order was passed without going into the merits of the case and without hearing the petitioner hence for the said reasons it is illegal and was, therefore, passed without lawful authority.

5. A perusal of the impugned order shows that the revision petition was fixed four times but on every date it was adjourned on the request of the petitioner for providing correct Khasra Gardawari in his name but he failed to do the needful, whereupon a notice was issued intimating him that the date of hearing in the revision was fixed as 31.3.2001. Inspite of personal service the petitioner did not bother to appear on that date nor cared to send any application for adjournment on account of which the revision petition was dismissed for non-prosecution.

6. The impugned order further reveals that the petitioner was also absent before the Court on the date which was fixed for hearing of his application for restoration.

7. Reasons mentioned in the impugned order for dismissing the revision petition for non-prosecution as well as for dismissing the application for restoration of the revision petition are plausible. Member Board of Revenue, obviously had jurisdiction to pass the impugned order, hence it cannot be deemed to have been passed by him without lawful authority on account of the fact that merits of the revision petition were not discussed therein. Merits of the case Le.revision petition were not required to be gone into and discussed in the application for restoration. The only point which required consideration in that petition was if there were good grounds for the restoration of the revision petition.

8. The petitioner did not appear on the date which was fixed for hearing of the restoration petition. Had he been present he would have been definitely heard. It is not alleged that the petitioner was not aware about that date. His son-was admittedly present on the said date on his behalf and the respondents were represented by their counsel.

9. The impugned order was passed after hearing the arguments and perusing the record.

10. It is not a case of illegal assumption of jurisdiction, the impugned order is entirely reasonable; MBR had the jurisdiction to pass the said order hence it cannot be deemed to have been passed without lawful authority.

For the reasons stated above, writ petition is without any merit, it is accordingly dismissed in limine.

(A.P.) Petition dismissed.

PLJ 2003 Lahore 139

Present: jawwad S. KHAWAJA, J. LAL BADSHAH-Petitioner

versus

MAHBOOB SHAH-Respondent C.R. No. 1937 of 1998, heard on 10.7.2002.

(i) Civil Procedure Code, 1908 (V of 1980)--

—-S. 115-Inference drawn by Trial Court was entirely justified on the basis of evidence on record-Appellate Court misapplied law by concluding that such inference was not legally permissible-Impugned judgment and decree was set aside while that of Trial Court was restored. [P. 141] C

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—S. 13--Suit for pre-emption-Fulfilment of talbs assailed-Plaintiff s son had identified parties as Sarbrah Lumbardar and participated in public assembly on 30.5.1995 at which sale become public knowledge-Plaintiff claim that he came to know of sale on 18.6.1995 as alleged in plaint was thus, neither credible nor warranted-Possession of land was delivered to defendant on 30.5.1995 and such fact had been recorded in proceedings of public assembly, which circumstance was sufficient to show that' petitioner had knowledge of sale transaction prior to date alleged by him-Talb-e-muwathibat was, thus, not made by plaintiff in timely manner.

[Pp. 140 & 141] A

(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—S. 13-Talb-i~Ishhad has to be fulfilled within maximum period of two weeks-Talb-i-Muwathibatbeing not fulfilled in time, delay of 8 days between making of talb-i-muwathibat and notice of talb-i-Ishhad was not justifiable. . [P. 141] B

Malik MunsifAwan, Advocate for Petitioner. Mr.M. Zubair SaeedAwan, Advocate for Respondent. Date of hearing: 10.7.2002.

judgment

This revision petition impugns the judgment and decree dated 28-10-1998 passed by the learned District Judge, Mianwali, in appeal. By means of the impugned judgment and decree, the decree passed by the learned trial Court on 27.2.1997 was set aside and as a consequence, the suit of the respondent/plaintiff was decreed.

1. The facts of this case are straightforward. The respondent filed a suit to pre-empt a sale recorded in Mutation No, 3118 dated 15-6-1995. Although the learned trial Court framed as many as 12 issues, the only issue in contention before me and before the lower appellate Court, was Issue No. 8 relating to talabs. The said issue was framed as follows:-

"Whether the plaintiff has fulfilled the requisites of Talabs according to law? OPP."

1. The evidence on record shows that the son of the respondent/ plaintiff, namely, Ashiq Hussain Shah identified the parties at the public assembly at which the impugned sale was recorded on the basis of statements made by the parties. This was done on 30-5-1995. There is other evidence on record to show that the respondent/plaintiff was aware of the sale transaction and had, in fact, not objected to the sale. It is not denied on behalf of the respondent/plaintiff that his son Ashiq Hussain Shah, in fact, identified the parties as Sarbrah Lumberdar and participated in the public assembly on 30-5-1995 at which the sale became public knowledge. In these circumstances, it is not credible that the plaintiff came to know of the sale on 18-6-1995 as alleged in the plaint. Another important aspect of the matter is that possession of the land was delivered to the petitioner/defendant prior to 30-5-1995 as this fact has been recorded in the proceedings of the public assembly, referred to above. This circumstance also was sufficient to show that the petitioner had knowledge of the sale transaction prior to the date alleged by him. In these circumstances, it is clear that talb-e-muwathibat was not made by the respondent/plaintiff in a timely manner.

2. In addition to the above, the learned trial Court rightly held that the two-week period allowed for making talb-e-ishhad was the maximum time allowed for making the said talab.There was, as such, no justification for the delay of 8 days between the making of talb-e-muwathibat and the notice of talb^e-iskhad which was issued on 26.6.1995.

3. The above circumstances have not been properly taken into account by the learned lower appellate Court. It was held by the learned District Judge that the mere fact the plaintiffs son participated in the public assembly as Sarbrah Lumberdar to identify the parties, did not, by itself, constitute evidence that the respondent/plaintiff had become aware of the sale on 30-5-1995. According to the learned District Judge, direct evidence of the factum of knowledge was required to be produced on record. This finding, in my opinion, is not well founded. The Court is entitled to infer facts from circumstances where there is no direct evidence. The record of this case shows that the inference drawn by the learned trial Court was entirely justified on the basis of the evidence on record. The learned lower appellate Court has, in fact, mis applied the law by concluding that such inference was not legally permissible.

4. In view of the above discussion, the impugned judgment and decree dated 28-10-1998 are set aside. As a consequence, the judgment and decree dated 27-2-1997 passed by the learned trial Court stand restored.

(A.A) Revision accepted.

PLJ 2003 Lahore 141

Present: I-JAZ AHMAD CHAUDHARY,J

ABDUL HAMEED KHALID-Petitioner

versus

GOVERNMENT OF THE PUNJAB through HOME SECRETARY CIVIL SECRETARIATE, LAHORE and another-Respondents

W.P. No. 13790 of 2002, decided on 26.8.2002.

(i) Constitution of Pakistan, 1973--

—-Art. 199-Detention of petitioner on apprehension of S.H.O. that he intended to paralyze District Administration on specified day assailed-In support of apprehension of S.H.O. in his report no document had been produced to show that any action was ever taken by petitioner in order to enlarger public peace and tranquility-Report in question, was earlier than illegal detention by said S.HO. for about 5 days when petitioner was released by Sessions Judge on submission of application under S. 491 Cr.P.C.-Subsequent arrest and detention might be counter blast to release of petitioner by Court-Detention of petitioner being without any tangible material was declared to be illegal. [P. 144] A

(ii) Constitution of Pakistan, 1973--

—-Art. 199-Detention of petitioner assailed-Detention of petitioner without sufficient evidence on report of same agency was not warranted-Earlier, many cases had been registered against petitioner and he was acquitted by Court of competent Jurisdiction-In a same pending against petitioner complainant had submitted affidavit to the effect that petitioner was not at the place of occurrence when offence in question, was being committed-Such case alone cannot be made basis for detaining petitioner therefore, same was declared to be coram-non-judice. [Pp. 144 & 145] B, C

1995 PCr. L.J. 587 and PLD 1997 Pesh. 148 ref.

Malik Noor Muhammad Awan, Advocate for Petitioner. Mr, Muhammad Shan Gul, Advocate for A.G. Date of hearing: 26.8.2002.

order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan^ 1973, the petitioner has challenged the detention order dated 24.7.2002 passed by Home Secretary, Government of Punjab. The petitioner claimed that he is a religious person and is M.A. Islamiat, who is running a Midrisa Arabia Siddiquia and was one president of Sipah-e-Sahabah. This religious organization has been banned by the Government, The petitioner was arrested by the police on 18.7.2002 while he was teaching in the said Midrissa. It is alleged that no reason was given for his arrest. He.was kept in illegal custody till 23.7,2002, when he was released by the learned Sessions Judge from the custody of SHO. At this the SHO allegedly became annoyed as it was found that the arrest of petitioner was without any entry and without any order of detention. This act of father of the petitioner had nourished grudge in mind the SHO and the petitioner was directed to be detained through the impugned order on recommendation of SHO concerned.

1. The learned counsel for petitioner contends that this detention order has been passed only for the reason that father of petitioner moved an application to the learned Sessions Judge for release of the petitioner, who was detained illegally. The learned counsel further contends that in order to teach a lesson to the petitioner and his father bogus reports had been prepared by SHO, which were submitted to the Home Secretary, who without applying its mind has passed impugned order without assigning any reason for keeping the petitioner in detention. According to the learned counsel the grounds convassedare insufficient to maintain the detention of the petitioner and his detention is liable to be set aside as the petitioner was not involved in any illegal activities prejudicial to the peace and tranquility. It is also stated that the previously cases were registered against the petitioner, but he was falsely involved in them and the period in which those cases were registered against the petitioner is from, 1987 to 1997. It is further contended that in all the cases the petitioner%as not alleged to have caused any violence or hurt to any body, but were of minor offences. It is also claimed that the petitioner has been acquitted from all the cases expect one case F.I.R. No. 174/2001 under Section 353/186/148/149/337-L (2), 337-L (ii) PPC registered at Police Station Darya Khan, and even the complainant of this case has also sworn an affidavit that the petitioner was not found present at the time of occurrence at Railway Station. It is prayed that the petition may be accepted and the impugned order of detention, be set aside.

2. On the other hand, the learned counsel appearing on behalf of Advocate General Mr. Muhammad Shan Gul, Advocate, has opposed this petition on the ground that the decision of the Home Department is based on the reports submitted by the Police Officers and Report No. 40 dated 23.2.2002 Report No. 16 dated 13.10.2001 and Report No. 32 dated 13.10.2001 besides involvement of the petitioner in number of cases and his being President of Sapah-e-Sahaba. a banned organisation provides sufficient reasons for detention of the petitioner. It is also contended that the said organisation has been banned in order to restrict its illegal activities and < there is apprehension of revival of illegal activities by active members of the said organisation. According to the learned counsel it will be in the interest of public peace and tranquility that the petitioner be kept behind the bars.

3. I have heard the arguments of both the learned counsel for parties and perused the material produced by the Home department. According to the Report No. 40 dated 23.2.2002, which was made by Nehmat Ullah, Inspector SHO, and he has entered that he had received secret information that the organisation of 'Sapah-e-Sahabcf in leadership of the petitioner had convened a secret meeting and it was mutually agreed that on 28.2.2001 death sentence of Haq Nawaz Jhangwi was to be executed in Mian Wali Jail and the District Administration should be paralysed on 27.2.2001. The other reports are also of similar type. The report dated 13.10.2001 has also been made by Nehmat Ullah, Inspector, SHO. I am not inclined to uphold the detention on the Report No. 40 dated 23.2.2002, which is only an apprehension of SHO, but subsequently this apprehension was found incorrect as no action was taken by the petitioner in order to paralyse the District Administration on 27.2.2001 as no material has been placed on record to show that in pursuance of said secret meeting any terrorist activity has been made by any member of Sapah-i-Sahaba or any suspect was arrested, who had engaged any such activities. Hence in support of apprehension expressed in said report no document has been produced to show that any action was ever taken by the petitioner in order to endanger the public peace and tranquillity. This report is earlier than the illegal detention dated 18.7.2001 by the said SHO for about five days and the petitioner was released on the application of father of petitioner under Section 491 Cr.P.C. before the learned District and Sessions Judge having found his detention illegal and unlawful without any order from competent i authority or from relevant quarter. There is possibility that the father of petitioner who had filed the petition had annoyed the SHO and in order to teach a lesson to the petitioner and his father, the SHO had made a report to the Home Department for detention of the petitioner. It is also contention of the learned Advocate appearing on behalf of A.G. that a list has been prepared after taking information from all secret agencies and the name of petitioner falls at Serial No. 5 of the list pertaining to District Bhakkar therefore it is sufficient to detain the petitioner. If some agency without sufficient evidence has found the petitioner suspicious is not a ground for keeping the petitioner under detention. It is not denied on behalf of the state that in 17 cases registered against the petitioner earlier,, he has been acquitted by the Courts of competent jurisdiction and the Government has not filed any appeal against the acquittal of the petitioner in the said cases. Only case which is yet pending F.I.R. No. 174/2001 has been registered under Section 353/196/148/149/337-L(ii), 337-L (ii) PPG.. The complainant of this case has sworn an affidavit exculpating the petitioner that he was not present at the time of occurrence. Even otherwise, if the petitioner was accused in the said case it does not mean that it is a sufficient ground for his preventive detention. This case alone cannot be made basis for passing the impugned order. No sufficient material has been placed on record by the Home Secretary for maintaining the order of detention of the petitioner. The detention of the petitioner cannot be maintained on the ground that the detention order has been passed against, the petitioner on extraneous ground and it is liable to be declared coram-non-judice.In case Muhammad Ayaz Khan and 6 others vs. The District Magistrate (1995 P.Cr. L.J. 587 (Peshawar) it has specifically held as under:

"We have carefully gone through the material which has been placed before us by the learned Assistant Advocate General Mr. Muhammad Aslam Khan and we are convinced in our mind that the material against the petitioner is vague and general in nature.

It is devoid of any tangible act which could be treated as' "prejudicial to the security of the State or public safety and tranquillity."

It is further held:

"Not ,a single witness had either been cited or examined by the detaining authority to support the allegations made against the accused."

It is also held:

"Detention order appeared to have been recorded by the District Magistrate to frustrate and undo the effect of the bail order passed by the Session Court and thus had an element of bad faith."

In another case Masai Khan vs. District Magistrate (PLD 1997 Peshawar 148) same principle has been highlighted as held in above said case.

1. In view of what has been discussed above, I am of the opinion that the impugned detention order of the petitioner has been passed without any tangible material against him. It is, therefore, declared illegal and coram-non-judice and is set aside, by accepting this writ petition.

(A.A) Petition accepted.

PLJ 2003 Lahore

Present:M.A. shahid siddiqui, J. ZULFIQAR AHMAD-Petitioner

versus

IKHLAQ AHMAD-Respondent C.R. No. 1805-D of 1997, decided on 13.9.2002

Punjab Pre-emption Act, 1991 (IX of 1991)-

—S. 13—Failure to prove notice of Talb-i-Ishhad having been despatched— Effect-Plaintiff in suit for pre-emption was not only required to show that he had despatched something through post but also to prove that postal envelope contained notice and for that purpose plaintiff should have moved application to Trial Court seeking production of original notice and if same had not been produced plaintiff could produce secondary evidence with permission of Court in terms of Arts. 76 & 77 of Qanun-e-Shahadat 1984-Plaintiff having failed to produce original notice, Trial Court did not allow him to get copy of notice proved and exhibited-Plaitniff thus, failed to prove that he had, in fact, despatched notice of talb-I Ishhad Plaintiff suit, thus, merited dismissed. [P. 147] A

Mian Sarfraz ul-Hassan, Advocate for Petitioner. Ch. Muhammad Abdullah, Advocate for Respondent. Date of hearing: 9.7.2002.

judgment

This civil revision arises out of a pre-emption suit filed by the respondent in respect of land measuring 11 Marias, which the petitioner/defendant orally purchased for Rs. 25,000/-. The sale was given effect in the revenue record through Mutation No. 1772, sanctioned on 11.2.1992. The plaintiff/respondent's suit was dismissed on 29.3.1997 by Mr. Sultan Ahmad, Civil Judge, 1st Class, Gujranwala, but on the appeal filed by Ikhlaq Ahmad (plaintiff/respondent) it was decreed by the learned Additional District Judge, Gujranwala, vide judgment and decree dated 22.10.1997. Feeling aggrieved the vendee/defendant has filed the instant petition.

1. According to the averments made in the plaint, the plaintiff came to know about the sale on the very first day i.e. 11.2.1992, when the vendee/defendant asked him to vacate the disputed land as he had purchased the same. The plaintiff alleged that he being owner of property contiguous to the property in dispute on two sides asserted his preferential right and expressed his willingness to purchase the suit land. For this purpose he accompanied by Javed Iqbal and Muhammad Amin approached the defendant on the following day and again set up his claim to pre-empt the sale. On the same day, he sent a notice to the vendee through registered post acknowledgement due. The defendant contested the suit. He denied the plaintiffs right and pleaded that he had not received any notice from the plaintiff. In view of the pleadings of the parties, the learned trial Court framed the following issues:—

ISSUES

1. Whether the plaintiff has no cause of action? OPD.

2. Whether the plaintiff is estopped by his words and conduct to file the above-mentioned suit? OPD.

3. Whether the suit is incorrectly valued for the purposes of Court-fee and jurisdiction? OPD.

4. Whether the plaintiff has superior right qua the defendant? OPP.

5. Relief.

6. After recording the evidence of the parties, the plaintiffs suit was dismissed on 9.1.1996 but the learned appellate Court remitted the case to the learned trial Court to decide an additional issue, which is as under:-

ISSUE No. 4-A.

Whether the plaintiff fulfilled the pre-requisite of filing the suit by complying with the provisions under Section 13 of Pre-emption Act with regard to Talabsl

4.The -learned trial Court found the above issues against the plaintiff and dismissal the suit again on 29.3.1997. The plaintiff challenged the dismissed of his suit by means of an appeal, which was allowed by the learned Additional District Judge, Gujranwala, vide judgment and decree dated 22.10.1997. Hence this revision petition.

1. Learned counsel for the petitioner/defendant has challenged the findings of the learned Additional District Judge, Gujranwala, on Issue No. 4-A. He argued that the plaintiff without establishing Talab-e-Muwatibatand Talab-e-Ishhadin accordance with law cannot enforce his right of pre­ emption. He submitted that mere placing of postal receipt without producing the concerned clerk of the Post Office is not sufficient compliance of Section 13 of the Pre-emption Act. Lastly, he argued that the original notice, which was allegedly received by the vendee, has not been brought on the record and a carbon copy Mark-A has simply been placed on the record without getting in formally proved and exhibited in evidence.

2. Learned counsel for the respondent has supported the judgment mainly on the ground that the acknowledgement receipt (Ex. P. 1) and dispatch register (Ex. P. 2) issues by the Post Office is sufficient to prove that the notice was sent by the plaintiff/respondent, as such the finding of the trial Court on Issue No. 4-A required no interference.

3. I have given anxious consideration to the arguments advanced by the learned counsel for the parties.- The plaintiff is a suit for pre-emption is not only required to show that he had dispatched something through the post but also to- prove that the postal envelope contained notice and for this purpose the plaintiff should have moved an application to the trial Court seeking production of the original notice and if the same had not been produced, the plaintiff could produce secondary evidence but with the permission of the Court as envisaged under Articles 76 and 77 of the Qanun- e-Shahadat Order, 1984. In the instant case, the plaintiff has not bothered to adopt legal procedure to get the original notice produced or lead secondary evidence with the leave of the Court and since the plaintiff has failed to produce the notice, therefore, the learned trial Court did not allow the petitioner to get the notice (Mark-A) proved and exhibited in evidence. In this way, the plaintiff has failed to prove that he had, in fact, dispatched a notice of Talab-e-Ishhad. Consequently, the findings of the learned Additional District Judge, on Issue No. 4-A cannot be maintained. Accordingly, it is set aside. As a consequence, this revision petition is Allowed. The impugned judgment and decree passed by the learned Additional District Judge, Gujranwala, is set aside. The plaintiffs suit stands dismissed.

(A-A) Revision accepted.

PLJ 2003 Lahore 148

Present: mrs. FAKHAR-UN-NlSA khokhar, J. NIAMAT ALI and 3 others-Petitioners

versus Mst. SARDARAN BIBI and 4 others-Respondents

C.R. No. 1321 of 1998, heard on 18.9.2002 (i) Civil Procedure Code, 1908 (V of 1908)--

—S. 12(2)-Re-agitating matter in the same Court, about same land, same parties and same disputed mutations on the pretext that at the time of filing judgment and decree of 1971, provisions of S. 12(2) C.P.C. were not available was not warranted where earlier petition, which was contested, issues were framed, evidence was led by parties and same related to same cause of action, related to same subject-matter and parties, had been dismissed. [P. 149] A

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

—0. VIII, R. 11 & S. 115-Rejection of plaint by appellate Court assailed- Appellate Court while deciding appeal exercises all powers of Trial Court and can decide and reject plaint under O. VII, R. 11 C.P.C. as being barred by law-Fresh suit on same subject-matter relating to same cause >- of action between same parties was barred under 0. VII, R. 11 C.P.C. and same was rightly dealt with by Courts below. [P. 149] B

2000 YLR 1971; 1994 SCMR 826 ref.

Sardar Muhammad Ramzan, Advocate for Petitioners. S. Abid Mumtaz Tirmizi, Advocate for Respondents. Date of hearing: 18.9.2002.

judgment

Brief facts in this Civil Revision are that the petitioners filed a suit v for declaration in respect of agricultural land measuring 124 Kanals. ' Khatooni No. 192, Khasra No. 38 Killa Nos. 15/1, 16, 17, 23, 24, 25 Square No. 40 Killa No. 15 and Square-No. 41 Killa Nos. 3, 4, 5, 7, 8, 9, 11, 12, 13 mauza Dheengar Batt Tehsil and District, Sheikhupura challenging the mutation of Inheritance No. 433 dated 6.10.1968 and decree dated 24.4.1971 and Mutation No. 13. There was a prayer of temporary injunction as well. The application for temporary injunction was dismissed by the learned trial Court vide judgment and decree dated 24.11.1997. The petitioners filed an appeal against the .said judgment in the Court of learned District Judge, Sheikhupura and he vide judgment and decree dated 20.7.1998 dismissed the appeal and also rejected the plaint under Order VII, Rule 11 CPC holding that suit is barred by law.

1. Arguments advanced by learned counsel for the petitioners are that the learned District Judge had no jurisdiction to reject the plaint without framing the issues and hearing the arguments on legal issues; that Section 12(2) CPC was inserted vide Ordinance X of 1980 and the impugned judgment and decree was passed on 24.4.1971, therefore, the said provision of law had no effect retrospectively and application was dismissed on that very ground. The suit of the petitioners was not barred by lav/ but it is fully maintainable under the law. The impugned judgment being passed contrary to facts and law is not sustainable.

2. Learned counsel for the respondents submitted that decree was challenged by filing a petition Under Section 12(2) CPC. He produced certified copy of petition u/S. 12(2) CPC and the decree passed on it. Filing of this petition was admitted before the learned trial Court as well as before the learned . appellate Court, where the petitioners have challenged the ownership possessory rights over the disputed property. He has also challenged the decree dated 24.4.1971. He also challenged the mutation of inheritance and mutation of decree. This petition u/S. 12(2) CPC was contested by the adverse party. Issues were framed and the parties produced their respective evidence and vide judgment and decree dated 23.11.1995 the learned Civil Court dismissed the application u/S. 12(2) CPC. This was instead of challenging the same before the competent forum the instant suit for declaration challenging the decree was filed on 21.3.1996.

4.1 have heard the learned counsel for the parties and have perused the record. This is admitted by the learned counsel for the petitioner that the petitioner filed petition u/S. 12(2) CPC, which was contested, issues were framed, evidence was produced and vide judgment and decree dated 23.11.1995 it was dismissed. The petitioners cannot re-agitate the matter in the same Court about the same disputed land, same parties and same disputed mutations on the pretext that at the time of filing the judgment and decree of 1971 the provisions of Section 12(2) CPC were not available. He himself has exercised his right through filing a petition u/S. 12(2) CPC challenging the judgment and decree in the petition u/S. 12(2) GPC. This was the right legal course adopted by him. "Ghulam Zohra and others vs. Faisal Farooq and others" (2000 YLR 1971) and "Jewan and others vs. Federation of Pakistan" (1994 SCMR 826).

1. The second contention of the petitioners that the learned appellate Court cannot reject the plaint is groundless and is not convincing. The learned appellate Court while deciding the appeal exercises all the powers of the trial Court and can decide and reject the plaint under Order VII, Rule 11 CPC barred by law. Undoubtedly the instant civil suit is barred under Order VII, Rule 11 CPC and the judgment passed by the learned appellate Court is unexceptionable. Civil revision is dismissed being devoid offeree. (A.P.) Revision dismissed.

PLJ 2003 Lahore 150

Present: mrs. fakhar-un-nisa kkokhar, J.

GHULAM MUHAMMAD and 8 others-Petitioners

versus

TOWN COMMITTEE PIPLAN through ASSISTANT COMMISSIONER ADMINISTRATOR DISTT., MIANWALI and 7 others-Respondents

C.R. No. 1930 of 1996, decided on 20.9.2002 (i) Civil Procedure Code, 1908 (V of 1908)--

—0. VII, R. 11 & S. 115-Payment of "Tawaan" for un-authorized occupation of land would not be sufficient to term un-authorized possession of property into permissive possession-Plaintiffs thus, had no cause of action, therefore, their plaint was rightly rejected by Courts below calling for no interference in revisional jurisdiction. [P. 152] D

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

—O. VIII, R. 11--Rejection of plaint-Essentials-For rejection of plaint under O. VII, R. 11 C.P.C., plaint is considered to be true and only facts averred into plaint are to be looked into-Plaintiffs having admitted that property in question, belonged to Housing and Physical Planning ^ Department, that plaintiffs were neither their tenants nor they had applied for rehabilitation to Provincial Government; and that they were paying "tawaan"for encroachment of land, their plaint did not disclose any "Cause of action" and was rightly rejected by Trial Court. [P. 152] C

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

—0. XXXIX Rr. 1 & 2-Interim injunction, grant of-Sufficient grounds, must exist for grant of interim injunction-Cardinal principles to be looked into by Courts are; prima facie, balance of convenience and pronounced or manifest exposure of aggrieved person to irretrievable injury. [P-. 152] A

(iv) Words and Phrases-

—Phrase, "Cause of action" would mean bundle of fact giving rise to a right which plaintiff would have to prove if traversed by defendant. [P. 153] B

1991 MLD 672; PLD 1991 Kar. 365; 1995 CLC 1982 and 1991 CLC 740 ref.

Malik Noor Muhammad Awan, Advocate for Petitioner. Mr. Muhammad ArifCh., Advocate for Respondent No. 1. Ch. Muhammad Azim, Advocate for Respondents Nos. 2, 3. Nemo for Respondents Nos. 4 to 8.

Date of hearing: 17.9.2002.

judgment This be considered as admitted case.

1. Brief facts under this revision petition are that the petitioners filed a suit for declaration challenged a notice that their shops/khokhas on the land in ownership of Housing and Physical Planning Department should not be demolished and notice dated 11.8.1994 is illegal and based on malafidesas the Respondent No. 1 Town Committee has got no jurisdiction or power to demolish these properties. This suit was contested through written statement on behalf of the Town Committee, on the basis that suit being incompetent and for lack of cause of action and that u/S. 121 of the Punjab Local Government Ordinance the defendant Town Committee is authorised to demolish the disputed property. While hearing the application for interim injunction the learned Civil Judge observed that property on which the plaintiffs have raised constructions belonging to the Housing and Physical Planning Department and it is admitted by the plaintiffs as well as their learned counsel that the plaintiffs are in illegal possession of the land belonging to the Housing and Physical Planning Department and are running their business, therefore, they cannot be allowed to come into the illegal possession through a course of law. Neither they have good primafacie case nor any locus standi to file the suit, therefore, the application is dismissed and plaint is rejected under Order VII, Rule 11 CPC. An appeal was filed and the learned appellate Court also confirmed the judgment passed by the' leaned Civil Judge.

2. Learned counsel for the petitioner submits that petitioners are effectees and turned down employees of Koh-e-Noor Mills, Liaquatabad and it was their permissive possession that they installed shops/khokhas on the land belonging to the Housing and Physical Planning Department and they have been giving "tawaan" for the said property and they cannot be ousted from the disputed property. The notices were issued for vacation of land which are altogether illegal and violative of the provisions of Colonization of Govt. Lands Act, as the petitioners are in permissive possession. He has relied on "Municipal Corporation, Peshawar" and others vs. Shakeel Hussainand others" (NLR 2001 Civil 356), and while considering the stay the plaint cannot be rejected "Jewan and 7 others vs. Federation of Pakistan and 2others" (1994 SCMR 826).

3. Learned counsel for the respondent submitted that the petitioners are admittedly un-authorized occupants of the property which belongs to the Housing and Physical Planning Department and through course of law they have obtained a sufficient period to keep their illegal possession. Any plaint which shows lack of cause of action can be rejected at any moment by the learned trial Court. He has relied on "Messers Abdul Hamid vs. Board of Intermediate and Secondary Education" (1991 MLD 672), "Pakistan State Oil Co. Ltd. vs. The Karachi Electric Supply Corporation Ltd. and others" (PLD 1991 Karachi 365) and "Mir Qamar-ul-Zaman vs. Agricultural Development Bank of Pakistan and others" (1995 CLC 1982).

4. I have heard the learned counsel for the parties and perused the plaint. It is to be noted that the petitioners have only challenged the notices being illegal and violative of law. It is settled principle of law that in an application for interim injunction the Court sees the sufficient grounds for grant of interim injunction the cardinal principles to be looked into by the Courts are prima facie case, balance of convenience and a pronounced or manifest exposure of the aggrieved person to an irretrievable injury "MirQamar-ul-Zaman vs. A.D.B.P. and others" (1995 CLC 1982) and the order of rejection of plaint under Order VII, Rule 11 CPC contemplates that plaint shall be rejected in the following four cases:--

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed has been undervalued;

(c) Where the Court-fees of full value have been supplied; and

(d) Where the suit appears on the face of the plaint to be barred by any law.

And these provisions deal with the powers of the Court to reject the plaint. The phrase "cause of action" would mean a bundle of facts giving rise to a right which plaintiff would have to prove if traversed by defendant. "Pakistan State Oil Co. Ltd. vs. The Karachi Electric Supply Corporation Ltd. and others" (PLD 1991 Karachi 365). The purpose of rejection of plaint B is that still born suit ought to be buried properly at its very inception so that no further time be consumed on fruitless litigation and secondly plaintiff would have a chance to retrace his steps at the earliest possible moment so, that if permissible under law he could file properly constituted case. The rejection of plaint under Order VII, Rule 11 CPC is distinct than the dismissal of the suit "Mir Qamar-ul-Zaman vs. A.D.B.P and other" (1995 CLC 1982) (Supreme Court AJ&K).

1. This is also a settled principle of law that for rejection of plaint under Order VII, Rule 11 CPC the plaint is considered to be true and only the facts averred into plaint are to be looked into. In the present case three things are admitted by the plaintiffs themselves:-

(i) That the property in question belongs to the Housing and Physical Planning Department;

(ii) That the plaintiffs are neither their tenants nor they have applied for rehabilitation to the Provincial Government;

(iii) That they are paying "tawaan" for the encroachment of the land.

They did not produce any document in support of the averments of the plaint. They challenged the notices which have no value in the eyes of law and no cause of action has accrued to them to file the present suit. The Court before whom the suit is pending has got the jurisdiction to reject the same on the above premises if it does not disclose the cause of action or is barred by\ any law and is not properly constituted suit and the Court is fully convinced that it will be a futile exercise in future "Messers Paper Corner vs. B.I.S.E."(1991 CLC 740). The petitioners/plaintiffs are undoubtedly in un-authorize possession of the disputed property, which at no stage was validated by the Provincial Government or the Housing and Physical Planning Department. Since sufficient time consumed in litigation they were ordered to pay "tawaan"for their unauthorized occupation of disputed property. This is not sufficient to term the unauthorized possession of the property into permissive possession. Even bare reading of the suit in question shows that the plaintiffs have no cause of action to file the suit.

1. In this view of the matter both the judgments of the learned subordinate Courts are unexceptionable. The instant Civil Revision is dismissed being devoid of force.

(A.P.) Revision dismissed.

PL J 2003 Lahore 163

[Multan Bench Multan]

Present: farrukh lateef, J.

MUHAMMAD AZAM and another-Petitioners

versus

ADMINISTRATOR, MARKET COMMITTEE, MULTAN and another-Respondents.

C.R. No. 853-D of 2002, decided on 20.8.2002.

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

—-0. XIV, R. 27 & S. 115-Plaintiffs application for production of additional evidence was declined by Appellate Court-Legality-Additional evidence in the shape of a letter which plaintiffs intended to produce as additional evidence was just a letter of recommendation by an official of agriculture that petitioner should be allotted 2 Maria plot at specified rate-Tenancy " of plaintiff over plot in question, was not proved by that letter-Judgment and decree of Appellate Court being based on sound and cogent reasoning interference therein was not warranted in revisional jurisdiction.

[P. 167] D

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

—0. XLI, R. 31 and S. US-Specific Relief Act (I of 1877), S. 42-Issuewise finding not recorded by Appellate Court-Effect-Issues relating to alleged illegality of notice to vacate premises and entitlement of petitioners to decree of declaration and permanent injunction in respect of property in question, entirely depended on the fate of issue relating to plaintiffs status as tenant under defendant-Finding of Appellate Court that plaintiffs had failed to prove their tenancy was sufficient to non-suited them and separate findings need not have been recorded on such connected issues. [P. 167] B

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

—0. XIV, R, 1 & S. US-Issues not decided against plaintiffs-Plaintiffs could not have any cause of grievance of issues in question, were not discussed and findings thereon were not given. [P. 167] C

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

—S. 42-Civil Procedure Code (V of 1908), S. 115-Proof of tenancy-Plaintiff asserted their status as tenants of defendants through oral evidence comprising statement of one of plaintiffs and another witness coupled with admitted possession of plaintiffs and advance deposit of rent made by them—Such evidence was hardly sufficient to prove factum of tenancy- Appellate Court had rightly maintained that mere deposit of advance rent and possession of plaintiffs did not amount to creating of tenancy in respect of plot in question, in absence of rent/lease deed or order of allotment. [P. 167] A

Sh. Muhammad Faheem, Advocate for Petitioners. Date of hearing: 20.8.2002.

order

The petitioners have in this civil revision assailed judgment/decree dated 18.7.2002 passed by Addl. District Judge, Multan, 2. Brief facts giving rise to the petition are that the petitioners had filed a suit against the respondent-committee for a decree of declaration that they are in possession of the suit plot as tenant of the respondent-committee and are carrying on business after constructing a shop thereupon. Now the respondent-committee has declined (a-@ to accept rent from them in respect of the said plot and has issued a notice directing them to vacate the said plot after removing the superstructure constructed thereon. It was alleged that the said notice is illegal and ineffective on their rights. By way of consequential relief it was prayed that the respondent-committee be perpetually restrained from interfering with their peaceful possession over the said plot.

1. The suit was contested and the following issues were framed by the learned trial Court:

ISSUES:

1. Whether the plaintiffs are tenants under the defendant.

2. Whether Notice No. 6183-6/M.MC dated 19.12.1994 is against law and facts without authority void and based on mala fide.

3. Whether the plaintiff is entitled to the declaration and permanent injunction as prayed for.

4. Whether the plaintiff has no cause of action and locus standi to bring this suit.

5.Whether the suit is liable to be dismissed in view of preliminary Objection No. 2.

1. Whether the suit is not maintainable in view of preliminaryObjection No. 3.

7.Whether this Court has no jurisdiction to try this suit.

1. Relief.

2. The learned trial Court decided Issues Nos. 1 to 3 in favour of the petitioners, Issue No. 4 was answered in the negative, no finding was given on Issues Nos. 5 to 7 as they were not pressed, resultantly the suit was decreed.

3. On appeal by the respondent-committee the learned appellate

Court held that the petitioners did not produce any document in support of their assertion that the disputed plot was ever allotted to them and its possession was delivered to them by the respondent-committee; therefore, in tha given situation their status was that of illegal occupants and they were not entitled to the declaration sought for. The appeal of the respondent-committee was accordingly accepted, judgment and decree of the learned trial Court was set-aside, resultantly the suit was dismissed.

1. Learned counsel for the petitioners assails the aforesaid judgment of the appellate Court on the following grounds:-

"(i) During the course of proceedings two applications one under Order 41 Rule 27 and the other under order 26 Rule 1 and 9 CPC were moved by the petitioners which were decided by the learned appellate Court without obtaining reply from the other side, after deciding the appeal.

(ii) Issuewise finding was not given by the learned appellate Court hence material irregularity was committed in rendering the impugned judgment.

(iii) Issuance of Letter No. 2539 regarding allotment of the petitioners and receipt of rent from them was admitted by DW. 1, Secretary Market Committee and;

(iv) impugned judgment is based on surmises and conjectures and was passed without applying the judicial mind.

1. Applications under order 41 Rule 27 and Order 26 Rules 1 and 9 CPC were disposed of by the appellate Court vide single order dated 18.7.2002 (Annex-L/2).~

2. In the former application the petitioners sought permission for producing copies of two judgments of Supreme Court and a letter issued by Director Agriculture and Marketing Punjab Lahore, by way of additional evidence and in the letter application a local commissioner was sought to be appointed to report about the location of the disputed plot viz-a-viz office of market committee.

3. Perusal of the said order Annexure-L/2, reveals that after dismissing the aforesaid two applications, arguments in the appeal were heard and it was also disposed of on the same day, hence contention of the petitioners' counsel that the said two applications were decided after giving decision on the appeal is without any substance. The aforesaid two applications could have been legally disposed of by the Court without obtaining reply from the other side.

4. Adverting to the second ground of the petitioners' counsel it may be observed that Issues Nos. 1 to 3 were related inter-se hence they were taken up and decided together by the learned trial Court in favour of the petitioners. Issue No. 4, was decided in the negative i.e. against the respondents and no finding was given on Issues Nos. 5 to 7 as they were not pressed.

5. The. learned trial Court had held the petitioners as tenants of the respondent-committee on the basis of oral evidence comprising of the statements of one of the petitioners and Nemat Ali PW. 2, coupled with the

. admitted possession of the petitioners and advance deposit of rent made by them.

1 12. The said evidence was hardly sufficient to prove the factum of

A tenancy. It was rightly held by the appellate Court that mere deposit of advance rent and possession of the petitioners, per se did amount to the creating of tenancy in respect of the disputed plot in the absence of a rent/ lease deed or an order of allotment. According to the appellate Court, from the evidence available on record it was, therefore, not proved that the petitioners were ever allotted or were given tenancy rights in the suit property. In view of the said finding of the learned appellate Court, findings on Issues Nos. 1 to 3 were reversed and the impugned judgment/decree passed by the learned trial Court was set-aside.

1. 'Basis of the petitioners claim was tenancy in their favour regarding the disputed plot which is reflected in Issue No. 1. They failed to prove their said claim.

2. Subsequent Issues Nos. 2 and 3, respectively relating to the alleged illegality of notice to vacate the premises and the entitlement of the petitioners to the decree of declaration and permanent injunction in respect of the suit property entirely depended on the fate of Issue No. 1. Finding of the appellate\Court that petitioners had failed to prove their tenancy was sufficient to non-suit them and in the given situation there was no need to have discussed and to have given separate findings on Issues Nos. 2 and 3.

3. So far as Issues Nos. 4 to 7 are concerned, they were not decided by the trial Court against the petitioners hence the petitioners could not have any cause of grievance if the said issues were not discussed and findings thereon were not given by the appellate Court.

4. Adverting to the next contention of the petitioners' counsel that Letter No. 2539 regarding allotment of petitioners was admitted by DW. 1, Secretary Market Committee, therefore, tenancy was proved, is without any substance because that letter was not produced in evidence and DW. 1, did not mention that the said letter was letter of allotment of the disputed plot in favour of the petitioners. The aforesaid letter is appended with the civil revision as Annex-A. A perusal of the same shows that it is not letter of allotment but is merely a letter of recommendation issued by Director of Agriculture that the petitioners may be alloted 254 Maria plot at the rate of Rs. 400/- per month. By the said letter, therefore, tenancy of the petitioners over the disputed plot was not proved.

5. Reverting to the last argument of the petitioner's counsel it may be observed that the impugned judgment is based on sound reasons and by no stretch of imagination it can be deemed as arbitrary, capricious or based on surmises and conjectures.

6. For the reasons stated above, the revision petition is without any merit, it is accordingly dismissed in limine.

(A.A) Revision dismissed.

PLJ 2003 Lahore 177

[Multan Bench Multan

Present: FARRUKH LATEEF, J.

KHUDA YAR-Petitioner versus

EMBER BOARD OF REVENUE etc.-Respondents

W.P. No. 5574 of 2002, decided on 29.8.2002

(i) Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--

—S. 10-Constitution of Pakistan (1973) Art. 199-Horse Breading Tenancy-

Allottee of such tenancy having died, District Collector on

recommendations of District Remount Officer allotted said tenancy in

favour of eldest son of original allottee—Younger son of allotee i.e.petitioner contested upto Board of Revenue but failed to get same allotted in his favour-Revenue hierarchy had applied its judicial mind while deciding question of allotment and decided same on merits--Petitioner claimed that his father had executed will in his favour that he had helped in breading mare and in tenancy affairs but he could not produce same. Findings recorded by Revenue hierarchywere maintained. [P. 178] A

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 164-Constitution of Pakistan (1973), Art. 199-Impugned order was passed in revision by Board of Revenue-Revisional order arising out of

civil litigation cannot be challenged in writ petition. [Pp. 178 & 179] B

1991 SCMR 970; 1967 SCMR 1396; 1989 SCMR 1392.

Mr. Muhammad ArifAlvi, Advocate for Petitioner.

Mr. Tariq Murtaza Malizai, Advocate for Respondents Nos. 1 and 2.

Date of hearing: 29.8.2002.

order

With the concurrence of the counsel for the parties this case is treated as admitted case. Arguments heard.

1. Khuda Yar has, in this constitutional petition, called in question order dated 14.2.2002 passed by Member Board of Revenue (Respondent, No. 1) and has prayed that the same be declared as illegal against facts, without jurisdiction and the Horse Breeding Tenancy which had fallen vacant on the death of Humayun Khan be allotted in his favour.

2. Humayun Khan father of the petitioner was allotted 27 acres of land in Tehsil and District Sahiwal under Horse Breeding Scheme. He died on 5.1.1998. District Collector, videorder dated 13.7.1999 allotted the said tenancy in favour of Muhammad Yar, elder brother of the petitioner on the basis of recommendation made by the District Remount Officer.

3. Petitioner's appeal against that order was dismissed by Commissioner Multan Division, Multan on 17.11.1999. Revision against that order filed by the petitioner was also dismissed by Member Board of Revenue on 14.2.2002.

4. It. was contended by the learned counsel for the petitioner that right from District Collector to the Member Board of Revenue, none had applied judicial mind and their orders are based on the report of District Remount Officer, who did not discuss the entitlement of each legal heir. Besides that an important aspect was ignored viz that the deceased father of the petitioner had executed a will disclosing that the petitioner had remained associated with him in supervising the mare.

5. It was also vehemently argued that tenancy was allotted to Muhammad Yar on the ground of primogeniture which was no longeravailable having been declared illegal being repugnant to the injunctions of Holy Quran and Sunnah.

6. The writ petition was a strongly opposed by Mr. Tariq Murtaza Malizai, Advocate appearing on behalf of Respondents Nos. 1 and 2. Arguments heard; writ petition and its annexures perused.

7. A perusal of order passed by District Collector shows that after receipt of report of the District Remount Officer, he had taken up the case on judicial side and had passed order after hearing the legal heirs and after applying the judicial mind. He had also given due consideration to the report of District Remount Officer who is a technical expert in the field of Horse Breeding. Perusal of the order passed by Commissioner Multan Division, Multan reveals that it is entirely reasonable; conclusions drawn by him &re

based on plausible reasons.

1. The will allegedly executed by the father of the petitioner was

neither produced before the District Collector nor before the Commissioner hence it was rightly observed by the Member Board of Revenue in the impugned order that the petitioner did not produce any concrete evidence about his having remained associated with the tenancy affairs during the life time of his father.

1. Not only the impugned order but the orders passed by the Deputy Collector and Commissioner are also entirely reasonable. They had the jurisdiction to pass the orders. The impugned order was passed in revision by the learned Member Board of Revenue. Revisional order arising out of civil litigation cannot be challenged in writ petition. Reference:

(i) 1991 SCMR 970. (ii) 1986 SCMR 1396. (iii) 1989 SCMR 1392.

For the reasons stated above, writ petition is devoid of any merit, it is accordingly dismissed.

(A.A) Petition dismissed.

PLJ 2003 Lahore 179 (DB)

Present: mian saqib nisar and jawwad S. khawaja, JJ.

MirzaMUHAMMAD IQBAL-Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Finance, Islamabad and 3 others-Respondents

I.C.A. No. 681 of 2001 in W.P. No. 12391 of 2001, heard on 6.11.2002.

(i) House Building Finance Corporation Act, 1952--

—-Ss. 2 & 29 read with Sections 3 & 4 of Law Reforms Ordinance, 1972-Appellant secured loan of Rs. 1,60,000 only from HBFC for construction of house, payable in 240 instalments-Due to retirement and withholding of pensionary benefits defaulted in payment of instalment-Served with notice by HBFC for lump sum payment alongwith accumulative interest/ mark-up-Assailed in Constitutional petition before Court-Writ petition dismissed-Challenged through Intra Court Appeal on grounds appellant having paid Rs. 191,784 only has paid more than his liability-No interest permissible under Act when default occurs-Default if any was due to withholding of pensionary benefits—Held that: Appellant liable to repay the loan at rate of 14% per annum-Notice modified-In view of peculiar circumstance of case Court directed to pay 160,020 only-In addition to amount already paid in instalment-Appeal partly allowed.

[P. 180] A to F

(ii) Interest--

—HBFC cannot compell Barrow to pay interest more than 14% per annum upon loans advanced by it. [P. 180] C

Mr. Pervaiz Inayat Malik, Advocate for Appellant.

Ch. Shahid Javed Warriach, Advocate for Re'spondents.

Date of hearing: 6.11.2002.

judgment

Mian Saqib Nisar, J.-On 4.11.1991, the appellant obtained an amount of Rs. 1,60,000/- from the respondents as a loan for the construction of his house; as per terms and conditions of the agreement between the parties, the appellant was obliged to repay the amount in 240 monthly instalments at the rate of Rs. 2,636/- per month. The appellant did not pay. the initial instalments in time and paid a lump sum amount of Rs. 36,240/-on 31.12.1993 and thereafter, two further amounts of Rs. 5,272/- each were paid on 20.2.1994 and 8.1.1995; another amount of Rs. 1,45,000/- was paid on 10.7.1998. In this manner, the appellant has paid an amount of Rs. 1,91,784/- towards the discharge of his liability qua the above loan. The respondents served the appellant with a notice dated 23.2.2000 claiming an amount of Rs. 59,755/- as due from him, and thereafter, another notice dated 14.7.2002 was also issued claiming Rs. 2,03,769/- from the appellant. Aggrieved of the above, the appellant filed W.P. No. 12391 of 2001 in this Court, stating therein that he had already discharged his entire liability and thus, nothing is due from him. This petition has been dismissed by the learned Single Judge in Chambers vide order dated 05.07.2001. Hence this I.C.A.

1. During the course of hearing of this case, we have asked the learned counsel for the parties to assist this Court ta work out the among due from the appellant till 10.7.1998, because admittedly by that time, he had paid the amount of Rs. 1,91,784/-. Learned counsel for the parties, though have assisted us, however, their working is quite divergent. Claim of the respondents is that till this date, an amount of Rs. 2,62,208/- is due to the appellant on account of late payment of instalments.

2. We ourselves have endeavoured to work out the formula to resolve the controversy between the parties. As per admission of the learned counsel for the respondents, 14% interest was being charged from the appellant and thus, calculating the interest at the rate of 14% room 18.9.1991 the date of disbursement till 10.7.1998, when the last payment was made by the respondents, roughly an amount of Rs. 1,56,800/- could be charged as a mark-up, in1 addition to the principal, amount of Rs. 1,60,000/-. Now adding the above two figures, the amount comes to Rs. 3,16,800/-, now minus the amount already paid by the appellant on 10.7.1998, which is Rs. 1,91,784 the remaining balance in Rs. 1,25,016/-, even applying two years mark-up thereupon i.e. till 23.3.2000, when the notice was issued to the appellant, the total comes to Rs. 1,60,020/-. It is this amount, which was in fact due to the respondents, resultantly, the claim to the tune of Rs. 2,62,208/- is exorbitant

by any principle of equity. Therefore, we direct the respondents only to recover the above amount from the appellant. However, keeping in view that the appellant is a retired teacher, whose pensionary benefits were withheld by the department for a considerable period and is not in a position to pay the amount in lump sum, therefore, we further direct that the amount be recovered from him through instalments. First instalment of Rs. 50,000/-shall be paid within 15 days of this order, whereas, the remaining balance amount shall be payable in six equal monthly instalments.. In case of the failure of the appellant to make the payment ef the instalments as mentioned above, the appellant shall be liable to immediately pay the whole

of the balance amount of Rs. 1,60,020/-. This appeal is accordingly disposed of.

(T.A.F.) Orders accordingly.

PLJ 2003 Lahore 181

Present: syed jamshed ali, J.

MUHAMMAD AMIN BUTT-Petitioner

versus

SECRETARY EDUCATION GOVT. OF THE PUNJAB and another-Respondents

W.P. No. 19466 of 2002, decided on 5.11.2002.

Constitution of Pakistan, 1973--

—-Art. 199 read with Rule 6 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999-Petitioner despite exoneration by Anti-Corruption Establishment served with a show-cause notice for imposition of major penalty for commission of alleged misconduct-Assailed before High Court in Constitutional Petition on the grounds of mala fide discrimination, violative of law and rules and that in view of allegations full fledge inquiry is a must and appeal being not competent before Service Tribunal, Constitutional Petition maintainable-Held that: Issue raised germane to terms and conditions of service of petitioner and even at this stage when no final order has been passed bar of Jurisdiction contemplated by Article 212 of constitution attracted-Petition dismissed however High Court observed that petitioner shall be at liberty to raise all pleas of law and fact in defence to show-cause notice.

• [Pp. 181 & 182] A, B & C

PLD 1989 SC 508.

Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Date of hearing: 5.11.2002.

order

The petitioner has been put to notice under Rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 to show-cause against one of the major penalties. The learned counsel for the petitioner contends that the sole basis of the show-cause notice is a preliminary inquiry and the truth or otherwise of the allegations could only be established in a regular inquiiy. He further maintains that the petitioner was exonerated by the Anti-Corruption Agency, while despite recommendation of the Anti-Corruption Agency against one Shahzad Ahmad, no action has been taken against him and therefore, the petitioner has unfairly been discriminated against.

1. The submissions made by the learned counsel for the petitioner have been considered. The issue raised in this petition is germane to the n terms and conditions of the service of the petitioner and even at this stage when no final order has been passed the bar of jurisdiction contemplated by Article 212 of the Constitution is attracted. Reference may be made to Abdul Wahab Khan vs. Gout, of the Punjab and 3 others (PLD 1989 S.C. 508) and a Full Bench judgment of this Court in W.P. No. 10758/2001 and other connected matters decided on 15.8.2001. This petition is, accordingly, dismissed as not maintainable. The petitioner shall be free to raise all pleas of law and fact in defence to the aforesaid show-cause notice.

(T.A.F.) Petition dismissed.

PLJ 2003 Lahore 182

Present: CH. IJAZ AHMAD, J.

Mst. NAVEEDA MUNAWAR and anbther-Petitioners

versus

SECRETARY EDUCATION GOVT. OF PUNJAB CIVIL SECRETARIAT LAHORE and 2 others-Respondents

W.P. Nos. 13481 and 15258 of 2002, decided on 29.10.2002. \

Constitution of Pakistan, 1973-

—-Arts. 199 and 212 of salaries of petitioner withheld without any justification-Whether High Court has jurisdiction-Held: There was ample power to give direction to respondent to act in accordance with law inspite of bar contained in Art. 212-Matter qua-release of salaries has been finally decided-It was admitted fact that action of respondent was based on malice as they did not act in accordance with direction-Respondents are directed to verify record and release salaries qua actual work done and duties performed by petitioner with in one month-Order accordingly. [P. 184] A, B & C

Mr. Pervaiz Inayat Malik, Advocate for Petitioners.

Mr. Muhammad Hanif Khatana, Addl: Advocate General alongwith Munir Ahmad Javaid, Legal Officer, and Mst. Kaneez, D.E.O. Narowal.

Aziz Ahmad Ghumman,D.E.O. Daska and Rana Khushi Muhammad,D.E.C. Sialkot with Record.

Date of hearing: 29.10.2002.

order

I intend to decide the following writ petitions by one consolidated order having similar facts and law:-

(i) W.P. No. 13481/2002 (ii) W.P. No. 15258/2002

1. The petitioners have filed these writ petitions with prayer that the respondents had with-held the salaries of the petitioners without any justification, therefore, the respondents be directed to release the arrears of salaries of the petitioners from their duty period to forthwith.

2. The learned counsel of the petitioners submits that the respondents have no lawful authority to withhold the salaries of the petitioners for the period for which they had performed their duties under the valid order of the respondents. He further submits in Writ Petition No. 13481/2002 that the respondents appointed another person in-place of the petitioner inspite of restraining order passed by this Court. In support of his contention, he relied upon the following judgments:

"Mst. Shamim Bano vs. Province of Punjab"(1998 P.L.C. (CS) 337) "Qazi Akhtar All vs. Director Agriculture" (2000 P.L.C. (CS) ,784)

"Administrator District Council Larkana vs. Ghulab Khan" (2001 P.L.C. (CS) 991)

"BarkatAli vs. Muhammad Ihsan" (2000 SCMR 556)

1. The learned Addl: Advocate General submits under instructions that the respondents did not violate the direction of this Court as the respondents did not appoint any person in-place of the petitioner. He further submits that this Court has no jurisdiction in view of the Bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan read with Section 4 of the Service Tribunal Act. He further submits that the petitioners were removed from service by the respondents on 28.5.2002 and they filed this W.P. No. 15258/2002 on 22.8.2002. He further submits that the petitioners were not appointed by the respondents, therefore, the claim of the petitioners qua their salaries is riot sustainable. He further submits that the petitioners did not implead the Chairman Board of Intermediate and Secondary Education, Lahore as respondent, therefore, the writ petitions are liable to be dismissed. He further submits that the petitioners did not perform their duties during the period in-question. He further summed up his arguments that the petitioners approached this Court with unclean hands.

2. The learned counsel of the petitioners in rebuttal submits that the petitioners have not challenged the vires of removal orders of the petitioners before this Court. The petitioners only filed these writ petitions for the salaries of the period during which they allegedly performed the duties of the respondents.

3. I have given my anxious consideration to .the contentions of the learned counsel of the parties and perused the record.

I am not inclined to accept the contention of the learned counsel of the respondents that this Court has no jurisdiction. This Court has ample power to give direction to the respondents to act in accordance with law inspite of the bar contained in Article 212 of the Constitution read with A Section 4 of the Service Tribunal Act. The matter quathe release of salaries, has been finally decided by this Court in the following judgments:--

"Hafiz Mazhar Hussain vs. DEO Khanewal" (PLJ 1998 Lahore 985)

Writ Petition No. 9007/98-

The matter was agitated in Writ Petition No. 9007/98 which was disposed of by the Division Bench of this Court on the statement of learned Addl: Advocate General in the following terms:

"Till such time the employees continue in the service of Education Department and action against them is not finalized, the salary due to them shall not be stopped. The communication dated 3.10.1998 from the. Government of Punjab in the Education Department has also been placed on the record of this case. This satisfies the learned counsel for the appellants/petitioners. The petition is accordingly, disposed of as not pressed in view of undertaking given by the learned Addl: Advocate General."

1. In view of the judgment of this Court which is binding on each and eveiy organ of the State by virtue of Article 201 of the Constitution, the respondents have no authority whatsoever to usurp the stand taken by the highest authority of the Education Department i.e. Secretary Education, who

has given categorical instructions to all the concerned vide letter dated 3.10.1998 but the action of the respondents is not in accordance with the direction of the authorities. It is admitted fact that action of the respondents is based on malice as they did not act in accordance with direction of the Secretary Government of the Punjab.

1. In view .of what has been discussed above, these writ petitions are accepted to the extent of non-releasing the salaries of the petitioners in respect of the actual work done and duties performed by them. The respondents are duty bound to release the salaries of the petitioners. The respondents are directed to verify the record and release the salaries qua the actual work done and duties performed by the petitioners within one month

after receiving the order of this Court.

1. Let a copy of these writ petitions be sent to the Secretary Education, Government of the Punjab, who shall look into the matter personally and direct all his subordinates to act in accordance with law and according to his direction.

With these observations, these writ petitions are disposed of. (T.A.F.) Writ petitions partly accepted.

PLJ 2003 Lahore 185

Present: CH. IJAZ AHMAD, J.

Mst. ZUBEDA AKHTAR-Petitioner

versus

GHULAM RASOOL AZAD, EXECUTIVE DISTRICT OFFICER (EDUCATION) SHEIKHUPURA-Respondent

Crl. Orgl. No. 668-W of 2002 in W.P. No. 7228 of 2002, decided on 14.11.2002.

(i) Contempt of Courts Act, 1976 (XLIV of 1976)--

—-Petitioner SST transferred to a far off place out of District on appeal Punjab Service Tribunal directed DPI to consider case of petitioner for her adjustment within specified District-Judgment of PST not implemented-High Court in Constitutional Petition also issued directions which too not obeyed-Contempt petition-Allowed by High Court-Secretary Education directed to get order of PST implemented-- High Court while taking serious notice of attitude of Public Functionaries in avoiding to implement judgments of Tribunal and High Court observed that under Article 201 of the Constitution Public Functionaries are bound to implement judgments in letter and spirit and they cannot sit over such judgments-Chief Secretary and Eduction Secretary directed to Constitute a Committee to probe into matter further observed delinquent Public Servant to be proceeded against under Efficiency and Discipline Rules- [Pp. 185 to 187] A to G

(ii) Judgment-

—In view of Art. 201 of the Constitution Public functionaries are bound to implement judgments of Tribunal and Superior judiciary otherwise they are liable for action under Efficiency and Discipline Rules. [P. ] H & J

Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Mr. Muhammad Hanif Khatana, Addl. Advocate-General alongwith Prof. Ghulam Rasool Azad EDO (Education) Sheikhupura. Date of hearing: 14.11.2002.

order

The brief facts out of which the present petition arises are that the respondents transferred the petitioner from District Sheikhupura to District Faisalabad. The petitioner being aggrieved filed an Appeal No. 2333/2001 before the Punjab Service Tribunal, Lahore, which was disposed of by the Punjab Service Tribunal, Lahore, vide order dated 5.4.2002 with the following observations :-

"I may also observe that since the appellant has been transferred from an administrative post of Assistant Education Officer (W) and asked to work as S.S.T., it would be in the fitness of thing if the Director Public Instructions (EE) Punjab, Lahore, may consider the case of the appellant within two months from today to transfer the appellant to some nearby institution in Sheikhupura District as S.S.T."

The respondent did not honour the direction of the Punjab Service Tribunal, Lahore, the petitioner being aggrieved filed a Writ Petition No. 7228/2002 which was disposed of by this Court vide order dated 29.4.2002 with a n direction to the Director Public Instructions to consider the case of the petitioner within two months from today. The Director Public Instructions sent the case of the petitioner to the Executive District Officer Education, Sheikhupura vide order dated 6.4.2002 alongwith the copy of the judgment of the Punjab Service Tribunal, Lahore. The petitioner also submitted an application before respondent on 3.5.2002. The respondent did not adjust the petitioner and forwarded the case of the petitioner to the District Coordination Officer, who vide order dated 14.6.2002 sent the case back to the Director Public Instructions, Lahore, which reveals that D.C.O. is regretted to inform that the District Government as a policy, cannot adjust the petitioner in District Sheikhupura.

1. The representative of the respondent did not known that the Director Public Instructions has referred the case to the Secretary Education

to sought clarification or not. He further submits that petitioner joined the 91-GB Government Girls High School, Faisalabad, and thereafter did not attend the Office without obtaining any leave from the competent authority. He further submits that appeal of the petitioner was dismissed by the Punjab Service Tribunal, Lahore, and had only given direction to the Director Public Instructions to consider the case of the petitioner to adjust the petitioner in District Sheikhupura.

1. The learned counsel of the petitioner, in rebuttal, submits that the aforesaid order was suspended by the Punjab Service Tribunal, Lahore, vide order dated 28.1.2002. He further submits that this Court in Writ Petition. No. 1516/2002 directed to initiate inquiry against the present respondent. The competent authority did not finalize the inquiiy against the respondent. The respondent malafide did not implement the order pf the Punjab Service Tribunal, Lahore, simply to save his skin from the Inquiry if any initiated against him by the competent authority under the order of this Court dated 4.2.2002 passed in W.P. No. 1516/2002. He further submits that action of the respondent is not in accordance with the law. The respondent is duty bound to obey the direction of the Punjab Service Tribunal, Lahore.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

3. It is admitted fact that appeal of the petitioner was dismissed by the Punjab Service Tribunal, Lahore, videjudgment dated 5.4.2002 with the direction to the Director Public Instructions, Lahore, may consider to adjust the petitioner in District Sheikhupura. It is admitted fact that the Director Public Instructions did not pass any order till date except he forwarded the judgment of the Punjab Service Tribunal, Lahore, to the respondent. The respondent instead of passing any order placed the case of the petitioner before the D.C.O. concerned, who referred the case back to the Director Public Instructions to show his regret to adjust the petitioner in. District Sheikhupura. Both the parties did not bring on record any order of the Director Public Instructions on record. It is also admitted fact that the Writ Petition No. 1516/2002 was filed in which the competent authority was directed to initiate inquiry against the present respondent with regard to embezzlement. The learned Addl. Advocate-General did not bring on record any final order passed by the competent authority against the respondent. It is the duty and obligation of the public functionaries to obey the direction of the Punjab Service Tribunal,. Lahore. It appears that the Director Public Instructions did not pass any order till date. In this view of the matter, let a copy of the petition alongwith the report and parawise comments and rejoinder be sent to the Secretary Eduction, who is directed to look into the matter personally and pass an appropriate order strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and respondent preferably within one month after receiving the order of this Court in the light of the Judgment of the Punjab Service Tribunal, Lahore, either himself or send the same to the competent authority who is also directed to pass an appropriate order strictly in accordance with law in terms of the judgment of the Punjab Service Tribunal, Lahore, preferably within one month. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within the stipulated period.

4. Office is directed to send copy of this order alongwith contempt petition and report and parawise comments to the Secretazy of the Education, Lahore and to the Chief Secretary of the Province, who are directed to look into the matter what is happening in their departments that the public functionaries did not obey the orders of the Court and interpret the same .while sitting in the office which is in derogation of the mandate of the Constitution as is envisaged by Article 201 of the Constitution. They are directed, to issue instructions to the public functionaries to obey the directions of the Courts or to agitate the matter before the higher forums i.e. to file Intro. Court Appeal, or to agitate the matter before the Honourable Supreme Court of Pakistan. The Secretary Eduction is directed to constitute a committee to probe into the matter. In case the committee finds any of the officer/official is responsible intentionally failed to implement the direction of this Court as well as of the Punjab Service Tribunal, Lahore, then he is directed to initiate proceedings against that officer/official under the Efficiency and Discipline Rules. He is directed to do this exercise preferably within three months. He is also directed to submit his report to the Deputy Registrar (Judicial) of this Court within the stipulated period.

With these observations this petition is disposed of. (T.A.F.) Orders accordingly.

PLJ 2003 Lahore 188 (DB)

Present: MIAN SAQIB NlSAR AND HAMID farooq, JJ. JAMEELA BIBI and 9 others-Appellants

versus AHMADI KHANAM and 6 others-Respondents

R.F.A. No. 155 of 1994, heard on 9.9.2002.

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

—S. 12-Qanun-e-Shahadat (10 of 1984), Article 118-Onus to prove valid execution of agreement to sell was on plaintiffs, therefore, production of marginal witness in rebuttal was not of any help to them-Testimony of such witnesses, however, was most inadequate and insufficient to prove execution of documents in question, when other marginal witness had not been produced and scribe of document did not personally known attorney of alleged vendors. [P. 192] A

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

—-S. 12-Agreement to sell executed by attorney of alleged vendors-Quantum of proof-In proof of a vailed transaction entered into by attorney, it is sine qua non that his authority must be strictly proved-Power of attorney on the basis of which, plaintiffs, claimed that attorney had authority on behalf of his sisters (vendor) had not been established on record which was a serious lapse on the part of plaintiff-Other witnesses produced by appellants to prove bargain, were neither direct witnesses of agreement to sell nor they had stated that part payment of consideration was made in their presence-Findings of trial Court that plaintiffs could not prove execution of agreement to sell as also authority of attorney on behalf of alleged vendors to enter into agreement was not open to interference.

[Pp. 192 & 193] B

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

—S. 12-Suit for specific performance of agreement to sell-Plaintiffs claim that they were in possession of property in question, on the basis of agreement to sell was not proved-Plaintiff were in possession as lessees as per revenue record-Defendant having purchased land in question, through.registered deed without notice of agreement to sell in question and thus, being bona fide purchasers for consideration, their title did not suffer from illegality or vice calling for interference in appeal.

[Pp. 193 & 194] C

Mr. Muhammad Aslam Khan Buttar, Advocate for Appellants. Sh. Muhammad Siddiqw, Advocate for Respondents Nos. 1, 3 to 8. Mr, Muhammad Amir Sohail Saleemi, Advocate for Respondent No. 9.

Mr, Muhammad Zain-ul-Abidin, Advocate for Respondent No. 10. Date of hearing: 9.9.2002.

judgment

Mian Saqib Nisar, J.--Appellants' suit for specific performance, has been disallowed by the learned trial Court, vide judgment and decree dated 1.2.1994. Hence this appeal.

1. Briefly stated the facts of the case are, that originally Abdul Aziz, predecessor-in-interest of the present appellants, filed a suit for specific performance on 21.6.1987, against Rab Nawaz, Shamim Akhtar and Shahnaz Akhtar, claiming that the defendants through an agreement dated 25.8.1982 (Ex. P.I), had agreed to sell the suit land measuring 126 Kanals6 Marias,situated in Alipur Chatha (Akal Garh), Tehsil Wazirabad, District Gujranwala, to him for a total consideration of Rs. 2,75,000/- out of which, an amount of Rs. 1,75,000/- was paid at the time of the execution of the agreement, whereas for the remaining amount, it was settled between the parties, that within one week, after the disposal of some writ petition, pending in the High Court, the balance amount shall be paid and the transaction shall be finalized. It is also the case of the plaintiff, that the possession of the property was delivered to him under the agreement, though earlier he was in possession as lessee under the owners.

2. There is another important aspect of the matter, that one Abdul Latif, filed a suit against Shamim Akhtar, Shahnaz Akhtar, Rab Nawaz and Abdul Aziz, for permanent injunction, asserting that the above three owners, had sold the suit property in his favour, therefore they be restrained from further alienating the property to any third party i.e. the present appellants. It is the case of the appellants, that in this suit, a compromise was effected inter-se the parties, whereby Rabnawaz, conceded of having received a sum of Rs. 67000/- from Abdul Latif and it was settled between the parties, that Abdul Aziz, shall pay the said amount to Abdul Latif, who shall have no claim over the property, thus on the payment of the aforesaid amount, coupled with the amount of Rs. 2,08,000/- earlier paid to Rabnawaz, Abdul Aziz shall be deemed to be the owner of the suit property. On the basis of this settlement, the suit was dismissed, vide judgment and decree dated 16.5.1984 (Ex. P-8).

3. Thereafter, Abdul Aziz, on the basis of the aforesaid decree procured a Mutation No. 2898 dated 11.8.1985 Ex. P-ll/1, contemplating his ownership to the suit property. In the meantime, Respondent No. 10, claiming of having purchased about 63 Kanals of land from Muhammad Anwar, the attorney of Rabnawaz, moved an application to the revenue authorities for the cancellation of the above mutation on the ground that no decree had been passed in favour of Abdul Aziz, therefore, the mutation could not be sanctioned; this mutation was accordingly cancelled on the revenue side, constraining the original plaintiff to bring the present suit for specific performance on 21.6.1987. In this suit, again Defendant No. 10, originally, was not a party; Defendants Nos. 11 and 12, who also prior to 21.6.1987, had purchased 7 Kanals 13 Marias of land vide registered sale-deed dated 2.2.1987, from the owners through Muham'mad Akram, were not impleaded but subsequently, they were made party; Shamim Akhtar and Shahnaz Akhtar, in defence denied having ever appointed their brother Rabnawaz as their attorney, vide registered power-of-attorney dated 1.4.1979; Rabnawaz denied of having even entered into any agreement to sell with the appellants or having appeared or participated in the matter initiated by Abdul Latif, which culminated into the decision of the Court Ex. P-8. The other defendants pleaded being bona fide purchasers for. valuable consideration without notice of any agreement with the appellants. On account of pleadings of the parties, following issues were framed:—

4. Whether the suit is not maintainable in its present form? OPD.

5. Whether the sui s time-barred? OPD.

6. Whether the plaintiffs are estopped from filing this suit? OPD.

7. Whether the suit property has not been described correctly? If so, to what effect? OPD.

8. Whether the Defendants Nos. 5 and 6, are bona fide purchasers for value? If so, to what effect? OPD.

5-A. Whether the Defendant No. 4 (now Defendant No. 10) Muhammad Munir is the bona fide purchaser for value of the suit land without notice through the decree of Civil Court dated 25.1.1986? OPD-10.

1. Whether the Defendant No, 1, was a lawful attorney of the Defendants Nos. 2 and 3: If so, its effects? OP Parties.

2. Whether there has been the impugned sale agreement between the parties? OPP.

3. Whether the plaintiffs predecessor had paid an amount of Rs. 1,25,000/- under the sale agreement? OPP.

4. Whether the plaintiffs are entitled to the specific performance as prayed for? OPP.

5. Relief.

The parties were put to trial. The appellants side examined PW-1/ Muhammad Nawaz, who is the scribe of Ex. P-l; PW/2 Muhammad Din, states that he was present, when the bargain was settled between the appellants and Habnawaz etc. and the payment was made in his presence; PW/3 Muhammad Ashfaq, is one of the plaintiffs/successors of Abdul Aziz, who had died during the trial of the case; PW4/ Muhammad Aslam son of Haji Jalal Din, claims to be the marginal witness of the document Ex. P-l; PW-5 is Abdul Razzaq, who claims to be the witness of the Mutation No. 2898 and about the bargain and the, payment of the consideration to Rabnawaz. Besides, the above, the appellants placed on record copy of the. plaint in the suit instituted by Abdul Latif, written statement of the defendants, the statement of Rabnawaz and the final decision of the suit Ex. P-8/1. In rebuttal, the respondent examined Rashid Nawaz Khan as DW-1, Shahnaz Akhtar as DW-2, Muhammad Riaz Malik as DW-3 and Shamim Akhtar as DW-4; the defendants side also produced documentary evidence Ex, Dl a copy of passport of Shahnaz Akhtar contemplating that she from 30.10.1977 to 12.7.1981, was abroad. Besides, DW-10, produced some receipts about the payment having been made to Rabnawaz through his attorney Muhammad Anwar. The learned trial Court, after conducting the trial, while giving its findings on the issues decided Issues Nos. 1 to 3, in favour of the appellants and Issues Nos. 5 and 5-A in favour of defendants, dismissed the suit.

4A. Learned counsel for the appellants contends that the appellants through were earlier leases of the suit property, but on the execution of the sale agreement, their possession was converted to be under the agreement and in part performance thereof. It is also submitted that it has been proved on the record, that Ex. P-l, was duly executed by the Rabnawaz, on his behalf and as an, attorney for his sister, and in this regards, marginal witnesses and scribe had also appeared, but their evidence for invalid reasons has been disbelieved by the Court below.

1. Learned counsel for the appellants has emphasized on the proceedings in the suit filed by Abdul Latif, to state that in this suit. Rabnawaz in unequivocal terms has admitted that the agreement of sale was entered into between him and the appellant; it is in pursuance of the proceedings and the decision in that case, that the appellant made the payment of an amount of Rs. 67,000/- to Abdul Latif. Moreover, Mutation No. 2898 dated 11.8.1985, Ex. P-ll/1 was sanctioned in favour of the appellants, and this mutation had not been challenged by the respondents in any proceedings.

2. On the other hand, learned counsel for the Respondent No. 9, states that Shahnaz Akhtar, was not in Pakistan during the period from 30.10.1977 to 12.7.1981, therefore,-there is no question of execution of any power-of-attorney in favour of Rabnawaz on 1.4.1979, as allegedly claimed by the appellants. It is also stated that the two ladies had vehemently denied of having ever executed the power-of-attorney, mentioned above, thus it was incumbent upon the appellants, to prove the power-of-attorney, but no evidence has been led in that regard. Moreover, Rabnawaz, had also denied his statement in the suit allegedly filed by Abdul Latif; though certified copies have been brought on the record but the document particularly the statement of Rabnawaz, in the matter has not proved in accordance with law. It is also submitted that Shamim Akhtar and Shahnaz Akhtar, had never appeared in the case allegedly filed to Abdul Latif, or appointed Rabnawaz, to appear on their behalf as an attorney, therefore, any statement allegedly made by Rabnawaz, is not binding upon them. Finally, it is stated that the suit allegedly filed by Abdul Latif, and the proceedings conducted therein, are fraudulent and result of maneuvering by the appellant.

3. Learned counsel for the Respondent No. 10, who is the subsequent purchaser, has stated that he is the buyer of the property without notice of any earlier alleged transaction of sale between Rabnawaz and the appellant and has purchased the property for valuable consideration; the sales in his favour are through a registered documents, which are before the institution of the suit.

4. We have heard learned counsel for the parties. The key propositions involved in the case are whether the agreement to sell Ex. P-l, was executed by Rabnawaz and he was acting as an attorney, for his two sisters. In order to prove the document, the appellants examined PW-1, Muhammad Nawaz, scribe of the document. According to the statement of this witness, though it is deposed that the agreement was drafted at the instructions of Rabnawaz, but he has conceded in his examination in chief, that he did riot know Rabnawaz personally. It is stated that Rabnawaz, was identified through his identity card, but there is no number of the identity card on the agreement to sell. Even the agreement to sell has not been incorporated in any register of PW-1. We are not convinced if this witness has validly proved the execution of the agreement to sell. The other marginal witness of the document Ch. Abdul Rahim, son of Noor Muhammad has not been examined by the appellants and no valid reason for this omission has been given, whereas Muhammad Aslam son of Jillal Din, other marginal witness was not examined in affirmative, rather he has been produced in rebuttal. We find that as the onus to prove valid execution of the agreement to sell in affirmative nature, was on the shoulder of the plaintiffs, therefore, examining this witness in rebuttal is not of any help to the appellants. Moreover, from the deposition of this witness, appearing as PW-4, we find his testimony most inadequate and insufficient to prove the execution of Ex. P-l, when the other marginal witness has not been produced and the scribe of the document did not personally knew Rabnawaz.

5. As regards the other limb of above proposition, whether Rabnawaz was a validly appointed attorney on behalf of his sisters, suffice it to say that neither particulars of power-of-attorney, have been incorporated in the agreement Ex. P-l, nor any attempt on behalf of the appellants, has been made to prove this power-of-attorney, when the same has been denied by the said defendant. It is settled law, that for a valid transaction, entered into by the attorney, it is sine qua non that his authority must be strictly proved. The power-of-attorney, on the basis of which, appellants claim that Rabnawaz had authority on behalf of his sisters, has not been established on the record and this is a serious lapse on part of the appellant.

6. Furthermore, the other witnesses produced by the appellants to

prove the bargain, are neither direct witness of the agreement to sell Ex. P-l, nor they have stated that if part payment of consideration was made in their presence, resultantly, we concur with the findings of the leaned trial Court, that the appellants have not been able to prove the execution of the agreement to sell, as also the authority of Rabnawaz, on behalf of his sisters, to enter into the agreement.

1. As regards the question, whether the agreement to sell is proved

on the basis of decree mentioned above in the suit filed by Abdul Latif. Case

of the appellants is that Abdul Latif, had instituted suit against Rabnawaz

and others for the purpose of seeking injunction and claiming that earlier to

the agreement to sell, Ex. P-l, he had an agreement with Rabnawaz and

paid him Rs. 67,000/-. It is also his case that Rabnawaz, appeared in the

matter and it was settled that amount of Rs. 67,000/- shall be paid by the

appellants, directly to Abdul Latif. In the written statement, Rabnawaz, denied of having ever appeared before the Court, in that case or having made

any statement. The appellants though have produced certified copies of the

statement of Abdul Latif and Rabnawaz and decision of the Court, whereby

suit of Abdul Latif, was dismissed. But suffice it to say that institution of the

suit, and the proceedings conducted therein, were denied by Rabnawaz. In

such situation, by simply placing on the record, certified copies of the

proceedings and the statements, etc. were not sufficient discharge about the

institution of the suit and the proceedings; the appellants in this

circumstances, was obliged to examine the advocate, who had appeared on

behalf of Rabnawaz and had identified him, at the time of his alleged

statement. He should have also examined Abdul Latif, from whose

testimony, it could be ascertained, whether he filed suit mentioned above

wherein Rabnawaz appeared and made statement. Abdul Latif, has not been

examined to establish if an amount of Rs. 67,000/-' as allegedly claimed by the appellants, was paid to him by the appellants in pursuance of the suit

and the decision of the case. It may be pertinent to state here that the said suit was dismissed by the Court and we are surprised as to how after dismissal of that suit, appellants could seek the mutation of sale in his

favour, when there was no decree in his favour. Even otherwise, as narrated

in the facts the mutation procured by the appellants in the manner mentioned above, was cancelled by the revenue authorities and the appellant did not challenge this order in the same hierarchyor even before the Court

in the instant suit.

1. As regards.the question that the appellants are in possession of

the suit propertyand because there is mention in the agreement to sell that

his possession shall be under the agreement, suffice it to say that admittedly

the possession of the appellants qua the suit property was that of lessees.

As the appellants have failed to prove valid execution of the agreement to sell Ex. P-l in his favour, resultantly to say that his possession be recognized under the agreement is without any force. Even according to the revenue record, his possession continues to be that of lessees and not as owner of the property, particularly, when the mutation in his favour has been set aside, by the revenue authority.

1. Attending to the question of subsequent purchasers to be bona fide purchaser, it may be stated that the transaction in favour of said ^ respondents has been executed through registered documents. The said ' respondent appeared in the Court and made statement of having purchased the property without notice of any agreement to sell, between the appellant and Rabnawaz and for valuable consideration. The appellants did not lead any rebuttal evidence to disprove this fact and to establish in positive terms that the respondents had the knowledge of the agreement to sell and have £ purchased the property with due notice and are not bona fide purchasers. The case of the appellants thus squarely hit by the case reported as PLD 1972 SC 25.

In the light of above also, we find that decision of the leaned Court on the issue of subsequently purchaser being bona fide, does not suffer from any illegality or vice calling for interference in this appeal. This appeal thus has no merit and the same is hereby dismissed.

(A.A) Appeal dismissed.

PLJ 2003 Lahore 194

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J. TRADEX (PVT.) LIMITED, LAHORE-Petitioner

versus GOVERNOR STATE BANK OF PAKISTAN and ahother-Respondents

W.P. No. 881 of 2002, heard on 25.10.2002. Constitution of Pakistan, 1973--

—- Art. 25-Special U S Dollars Bond Certificates were issued to petitioner in lieu of his foreign exchange account which was frozen in the year 1998, which were to mature on 26.3.2002 upon expiiy of three years maturity period-EDMD Circular No. 9 was issued on 15.6.2002, whereby clarification was made that said bonds with three years maturity that matures during 11.8.2001 to 22.3.2001, if redeemed in Pak Rupee, holder thereof were entitled to redemption of bonus of 5 percent irrespective of date on which they were presented for encashment—Petitioners bonds were to mature on 26.3.2002-Petitioner was, however, denied 5 percent redemption bonus on same terms—Respondents were unable to state single reason as to which such classification had been made between similarly placed citizen of country—Specification of said dates in circular dated 15.6.2002 was not based on intelligible differentia and same was arbitrary and whimsical-Petitioner, thus, stood discriminated against in matter of application of EMDC Circular No. 9 dated 15.6.2002-Petitioner was declared to be entitled benefits of circular in question, uponfulfilment of its conditions. [Pp. 196 & 200] A & B

1991SCMR1041 ref.

Mr. Muhammad A. Qayyum, Advocate for Petitioner. Raja Abdul Ghafoor, Advocate for Respondents. Date of hearing: 25.10.2002.

judgment

According to this writ petition, the petitioner was holding foreign exchange accounts which was frozen in the year 1998 in lieu of Special US

Dollars Bond Certificates were issued in the sum of U.S $ 5.268 Million on

26.3.1999. These were to mature on 26.3.2002 upon expiiy of three years maturity period. By pledging the said bond as security the petitioner, in the first instance, obtained a loan of Rs. 436 Million from ABN Amro Bank. Videnotification dated 11.8.2001 the Respondent No. 2 declared that the holders of the said bond, upon encashment in Pak. rupees, shall receive a Rupee -f Redemption Bonus of 5% of the total rupee value of the bond. The Respondent No. I issued EDMD Circular No. 4 dated 11.8.2001 accordingly. In view of the said position a further loan of Rs. 46 Million was obtained.Videnotification dated 22.3.2002 (Annex-E) the said bonus has been withdrawn and Respondent No. 1 issued EDMD Circular No. 3 dated 22.3.2002. The said withdrawal and its consequences were stated to be illegal and void.

1. Comments were called for from respondents and these have been

filed on 28.5.2002 and 3.6.2002 respectively by-Respondents Nos. 1 and 2.

The plea raised in the comments was that the facility was provided vide

notification dated 11.8.2001 to give an incentive to the bond holders to

encash the same in Pak. rupee as there was a gap of around 5% between the

rates of interbank and kerb market at that time and since the gap has

become nominal and differential prevailing in both interbank and kerb

markets quathe U.S. Dollars vis-a-vis Pak. rupee is even placed, under the

said changed environment, the bonus was withdrawn vide notification

date 22.3.2002.

1. A further development took place in this case that on 15.6.2002

EDMD Circular No. 9 was issued by Respondent No. 1 whereby a

clarification was made that the said bond with three years maturity that

matures during 11.8.2001 to 22.3.2002 if redeemed in Pak. rupee, holders

thereof are entitled to redemption bonus of 5% irrespective of the date on

which they are presented for encashment. This case came up on 8.10.2002

and learned Deputy Attorney General and learned counsel for the

respondents was apprised of the said situation. Time was sought to seek

instructions.

1. Learned counsel for the petitioner argues that since acting on the said representation the petitioner proceeded to incur a liability of about Rs. 56 Million, the respondents would be estopped from withdrawing the said bonus on the principle of the promissory estoppel. With reference to the said latter Circular dated 15.6.2002, learned counsel states that this is clear case of discrimination inasmuch as the similarly placed persons have been granted the benefit while his client who is also entitled to the same stands excluded because, of the dates mentioned in the said EDMD Circular. Learned counsel for the respondents contends that no element of promissory estoppel is involved. In reply to the said second contention of the learned counsel for the petitioner, he argues that Government is entitled to grant the said benefit w.e.f. any date and this is what precisely has been done and since the case of the petitioner does not fall within the said parameter he is not entitled to claim the said benefit.

2. The facts of this case are admitted. There is no denial that the petitioner holds the said bonds; that 5% redemption bonus was to be paid under the said notification dated 11.8.2001 (Annex-C/1); that the said benefit was withdrawn vide notification dated 22.3.2002 (Annex-E/1) and that videEDMD Circular No. 9 dated 15.6.2002 the said benefit again stands granted but to holders of such bonds which matured during the period of 11.8.2000 to 23.3.2002.

3. So far as the contention of the learned counsel in the matter of withdrawal of the said bonus vide notification dated 11.8.2001 is concerned, I do not find much force in the same. It is being stated that the petitioner took a loan of Rs. 46 Million acting on the assumption based on representation contained in the said notification dated 11.8.2001 that the said bonus will be paid. However, it cannot be said that the petitioner acted to his detriment. Admittedly it took money from the bank and either is in possession of the same or has invested it else where for its benefit.

4. However, learned counsel for the petitioner is on strong footing vis-a-vishis second contention. Now vide EDMD Circular No. 9 dated 15.6.2002 the bonds maturing during the period of 22.8.2001 to 22.3.2002 and redeemed in Pak. rupee are to bear redemption bonus of 5% irrespective of the date on which they are presented for encashment. Now admittedly bonds being held by the petitioner were to mature on 26.3.2002. A plain reading of the said Circular would show that a holder of bonds maturing during the period of 11.8.2001 to 23.2.2002, even if he presented the bonds at a point of time after 22.3.2002 which can or may be a point of time beyond

26.3.2002 would get. 5% redemption bonus if he redeems the value in Pakistanis rupee but the petitioner standing by his side on the same date would not be getting the said 5% redemption bonus on the same terms. The Hon'ble Supreme Court of Pakistan has laid down principles with regard to equal protection of law in several judgments. Article 25(1) of the Constitution- came up for consideration in the case of LA. Sharwcmi and others u. Government of Pakistan(1991 SCMR 1041). Mr. Justice Ajmal

Mian (as his lordship then was) while delivering the leading opinion, after recapitulating case law on the subject, deduced the following principles of law with regard to equal protection of law. These are to be found in Para -26 of the judgment at Page 1086 as follows-

(i) that equal protection of law does not envisage that eveiy 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 founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to te.st 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 arbitrary and is not found on any

rational basis is no classification as to warrant its exclusion

from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable; it should be based-

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

1. The principles as to the classification were thus laid down in Para-27 of the report after quoting with approval of commentary by V.N. Shukla on the Constitution of India 7th Edition.

(a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.

(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 14 (Corresponding to Article 25 of Pakistan Constitution) has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact.

(c) It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are .based on adequate grounds.

(d) The Legislature is free to recognise the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.

(e) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the histoiy of the times and may assume eveiy state of facts which can be conceived existing at the time of legislation.

(f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the fact of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

(g) A classification need not be scientifically perfect or logically complete.

(h) The validity of a rule has to be judged by assessing its overall effect and not by picking un exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.

1. Now applying the said rule to the facts of the said case wherein question was whether a specified date can be made basis for classification, it was thus observed by his lordship in Para -30 of the judgment at Pages 1089 and 1090 of the report: -

"30. It may be stated that as a general proposition it cannot be laid down that in no case a specified date can be made basis for classification. It will depend on the facts of each case and if the specification of a particular date is based on .an intelligible differentia, which in turn has nexus to the object for which the relevant statute has been enacted, such classification will be legal and valid but if the specification of a date is arbitrary or whimsical, it cannot be made basis for classification as has been held in the above case of D.S. Nakara and others v. Union of India (supra) by the Indian Supreme Court. Furthermore, a distinction is to be drawn between a case in which a date is specified for the purpose of qualifying for certain benefit under certain enactment/scheme and a date which may be specified for the enforcement of a particular Taxing Statute or a notification granting certain concession from payment of taxes and excise duty. In our view, the former categoiy should pass the test of reasonable classification, whereas for the latter categoiy, there is no such requirement as the Legislature or the Government has the discretion/power to fix a date for the enforcement of a particular statute or for granting certain concession in respect of tax or excise duty, and for that purpose, there cannot be any mathematical or logical way of fixing a date except that the Legislature of the Government may fix the same according to its own need and convenience.

To may mind, present is a case in which a date has been specified for the purposes of qualifying for certain benefits under certain enactment/scheme. Now according to the said dictum of Hon'ble Supreme Court this category has to pass the test of reasonable qualification on -the touch stone of the above referred principles stated by the Apex Court.

1. Learned counsel for the respondents was called upon to explain as to on what basis the said dates i.e. 11.8.2002 to 22.3.2002 have been fixed. Learned counsel replies that in fact the intention of the said Circular is that benefit has been given to such persons who have purchased such bonds from

11.8.2001 to 22.3.2002. He refers to Para-2 of the Circular. Now Para-2 of the said Circular does provide that bonds sold during the period of 11.8.2001 to

22.3.2001 would be entitled to the said bonus on maturity during the period of 11.8.2004 to 22.3.2005 if redemption is made in Pak. rupees. However Para 2 caters for the situation mentioned therein, whereas Para-1 clearly grants the said benefit to the holders of the bonds maturing during the period 11.8.2001 to 22.3.2002 irrespective of the date on which they are presented for encashment. Learned counsel is unable to state a single reason as to why this classification has been made between similarly placed citizens of the country. To my mind, it can be safely assumed that the specification of the said dates in the said Circular dated 15.6.2002 is not based on intelligible differentia and is clearly arbitrary and whimsical.

1. For all that has been discussed above, I do find that the petitioner stands discriminated against in the matter of application of said EDMC Circular No. 9 dated 15.6.2002. This writ petition is accordingly allowed and the petitioner is declared to be entitled to the benefit of said EDMD Circular No. 9 upon fulfilment of its conditions. No order as to costs.

(A.P.) Petition accepted.

PLJ 2003 Lahore 200

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J.

SALAH-UD-DIN-Petitioner

versus

SECRETARY FORESTRY, WILD LIFE, FISHERIES & TOURISM

DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 5 others—Respondents

W.P. No. 2798 of 2000, heard on 3.10.2002.

(i) Murree Kahuta Development Authority Act, 1986--

—-S. 32-Punjab Civil Servants Act (VIII of 1974), S. 5-Punjab Service Tribunal Act (IX of 1974), S. 4-Employee of Murree Kahuta Development Authority, was not a Civil Servant within the meaning of Punjab Civil Servants Act, 1973 or Punjab Service Tribunal Act 1974- Rule making power, has not been left to respondent corporation rather Government has retained said power and Murree Kahuta Development Authority Service Rules 1994, have been promulgated by Governor in exercise of powers under S. 32 of Murree Kahuta Development Authority. Act 1986-Petitioner was, thus, not a Civil Servant, therefore, he could not agitate his grievance before Service Tribunal-Constitutional petition was competent in circumstances. [P. 202] A

(ii) Murree Kahuta Development Authority Act, 1986--

—S. 32-Employee relieved from duties on account of misconduct-Departmental appeal was initially not decided and same was subsequently decided without affording opportunity of being heard to petitioner and without application of mind on the direction of High Court--Contention raised by petitioner, were not decided by Appellate Authority-Order passed by Departmental Authority was found to be without lawful authority and same was set aside-Departmental appeal filed by petitioner would be deemed to be pending before Appellate Authority to be decided in accordance with law after hearing petitioner as well as all concerned person. [P. 203] B

HaftzS.A Rehman, Advocate for Petitioner.

Raja SaeedAkram, A.A.G with Mr. M.D. Abbasi, D.F.O Rawalpindi.

Date of hearing: 3.10.2002.

judgment

This judgment shall dispose of W.P. No. 2798/2000 and 771/2000 as common questions are involved. 2. The petitioner .was serving as an Assistant Engineer in Murree- Kahuta Development Authority (MKDA) since 2.10.1989. Estimates for the construction of a Road from Chaka-Kas to Biaga received the administrative approval videletter dated 22.11.1995 in the sum of Rs. 31.49 lac. The tenders filed by M/s. H.R. Builders were accepted on 14.1.1996. The estimate was technically sanctioned in the sum of Rs. 29.80 lac. The contractor was paid for work down by him after due verification and endorsement of the then Superintendent Engineer approved by the Director General MKDA. He was transferred to the Head Office at Rawalpindi .in September, 1997. Meanwhile, the site was handed over and taken over by Kahuta Directorate under orders of the Director General, vide meeting held on 2.10.1997. While the petitioner was so appointed in the Headquarters further payments were made to the said contractor after verifying the work done by Acting SDO Mr. Ahmad Khan.

1. On 27.8.1998 a show-cause notice was served upon the petitioner by Respondent No. 5 (authorised officer) to the effect that it has been reported by Mr. Kamran Jehangir, Director, MKDA Kahuta that the contractor has been paid for the work which has not been done at site. A reply was filed by the petitioner and he stated that the spot inspection be made and the work be verified. The petitioner was also intimated that since the said Director has personally verified the facts on site the inquiiy will not be conducted and the petitioner was to be proceeded against under Rule 6(3)of the Punjab Civil Servants (E'&D) Rules, 1975. The authorised officer vide letter dated 23.10.1998 proposed imposition of major penalty on the petitioner. The Director General of MKDA vide order dated 18.11.1998 held the petitioner guilty of misconduct and imposed penalty of recovery of Rs. 5,00,000/- from the petitioner with the direction to deposit the amount within 50 days failing which he shall stand removed from service.-He filed a departmental appeal which was not attended to and W.P. No. 2689/99 was filed and this Court directed the appellate authority to decide the appeal. The appeal was dismissed vide order dated 30.9.2000. Writ Petition No. 2798/2000 has heen filed to challenge the said orders. The writ petition was admitted to regular hearing vide order dated 27.2.2000. Meanwhile, the said MKDA was dissolved and the petitioner amongst others was called upon to report to the S&GAD Department. His services were then transferred to the office of Chief Administrative, Auqaf, Punjab, Lahore. With reference to the said orders passed by the respondents, he was ordered to be relieved from duties as SDO, Pakpattan Zone, Pakpattan. W.P. No. 771/2000 has been filed to question the said order with reference to the said first mentioned writ petition. This latter W.P. No. 771/2000 was admitted to hearing on 23.5.2002 and the said order was suspended.

2. Learned counsel for the petitioner contends that in view of the charges made against the petitioner, an inquiry could not have been dispensed with and as such his client has been condemned without any hearing. Learned A.A.G. on the other hand, contends that the petitioner is a civil servant. In the alternate it is stated that the Service Rules are not statutory and as such cannot be enforced. In either eventuality, the writ petition is not competent. Further argues that in the circumstances of the case an inquiry was not necessary. I have gone through the files of these writ petitions in the light of the respective submissions made by the learned counsel and the learned Law Officer. I would like to deal with the said contentions of the learned Law Officer first. Admittedly the petitioner was an employee of MKDA which is a Corporation established under the MKDA Act, 1986. He is not a civil servant within the meaning of the Punjab Civil Servants Act, 1973 or the Punjab Services Tribunals Act, 1974. So far as the second contention is concerned, I find upon an examination of the said Act that the Rules making power has not been left to the Corporatoin, rather 'the Government has retained the said power and the MKDA Service Rules, 1994 have been promulgated by the Governor of the Punjab in exercise of powers under Section 32 of the said Act of 1986. Thus the said objections of the learned A.A .G are over­ruled.

3. While examining the several documents appended with these writ petitions I find that vide show cause notice dated 27.8.1998 (Annexure F) the S.E. MKDA, the authorised officer mentione'd the details of the work which was paid for but was not found on the spot. He then conveyed his decision to the petitioner that it is not necessaiy to conduct an inquiry and he is to be proceeded against under Rule 6(3) of the Punjab Civil Servants (E&D) Rules, 1975. The petitioner submitted his reply (Annexure H) denying the said allegations. Vide order dated 18.11.1998 with reference to an "inquiry report" dated 4.8.1998 of Director, MKDA the petitioner was found guilty and the said penalty was imposed. Now in his representation/appeal the petitioner complained that no inquiry has been held. I find that it was stated in the said appeal (P. 44 of the paper book) that the Director, MKDA (Enquiry Officer) has found that a sum of Rs. 10.053 lac was paid to the contractor in excess. It was further stated that some amounts due to the said contractor against another contract were being withheld and the same Director has noted the remarks on the measurement book that the note recorded by the SDO is irrelevant and is over-ruled and payment is recommended. According to the petitioner the said act and conduct of the said Enquiry Officer goes to show that the entire case against the petitioner is bogus. Now it was the said appeal that was to be decided by the appellate authority which proceeded to decide the same after the said directions of this Court. Now I do dot find a single word in order dated 30.9.2000 (Pages 51 to 53) about the categorical assertions of the petitioner. To my mind, it appears that the learned appellate authority has proceeded to pass the order and to dismiss the appeal without even reading the said memo of appeal. No doubt a Committee was constituted which carried out the inspection at the spot and as a result of the said inspection the amount was reduced to Rs. 4,87,589/- yet the said contention of the petitioner has not been considered at all.

4. The learned appellate authority ought to have considered the appeal keeping in view the fact that no. inquiiy was held in this case before imposing the major penalty and the said assertion of the petitioner contained in his representation was to be considered in proper perspective to fix the liability and to trace the actual or the other culprits involved in the case. I, therefore, find that a proper hearing has not been afforded to the petitioner at the appellate stage and further that the said order dated 30.9.2000 does not decide the contentions raised by the petitioner before the learned appellate authority. The order is found to be without lawful authority and is accordingly declared as such. Writ Petition No. 2798/2000 is accordingly allowed inasmuch as the appellate order of the Secretary, Government of Punjab, Forestry, Wild Life, Fisheries and Tourism Department is set aside. The result would be that the appeal filed by the petitioner shall be deemed to be pending before the said Authority. The appeal will be heard and all the points raised in the appeal shall be decided after examining the record and if need be after notice to the said Director. Learned A.A.G. to convey this order to the said learned appellate authority to whom a copy of this order shall also be remitted by the office immediately. The appeal shall be decided within six weeks of the receipt of the order after hearing the petitioner as well as all other concerned. So far as Writ Petition No. 771/2000 is concerned, the same is disposed of with the observations that the order of the Chief Administrative, Auqaf, Punjab, Lahore dated 19.2.2000 impugned therein shall be subject to the result of the appeal now to be heard by the said learned appellate authority. No order as to costs.

(A.A) case remanded.

PLJ 2003 Lahore 204

Present: MIAN SAQIB nisar, J. SULEMAN (deceased) THROUGH his LEGAL Representatives-Petitioners

versus

REHMAT ALI-Respondent G.R. No. 3366 of 1994, heard on 15.10.2002.

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

—S. 42-Suit for declaration that sale-deed relating to land in question, was fraudulent and that he had received no consideration-Plaintiff in his evidence had elaborated element of fraud and had deposed the manner respondent had procured sale-deed in question-None of witnesses produced by defendant had stated that document of alleged sale was read over to plaintiff and that he was made to understand as to what was nature of transaction-Mere appendage of thumb impression would not tantamount to valid execution of document, particularly in the case of illiterate person, until and unless same was read over to person in language he understands and is made to understand transaction in question-Such aspect was conspicuously absent in present case-Witness produced by defendant had admitted that no consideration was paid in their presence—Alleged sale-deed was, thus, fraudulent and fake.

[Pp. 206 & 207] A & B

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

—Civil Procedure Code (V of 1908), S 115-Alleged sale-deed proved to be fraudulent and without consideration-Findings of facts recorded by Courts below were found to be result of mis-reading and non-reading of evidence on record-Judgment and decree rendered by Appellate Court was set aside while that of trial Court decreeing suit was restored.

[P. 207] C

Mr. Tariq Masood, Advocate for Petitioners. Ch. Abdul Majeed, Advocate for Respondent. Date of hearing; 15.10.2002.

judgment

The dispute between the parties, relates to 14 Kanals 2 Marias of land, situated in Chak No. 21/GB Tehsil Jaranwala District Faisalabad. On 20.11.1988, the petitioner filed a suit for declaration claiming that the respondent has fraudulently got a sale-deed dated 28.3.1987, executed in his favour qua the suit land, though he did not appear before the Sub-Registrar etc. In the written statement, the respondent took up the plea that in fact, the land had been sold to him about 10/12 years ago and the entire consideration amount of Rs. 12,000/- was received by the petitioner; however, the sale-deed was not effected on the promise of the petitioner that when the other sale-deeds would be executed, this instrument shall also be effected in his favour.

1. Issues were framed, parties were put to trial. The petitioner examined himself as PW-1. He deposed that he did not receive any consideration amount and that the respondent fraudulently, in the garb of getting execution of other sale-deeds, had procured his thumb impressions on the sale-deed in -dispute. It is his case. that the respondent was a ( 3 ^ li\1/-^0) of wife of the petitioner upon whom, he had full trust and he had also been dealing with his property matters and that on the date, when the other sale-deeds were executed, the respondent had obtained his thumb impressions on the disputed.sale-deed as well. PW-2 Muhammad Akram has also stated that the respondent had not paid any amount to the petitioner and the petitioner has not executed the sale-deed in favour of the respondent. As against the above, the respondent examined DW-1 Ahmad Ali Sub-Registrar, DW-2 Muhammad Asghar is the deed writer, whereas DW-3 Ch. Naseer Ahmad and DW-4 Ghulam Nabi, are the marginal witnesses. The respondent himself appeared as DW-5.

2. On the conclusion of the trial, the learned Civil Judge, allowed the suit, holding that the respondent had failed to establish, if the amount of consideration of Rs. 12,000/- was paid to the petitioner at the time of execution of the sale-deed. Aggrieved, the respondent preferred an appeal and the learned appellate Court, while differing in reasons, accepted the claim of the respondent and dismissed the suit of the petitioner, hence this revision petition.

3. Learned counsel for the petitioner contends that according to the case of the respondent, the consideration of Rs. 12,000/- had been paid to the petitioner about 10/12 years before the execution of the sale-deed; however, there is no evidence led in this behalf; neither it has proved that possession of the disputed property was delivered to the respondent at the time, when he claims to have taken the possession i.e. 10/12 years before the execution of the sale-deed; all the four witnesses, have in clear terms stated that the amount of Rs. 12,000/- was not paid in their presence. It is also stated that the respondent has admitted in his cross-examination that he is |)u 1L-\ ^ ) of petitioner's wife and has also been looking after the property matters of the petitioners, thus, it is in this scenario that he has played fraud and while getting the execution of sale-deeds Ex. D. 2 to Ex. D. 4, also obtained the execution of Ex. D. 5 (disputed sale-deed).

4. Replying to the above, learned counsel for the respondent has drawn the attention of this Court, to Paragraph No. 6 of the plaint, in which, it is the case of the petitioner that he never appeared before the Sub- Registrar or executed the sale-deed. But, it is stated that while leading evidence, this has been contradicted and a new case has been set up; it is settled law that no case beyond the scope of pleadings can be set out. It is also stated that the respondent through witnesses, in unequivocal term, had proved on the record that the petitioner, had affixed his thumb impressions on the disputed sale-deed Ex. D. 5; Moreover this has also been admitted by the petitioner while appearing as PW-1. In these circumstances, it is proved beyond doubt that Ex. D. 5 is a document, which was executed by the petitioner out of his free will, for the consideration, which he had earlier received about 10/12 years ago and had also delivered the possession to the respondent, where the respondent has raised constructions as well.

5. I have heard the learned counsel for the parties. As regards the objection of the learned counsel for the respondent that the evidence of the petitioner is against the pleadings, suffice it to say that according to Paragraph No. 6 of the plaint, the petitioner in clear terms, has stated that the impugned sale-deed is based upon fraud; he has not received any amount and had not appeared before the Sub-Registrar. In his evidence, he has elaborated the element of fraud and has deposed the manner, the respondent has procured the execution of the sale-deed in dispute while the petitioner was executing the sale-deeds of the other properties Ex. D. 2 to Ex. D. 4. The averments made in the plaint, though are bit concise, but it cannot be held that the evidence of the petitioner is beyond the scope of his pleadings or he has set up a new case. In fact, the main issue between the parties is, whether the impugned sale-deed is result of fraud and forgery. The petitioner, while appearing as a witness, has given the particulars of fraud, whereas the case of the respondent is that he had purchased the property about 10/12 years ago and made the full payment of consideration of Rs. 12,000/- and also obtained the possession, where he has also raised the constructions. The petitioner postponed the execution of the sale-deed on the pretext that the same would be executed alongwith other sales as and when made by the petitioner. In order to prove a valid sale, the initial burden whereof was on the shoulders of the petitioner and shifted to the respondent, the respondent examined DW-2 Muhammad Asghar, scribe of the impugned sale-deed. This witness has only mentioned that the petitioner affixed his thumb impressions on Ex. D. 5 the impugned sale-deed. However, he has conceded that no payment of Rs. 12,000/- was made in his presence. This is also not the statement of this witness that contents of the sale-deed Ex. D. 5 were read over to the petitioner and he had thumb marked the document after understanding the contents and the nature of the transaction. DW-3 Ch. Naseer Ahmad has only deposed that he identified the petitioner at the time of execution of the sale-deed and has conceded that no payment was made in his presence and it is not his deposition that the document was read over to the petitioner. DW-4 Ghulam Nabi, the other marginal witness has also admitted that no payment was made in his presence. He too has not stated, if the document was executed by the petitioner after it was read over to him. Though, an effort has been made by the learned counsel for the respondent to argue that the petitioner is a literate person, because he has admitted in his statement that he is a LMmbardar, yet there is no proof on the record, rather the fact that the petitioner is not able to sign, is sufficient proof that he is an illiterate person. None of the witnesses, as mentioned above, has stated that the document was read over to the petitioner and he was made to understand as to what nature of transaction, he is entering into. It is settled law that mere appendage of thumb impression on a document, would not tantamount to a valid execution of a document, particularly in the case of an illiterate person, until and unless, the document is read over to the person in the language he understands and is made to understand as to the nature of the transaction. This aspect of the matter, is conspicuously missing in the present case. Moreover, the respondent claims that the consideration amount of Rs. 12000/ was paid to the petitioner about 10/12 years before the execution of the sale-deed, but he has led no evidence in that behalf. All the witnesses produced by the respondent, in their examination-in-chief, have admitted that the consideration was not paid in their presence. This is also not established on the record, if the respondent had taken over the possession of the suit property as allegedly claimed by him at the time when the consideration was paid. In the cross-examination, the respondent stated that amount of Rs. 12,000- was paid in the "Baithak"of Muhammad Bakhsh, but Muhammad Bakhsh has not been examined to corroborate the above fact.

In the light of above, all these aspects, have not been considered by the learned Appellate Court and tantamounts to gross mis-reading and non-reading of the evidence on the record. Such findings of facts, which are erroneous for the reasons mentioned'above,, cannot be sustained under the law. Resultantly, by allowing this petition, the impugned judgment and decree passed by the learned Appellate Court is set aside and that of the learned Civil Court is upheld with the result that suit of the petitioner stands decreed. No order as to costs.

(A.P.) Revision accepted.

PL J 2003 Lahore 207

Present: syed sakhi hussain bukhari, J. Syed MUHAMMAD and another-Petitioners

versus

Mst. AMEER KHATOON-Respondent C.R. No. 979 of 2002, heard on 31.10.2002.

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

—-O. XLI, R. 23 & S. 115-Remand of case by Appellate Court only on the ground that documents tendered in evidence and exhibited did not bear signatures of Civil Judge-Non-signing of documents by Civil Judge being mere procedural irregularity same was curable and there was no justification to remand case, on that account alone. [P. 209] A

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

—-0. XLI, R. 23 & S. 115--Non-signing of exhibited document by Civil Judge-Order of remand of case on that account was liable to be set aside—Even otherwise counsel for respondent has no objection if judgment passed by Appellate Court was set aside-Impugned judgment being not sustainable in law was set aside-Case was remanded to Appellate Court for decision on merits and to dispose of same within specified time. [P. 209] B

AIR 1933 Sindh 379; PLD 1994 Lahore 399; PLD 1975 Lahore 1170; 1993 CLC 1158 ref.

Hafiz Abdur Rehman Ansari, Advocate for Petitioners. Mr. M. Zubair Saeed Awan, Advocate for Respondent. Date of hearing: 31.10.2002.

judgment

This revision petition is directed against the judgment dated 15.3.2002 passed by learned Addl. District Judge, Mianwali whereby appeal brought by petitioners against the judgment dated 10.9.2001 passed by learned Civil Judge, Mianwali was accepted and case was remanded for decision afresh.

1. The brief facts of the case are that Mst. Ameer Khatoon, respondent filed a suit for possession through pre-emption against the petitioners. The petitioners appeared before trial Court and on the pleadings of parties, issues were framed.

2. After recording evidence trial Court decreed the suit videjudgment dated 10.9.2001. The petitioners filed appeal against said judgment which was accepted by learned Addl. District Judge, Mianwali vide judgment dated 15.3.2002, and case was remanded for decision afresh. Hence this revision petition.

3. I have heard the arguments and perused the record.

4. Learned counsel for the petitioners submits that appellate Court remanded the case only on the ground that documents exhibited during evidence were not duly signed by learned Civil Judge. Further submits that it was merely irregularity and there was no justification for remand of case, therefore impugned judgment is liable to be set aside. He has prayed for issuance of direction to the learned appellate Court to dispose of appeal on merits.

5. Learned counsel for the respondent submits that it was not necessaiy for the appellate Court to remand the^case merely for failure to sign documents tendered in evidence. Further submits that he has no objection if impugned judgment is set aside and learned appellate Court is

directed to decide the appeal on merits and in accordance with law within a reasonable time.

7.1 have considered the submissions made by learned counsel for the parties with care. As mentioned above learned Addl. District Judge remanded the case only on the ground that documents tendered in evidence and exhibited did not bear signatures of learned Civil Judge. It is mere procedural irregularity which is curable and there was no justification to remand the case, on that account alone. Reliance in this respect can be placed upon Pribhadinomal Methumal and others v. Mt. Chuti and others (A.I.R. 1933 Sindh 379) and Talehmand and others vs. Mst. Aisha Bibi (PLD 1994 Lahore 399). Moreover none should suffer on account of act of the Court. This Court in the case (A Hakim Khan vs. Aurangzeb and another (PLD 1975 Lahore 1170) laid down the following rule about the interpretation of Order XIII Rule 4 CPC:-

"According to law in spite of an omission on the part of the trial Court is strictly following the procedure as laid down in Order XIII, Rule 4 C.P.C. the documents placed on record can be looked into and considered while deciding the case. Moreover, if any such omission has been committed by the Court then it is not due to the fault of the party concerned. In the circumstances there could be no reason as to why such party should be penalized for the omission of the Court."

Later on the same proposition was again considered in the case of Muhammad Siddique and 2 others v. Faqir Muhammad and another (1993 CLC 1158 (Lahore) wherein the following rule was laid down:-

"Mere failure to exhibit a document formally would not make any difference and if was found necessaiy for just decision of the case, the material relied upon by the party should be summoned and treated as evidence in the case without any formalities".

So impugned judgment is liable to be set aside. Even otherwise as mentioned earlier learned counsel for the respondent too has no objection if judgment passed by learned Addl. District Judge is set aside. In these circumstances I find that impugned judgment is not sustainable in the eyes of law and the same is liable to be set aside.

1. The upshot of the above discussion is that this revision petition is accepted, impugned judgment is set aside and learned Addl. District Judge is directed to dispose of appeal on merits and in accordance with law. Learned counsel for the parties have prayed for issuance of a direction to learned Addl. District Judge to dispose of appeal within a reasonable time. The case is pending since 28.9.1996, therefore, learned Addl. District Judge is directed to dispose of appeal within three months (till 30.1.2003). The parties shall appeal before learned Addl. District Judge on 16.11.2002. No order as to costs.

(A.A.) Case remanded.

PLJ 2003 Lahore 210

Present: ch. ijaz ahmad, J. BASHIR AHMED and 5 others-Petitioners

versus Mst. HAMIDA BEGUM and 5 others-Respondents

C.R. No. 739 of 1997, heard on 20.6.2002.

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

—-Ss. 11 & 115-Transfer of Property Act (V of 1882), S. 52-Principles of Uspendens and res-JMd/cata-Applicability-Question of title was deeided between parties by Supreme Court in earlier round of litigation-­ Supreme Court had decided in favour of respondent subject to payment of balance amount-Petitioner failed to bring on record any document to show that respondent did not deposit balance amount within stipulated period as prescribed by Supreme Court in earlier judgment-Both Courts below had thus, rightly come to conclusion in subsequent suit filed by petitioners that respondent had beconie owner in possession of house in question-Petitioners were basing their title on a decree which was secured by them during pendency of litigation either before High Court or before Supreme Court-Courts below had thus, rightly given finding 6f fact that petitioners decree was hit by principle of Us pendens-Petitionerswere parties to proceedings in earlier round of litigation which was finalized between parties by Supreme Court—Petitioners did not point out decree secured by them either before High Court or Supreme Court- Both Courts were thus justified to non-suit petitioners-Once matter had been concluded upon Supreme Court, then Civil Courts had no jurisdiction to re-open same on principle of res-judicata.[P. 213] A

(ii) Civil Procedure Code, 1908 (V of 1-908)--

-— -S. 115-Concurrent finding of fact against petitioners-High Court has very' limited jurisdiction to interfere in findings of Courts below while exercising revisional jurisdiction under S. 115 C.P.C. unless and until same was result of mis-reading or non-reading of record—Petitioners failed to point out any piece of evidence which was misread by Courts below or violated any principle laid down by Superior Courts-No interference was thus, warranted in concurrent findings of Courts below.

[P. 214] B

1995 SCMR 429; PLD 1987 SC 46; PLD 1982 SC 146 and PLD 1949 P.C. 26 ref.

Mr. Muhammad Nawaz, Advocate for Petitioners.

Syed Kaleem Ahmad Khurshid, Advocate for Respondents.

Date of hearing: 20.6.2002.

judgment

The brief facts out of which the present revision petition arises are that the petitioners filed suit for possession before the Civil Judge, Okara on 13.5.1989. The contents of the plaint reveals that the titled suit was filed against the respondents seeking possession of House No. B 15. S.15 South measuring 4 Mariasand 7-1/2 sarsahis. The contents of the plaint further reveals that full unit of the house in question situated in B-Block Okara was allotted to the father of Respondents Nos. 1 to 5 namely Ejaz as claimant on 11.12.1959. The measurement of the house in question was 9 Marias 6 sarsahi. Abdul Wahid brother in law of said Ejaz Ahmad original allottee was his attorney who as attorney transferred half share of the house in question to his wife Flora Maryam and executed relinquishment deed dated 20.12.-1963. The amount was paid through agreement. The remaining other half southern side of the house in question was got transferred vide registry Bearing No. 310 dated 19.3.1968 in his own name by making misrepresentation of the father of Respondents Nos. 1 to 5. The contents of the plaint further reveals that father of the respondents and Abdul Wahid under Scheme No. 8 could not deposit the amount in the Government treasury. Resultantly the southern portion of the house reverted back to the

auction pool. The father of the petitioners got the same southern portion on 10.6.1986 in an open auction and after making payment secured the PTD from Rehabilitation Department for the land measuring 4 Marias 7-1/2 sarsahi. After the death of their father Khuda Bakhsh' the petitioners/plaintiffs have stepped into his shoes and became owner of the property in question. The contents of the plaint further reveal that father of Respondents Nos. 1 to 5 filed a suit before the Civil Court Okara on 31.1.1979 against Mst.Flora Maryam etc. seeking possession of half southern portion of the disputed house in which Flora Maryam and her son Irshad Ahmad heirs of deceased Abdul Wahid filed consenting written statement before the Civil Court Okara. The learned Civil Judge decreed the

suit vide judgment and decree dated 24.4.1979. Father of Respondents Nos. 1 to 5 got possession of that southern side. The petitioners filed an application under Section 12(2) CPC against Flora Maryam etc. before the Civil Court Okara with the prayer that the decree passed by Civil Court Okara in favour of Respondent No. 3 be set aside. Flora Maryam and Irshad Ahmad filed a written statement in the said application and finally compromise decree was passed by the trial Court videjudgment and decree dated 26.3.1985 after recording statement of the parties in presence of their counsel. The contents of the plaint further reveal that it was agreed between the parties that on the southern side a shop be given to the respondents by the petitioners and the parties with their joint expenditure make a partition wall and possession of the parties was admitted. The contents of the plaint further reveal that the aforesaid compromise was acted upon to the extent that wall was made in terms of the agreement dated 24.3.1985. The contents of the plaint further reveal that petitioners/plaintiffs claimed possession of the house in question on the basis of the aforesaid compromise decree dated 26.3.1985 but the respondents did not act in terms of the agreement arrived between the parties and refused to accept the claim of the petitioners/plaintiffs over the property in question. The respondents filed separate written statements, controverted the allegations levelled in the plaint. Out of the pleadings of the parties following issues were framed:-

1. Whether the suit is not maintainable in its present form? OPD. 1A to 5A. .

2. Whether the plaintiffs are estopped by their conduct to file the present suit? OPD.

3. Whether the defendants are entitled to recover compensatory costs under Section 35-A of CPC? OPD-l-A to 5-A.

4. Whether the suit has been incorrectly valued for the purposes of Court-fee and jurisdiction? OPD 1A to 5A.

5. Whether the suit is not maintainable in view of preliminary objection of Defendant No. 2? OPD-2.

6. Whether the plaintiffs have no cause of action? OPD.

7. Whether the plaintiffs have no locus standil OPD.

8. Whether the plaintiffs are entitled to get the possession of the suit property as prayed for? OPP.

9. Whether the plaintiffs are entitled to recover an amount of Rs. 21,600/- from the defendants? OPP.

10. Relief.

11. The learned trial Court dismissed the suit vide judgment and decree dated 20.7.1994. The petitioners being aggrieved filed appeal before the Additional District Judge, Okara who dismissed the same vide judgment and decree dated 20.2.1997. Hence the present revision petition.

12. Learned counsel of the petitioner submits that judgments of both the Courts below are result of mis-reading and non-reading of the record. The petitioners were non-suited by both the Courts below on the basis of the judgment of the Honourable Supreme Court dated 7.11.1990 (Exh. D/2) passed in Civil Appeal No. 125/80. He further submits that aforesaid judgment was passed by the Honourable Supreme Court in the settlement side. Therefore, both the Courts below were erred in law to rely upon the judgment of the Honourable Supreme Court. He further submits that judgments passed by the Civil Court Exh. P/2 and Exh. P/3 in favour of the I'espondents and petitioners were not set aside by any higher Court as the same were not challenged before any higher forum therefore, those judgments attained finality. He further urges that both the Courts below did not consider the documentary evidence of the petitioners. Therefore, judgments of both the Courts below are result of mis-reading and non- reading of the record. He further urges that petitioners placed on record plethora of documents but hoth the Courts below were erred in law npt to consider the documentary evidence of the petitioners. He further urges that petitioners were defrauded by the respondents. This aspect of the case was not considered by both the Courts below.

4: Learned counsel of the respondents "submits that the petitioners are auction purchasers and have no right what-so-ever qua the property in question. The Honourable Supreme Court after considering all the facts and circumstances decided the case against the petitioners. He further urges that Civil Court has no jurisdiction to reopen the matter which had already been finally decided by the Honourable Supreme Court. In support of his contention he relied upon Abdul Majid's case (1995 SCMR 429). He further urges that suit filed by the petitioners is not maintainable in the eyes of law. The petitioner has to file execution petition. Therefore, both the Courts below were justified to non-suit the petitioners. The summed up his arguments that both the Courts below have given concurrent findings of fact against the petitioners. Therefore, the revision petition is liable to be dismissed.

1. 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 the operative part of the judgment of the Honourable Supreme Court to resolve the controversy between the parties:

"In view of what has been stated above, we accept this appeal and hold the orders passed by the Settlement Department to be without lawful authority and of no legal effect. The appellant shall deposit the balance amount within two months failing which the authorities will proceed in accordance with law. The result would be'that the cost of both the parties will be paid by the Settlement Department."

The petitioners failed to bring on record any document to show that Mst. Flora Maryam Respondent No. 1 did not deposit the balance amount within the stipulated period as prescribed by the Honourable Supreme Court in the aforesaid judgments. In this view of the matter both the Courts below had rightly come to the conclusion that Mst. Flora Maiyam had become the owner of the house in her possession. It is also admitted fact that aforesaid decree dated 26.3.1995 was secured by the petitioners during the pendency of the litigation either before the High Court or before the Honourable Supreme Court. In this view of the matter both the Courts below have rightly given finding of fact against the petitioner that aforesaid decree was hit by the principle of lis pendence. It is pertinent to mention here that petitioners were parties in the proceedings in the earlier round of litigation which was finalized between the parties by the Apex Court of the countiy in the aforesaid judgment. The petitioners did not point out the decree secured by them dated 26.7.1985 either before this Court or before the Honourable Supreme Court, in the earlier round of litigation. Therefore, both the Courts below were justified to non-suit the petitioners. It is settled principle of law that once the matter has been concluded up to the apex Court then the Civil Court has no jurisdiction to reopen the same on the well known principle of res-judicata. In arriving to this conclusion I am fortified by the following judgments:-

1. AsifJan Siddiqui versus Govt. of Sindh and others (PLD 1987 S.C.46).

2. Abdul Majeed and others vs. Abdul Ghafoor Khan (PLD 1982 S.C. 146).

It is also admitted fact that both the Courts below have given concurrent finding of fact against the petitioners. It is settled principle of law that this Court has veiy limited jurisdiction to interfere in the finding of the Courts below while exercising revisional jurisdiction under Section 115 CPC unless and until the same is result of mis-reading or non-reading of the record. Learned counsel of the petitioners failed to point out any piece of evidence which was misread by the Courts below or violated any principle laid down by the superior Courts therefore, revision petition has no merit as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar versus The Hindu Religious Endowment Board (PLD 1949 Privy Council 26).

In view of what has been discussed above, this revision petition has no merit and the same is dismissed.

(A.A) Revision dismissed.

PLJ 2003 Lahore 214

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwarul haq, J.

MEHDI ABBAS KHAN-Petitioner

versus

SECRETARY ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 8 others-Respondents

W.P. No. 3111 of 2002, heard on 28.10.2002. Conduct of General Elections Order 2002--

—-Art. 8-A-Constitution of Pakistan (1973), Art. 199-Matters pertaining to result of election have to be dealt with by Election Tribunal to be constituted in terms of Article 225 of onstitution- Result of election having been notified by Election Tribunal, all matters pertaining to result of election were to be resolved by Election Tribunal which has been constituted-Pure question of fact being involved in writ petition, same should better be resolved by Election Tribunal-Writ petition was disposed of with observation that petitioner should approach Election Tribunal and he would be at liberty to raise all legal and factual objections as were available to him including one raised in writ petition. [P.216JA&B

PLD 1989 SC 396; PLD 1997 Lahore 250; PLD 2002 SC 184 and 1994 SCMR 1299 ref.

Mr. Muhammad Ahmad Qayyum, Advocate for Petitioner. Sh. Muhammad Akram, Advocate for Respondent No. 2. Mr. Iftikhar Hussain Shah, S.O. for Respondent No. 1. Date of hearing: 28.10.2002.

judgment

The petitioner on the one hand and private respondents on the other contested election to the seat of Provincial Assembly (Punjab) PP-205 (Multan XII). According to the petitioner as per result tabulated by the Returning Officer on 12.10.2002 and announced by Respondent No. 2 he was declared elected with 25,293 votes while the tally of Respondent No. 3 was 25135 votes. This result was revised by Respondent No. 9 and according to the revised statement of count Respondent No. 3 was shown to have bagged 25,902 votes. This writ petition was filed in this Court on 23.10,2002. Some objections were raised by the office and same were disposed of on 23.10.2002. The case same up on 24.10.2002 when after noting the contention of the learned counsel for the petitioner notice was issued for today.

1. Meanwhile the Election Commission for Pakistan issued a notification declaring Respondent No. 3 to be returned candidate from the said seat.

2. Learned counsel for the petitioner contends that Election Commission of Pakistan could not have directed Returning Officer to retabulate the results and only recount could have been ordered. Learned counsel for Respondent No. 3 on the other hand contends that the results have been notified and since Election Tribunals have been constituted, the matter can be decided only in election petition.

3. Learned counsel for the petitioner rejoins by citing cases of Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge/Returning Officer (1994 SCMR 1299) and Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar All Khan Khosa (PLD 1997 Lahore 250) to state that in the circumstances of this case election petition would not be adequate remedy. I have given some thought to the respective contentions of the learned counsel for the parties. Before I proceed further I may state here that Mr. Muhammad Akram Sheikh, learned counsel for Respondent No. 3 has tried to explain that the said retabulation was ordered on legal and equitable grounds and that a clerical error was corrected. Learned counsel for the petitioner on the other hand has tried to argue that several other violations of law and rules had been committed in the course of election proceedings that may necessitate further correction/amendment of the result. However, for order I propose to pass I have restrained myself from ommenting upon respective pleas of the learned counsel for the contesting parties lest the ease of any of the parties before appropriate forum may be prejudiced.

4. It is admitted position that the result of Respondent No. 3 has been notified by the Election Commission of Pakistan and further that the Election Tribunals have also been constituted. Article 225 of the Constitu­tion ordains that all matters pertaining to the result of election are to be dealt with by the Election Tribunal to be constituted. In a recent judgment, although in the matter of Local Government Election, the provisions of said Article 225 also came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others (PLD 2002 S.C. 184). It will be noted that the said case of "Ghulam Mustafa Jatoi" (1994 SCMR 1299) was also considered and their lordships observed that the election petition is only appropriate remedy. It is true that the principles laid down in the case of Election Commission of Pakistan v. Javaid Hashmi and others(PLD 1989 S.C. 396) were held to be not applicable in the said case of "Ghulam Mustafa Jatoi". However, it was made clear that it is not intended to over rule the majority view in the said case of "Javaid Hashmi". Now what happened in the said case of "Ghulam Mustafa Jatoi" was that the order challenged was one passed by Returning Officer who proceeded to drop the name of the said 'appellant from the published list of candidates on 15.9.1993. Now according to the schedule for the said elections the last date for filing of appeal against the rejection of nomination Papers was 5.9.1993 while last date for deciding appeal by the concerned Tribunal was 12.9.1993. It was in the said circumstances that it was held that since the appellant would not at all be in a position to file an election petition or for that matter the said appeal before the said Tribunal, writ petition would be the only adequate remedy. Similarly in the circumstances of said case of "Sardar M. Jamal Khan Leghari" (PLD 1997 Lah. 250) it was again a case wherein order passed by the Returning Officer and affirmed by the Election Tribunal accepting the nomination papers of opposing candidate was challenged. Now it was held that election petition would not be proper remedy as it cannot be said that the said opposing candidate will succeed and his nomination could be challenged in the election petition. .This is not the case here. A pure question of fact is involved which better be resolved in the election petition. This writ petition is accordingly disposed of with the observations that the petitioner may §pproach learned Election Tribunal and in the said election petition he will be at liberty to raise all legal and factual objections as are available to him including one raised in this writ petition. No order as to costs.

(A.P.) Order accordingly.

PLJ 2003 Lahore 217

Present:abdul shakoor paracha, J. MUHAMMAD RAMZAN-Appellant

versus

ALLAH DITTA and another-Respondents F.A.O. No. 398 of 2002, decided on 27.8.2002.

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

—O. XXXIX, Rr. 1 & 2--Court has ample power to impose condition for deposit of money while exercising jurisdiction for granting interim injunction. [P. 218] A

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

—-0. XXXTX, Rr. 1 & 2-Grant of interim injunction subject to payment of balance amount in suit for specific performance of agreement to sell was neither fanciful nor illegal-Grant of injunction, on the contrary was fair, just and equitable in as much as, value of property in possession of appellant was increasing while money which was to be deposited by appellant was being devalued day by day with passage of time and vendor was put to un-necessaiy restriction by way of restraining order without deposit of money to sell property even to met his domestic needs like marriages, or to meet expenses of his children or to meet liis domestic problems which was not fair-No interference was thus, warranted in impugned order. [P. 218] B

1997 SCMR 1443; PLD 1990 Lahore 82 and PLD 1995 Lahore 438; ref.

Malik Noor Muhammad Awan, Advocate for Appellant. Date of hearing: 27.8.2002.

order

This appeal impugns the order dated 31.7.2002 passed by the Civil Judge, Faisalabad, whereby he accepted the application, under Order 39, Rules 1 and 2 CPC read with Section 151 of the Code filed by the appellant-plaintiff in a suit for specific performance of an agreement, by placing reliance on the judgment reported as CLC 1994 LHR 12 and directed the appellant to deposit the balance amount of Rs. 14,74,000/- in the Court within 30 days and the defendants were restrained from alienating the suit property as well as from interfering into the possession of the plaintiff-appellant till the final adjudication of the suit. If the plaintiff fails to deposit the remaining amount in the Court within stipulated period, the stay order was to be vacated automatically.

1. On the strength of the case reported as ManzoorAhmad and 6 others vs. Hamid Shah Gilani and another (1997 SCMR 1443), the learned counsel for the appellant contends that discretion has been illegally exercised by the learned Civil Judge while granting interim injunction in favour of the respondent subject to the deposit of the balance amount in the Court, 3. The above contention of the learned counsel for the appellant is not sustainable. The Court has ample power to impose the condition for deposit of money while exercising the jurisdiction for granting the interim injunction. It has been held in the case reported as Fateh Muhammad versus Muhammad'Hanif and another (PLD 1990 Lahore 82) that the Court can impose the condition while granting temporary injunction. In case reported as KhizarHayat vs. Mussarat Rabbani (PLD 1995 LHR 438) it has been observed that the Court has to see the facts and circumstances of each case while imposing the condition before granting interim injunction. The case of Manzoor Ahmad etc. (1997 SCMR 1443) is an authority which advances the case of the respondent rather than the appellant, because in that case the Civil Judge had accepted the application for grant of adinterim injunction as prayed for, subject to the condition that the plaintiff shall deposit the remaining sale consideration, i.e. Rs. 22,00,000/- in the Court by 30.11.1994, otherwise the injunction would not operate. In appeal the High Court modified the order of the learned Civil Judge to the extent that the plaintiff-Respondent No. 1 was directed to tender surety bond in the sum of Rs. 22,00,000/- to the satisfaction of the trial Court, within a period of 15 days. The Hon'ble Supreme Court accepted the appeal and set aside the order passed by the High Court in appeal and restored the order of the Civil Judge by observing that:

"—Discretion exercised by trial Court while granting ad-interim injunction in favour of plaintiff subject to deposit of balance amount in Court within reasonable time, was neither in excess of jurisdiction vested in it, nor arbitrary in nature so as to warrant interference by High Court. The plaintiff was already in possession of plot in question, and sale had been protected by interim injunction issued in his favour pending decision of suit filed by him."

In the present case also it is an admitted fact that the appellant has purchased the disputed property from the respondent for consideration of Rs. 28,00,000/-, out of which Rs. 13,26,000/- have been paid. The appellant-plaintiff has been delivered the possession in part performance of the agreement. His possession has been protected by the impugned order of the< Civil Judge, therefore, the interim injunction granted to the appellant1 subject to the payment of balance amount is neither fanciful nor illegal. On the contrary, it is fair, just and equitable because the value of the property in possession of the appellant is increasing while the money which is to be deposited by the appellant is being devalued day by day with the passage of time and the vendor is put to unnecessary restriction by way of a restraining order without deposit of money to sell the property even to meet his domestic needs like marriage or to meet the expenses of his children or to meet his own domestic problems, which is not fair. The case of Khizar Hayat

Khan (PLD 1995 LHR 438) is distinguishable. Following the judgment reported as Manzoor Ahmad etc. (1997 SCMR 1443) and relying on the judgment reported in PLD 1990 LHR 82,1 see no ground to interfere in the impugned order.

Resultantly, this appeal fails and is dismissed in limine.(A.A) Appeal dismissed.

PL J 2003 Lahore 219

[Rawalpindi Bench Rawalpindi]

Present maulvi anwarul-haq, J.

IMTIAZ AHMED LONE-Petitioner

versus

UNIVERSITY OF ENGINEERING and TECHNOLOGY, TAXILA through its Vice-Chancellor

and 2 others-Respondents

W.P. No. 1457 of 2002, decided on 5.11.2002. Educational Institution--

-—Constitution of Pakistan (1973), Art. 199-Admission to B.Sc class of Engineering University-Admission and subsequent expulsion of petitioner in terms of clause 34.5 of Prospectus of University of Engineering and Technology Taxila for years 2000-2001-Legality-A student under clause 34.5 of Prospectus can be expelled only if he had been provisionally admitted and upon proof that any document or certificate filed by him was proved to be false, fake or fabricated at a later stage-No allegation was ever levelled that any document filed by petitioner was found to be false, fake or fabricated-So far as matter of less marks in F.Sc. was concerned, that was a matter to be checked before granting admission to petitioner and not thereafter-Order of expulsion of petitioner from Engineering University was set aside in circumstances.

[P. 221] A 1997 SCMR 15 ref.

Mr. Mujeeb-ur-Rehman Kiani, Advocate for Petitioner. Mr. Mumtaz Ahmad Bilal, Advocate for Respondents. Date of hearing: 5.11.2002.

judgment

The petitioner migrated from the Indian Held Kashmir in the year 1990 and took refuge in a Refugee Camp at Muzaffarabad. He did his Matriculation and then did F.Sc. Pre-Engineering securing 521 out of 1100 marks. He applied for admission to an Engineering College through the All Parties Hurriat Conference and an application was sent to Respondent No.

1. After process the case for his admission to the respondent University was approved for the Session 2000-2001. This information did not reach the petitioner in time and consequently he again filed an application for Session 2001-2002 which was processed in a similar manner. The Federal Government forwarded the application to the respondents for admission in B.Sc. Mechanical Engineering as a foreign national for the said Session. The requisite documents were supplied and the Admission Committee issued a call letter to him and he was admitted in the said University. He was registered as a regular student vide letter dated 21.1.2002 and started attending his classes when on 9.5.2002 he was expelled from the University on the ground that his marks in the F.Sc. Examination were below the minimum standard for admission in the .University. The Federal Government in its parawise comments filed in this Court on 19.7.2002 has supported the case of the petitioner. The respondent University, however, has stated that the petitioner has been rightly expelled in terms of clause 34.5 of the Prospectus.

2. Learned counsel for the petitioner contends that there is no denial that the petitioner had submitted all his papers and it was thereafter that admission was granted to him and thereafter he was registered as a regular student and as such Rule of locus potentia will apply. Relies on the case of Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others vs. Wasif Zamir Ahmad and another (1997 SCMR 15). Learned counsel for the respondents University, on the other hand, contends that since the petitioner did not fulfill the requirements he was correctly expelled under the said clause 34.5.

3. I have examined the respective pleadings of the parties and the documents placed on record by them. I find that there is no denial that all the requisite documents including the said F.Sc. results were produced by the petitioner and it was only thereafter that he was not only granted admission but later was registered as a regular student. Now I may reproduce the said clause 34.5 being relied upon by the learned counsel for the respondents:-

34.5 Provisional Admission.

"On fulfillment of the obligations mentioned in 34.2 a selectee will be admitted to the university. This admission shall however, be provisional until all the original degrees or certificates submitted by him have been checked for their veracity. In case any document proves to be false, fake, or fabricated at a later stage, a provisionally admitted student shall be liable to expulsion from the university and to any other disciplinary or legal action the university may deem fit.

Moreover, all the fees and charges deposited by him shall stand forfeited in favours of the university."

Now a bare reading of the said clause would show that the petitioner could not have been expelled by the respondent University in terms of the same. Now to my mind, under the said clause a student can be expelled only if he has been provisionally admitted and upon proof that any document or certificate filed by him is proved to be false, fake or fabricated at a later stage. It is a matter of record and the learned counsel for the respondents is in no position to even allege that any document filed by the petitioner was found to be false, fake or fabricated. It may be true -that as stated by the learned counsel for the respondents the result in the F.Sc. Examination was not upto the standard set by the respondent University but it cannot at all be said that the petitioner is guilty of any of the acts stated in the said clause 34.5 so as to authorise the respondent University to expell him. So far as the said matter of less marks in F.Sc. is concerned, that was a matter to be checked before granting admission to the petitioner and not thereafter. Since there is no allegation that the petitioner has committed or even has attempted to commit any fraud or falsification of documents the case is squarely covered by the said case of Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others vs. Wasif Zamir Ahmad and another (1997 SCMR 15), being relied upon by Mr. Mujeebur Rehman -Kiani, Advocate.

1. For all that has been stated above, this writ petition is allowed and the order dated 9.5.2002 of the respondents expelling the petitioner from University is set aside.

(A.P.) Petition accepted.

PLJ 2003 Lahore 224 [Rawalpindi Bench Rawalpindi]

Present: maulvi anwarul-haq, J.

AL-JEHAD TRUST (REGD.) RAWALPINDI and another-Petitioners

versus

HOUSE BUILDING FINANCE CORPORATION ISLAMABAD and 3 others-Respondents

W.P. No. 1058 of 1993, heard on 18.9.2002.

(i) House Building Finance Corporation Act, 1952-

—S. 24 (as amended by House Building Finance Corporation (Amendment) Ordinance 2001 (LXV of 2001)-Constitution of Pakistan (1973), Art. 199- Grievance of petitioners was that scheme termed as "diminishing partnership scheme" was undid by respondent corporation by passing a resolution on 31.7.1989-Point being pressed by counsel for petitioners having already been resolved in their favour by Shariat Appellate Bench of Supreme Court in judgment reported as PLD 2000 SC 760, and same stood complied with in as much as, S. 24 of House Building Finance Corporation Act 1952 having been suitably amended to make same in accord with directives contained in judgment, it would not be necessaiy to delve further on grievance of petitioners. [P. 226] A

(ii) House Building Finance Corporation Act, 1952-

—S. 24(20) as amended by House Building Finance Corporation (Amendment) Ordinance 2001-Constitution of Pakistan (1973) Art. 199- Benefits in terms of amendment in S. 24(2) of House Building inance Corporation Act 1952, would be available on date fixed i.e. 30.6.2000 by Supreme Court in its judgment reported as PLD 2000 SC 760, enactment made in pursuant thereto itself lays down cut out date for application of "diminishing partnership Scheme-Such being case nothing turn on contention of petitioners. [P. 227] B

(iii) House Building Finance Corporation Act, 1952--

—S. 24(20) as amended by House Building Finance Corporation (Amend­ment) Ordinance 2001-Constitution of Pakistan (1973), Art. 199-Respondent was directed to workout rental payable by petitioners and purchase installments directed by Shariat Appellate Bench of Supreme. Court as enacted in Ordinance LXV of 2001-Thereafter, petitioners would be intimated by means of notices containing said particulars.

[P. 227] C PLD 1992 FSC 501 and PLD 2000 SC 760 ref.

Mr. Habibul Wahab-El-Khairi,Advocate for Petitioners Sardar Muhammad Ashgar Abbasi, Advocate for Respondents. Date of hearing: 18.9.2002.

judgment

This judgment shall decide Writ Petition No. 1058 of 1993, Writ Petition No. 1210 of 1999, Writ Petition No. 2469 of 1999, Writ Petition No. 1374 of 2000, Writ Petition No. 1375 of 2000, Writ Petition No. 2324 of 1999, Writ Petition No. 2283 of 2000 and Writ Petition No. 2284 of 2000, as ) common question of law and facts are involved in all these petition and were ordered to be heard together.

1. All the petitioners in these cases had availed of finance facility provided by the House Building Finance Corporation .(hereinafter referred to be as "Respondent"). Pursuant to the recommendation made by the Council of Islamic Ideology interest was abolished on the loan advanced by the respondent and it was suggested that instead of advancing loans on the basis of interest, the Corporation should entertain partnership agreement with its clients on the basis of joint ownership of the house to be constructed with the money advanced and the clients being liable to pay rent to the respondent for use of its share in the said house/property Simultaneously the clients were to keep on purchasing the different units of the share of the respondent and in this manner, the principal amount invested by the 1 respondent will be gradually restored to it in the form of the price of its share in the said joint property. The suggestions made by the said Council were enacted in a statutory form by issuing an amending Ordinance in the year 1979. The Scheme is termed as "diminishing partnership Scheme".

2. The grievance being made out in all these cases is that the Corporation undid the said statutory enactment by passing a Resolution on 31.7.1989.

3. Learned counsel appearing for the petitioners in these cases argues that the matter was taken to the learned Federal Shariat Court and vide judgment dated 14.11.1991 (reported as P.L.D. 1992 F.S.C. 501) some provisidns including Section 24 of the House Building Finance Corporation Act, 1952, were declared repugnant to the Injunctions of Islam. The matter was further agitated before the Sharait Appellate Bench of the Hon'ble Supreme Court of Pakistan in the case of House Building Finance Corporation us. Raja Muhammad Sharif and 4 others (P.L.D. 2000 SC 760). The. Shariat Appellate Bench deprecated the said act of the respondent by nullifying several statutory enactment by a Resolution passed by its Board of Directors and further directives were issued in the manner in which the relationship between the respondent and its clients are to be governed and dealt with. According to the learned counsel, the respondents instead of adhering to the said Scheme and the directives of the Shariat Appellate Bench are going ahead with demanding and recovering interest in the from of fixed return form the petitioners.

4. Learned counsel for the respondent on the other hand informs that in pursuant to command of the Shariat Appellate Bench, the requisite amendments have been made in the House Building Finance Corporation Act, 1952, by promulgating House Building Finance Corporation (Amendment) Ordinance, 2001 (Ordinance LXV of 2001). Learned counsel, however, insists that the provisions of this Ordinance shall take effect from the date stated by the Shariat Appellate Bench in the case of. House Building Finance Corporation vs. Raja Muhammad Sharif and 4 others i.e. 30.6.2000 and the petitioners cannot get any benefit of the said law.

5. Since the point being pressed by the learned counsel for the petitioners already stand resolved in their favour by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the aforesaid judgment and the same stands complied with therefore, I do not feel necessity to delve further in the said contention. I find that Section 24 of the House Building Finance Corporation Act, 1952, had been suitably amended to make the amending Act in accord with the directives contained in the judgment cited supra.

6. The contention of the learned counsel for the respondent is based on Section 24(20) as substituted by the Ordinance LXV of 2001. The said sub-section (20) as printed in the Gazette of Pakistan extraordinary dated 23.11.2001 reads as follows:- "(20) Loans made before the first day of July, 1979, shall become due and payable alongwith accruals as on the last day of June, 2000, and all borrowers shall within three months from the commencement of the House Building Finance Corporation (Amendment) Ordinance, 2001, pay their entire obligations and investment made after the 30th of June, 1979, shall, .unless the Federal Government otherwise directs, continue to be governed by the terms and conditions on which they were made."

7. Sub-section (20) as it existed when it was considered by the learned Federal Shariat Court and the Shariat Appellate Bench reads as follows:— "Loans made before the first of Jail 1979 shall unless the Federal Government otherwise directs, continue to be governed by the terms and conditions on which they had been advanced."

8. Before the Federal Shariat, Court, it was stated by the learned Standing Counsel for the Federation under the instructions at the bar that the Federal Government does not support the said sub-section and it was accordingly declared repugnant, to the injunctions of Islam. Before the Shariat Appellate Bench the position taken by the learned counsel for the respondent was that the learned Standing Counsel could not have conceded the said matter in absence of the counsel for the respondent and without specific instructions from it. It was further represented before the Shariat Appellate Bench that this section relates to the transactions which are mostly past and closed. The official of the respondent further stated that in thousand cases compound interest has already been forgiven. The Shariat Appellate Bench disposed of the matter by observing that a date is being fixed when the decision shall take effect and Iheanwhile the Corporation should settle the past matters. However, the provisions of interest was declared certainly to be repugnant to the Injunctions of Islam.

9. In my humble opinion, sub-section (20) of Section 24 is to be read accordingly. So far as the contention of the learned counsel that the benefits will be available on the date fixed i.e.30.6.2000 by the Shariat Appellate Bench in the said judgment is concerned, the Said enactment made pursuant thereto itself lays down the cutout date (subject to my observation made above) for the application of the said "diminishing partnership Scheme". This being so, nothing turn on the said contention of the learned counsel.

10. For the reasons stated above, all these writ petitions are allowed. The respondent is directed to work out the rental payable by the petitioners and the purchase installments in the manner directed by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan as enacted in the Ordinance LXV of 2001. Thereafter the petitioners shall be intimated by means of notices containing the said particulars. This exercise shall be undertaken within two months from the date of this judgment. The petitioners shall then pay the amount so calculated within three months of the receipt of notices, failing which the Respondent Corporation shall be at liberty to proceed for the recovery of the amount so calculated from the petitioners and to adopt such process as is admissible under the law. There is no order as to costs.

(A.A) Order accordingly.

PLJ 2003 Lahore 227 Rawalpindi Bench Rawalpindi

Present: tanvir bashir ansari, J. Mst. SAIQA-Petitioner

versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 2 others-Respondents

W.P. No. 2163 of 2002, heard on 23.10.2002.

(i) Family Courts Act, 1964 (XXV of 1964)--

—-S. 5 & Sched.-Constitution of PaMstan (-1973), Art. 199--Trial Courts decreed for dissolution of marriage through Khulain favour of wife was maintained, howevej condition placed by trial Court that petitioner must return paid dower amount arid forego un-paid dower amount and also to forego decreed maintenance allowance was declared to be without legal effect. [P. 231] E

(ii) Muhammadan Law--

— -Marriage-Consideration is pre-condition and pre-requisite for valid matrimonial contract in absence whereof relationship between man and his wife could not be legitimized and same would be regarded as a sinful union. [P. 230] A

(iii) Muhammadan Law-

or benefit which is to be restored to husband by wife in lieu of obtaining Khulais in essence a gratuitious offering which may be restored by husband on wife-Such gift or benefit is not to fulfil any legal obligation but is merely voluntary in nature. [P. 230] B

(iv) Muhammadan Law-

-.K7zwfa--Restoration of benefit or gift-Dower whether paid or un-paid can never be in nature of a benefit or gift which is liable to be restored in consideration for granting Khuladivorce-Impugned judgment assed by Trial Court was not sustainable to extent that it makes grant of Khulasubject to condition of re-payment of paid amount of dower and to obligate her to forego unpaid dower amount-Impunged judgment and decree was, thus, liable to be modified to that extent. [Pp. 230 & 231] C

(v) Muhammadan Law-

—-Maintenance-Maintenance to wife was neither in nature of gift or benefit but same was undeniable legal obligation of husband to maintain his wife who was not staying away from him without just cause- Courts direction to wife to forego maintenance in lieu of Khulawas liable to be modified. [P. 231] D

Mr. Ziafat Hussain Cheema, Advocate for Appellant. Respondent No. 3 in Person. Date of hearing: 23.10.2002.

judgment

The petitioner filed three suits before Judge Family Court, the details of which are as under:—

1. SUIT FOR RECOVERY OF DOWER.

Mst. Saiqa, us. Qaiser Mehniood. Family Suit No. 26/2001.

1. SUIT FOR DISSOLUTION OF MARRIAGE.

Mst. Saiqa us. Qaiser Mehmood. Family Suit No. 27/2001.

1. SUIT FOR RECOVERY OF MAINTENANCE.

Mst. Saiqa. and another vs. Qaiser Mehmood. Family Suit No. 28/2001.

All the suits were consolidated and the following consolidated issues were framed:-

CONSOLIDATED ISSUES:

Whether the defendant had been treating the plaintiff with habitual cruelty? OPP. Whether the defendant has not paid the maintenance allowance to the plaintiff for more than two years? OPP. Whether the defendant is leading infamous life? OPP.

1. Whether the plaintiff has developed extreme aversion against the defendant and as such cannot live with him within the prescribed limits of Almighty Allah, so she is entitled to Khuladivorce on the grounds amongst others, if so on what terms and conditions? OPP.

2. Whether the plaintiffs are entitled to recover dower amount Rs. 20,000/- from defendant? OPP. Whether the plaintiffs are entitled to recover maintenance allowance from the defendant, if so, at what rate and for which period? OPP.

3. Relief.

4. After putting the parties to trial the learned Judge Family Court passed its judgment dated 31.5.2001 whereby it was held that the dower amount of Rs. 50,000/- was fixed out of which a sum of Rs. 30,000/- was paid to the petitioner while the remaining sum of Rs. 20,000/- as dower remained unpaid. The issue regarding the recovery of dower to the extent of Rs. 20,000/- was found in favour of the petitioner.

5. The maintenance allowance was claimed by the petitioner at the rate of Rs. 2000/- per month for herself and-Rs. 1500/- per month for the minor daughter Mst. Sundas. However, the Judge Family Court decreed maintenance allowance at the rate of Rs. 500/- per month from the date of institution of the suit in favour of the petitioner and a sum of Rs. 1000/- per month in favour of the minor daughter w.e.f. the institution of the suit.

6. On the issxie of dissolution of Marriage, it was held that the petitioner was entitled to dissolution of marriage on the basis of Khula. However, in consideration thereof, she was directed to return the sum of, Rs. 30,000/ received by her as dower and to forego her right to claim the balance of the dower amount of Rs. 20,000/- as also the maintenance allowance allowed to her. The net effect of the judgment and decree of the Judge Family Court is that the petitioner has been granted the decree for dissolution of marriage through Khulabut subject to the return of the received dower amount and to forego the unpaid dower amount and the maintenance decreed in her favour. Mr. Ziafat Hussain Cheema, Advocate the learned counsel for the petitioner and Respondent No. 3 is person have been heard.

7. The learned counsel for the petitioner has assailed the condition of return of dower amount already received and the foregoing of the remaining dower amount and the foregoing of maintenance allowance by the petitioner in lieu of Khulato be illegal and against the injunctions of Islam. It is contended that the dower is a prerequisite of the valid Nikahwithout which the legitimate relationship between husband and wife cannot take place. He submitted that dower is not in the nature of a benefit which could be restored to the husband in lieu of Khula. He further submitted that a wife is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the acts of omission and commission of the husband. It is urged that after having decreed the suit for maintenance in favour of the petitioner the learned Judge Family Court could not deprive the petitioner of the maintenance in consideration of granting her Khula. On the other hand, Respondent No. 3 who argued his case in person submitted that the petitioner had admitted to have received Rs. 30,000/- by way of dower and that she was under an obligation to return the same and to forego the unpaid dower and maintenance if she was claiming dissolution through Khula.Arguments heard. Record perused.

8. In order to constitute a valid marriage, Islamic Law ordains that there should always be a consideration made by the husband in favour of the wife. It is a settlement in favour of the wife made prior to the completion of the marriage contract and is a precondition of a valid marriage. It is immaterial whether dower is imposed on the husband as a mark of respect for wife or it is the consideration for society of the wife, it is undoubtedly a precondition and a pre-requisite of a valid matrimonial contract. It is indispensible, so much so that in its absence the relationship between man and wife could not be legitimized and shall be regarded as a sinful union.

9. On the other hand, the gift or benefit which is to be restored to the husband by the wife in lieu of obtaining Khulais in essence a gratuitous offering which may be bestowed by the husband on the wife. Such gift or benefit is not in order to fulfil any legal obligation but is merely voluntary in nature.

10. Viewed in this perspective dower whether paid or unpaid can never be in the nature of a benefit or gift which is liable to be restored in consideration for granting Khuladivorce. The impugned judgment passed by the trial Court is not sustainable to the extent that it makes the grant of Khulasubject to the condition of repayment of Rs. 30,000/- paid amount of dower by the wife to the husband and to obligate her to forego the unpaid dower amount. The impugned judgment and decree is liable to be modified to that extent.

11. As regards the grant of maintenance to the petitioner, the learned Judge Family Court has itself found the petitioner to be entitled to maintenance for herself from the date of the institution of the suit at the rate of Rs. 500/- per month. This maintenance again is neither in nature of a gift or a benefit but is anundeniable legal obligation of the husband to maintain his wife who is not staying away from him without just cause. It would be a contradiction in terms if on the one hand, the Court finds a wife legally entitled to claim maintenance and on the other directs her to forego the same in lieu of Khula. The impugned judgment and decree to this extent is also liable to be modified. The upshot of the above discussion is that the decree for dissolution of marriage through Khulain favour of the petitioner is upheld and the condition as placed by the Judge Family Court that the petitioner must return the sum of Rs. 30,OOQ/-, the paid dower amount and forego the unpaid dower of Rs. 20,000/- and also to forego the decreed maintenance allowance is declared to be without legal effect. 15. Resultantly, this writ petition is allowed the decree for dissolution of marriage, through Khulais upheld and the conditions attached to it as herein before detailed are struck down. Parties to bear their own costs.

(A.P.) Order accordingly.

PL J 2003 Lahore 231

[Rawalpindi Bench Rawalpindi]

Present:maulvi anwarul haq, J. MUHAMMAD LATIF-Petitioner

versus ELECTION TRIBUNAL FOR RAWALPINDI and 2 others-Respondents

W.P. No. 3116 of 2002, heard on 30.10.2002.

(i) Punjab Local Government (Election) Rules 2001--

—-R. 8-Constitution of Pakistan (1973), Art. 199-Recount by election Tribunal-Legality-Election Tribunal had proceeded in very casual and callous manner while deciding such sensitive question between contesting parties-Procedure to be adopted by Election Tribunal while holding recount outlined and illustrated. [Pp. 233 & 234] A

(ii) Punjab Local Government (Election) Rules, 2001-

—R. 8--Constitution of Pakistan (1973), Art. 199--Impugned order of recount by Election Tribunal was set aside-Election petition was deemed to be pending-Election Tribunal would proceed to summon election record for a date'to be fixed within November, 2002, to conduct re-count in manner as out lined and illustrated by High Court and to decide election petition before 30.11.2002. [P. 234] B

Malik Waheed, Anjum, Advocate for Petitioner. MalikItaat Hussain, Advocate for Respondent No. 2. Date of hearing: 30.10.2002.

judgment

The petitioner and Respondent No. 2 alongwith several others contested elections to the general seats in UC-3 (Behwal), Tehsil Gujjar Khan, Distt. Rawalpindi. Inter alia, the petitioner was declared returned at Sr. No. 8. Respondent No. 2 who had been at Sr. No. 9 and not returned, filed an election petition to challenge the said elections. It was stated in the election petition that the Respondent No. 3 was allotted symbol of "Ball" and at Polling Station No. 32 a cutting was made in the number of votes obtained by him and ultimately he was made to loose to the petitioner by note vote i.e, his votes were recorded 499 while the petitioner had got 500 votes. Written statement was filed by the petitioner denying the said allegations. Vide order dated 19.3.2002, the learned Election Tribunal proceeded to allow the application filed by the petitioner for recount on the said Polling Station No. 32. Now recount was held on 16.10.2002 and result was declared at Polling Station No. 32 by the learned Election Tribunal as under:

Sr. No. Name of Valid Rejected Total. Candidate. Votes. Votes.

1. MirZaman. 18 5 23

2. Muhammad Latif. 175 43 218.

As a result of the said recount total number of votes of Respondent No. 3 were found to be 494 while those of petitioner found to be 457. Consequently the election petition was allowed and Respondent No. 3 was declared elected instead of the petitioner.

1. This writ petition came up before me on 25.10.2002 when upon examination of the file I found that neither in the daily order sheet nor in the judgment itself any reason stands recorded by the learned Election Tribunal as to why did he proceed to reject five votes of Respondent Nos. 3 and 43 votes of the petitioner. I, therefore, called upon the learned Tribunal to state the reasons and to file a report. The report has been received today and the reasons stated by the learned Election Tribunal are as follows:

"The votes were rejected of both the parties in recounting in their presence because:

(i) The same were not either signed by the A.P. Os. on the back of ballot papers.

OR (ii) The official seal was not affixed on ballot papers.

OR - (iii) The stamp on more than one symbol.

The votes were rejected of both parties in recounting in presence of parties and they signed the envelops".

I am afraid the said reasoning is neither here nor there. At least this Court cannot comprehend as to how many votes were rejected for which of the respective reasons stated above.

1. Learned counsel for the petitioner contends that since no reasons have been stated in the judgment and from the said reasonings filed by the learned Election Tribunal, it cannot be determined as to how many votes were rejected for which of the said reasons to enable this Court to determine whether the rejection was valid or not, the matter be sent back. Learned counsel for the Respondent No. 3, on the other hand, states that the recount was made in presence of the parties without any objection. Upon further examination of the file I have noted that whereas in the daily order sheet the learned Election Tribunal has observed that Mir Zaman, Respondent No. 3 has 494 votes and Muhammad Latif petitioner has 457 votes, in the result tabulated in the judgment in Para-5 he has mentioned the said votes as 460.

2. I cannot help observing that the learned Election Tribunal has proceeded in veiy, to say the least, casual and callous manner while deciding such a sensitive question between the said contesting parties. I may state here the procedure to be adopted by the learned Election Tribunal while holding recount after accepting the request of one or the other party or in compliance with orders issued by the superior Courts:--

(i) The relevant records (bags) to be summoned and to be opened in presence of the parties and their counsel unless the learned counsel or the party makes an express statement that the process to continued in absence of the learned counsel or the parties as the case may be.

(ii) The out-come of the recount to be noted in detail in daily order sheet.

(iii) If a valid ballot-paper is determined to be an invalid by the Election Tribunal, the reason to be stated as to why it has been so declared invalid.

(iv) If an invalid ballot-paper is determined to be a valid ballot-paper, the reason to be stated for the said determination.

(v) Upon conclusion of the said proceedings, the learned counsel as well as the parties present to be asked to sign the proceedings and to record objections if any thereon.

(vi) Thereafter the result to be tabulated on the order sheet itself and, if further proceedings are not required, judgment be recorded accordingly.

1. I am left with no option but to set aside the impugned judgment of the learned Election Tribunal. The result would be that the election petition filed by the Respondent No. 3 shall be deemed to be pending before the learned Election Tribunal before whom the parties shall appear on 12.11.2002. The Election Tribunal shall immediately proceed to summon the election records for a date to be fixed within the month of November, 2002 to conduct the recount in the manner stated above and to decide the petition on or before 30.11.2002.

2. No order as to costs.

3. A copy do this judgment be sent to all the learned Election Tribunals in Rawalpindi Division by the office.

(A.A) Case remanded.

PLJ 2003 Lahore 234

Present: ch. ijaz ahmad, J. MUHAMMAD YOUSUF-Petitioner versus

INSPECTOR GENERAL OF POLICE, PUNJAB CIVIL SECRETARIAT, LAHORE and 2 others-Respondents

W.P. No. 9568 of 2002, decided on 17.10.2002.

(i) Punjab Police (Efficiency and Discipline) Rules 1975-

—R. 4(l)(a)(ii)-Constitution of Pakistan (1973), Art. 199-Civil servant-Dismissal of appeal by Service Tribunal against petitioners non-promotion for lack of jurisdiction-Finding of Service Tribunal qua maintainability of appeal was in accordance with dictum laid down by Supreme Court in Muhammad Ahsan-ul-Haq' case 1997 PLC (C.S) 127- However, service Tribunal once having come to conclusion that it had no jurisdiction to take cognizance of that matter, there it should not have given finding with regard to merits of case. [P. 237] A

(ii) Punjab Police (Efficiency and Discipline) Rules, 1975-

—R. 4-Constitution of Pakistan (1973), Art. 199 0rder of Service Tribunal is not speaking order and does not contain reasons relating to promotions of petitioners colleagues-Petitioners and respondents did not attach, representation on record, therefore, it was difficult to ascertain from record whether such ground as taken before High Court was taken in representative or not and whether there were so many cases qua minor penalties in their credit or not-It is duty and obligation of public functionaries to decide representations of their subordinate with reasons after addition of S. 24-A in General Clauses Act.[P. 238] B

(iii) Punjab Police (Efficiency and Discipline) Rules 1975—

—R. 4(l)(a)(ii)-Forfeiture of approved service upto two years is mentioned in R. 4(l)(a)(ii) of Punjab Police (Efficiency and'Discipline) Rules 1975.[P. 238] C

(iv) Punjab Police (Efficiency and Discipline) Rules 1975--

—R. 4(l)(aXii)"Constitution of Pakistan (1973), Art. 199-Impugned order of Service Tribunal assailed herein was set aside and representation filed by petitioner before competent authority would be deemed to be pending adjudication who was directed to decide representation of petitioner after providing proper hearing to all concerned including petitioner and any other person concerned strictly in accordance with law after verifying record within reasonable time. [P. 238] D

1998 SCMR 2268; 1998 SCMR 2419; 1987 SCMR 92; 2000 PLC (C.S.) 123;

PLD 1982 Lahore 242; 2000 PLC (CS) 582; 1991 SCMR 1637 and;

1997 PLC (C.S) 127 ref.

Haftz Tariq Naseem, Advocate for Petitioner.

Mr. Muhammad Hanif Khattana, Addl. A.G. for Respondents.

Date of hearing: 17.10.2002.

order:

The petitioner has challenged the vires of order of the respondents dated 4.3.2002 through this Constitutional petition. The brief facts out of which this writ petition arises are that the petitioner joined the Police Department as Constable in the year 1968. Subsequently the petitioner was promoted as Sub-Inspector in July, 1989 and was confirmed as such on 1.7.1994. D.I.G. concerned recommended the name of the petitioner for promotion from Sub-Inspector to Inspector vide letter dated 11.4.1998. An incident took place in Sargodha city wherein two innocent persons namely Mr. Shahzad and Mr. Aziz were killed under the wrong impression of Riaz Basra. The petitioner was pressurized by Respondent No. 3 to own false and fabricated complaint. The petitioner did not accept the direction of Respondent No. 3. Therefore, Respondent No. 3 issued show-cause notice to the petitioner and awarded three censure on 9.12.2000 and six months approved service was forfeited in addition to recording adverse remarks in his ACR of 1989. The petitioner being aggrieved filed departmental appeal. Adverse remarks were expunged by the appellate authority and forfeiture of service of six months was reduced to three months vide orders dated 3.3.2001 and 7.4.2001. The D.I.G. concerned again recommended the name of the petitioner for promotion vide letter dated 17.4.2001. The petitioner's colleagues were promoted however, he was not promoted. The petitioner being aggrieved filed Service Appeal No. 696/2002 before the Punjab Service Tribunal. Learned Service Tribunal dismissed the appeal being non-maintainable. Hence the present writ petition.

1. Learned counsel of the petitioner submits that respondents have no lawful authority to with-hold the promotion of the petitioner in presence of minor penalties which is in accordance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments-

1.Copt. Sarfraz Ahmad Mufti vs. Govt of Punjab 1991 SCMR 1637).

1. Muhammad Ahsan ul Haq vs. Secretary to Government ofPakistan(1997 PLC (CS) 127).

2. BarkatAli vs. Muhammad Ehsan (2000 PLC (CS) 123).

He further urges that even if the inquiry is pending against the petitioner his promotion cannot be with-held in view of the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-

1. N.A Qureshi vs. Govt of Punjab (PLD 1982 Lahore 242).

2. Tahir Latif Sheikh vs. Federation (2000 PLC (CS) 582).

He further submits that respondents promoted Qalb-e-Abbas and Saif-ur-Rehman whose cases are exactly similar to the case of the petitioner. Therefore, action of the respondents is hit by Article 25 of the Constitution.

1. Learned Addl. A.G. submits that this Court has no jurisdiction to entertain the writ petition in view of the bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act. He further urges that the petitioner is estopped to file this writ petition on the well - known principle of aprobate and reprobate as the petitioner had filed Service Appeal No. 696 of 2002 before the Punjab Service Tribunal. The learned Tribunal dismissed the appeal of the petitioner on merits as is evident from Para-4 of the judgment of the Service Tribunal dated 17.5.2002 which is attached as Annexure-G with the writ petition. He further submits that the observation of the Service Tribunal that Service Tribunal has no jurisdiction to interfere in determination of such fitness must be read with earlier part of Para-4 therefore, petitioner has alternative remedy to file a petition before the Honourable Supreme Court.

2. Learned counsel of the petitioner in rebuttal submits that he accepted the judgment of the Service Tribunal that Service Tribunal has no jurisdiction to take cognizance by virtue of Section 4(J)(b). He further submits that finding of the Service Tribunal in Para-4 has no relevancy and learned Service Tribunal erred in law to give finding on merits after holding that Service Tribunal has no jurisdiction to interfere in determination of fitness.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

4. It is admitted fact that petitioner filed an appeal before the Service Tribunal against the impugned order dated 4.3.2002. The Service Tribunal had given finding against the petitioner in Para-4 and also held that Service Tribunal has no jurisdiction to interfere in determination of such fitness. The question for determination before me is qua the finding of Service Tribunal in Para-4 viz-a-vizlack of jurisdiction held by the respondent qua the maintainability of the appeal before the Service Tribunal. The learned Service Tribunal was justified to hold that Tribunal has no jurisdiction which is in consonance with Section 4(l)(b) which is reproduced hereunder:— "No appeal would lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." It is pertinent to mention here that finding quathe maintainability of appeal is in accordance with the dictum laid down by the superior Courts in Muhammad Ahsan-ul-Haq, case Dr. Aman-uUHaq's case and Tahir Latif Sheikh's case supra. The learned Tribunal once has come to the conclusion that learned Tribunal has no jurisdiction to take the cognizance of the matter then learned Tribunal should not give finding with regard to the merits of the case. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Khan Sahib Sher Muhammad Mir vs. Islamic Republic of Pakistan (1987 SCMR 92). The relevant observation is as under:

We, however, feel that in dismissing the appeal as time-barred,the Tribunal in the particular circumstances of this case, should not have made any remarks about the merits of the case. It is, therefore, observed that they should not operate against if he makes any fresh representation."

In view of the aforesaid judgment of the Honourable Supreme Court the contention of the learned Addl. A.G. has no force that petitioner has to file appeal before the Honourable Supreme Court against judgment of the Service Tribunal dated 17.5.2002 passed in Appeal No. 696/2002 filed by the petitioner. The petitioner has filed this writ petition by accepting the verdict of the Service Tribunal. The impugned order of the Service Tribunal is not a speaking order and does not contain reasons vis-a-vishis colleagues namely Qalb-e-Abbas and Saif-ur-Rehman. The petitioner and respondents did not 0attach representation on record, therefore, it is difficult to ascertain from the record wliether this ground was taken in the representation or not and whether there were so many cases qua minor penalties in their credit or not. It is the duty and obligation of the public functionaries to decide the representations of their subordinates with reasons after addition of Section 24-A in the General Clauses Act as per principle laid down by the Honourable Supreme Court in the following judgments:-

1. M/s, Airport Support Service vs. Airport Manager (1998 SCMR 2268).

2. Zian Yar Khan vs. The Chief Engineer (1998 SCMR 2419).

It is pertinent to mention here that both the learned counsel stated that punishment of forfeiture of service is not mentioned in minor as well as major punishments. This contention has no force. Forfeiture of approved service up to two years is mentioned in Rule 4(l)(a)(ii) of Punjab Police (Efficiency and Discipline) Rules, 1975.

1. In view of what has been discussed above, the impugned order is set aside. Meaning thereby that the representation filed by the petitioner before Respondent No. 2 shall be deemed to be pending adjudication who is r directed to decide the representation of the petitioner after providing proper hearing to all the concerned including the petitioner and any other person who would aggrieved of his order strictly in accordance with law after verifying the record within reasonable time. With these observations the writ petition is disposed of.

(A.P.) Case remanded.

PLJ 2003 Lahore 239 [Rawalpindi Bench Rawalpindi]

Present:muhammad sayeed akhtar, J.

ZIA GHAFOOR PARACHA-Petitioner

versus

CHAIRMAN BOARD OF INTERMEDIATE and SECONDARY EDUCATION, RAWALPINDI and others-Respondents

W.P. No. 535 of 1991, decided on 10.6.2002.

(i) Punjab Board of Intermediate and Secondary Education Act, 1976--

-—Ss. 12, 15 & 20 Controlling Authority not sole authority to suspend any employee of Board-Controlling Authority besides making regulations, convening efficiency and discipline of officers and other employees of Board, can remove from service any employee of a Board, provided that no such employee would be removed from service without being given an opportunity of being heard, provided further that where controlling authority has initiated any such proceedings against any employee, no other person including Board would have power to initiate any proceedings or take any steps in the matter-Thus, in addition to Board or some other person if so authorized, Controlling Authority has, also power to initiate any such proceedings against an employee of Board. [Pp. 243 & 244] A & B

(ii) Punjab Board of Intermediate and Secondary Education Act, 1976-

— -S. 20-Provision of S. 20 of Act of 1976 empowers Board of Intermediate and Secondary Education to frame Regulation subject to approval of Controlling Authority-Nothing on record showed that Controlling Authority ever accorded its approval to Regulations framed by Board-In absence of any approval by Controlling Authority, Regulations in question, were moribund in the eye of law, and cannot empower chairman of Board to appoint, suspend or remove employees of Board. [P. 244] C

(iii) Punjab Board of Intermediate and Secondary Education Act, 1976--

—-Ss. 20 & 21-Draft regulation affecting constitution or powers of any authority of Board would not be proposed until Controlling Authority has been given opportunity of expressing its opinion-Draft would not be effective until its approval by Controlling Authority and Board is not empowered to make any regulation or adopt any rules or regulations concerning efficiency and discipline of officer/officials which was not in conformity with rules made by Government on subject. [Pp. 246 & 248] D, E

(iv) Punjab Board of Intermediate and Secondary Education Act, 1976-

----- Ss. 12(8)(iii) & 20 (D(iii)--Regulations concerning Efficiency and Discipline of employees of Board have not been framed by controlling Authority under S. 12(8)(iii) of Act of 1976—Mere mention on the part of Government to frame Regulation concerning Efficiency and Discipline of employees of Board coupled with lack of approval by Government to Service Regulation framed you Board under S. 10(l)(iii) of Act of 1976, cannot be taken as a prohibition from taking any disciplinary action against petitioners-In absence of such Regulations, rule of "Master and Servant" would apply, therefore, constitutional petitions were not maintainable. [P. 249] F

1999 SCMR 138; PLD 2001 Lahore 395; PLD 1996 Lahore 672; PLJ 2000 Lahore 1202; 2002 SCMR 549; 1993 PLC (CS) 1364; 1999 PLC (C.S.) 409;

2000 T.D (Service) 1377; PLD 1984 SC 170; 1991 SCMR 2334; PLD 1978

Karachi 872 and PLD 1974 SC 228 ref.

Mr. Amjad Hamid Ghauri and Mr. Shahid Mahmood Mughal, Advocates for Petitioner.

Hafiz S.A. Rehman and Mr. Bashir Ahmad Ansari, Advocates for Respondents.

Syed Sajjad Hussain Shah, A.A.G with KhalidSidhu, S.O (Litigation) and MamoonAbbas Khan, Ex-Chairman Bise.

Date of hearing: 24.5.2002.

judgment

This Judgment will dispose of the following writ petitions as a common question of law and facts is involved in them:-

(i) W.P. No. 535/1991

(ii) W.P. No. 451/1995

(in) W.P. No. 105/1996

(iv) W.P. No. 1922/1999

(v) W.P. No. 1952/1999

(vi) W.P. No. 2484/1999

1. Succinctly stated Zia Ghafoor Paracha is the petitioner in all the above said writ petitions except W.P. No. 2484/1999 in which Arif Zia is the petitioner. Both were Junior Clerks in the Board of Intermediate and Secondary Education, Rawalpindi. Zia Ghafoor Paracha petitioner has been dismissed from service and Arif Zia petitioner has been removed from service. The details of the writ petitions are given as under:-

W.P. NO: 535 of 1991

Zia Ghafoor Paracha has assailed the suspension order dated 1 10.1989.

W.P. NO. 451/1995

In this petition stopping of the annual increment and suspension of honorarium has been challenged.

W.P. NO. 105/1996

In this petition Show-Cause Notice dated 24.12,1995 issued under the Efficiency and Disciplinary Rules, 1975 has been impugned.

W.P. NO. 1922/1999

The dismissal order dated 27.8.1999 has been challenged. The impugned order was suspended by this Court on 9.9.1999.

W.P. NO. 1952/1999

Since the order dated 27.8.1999 was suspended by this Court, another dismissal order dated 4.9.1999 was passed against the petitioner Zia Ghafoor Paracha and the same has been assailed in this petition.

CrI. Org. No. 126/1999 , This contempt application has been filed against Chairman of the Board committing violation of the order of this Court.

W.P. NO. 2484/1999

Petitioner Arif Zia was removed from service vide order dated 31.7.1999 and the same has been impugned in this petition.

1. The learned counsel for the petitioner Zia Ghafoor Paracha contended that the respondent Chairman of the Board of Intermediate and Secondary Education, Rawalpindi had no authority whatsoever to issue any Show-Cause Notice, suspend or dismiss the petitioner. The impugned orders are clearly in violation of the Parent Act. Regulation No. 8 of the Service Regulations of the Employees of the Board of Intermediate and Secondary Education, Rawalpindi in ultra vires the Act. The main thrust of the argument of learned counsel for the petitioner is that under Section 11 of the Punjab Board of Intermediate and Secondaiy Education Act, 1976, the Government is the Controlling Authority of the Board Under Section 12(1-A) of the same Act, only the Controlling Authority can suspended an employee of the Board. Section 20 of the said Act enjoins that the Board may, subject to the approval of the Government frame Regulations, not in consistent with the provisions of the Act. The learned counsel urged that the dismissal orders have been passed without hearing the petitioner, as such, are unsustainable in law. Lastly the learned counsel argued that since the impugned orders were without jurisdiction, the constitutional petitions were maintainable in the circumstances of the case. Reliance was placed on, "1999 SCMR 138," "PLD 2001 Lahore 395", "PLD 1996 Lahore 672" and "PL J 2000 Lahore 1202".

2. Conversely the learned counsel for the respondent Board submitted that the Regulations of Service framed by the Board are not statutory. The relationship of master and servant exists between the parties. Alternative remedy of appeal before the Board is available to the petitioners. Learned counsel argued that where the disciplinary proceedings have not been taken to the logical end, the constitutional petition was not maintainable. It was urged that under section 12(1-A) of the said Act, the power with the Controlling Authority is in addition to the power delegated to the Chairman. The powers of Chairman have not been curtailed by this provision. The Punjab Civil Servants (Efficiency and Discipline) Rules have been adopted for the employees of the Board Reliance was placed on "2002 SCMR 549", "1993 PLC (C.S) 1364" and "1999 PLC (C.S) 409".

3. The Punjab Boards of Intermediate and Secondary Education Act XIII of 1976 came into force on July 21, 1976. It was amended by Punjab Boards of Intermediate and Secondary Education (Amendment) Ordinance XX of 1984. It was further amended by Punjab Boards of Intermediate and Secondary Education (Amendment) Ordinance XXIII of 1985. By this Ordinance of 1985, drastic amendments were made in the Act XIII of 1976. During the arguments, the learned counsel for the respondent Board was asked whether the Service Regulations framed by the Board were accorded approval by the Controlling Authority.? A letter dated. 12.12.1977 issued by the Section Officer (S&B), Government of Punjab, Education Department has been placed on record. The learned Assistant Advocate General was asked to produce the original record granting approval to the Service Regulations by the Government of Punjab. Khalid Mehmood the Deputy Secretary (Academic) Education Department, Government of Punjab, appeared and sought time to produce the record. However, on the next date of hearing letter dated 4.4.1985 written to the Chairman, Board of Intermediate and Secondary Education, Multan has been placed on record which will be discussed in the latter part of the Judgment. The privitol point the present constitutional petitions is whether the Chairman of the Board had the authority/jurisdiction to draw the disciplinary proceedings against the petitioners. The contention of the learned counsel for the petitioners that the Controlling Authority is the only authority under Section 12(1-A) to suspend an employee of the Board, is devoid of any for?p. Section 12(1-A) is reproduced as unden- "The Controlling Authority may at any time suspend a member, any officer or an employee of the Board." The provision does not reveal that the Controlling Authority is the sole authority to suspend an employee of the Board. Under Section 12(8)(iii), "The Controlling Authority may make regulations concerning efficiency and discipline of officers and other employees of the Board". Similarly under Section 12(8)(iv). "The Controlling Authority may remove from service any employee of a Board; Provided that no such employee shall not be removed from service without being given an opportunity of being heard, provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter. "This leaves not a scintilla of doubt that in addition to the Board or some other person if so authorised, the Controlling Authority has also the power to initiate any such proceedings against an employee of the Board. The only limitation on the power of Board or other person is that they shall not initiate disciplinary proceedings if the same have been initiated by the Controlling Authority. Under Section 15(6) of the said Act, the Chairman shall exercise such other powers as may be prescribed lay Regulations. Section 20 empowers the Board to frame Regulations subject to the approval of Government. It reads as under:—

"20.(1) A Board may, subject to the approved of the Government frame regulations, not inconsistent with the provision of this Act, to carry out the purposes of this Act provided that:--

(i) a Board shall not propose draft of regulations effecting the constitution or power of any authority of the Board- until such authority has been given an opportunity of expi-essing an opinion in writing upon the proposals;

(ii) the draft of regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority; and

(Hi) A Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government."

Section 20(2) of the afore-mentioned Act reads as under:-

"In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for".

(a) the terms and conditions of service of the employees of a Board including matters relating to grant of leave to, and retirement of such employees;"

1. The reading of the above said provisions of the Act would reveal that under Section 12(8)(iii), the Controlling Authority may make regulations concerning the efficiency and discipline of the officers and other employees of the Board and under sub-clause 8(vi), the Controlling Authority may also remove an employee form service. Under Section 20(1), a Board may, subject to the approval of the Government frame regulations, not inconsistent with the provision of this Act and under sub-clause (l)(iii), a Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government.

2. The Service Regulations of the employees of the Board of the Intermediate and Secondary Education, Rawalpindi begin with:-

"These Regulations may be called. The Board of Intermediate and Secondary Education Rawalpindi Employees Service Regulations and will be deemed to have taken effect from the date of approval of the Controlling Authority."

There is nothing on record to show that the Controlling Authority ever accorded its approval. In the absence of any approval by the Controlling Authority, the Regulations are moribund in the eye of law, and can't empower the Chairman of the Board to appoint, suspend or remove the employees of the Board. The Board in its first meeting held on 15.11.1977 resolved as unden-

"The Board resolved to approve the following recommendations of the office, till such time as the rules and regulations are framed by the Rawalpindi Board:-

1. The rules of the Sargodha Board as on 20th October, 1977 excluding those not consistent with the Punjab Boards of Intermediate and Secondary Education Act, 1976, may be adopted by the Rawalpindi Board as its own rules.

2. It may be recommended to the Controlling Authority that regulations of the Sargodha Board as on 20th October, 1977 may be adopted by the Rawalpindi Board as its own regulations.

3.

5.

1. The Controlling Authority may be requested to make regulations concerning efficiency and discipline of officers and other employees of the Board as provided in Clause 12(8) (iii) and Clause 20(l)(iii) and the Punjab Boards of Intermediate and Secondaiy Education Act, 1976."

The Board had made certain recommendations as stop gap arrangement till the regulations concerning the Efficiency and Disciplinary were framed by the Controlling Authority. The then Chairman of the Board wrote a letter dated 20.11.1977 to the Deputy Secretary (Academics), Government of the Punjab, Education Department, Lahore which is reproduced for convenience sake:-

SUBJECT:RULES AND REGULATION OF THE BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI, IN CONSISTENT WITH THE PUNJAB BOARDS OF INTERMEDIATE AND SECONDARY EDUCATION ACT, 1976.

Under Clause 21 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, a Board is competent to make rules consistent with this Act and the regulations. As the Rawalpindi Board is a newly established Board and it has yet a very small establishment, the Board in its first meeting held on 15th November, 1977 has, to start with, decided that the rules of the Sargodha Board as 'on 20th October,, 1977 excluding these not inconsistent with the aforesaid Act may be adopted for the Rawalpindi Board as it own rules.

1. Under Clause 20 of the aforesaid Act, a Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of the Act to carry out the purposes of the Act. The Rawalpindi Board has, therefore, resolved to recommend that the regulations of Sargodha Board as on 20th October, 1977 already approved by the Government, excluding these not inconsistent with the aforesaid Act may be approved for adoption by Rawalpindi Board as its own regulations. You are, therefore, requested to get approval of the Government to this effect and convey to the undersigned as early as possible.

2. Under Clause 20(l)(iii) of the Act under reference, a Board has no power to make any regulation concerning efficiency and discipline of the officers and other employees and in Clauses 12(8)(iii) it has been provided that the Controlling Authority may make such regulations. The Rawalpindi Board, in its meeting held on 15th November. 1977 has further resolved to make a request for framing regulations concerning efficiency and discipline of officers and gmplovees of the Board.

3. . It may be pointed out that the Board has authorized the Chairman to assign the duty of framing draft rules to one of the officers of the Board after receiving a reasonable consignment of officers for approval of the Board. With a view to have uniformity, a request is being made to the Committee of Chairman of Punjab Boards to make arrangements for drafting regulations for all the six Boards for submission to the Government for approval." In Para 2 of this letter the approval of the Government for adoption of Regulations, framed by Sargodha Board, was solicited. In Para 3 the request for framing Regulations concerning Efficiency and Discipline was made. In response to this letter, Muhammad Rashid, Section Officer (S&B) videLetter No. SO (S&B)) 1-2777, Government of the Punjab, Education Department dated Lahore, the 12th December, 1977, replied as under:- "Proposals contained in Paras 2 to 4 of your letter under reference were considered appropriate. You are, therefore, allowed to proceed accordingly."

This letter does not show that the Controlling Authority accorded its approval. It was issued by the Section Officer and was only a permission to proceed and that too not by the competent authority. The original record was summoned and the same has not been produced before me showing the approval of the Controlling Authority.

1. Another letter dated 9.3.1980 issued by the Section Officer (S&B) which reads as under:-

"The Controlling Authority of the Board of Intermediate and Secondary Education, Rawalpindi has been pleased to accord approval to the adoption of Government Efficiency and Discipline Rules for the employees of the Board of Intermediate and Secondary Education, Rawalpindi with immediate effect till further orders."

1. Sections 20 and 21 of Act, 1976 when read together clearly show that regulations are to be framed by the Board with the prior approval of the Government. The draft regulation affecting the constitution or powers of any authority of the Board shall not be proposed until that authority has been given an opportunity of expressing its opinion. The draft shall not be effective until it has been approved by the Controlling Authority and the Board is not empowered to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials which is not in conformity with the rules made by the Government on the subject.

The effect of adoption of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and the framing of Regulations and Rules under Sections 20 and 21 of the Act XIII of 1976 came under consideration before a Division Bench of this Court in the case of "Muhammad Anwar Hussain vs. Chairman, Board of Intermediate and Secondary Education Gujranwala etc." (2000 T.D. {Service) 1377). It was observed as under: -

"It is clearly a residuary power of the Board. The purpose was to arm the Board to deal with the matters not provided for in the Act or Regulations. All such decisions of the Board have the status of domestic rules. The E and D Rules adopted by the Board through Resolution would be the rules framed under Section 21 of Act, 1976, therefore, they will not have the status of statutory rules. These would be just domestic rules. Moreover, the Board is not competent to frame rules in respect of the terms and conditions of service. In this behalf, we may be fortified in our view by Clause (iii) Section 20(1) of Act, 1976

In the instant case no prior approval of the Controlling Authority exists on the record giving life to the Service Regulations.

1. The approval for adoption of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 was accorded on 9.3.1980 to the respondent Board. As observed by the Division Bench of this Court, the E and D Rules adopted by Board through resolution would be rules framed under Section 21 of the Act of 1976 and will not have the status of statutory rules. These would be just internal rules.

As per letter No. S.O. (BOARDS) 1-14/82, Government of the Punjab, Education Department dated 4.4.1985, the approval was accorded to the Board of Intermediate and Secondary Education, Multan and not to the respondent Board of Intermediate and Secondaiy Education, Rawalpindi. The contention of the learned Assistant Advocate General that the endorsement to Chairman of all the Boards at the bottom of the letter for information and necessary action amounts to granting approval to the other Boards as well, has no force. The said endorsement reads as unden-

"No. S.O. (BOARDS) 1-15 Dated Lahore, the 21st January. 1996.

A copy is forwarded for information and necessary action to the Chairman, Board of Intermediate and Secondaiy Education, Lahore, Sargodha. D.G. Khan, Rawalpindi, Faisalabad, Bahawalpur and Gujranwala." A copy had been forwarded to the Chairman for information and necessary action. Nothing has been brought on the record to show that the Rawalpindi Board ever sought approval from the Controlling Authority although a copy was forwarded to it for necessaiy action.

1. Under Section 10(2)"(xviii), the Board has been empowered to appoint such staff as it may consider necessary for the performance of its functions and define their duties and conditions of service. Under Section 10(3) of the Act, authorises the Board to delegate any of its power to its Chairman or any officer of the Board or to a Committee or sub-committee. Under Section 12(8)(iii), the Controlling Authority may make Regulations concerning Efficiency and Discipline of officers and other employees of the Board and under Section 20(l)(iii), Board has been prohibited from making any regulation or adopting Rules and Regulations concerning Efficiency and Discipline of the officers not in conformity with the Rules made by the Government. The Legislature in its wisdom did not delegate the power to frame Regulations concerning Efficiency and Discipline of the employees to the Board but reserved the power with Government Admittedly neither any regulation as contemplated under Section 12(8)(iii) has been framed by the Government nor the Service Regulations framed under Section 20(l)(iii) of the Act of 1976 were accorded approval by the Government. The Division Bench of this Court in the case of Muhammad Anwar Hussain vs. Chairman BISE, Gujranwala supra held that Efficiency & Discipline Rules adopted by the Board through resolution would be rules framed under Section 21 of the Act, 1976 and would not have the status of statutory rules. These would be internal rules. In the case of, "The Principal, Cadet College, Kohat and another vs. Muhammad Shoab Qureshi"(PLD 1984 Supreme Court 170), the Hon'ble Supreme Court has held as under:

"It is common ground that neither any rules, as contemplated by Section 17 of the Ordinance nor any Regulations under Section 18 thereof were framed. The Board of Governors did frame some "rules" for "governing the appointment, promotion, retirement, termination of service, and dismissal of staff employed by the Board of Governors of the College" in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as "rules" under Section 17, nor having been approved by the Government, be treated as Regulations under Section 18 thereof. These "rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat"

Similarly, in the case of, "Karachi Development Authority and another vs. Wall Ahmed Khan and others" (1991 SCMR 2434), the following observation was made:

"The order exception to the aforesaid general rule is that if the freedom of contract is placed under statutory fetters, by reserving controlling power with the Government in the matter of framing of rules or regulations touching the terms and conditions of service of the employees of such a statutory body, in such a case the pleasure of the master is taken over by the statutory provisions and the case would stand outside the master and servant rule, so that Constitutional jurisdiction would be amenable to any violation of the statutory rules or regulations."

In the case of, "Kohinoor Chemical Co. Ltd. vs. Karachi Municipal Corporation" (PLD 1978 Karachi 872), it was observed that power intended by the Legislature to be a regulatory power could not be converted by mere inaction to frame the bye-laws into a power of prohibition.

In the case, of, "M. U.A. Khan vs. Rana M.. Sultan and another" (PLD 1974 Supreme Court 228), it was stated as under:

"As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable."

1. The petitioner Zia Ghafoor Paracha was issued Show-Cause Notices levelling charges of misconduct, committing fraud and forgery by manoeuvering to mark his attendance in the Attendance Register and showing indiscipline and dis-obedience to superiors. The petitioner did not offer any defence. He was also provided an opportunity of personal hearing but again he failed to appear and he was dismissed from service. Similarly the allegation against Arif Zia, petitioner, was his absence from duty and indiscipline and irresponsible behaviour towards the superiors. He was provided an opportunity of personal hearing. His defence was taken into consideration but it did not find favour with the respondents and he was removed from service.

The Regulations concerning the Efficiency & Discipline of the employees of the Board have not been framed by the Government under Section 12(8)(iii). Following the above-said dictum, mere inaction on the part of the Government to frame Regulations concerning Efficiency & Discipline of the employees of the Board coupled with the lack of approval by the Government to the Service Regulations framed by the Board under Section 20(l)(iii) cannot be taken as a prohibition from taking any disciplinary action against the petitioners. In the absence of the above-said Regulations, the master & servant rule would apply. These Constitutional petitions are not maintainable.

1. For what has been stated above, these petitions have no merit and are dismissed leaving the parties to bear their own costs.

(A.P.) Petition dismissed.

PLJ 2003 Lahore 249 (DB)

Present: mian saqib nisar and jawwad S. khawaja, JJ. MUHAMMAD KHALID BUTT-Appellant

versus

UNITED BANK LTD.-Respondent R.F.A. No. 72-A of 2002, heard on 28.11.2002.

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

—-O.VTII, R. 11 &S. 96-Appellant's suit for declaration and cancellation of certain documents against respondent bank on the ground that he had not availed facility of loan/finance and that documents on the basis of which such loan/finance has been created were forged and fabricated and that those be declared invalid and be cancelled-Subsequently bank (respondent) filed two suits for recovery of loan amount on the basis of accounts and documents wherein appellant applied for leave to defend suit which was declined-Thereafter plaintiffs suit for declaration was also rejected under O.VH, R. 11 C.P.C. and bank's suits were decreed—In earlier suit of appellant and two subsequent suits of respondent, subject matter was the same and issues were directly and substantially akin—If suit of appellant was decreed, respondent's suits were bound to fail and vice versa,therefore, when leave was granted respondent, in first suit, on the principle of consistency and conformity and for due administration of justice, appellant was also entitled to leave to appear and defend, which should have been granted by the Court-Plaint of appellant could not have been rejected on the premises that leave application of appellant, in the suits filed by the bank, had been refused-Impugned judgments and decrees/orders were set aside-Appellant was allowed leave in two suits brought by respondent bank-Trial Court would also consider, if it was legally and factually permissible to consolidate all the suits, if not Court should try the suits simultaneously and passed judgments and decrees on the same day, so that conflicting decision can be avoided. [P. ] A

Sheikh Abdul Waheed, Advocate for Appellant.

Mr. Rashideen Nawaz Kasuri, Advocate for Respondent.

Date of hearing: 28.11.2002.

judgment

Mian Saqib Nisar, J.--By a single judgment, we intend to dispose of the following appeals:--

r.f.a.no. ?2-Aof2oo2.

R.F.A. No. 69 of 2002. R.F.A. No. 70 of 2002.

1. In R.F.A. No. 72 of 2002, the facts are that the appellant filed a suit for declaration and cancellation of certain documents against the respon­ dent-bank, on the ground that the appellant had not availed the facility of loan/finance and the documents on the basis of which, such loan/finance has been created, are forged and fabricated, resultantly, those be declared invalid and be cancelled accordingly. The suit was filed in March, 1997. The respondent-bank applied for leave to appear and defend, which was allowed; issues were framed and the case was at the evidence stage, when the respondent-bank brought two recovery suits against the appellant, on the basis of the accounts and the documents, which were the subject matter of the suit earlier filed by the appellant. The appellant applied for leave to appear and defend in both these suits, which applications were rejected and the suits of the respondent-bank have been decreed. These judgments and decrees are challenged in the above titled R.F.As. Nos. 69 and 70 of 2002.

2. While passing the above impugned judgments and decrees in the aforesaid manner, the learned Banking Court by applying the provisions of Order VII, Rule 11 CPC, also rejected the plaint of the appellant in his suit, on the ground that his leave applications have been refused in the two suits brought by the bank. This order has been impugned in R.F.A. No. 72 of 2002.

3. Learned counsel for the appellant contends that in the suit filed by the appellant, which was earlier in time, leave was granted to the respondent-bank, issues were framed and the case was at the evidence stage; the key propositions involved in this matter, were about the availing of the finance by the appellant, as also the validity of the documents, on the basis of which, the bank has founded its claim in the subsequent suits, therefore, this being question of fact, could not be resolved without recording of the evidence and the plaint of the appellant, could not be rejected only for the reason that in the other two suits, brought by the bank, leave has been refused to the appellant. It is also submitted that in the facts and circum­ stances of the case and on the ground, that the matter between the parties quathe same subject and the issues, was earlier pending adjudication, which required the recording of evidence, the appellant was necessarily entitled to leave in the two suits, brought by the respondent bank.

4. We have heard the learned counsel for the parties. Undoubtedly, in the earlier suit of the appellant, and two subsequent suits of the respondent, the subject matter is the same and the issues are directly and substantially akin. If the suit of the appellant is decreed, the respondent's suits are bound to fail and vice versa, therefore, when leave has been granted to the respondent in the first suit, on the principle of consistency and conformity and for the due administration of justice, the appellant was also entitled to the leave for appear and defend, which should have been granted by the Court. The Court should have explored the possibility, if it was permissible that, all these matters be consolidated and tried together. However, if for certain reasons, this could not be taken, the cases should have been conducted and proceeded simultaneously and decided together in order to avoid any conflicting judgment. But, for no reasons, the plaint of the appellant could be rejected under Order VII, Rule 11 CPC on the premises that the leave application of the appellant, in the suit filed by the respondent bank, has been refused. In the light of above, these appeals are allowed. The impugned judgments and decrees/orders are set aside. The appellant is allowed leave in the two' suits, brought by the respondent-bank. The Court below shall consider if, it is legally and factually permissible to consolidate the suits, if not the Court after framing of the issues, arising out of the pleadings of the parties, in each case separately, shall simultaneously try the suits and pass the judgments and decrees on the same day, so that conflicting decisions can be avoided.

(A.A.) Order accordingly.

PLJ 2003 Lahore 252 [Rawalpindi Bench Rawalpindi]

Present:muhammad sayeed akhtar, J.

MUZAFFAR KHAN and others-Petitioners

versus

EVACUEE TRUST PROPERTY through Deputy Administrator 7th Road, Satellite Town, Rawalpindi-Respondents

W.P. No. 659 of 2002, decided on 26.6.2002.

(i) Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

—-S. 30 Scheme for the Management and Disposal of Urban Evacuee Trust Properties 1977, Para 11 [as amended vide SRO No. 464(1)/2001] Constitution of Pakistan (Iti73), Art 199-Evacuee Trust Properties-Enhancement of rent to the extent of 150 percent to 2240.92% assailed as also para 11 of the Scheme where under such enhancement was effected-Scheme bye-laws under which such enhancement in rent has been made, can be struck down as ultra vires, on the grounds; that statutory procedure prescribed for making them, has not been followed; that the Scheme was repugnant to provisions of some other statute; that contents of scheme must not iconflict with the Parent Act itself, that the contents thereof, were uncertain; and that they were un-reasonable.

[Pp. 263 & 264] A

(ii) Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

—Ss. 16 & 17—Scheme for the Management and Disposal of Urban Evacuee Trust Properties 1977, Para 11 [as amended vide S.R.O. No. 464(l)/2001-Enhancement of rent of evacuee properties under new formula—District Officer has been assigned the part of a calculating machine, and he cannot himself determine the rent-Order passed by Assistant Administrator or Deputy Administrator was appealable to Administrator- Revision was provided to Federal Government-District Officer cannot pass an order after independent application of mind- Provisions of Act XIII of 1975, have thus, been rendered nugatory and un­ workable which cannot be allowed. [P. 268] E

(Hi) Scheme for the Management, Maintenance and Disposal of Urban Evacuee Trust Properties, 1977--

—Para 11 [as amended vide SRO No. 464/(l)/2001]-Enhancement of rent under delegated legislation, assailed-Any item of delegated legislation is, by paradox, grant of executive power to a person or body under legislative powers conferred by enabling Act-Replacement of para 11 of the Scheme by new one enabling rent under the formula given therein amount to unreasonableness--Under the new formula, rent has been enhanced manifold from 150 per cent to 2240.92% according to categories enumerated in the scheme-Petitioner's contention that in an area a properly situate at the main road may fetch more rent and the properly in the same vicinity in a lane would not fetch the same rent, was not devoid of force-Both properties though fall in the same category, the basis on which rent is to be paid is covered area per esq. floor wise, yet in reality they may not fetch the same rent-Classification made by Evacuee Trust Board was thus, not reasonable—Classification in order to be reasonable must be founded on reasonable distinction or reasonable basis and the same must be based on; an intelligible differentia which distinguish persons or things that are grouped together from those that have been left out; and that the differentia must have rational nexus to the object sought to be achieved by such classification. [P. 264] B

(iv) Scheme for the Management, Maintenance and Disposal of Urban Evacuee Trust Properties, 1977-

—Para 11 [as amended vide S.R.O. No. 464/(l)2001]--Enhancement of rent of Evacuee Trust Properties assailed-Objections or proposals were not invited by Evacuee Trust Board or by the Federal Government from tenants and they were not associated in preparation of formula for the enhancement of rent-Process of decision making by public functionaries should exhibit transparency—Failure to observe basic rules of natural justice or failure to act with procedural fairness towards the persons who would be affected by the decision would render the decision susceptible to judicial review. [P. 266] C

(v) Scheme for the Management, Maintenance and Disposal of Urban Evacuee Trust Properties, 1977--

—-Para 11 [as amended vide SRO No. 464/(l)/2001]-Value of land per mariain a particular area has been tied to D.C. rates fixed for the purpose of stamp duty and Registration Act, 1908-Same cannot be done for fixation of rent of a properly. [P. 267] D

(vi) Scheme for the Management, Maintenance and Disposal of Urban Evacuee Trust Properties, 1977--

—Para 11 [as amended vide SRO 464/(l)/2001]-Constitution of Pakistan (1973), Art. 25--Enahncement of rent under new formula-Powers given to District Officer and to the Administrator and Chairman of Evacuee Trust Board refer only to disparity of rent of sub-unit having similar conditions-Rent already stands fixed under the new formula and there is no determination of rent by them, but is only to be calculated under the new amendment-Even such discretion can only be used to those sub-units where increase in rent was more than 300 per cent in residential sub-units and more than 500% in commercial units which amounted to clear discrimination and violation of Art. 25 of the Constitution-Thus, para 11 as amended vide SRO 464/(l)/2001, substituting the old para of the scheme was arbitrary, un-reasonable thus, ultra vires. [P. 268] F

(vii) Scheme for the Management, Maintenance and Disposal of Urban Evacuee Trust Properties, 1977-

—Para 11 [as amended vide SRO 464(l)/2001]--Constitution of Pakistan (1973), Art. 199 Substituted para 11 of the scheme fofthe Management and Disposal of Urban Evacuee Trust Properties 1977 was declared to be ultra vires of the Parent Act viz. Evacuee Trust Properties (Management and Disposal) Act 1975 for the reason that the Act was beneficial one for the benefit of the people while the amendment made in the Scheme was to make profit out of Trust Property-Impugned bills issued for payment of enhanced rent were also declared to be without lawful authority and of no legal effect. [Pp. 268 & 269] G

PLD 2001 SC 1; PLD 1997 SC 582; PLD 2002 Karachi 60; PLD 1981 Lahore

74; PLD 1988 Karachi 279; PLD 1986 Kar. 397; PLD 1988 SC 416; PLD 1989

SC 613; PLD 1982 SC 174; PLD 1991 SC 1034; PLD 1973 SC 49; PLD 1957

SC 157; PLD 1958 SC 41; 1999 SCMR 467-1072; 1997 SCMR 1854; 1985

SCMR 365; 1993 SCMR 1533; 2002 SCMR 312; 1999 MLD 2505; PLD 1961

Karachi 349; PLD 1981 Lahore 74; PLD 1986 Karachi 393; 1991 SCMR 1041;

1993 SCMR 1718; PLD 1990 SC 899; PLD 1993 SC 341; (1984) 3 All ER 935, (1598) 510 Rep. 99<b); 1999 SCMR 709 and (1947) 2 All ER 680 ref.

Sh. Iftikhar Ahmad, Advocate for Petitioners.

Mr. Babar Ali, Advocate and Ch. Sultan Mansoor, D.A.G. for Respondents.

Dates of hearing: 29.5.2002, 5.6.2002 and 6.6.2002. judgment

I propose to dispose of the writ petitions by a common Judgment as a common question of law & facts is involved in the following writ petitions:-

(1) W.P. No. 659/2002

(2) W.P. No. 506/2002

(3) W.P. No. 536/2002

(4) W.P. No. 537/2002

(5) W.P. No. 566/2002

(6) W.P. No. 567/2002

(7) W.P. No. 568/2002

(8) W.P. No. 664/2002

(9) W.P. No. 669/2002

(10)W.P. No. 688/2002

(11)W.P. No. 689/2002

(12)W.P. No. 690/2002

(13)W.P. No. 709/2002

(14)W.P. No. 710/2002

(15)W.P. No. 731/2002

(16)W.P. No. 754/2002

(17)W.P. No. 795/2002

(18)W.P. No. 802/2002

(19)W.P. No. 816/2002

(20)W.P. No. 821/2002

(21)W.P. No. 838/2002

(22)W.P. No. 841/2002

(23)W.P. No. 842/2002

(24)W.P. No. 873/2002

(25)W.P. No. 887/2002

(26)W.P. No. 906/2002

(27)W.P. No. 907/2002

(28)W.P. No. 937/2002

(29)W.P. No. 968/2002

(30)W.P. No. 973/2002

(31)W.P. No. 980/2002

(32)W.P. No. 998/2002

(33)W.P. No. 1039/2002

(34)W.P. No. 1077/2002

(35)W.P. No. 1148/2002

(36)W.P. No. 1159/2002

(37)W.P. No. 1160/2002

(38)W.P. No. 1162/2002

(39)W.P. No. 1203/2002

(40)W.P. No. 1215/2002

(41)W.P. No. 1249/2002

(42)W.P. No. 1292/2002

(43)W.P. No. 1311/2002

(44)W.P. No. 1318/2002

(45)W.P. No. 1418/2002

(46)W.P. No. 2941/2002

(47)W.P. No. 621/2002

(48) W.P. No. 622/2002

(49) W.P. No. 623/2002

(50) W.P. No. 624/2002

(51) W.P. No. 1437/2002

(52) W.P. No. 1391/2002

(53) W.P. No. 1515/2002

(54) W.P. No. 1642/2002

(55) W.P. No. 1739/2002

(56) W.P. No. 1052/2002

1. Succinctly stated the petitioners who are tenants under the Evacuee Trust Property Board constituted under Section 3 of The Evacuee Trust Properties (Management & Disposal) Act, 1975 (hereinafter called the Act, 1975), have assailed the amendment in clause 11 of the Scheme for the .Management & Disposal of Urban Evacuee Trust Properties, 1977 videSRO No. 464(I)/2001 which came into force on September, 14, 2001. Before the amendment, clause 11 of the said Scheme stood as under:

"11. Enhancement in rent of each sub-unit will be 30% over the rent assessed with effect from the 1st January, 1987, provided that:

(I) the rent of a sub-unit rented out by auction after the 1st January, 1987 shall be enhanced from the 1st January, 1993; and

(II) the case of significant disparity in the rent of sub-unit having similar condition and located in the same\ property or vicinity may be referred to the Administrator concerned by the District Officer or the tenant and after affording opportunity of being heard to the parties, the Administrator shall forward his recommendations to the Chairman for appropriate orders."

The amendment videSRO 464(I)/2001 substituted clause 11 as under:

"(6) for clause 11, the following shall be substituted namely:--

"11. Periodical enhancement in rent of each sub-unit shall be thirty per cent over the rent assessed from the year 2002, provided:

(i) From the year 2002, the minimum monthly rent of the urban evacuee trust properties shall be assessed and charged on the basis of covered areas at the rates specified for each floor, "in accordance, with the categorization to be determined by the District Officer by an order, area-wise, or property-wise, as the case may be, in respect of each District" as follows namely:-

COMMERCIAL

| | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Category | Description | | Shops, Show rooms Display Centres only. | | | | Office, workshops, Go-Downs or any use other than Residential. | | | | | Location (persR) | Condition (per sft) | Total Rs. Location (per sft) (per sft) | | | | Condition (per sft) | | Total Rs: (per sft) | | A. Ground Floor | Rs. 10 + | Rs. 10 = | Rs. | 20 | Rs. | 3 + | Rs. 3- | | Rs. 6.00 | | 1st floor/Mezzanine | Rs. 6 + | Rs. 6 - | Rs. | 12 | Rs. | 2 + | Rs. | 2 = | Rs. 4.00 | | Basement/O Floor | Rs. 3 + | Rs.3 = | Rs. | 6 | Rs. | 1+ | Rs. | == | Rs. 2.00 | | B. Ground floor | Rs.5 + | Rs. 5 - | Rs. | 10 | Rs. 2 + | | Rs. | 2- | Rs. 4.00 | | 1st Floor/Mezzanine | Rs. 3 + | Rs.3 = | Rs. | 6 | Rs. | 1.50 + | Rs. | 1.50 = | Rs. 3.00 | | Basement/0 floor | Rs. 1.50 + | Rs. 1.50 = | Rs. | 3 | Rs. | 1 + | Rs. | 1 - | Rs. 2.00 | | C. Ground floor | Rs. 3 + | Rs. 3 = | Rs. | 6 | Rs. | 1.50 + | Rs. | 1.50 - | Rs. 3,00 | | 1st floor/Mezzanine | Rs. 2 + | Rs. 2 = | Rs. | 4 | Rs. | 1 + | Rs. | 1 « | Rs. 2.00 | | Basement/O floor | Rs. 1.25 + | Rs. 1.25 = | Rs. | 2.50 | Rs. | 0.75 + | Rs. | 0.70 = | Rs. 1.50 | | D Ground floor | Rs. 2 + | Rs. 2 « | Rs. | 4 | Rs. | 1 + | Rs. | 1 = | Rs. 2.00 | | 1st floor/Mezzanine | Rs. 1.25 + | Rs. 1.25 = | Rs. | 2.50 | Rs. | 0.60 + | Rs. | 0.60 = | Rs. 1.00 | | Basement/O floor | Rs. 1 + | Rs. 1 = | Rs. | 2 | Rs. | 0.40 + | Rs. | 0.40 = | Rs. 0.80 | | E. Ground floor | Rs. 1 + | Rs. 1 = | Rs. | 2 | Rs. | 0.75 + | Rs. | 0.75 = | Rs. 1.50 | | 1st floor/Mezzanine | Rs. 0.50 + | Rs. 0.50 = | Rs. | 1.00 | Rs. | 0.40 + | Rs. | 0.40 = | Rs. 0.80 | | Basement/O floor | Rs. 0.35 + | Rs. 0.3 = | Rs. | 0.70 | Rs. | 0.25 + | Rs. | 0.25 = | Rs. 0.50 | | F. Ground floor | Rs. 0.05 + | Rs. 0.50 = | Rs. | 1 | Rs. | 0.35 + | Rs. | 0.35 = | Rs. 0.70 | | 1st floor/Mezzanine | Rs. 0.37 + | Rs. 0.38 = | Re. | 0.75 | Rs. | 0.25 + | Rs. | 0.25 = | Rs. 0.50 | | Basement/O floor | Rs. 0.25 + | Rs. 0.25 = | Rs. | 0.05 | Rs. | 1.5 + | Rs. | 0.15 = | Rs. 0.30 | | RESIDENTIAL | | | | | | | | | | | Category "A" | | Location | Condition | | | | | Total Rs. | | | | | (per sft) | (per sft) | | | | | (per sft) | | | Ground floor | ' | Rs. 0.75 • | f | | Rs. 2 | .25 = | | Rs. | 3.00 | | 1st floor/Mezzanine | | Rs. 0.50 • | f | | Rs. 1 | .50 = | | Rs. | 2.00 | | Basement/0 floor | | Rs. 0.25 • | f | | Rs. 0 | .76 = | | Rs. | 1.00 | | Categoiy "B" | | | | | | | | | | | Ground floor | | Rs. 0.50 | f | | Rs. 1 | .50 = | | Rs. | 2.00 | | 1st floor | | Rs. 0.37 • | f | | Rs. 1 | .13 = | | Rs. | 1.50 | | Other floors/Basement | | Rs. 0.25 • | f Rs. 0.75 = | | | | | Rs. | 1.00 | | Categoiy "C" | | | | | | | | | | | Ground floor | | .Rs. 0.37 | +. | | Rs. 1 | .13 = | | Rs. | 1.50 |

| | | | | | --- | --- | --- | --- | | 1st floor | Rs. 0.25 + | Rs. 0.75 = | Rs. 1.00 | | Other floors/Basement | Rs. 0.19 + | Rs. 0.56 = | Rs. 0.75 | | Category "D" | | | | | Ground floor | Rs. 0.25 + | Rs. 0.75 + | Rs. 1.00 | | 1st floor | .Rs. 0.15 + | Rs. 0.45 = | Rs. 0.60 | | Other floors/Basement | Rs. 0.10 + | Rs. 0.30 = | Rs. 0.40 | | Category "E" | | | | | Ground floor | Rs. 0.19 + | Rs. 0.56 = | Rs. 0.75 | | 1st floor | Rs. 0.12 t | Rs. 0.38 = | Rs. 0.50 | | Other floors/Basement | Rs. 0.08 + | Rs. 0.22 = | Rs. 0.30 | | Category "F" | | | | | Ground floor | Rs. 0.12 + | Rs. 0.38 = | Rs. 0.50 | | 1st floor | Rs. 0.08 + | Rs. 0.22 = | Rs. 0.30 | | Other floors/Basement | Rs. 10.06 + | Rs. 0.19 = | Rs.0.25 |

Explanation:

CRITERION FOR DETERMINATION OF CATEGORY OF LOCATION COMMERCIAL.

Category Location

A Areas having value of Rs. 5 lacs per Maria and above as per B.C. rate.

B Areas having value above Rs. 2 lacs and below Rs. 5 lacs per Maria as per B.C. rates.

C Areas having value of Rs. 1 lacs to Rs. 2 lacs per Maria as per B.C. rates.

B Areas having value of Rs. 50,000/- to Rs. 1 lac per Mariaas per B.C. rates.

E Areas having value of Rs. 25,000/- to Rs. 50,000/- per Maria as per B.C. rates.

F Areas having value of upto Rs. 2,500/- per Maria as per B.C. rates.

RESIDENTIAL

A Areas having value of Rs. 1 lac and above per Maria as per B.C. rates.

B Areas having value of Rs. 75,000/- to Rs. 1 lac per Maria as per B.C. rates:

C Areas, having value of Rs. 50,000/- to Rs. 75,000/- per Maria as per B.C. rates.

D Areas having value of Rs. 2,500/- to Rs. 50.000/- per Maria as per D.C. rates.

E Areas having value of Rs. 10,000/- to Rs. 2,500/- per Maria as per D.C. rates.

Areas having value upto Rs. 10,000/- per Maria as per D.C. rates.

CRITERION FOR DETERMINATION OF CATEGORY OF CONDITION (Commercial + Residential)

Category Conditions

A 1st class Brick masonry in cement mortar having R.C.C./R.B.C. slab upto 30 years construction period.

B (i) 1st class Brick masonry in cement mortar having R.C.C./R.B.C. slab beyond 30 years construction period.

(ii) 1st class Brick masonry in cement mortar having T. Iron/girder/tile roofing upto 30 years construction period.

C (i) 1st class Bzick masomy in cement mortar having T. Iron/Girder/tile roofing beyond 30 years construction period.

(ii) 1st class Brick masomy in cement mortar with other type of roofing's upto 30 years construction period.

(iii) 1st class Pacca Brick masomy in clay mortar with Girders and T. ^ Iron/tiles roofing upto 30 years construction period.

D (i) 1st class Brick masomy in cement, mortar with other type of roofing beyond 30 years construction period.

(ii) 1st class Pacca Brick masomy in clay mortar with Girders/tiles roofing beyond 30 years construction period.

(iii) 1st class Pacca Brick masomy in clay with other type of roofing upto 30 years construction period.

(iv) Sheds having R.C.C./R.B.C. roofing.

E Pacca construction in shape of sheds and buildings having other types of roofing.

F Katcha bricks masomy in shape of built up area.

(ii) The categories shall be subject to amendment to be made from time to time in view of change in value of property, or for any other plausible reason to commensurate with the rentals of private properties and prevailing situation in the area.

(iii) The Board may publish a booklet for general guidance, specifying the categories applicable to each district on the basis of location and use of evacuee trust properties for the purpose of assessment of rent, (iv) The category-wise rates of rent mentioned above shall be subject to increase by thirty per cant after every three years.

(v) If the existing rent of the property is, more than the minimum rent specified above for its category, the same shall continue to be charged accordingly, subject to thirty per cent increase after eveiy three years.

(vi) The reserve bid in respect of a property to be rented out through auction shall be fixed at the above mentioned minimum rates of its category or at the existing rent whichever is higher:

Provided that in case of three auctions having been held and the rate of bid being found less than the reserve bid, the Chairman may revise the reserve bid which may not be less than the highest bid received during the previous auctions.

(vii) The Chairman or the concerned Administrator may at any time, on his own motion or otherwise call for the record of any property for the purpose of satisfying himself as to the correctness or propriety of fixation of category by the Deputy or Assistant Administrator and may pass such order in relation thereto as he may deem fit after affording opportunity of being heard to the parties.

(viii) The rent of sub-unit rented out by auction after the 2002, shall be increased proportionate to the period in between date of periodical enhancement in rent and date of auction.

(ix) The case of disparity in rent of sub-unit having • similar conditions and location in the same vicinity or the cases where the increase in rent under sub-clause (i) of Clause 11 is more than 300 per cent in case of residential sub-units, and more than 500 per cent in case of commercial sub-units, may be referred to the Administrator concerned by the District Officer or the tenant and after affording opportunity of being heard to the parties, the Administrator shall forward his recommendations to the Chairman for orders as may deem fit."

The main effect of the amended clause 11 is that the rent of the urban evacuee trust properties has been enhanced varying from 150% to 2240.92%.

1. All the learned counsel for the petitioners were given opportunity to address their arguments. Mainly, the arguments were addressed by Sh. Iftikhar Ahmad, Mr. Muhammad Saliheen Mughal, Hafiz Saeed Ahmad Sheikh and Mr. Muhammad Ameen Jan, Advocates. The other counsel adopted the arguments of the afore-mentioned learned counsel. The main thrust of the arguments was that-

(a) the petitioners were not associated by the Board in the enhancement of the rent and no opportunity of hearing was provided to them which was against the rules of natural justice; previously, the Deputy Administrator was empowered to make pariodical assessment after three years. There was a right of appeal before the Administrator and a revision before the Federal Government. The right of appeal and revision has been impliedly taken away by the amendment and has rendered Sections 16 & 17 of the said Act, 1975 ineffective and unworkable;

(b) the enhancement of the rent has been made to 150% to 2240.92% which is arbitrary and unreasonable. The repairs are made by the tenants and no adjustment is made in the rent, the Board does not spend even a single penny on the maintenance of the properties;

(c) the amendment in the Scheme has made it (i) unreasonable, (ii) oppressive, (iii) arbitrary and, (iv) ultra viresthe Statute;

(d) The Scheme is against Articles 2-A, 4, 5 & 25 of the Constitution of Islamic Republic of Pakistan, 1973 and;

(e) the increase of rent under Punjab Rent Restriction Ordinance, 1959 is 25% in commercial properties after every three years whereas under the Scheme, the amendment in the Scheme has been made under the delegated power and there seems to be no .end to it. Under the unamended Scheme the rent was increaseable after eveiy three years at the rate of 30% over the rent assessed. Reliance was placed on, (i) PLD 2001 S.C. 1;

(ii) PLd 1997 SC 582;

(iii) PLD 2002 Karachi 60;

(iv) PLD 1981 Lahore 74;

(v) ,PLD 1988 Karachi 279;

(vi) PLD 1986 Karachi 397;

(vii) PLD 1988 S.C. 416;

(viii) PLD 1989 S.C. 613;

(ix) PLD 1982 S.C. 174;

(x) PLD 1991 S.C. 1034;

(xi) PLD 1973 S.C. 49;

(xii) PLD 1957 S.C. 157;

(xiii) PLD 1958 S.C. 41;

(xiv) 1999 SCMR 467-1072;

(xv) 1997 SCMR 1854;

(xvi) 1985 SCMR 365;

(xvii) 1993 SCMR 1533;

(xviii) 2002 SCMR 312;

(xix) 1999 MLD 2505.

Conversely, notice was issued to the learned Attorney General. In pursuance to the said notice, Ch. Sultan Mansoor, learned Deputy Attorney General appeared and made his submissions. Learned DAG submitted that the Scheme has been framed under Section 30 of the said Act, 1975, the Scheme is already in existence and that the Board has the legislative competence to make an amendment. It was argued that the amendment in the Scheme is neither arbitraiy nor unreasonable nor oppressive. The power has been exercised reasonably, justly and fairly. A uniform policy has been made and rationalized under the supervision of the Board. Categorization of the property has been made to check the discretionary powers conferred on the officers of the Board. Under the amendment, the rent is being charged according to the location and condition of the property. Previously a very nominal rent was being paid by the tenants. The Board was delegated the power in order to meet the needs of the Society and to make the Scheme workable. He has placed a chart prepared by the Board showing the previous rent and the new rent. Reliance was placed on "1999 MLD 2505" (Jehanzeb Khan and another vs. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad & 5 others).

1. I have perused the record and considered the submissions of the learned counsel for the parties.

2. The "Evacuee Properties" attached to charitable, religious or educational trusts or institutions were previously governed by Displaced Persons (Compensation & Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958. The haphazard state of existing charities and the lack of information about them necessitated the legislature to provide for management and disposal of evacuee trust properties and the Evacuee Trust Properties (Management & Disposal) Act, 1975 was enacted. Under Section 3 of the said Act, 1975, Evacuee Trust Property Board was constituted for the management and disposal of evacuee trust properties. The Board was conferred the power by Section 4(f), "to reassess or reassess the rent or lease amount of the evacuee trust property". Under Section 30 of the said Act of 1975, the Board was empowered, with the prior approval of the Federal Government, to "prepare one or more schemes for the management, maintenance and disposal of evacuee trust property and for the efficient performance of its functions".

The Scheme for management & disposal of Urban Evacuee Trust Properties, 1977 was published after receiving the approval of the Federal Government videLetter No. 18-20/75-ETP dated 17th July, 1976. The amendments in the Schemes were made from time to time. Under para 3(ii), the existing occupants of a property were treated as tenants who were in actual physical possession since before the 9th July, 1971. This date was extended from time to time and the latest date is 31st December, 1995. ~V Under para 3(iii)(A), on the express consent, in writing of the previous tenant, the change of tenancy could be allowed by a District Officer, an Administrator or the Chairman with certain conditions. The periodical enhancement was to be made by the District Officer concerned after eveiy three years. Para 10 is reproduced as under:

"The periodical enhancement in rent shall be made by the District Officer concerned after eveiy three years. The next re-assessment will take effect from the 1st January, 1990."

Before amendment of para 11, the enhancement in rent of each sub-unit will be 30% over the rent assessed w.e.f. 1st January, 1987 provided the rent of a sub-unit rented out by auction after 1st January, 1987 shall be enhanced from 1st January, 1993.

According to the impugned amendment, from the year 2002, the minimum monthly rent of the Urban Evacuee Trust Properties shall, be assessed and charged on the basis of covered areas at the rates specified for each floor, in accordance with the categorization to be determined by the District Officer by an order area-wise or property-wise as the case may be. The minimum rent has been fixed or each category and each category has been defined. Only the determination of category has been left out to the District Officer.

Admittedly the enhancement in rent is from 150% to 2240.92%.

1. The Scheme has been framed under Section 30 of the said Act, 1975 and the amendment has been made under the same power. Under Section 21 of General Clauses Act, 1897 power to issue notifications, orders, rules or bye-laws includes the power to add, amend, vary or rescind orders, rules or bye-laws. The power resides in Board to make the amendment in the Scheme.

The delegated legislation may be described as orders, rules, regulations, schemes, licences and instruments. Any nomenclature can be used by the enabling Act. The term "Scheme" is used where, as the name -""" suggests, power is given to make detailed arrangements for some matter considered to be in need of general statutory administration. See Bannion; on Statutory Interpretation, London Butterworths 1984.

The Schemes/bye-laws can be struck-down as ultra vires on the five main grounds:—

(a) The statutory procedure prescribed for making them, has not been followed.

(b) They are repugnant to a provision of some other Statute.

(c) They must not conflict with the Parent Act itself.

(d) They are uncertain.

(e) They are unreasonable.

See Administrative Law by J.F. Garner; Introduction to Administrative Law by David Foulkes; Judicial Review of Administrative Action by S.A. de Smith; Craies on Statute law, PLD 1961 (W.P.) Karachi 349 (Saleh Muhammad vs. Traffic Manager, Port Trust, Karachi); PLD 1981 Lahore 74 (S.M. Sharif vs. Federation of Pakistan and; PLD 1986 Karachi 393 (Hashwani Sales & Services Limited vs. Karachi Building Control Authority).

"Acting for improper motives, failing to take account; of relevant considerations, failing to respect the requirements of natural justice and fettering a discretion by adopting a rigid policy will all amount to unreasonableness as understood by the Courts. The term 'unreasonableness' may thus be seen as an 'umbrella concept' which subsumes all the major headings of review". (Constitutional & Administrative Law by Hilaire Barnett).

Vagueness, ambiguity, arbitrariness, uncertainty may render a regulation/scheme void.

In the instant case, the. Board has been empowered under Section 4(f) to assess or reassess the rent or lease amount of the evacuee trust property. The Board has done so by framing a Scheme for Management, Maintenance and Disposal of Evacuee Trust Properties under Section 30 of the said Act, though, with the prior approval of the Government.

An item of delegated legislation is, by a paradox, grant of executive power to a person or body under legislative powers conferred by the enabling Act. In my view, the replacement of clause 11 by the new one enhancing the rent under the formula given therein amounts to unreasonableness. Under the old clause 11, the enhancement in rent for each sub-unit was 30% over the rent assessed w.e.f.1st January, 1987. Under para 10 of the Scheme, the periodical enhancement was to be made after eveiy three years commencing from January 1, 1990. Under the new formula, the rent has been enhanced .I manifold from, 150% to 2240.92% according to the categories enumerated in Hthe Scheme. The argument of the learned counsel for the petitioners that in Ian area a property situate at the main road may fetch more rent and the property in the same vicinity in a lane will not fetch the same rent, is not devoid of force. Both the properties may fall in the same categoiy, the basis on which the rent is to be paid is covered area per Sq.ft. floor wise but in reality they may not fetch the same rent. The classification made by the Board is not reasonable. The argument of learned Deputy Attorney General that the categorization of the properties has been made and uniform policy has been framed and rationalized has no force. The classification in order to be reasonable must be founded on reasonable distinction or reasonable basis. It should be based on--

(a) an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; and

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

See, (LA Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others) 1991 SCMR 1041; (Zaheer-ud-Din and others vs. The State and others) 1993 SCMR 1718; (Mst.Aziz Begum and others vs. Federation of Pakistan and others) PLD 1990 S.C. 899 and (Government of Balochistan through Additional Chief Secretary vs. Azizullah Memon and 16 others) PLD 1993 Supreme Court 341). Rationality implies reasonableness. 'Unreasonableness' may entail a decision .... 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'. (Council of Civil Service Unions v. Minister for the Civil Service)[1984] 3 All E R 935.

In Rooke'scase (1598) 5 Co Rep. 99b, Coke LJ observed:

".... and notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.... ".

The Hon,ble Supreme Court in the case of, "Chairman, Regional Transport Authority, Rawalpindi vs. Pakistan Mutual Insurance Company Ltd., Rawalpindi" (PLD 1991 Supreme Court 14) observed hat- "Wherever wide worded powers conferring discretion are found in statute, there remains always the need and the desirability to structure the discretion ...." An except from Administrative Law test by Kenneth Gulp Davis was quoted with approval in the following words:

"Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice .... The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure " Although the Board has been confided the power by the legislature to assess or reassess the rent but the discretion has to be exercised in accordance with the principles as stated above.

The objections or proposals were not invited by the Board or by the Federal Government from the tenants and they were not associated in the I preparation of the formula. The process of decision making by public (functionaries should exhibit transparency. Failure to observe basic rules of natural justice or failure to act with procedural fairness towards the persons Cowboy will be affected by the decision will render the decision susceptible to [judicial review. The Hon'ble Supreme Court of Pakistan in the case of, ^"Collector of Customs, Excise & Sales Tax, Peshawar and 3 others vs.

Messrs Flying Kraft Paper Mills (Put.) Ltd." (1999 SCMR 709) observed that the principles deductible from the Islamic concepts, emanating from the enforceability of the Objective Resolution and the pristine dimensions currently standing restored to the Principles of Policy together with Articles 2-A, 4 & 25 of the Constitution is an enforceable concept. The opportunity of being heard or inviting proposals makes the decision making transparent. The petitioners had the legitimate expectancy that they would be consulted. In Council of Civil Service Unions and others v. Minister of the Civil Service, supra, it was observed that, "To qualify as a subject for judicial review the decision must have consequences which after some person (or body of persons,) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment."

case.

On the parity of reasoning I find the same lacking in the present

In the case of Minister of Health vs. R. Exparte Yaffe(1931) A.C. 494, the local authority submitted an improvement/reconstruction scheme to the Minister for confirmation. The Minister after holding a public local inquiry, made an order modifying the scheme. The quashment of the order of Minister was sought as being made without jurisdiction, inasmuch as the scheme which the order purported to confirm was not an improvement scheme within the meaning of that. An objection was raised that no order of the Minister confirming the improvement scheme put forward by a local authority having effect as if enacted in the Act could be challenged and the Court had no jurisdiction to inquire whether the scheme complied with the requirements of the Act. It was observed that where a scheme was defective, mere confirmation by the Minister will not save it. In the instant case though the scheme has been approved by the Federal Government but the approval would not make it an untouchable sanction. This Court has jurisdiction to see whether the Government and the Board acted within the province of their delegated power.

The value of land per marlain a particular area has been tied to B.C. rates fixed for the purpose of stamp duty and Registration Act, 1908. The same cannot be done for fixation of the rent of a property. In the case of, Jamshed Waheed vs. Government of Punjab through Secretary, Excise & Taxation, Lahore and 5 others" (PLD 2001 Lahore 395), it was held that:

"Use of valuation tables, prepared by Deputy Commissioners of various districts in the province for the purposes of Stamp Act and Registration Act cannot be treated as valuation tables for the purposes of Section 5-A of West Pakistan Urban Immovable Property Tax Act, 1958."

I do not find the D.C. rates fixed for changing stamp duty germane to rent fixation purpose of trust properties.

It is an admitted fact that the Board does not spend even a single penny on the maintenance of the properties nor the expenditure make on the maintenance of the properties is adjusted towards the rent. To me, the enhancement of rate at this exorbitant rate is so outrages that no prudent man who has applied his mind to the question, could have arrived at it. In Associated Provincial Picture Houses, Ltd v. Waynesburg Corporation (1947) 2 All E.R. 680 LORD GREENE, M.R. concluded as under:

"I do not wish to repeat what I have said, but it might be useful to summaries once against the principle, which seems to me to be that the Court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account of neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere."

The rule enunciated in the above said authority has been consistently followed and is known as Waynesburg’s principle in England. Keeping in view the above said observations the decision of the Board making the amendment cannot be upheld. Under the old para 11, the enhancement of the rent was 30% after every three years. The learned counsel vehemently urged that under the Rent Restriction Ordinance, 1959, the increase of rent by the legislature was 25% after every three years in commercial properties only. It is submitted that the enhancement in the rent by 30% by delegated legislation was oppressive, thus, unreasonable I do not subscribe to the argument of learned counsel for the petitioners. The provision for increase in the rent by 30% after every three years was already there in Scheme before amendment and was not challenged by petitioners.

Under the new formula, the District Officer is only a calculating machine. He does not himself determine the rent. An order passed by an Assistant Administrator or a Deputy Administrator was appeasable to the Administrator under Section 16 of the Act of 1975. A revision was provided to the Federal Government under Section 17 of the same Act. The District Officer, as stated above, will only be a calculator and would not be passing an

order after independent application of his mind. The provisions of the Act have been rendered as nugatory and unworkable which cannot be allowed. See PLD 1974 Supreme Court 228 (M. U.A. Khan vs. Rana M. Sultan and another).

Under para ll(ix), if the disparity in the rent of sub-unit having similar conditions and location in the same vicinity is more than 300% in case of residential sub-unit and more than 500% in case of commercial sub-unit, may be referred to the Administrator by the District Officer or the tenant and after affording opportunity .of being heard to the parties the Administrator shall forward his recommendations to the Chairman for orders as he may deem fit. It is the discretion of the District Officer to refer the case to the Administrator who in turn shall send his recommendations to the Chairman who may pass an order as he may deem fit. These powers given to the District Officer and to the Administrator and Chairman refer only to disparity in rent of sub-unit having similar conditions. The rent already stands fixed under the new formula and there is no determination of rent by them, It is only to be calculated under the new amendment. Even this discretion can only be used to those sub-units where the increase in rent is more than 300% in residential sub-units and more than 500% in commercial units. This is clear discrimination and violation of Article 25 of Constitution of Pakistan. In my view, para 11 substituting the old para of the Scheme is arbitrary, unreasonable, thus, ultra vires. The authorities relied upon .by the learned counsel for the petitioners are not applicable to the facts of the case and lay down only the general rules of interpretation of Statutes. similarly, the authority relied upon by the learned Deputy Attorney General is not applicable to the case in hand as in the said Act, certain provisions of the Act had been challenged being repugnant to the fundamental rights.

There is another aspect of the case that a distinction is to be drawn by the Courts between bodies established for the public good, such as the 6 Board and the Local Government Authorities, and those established for private profit. The Board has been confided the power for preparation of the Schemes for the management, maintenance and disposal of Evacuee Trust Properties. The properties under the management of the Board are properties attached to charitable religious or educational trusts or institutions. The Trust is created for the benefit of the beneficiaries. The Board is acting as trustees, it can't afford to suffer loss but at the same time it can't be allowed to fleece the public. The beneficiaries of the charitable and educational trusts are public at large. The Board is to act for the public good. The Scheme ought to benevolently framed and reasonably administered. It is ought to be assumed that the Board is exercising their duty honestly & fairly and doing their best for the benefit of the public and for the express purpose^ for which it has been created. In my view, the Board and the Federal Government could not properly make use of their statutory powers of management or any other statutory power for the purpose. This is a case in which this Court should interfere because of the unfair manner in which the Board and the Federal Government set out obtaining the objective. The scheme is disfigured by a blot upon it.

1. In view of the afore-mentioned discussion, the writ petitions are allowed and the amendment substituting para 11 of the Scheme vide SRO 464(1)/2001 dated September 14, '2001 is declared to be ultra vires of the parent Act, and without lawful authority and of no legal effect. Consequently, the impugned bills issued for payment of enhanced rent are also declared to be without lawful authority and of no legal effect.

(A.A.) Petition accepted.

PLJ 2003 Lahore 269

Present:syed jamshed alt, J.

MirzaMUHAMMAD IQBAL-Petitioner

versus

SHAHZAD AHMAD AWAN PRINCIPAL GOVERNMENT COLLEGE FOR

ELEMENTARY TEACHERS TRAINING PASRUR, DISTRICT SIALKOT

and 3 others-Respondents

W.P. No. 4002/2000, decided on 10.9.2001. (i) Constitution of Pakistan, 1973--

----- Art. 199-<5wo-Warraftto Respondent subject specialist in education department posted as principle Elementary College for which 10 years minimum length of service was required-Challenged before High Court through Constitutional Petition in the nature of Quo-Warranto on the ground that respondent lacked requisite qualification and could not hold post-Contention repelled-Held that: Irrespective of the controversy whether petitioner could be posted as Principal without ten years service as Subject Specialist or Senior Subject Specialist the fact remains that although on the date of order the petitioner had put in less service yet the defect if any stood removed-Petition dismissed. [P. 270] A, B & C

(ii) Writ Petition--

—Writ petition is not maintainable, if the defect, on the basis whereof relief is sought against stood removed by efflux of time. [P. 270] E

Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Date of hearing: 10.9.2001.

order

This writ petition seeks a direction in the nature of quo-warranto against Respondent No. 1. It arises out of the following circumstances.

1. Vide order dated 22.10.1999, Respondent No. 1 while working as Senior Subject Specialist was transferred and posted as Principal, Government College for Elementary Teachers (Male) Pasrur in his own pay and grade. The case of the petitioner is that at the time of issuance of the said order the petitioner had only 8 years and 5 months service as Subject Specialist/Senior Subject Specialist while according to the circular letter of the Government of the Punjab in the Education Department dated 17.8.1998, a subject Specialist with less than 10 years service is not eligible for posting against an administrative post.

2. Report and parawise comments have been submitted. It is reported that operation of the circular letter dated 17.8.1998 was suspended by this Court in Writ Petition No. 7583 of 1998 (Multan Bench) on 10.9.1998. With the comments notification dated 20.6.1997 has also been placed on the record, according to which a number of teachers including Respondent No. 1, were promoted from BS-17 to BS-18 as Senior Head Masters/Principal Higher Secondary Schools/Government College for Elementary Teachers/ Senior Subject Specialist/Deputy D.E.Os. A perusal of the said Notification shows that the post of Principal and S.S.T. are equivalent posts. A perusal of the impugned order shows that it has been passed by the competent authority on administrative ground. However, irrespective of the controversy whether the petitioner could be posted as Principal without 10 years service as Subject Specialist or Senior Subject Specialist the fact remains that although on the date of order the petitioner had put in 8 years and 5 months service, he has already completed 10 years service and the defect if any, stands removed. I am therefore, not inclined to exercise my discretionary jurisdiction. The writ petition is dismissed. (T.A.F.) Petition dismissed.

PLJ 2003 Lahore 271

Present: syed jamshed ali, J.

ABID HUSSAIN BHATTI-Petitioner

versus

SECRETARY GOVT. OF THE PUNJAB, BOARD OF REVENUE LAHORE and 2 others-Respondents

W.P. No. 9644 of 2002, heard on 13.12.2002.

Punjab Service Tribunals Act, 1974 (IX of 1974)--

—S. 4--Constitution of Pakistan (1973), Art. 199--Retirement of Civil Servant was set aside by Service Tribunal-Respondents failed to implement judgment/order of Service Tribunal-Constitutional petition was being resisted solely on the ground that respondents had filed petition for leave to appeal in Supreme Court-There being no stay order or suspension of order of Service Tribunal, judgment/order of Service Tribunal has to be implemented-Respondent Authority was directed to implement the judgment of Service Tribunal. [P. 272] A, B

Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Date of hearing: 13.12.2002.

judgment

While posted as Assistant in the Office of Commissioner, Gujranwala Division, the petitioner was retired from service vide order dated 1.7.1999. However, videorder dated 5.11.1999, he was dismissed from service. His departmental appeal against the order dated 5.11.1999 was rejected on 24.8.2002. Thereafter, he approached the learned Punjab Service Tribunal in Appeal No. 1920/2000 which was allowed videjudgment dated 23.10.2001. As far as the order directing retirement of the petitioner is concerned, the same was challenged before the learned Punjab Service Tribunal in Appeal No. 1919/2000 which was earlier allowed vide judgment dated 9.8.2001. The petitioner is before this Court with a complaint that the judgments of the learned Punjab Service Tribunal in Appeal No. 1920 of 2000 is not being complied with and implemented by the respondents. A direction is, accordingly, sought.

1. This petition is being resisted solely on the ground that against the judgment dated 23.10.2001 the respondents have filed CPSLA No. 460-L/2002 which is pending before the Hon'ble Supreme'Court. It is not even averred therein that the Hon'ble Supreme Court has suspended the operation of the judgment dated 23.10.2001 of the learned Punjab Service Tribunal.

2. The learned counsel for the petitioner relies on Rule of Order XX of the Supreme Court of Pakistan Rules, 1980, Ghulam Sarwar vs. Habib Bank Limited and others (2001 PLC (C.S. 198), and Abdul HafeezAbbasi and others vs. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 S.C.M.R. 1034) to contend that mere pendency of a petition before the Hon'ble Supreme Court did not automatically stay operation of the judgment of the learned Punjab Service Tribunal and therefore, the respondents are under a legal duty to comply with and implement the said judgment.

3. Nobody appears for the respondents.

4. The submissions made by the learned counsel for the petitioner have been considered. There is merit in the contention of the learned counsel for the petitioner that implementation of the judgment of the learned Punjab Service Tribunal cannot be with-held merely because a petition for leave to appeal was pending before the Hon'ble Supreme Court unless the said august Court stays operation of judgment of the learned Tribunal. This contention is adequately supported by Rule 1 of Order XX of the Supreme Court Rules and the judgments cited at the bar. The question was examined by this Court in the case of Ghulam Sarwar, supra and a direction was issued to the competent Authority to implement the judgment of the Federal Service Tribunal in the said case. Accordingly, this writ petition is allowed and Respondent No. 3 is directed to comply with and implement the judgment dated 23.10.2001 of the learned Punjab Service Tribunal, unless its operation is stayed by the Hon'ble Supreme Court, within a period of one month from the date of production of certified copy of this order before him.

(T.A.F.) Petition allowed.

PLJ 2003 Lahore 272

Present: ABDUL SHAKOOR PARACHA, J.

Al-Haaj MUHAMMAD RAFIQUE-Petitioner

versus

Mst. KHALIDA SHEHZADI-Respondent C.R. No. 1764 of 1997, hear-d don 30.7.2002. (i) Benami transaction--

—Civil Procedure Code (V of 1908), S. 115-Evidence on record was sufficient to prove that respondent was not Benamidarbut real owner of house in question-Finding of Trial Court on question of title were against evidence and law of Benami transaction-Appellate Court rightly reversed findings of Trial Court on such aspect of matter—No illegality or irregularity had, thus been committed by Appellate Court-No

interference with finding of Appellate Court was warranted in revisional jurisdiction. [P.279]E

(ii) Benami transaction-

—Dispute regarding Benamitransaction-Person claiming to be real owner must prove motive for acquiring property in the name of Benamidar-ln present case, there was no legal hurdle in the way of petitioner to get sale-deed in his own name-No reason whatsoever had been asserted by petitioner for getting sale-deed registered in the name of respondent

[P. 278] C

(iii) Benami transaction-

—Petitioner claiming ownership of house in question, was employed abroad and he did not take any step to acquire title-House was constructed in his absence-No proof of sending any cheque, money or draft has been produced by petitioner for purchase of land or for construction of house-Conduct of petitioner thus, shows state of mind of petitioner that he admitted respondent to be real title holder of properly in question.

[P. 279] D

(iv) Benami transaction-

—Relevant factors for deciding Benami character of transaction are; source of consideration and its payment; motive for Benami transaction; real intention of parties; possession and production of original title deeds; possession and use of property in question; and subsequent conduct of parties including any act done in exercise of right of ownership.

[Pp. 276 & 277] A, B

2001 SCMR1493; AIR 1926 Nagpur 109; 1995 CLC 242; AIR 1925 Madras 982; 1991 SCMR 703; 1994 CLC 1437 and 2002 CLC 1290 ref.

Nemo for Petitioner.

Mr. K Jan Khattak, Advocate for Respondent.

Date of-hearing: 30.7.2002.

judgment

No-body has entered appearance on behalf of the petitioner despite that the name of learned counsel has appeared in the cause list for today. The civil revision cannot be dismissed for non-prosecution in view of the case reported as Muhammad Saddique versus Mst. Bashiran and 9 others (PLD 2000 SC 820) as the same was admitted for regular hearing vide order dated 30.10.1997.

1. The parties were husband and wife. Their marriage was dissolved through the decree of the Court in the year 1987. The dispute relates to a plot measuring 5 Mariaswhich was allegedly purchased by Mst.Khalida Shahzadi-respondent-herein, for a consideration of Rs. 4,000/- vide sale-deed dated 17.8.1974. The house was constructed in the year 1978-79 which was rented out to one Ghulam Nabi Butt. Mst. Khalida Shahzadi-respondent filed a suit for possession on the basis of title against Muhammad Rafique claiming that he has forcibly dispossessed her tenant and that she is'the lawful owner of the house in dispute. It was further asserted in the plaint that petitioner Al-Haaj Muhammad Refique has no concern whatsoever with the house. She prayed that a decree be awarded in her favour for possession of the suit house.

2. Petitioner-defendant Al-Haaj Muhammad Rafique resisted the suit by filing the written statement. He asserted that in. fact he is the real owner of the property in dispute and that he purchased the suit plot in the name of Mst.Khalida Shahzadi as they were husband and wife and had cordial relations with each other at the time of purchase of the plot. Further it was asserted that construction of the house was made by him with his own sources as he earned the money while he was working in Saudi Arabia. It was his case that he had been sending money from Saudi Arabia for construction of the house.

3. From the divergent pleading of the parties the learned Civil Judge proceeded to frame the following issues:-

(1) Whether instant suit is hit by Section 10 of CPC? OPD.

(2) Whether suit has not been properly valued for the purposes of Court-fee and jurisdiction, if so, what is the correct valuation and its effect?

(3) Whether plaintiff has no locus-standi?

(4) Whether sale of the suit house in favour of the plaintiff was a benami transaction and payment was made by the plaintiff?

(5) Whether the plaintiff is entitled for the suit house.

(6) Relief.

1. The parties led evidence. The learned Civil Judge decided Issues Nos. 1 and 2 against Al-Haaj Muhammad Rafique petitioner-defendant holding that the suit is not liable to be stayed under Section 10 CPC. Valuation of the suit for the purpose of Court-fee and jurisdiction has been correctly assessed. Issues Nos. 3 to 5 were decided against the respondent Mst. Khalida Shahzadi and it was held that the property in dispute was owned by Al-Haaj Muhammad Rafique-petitioner. He purchased the same in the name of Mst. Khalida Shahzadi, who has no concern with the house in dispute, as the transaction was benami in her name and therefore, she is the ostensible owner as Benami and Al-Haaj Muhammad Rafique, was declared as real owner of the suit property. The learned Civil Judge proceeded to dismiss the suit of Mst. Khalida Shahzadi vide his judgment and decree dated 18.1.1996.

2. The appeal filed by Mst. Khalida Shahzadi against the judgment and decree dated 18.1.1996 was accepted by the learned Additional District

therefore, seeking guidance from the case reported as Mst. Kaniz Fatima through legal heirs vs. Muhammad Hanif (2001 SCMR1493), wherein it has been held that the revisional Court can appreciate the evidence when the two Courts have recorded the divergent finding in disputed question of fact. I have gone through the evidence. But before I discussed the evidence on the file on the question of benami transactioryt is important to observe that it is settled principle of law that whosoever asserts the benami nature of the sale has to prpve the same and while considering the question of following factors are to be taken into consideration:-(i) Source of consideration.

(ii) From whose custody the original title deed or other document came in evidence.

(iii) Who is in possession of the suit property; and (iv) Motive in the benami transaction.

1. The question whether a transaction is a Benami in character or not has to be decided keeping in view' a number of factors/consideration which have been re-established through a number of judicial pronouncement. At first, I would refer the case of Yeleswarapu Ganjamma (1925 Madras 980), in which while discussing on the nature of Benami transaction it was held that the source of purchase money is only one criterion though an important criterion; similarly, the custody of documents is also not conclusive criterion. In case of Ramdhan (AIR 1926 Nagpur 109), it was observed that onus of proof is on party raising plea of Benami strong evidence is necessary. Source of purchase money and other circumstances must also be considered besides oral evidence. In the case of Mst. Zohra Begum and 6 others vs. Muhammad Ismaeel (1995 CLC 242), it was held that the question whether a particular sale is Benami or not is largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations can be laid down. However, in the light of the rules laid down in the case of Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain (1991 SCMR 703), Jane Margrete William vs. Abdul Hamid Mian (1994 CLC 1437), and Muhammad Ramzan vs. Sheikh Abdul Hameed (2002 CLC 1209) the Court highlighted four considerations for deciding the question of Benami character of a transaction. These considerations are as follow:-

(i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of suspicions, however, strong they may be.

(ii) That Court is to examine as to who has supplied the funds' for the purchase of property in dispute, it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction.

(iii) The character of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surrounding circumstances i.e. the relationship of parties, the motives underlying the transactions and any other subsequent conduct.

(iv) The possession of the property and custody of title deed.

8-A From the above-quoted judgments and precedents it can be gathered that the following factors/considerations are relevant for deciding the Benamicharacter of a transaction-

(i) The source of consideration and its payment

(ii) Motive for Benami transaction.

(iii) Real intention of the parties.

(iv) Possession and production of original title deeds.

(v) Possession and use of property in dispute.

(vi) Subsequent conduct of the parties including any act done in exercise of right of ownership.

1. On the touch stone of the above case law and the factors/considerations which are relevant now I will proceed to examine and discuss the evidence for determining the nature and character of the transaction in question.

(i) The source of consideration and its payment.

Muhammad Ibrahim appeared as DW. 1. He has stated that he is not marginal witness of the sale-deed. The consideration was paid as Rs. 4,000/- and this witness has stated the price of the plot as Rs. 3,000/-. He was unaware about the income of Al-Haaj Muhammad Rafique and the learned Additional District Judge discarded his statement. The next witness' is Abdul Karim DW. 2. According to him the sale-deed was completed in the year 1977, whereas, the sale-deed is dated 17.8.1974. The sale price has been wrongly shown by this witness of Rs. 40,000/-. This witness was also not present at the time of payment of sale price and the registration of the sale-deed. Respondent was also failed to prove the source of money through which the dispute plot was purchased. He stated that he went out of Pakistan at the end of 1974, meaning thereby, he proceeded for Saudi Arabia in the month of November/December, 1974, whereas, the disputed plot was purchased in the name of the respondent-Msf. Khalida Shahzadi vide sale-deed dated 17.8.1974. He has stated that the price was paid at the time of registration of the sale-deed in the presence of one Malik Usman who was a Property Dealer. It is important to mention here that Malik Usman has not been produced as a witness. No doubt the respondent also could not prove the source of purchasing the plot, the (sic) as stated above, in a Benami transaction the source of consideration and its payment to the vendor is always on the person who alleges Benami character of the transaction, which the petitioner has failed to prove in this case. In cross-examination it was suggested to the respondent Mst. Khalida Shahzadi by the learned counsel of the petitioner that Dollars were sent to her by the respondent from Saudi Arabia and that the amount for purchase of the plot was sent through draft from the Saudi Arabia. It is not understandable that how the Dollars were sent from Saudi Arabia when the petitioner went Saudi Arabia on the end of the year 1974 and the currency of Saudi Arabia was Rial and was not the Dollar and\ not a single receipt or draft has been produced in the evidence to show that the amount was sent, through draft.

(ii) Motive for Benamitransaction.

The person's motive for doing something is the basic to show as to why he has committed an act. It has been held in the case of Muhammad Zaman vs. Abdul Hameed (2002 CLC 1219) by his lordship Mr. Justice Mian Nazir Akhtar as my Lord then was, "Act done without motive is done without any reason. Subtle difference exists in motive and intention. If a person picks up a glass and drinks water, his motive is to quench thrust and intention to pick up a glass and drink water--If a person hits somebody with a weapon his intention may be to cause hurt to him although his motive may be to take revenge or create terrorism or merely to demonstrate his chivalry. His Lordship further observed that in some cases motive and intention may coincide but generally both are distinguishable. It matters where law requires a party to prove its motive for doing an act, failure to establish ^motive defeats the claim made by such party." Dispute regarding Benami [transaction, motive for relation in favour of benamidar must be proved by the person claiming to be the real owner. In the present case there was no 9. legal hurdle in, the way of Muhammad Rafique to get the sale-deed registered in his name. No reason whatsoever has been asserted by Muhammad Refique for getting the sale-deed registered in the name of Mst. Khalida Shahzadi.

(iii) Real intention of the parties.

I have already observed that the petitioner Muhammad Rafique could not prove the source of investment. Had the respondent invested the amount in the year 1974. Either he would have not obtained sale-deed in favour of the respondent Mst. Khalida Shahzadi, or he would have not waited to claim the ownership till the marriage is dissolved by the Family Court, and he would have not withdrawn the suit for declaration filed by him claiming that respondent. Mst. Khalida Shahzadi as Benamidar and he is the real owner. It is in the evidence that the petitioner filed the suit for declaration which was subsequently dismissed. The property was rented out by the respondent. Though the petitioner has denied the fact of renting out the property to Ghulam Nabi Butt and taking the possession from him but the truth came out of the mouth of Abdul Karim DW. 2, who stated that one of the tenant occupied suit property had left the same and he was known as Butt. The petitioner remained contended with his employment is Saudi Arabia and did not take any step to square his alleged title. The house was constructed in his absence. No proof of sending the cheque, money or draft has been proved by the respondent. In this view of the matter, the conduct of the petitioner shows the state of mind that he admitted Mst. Khalida Shahzadi as the real title holder of the suit property.

(iv) Possession and production of original title deeds. (v) Possession and use of property in dispute.

The respondent Mst.Khalida Shahzadi while appearing as PW. 3 has produced the attested copy of the sale-deed. No objection was raised at the time of producing the copy of sale-deed. The electricity meter (Ex. P. 4 to Ex. P. 12), water charges bills Ex. P. 13 to Ex. P. 15 were in the name of the respondent. The original document has not been produced by the petitioner. The same would have produced by him. The house remained in the possession of the tenant. Muhammad Hussain son of Chiragh Din in his testimony proved the fact which has been corroborated by DW. 2 Abdul Karim who stated that the property was in possession of the tenant in the absence of the petitioner Muhammad Rafique. It is therefore, proved that the possession of the house was with respondent. It has been stated by Mst. Khalida Shahzadi that the original sale-deed in possession of the petitioner which he had taken from her for attestation of mutation. This part of the statement has not been cross-examined, therefore, I conclude that not only title document of the suit house was in possession of the respondent Mst. Khalida Shahzadi but she remained in possession of the house through her tenant. She has admitted that the petitioner has sent Rs. 30,000/-. When the leg of her spn was fractured. The petitioner returned from Saudi Arabia at the end of 1976 and thereafter went in the year 1980 and remained there till 1987. The relation between the parties remained cordially till 1987 and no suit was filed by the petitioner claiming the ownership. The matter did not , end here, the petitioner filed the suit for declaration claiming the ownership of the house which was dismissed and the appeal (Ex. P. 16) which was dismissed by the order of the learned Additional District Judge (Ex. P. 7).

1. From the afore-going discussion it is held that the respondent Mst. Khalida Shahzadi was not the Benamidar of the house in dispute but she was the real owner. The finding of the learned Civil Judge, on Issues Nos. 1 and 2 were against the evidence and the law of Benami transaction. The learned Additional District Judge rightly reversed the findings on Issues Nos. 4 and 5 and accepted the appeal of the respondent. No illegality or irregularity has been committed by the learned Additional District Judge, in accepting civil revision Resultantly, this civil revision fails and is dismissed, with costs.

(A.A) Revision dismissed.

PLJ 2003 Lahore 280

[Multan Bench Multan]

Present-farrukh lateef, J.

ABDUL MAJID-Petitioner

versus

JUDGE FAMILY COURT KEHROR PACCA DISTRICT LODHRAN and 2 others-Respondents

W.P. No. 3323 of 2002 decided on 18.9,2002. (i) Civil Procedure Code, 1908 (V of 1908)-

—O. XIV, R. l--Plea of non-framing of issues regarding age of plaintiffs- Such plea was of no substance in as much, case was remanded by Appellate Court for very purpose and in post remand proceedings, parties were given opportunity to produce their respective evidence whereafter that point (of minority) was decided by Family Court. [P. 284] E

(ii) Constitution of Pakistan 1973-

—-Art. 199-Family Courts Act (XXXV of 1964), S. 5--Jurisdiction of High Court cannot assume role of Appellate Court for arriving at its own conclusions after re-appraisal of evidence adduced before Family Court-­ Appraisal of evidence is function of Family Court which has been invested with exclusive jurisdiction-Finding of fact recorded by Family Court cannot be interfered within writ jurisdiction when same was based on mis-reading and non-reading of material evidence and reasons have to be given in support of conclusions arrived at. [P. 285] F

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

—-Preamble—Object and scope of Family Courts Act 1964 explained and illustrated. [P. 283] A

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

—S. 5—Minors were not bound by document of "Shariat-Nama"written on behalf of their mother that she would not demand maintenance for her minor children—Minor's mother was not legally competent to forego or to contract away their rights. [P. 284] D

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

—S. 5 Qanun-e-Shahadat (10 of 1984), Art 59-High Court's direction for Radiological Examination of plaintiff-Age of plaintiff on basis of such examination was determined and they were found to be minors-Trial Court's finding was thus, found to be unexceptional and no illegality was committed by that Court in placing reliance on medical examination of plaintiffs whereby were found to be minors. [P. 284] C

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

—S. 17-Purpose, object and intention behind S. 17 of Family Courts Act 1964, was to exclude application of law of evidence to proceedings before Family Court-Repeal of Evidence Act, 1872 and its replacement by Qanun-e-Shahadat Order 1984, has not 'altered that position and provisions of Qanun-e-Shahadat 1984, were still excluded to proceedings before Family Court-Mere fact that plaintiffs did not formally prove specified documents was of no legal consequence, particularly when no objection was raised by petitioner defendant whan said documents were in evidence before Family Court-Family Court was also not legally bound to accept document produced by defendant as true and genuine merely because same was certified copy of public record. [Pp. 283 & 284] B

PLD 1992 Karachi 46 ref.

Malik Jewed Akhtar Wains, Advocate for Petitioner.

Nemofor Respondents Nos. 2 and 3, they are, therefore, proceeded against ex-parte.Respondent No. 1, is a proforma Respondent.

Date of hearing: 5.9.2002.

judgment

In this Constitutional petition Abdul Majeed has called in question judgment dated 26.2.2002 delivered by Respondent No. 1, Judge Family Court Kehror Pacca, District Lodhran whereby he granted maintenance allowance to Muhammad Bilal and Muhammad Iqbal-Respondents Nos. 2 and 3 respectively who are sons of the petitioner.

1. Briefly stated the facts are that the aforesaid minor sons of the petitioner had through their guardian instituted a suit for maintenance allowance against the petitioner which was decreed in their favour and they were granted maintenance allowance at the rate of Rs. 500/- each per month. Against the said judgment the petitioner filed a Constitutional petition which was accepted on the ground that Family Court had given finding without adverting to the document Ex. D. 3 produced by the petitioner in evidence and the case was remanded to the trial Court for deciding it afresh in accordance with law after taking into consideration the entire evidence of the parties available on record.

2. After the remand the learned trial Court considered the entire evidence on record and again decreed the suit. Maintenance allowance was granted to Respondents Nos. 2 and 3 at the rate of Rs. 500/- each per month from the date of institution of the suit.

3. Learned counsel for the petitioner has assailed the impugned judgment on the following grounds:-

(i) Judge Family Court had illegally relied on the documents viz. Medical Certificate Ex. PI, School Leaving Certificate Ex. P2, and compromise deed Ex. P3 for determining the age of Respondents Nos. 2 and 3 because the aforesaid documents were not per se admissible in evidence under Qanun-e-Shahadat and that the Family Court had further erred in not placing reliance on Ex. D 3 (register of birth entry) on flimsy grounds when the said document was per se admissible in evidence and was not required to be formally proved. Reliance was placed on the case of Mst. Bakht-e-Rawida vs. Ghulam Habib and two others (PLD 1992 Karachi 46). It was urged that ifdocuments Ex. PI, P3 are excluded then according to Ex. D3 both Respondents Nos. 2 and 3 were not minors and as such were not entitled to maintenance.

(ii) Material piece of evidence Ex. Dl, (Affidavit of the mother of Respondents Nos. 2 and 3) and 'Sharait Nama' mark A were not considered by the trial Court wherein mother of Respondents Nos. 2 and 3 categorically undertook that she would not claim maintenance allowance in respect of her sons (Respondents Nos. 2 and 3).

(iii) That in written statement specific allegation was raised that Respondents Nos. 2 and 3 were major, therefore, were not entitled to maintenance allowance but no issue was framed on that objection; and

(iv) Ex. PI was not relied upon and could not be produced in evidence in view of Section 7(3) of Family Court Act.

1. Arguments heard, writ petition and the annexures appended therewith perused.

2. Adverting to the arguments of the learned counsel for the petitioner it may be observed that in the impugned judgment Family Court has held Respondents Nos. 2 and 3 as minors on the basis of the following documents:-

(i) Ex. PI, age certificate issued by M.S. D.H.Q. Hospital Lodhran on 23.1.2001 on the basis of radiological examination of Muhammad Bilal. According to this document age of the said body was between 13 and 14 years as on 23.1.2001.

(ii) Ex. ,P2 certificate issued by Head Master Government High School according to which date of birth of Muhammad Iqbal is recorded in the school register as 15.12.1990 which means that at the time of institution of suit his age w.as less then. 10 years, (iii) Ex. P. 3 a compromise deed between the parties wherein age of the said respondents is respectively stated is 10 and 8 years. Copy of this document is not annexed with the writ petition.

1. The impugned judgment further reveals that, document Ex. D3, which was after remand exhibited as R. 1, was not relied upon by the Family on, law of evidence was repealed and replaced by Qanun-e-Shahadat Order 1984. In my humble view bar contained in Section 17 of the Family Courts Act, therefore, applies to the provisions of the law of evidence irrespective of the fact if it was amended repealed and replaced by subsequent legislation and was given another name.

As the provisions of Qanun-e-Shahadat Order did not apply to the proceedings before Family Court, therefore, mere fact that respondents did not formally prove documents Ex. PI to Ex. P3 was of no legal consequence, particularly in view of the fact that no objection was raised by the petitioner when the said documents were tendered in evidence before the Family Court. Similarly Family Court was not legally bound to accept document Ex. D3 (copy of register of birth entry) as true and genuine merely because of the fact that it was a certified copy of public record. Family Court could refuse to attach weight to the said document in view of other convincing evidence to the contrary and it could take notice of any material on record in connection with question of controversy between the parties and was legally competent to evaluate that evidence.

1. For its satisfaction, this Court had also directed for the Medical Examination of Respondents Nos. 2 and 3 for determination of their ages in compliance whereof Respondents Nos. 2 and 3 were medically examined. According to the Radiological Examination conducted in Nishtar Hospital Multan age of Respondent No. 2, Muhammad Bilal was between 14 and 16 years whereas that of Respondent No. 3, Muhammad Iqbal was between 13 to 15 years as on 30.7.2002. Suit for maintenance was instituted on 5.4.2000. Both the respondents are still minors as they have not attained the age of 18 years.

2. The finding of the learned trial Court to the effect that both the respondents are minors is, therefore, unexceptional and no illegality was committed by the leaned Family Court in not placing reliance on document Ex. D. 3 because in view of the evidence produced by the respondents the said document did not appear to be authentic and genuine.

3. Next contention of the petitioner's counsel that affidavit Ex. Dl and 'Sharait Nama' Mark A were not considered by the Family Court, is without any substance because vide the said documents mother of Respondents Nos. 2 and 3 undertook that she would not demand

maintenance for her minor son (Respondents Nos. 2 and 3). Minors were not bound by the said documents nor their mother was legally competent to forego or to contract away their rights.

1. Next contention of the petitioner's counsel that issues were not framed regarding age of the minors is without any force because the case was remanded by the High Court for that very purpose and after remand parties were given opportunity to produce their respective evidence whereafter that point was decided by the Family Court.

20.Last submission of the learned counsel for the petitioner wasthat Ex. PI was not relied upon hence it could not have been tendered inevidence in view of Section 7(3) of the Family Court Act This argument isalso without force because the said document was received in evidence by the Family Court without any objection from the petitioner and there is no penalprovision in the Family Court Act for violation of the provisions of Section7(3).

1. In writ jurisdiction High Court cannot assume the role of appellate Court for arriving at its own conclusions after re-appraisal of evidence adduced before the Family Court.

2. Appraisal of evidence is the function of the Family Court which is invested to it with exclusive jurisdiction. Finding of fact recorded by it cannot be interferred with in writ jurisdiction when it is not shown to be based on mis-reading and non-reading of material evidence and reasons have been given in support of the conclusions arriving at

3. For the reasons stated above, writ petition is hereby dismissed. (A.A) Petition dismissed.

PLJ 2003 Lahore 285 (DB)

Present: mian saqib NlSAR AND muhammad sair all JJ.

KHURAM BASHIR-Appellant versus

chaudhry'muhammad KHALro-Respondent

R.F.A. Nos. 80 of 1995 & 288 of 2002, heard on 21.5.2002.

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

—-O. VIII, R. 7 & S. 96-Defendants claim of specified amount against plaintiff as set off-Such claim seemed to be an afterthought and as counter blast to plaintiffs claim-Defendant tried to support such claim on the basis of two entries in black ink, while in the same document entire bill had been written in blue ink with one flow and by one hand-­Entries in black ink were evidently different and appear to have been incorporated in that document subsequently-Defendant thus, failed to support his claim of set off although he was able to prove full payment of contractual amount to plaintiff-Judgment and decree rendered to Trial Court in dismissing plaintiffs suit were maintained and affirmed.

[P. 290] B

Contract Act, 1872 (IX of 1872)--

—-S. 2(h) Suit for recovery of contractual amount-Contract in question was for construction of shop—Plaintiff had received specified amount from defendant through three cheques-Receipt relating to contractual amount was after date of completion of shop and after submission of final bill by defendant who thus, received total amount from plaintiff in full and final settlement of his claim for construction of shop in question. [P. 290] A

Mr. Muhammad Saleem Shahnazi, Advocate for Appellant. Ch. Muhammad Sadiq, Advocate for Respondent. Date of hearing: 21.5.2002.

judgment

Muhammad Sair Ali, J.--RFA No. 80/95 and RFA No. 288/2002 arise from the same judgment and decree dated 29-11-1994 wherefore the two Appeals are decided through this judgment.

1. Appellant on 2-3-1993 filed a suit for recovery of Rs. 4,62,790/- against the respondent on the basis of an oral agreement of May, 1992 to construct a shop for the respondent at the rate of Rs. 170 per sequare foot for the ground floor and Rs. 210/- per square foot for the first floor. In his plaint, appellant as plaintiff claimed to have completed his part of the agreement in September 1992 by constructing the said shop at a total price of Rs. 7,14,260/- and pleaded that respondent paid only a sum of Rs. 2,68,000/- out of the said bill. Appellant thus sought decree for recovery of the purported balance amount of Rs. 4,62,790/- through the suit alongwith interest under Section 34 of Civil Procedure Code. Respondent filed a contesting written statement and raised a counter claim for recovery of Rs. 60,000/- against the appellant, by stating his defence in Paras 3 and 4 of the written statement as under:

"3.... In September 1992 the plaintiff handed over a bill statement prepared in his own hand writing and according to that statement the plaintiff showed total amount as Rs. 7,68,710/- and Rs. 5,60,000/-were accepted as received in advance and the balance was shown as Rs. 2,08,710/. It is pertinent to submit here that in the present suit the total cost is shown as Rs. 7,14,260/- which clearly proved that the previous calculation of the plaintiff was wrong.

4... In fact when the plaintiff handed over the above said statement to the defendant, the defendant issued the following cheques in the name of the plaintiff.

(i) Cheque No. 92248797 dated 15-10-1992, Rs. 1,00,000/-. (ii) Cheque No. 34900101 dated 20-10-1992, Rs. 1,00,000/-. and these cheques were encashed by the plaintiff. After that the plaintiff again demanded Rs. 60.000/- for the work which was yet to be done but did not do up till now and defendant again issued a Cheque No. 34900105 dated 21-11-1992 amounting to Rs. 68,000/-(8 thousand previous balance) which amount was received by the plaintiff from the bank on 22-11-1992 and in this way the plaintiff received total amount of Rs. 8,28,000/- and in this way even if the previous calculations of the plaintiff are considered as correct, then the plaintiff received Rs. 1,14,740/- in excess against his own prepared bill. An if the present cost mentioned in the present suit is considered as correct, then the-plaintiff received Rs. 1,14,740/-in excess from the defendant. However, the defendant claims Rs. 60,000/- from the plaintiff as set off on the basis of previous calculations."

1. From the pleadings of the parties following issues were framed:

(1) Whether the plaintiff constructed ground floor and first floor as per settlement between the parties? OPP.

(2) Whether the cost of construction is Rs. 7,14,260/-? OPP.

(3) Whether the plaintiff is entitled to receive Rs. 4,46,260/- from the defendant as outstanding amount? OPP.

(4) What is the exact calculation and measurement of covered area? OPD.

(5) V7hether defendant is entitled to receive Rs. 60.000/- from the plaintiff? OPD.

(6) Whether the plaintiff has received an amount of Rs. 60,000/- in excess? OPD.

(7) Relief.

1. In evidence appellant appeared as his own witness (PW-1) while respondent presented two witnesses i.e. DW-1 and DW-2 including himself appearing as DW-2. Respondent also brought on record during appellant plaintiffs cross-examination as Exhibit D-l the alleged bill given to him by the appellant for the construction of the shop.

2. The learned Civil Judge, Lahore through judgment and decree dated 29:11-1994 deciding Issues Nos. 2, 3 and 6 against the appellant plaintiff and Issues Nos. 4 and 5 against the respondent defendant, dismissed appellant's suit as well as respondents' counter claim in the form of set-off.

3. Appellant, feeling aggrieved, assailed the above said judgment and decree dated 29-11-1994 of the learned civil Judge, Lahore through present appeal RFA No. 80/95 titled "Khurram Bashir vs. Muhammad Khalid" while the respondent against rejection of his counter claim of Rs. 60,000/- filed an appeal in the Court of learned District Judge, Lahore owing pecuniary constrains. Since RFA No. 80/95 was pending in this Court against judgment and decree dated 29-11-1994 therefore respondent's appeal against the same judgment and decree was lifted from the Court of learned District Judge, Lahore and was numbered as RFA No. 288/2002 titled "Ch. Muhammad Khalid vs. Khurram Bashir". Both the appeals were heard together.

4. The learned counsel for the appellant read out the deposition of the appellant as PW-1 to state that appellant had proved his case and the learned trial Court illegally held Issues Nos. 2, 3 and 6 against the appellant. Contrarily, the learned counsel for the respondent supported the impugned judgment and decree to the extent of dismissal of appellant's suit and by re- analysing the contents of Exhibit D-1 claimed Rs, 60,000/- as set off against the appellant.

5. We have considered the submissions of the learned counsel for the parties and have also examined the pleadings and evidence presented by the parties.

6. In our opinion, decision of the case entirely hinges upon the admitted document brought on record as Exhibit D-1 by the respondent by confronting the same to the appellant plaintiff (PW-1) during his cross- examination. Appellant admitted that Exhibit D-1 was written in his hand but stated that Exhibit D-1 was the estimate given by him to the respondent prior to commencement of construction. Appellant however did not deny, rebut or disprove the contents of Exhibit D-1. He only denied that Exhibit D- 1 was the final bill to the respondent given in September 1992. Contrarily, the respondent as DW-2 in his deposition stated that appellant in August 1992 gave him the final bill (Exhibit D-1) for Rs. 7,68,000/- for the construction of the shop and that appellant therein admitted to have received a sum of Rs. 5,60,000/- in advance thereby claiming in Exhibit D-1 the outstanding balance amount of Rs. 2,08,710/- only. Exhibit D-1 is thus an admitted document. Appellant claims Exhibited D-1 to be an estimated bill while respondent claims it to be the final bill for construction of the shop. Respondent on the basis of concluding entries in Exhibit D-1 also pleaded set

off for Rs. 60,000/- stating that the same has been admitted in Exhibit D-1 by the appellant. 11. In our opinion the bare reading of Exhibit D-l adequately determines the status and nature of this document The first two entries relate to exact covered area of ground floor and the first floor (equal in square footage) which have been multiplied by agreed rates of Rs. 170/- for ground floor and Rs. 210/- for the first floor to reach the construction cost of the two floor. The third entry in Exhibit D-l is the cost of stairs. These entries being relevant are reproduced hereunder:

Rate Ground Floor: 87-6" x 21 = 6" = 18816 sft s 170 = 3,19,770-00

87-6" 21-6" - 1881 sft x 210 - 3,95,010-00 Stairs: =15,000-00

Total: = 7,29,780-00

After the above entries, exact measurement to fractions of RCC beam, its cost per square foot at the rate of Rs. 70/-, consumption of steel in exact running footage along with its weight (728 Kilograms to be exact) at the rate of Rs. 16/- has been worked out. Similarly exact measurements of brick work and bath tiles with their rates and total cost have also been calculated in Exhibit D-l. In the concluding part Total Construction Cost has been worked out to be Rs. 7,68,710/- and from this cost advance amount of Rs. 5,60,000/- has been decreased to reach the outstanding balance, of Rs. 2,08,710/-.

1. We are thus of the considered opinion that exactitude of covered area of each floor, definite measurements of RCC beam, bricks and tiles and steep weight age multiplied by-the rates charged adds up to the total amount of construction cost claimed in Exhibit D-l by the appellant from the respondent. As such Exhibit D-l was not an estimate of costs but was the final bill of costs and claims for the work done by the appellant. Each entry therein speaks of its finality. Exhibited D-l records the following end total of appellant's final claims:

Total amountRs. 768.710/-. Advance: Rs. 5,60,000/-Balance: Rs. 2,08,710/-

By deducting advance amount of Rs. 5,60,000/- from the total cost of Rs. 7,68,710/- appellant obviously admitted to have received the said amount and thereby gave a final bill of Rs. 2,08,710/-to the respondent for payment.

1. Furthermore as per statement of appellant as PW-1, he completed the work in September 1992. Respondent as DW-1 deposed that it was in August/September 1992 that Exhibit D-l was given by the appellant to respondent as final bill. This evidence on record clearly proves that this bill was given by the appellant to the respondent in September 1992 upon completion of the shop with above said outstanding amount of Rs. 2,08,710/- only. In Para 4 of the plaint and in his cross-examination as PW-1, appellant as plaintiff admits to have received through cheques a total sum of Rs.

2,68,000/- from the respondent on the following dates which is the case of the respondent as well:

(i) Cheque No. 92248797 dated 15-10-1992 for Rs. 1,00,000/-(ii) Cheque No. 34900101 dated 20-10-1992 for Rs. 1,00,000/-(iii) Cheque No. 34900105 dated 21-11-1992 for Rs. 68,000/-

The appellant plaintiff thus received between 15-10-1992 and 21-11- 1992, a total sum of Rs. 2,68,000/- from the respondent through above stated three chouse. This receipt was after the date of the completion of shop in September 1992 and after the submission of the final bill i.e. Exhibit D-l in August/September 1992 by the appellant who thus received a total sum of Rs. 8,28,000/- from the respondent in full and final settlement of his claim for construction of the suit shop. 14.As to the claim of Rs. 60,000/- raised by the respondent against the appellant, we believe that this claim was an after thought and was pleaded as a counter blast in the written statement. The learned counsel for the respondent tried to supports this claim on the basis of two entries made in black ink in Exhibit D-l while the entire bill had been written in blue ink with erne Cow and by one hand. The entries in black ink are evidently different and appear to have been incorporated in Exhibit D-l subsequent to 0 the submission of bill or may be the suit. Furthermore respondent at // no go prior to the date of the written statement raised the claim of Rs. 60,000/- against the appellant plaintiff. In our opinion the above said amount of Rs. 8,28,000/- was an amount paid to the appellant by the respondent as full and final settlement of the outstandings and respondent has not able to support his claim of Rs. 60,000/- through any cogent evidence.

1. In view of the above we do not find any legal or factual infirmity in the impugned judgment and decree dated 29-11-1994 passed by the learned Civil Judge, Lahore dismissing appellants' suit as well as respondent's counter claim.

2. These appeals are thus dismissed with no orders as to costs.

Appeals dismissed.

PLJ 2003 Lahore 291

[Rawalpindi Bench Rawalpindi]

Present: muhammad sayeed akhtar, J. MUHAMMAD ASLAM etc.--Petitioners

versus UNION COUNCIL NOORPUR etc.--Respondents

W.P. No. 3476 of 2001, heard on 25.6.2002. Punjab Local Government Ordinance 2001 (XVIII of 2001)--

-—S. 88(l)(h)--Constitution of Pakistan (1973), Art. 199--Business of transportation of coal through trucks-Tax on such business imposed by respondents assailed--Pubiic roads, are included in definition of "Municipal Services"--Union Council cannot charge for provision of a function which it has a duly to provides, whereas it can charge for a function which it has merely power to provide or not to provide at its discretion-There was nothing on record to show that respondent wasproviding any services-In absence of same no fee can be charged by it--

Impugned notification issued by union council and published in Punjab Gazette of specified date was, thus, ultra vires the statute-Notification in question, was declared to be without lawful authority and of no legal effect. [P. 293] A

Syed Qalb-i-Hassan,Advocate for Petitioners.

Mr. Arshad Majeed Malik, Advocate and Syed Sqjfad Hu?sair Shah, Asstt. A.G. for Respondents.

Date of hearing: 25.6.2002.

judgment

The facts giving rise to this petition are that the petitioner is engaged in the business of Transportation of coal from mines to different places through trucks. The respondent Union Council has imposed a tax on coal @ Rs. 5 per ton vide Notification dated 24 December, 2001 published in the Punjab Gazette and effective from 15th September, 2001.

The parawise comments were called for from the respondent Union. Council. The respondent Union Council in its parawise comments stated as under:-

"The impugned service tax is not chargeable from any mine owner/lease holder but is levied on the transport vehicles which comes within the local limits of the Union Council and used the temporary roads which connect the quarries with mam road. Union Council provides the service of construction, repair and maintenance of these roads which connect quarry with main roads."

My learned brother Ali Nawaz Chowhan, J. passed the following order on 13.2.2002:-

"With the mutual consent of both sides and for ascertaining what services were being provided by the Union Councils Noorpur and Minara, Ch. Mehmood Akhtar, Advocate is appointed as Local Commission for local inspection. His fee shall be 8000/- to be equally shared by both sides and which will be given to him at the site. He shall submit his report on the next date and shall also hand over the copies of his report to both sides simultaneously. To come up on the 25th of February, 2002, when the Local Commission shall be here for explaining the position at the site".

The Local Commission has submitted his report according to which, a very negligible portion of the road is being maintained by the Union Council. The road is being used by Three State Mines. It is further stated that most of the mines are owned by Bng (Rtd.) Fateh Sher who claims to be the owner of the road and who claims to maintain the same. Keeping in view the width and the length of the road, it is not possible for the Union Council Noorpur to maintain the same.

1. Section 88(l)(b) of the Punjab Local Government Ordinance (XVIII of 2001) reads as under:-

"(1) The functions of the Union Council shall be to-

(a) ................

(b) approve rates and fees for services specified in Part-Ill of the Second Schedule proposed by the Union Administration;"

Part-Ill of the Second Schedule to the said Ordinance is reproduced as follows:-

(1) Fees for licensing of professions and vocations.

(2) Fee on sale of animals in cattle markets.

(3) Market fees.

(4) Fees for certification of births, marriages and deaths.

(5) Charges for specific services rendered by the Union Council.

(6) Rate for the remuneration of village and neighbourhood guards.

(7) Rate for the execution or maintenance of any work of public utility like lighting of public places, drainage, conservancy and water supply."

Mere reading of Section 88(1)0)) would show that the Union Council can approve rates and fee for services specified in Part-Ill of the Second Schadulo proposed by the Union Administration. Sub-clause 5 of Part-Ill roads &3 under:-

"Charges for specific services rendered by the Union Council".

In the instant case, no services are being provided by the Union Council. The respondent Union Council has not placed on record any title document regarding the ownership of the land.

No documentary evidence has been brought on the record to show Cist, tli? land underneath the road was ever acquired for the Union Council or it was purchased by mutual agreement by the respondent Union Council Section 88 of the Ordinance enumerates the functions of the Union Council. Under sub-section «(l)(f) of the same. Section, one of the functions of the Union Council is as under:-

"Mobilize" the community iavolveaient in maintenance of public ways public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuits."

The term "functions" covers the powers and duties under various provisions of an Act. The phrase "services" has not been defined in the Punjab Local Government Ordinance (XVIII of 2001) but 'municipal services' have been defined under Section 2(xxii). Public roada are included in the definition of municipal services': The Union Council cannot charge for the provision of a function which it has a duty to provids, whereas it can charge for a function which it has merely power to provide or not to provide at its discretion. See, "Me Carthy and Stone (Developments) Ltd. vs. London Borough of Richmond Upon Thames" (1994 SCMR 1393). As stated above, there is nothing on the record to show that the respondent Union Council is providing any services. In the absence of the same, no fee can be charged by it. The impugned Notification issued by the Union Council and published fti the Punjab Gazette dated December 24,2001 is ultra vires the Statute.

1. For what has been stated above, this writ petition is allowed and the impugned Notification is declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs.

(A.A) Petition accepted.

PLJ 2003 Lahore 294

[Multan Bench Multan]

Present farrukh lateef, J.

KHAN MUHAMMAD SABIR LAL decoded through LEGAL REPKESENTATrVE-Petitiotsre

versus

SETTLEMENT COMMISSIONER MULTAN DIVISION MULTAN and 2 others-Respondents

W.P. No. 11-R of 1984, decided on 23.10.2002.

(J) Displaced Persons (Compensation and Rehabilitation Act, 1958

(XXVIII of 1958)-

—Ss, 10 & 11--Settlement Scheme No. VI--Constitution of Pakisan (1973), Art. 199-Order of remand passed by Settlement Commis.-ion was challenged by petitioner in earlier round to litigation before Hig'i Court, resulting in dismissal of his writ petition-Impugned order of Set'Jement Commission, thus, attained finality-Present writ petition against order in question, was not competent on the principle of res-judicata,[P. L97] A

(i!) Displaced Persons (Compensation and Rehabilitation ,Act, 1958 (XXVIII of 1958)--

—- Ss. 10 & 11-Constitution of Pakistan (1973), Art. 199-Petitioner in post remand proceedings did not challenge order of Deputy Settlement Commissioner in as much as he had the remedy of assailing said order before Settlement heirarchy- -Petitioner having failed to avail that remedy, writ petitioner filed by him was incompetsnt-Besides, certified copy of order in question, was delivered to petitioner on 17.3.1982 but present writ petition was filed on 8.1.1994, without assigning or explaining any reasons for delay-High Court in its extraordinary jurisdiction would refuse its aid to stale claim where claimant had acquiesced by sleeping over his right for such a long period-Writ petition was thus, not competent. [P. 297] B

Ch. Ehsan Ullah,Advocate for Petitioners.

Eyed Mohtashitn-ul-Haq,Advocate for Respondents Nos. 1 and 2.

Mr. Kanwar Akhtar AH, Advocate for Respondent No. 3.

Date of hearing: 25.9.2002.

judgment

This constitutional petition was filed by Khan Muhammad Sabir Lai, who died during the pendency of this petition whereafter his legal representative were brought on record.

1. Brief facts of the petition are that a portion of evacuee Property No. 2253/8-M, comprising of a piece of land measuring 180 sq. yards was transferred by the Deputy Settlement Commissioner, Multan in favour of one Ghulam Rasool son of Palia, under Settlement Scheme No. VI, videorder dated 25.8.1966. The said transferee surrendered his rights in the said land in favour of his son Talib Hussain who is Respondent No. 3, in this writ petition. PTD in respect of the said piece of land was also issued in favour of Respondent No. 3.

2. The said order of transfer was challenged in appeal by the writ petitioner before Additional Settlement Commissioner on the ground that he had obtained an evacuee plot measuring 18 Marias in open auction in the year 1960 and the aforesaid subsequent transfer to Ghulam Rasool son of Palia was illegal because the portion of land transferred to Ghulam Rasool was in fact part and parcel of the 18 Mariasplot purchased by him in the open auction.

3. Version of Ghulam Rasool son of Palia and Talib Hussain Respondent No. 3, in that appeal was that the plot obtained in auction by the writ petitioner measured 12 Mariasand not 18 Mariasand that Ghulam Rasool son of Palia was in possession of another portion of Property No. 2253/8-M, comprising of 6 Mariaswhich was transferred to him.

4. Vide order dated 22.1.1970, the appeal was accepted by the Additional Settlement Commissioner and the case was remarided to the Deputy Settlement Commissioner for deciding it afresh after thorough inquiry on the following points:—

(i) Whether the property auctioned was 18 Mariasor 12 Marias.

(ii) Whether it was the same property which was in possession of Ghulam Muhammad minor (the writ petitioner claimed that he had purchased in auction property which was in possession of Ghulam Muhammad minor).

(iii) Whether Ghulam Rasool son of Palia was occupying a portion of the property in possession of Ghulam Muhammad minor as his tenant or he is in possession of another portion of the property independent of the one in possession of Ghulam Muhammad minor; and

(iv) Whether form for transfer of the property filed by Ghulam Rasool son of Palia was in time and in entered in the relevant register.

1. On remand the D.S.C. vide, order dated 4.11.1970 held that the writ petitioner had purchased the auction plot measuring 18 Mariaswhich was in possession of Ghulam Muhammad minor and it was inclusive of the portion which was transferred as a separate plot to Ghulam Rasool son of Palia and that Ghulam Rasool aforesaid did not file any form for the transfer of property within prescribed time. Since portion of land in possession of Ghulam Rasool son of Palia was held to be purchased in auction by the writ petitioner, the documents issued in favour of Ghulam Rasool son of Palia transferring the portion of land to him were declared as irregular and were

cancelled.

1. Aggrieved by the aforesaid order of die Deputy Settlement Commissioner dated 4.11.1970, Ghulam Rasool son of Palia and bis son Talib Hussain (Respondent No. 3 in this writ petition) filed an appeal before the Addl. Settlement Commissioner. The Addl. Settlement Commissioner concurred with the findings of the D.S.C. and dismissed the appeal videorder dated 7.6.1972.

2. Gb'jlam Rssool son of Palia and Ms son Talib Hupsaia assailed tha aforssaid orders of the D.S.C, and the Addl. Settlement Commissioner before the Settlement Commissioner, Multan and Bahawalpu.' Divisions who vide order dated 24.2.1973 accepted the revision petition, sev-aside the aforesaid orders dated 4.11.1970, and 7.6.1972 respectively passed by the D.S.C. and the Addl. Settlement Commissioner and remanded the case for further adjudication on the points discussed by him in his order.

3. 00 remand the case was decided by Deputy Settlement Commissioner vide order dated 8.3,1982. He held that Ghulam Rasool bon of Palia had submitted transfer form for plot in question and the same was

rigiitly transferred to him who after securing its transfer had surrendered the full rights of transfer in favour of Ms son Talib Hussain to whom PTD stands issued after realizing all the dues.

1. In this Constitutional petition Khan Muhammad'Sabir Lai, has called in question orders of the Settlement Commissioner and the D.S.C. respectively passed on 26.2.1973 and 8.3.1982 as without lawful authority and of no legal effect.

2. Writ petition was opposed by the learned counsel for the respondents. Arguments heard, petition and the annexures appended therewith perused.

3. It was argued by the learned counsel for the petitioner that order of Settlement Commissioner whereby he accepted the revision petition and remanded the case without adverting to the findings of the Courts below; that it is an accepted principles of law that a tribunal of exclusive jurisdiction may decide the case wrongly or rightly; that in the instant case categorical findings were recorded by the DSC and the Addl. Rehabilitation Commissioner in their orders on all relevant questions of fact on the basis of records of Settlement and Rehabilitation, Taxation, Guardian Judge, site inspection and the statements of the contesting parties as well as occupants of the concerned property hence such findings were not amenable to revisional jurisdiction. It was further submitted that on case for remand was made out under Order 41, Rule 23 CPC because the entire data forming basis of the impugned orders was available and on evidence to the contrary was produced before the Settlement Commissioner.

4. The above arguments cannot be considered on the short ground that order of the Settlement Commissioner passed on 26.2.1973 whereby he remanded the case was admittedly challenged by the petitioner in W.P. No. 451-R/1973 which was dismissed by the High Court vide order dated 17.6.1974 (Annex-J/4), after holding that the Settlement Commissioner was justified in remanding the case on limited questions of facts. Thus aforesaid remand order passed by the Settlement Commissioner had attained finality and on the principle of res-judicatathe said order cannot be challenged again in this writ petition.

5. It was next submitted by the petitioner's counsel that order dated 8.3.1982 whereby the DSC, on remand, had decided the matter, was passed by him without ndverting to the evidence on record, and without inspecting the site; that the said order is passed on erroneous assumption' of facts, surmises, conjectures and was passed beyond the scope of remand order inasmuch as the case was remitted for a limited purpose.

6. I am not inclined to consider the above contentions because writ petition is incompetent inasmuch as the petitioner had the remedy of assailing the aforesaid order of DSC before the Addl. Settlement Commissionar or tha Settlement Commissioner -which remedy was admittedly not availed of by him. Moreover, certified copy of the aforesaid order was delivered to the writ petitioner by the copying agency ca 17.3.1982 but this writ petition was filed after a period of about two years on 8.1.1984 without assigning or explaining reasons for the delay. High Court in its extraordinary jurisdiction would refuse its aid to stale claim where tha claimant has acquiesced by sleeping over his right for such a long period.

7. For the reasons stated above, writ petition is hereby dismissed. (A.A) Petition dismissed.

PLJ 2003 Lahore 297

Present: ABDUL SHAKOOR PARACHA, J. DOCTOR AMIR AHMAD KHAN-Appellant

versus

SAFEER AHMED-Responden't S.A.O. No. 10 of 2001, heard on 2"0.6.2002.

(i) West Pakistan Urban Rent Restriction Ordinance 1959 (VI of 1959)--

—S. 13-Ejectment of tenant for personal bona fide use of landlord in good faith-Onus of proving such issue being on landlord, he appeared ia witness-box and made statement on oath which was neither shaken cross-examination nor same was showed to be inconsistent with pleadings or that application had been filed with mala fide-Wbiieadjudging personal bona fide need of landlord, statement on oath of landlord consistent with ejectment application which was not shaken in cross-examination, has to be accepted-Case for ejectment of tenant for personal bon-u fide use of landlord was thus, made out. [P ] A

(ii) West Pakistan Urban Rent Restriction Ordinance 1959 (VI of

1959)--

—S. 13-Ejectment of tenant-Assertion of landlord that he required premises for his personal use would have to be determined in the context of provision contained in S. 13(4) of Ordinance VI of 1859, which enables tenant to regain his possession from his landlord (who had obtained same on fake plea of bona fide personal use but he had failed to occupy same within one month of date of obtaining possession or who had re-let same within two months of said date to any person ether than tenant-Order of ejectment passed by Rent Controller was restored while that of Appellant forum dismissing ejectment application was set aside. [P. 301] B

PLD 1975 Lahore 308; 1985 CLC (Karachi) 2033;

PLD 1982 SC 218 and PLD 1976 Karachi 832 ref.

Mr. Ahmad Waheed Khan, Advocate for Appellant.

Ms. Farzana Shahzad Khan, Advocate for Respondent. Date of hearing: 20.6!2002.

judgment

This appeal impugns the order dated 21.11.2000 passed by the learned Addl. District Judge, Lahore, v/hereby he accepted the appeal of the respondent Safeer Ahmail by setting aside the order dated 3.2.2009 of the learned Rent Controller, Lahore, through which, he accepted the ejectment petition of the appellant against the respondent Under Section 13 of the Rent Restriction Ordinance and directed him to vacate the Shop No. 9-E, Main

Market, Gulberg, Lahore.

1. Brief facts giving rise to the filing of present appeal are that Dr. Amir Ahmad Khan appellant filed the ejectment petition under Section 13 of the Rent Restriction Ordinance, against Safeer Ahmad respondent on the ground of personal need to establish a clinic for his own use being a Doctor and also for the use of his sons namely, Dr. Sajid Khan, Dr. Abid Ali Khan and Dr. Wajid Ali Khan. It was also asserted that the appellant's wife was

also a doctor and that appellant's sons are gone abroad, who want to come back and settle in Pakistan.

1. The respondent Safeer Ahmad resisted the ejectment petition by filing the written reply. It was asserted that the ejectment petition was malafide and had been launched to exert pressure so that the rent can be enhanced. It was further contended that the appellant's sons had gone

abroad for higher studies and had permanently settled there alongwith their family and that the appellant and his wife are all alone living in- 9-E, Main Market. Gulberg, Lahore which was sufficient for their need.

1. From the divergent pleadings of the parties, the learned Rent Controller, framed this following issues:-

ISSUES:-

1. Whether the petitioner required the disputed shop for his personal bona fide use in good faith? OPA

2. Whether the application has been filed with mala fideintention? CPR

3. Whether the petition is not maintainable? OPR

4. Whether the petitioner is estopped by his own words and conduct to file this petition? OPE

5. Vhether the petitioner has no cause of action? OPR

5-A. Whether the disputed property has not been properly described if so, what is its effect? OPR

1. Relief.

2. The appellant examined Sharafat AH PW-1, Mian Jehangir Bashir PW-2 and also appeared himself in the Court. Site-plan produced by the appellant was as Ex. P.I. The respondent examined Muhammad Yousaf RW-1. His own statement was recorded as RW-2.

3. The learned Rent Controller decided Issue No. 1 of personal need in favour of the appellant and observed:

"It is strange that the petitioner's sons should\ be asked to come Pakistan even without any established business cr at least before making some arrangement in this regard. Even if they are settled in England or America or they are doing any job (if assumed for the sake of arguments), even then, they have a right to come' to Pakistan and settle here. It is quite natural that any man of ordinary prudence would like to make arrangements for starting or establishing some business before he permanently come back to Pakistan, so that he might be in a position to earn his bread._ Even otherwise, at least it is established that the petitioner does not have any proper job after his retired life. It is the privilege and prerogative of the petitioner/landlord to decide to use his own property in a way he likes. If he wants to establish a clinic in the demised premises and his other shops this is his right, especially when the respondent has not been able to show as to what is motive or mala fide in filing this petition."

The remaining issues were decided against the respondent as he could not prove any mala fide against the appellant and it was observed that the appellant had the cause of action to file the ejectment petition and he is not estopped by his words and conduct to file the ejectment petition against the respondent. Resultantly, ejectment petition was accepted by the learned Rent Controllei vide Ms order dated 3.2.2000 and the respondent was directed to hand over the vacant possession of the demised premises within two months from the date of the order.

1. The respondent Safeer Ahmad filed an appeal against the order dated 3.2.2000 of the learned Rent Controller, which was accepted by the learned Addl. District Judge vide his order dated 21.11.2000. The learned Addl: District Judge was of t^e view that, the petitioner's two sons were settled in U.K with their respective wives and children, and were doing jobs and running dimes. Tha tliird son was settled in Chicago with h?s family. None of the sons of t!i? petitioner Lad appeared as & witness is support of the demand. The petitioner admitted that he forget the names due to old age and Sharafat Ali dealt with these matters. The statement of the respondent was confidence inspiring that the petitioner lived on the remittances of his sons and saw a few patients at home or in the dispensary of the main mosque. The petition lacks bona fide. The impugned order is the result of mis-reading of evidence."

2. Learned counsel for the appellant contends that well reasoned judgment of the learned Rent Controller has been reversed by tb.3 first Appellate Court without any cogent reasons. Further contends that the statement of Oath of the landlord in conformity with the averments made in the ejectment petition and not shaken during the cross-examination, was sufficient to establish bona fide need of the appellant. Reliance has been placed on PLD 1976 Karachi 832. Further contends that the learned first appellate Court fell in error when the relief has been denied to the appellant on the ground that sons of the appellant are settled in England and America and had not appeared as witnesses in support of their demand. Further contends that till some arrangement is made in Pakistan and the shop is vacated, sons of the appellant cannot sit idle in England or America. Further contends that findings on Issues Nos. 1 and 2 by the first appellate Court are result of mis-reading of evidence on the record, because it is privilege and prerogative of the landlord to use his own property in a way be likes. This right could have not been denied by the first appellate Court by accepting the appeal of the respondent.

3. Conversely, learned counsel for the respondent contends that the appellant's sons are residing abroad. They are not intending to run the business in Pakistan. If they come to Pakistan and remain here for at least two years, the respondent shall hand over the possession of the demised premises. Further contends that sons of the appellant have not appeared in the witness-box to show their bona fide to establish their business.

4. The crucial issue in this case is Issue No. 1, which is whether the petitioner required the disputed shop for his personal bona fide use in good faith. Onus of proving of this issue was on the appellant. He has appeared in the witness-box and made the statement on oath. Neither his statement has shaken in cross-examination, nor it has been shown by the learned counsel for the respondent that the plea taken by the appellant is inconsistent with his pleadings or that the application for ejectment has been filed with malafide. While adjudging the personal bona fide need of the landlord, statement on oath of the landlord and consistent with the ejectment petition which is not shaken during the cross-examination, has to be accepted. In case reported as HassanKhan vs. Munawar Begum (PLD 1976 Karachi 832), it has been ruled:

"Assertion or claim on oath by landlord that he required premises for his personal use found to be consistent with his averments in his application and not shaken in cross-examination or disproved in rebuttal to be accepted by Rent Controller as bona fide".

The appellant's sons could have not been asked to come Pakistan even without any established business or at least before making some arrangement in this regard. Even if they are settled in England or America or they are doing any job, even then, they have a right to come to Pakistan and settle here. In the similar circumstances, the Hon'ble Supreme Court in case reported as Fazal Aziz and another vs. Tariq Mahmood and another (PLD 1982 SC 218) held that "landlord seeking eviction on ground of personal requirement, cannot be expected to sit idle for periods of time during pendency of eviction proceedings. Landlord during such period employing himself in a gainful occupation (such as going abroad for earning) such fact cannot negate assertion of bona fide on his part." In case of Musarrat Amin vs. Muhammad Mobin (1985 CLC Karachi 2033), requirement of the landlady for premises was held as bona fide and genuine when she proved that she wanted to come back from abroad and to reside in Pakistan and non-examination of landlady was not considered fatal.

1. The learned first Appellate Court has accepted the appeal of the respondent on the ground that none of the sons of appellant has appeared as a witness in support of the demand. It is not the requirement of law. The landlord can file an ejectment petition against the tenant on the ground that the demised premises is required for his personal use or for the use of his children in good faith. The learned Addl: District Judge reversed the findings on Issue No. 1 by mis-readmg of the evidence. There is no proof of the fact on the record that ejectment petition has been filed with mala fide. The learned Rent Controller, on the basis of correct reading of evidence and interpretation of law has accepted the ejectment petition, directing the respondent to vacate the disputed shop, which order has been illegally set aside by the learned Addl: District Judge. Even otherwise, assertion of the landlord that he required the premises for .his personal use should be determined in the context of the provision contained in sub-section (4) of Section 13 of the Ordinance, which enables a tenant to regain the possession from his landlord who had obtained it on a fake plea of bona fide personal need, but he had failed to occupy the premises within one month of the date of obtaining possession or who re-let it within two months of the said date to any person other than the tenant. Reliance is placed on the case of Muhammad Siddique versus Mistri Muhammad Aslam (PLD 1975 Lah. 308).

2. In the light of above, this appeal is accepted. The impugned order dated 21.11.2000 passed by the learned Addl: District Judge, Lahore is set aside. The order of ejectment dated 3.2.2000 passed by the learned Rent Controller is restored. The respondent Safeer Ahmad is directed to hand over the vacant possession of the shop to the appellant within four months from today. Parties to bear their own costs.

(A.A) Appeal accepted.

PLJ 2003 Lahore 302

Present: jawwad S. KHAWAJA, J.

CHAUDHRY NAZIR AHMAD ASAD-Petitioner

versus

INSTITUTE OF CHARTERED ACCOUNTANTS OF PAKISTAN and 2 others-Respondents

W.P. No. 8987 of 2001, heard on 4.7.2002. (i) Chartered Accountants Ordinance, 1961--

—Sched. II, Part I (1)—Divulging information acquired by a Member of Institute of Chartered Accountants in course of his professional engagement without consent of his client-As long as clause (1) of Part I of 2nd Schedule to Chartered Accountants Ordinance, 1961, exists in present form, Council of Chartered Accountants cannot require any member of respondent institute whether directly or indirectly to. disclose information because any such disclosure would constitute professional misconduct. [P. 306] A

(ii) Chartered Accountants Ordinance 1961--

—Sched. II, Part I (1)—Directive of respondent to furnish complete list of audit clients-Such requirement of respondent cannot be sustained except to the extent the same relates to clients for which petitioners firm had acted as Statutory Auditor. [P. 307] B

(Hi) Chartered Accountants Bye-laws 1983--

—Bye-law 8(3)--Coercive directive of respond? nt institute to petitioner for compliance of same-Information required by respondent institute if furnished by Members of institute would expose them to penal action for professional misconduct if they disclosed such information-Member of respondent institute i.e. petitioner cannot be required by means of any directive or threatened coercive process to commit professional misconduct as defined in Schedule II to Ordinance of 1961. [P. 307] C

(iv) Securities and Exchange ordinance 1969—

—S. 34(4)-Securities and Exchange Commission of Pakistan-Exercise of powers-Extent-Exercise of powers by Securities and Exchange Commission was merely meant to regulate Stock exchange and through, insertion of specific clause in listed regulations, to regulate conduct of companies listed in various Stock Exchanges in Pakistan-Requirement of Securities and Exchange Commission and of newly added clause in listing regulations cannot, by any stretch of reasoning, be construed to requiring petitioner to disclose client information to respondent institute without consent of his 'client-Untill suitable amendments were made in ordinance impugned direction cannot enforced by respondent institute through coercive process set out in Bye-law 8 (3) of Chartered Accountants Bye-laws 1983, which have been cited in impugned directive.

[P. 309] D

Kh. Abrar Majid, Advocate for Petitioner. Mr. Anwar Kamal, Advocate for Respondent. Date of hearing: 4.7.2002.

judgment

The petitioner is a Chartered Accountant. He is a member of the Institute of .Chartered Accountants of Pakistan (Respondent No. 1). The Respondent Institute is a body corporate created under the Chartered Accountants Ordinance, 1961 (the Ordinance). The affairs of the Respondent Institute -are managed by a Council which Council also discharges the functions assigned to the Respondent Institute under the Ordinance. One of the functions of the Council is to regulate the practice of accountancy by the members of the Institute. It is in this context that the petitioner becomes subject to the regulatory Control of the Council in matters in respect of which the Council has powers under the Ordinance. Here it is important to note that the petitioner can practice as-a Chartered Accountant, only if he has. a valid certificate of practice issued by the Respondent Institute. Such .certificate requites periodic renewal. Non-Compliance of any directive issued by the Council is one of the grounds on which renewal of a certificate of practice may be refused.

1. The petitioner has received a letter dated 27.7.1999 addressed to him by the Director, Professional Standards Compliance of the Respondent Institute. The petitioner has in addition received two directives issued by the Council which are respectively dated 6.12.1999 titled Quality Control Keyiew Programme and 7.4.2001 titled Quality Control Review. The petitioner is aggrieved of the aforesaid letter and two directives.

2. The grievance of the petitioner is that compliance of the aforesaid directives of the Council and the letter dated 27.7.1999 would constitute professional misconduct as defined in Schedule-II Part-1 of the ordinance. In order to appreciate the grievance of the petitioner, it is necessary, therefore, to examine the relevant parts of the aforesaid letter and directives and also to consider the contents of Clause (1) of Part-I of Schedule-II to the Ordinance. The same are, therefore, reproduced as under:-

"Ch. Nazir Ahmad Asad, FCA, 27 July, 1999

Dear Sir, Quality Control Review

I refer to your letter Ref. 32/1759/1999 dated 2 July 1999.

Currently, the client's consent is required prior to conducting the quality control review, hence the review is not completed until the client's consent is obtained by the practicing firm.

However, forwarding to the Institute a list of the companies audited by your firm does not constitute privileged information but underlines your obligation to supply information to the institute when so requested.

"QUALITY CONTROL REVIEW PROGRAMME

The Council has decided that all firms/sole proprietorships of practicing Chartered Accountants should furnish to the Institute a complete list of their audit clients as of 30th June (within 3 months) each year, and as and when required, to enable the Professional Standards Compliance Department to carry out its Quality Control Review (QCR) programme. All practicing members are directed to extend full cooperation to successfully implement the QCR programme so as to ensure maintenance of the highest standards in practice.

Attention of members is drawn to Bye-Law 8(3) of the Chartered Accountants Bye-Laws, 1983 which states that the validity of the Certificate (of practice) shall, on payment of the annual fee, and on fulfillment of the directives of the Council be extended from time to

time......... Thus, in order to renew the Certificate of practice, it is

essential for members to comply with the above requirement.

It was also decided that all firms/sole proprietorships of practicing Chartered Accountants may include a clause in their letter of engagement to all their limited liability company clients, stating that the working paper files pertaining to the client would be subject to Quality Control Review by the Institute of Chartered Accountants of Pakistan without any reference to the client.

(135th Meeting of the Council-6 December, 1999)" "QUALITY CONTROL REVIEW

The Council has reiterated that it is a professional requirement for practicing Chartered Accountants to submit their audit working paper files for a Quality Control Review (QCR) by the Institute. Thus practicing members are directed to only accept audit engagements, if the client gives consent to a QCR.

(142nd Meeting of the Council-7 April, 2001)"

"SCHEDULE II

(See Section 20A and 20D)

PARTI

Professional misconduct in relation to chartered accountants in practice requiring action by a High Court

A chartered Accountant in practice shall be deemed to be guilty of -Professional misconduct, if he-

(1) discloses information acquired in the course of his professional engagement to any person other than his client, without the consent of his client or otherwise than as required by any law for the time being in force."

1. According to learned counsel, disclosure of information acquired by the petitioner in the course of his professional engagement, without the consent of his client, squarely falls within the description of professional misconduct as set out in Clause (1) of Part-1 of the 2nd Schedule to the Ordinance reproduced above. In the scheme of the Ordinance, as presently worded, it does not matter that the disclosure is to the Respondent institute or that it is in compliance of any directive issued by the Council.

2. It has further been argued by learned counsel for the petitioner that the 2nd Schedule to the Ordinance is part of the Statute itself. Any directive issued by the Respondent Institute or by the Council, which is violative of any statutory provision or the compliance of which will result in exposing the petitioner to a charge of professional misconduct, will not be enforceable being ultra vires the statute.

3. At this point, it needs to be noted that learned counsel for the petitioner has no grouse with the desire of the Respondent Institute to ensure quality control in the accountancy profession. In fact, at the very outset he contended that the measures initiated by the Council, were well intentioned and necessary for maintaining the standards of the profession. His grievance, however, is that the directives of the Council have been issued without a suitable amendment in the Ordinance. As a result, any disclosure of information made by the petitioner in compliance with the said directives, would automatically expose the petitioner to a charge of professional misconduct. This contention of the petitioner's learned counsel is borne out from the wording of Clause (1) of Part-1 of the 2nd Schedule. The said / clause does not create an exception in respect of disclosures made to the Respondent Institute.

4. It was argued on behalf of the Respondent Institute that the information sought by the directives reproduced above, was meant for the purpose of ensuring high professional standards. He also contended that the directives were in line with the regulatory regimes in force in the accounting profession throughout the world. This may be so. Indeed from a bare reading of the impugned directives of the Council it is apparent that the objective for issuing the directives, cannot be faulted. The council is mandated by the Ordinance to regulate and maintain proper standards for its members. The directives in themselves are meant for the purpose of monitoring the quality of professional work undertaken by the members of the Institute. Furthermore, as noted above, even the petitioner's learned counsel has accepted that assurance of the quality of professional performance is a legitimate, indeed, laudable objective.

8, The issue before me, however, is not the desirability of the directives issued by the Council The question is as to whether the Council can require a member of the Institute such, as the petitioner, to divulge information acquired by hires in course of his professional engagement without the consent of his client. The answer Is both simple and obvious. As long as Clause (1) of Part-1 of the 2nd Schedule easts in its present form, the council cannot require any member of the Respondent Institute whether directly or indirectly to disclose information because any such disclosure would clearly constitute professional misconduct, 9. In the above, context, it was explained by Mr. Aslam Dossa, Executive Director, ICAP, that by means of the impugned letter of 27.7.1999

the institute required the petitioner to furnish the names of such companies only where the petitioner had conducted a statutory audit. Upon being questioned, he elaborated that by statutory audit, he meant such audit as was undertaken by the petitioner upon being appointed under the Companies Ordinance, 1984, as auditor of a company by the share-holders of such company in its genera! meeting.'1 The wording of the letter of 27.7.1999, reproduced above, however, doe'; not confine itself to statutory audits only. It, requires the petitioner to furnish to the Institute a list of companies audited by his firm regardless of whether such, audit was conducted as auditor appointed under the Companies Ordinance or was undertaken otherwise.

1. Learned counsel for the petitioner contended that apart from statutory audits which were compulsory under law, there could be a number

of reasons why a company might require its accounts to be audited. By way of example, he stated that a company might wish to .detect embezzlement by employees or inefficiencies in its accounting or operating systems. In such cases, it might well be the desire of the company that the audit be kept confidential. Such audit, according to the definition given ,by Mr. Aslam Dossa, would not be a statutory audit. Furthermore, according to Mr. Aslam Dossa, it is not the intention of the Institute to obtain names of those clients of the petitioner for whom the petitioner is not a statutory auditor, as described above. In view of the explanation given by Mr. Aslam Dossa on behalf of the Respondent Institute, learned counsel for the petitioner stated that information as to the statutory audits undertaken by the petitioner was already in the public domain as a result of the requirements of the Companies Ordinance and the statutory returns filed with the office of the Registrar thereunder. He, however, stated that the petitioner would have no objection in providing to the Institute a list of the companies in respect of which the petitioner's firm undertaken a statutory audit.

1. Coming next to the directive of the Council dated 6.12.1999 it is " to be noted that once again a complete list of audit clients is required to be

furnished by the petitioner. For the reasons given above, while discussing the contents of the letter dated 27.7.1999, this requirement also cannot be sustained except to the extent it relates to clients for which the petitioner's firm has acted as statutory auditor.

1. The directive of the Council dated 6.12.1999 is coerciveas it contains the threat that members of the Respondent Institute such as the petitioner, will loose their practicing certificates if they do not comply with the said directive of the Council. The net effect of such threat is to compel members of the Respondent Institute to disclose information received by them in the course of their professional engagement without the consent of their clients. The members, as such, expose themselves to penal action for professional misconduct if they disclose such information. On the other hand, they are threatened with loss of livelihood through cancellation of their practicing certificates if they do not. Members of the Respondent Institute cannot be required by means of any directive or threatened coerciveprocess to commit professional misconduct as defined in the 2nd Schedule to the Ordinance.

2. Paragraph 3 of the directive of 6.12.1999 is couched in language which is optional. The petitioner therefore, may chose not to include in his terms of engagement, the clause recommended by the Council in the aforesaid paragraph. In the circumstances, I do not find paragraph 3 of the directive of 6.12.1999 to be objectionable.

The petitioner merely seeks protection against directives of the Council which have the effect whether directly or indirectly of coercing him into committing an act of professional misconduct.

1. Learned counsel for the Respondent Institute also argued that the above referred letter of SECP dated 28.3.2002 had been issued under

sub-section (4) of the Section 34 of the Securities and Exchange Ordinance, 1969, and as a consequence, the stock exchanges in Pakistan were legally obliged to insert Clause (xxxvii) reproduced above in their listing regulations. On this basis, he attempted to argue that review of the audit working paper files of the petitioner by the Respondent Institute had been legally mandated. It was, therefore, contended by him that transmission of such files by the petitioner to the Respondent Institute would not fall within the ambit of Clause (i) of Part-I, of Schedule 2 to the Ordinance because disclosure of information in the working paper files had become a requirement of the law. This argument of learned counsel, I am afraid, is farfetched and wholly misconceived. The exercise of powers by the SECP under Section 34(4) of the Securities and Exchange Ordinance is merely meant to regulate the stock exchanges and, through insertion of the above referred clause in the listed regulations, to regulate the conduct of

Companies listed on the various stock exchanges in Pakistan. The aforesaid requirement of the SECP and of the newly, added clause in the listing regulations cannot, by any stretch of reasoning, be construed as requiring the petitioner to disclose client information to the Respondent Institute without the consent of his client.

1. For the foregoing reasons, it is apparent that until suitable amendments are made in the Ordinance, the impugned directives cannot be enforced by the Respondent Institute through the coercive process set out in Bye-Law 8 (3) of the Chartered Accountants Bye-Laws 1983 which has been cited in paragraph - 2 of the impugned directive dated 6.12.1999.

(A.P.) Order accordingly.

PLJ 2003 Lahore 309

Present: tanvir bashir ansari, J. Mst. SAIQA-Petitioner

versus

ADDL. DISTRICT JUDGE etc.--Respondents W.P. No. 2163 of 2002, heard don 23.10.2002.

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

—S. & Sched.-Petitioner was found entitled to dissolution of marriage on the basis of Khula,in consideration whereof she was directed by Family Court to return dower amount already received and forgoing of remaining dower amount and maintenance allowance—Legality-Dower is a settlement in favour of wife made prior to completion of marriage a contract and is a pre-condition of a valid marriage-Payment of dower is indispensible so much so that in its absence relationship between man and wife could not be legitimized and would be regarded as a sinful union-Gift or benefit on other hand which is to be restored to husband by wife in lieu of obtaining Khulais in essence a gratuitous offering which may be bestowed by husband on wife is merely voluntary in nature- Dower whether paid or un-paid can never be in the nature of a benefit or gift which is liable to be restored in consideration for granting Khuladivorce-Impugned judgment passed by Trial Court was thus, not sustainable to the extent that it makes grant of Khulasubject to condition of repayment of paid amount of dower by wife to husband and to obligate her to forego unpaid dower amount-Impugned judgment and decree was thus, liable to be modified to that extent. [Pp. 312 & 313] A

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

—S. 5 & Sched-Foregoing right of maintenance in lieu of Khuladivorce- Where Court had found wife legally entitled to claim maintenance and on the other hand directed her to forego same in lieu of Khula, it would be contradiction in terms and'impugned judgment and decree is liable to be modified. [P. 313] B

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

—S. 9 & Sched-Constitution of Pakistan (1973), Art. 199-Decree for dissolution of marriage through Khulain favour of petitioner was maintained and condition as placed by Family Court to forgo paid and unpaid dower amount and also maintenance allowance was declared to be without lawful authority and of no legal effect. [P. 313] C

Mr. Ziafat Hussain Cheema, Advocate for Petitioner. Respondent No. 3 in person. Date of hearing: 23.10.2002.

judgment

Tanvir Bashir Ansari, J.--The petitioner filed three suits before Judge Family Court, the details of which are as under:-

1- SUIT FOR RECOVERY OF DOWER.

Mst. Saiqa. vs. Qaiser Mehmood. Family Suit No. 26/2001. 2. SUIT FOR DISSOLUTION OF MARRIAGE.

Mst. Saiqa. vs. Qaiser Mehmood. Family Suit No. 27/2001.

1. SUIT FOR RECOVERY OF. MAINTENANCE.

Mst. Saiga, and another vs. Qaiser Mehmood.Family Suit No. 28/2001.

All the suits were consolidated and the following consolidated issues -were framed:-

CONSOLIDATED ISSUES

1. Whether the defendant had been treating the plaintiff with habitual cruelty? OPP.

2. Whether the defendant has not paid the maintenance allowance to the plaintiff for more than two years? OPP.

3. Whether the defendant is leading infamous life? OPP.

4. Whether the plaintiff has developed extreme aversion against the defendant and as such cannot live with him within the prescribed limits of Almighty Allah, so she is entitled to Khuladivorce on the grounds amongst others, if so on what terms and conditions? OPP.

5. Whether the plaintiffs are entitled to recover dower amount Rs. 20,000/- from defendant? OPP.

6. Whether the plaintiffs are entitled to recover maintenance allowance from the defendant, if so, at what rate and for which period? OPP.

7. Relief.

8. After putting the parties to trial the learned Judge Family Court passed its judgment dated 31.5.2001 whereby it was held that the dower amount of Rs. 50,000/- was fixed out of which a sum of Rs. 30,000/- was paid to the petitioner while the remaining sum of Rs. 20,000/- as dower remained unpaid. The issue regarding the recovery of dower to the extent of Rs. 20,000/- was found in favour of the petitioner.

9. The maintenance allowance was claimed by the petitioner at the rate of Rs. 2000/- per month for herself and Rs. 1500/- per month for the minor daughter Mst.Sundas. However, the Judge Family Court decreed maintenance allowance at the rate of Rs. 500/- per month from the date of institution of the suit in favour of the petitioner and a sum of Rs. 1000/- per month in favour of the minor daughter w.e.f the institution of the suit.

10. On the issue of dissolution' of marriage, it was held that the petitioner was entitled to dissolution of marriage on the basis of Khula.However, in consideration thereof, she was directed to return the sum of Rs. 30.000/- received 'by her as dower and to forego her right to claim the balance of the dower amount of Rs. 20,QOO/- as also the maintenance allowance allowed to her. The net effect of the judgment and decree of the Judge Family Court is that the petitioner has been granted the decree for dissolution of Marriage through Khulabut subject to the return of the received dower amount and to forego the unpaid dower amount and the maintenance decreed in her favour.

11. Mr. Ziafat Hussain Cheema, Advocate the learned counsel for the petitioner and Respondent No. 3 in person have been heard.

12. The learned counsel for the petitioner has assailed the condition of return of dower amount already received and the foregoing of the remaining dower amount and the foregoing of maintenance allowance by the petitioner in lieu of Khulato be illegal and against the injunctions of "Islam". It is contended that the dower is a prerequisite of the valid Nikahwithout which the legitimate relationship between husband and wife cannot take place. He submitted that dower is not in the nature of a benefit which could be restored to the husband in lieu of Khula, 7. He further submitted that a wife is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the acts of commission and commission of the husband. It is urged that after

. having decreed the suit for maintenance in favour of the petitioner the learned Judge Family Court could not deprive the petitioner of the maintenance in consideration of granting her Khula.

1. On the other hand, Respondent No. 3 who argued his case in person submitted that the petitioner had admitted to have received Rs. 30,000/- by way of dower and that she was under an obligation to return the same and to forego the unpaid dower and maintenance if she was claiming dissolution through Khula.

2. Arguments heard. Record perused.

3. In order to constitute a valid marriage, Islamic Law ordains that there should always be a consideration made by the husband in favour of the wife. It is a settlement in favour of the wife made prior to the completion of the marriage contract and is a precondition of a valid marriage. It is immaterial whether dower is imposed on the husband as a mark of respect for wife or it is the consideration for society of the wife, it is undoubtedly a precondition and a pre-requisite of a valid matrimonial contract. It is indispensible, so much so that in its absence the relationship between man and wife could not be legitimized and shall be regarded as a sinful union.

4. On the other hand, the gift or benefit which is to be restored to the husband by the wife in lieu of obtaining Khulais in essence a gratuitous offering which may be bestowed by the husband on the wife. Such gift or benefit, is not in order to fulfil any legal obligation but is merely voluntary in nature.

5. Viewed in this perspective dower whether paid or. unpaid can never be in the nature of a benefit or gift which is liable to be restored in consideration for granting Khuladivorce. The impugned judgment passed by the trial Court is not sustainable to the extent that it makes the grant of Khulasubject to the condition of repayment of Rs. 30,000/- paid amount of dower by the wife to the husband and to obligate her to forego the unpaid dower amount. The impugned judgment and decree is liable to be modified to that extent.

6. As regards the grant of maintenance to the petitioner, the learned Judge Family Court has itself found the petitioner to be entitled to maintenance for herself from the date of the institution of the suit at the rate of Rs. 500/- per month. This maintenance again is neither in nature of a gift or a benefit but is an undeniable legal obligation of the husband to maintain his wife who is not staying away from him without just cause. It would be a contradiction in terms if on the one hand, the Court finds a wife legally entitled to claim maintenance and on the other directs her to forego the same in lieu of Khula.The impugned judgment and decree to this extent is also liable to be modified.

7. The upshot of the above discussion is that the decree for dissolution of marriage through Khulain favour of the petitioner is upheld and the condition as placed by the Judge Family Court that the petitioner must return the sum of Rs. 30,000/- the paid dower amount and forego the unpaid dower of Rs. 20,000/- and also to forego the decreed maintenance allowance is declared to be without legal effect.

8. Resultantly, this writ petition is allowed, the decree for dissolution of marriage, through Khulais upheld and the conditions attached to it as herein before detailed are struck down. Parties to bear their own costs.

(A.P.) Petition accepted.

PL J 2003 Lahore 313

[Multan Bench Multan]

Present: farrukh lateef, J.

MAKHAN ALI-Petitioner

versus MUHAMMAD JAVAID AKHTAR and 5 others-Respondents

C.R. No. 956-D of 2002, decided on 17.9.2002.

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

—0 VII, R. 11-Rejection of plaint assailed-Contents of plaint showed that allotment in question, was cancelled and land was resumed by Collector on 30.8.1983 while appeal against that order was dismissed by Addl. Commission on 21.11.1983-Order of cancellation of allotment and resumption of land had attained finality as no further proceedings were taken against the same--Those orders having been assailed in suit instituted on 8.9.2001 i.e. after about 18 years without any application for condensation of delay, plaint comprised in suit was hopelessly barred by time to the extent of orders in question and was liable to rejection under O. VII, R. 11 C.P.C.--No irregularity or illegality was committed by Courts below, therefore, no interference was warranted.

[Pp. 315 & 316] A, C

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

—Ss. 9 & 115-Order of cancellation and resumption of land in question, had no nexus with allotment of the same in favour of respondents- Petitioner, thus had no locus-standi to challenge order of allotment in favour of respondents-Relief claimed by petitioner of declaring order of cancellation of land in question, from his name was illegal and further relief that he was entitled to grant of proprietary rights could not have been granted to him under the law. [P. 315] B

Ch. Abdul Ghani, Advocate for Petitioner. Date of hearing: 17.9.2002.

order

The petitioner filed a suit for declaration that he is allottee and in possession of the suit land under Grow More Food Scheme and that Respondents Nos. 1 to 5 have no concern with the said land. In the suit he had assailed the following orders as illegal and ineffective on his rights:--

1. Order dated 30.8.1983 passed by District Collector Vehari whereby his allotment was cancelled on the ground of having been procured through fraud and the suit land was resumed.

2. Order dated 21.11.1983 passed by Addl. Commission (Consolidation) whereby petitioner's appeal against the aforesaid order of District Collector was dismissed.

3. Order of District Collector Vehari dated 26.10.1991 whereby suit land was allotted to Abbas Ali predecessor-in-interest of Respondents Nos. 1 to 5.

4. Order dated 25.5.1992 passed by Addl: Commissioner (R) Multan, camp at Vehari whereby petitioner's appeal against the above said order of District Collector was dismissed and

5. Order dated 30.8.2001 passed by Member Board of Revenue •whereby petitioner's revision against the above said order of A.C (R) was dismissed.

2, All the aforesaid orders were assailed as against law facts and mala fide and prayer in the suit was that the petitioner be declared as entitled to the grant of proprietary rights in the suit land and the concerned respondents be directed to grant proprietary rights in his favour and be further directed to correct entries in thejamabandishowing the petitioner as owner of the suit land.

1. Plaint of said suit was rejected under Order 7, Rule 11 CPC by Civil Judge Vehari on 11.6.2002 and appeal against that order was dismissed by District Judge Vehari on 31.8.2002.

2. In this civil revision aforesaid orders of Civil Judge and that of the District Judge are assailed on the following grounds:-

3. Both the Courts below have erred in law inasmuch as for the purpose of Order 7 Rule 11 CPC only averments in the plaint could be considered.

4. The petitioner had challenged orders of Revenue authorities on various grounds, Civil Court had the jurisdiction to check the validity of the said orders, hence, controversy could only be resolved after recording evidence which was not done, therefore, both the Courts below had exceeded their jurisdiction in passing the impugned orders.

5. I have heard the learned counsel for the petitioner and have also perused the civil revision and its annexures.

6. According to the contents of the plaint the suit was apparently barred by law of limitation because allotment of the petitioner was cancelled and suit land was resumed by the Collector on 30.8.1983 and his appeal against that order was dismissed by Addl. Commissioner on 21.11.1983. The order of cancellation of allotment and resumption of suit land therefore, attained finality because it is not alleged in the plaint that against the aforesaid order dated 21.11.1983 any revision was filed before the Member Board of Revenue.

7. The aforesaid orders were assailed in the suit which was instituted on 8.9.2001 i.e. after a period of about 18 years without any application for condoning the delay and plaint was apparently hopelessly barred by time to the extent of aforesaid orders and was therefore, liable to rejection under Order 7 Rule 11 CPC.

8. The subsequent order dated 26.10.1991 had no nexus with the order of cancellation and resumption of the suit land. It was an independent order regarding allotment of the suit land in favour of predecessor-in- interest of Respondents Nos. 1 to 5 which was challenged by petitioner before the Addl: Commissioner and Member Board of Revenue without success.

9. After the cancellation of suit land from the name of the petitioner and its resumption, the petitioner had no legal right or locus-standi to challange the order of allotment made in favour of predecessor-in-interest of Respondents Nos. 1 to 5. For arguments sake even if it be assumed that the aforesaid orders are illegal, that fact perse could neither restore the suit land to the petitioner nor would have any nullifying affect on the order of cancellation of the suit land, hence, the relief claimed by the petitioner of declaring the order of cancellation of suit land from his name as illegal and further relief that he is entitled to the grant of proprietary rights could not have been granted to him under the law.

10. Since the suit appeared from the statement in the plaint to be barred by law, the trial Court was therefore, not required to frame issues and to record evidence. The plaint was liable to out-right rejection, hence, no illegality or irregularity was committed by learned trial Court and learned appellate Court respectively in rejecting the plaint and dismissing the appeal against the order of rejection of the plaint.

11. Civil revision being devoid of any merit is accordingly dismissed in limine.

(A.A) Revision dismissed.

PLJ 2003 Lahore 316

Present: parvez ahmad, J.

Mst. MASOOMA BEGUM and 9 others-Petitioners

versus Mst. RLAZ FATIMA and 11 othres-Respondents

C.R. No. 639 of 1996, heard on 4.10.2002.

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

—S. 115 Earlier suit relating to land in question, was compromised between predecessors of present parties whereby suit filed by successors-in-interest of common ancestor was decreed in favour and against predecessor-in-interest of present plaintiff-Local Commission who dealt with matter of demarcation of property reported that no encroachment over land in question, has been made by present defendants-Property claimed by plaintiff is situated in a different Khasra-number whereas defendants property is in different Khasranumber-Appellate Court while decreeing plaintiffs suit had misread evidence which was liable to be set aside while that of Trial Court dismissing plaintiff suit, is to be maintained-Suit filed by plaintiff was dismissed in the circumstances.

[Pp. 318 & 319] A

Mr. Taqi Ahmad Khan, Advocate for Petitioners. Mr. Muhammad Tufail, Advocate for Respondents. Date of hearing: 4.10.2002.

judgment

The petitioners through this revision petition have assailed the orders of the First Appellate Court dated 24.1.1996 by virtue of which the judgment and decree of the trial Court dated 9.7.1987 dismissing the suit of Mst. Riaz Fatima and others, present respondents, was set aside and their suit for possession was decreed in their favour.

1. Briefly stated the facts of the case are that Mst. Riaz Fatima and others brought a suit for possession of the property measuring l-Kanal and 19 Mariassituated in KhasraNo. 1876/238/2 with the averments that Defendant No. 2 Mrs. Khudija Ijaz is also owner of the property alongwith the plaintiffs but she has not joined the plaintiffs, hence she is impleaded as defendant. It was alleged that Lai Din, had died and the present petitioners are his successors-in-interest, had prepared a forged and fictitious registered sale-deed of transfer of the property in his favour, got necessary map and permission from the Municipal Committee for the purpose of raising of construction and had raised construction over it. It was alleged that Defendant No. 1 is an encroacher and is in illegal possession of the suit property, hence a decree for possession of the property be parsed directing Defendant No. 1 to deliver the possession of the property and also to remove the super-structure raised thereupon. The Defendant No. 1 contested the suit with the averments that he has purchased this property through two different sale-deeds dated 5.9.1967 and 27.9.1967 from one Amanat Ali and also brought a suit for this purpose titled 'Lai Din vs. Yasin etc.' Defendant No. 1 has raised construction by spending a huge amount. The trial Court, on the divergent pleadings of the parties, framed following issues:-

2. Whether the plaintiff has no cause of action? OPD.

3. Whether the plaintiff has not come to clean hands? OPD.

4. Whether the plaintiff is estopped to bring this suit by his own conduct? OPD.

5. Whether the suit is not maintainable in its present form? OPD.

6. Whether the suit is time-barred? OPD.

7. Whether the suit has become infructuous? OPD.

8. Whether the plaintiff is entitled to decree for possession? OPP.

9. Relief.

The trial Court after recording the evidence of the parties and hearing arguments proceeded to dismiss the suit vide judgment and decree dated 9.7.1987. The plaintiffs being aggrieved of the judgment of the trial Court filed an appeal before the First Appellate Court from where the appeal was allowed and the judgment and decree in question was set aside and their suit for possession of the property was decreed in their favour and against the defendants/present petitioners. The present petitioners feeling themselves aggrieved have filed the present revision petition.

1. I have heard the learned counsel for the parties and perused the material made available before this Court. The main submission of the learned counsel for the petitioners is that the original owner of this property was Amanat from whom the predecessor-in-interest of present petitioners purchased this property through two registered sale-deeds dated 5.9.1967 and 28.9.1967, which have been placed on record as Ex. D. 1 and 2. It is also submitted that the property purchased by their predecessor is located in KhasraNo. 1876/238/2 and they are in possession of the property. The plaintiff before getting demarcation of the property had a report of 'Tajaviz'filed the present suit. It is also submitted that a Local Commissioner was appointed in this case on their request while having litigation on the revenue side, who reported that the defendant has made no encroachment over the suit property and in this context the judgment of the trial Court was correct and the First Appellate Court has mis-read and non-read the evidence on record and is liable to be set aside.

2. Learned counsel for the respondent has supported the judgment and decree of the First Appellate Court and has asserted that on the revenue side there was litigation in between the parties and the matter was finally disposed of by the Addl: Commissioner in their favour over which the parties had litigation upto the Member, Board of Revenue and also of a writ petition but of no avail.

3. After giving due consideration to the submissions of both the parties and perusing the material made available before this Court, although there was litigation in between both the parties on the revenue side but in the civil suit titled 'Rafique and others vs. Muhammad Hussain and others'in which Rafique Ahmad etc. (successor of Lai Din) did challenge the orders of the Revenue Authorities through a suit for declaration and permanent injunction in which the predecessor-in-interest of the present plaintiff Muhammad Hussain was a party and in which the matter was compromised with the result that the suit of the plaintiffs i.e. Muhammad Rafique etc., the successors-in-interest of Lai Din was decreed in their favour and against the predecessor-in-interest of the present plaintiff on 2.11.1991. It is also established on record that the Local Commissioner, who dealt with the matter of demarcation of the property did report on 16.1.1986 that no encroachment over the suit property to have been made by the present defendant. Even otherwise the report of the Tehsildar, available at Page 72 of the judicial file, dated 14.9.1980 also gives no finding of any encroachment of land to have been made by the defendant. The property claimed by the plaintiffs is situated in KhasraNo. 1876/278/2 whereas the defendants alleges to have purchased the property situated in KhasraNo. 1876/238/3 and it was the duty of the plaintiffs who had approached the Court to establish that they are owners of the suit property over which encroachment has been made by the defendants and thev are entitled to have the restoration of the possession from the defendants after removal of the encroachment. In view of the above, there is no cogent evidence available in support of their plea, as such the First Appellate Court has mis-read the evidence on record and its judgment suffers from illegality and material irregularity, therefore, the judgment of the First Appellate Court is liable to be set aside and the trial Court is to be maintained.

6, In view of the above discussion, the present revision petition is allowed, the judgment and decree dated 24.1.1996 by the First Appellate Court is set aside and the judgment and decree dated 9.7.1987 of the trial Court is restored. Resultantiy the suit filed by Mst. Riaz Fatima etc. is dismissed. There is no order as to costs.

(A.A) Revision accepted.

PLJ 2003 Lahore 319

Present: ch. ijaz ahmad, J.

MUHAMMAD TUFAIL-Petitioner

versus

DEPUTY COMMISSIONER, DISTRICT COLLECTOR, SHEIKHUPURA and 3 others-Resopndents

W.P. No. 18961 of 1998, decided on 31.10.2002. (i) Administration of Justice-

—Departmental action and criminal proceedings are independent of each other and can go on side by side and may even end in vaiying results. [P. 320] A

(ii) NaturalJustice, Principles of--

—Principle of natural justice must be read in each and every statute until and unless it is prohibited by wording of statute itself. [P. 321] B

(iii) Punjab Stamp Rules 1934--

—-R. 29--Cancellation of licence-R. 29 of Punjab Stamp Rules 1934, does not allow competent authority to cancel licence without issuing notice to petitioner, therefore, same was liable to be set aside. [P. 321] C

(iv) Punjab Stamp Act Rules 1934--

—-R. 29-Constitution of Pakistan (1973), Art. 199-Order of competent Authority having been set aside on technical grounds, competent authority was within its right to proceed against petitioner in accordance with law [. 321] D

PLD 1981 SC 176; PLD 1965 SO 90; PLD 1987 SC 304; 1983 SCMR 1208; 1993 SCMR 2177 and PLD 1985 SC 134 ref.

Malik Sarfraz Hussain,Advocate for Petitioner.

Mr. Muhammad HanifKhatana Addl. A.G. for Respondents.

Date of hearing: 31.10.2002.

order

The brief facts out of which present writ petition arises are that the petitioner was granted a stamp vending licence by the District Collector, Sheikhupura, vide order dated 9.8.1982 for Mnawanwala, District Sheikhupura, Muhammad Ali son of Mahtab All moved an application against the petitioner before the Deputy Commissioner/District Collector on the ground that the petitioner sold non-judicial stamp-paper worth Rs. 20/-, to one Mirza Muhammad Amin Baig instead of actual person namely Muhammad Ali. The Deputy Commissioner/District Collector sent the application to Mr. Muhammad Kazim Awan, Magistrate 1st Class, Sheikhupura for conducting a through inquiry. The Inquiry Officer submitted his inquiiy report dated 6.8.1997 with the recommendation for cancellation of stamp vanding licence of the petitioner. The Deputy Commissioner/District Collector cancelled the licence of the petitioner vide order dated 12.9.1998.

1. The learned counsel of the petitioner submits that a criminal case was registered against the petitioner in which the petitioner was acquitted by the competent Court. He further submits that the petitioner did not violate any terms and conditions of the aforesaid licence under the law prescribed under Rules 28 and 29 of the Punjab Stamp Rule 1934, therefore, the impugned order is not sustainable in the eyes of law. He further submits that the impugned order is passed by the competent authority without providing proper hearing to the petitioner.

2. The learned Addl. Advocate General submits that the petitioner violated the terms and conditions of the licence, therefore, the competent authority was justified to cancel the licence of the petitioner. He further submits that there was no violation of principle of natural justice as Inquiry Officer submitted his report after providing proper hearing to the petitioner.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

4. The first contention of the learned counsel of the petitioner that the petitioner has been acquitted in criminal case, has no force.

It is settled principle of law that departmental action and criminal proceedings are independent of each other and can go on side by side and may even end in vaiying results, as per principle laid down by the Hon'ble Supreme Court:-

"Talib Hussain us. Anar Gid Khan and'4 others" (1993 SCMR 2177).

"The D.I.G. Police, etc. vs. Anis-ur-Rehman Khan".(PLD 1985 SC 134).

The impugned order itself reveals that the same was passed on the basis of inquiry report without issuance of any notice to the petitioner, therefore, the same is hit by the principle of natural justice. It is settled principle of law that principle of natural justice must, be read in each and every statute until and unless it is prohibited by wording of statute itself as per law laid down by the Hon'ble Supreme Court in "Commissioner of Income tax vs. Fazal-ul-Rehman". (PLD 1964 SC 410). The Rule 29 of the Punjab Stamp Rule, 1934 does not allow the competent authority to cancel the license without issuing notice to the petitioner, therefore, the same is liable to be set-aside on the well know principle of natural justice as per principle laid down by the Hon'ble Supreme Court in the following judgments:-

"Zokir Ahmad vs. University ofDhakha" (PLD 1965 SC 90). "Pakistan^ etc. vs, Public-at-large etc." (PLD 1987 SC 304).

"Pakistan Chrome Mines Ltd. vs. Inquiry Officer, etc."(1983 SCMR 1208).

In view of what has been discussed above, the impugned order dated 12.9.1998 is set-aside. Since the order of the competent authority is set-aside on technical ground, the competent authority is well within his right to proceed against the petitioner in accordance with law as per principle laid down by the Hon'ble Supreme Court in "Syed Mir Muhammad vs NWFP Government through Chief Secretary" (PLD 1981 PC 176).

With these observations, this writ petition is disposed of. (A.A) Petition accepted.

PL J 2003 Lahore 321

Present: mian HAMTB faeooq, J

Ch. SHAHBAZ BABAR-Appellant

versus .

RAHMANA MIRZA-Respondent S.A.Q. No. 62 of 2001, beard on 14.1.2003.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)-

—-S. 13(3)(ii)(a) It is well settled that "there is no bar on landlady for filing eviction application on the ground that premises in dispute was required for use and occupation of her husband as he was doing business in rented premises. [P. 325] A

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 13(3)(ii)(a)—Tenant Ejectment of--Appeal against-Whether word husband would include in words "his own use, as mentioned in S. 13(3) of Rent Restriction Ordinance, 1959-Although word "husband" has not been used in Section 13(3)(ii)(a), of Punjab Urban Rent Restrictions Ordinance, 1959, yet need of husband would include in words "his own use" and a landlady can legitimately file an ejectment petition, in respect of non-residental building, if she is able to prove that she requires it in good faith for use of her husband-Respondent landlady has been able to prove that she requires disputed shops for bona fide personal use her of husband, who is dong business in rented premises-Both Courts have concurrently, held, on basis of evidence on record that respondent requires shops in question bonafidely for personal need-She wants to start business in disputed premises through her husband to earn livelihood of her family, and husband was proved to be only earning male member. [Pp. 325 & 326] B & C

Mr. Ross Tariq Chaudhary, Advocate for Appellant. Mr. Pervaiz Inayat Malik, Advocate for Respondent. Date of hearing: 14.1.2003.

judgment

Through the filing of the present appeal, the appellant has called in question judgment dated 19.5.2001, whereby the learned Addl. District Judge dismissed appellant's appeal and maintained the ejectment order dated 24.10.2000, passed by the learned Rent Controller, through which he accepted the ejectment petition, filed by the respondent, and directed the appellant to vacate the shops in question.

1. Briefly stated, the facts leading to the filing of the present second appeal are that the respondent, claiming to be the land lady, on 18.5.1998, instituted an ejectment petition, against the appellant, seeking his eviction from two shops situated in Urdu Nagar, Morr Samanabad (elaborately described in the petition and the site plan and hereinafter referred to as disputed shops) on the ground of personal need of the respondent's husband, statedly, the only earning member of the family; default in the payment of rent and for opening an independent passage in residential portion, before the learned Rent Controller. The appellant resisted the said ejectment petition by way of filing the written reply, inter alia, denying that he has "become" tenant of the petitioner, however, pleading that the petitioner has not given the nature of the business, proposed to be carried on by her husband and that she does not require the premises in good faith. Similarly, the other two grounds were also controverted. Out of the divergent pleadings of the parties, the learned Rent Controller framed the following issues:

ISSUES:

1. Whether the petitioner requires demised shops for the personal use and occupation of her husband, in good faith, bonafldely?OPA.

2. Whether the respondent is wilful defaulter in payment of enhanced rent in accordance with law? OPA.

3. Whether the petitioner has no cause of action to move this petition? OPR.

4. Whether the petitioner has not been verified. If so, what is its effect? OPR.

5. Relief.

In order to discharge the onus of issues, the respondent, being the land-lady, examined three witnesses, while in rebuttal, the appellant produced two witnesses. The learned Rent Controller, while deciding the issue of default against the respondent, proceeded to pass an ejectment order against the appellant, on the ground of personal need only, and directed him Tto vacate the shops in question vide ejectment order dated 24.10.2000. Feeling aggrieved, the appellant assailed the said ejectment order before the appellate authority by way of filing the appeal, but without any success, as his appeal was dismissed by the learned Addl. District Judge vide judgment dated 19.5.2001, hence the present second appeal.

1. The learned counsel for the appellant, while relying upon Muhammad Younus vs. Iqbal Begum (PLD , 1980 Lahore 577) and Muhammad Umar and others vs. Dr. Amina Ashraf (1982 CLC 410) has contended that under Section 13(3)(ii)(a), of Ordinance VI of 1959, in case of non-residential building, a land-lord/land-lady can file an ejectment petition, 7 if he/she requires it in good faith for his/her own use or for the use of any of his/her children, and as the word "husband" has not been included in the said provision of law, as such, the respondent could not file the ejectment petition on the ground of the personal need of her husband and thus both the impugned order/judgment are not sustainable in law. Conversely, the learned counsel for the respondent, while relying upon various judgments, has vehemently contended that although the word "husband" has not been used in the said provision of law, yet the words "own use" includes the personal need of the husband also, as the petitioner being a 'Parda Nasheen' lady, obviously, would do business through her husband.

2. Upon the examination of the record of the case, it reveals that in response to the ejectment petition, when the appellant filed the reply to the ejectment petition, the plea, now urged on behalf of the appellant was not raised by him in his written reply. Although it was, specifically, stated by the respondent in Para-6 of her ejectment petition that "petitioner's husband, who is the only earning member of the family, needs both the shops, personally to run his own business to earn livelihood for petitioner's family", yet the reply of the appellant was that "the petitioner has not given the nature of the business, proposed to be carried out by her husband in the rented shops, the petitioner does not require the premises in good faith, she is demanding the eviction of shops with ulterior motive to enhance the rent arbitrarily." It flows from the above that the appellant has nowhere taken the plea that ejectment petition is not maintainable on the ground of personal need of the husband of the respondent, which is now being urged by the learned counsel. However, I find from the grounds of appeal, filed before the appellate authority, that the appellant has taken the said plea for the first time before the lower appellate Court. It is, thus, clear that the respondent did not plead in his defence that the disputed shops cannot be got vacated under the provisions of Rent Restrictions Law for the personal use of the husband ot the land-lady. It is settled law that a person cannot be allowed to raise a Iresh gjpund before the appellate Court, which has not been pleaded and made ground of defence before the learned trial Court. As in this case, during the total proceedings before the learned Rent Controller, the appellant did not raise the said plea either in his written reply or even subsequently through filing a miscellaneous application, therefore, the appellant is estopped and precluded from raising a new and fresh plea before the appellate forum.

5- Now coming to the solitary contention raised by the learned eounsell It would be advantageeus to reproduce Section 13(3)(ii)(a); of Punjab Urban Rent Restrictions Ordinance 1959:

"He requires it in good faith for his own use or for the use of any of

his children."

It appears from the aforenoted clause that a land-lord can get a non-residential building vacated, if he or she requires it for his/her own use or for the use of any of his/her children. The question, which has arisen for determination here, is as to whether the land-lady could seek the eviction of non-residential building for the personal use of her husband. I find that the said question has been examined by the Hon'ble Supreme Court of Pakistan and by this Court in number of cases and the examination of the said case law can provide adequate reply to the aforenoted question involved in this case.

1. In Ghulam Mohyuddin v. Mst. Nazir EM (NLR 1980 Civil S.C. 78?) it has been held as under:

"The requirement and need of shop by laml-lady for business of her husband was held to be quite genuine and perfectly bona fide".

Identical question was examined by this Court ia a case reported as Masooe! Ahmad vs. Mst Anwar Begum 1983 CLC 1139) and it was held as under:

"In the present case also, I ana not inclined to differ with the concurrent findings of two Courts below. It has come to the record that the husband of the respondent was doing their work and had become sick and was unable to undertake that vocation. The landlady, therefore, wanted her husband to carry on business in the shop and earn livelihood for the family. This in my view will be a good faith and bona fide requirement of the landlady and cannot-he said to be a matter beyond the purview of the Rent Restriction Ordinance. The learned Additional District Judge has also rightly pointed out that in case the landlady did not occupy the premises, there were ample safeguards provided to the tenant by the Ordinance."

In a case reported as Abdul Rashid vs. Mst. Adila Musarrat (1982 CLC 149), this Court, while dilating upon the aforenoted proposition and after considering the aforenoted case of Muhammad Younus (heavily relied upon by the learned counsel for the appellant) came to the conclusion that "the words used in Section 13(3)(ii)(a) ara of wide significance and the shop required by landlady for running cf business by her husband, benefit from which to accrue to landlady, would necessaiily amount to putting shop for landlady's own benefit."

Similarly, this Court in a case reported as K.H. Hiramnek vs. Shafqat Aslant etc. (PLJ 1997 Lahore 1765), while relying upon Adamali Hasanali vs. Mst. Rubab Bai (1965 (WP) Karachi 408 and Abdul Rashid vs Mst. Adila Musarrat (1982 CLC 149) has held that "the landladies could lawfully seek eviction of disputed premises for the use and occupation of their husbands."

Balochistan High Court in a case reported as Hqji Gul Baron and another vs Mst. Rehana Mushtaq (PLJ 2002 Quetta 21), while relying upon Ghulam Mohyuddin vs. Mst. Nazir Eibi (1983 SCMR 715) and MasoodAhmad vs. 'Mst. Anwar Begum (198$ CLC 1139) has held that now it is well settled that "there is no bar on the landlady for filing eviction application on the ground that the premises in dispute was required for the use and occupation of her husband as he was doing business in rented premises.

Resume of the case law on the subject amply establishes that although the word "husband" has not been used in Section 13(3)(ii)(a), of Punjab Urban Rent Restrictions Ordinance, 1959, yet, the need of the husband would include in the words "his own use" and that a landlady can legitimately file an ejectment petition, in respect, of non-residential building, if she is able to prove that she requires it in good faith for the use of her husband. In the present case, I find that through the concurrent findings of fact, the respondent has been able to prove that she requires the disputed shops for bona fide personal use of the husband of the respondent, who is doing business in the rented premises.

Now coming to the case-law law referred by the learned counsel, suffice it to say that the case of Muhammad Younus (PLD 1980 Lahore 577) has duly been considered in the case of Abdul Rashid, (ibid) wherein, it has been laid down that a landlady can file an ejectment petition against a tenant in respect of non-residential building for the bona fide personal need of her husband. So far as the case of Muhammad Ui.iar and others vs. Dr. AminaAshraf(ldS2 CLC 410) is concerned, thie same is not applicable to the facts of the present case, as in the said case the landlady was non-suited on the ground that she is running an independent clinic not showing the occupation of disputed shop by her husband being beneficiary to her and the husband, who appeared as witness of the landlady, did not state any thing about the personal need. In view whereof, the reliance of the learned counsel on the above two judgments, is of no avail to the appellant

1. Both the Courts have concurrently, held, on the basis of evidence on record that the respondent requires the shops in question bonafidelyfor the personal need of the husband of the respondent, she wants to start the business in the disputed premises through her husband to earn the livelihood of her family, and the husband was proved to be the only earning male member.

2. In the above perspective, I have examined both the judgments and find that they are legal, according to the evidence on record, apt to the facts and circumstances of the case and I see no justification to interfere with the concurrent findings on facts and the impugned judgments, thus both are maintained.

3. Upshot of the above discussion is that the present appeal is devoid of merits, thus the same is dismissed leaving the parties to bear their own costs.

(T.A.F.) Appeal dismissed.

PLJ 2003 Lahore 326

Present: sayed zahid hussain, J.

MUHAMMAD SHAFIQUE-Petitioner

versus

M/s. KNOLL PHARMACEUTICALS LIMITED KARACHI through its Managing Director and 4 others-Respondents

W.P. No. 6873 of 2002, heard on 23.10.2002. Industrial Relations Ordinance 1969 (XXIII of 1969)--

—S. 2 (xxviii) & S. 25-A Technical Sales Officer of Pharmaceutical company-Termination of services-Entitlement to invoke jurisdiction of Labour Court-Mere designation of employee would not be the determining factor as his status, nature of job and duty is to be kept in view-Petitioner was employed as officer in respondent organization-­Petitioner enjoyed status of an officer and availed privileges so long as he remained employed there and availed privileges-Petitioner obtained training in Sri Lanka at the expense of respondent company-Petitioner was. thus, neither a worker nor workman and as such not entitled to invoke jurisdiction of Labour Court for redressal of his grievances- Labour Appellate Tribunal's view being correct, writ petition against the same was not maintainable. [Pp. 328 & 329] A, B

PLD 1986 SC 103; PLD 1979 Karachi 263; 1983 PLC 498; PLJ 1977 SC 229; 1993 SCMR 672; PLD 1961 SC 403; 1980 PLC 380; 1983 PLC 509; 1992 SCMR 227; 2002 PLC 38; 1988 PLC 88 and PLD 1982 Karachi 913 ref.

Ch. Ata Ullah, Advocate for Petitioner.

Syed Qamar-ud-Din Hassan, Advocate for Respondents Nos. 1 to 4.

Nemofor Respondent No. 5.

Date of hearing: 23.10,2002.

judgment

The petitioner herein was appointed as technical sales officer on 2.10.1988, by the Boots Company (Pakistan) Ltd. It was on 4.3.1998, when he was informed that his services were terminated with immediate effect paying one month salary in lieu of notice. After giving a grievance notice under Section 25'A of Industrial Relations Ordinance, 1969. He approached Labour Court No. 4. Faisalabad, through petition under Section 25-A of the Industrial Relations Ordinance. The petition was contested by the respondent inter alia that he was neither a "worker" nor a "workman" and could not approach the Labour Court. Jurisdiction of the Labour Court in the matter was thus objected to. The petition was tried by the learned Labour Court and was eventually accepted on 5.4.2000, setting aside the order of termination and reinstating him in service with all back benefits. The respondents preferred an appeal thereagainst before the Punjab Labour Appellate Tribunal, which was accepted on 1.2.2002 by the learned Chairman, dismissing the grievance petition filed by the petitioner. Dispute and issue of identical nature is involved in the other two petitions Le. W.P. No. 6845/02 and W.P. No. 6874/02. wbich also assail the same impugned order of the learned Tribunal. In view of the common features of the petitions, these Have been heard together and being disposed of as such.

1. Since the moot point in the matter was as to whether the petitioner could invoke the jurisdiction of the Labour Court, the learned counsel for the petitioner has supported the view taken by the Labour Court and cited judgements referred to by the said Court, whereas the learned counsel for the respondents contends that the view taken by the Earned Chairman Punjab Labour Appellate Tribunal, was correct and consistent with the law laid down by the Courts, applicable to such cases. It is contended by the learned counsel for the petitioner that it is neither the designation nor the quantum of salary paid to an employee, but the criteria is nature of the duty actually performed which determines the status of an employee. Reference in this context has been made to Central Manager Hotel International, Lahore and another vs. BashirAMalik and others (PLD 1986 SC 103), Warner Lambart (Pakistan) Ltd. vs. Sindh Labour Court No. 3 Karachi and another. (PLJ 1979 Karachi 263), Allied Bank of Pakistan Ltd. vs. Muhammad Humayun Khan and 2 others.(1993 PLC 498), Brooke Bond Pakistan Ltd. vs. Conciliator appointed by Govt. t,f Sindh and others (PLJ 1977 SC 229) and National Bank of Pakistan vs. Punjab Labour Court No. 5 Faisalabad and others (1993 SCMR 672). Referring to the statement of the petitioner made by him before the Labour Court, it is contended that the petitioner had been performing duties of manual and physical nature, such as carrying of a bag full of medicines, visiting doctors, clinics and hospitals for the introduction and promotion of products of the company. The learned counsel for the respondents on the other hand has cited Pakistan Tobacco Company Ltd. vs. Pakistan Tobacco Company, Employees Union,, Dacca and others (PLD 1961 SC 403). Syed Zahid Hussain vs M/S Hoechst (Pakistan) Ltd. Karachi (1980 PLC 380) M/S Opal -Laboratories Ltd. vs. M'lhammad Moinul Islam (1983 PLC 509) Syed Matloob Hassan vs. Brooke Bond Pakistan Ltd. Lahore (1992 SCMR 227), M/S Rafhan Best Foods Limited through Human Resources Manager and Sales Manager and another vs. Nasir Jamal Qureshi (2001 PLC 396), M/S Taj Bakery Jackson Bazar vs. Muhammd Aslam Khan and another (2002 PLC 38), and unreported judgments (LA. No. 144/95 and L.A. No. 18/96) dated 20.12.1995 and 15.9.1996, respectively) by late Munawar Ahmad Mirza, Chief Justice, Balochistan High Court (as he then was).

2. As mentioned above, the learned Presiding Officer of the Labour Court had come to the conclusion that the petitioner was workman within the meaning of law and since his termination was ordered without complying mandatory provisions of standing Order 12 of Ordinance VI of 1968, he had jurisdiction in the matter. The contra view, however, was taken by the learned Chairman Punjab Labour Appellate Tribunal, while accepting the appeal filed by the respondents, who placed reliance upon PakistanTobacco Company Ltd. vs, Pakistan Tobacco Company, Employees Union, Dacca and others (PLD 1961 SC 403), M/S Opal Laboratories Ltd. vs.Muhammad Moinul Islam (1983 PLC 509), syed Zahid Hussain vs. M/S Hoehest (Pakistan) Ltd. Karachi (1980 PLC 380), Abdul Baqi v. MessrsMuhammad Farooq Ahmad Co. Ltd. (1988 PLC 88) and Rehmat All vs. TheSecurity Papers Ltd. and another (PLD 1982 Karachi 913) and the view taken by late Munawar Ahmad Mirza, J., that the petitioner was not a workman and could not invoke the jurisdiction of the Labour Court.

3. I have considered the respective contentions of the learned

counsel for the parties and on perusal of the material on the record and the precedents cited by them, am persuaded to subscribe and affirm the view a taken by the learned Chairman Punjab Labour Appellate Tribunal in the matter. There is no cavil that mere designation of an employee may not be the determining factor as to his status and the nature of job and duty is to be kept in view. The petitioner, herein, was employed as officer in the organization. He enjoyed that status so long he remained employed there and availed the privileges. He obtained training in Sri Lanka at the expense of the company. He was not merely a Medical or Sales Representative or a Sales man. He was not performing the duty of the nature as could bring him within the ambit of workman/worker. Mere carrying of few medicines in a bag to introduce it for the promotion of the same to doctors, clinics or hospitals would not change his position and status. He was an officer in the company by all means engaged for promotion of the pharmaceutical products of the company. In M/S Opal Laboratories Ltd. vs. Muhammad Moinul Islam (1983 PLC 509), a learned Division Bench of the Sindh High Court after considering number of precedents on the subject held that a medical representative of a company had no manual or clerical work to perform and such a salesman did not fall within the definition of workman. Similar view was taken in Rehmat Ali vs. The Security Papers Ltd. and another (PLD 1982 Karachi 913) and Abdul Baqi v. Messrs Muhammad Farooq Ahmad Co. Ltd. (1988 PLC 88) and Syed Zahid .Hussain vs. M/S Hoechst (Pakistan) Ltd. Karachi (1980 PLC 380). Late Munawar Ahmad Mirza, J, the then Chief Justice Balochistan High Court had taken the view that Sales Promotion Officer of Pharmaceutical companies were not workmen within the meaning of law. Thus preponderance of judicial pronouncements support the view taken by the learned Chairman Punjab Labour Appellate Tribunal, Lahore, in the matter. It may be observed that the view taken in Brooke Bond case (supra) was considered in Matloob Hassan (supra) by a much larger Bench, which was later in point of time and will have the binding effect. Be that as it may, the petitioners, herein, were & category apart, officers in the company, and not Salesmen by any standard. They, thus, could not invoke the jurisdiction of the Labour Court under Section 25-A, of the Industrial Relations Ordinance, 1969, which petition was rightly dismissed by the learned Tribunal, As a result of the above, this petition has no merit, it is dismissed accordingly With no order as to costs.

(A.A) Petition dismissed.

PLJ 2003 Lahore 329

Present: mian MUHAMMAD JAHANGIR, J. WAHEED AKHTAR-Petitioner

versus

ABID PERVAIZ and 3 others -Respondents W.P. No. 13917 of 2002, decided on 3.10.2002.

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

—0. I, Rr. 3 & 10--Person to be joined as a party or not--When it is to be determined that any person is a party or not, provisions of 0. 1 R. 3 of C.P.G. would be read with alongwith provisions of O. I R. 10 C.P.C. and not exclusively provisions of 0.1 R. 3 of C.P.C. [P. 331] A

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

—-O. I Rr. 3 & 10-Constitution of Pakistan (1973) Art. 199--Person to be joined as party to suit-Municipal Committee was ordered to be impleaded as a party to suit so as to negate multiplicity of suit-Even if Municipal Committee fails to establish its ownership over passage in dispute, there would be no harm to defendant—Order passed by Trial Court for impleading Municipal Committee concerned as a defendant were in accordance with law and call for no interference. [P. 332] B

Ch. Muhammad Aslam Zia, Advocate for Petitioner. Dr. AsgharAhmed Rana, Advocate for Respondents. Date of hearing: 3.10.2002.

order

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Waheed Akhtar petitioner/defendant has challanged the orders dated 24.1.2002 and 14.6.2002 passed by the learned Civil Judge and learned Addl. District Judge, at Gojra, respectively whereby on basis of consistent view, Municipal Committee Gojra has been impleaded as defendant in the suit for declaration filed by Abid Pervaiz etc. respondents/plaintiffs.

1. The dispute in between the parties arose over the use of a street (blind alley) measuring 131' and 10", situated in Aziz Colony, Mehdi Mohalla, Gojra, District T.T. Singh. The contention of respondents/plaintiffs named Abid Pervaiz and Amjad Zia was that they have right of easement over its use air and light as being a public street and it was made PACCA by Municipal Committee Gojra so it was prayed that the defendant be restrained to interfere into their right of easement and also to demolish the same whereas the contention of the petitioner/defendant was that this passage is private and in his own use. During the pendency of the suit the respondents/plaintiffs moved an application to amend the plaint by impleading Municipal Committee Gojra as Defendant No. 2 mainly with this contention that the street in question is a public street and it is in their use for the last twenty five years without any interference. This application was opposed by the petitioner/defendant by filing the written reply with the same contentions as mentioned above. After hearing the parties the learned Civil Judge arrived to this conclusion that for just decision of the case the impleading of Municipal Committee, Gojra, is necessary so he directed to amend the plaint after impleading the Municipal Committee as defendant in the suit vide his order dated 24.1.2002. Being aggrieved, the petitioner/defendant filed a Civil Revision No. 8-14-A/2002 which was disposed of by the Additional District Judge, Gojra videhis order dated 14.6.2002 with this observation that by impleading the Municipal Committee Gojra as a party the contention of Municipal Committee Gojra will also come on the record which will be helpful to resolve the controversy. Now being aggrieved from the orders as mentioned above, the petitioner/defendant has come up with this writ petition.

2. I have heard the learned counsels for the parties and have gong

through the copies of the relevant record placed before me.

1. Learned counsel for the petitioner/defendant mainly argued that

there is sufficient material on the record which shows that Municipal Committee Gojra has no connection with the disputed stripe of land, therefore, Municipal Committee is neither necessary nor proper party in the suit. He argued that Order I, Rule 3 of CPC deals with the joinder of the defendants which reflects on this principle that a person or persons may be impleaded as defendants against whom any right to relief in respect of or

arising out of same act or transaction or series of acts or transactions is

alleged to exist, whether jointly severally, or in the alternative, where it separate suits were brought against such persons any common question of law or fact would raise, therefore, when Municipal Committee, Gojra has no concern with the disputed strip of land and no relief has been claimed | against the Municipal Committee, the Municipal Committee Gojra is neither necessary nor proper party in the suit and being so the orders passed by the Courts below being illegal are liable to be set aside, Which have been opposed by the learned Counsel for the

respondents who submitted that the place in dispute is being used as a

public street whereon Municipal Committee Gojra has spent money for its

improvement through the contractors, therefore, Municipal Committee

Gojra is a necessary party for the just decision of the case.

1. The point for determination is quite simple because it is to be assessed as to who is necessary and proper party either as plaintiff or as a defendant. Order 1, Rule 3 CPC deals with the joining of the person or persons as defendant or defendants. The perusal of Rule 3 would reveal that basically the defendant is that person against whom any relief is claimed but its perusal would also show that the object of this rule is to avoid multiplicity of the suits and since it is not so exhaustive, therefore, some assistance so sought from the other rules of this Order particularly Rule 10, because basically the Court has to see as to which is the proper and necessary party for the just adjudication of the matter and that this lacuna can be fulfilled either upon an application moved by any party or without the application oneither sides, consequently the plaintiff may be directed to implead the person

concerned as a party in the suit. So when it is to be determined that any person is a party or not, the provisions of Order 1, Rule 3 of CPC shall be read alongwith the provisions of Order 1, Rule 10, CPC and not exclusively the provisions of Order I, Rule 3 of CPC as argued by the learned Counsel for the petitioner.

1. Now here in the instant case the contention of the respondent/plaintiff was that the street in question was constructed by the Municipal Committee Gojra which is in the use of the parties. Municipal Committee Gojra may not be interested in the subject because some time it happens that with the consent of the parties a private place is made as a road by having scaling over there or a PACCA road at the spot but if a specific passage is to be shown as a public street the record must speak that it was declared as a PACCA street in ,accordance with rules otherwise mere installation of bricks at the spot would not make the private passage as a public street, meaning thereby, if Municipal Committee Gojra is impleaded as a defendant in the suit this would negate the multiplicity of the suit and that if the Municipal Committee Gojra fails to establish its ownership over the passage in dispute there would be no harm to the petitioner/defendant. Therefore from all angles it appears that the orders passed by the learned trial Court are in accordance with law and call for no interference.

2. Consequently, this writ petition being without merits is hereby dismissed with no order as to the costs.

(A.A) Petition dismissed.

PLJ 2003 Lahore 332

Present: SAYED ZAHID HUSSAIN, J. MUHAMMAD SADIQ and others-Petitioners

versus

AHSAN MOHY-UD-DIN and another-Respondents W.P, No. 243/R of 1997, heard on 1,10.2002.

Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958)--

—S. 2(6)-Settlement Scheme No. VII Constitution of Pakistan (1973), Art. 199 Notified Officer in post remand proceedings decided that petitioners were not entitled for Transfer of area in their possession under Scheme No. VII and proceeded to reject their form-Claim of petitioners fell well within ambit of settlement Scheme No. VII and they were entitled to same-In view of entries appearing in revenue record, in particular Jamabandi of relevant period i.e. 1916/47, that it was being used and occupied for residential purpose, it cannot be given any other status except described therein nor held subservient to agricultural purpose-­View taken by Notified officer in the matter that it was subservient to agricultural purposes and should remain with respondent, does not find support either from the established facts or law applicable-Order of Notified Officer was, thus, not sustainable-Extent of area in occupation of those persons remains still to be determined—Such exercise would have to be undertaken by Notification concerned in accordance with law.

[P. 335] A

PLD 1965 Karachi 52; PLD 1965 Lahore 445; PLD 1975 Pesh. 244 and PLD 1969 Lahore 480 ref.

Mr. S.M. Tayyab, Advocate for Petitioners.

Ch. Muhammad Bakhsh, Advocate for Respondents.

Date of hearing: 1.10.2002.

judgment

The dispute herein relates to a piece of property covered by construction, (residential sites), comprising KillaNo. 5 of Square No. 74, situated in Chak No. 213-RB, Faisalabad. The petitioners claim in occupation thereof since before partition, who statedly had applied for its transfer to them under Scheme No. VII. After some litigation before the Settlement Authorities, the matter eventually reached this Court in Writ Petition No. 901-R/74, filed by thirteen persons. The said petition was accepted videjudgment dated 1.10.1979,- setting aside the orders of settlement authorities and directing "that an officer competent to decide the matter under both the laws, Displaced Persons (Compensation and Rehabilitation) Act and Displaced Persons (Land Settlement) Act, shall rehear the parties and decide the dispute in accordance with law." This judgment was assailed by the predeeessor-in-interest of the Respondent No. 1, before Hon'ble Supreme Court of Pakistan, but the petition for leave was dismissed on 12.7.1980. The matter, thereafter, came to be considered by the officer in pursuance of the remand order. Some proceedings in view of intervention of one Asghar Ali Shah, gave rise to writ petitions, the. detailed reference to the same, however, is not relevant now in the context of the dispute in this petition. On 8.12.1993, the Notified Officer, ordered the transfer of the portions in occupation of the petitioners under Settlement Scheme No. VII. That order was challenged by Respondent No. 1, through W.P. No. 15G-R/94, which was accepted, remitting the matter for fresh decision "keeping in view the previous judgments of this Court and the directions of their Lordships of Supreme Court, referred to above." This was vide judgment dated 15.1.1997. The matter was then tak.en up by Respondent No. 2, who vide the impugned order dated 8.9.1997, held that the petitioners were not entitled for the transfer of the area in their possession under Scheme No. VII and proceeded to reject their forms. It is this order, which has been assailed tl rough this petition under Article 199 of the Constitution.

1. The correctness and legality of the order passed by the Notified Officer, is assailed by the learned counsel mainly on the ground that it was the status of the property as per special Jamabandiof 1946/47, which had to be taken into consideration. According to him, Paragraph No. 29, of Rehabilitation Settlement Scheme, would govern the situation. It is contended that in the Jamabandisince before partition the property is described as "Ghair Mumkin Abadi", which was, thus, to be treated and disposed of as such. Reference in this context has been made to SyedShaukat Hussain Rizvi vs. KB. Dr. Yar Muhammad Khan and another(PLD 1974 SC 276) and Copt. Asmat Hayat and others vs. YousafMasih andothers(1994 SCMR 456). It is further contended that the occupation of the petitioners cannot be disputed in view of the facts on the record and findings in the judicial ordersiin the previous round of litigation.

2. The learned counsel for the contesting respondent supports the order passed by the Notified Officer and contends that the premises in occupation of the petitioners cannot be considered to be in their "possession" to entitle them to claim its allotment/transfer, as the same were subservient to the agricultural land allotted to the respondent. It is contended that the case of the petitioners does not fall within the scope of Scheme No. VII. According to him, the occupation of the petitioners was of permissive nature, which does not permit them to claim allotment in their own right. Reference has been made to ZafarNiazi vs. Qazi Sayed Shujaatullah and others (PLD 1965 (W,P) Karachi 52), Agha Shaukat All vs. Settlement and RehabilitationCommissioner, Lahore and another (PLD 1965 W.P) Lahore 445), Mst.Ambo Jan and two others vs. Asstt. Settlement Commissioner and 6 others(PLD 1975 Peshawar 244), Nafeesa Bano and others vs. Chief Settlement

Commissioner, West Pakistan Lahore and another (PLD 1969 Lah. 480).

1. A perusal of entries in the Jamabandiof 1934-1935, would clearly show that this particular Kilanumber was "Ghair Mumkin Abadi"occupied by "Bashindgaan Abadi". The same entry appears in the Jamabandiof 1946-47, that six Kanalof this Killanumber was "Ghair Mumkin Abadi". In view of Paragraph 29 of the Rehabilitation Settlement Scheme and the judicial pronouncements by the Hon'ble Supreme Court in Shaukat Hussain Rizvi's case (supra) and Capt. Asmat Hayat Khan's case (supra), the property cannot be treated or dealt with otherwise than it is described in the Jamabandiof the 1946-47, which as mentioned above, was occupied by "Bashindgaan Abadi" for their residential purposes.

2. So far as claim of the petitioners as to their possession/occupation is concerned, there cannot be any different view than was noted and observed by their Lordships of Supreme Court in CPSLA No. 1045/79, dismissing the petition filed by the predecessor of the respondent against the judgment of late Gul Muhammad Khan J, mentioned above. It was observed by their Lordships "that the respondents (who were petitioners in W.P. No. 901-R/74), claim that the area had been built upon by the evacuee owner and was occupied by them after partition. The petitioner did not deny that fact but stated that the structure as found at the time of partition was, not habitable and he invested huge amount in improving it It is also mentioned as a fact and not denied by the petitioner that he himself at one stage applied on a Ch form for the transfer of the disputed property as its value exceeded to Rs. 10,000/-". The assertion of the petitioners that property was used for residential purposes and was in their occupation, thus, cannot be disputed or denied by the respondent in view of the above findings appearing in the judgment of their Lordships. The verity of those findings cannot be in any way be assailed in these proceedings. Even the Notified Officer in the post remand proceedings, had found the petitioners entitled to its transfer in view of their occupation videhis order dated 8.12.1993, which order though was set aside by this Court in W.P. No. 150-R/94, but the fact remains that the occupation of the petitioners stand established from the record. The contention of the learned counsel for the contesting respondents that their occupation was permissive one, does not find support from the record and cannot be given much weight. An attempt was made to demonstrate that such occupation of the petitioners cannot be construed as "possession" in terms of the law, therefore, they cannot be allotted/transferred the premises. The stance of the respondent, however, overlooks the eligibility criteria mentioned in Settlement Scheme No. VII. It is "occupation" as per the scheme and not "Possession" as defined in Section 2(6) of Displaced Persons (Compensation and Rehabilitation) Act, 1958. The claim of the petitioners fell well within the ambit of Settlement Scheme No. VII, and they were entitled to the same. In view of the entries appearing in the revenue record, in particular Jamabandiof the relevant period i.e. 1946-147, that it was being used and occupied for residential purposes, it cannot be given any other status except described therein nor held subservient to agricultural purpose. The view taken by Respondent No. 2 in the matter that it was subservient to agricultural purposes and should remain with the respondent, does not find support either from the established facts or the law applicable. His approach to the matter is based mere on conjectures and surmises, who overlooked the material aspects of the case in non-suiting the petitioners. His order thus is not sustainable in law and is declared so. The declaration is, however, confined to the persons, who were party in W.P. No. 901-R/74.

The extent of the area in occupation of those persons, remains still to be determined. This exercise will have to be undertaken by the Notified Officer concerned in accordance with law, whereas the main issue stand determined as settled above.

The writ petition is accepted with the above observations. No order as to costs.

(A.A) Petition accepted.

PLJ 2003 Lahore 336

Present: Au nawaz chowhan, J. HajiALAM SHER-Petitioner

versus

M. MUHAMMAD NAWAZ-Respondent W.P. No. 15814 of 2002, decided on 19.10.2002.

(i) Punjab Local Government Ordinance, 2000--

—S; 14-Election of petitioner as Nazim was declared to be illegal and unlawful on account of his bogus Matriculation certificate by Election Tribunal-Controller Examination and Assistant Secretary of concerned Board appeared and deposed that Matriculation certificate of petitioner was bogus-Besides, Notification by Controller Examination was produced whereby result of petitioner was quashed on account of charge of impersonation against him-Factual position haying been determined by Election Tribunal, without any mis-reading or non-reading of evidence, High Court was not supposed to re-open that controversy-Writ petition as far as Nazim elect was concerned, had no merit and same was dismissed. [P. 337] A

(ii) Punjab Local Government Ordinance, 2QOO--

—-S. 18-A [as inserted by Punjab Local Government (Amendment) ordinance (VII of 2000) Constitution of Pakistan (1973), Art. 199-Co-petitioner who was Naib Nazim elect had requisite qualification at relevant time, being a joint candidate with petitioner, on application of principle of Sinker, his election was also declared illegal and void-When result of a candidate was declared to be unlawful, a casual vacancy occurs which has to be filled in as per provisions of newly added S. 18-A and one has not be reverted to R. 18'of Punjab Local Government Election Rules . 2000-Even otherwise it would be unfair to furnish a joint candidate for a wrong on the part of another candidate after he receives mandate from public and there was no finger pointed out towards him with respect to his qualification—3. 18-A, thus saves his position and notwithstanding the fact that Nazim and Naib Nazim contest elections as joint candidates, causal vacancy is to be filled in singularly in accordance with spirit of S. 18-A of ordinance of 2000-Decision of Elections Tribunal with respect to petitioner was maintained while its decision with respect to co-petitioner was set aside. [P. 239] B, C

Pana Muhammad Sarwar, Advocate with Sk. Umar Draz, Advocate for Petitioner.

Dr. Qazi Mohy-ud-Din, Advo'cate for Respondent. Dates of hearing: 15\ and 16.10.2002.

judgment

Through this writ petition, the judgment dated 24.8.2002 handed down by the Election Tribunal, Bhakar, is questioned. Whereby, the election of both the petitioners who were declared as successful candidates vide Notification dated 6.1.2001 of the District Returning Officer, Mianwali, was held to be illegal. This election pertained to Union Council No. 42, Shadia, District Mianwali. Consequent upon their election having been declared illegal and unlawful, the petitioners before the tribunal, who had challenged the election and who had secured the next higher votes, were declared as returned candidates.

1. Against HqfiAlam Sher (petitioner), it was established that he had presented a Matriculation Certificate after impersonation and changed the photographs in the original record held by the Bannu Board of Intermediate and Secondary Education.

2. Whereas, Bahadur Khan petitioner suffered because of the principle of sinker having been applied to his case, although he was found to be qualified having the degrees of B.A.L.L.B.

3. Objections with respect to the qualifications of both these petitioners were'raised before the Returning Officer but these were turned down and consequently after the elections, the matter was taken before the tribunal resulting in the aforementioned judgment.

4. The tribunal recorded the evidence and perused the record of the Board of Intermediate and Secondaiy Education, Bannu. Whose Controller Examinations (AW-1) and Assistant Secretary also appeared and deposed that the Matriculation Certificate being used by the petitioner Haji Alam Sher was a bogus document.

5. It was vehemently argued before this Court that the tampering of record was on act which had taken place recently and after the election results at the instance of the respondents who were rival candidates. But having heard the arguments of both sides and having examined the record, one finds that this argument is not substantiated.

6. Besides, there is a Notification (Ex. PA/1) issued by the Controller Examinations, Board of Intermediate and Secondary Education, which reads as follows:-

"Consequent upon the decision of the Board (empowered under S. No. 15, Page No. 241 of the Board Calendar) resolved in its 21st meeting dated 29.6.2001, the result of Mr. Alam Sher S/0 Janan Khan appeared in the S.S.C (A) Examination, 1995, under Roll No. 70172 is hereby quashed on account of the charge of impersonation proved against him."

Which means that the result has already been quashed and, therefore, any reliance on a quashed result is no reliance in law. Besides the factual position having been determined by the tribunal without any mis-reading or non-reading of evidence through our constitutional jurisdiction, we are not supposed to re-open this controversy. The writ petition as far as HajiAlam Sher petitioner is concerned, has no merits and is dismissed.

1. It is an admitted position that Bahadur Khan petitioner, the successful candidate for the post of Naib Nazim, had the requisite qualification at the relevant time. But because he was a joint candidate with

HajiAlam Sher, the principle of sinker was applied and his election was also declared illegal and void. There are two stages where academic qualification

of a candidate, as prescribed by Section 14 of the Punjab Local Government Ordinance, 2000, can be questioned. The first stage is before the Returning Officer at the time of scrutiny as provided by Rule 18 of the Punjab Local Government Election Rules, 2000, and secondly, thereafter, before a tribunal. This was certainly a case where the petitioner had been declared qualified at the scrutiny stage and the results were challenged post election v before the tribunal according to the procedure as provided by Rule 16 of the Punjab Local Government Election Rules, 2000.

1. Reference may be once more made to Rule 18 of the Punjab Local Government Election Rules, 2000, where the proviso to clause 3 statutes:

"Provided that a case of rejection of the nominations of either a Nazim or a Naib Nazim as joint candidates, the -nomination as a whole or both the joint candidates shall stand rejected."

1. Obviously, at that particular stage if the nomination of either Nazim or Naib Nazim who were contesting as joint candidate rejected, the nomination as a whole stood rejected. Extending the provision of this rule to

the post election period, is a question which needs an answer.

1. The rules do not provide for a joint rejection after the nomination papers have been accepted. We find an amendment to the Punjab Local Government Elections Ordinance, 2000, vide Ordinance 7 of 2000 which speaks of a casual vacancy and reads as follows:-

"18. A. Casual Vacancy:--(l) If the seat of a member becomes vacant during the term of office of a Council, new member shall be elected through bye-election and such member shall hold office for the remaining part of such term, provided that all bye-elections shall be held once a year on dates fixed by the Chief Election Commissioner.

(2) A vacancy in the office of a Nazim shall be filled by an officiating Nazim elected by the members of the Council concerned by a majority vote:

Provided that:-

(a) the member so elected shall continue to hold his substantive office as member till the bye-election to fill the vacant office is held;

(b) a Naib Nazim will not be eligible for bye-election or to be an officiating Nazim; and

(c) in the event of temporary absence of a Nazim, the Naib Nazim of the Council concerned shall act in place of the Nazim."

1. Therefore, when the elections are challenged before an Election Tribunal and the Election Tribunal comes to the conclusion that a candidate was to be disbelieved ab-initiofor contesting the election and declares his result to be unlawful, a casual vacancy occurs which has to be filled in as per the provisions of newly added Section ISA and we have not to revert to the provisions of proviso to Rule 18 of the Punjab Local Government Election Rules, 2000. Even otherwise, it would be unfair to punish a joint candidate for a wrong on the part of another joint candidate after he receives the mandate from the pubic and there is no finger pointed out towards him with respect to his qualification. Rule 18-A, therefore, saves his position and notwithstanding the fact that the Nazim and the Naib Nazim contest elections as joint candidate pursuant to Section 16, the casual vacancy is to be filled by singularly in accordance with the spirit of Section ISA.

2. There was a random talk about the excessive delegation with respect of Rule 18 of the Punjab Local Government Election Rules, 2000. But we leave this question to some other case as none of the parties were prepared on it and the learned petitioner's counsel has also not taken any objection in this connection.

3. Resultantly, this Court upholds the decision of the tribunal with respect to Haji Alam Sher petitioner, while its decision with respect to Bahadur Khan petitioner being not supported by law is set aside. The writ petition is decided accordingly. Both sides will bear their own costs.

(A.A) Order accordingly.

PLJ 2003 Lahore 339

Present: ch. ijaz ahmad, J.

MANAGING DIRECTOR, (POWER), WAPDA HOUSE, LAHORE and 2 others-Petitioners

versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION (N.I.R.C),LAHORE BENCHES LAHORE and another-Respondents

W.P. No. 9756 of 2002, decided on 26.11.2002.

Service Tribunals Act, 1973 (LXX of 1973)-

—-S. 2-A-Industrial Relations Ordinance (XXII of 1969), S. 22-A-(8)(g) Employee of WAPDA-Stay order issued by National Industrial Relations Commission in favour of such employee against WAPDA restraining his transfer-Legality-After addition of S. 2-A in Service Tribunal Act, 1973 petition filed by respondent (employee) before National Industrial Relations Commission has abated automatically in view of law laid down by Supreme Court in Karachi Development Authority a case (2001 SCMR 1277) and Kot Addu. Power Company Limited case (2001 SCMR 1898)--Respondent employee, however, was with his right to avail proper remedy before Competent forum within 10 days from announcement of order-Petitioners were restrained to take any action within specified period against him so as to enable him to seek remedy. [P. 341] A

2001 SCMR 1277; 2001 SCMR 1898; PLD 1997 SC 351; PLJ 1987 Lahore 42; 1997 SCMR 2000; 2000 SCMR 826; 1986 SCMR 574; 1989 SCMR 1068; 2000 PLC (C.S) 927; 2002 PLC (C.S) 1199; 2001 SCMR 1898; 2001 SCMR 848 and

NLR1996 Lahore 89 ref.

Mr. Muhammad Sharif, Advocate for Petitioners. Mr. Mahmood Hassan,Advocate for Respondents. Date of hearing: 26.11.2002.

order

The brief facts out of which the present writ petition arises are that the Respondent No. 2 filed a petition before Respondent No. 1 and secured a restraining order from Respondent No. 1. The petitioner being, aggrieved filed this writ petition.

1. The learned counsel of the petitioner submits that Respondent No. 1 has no jurisdiction to take the cognizance of the matter by virtue of Section 17(1-B) WAPDA Act, 1958 read with Section 2-A of the Federal Service Tribunals Act, 1974. In support of his contention, he relied upon the following judgments:--

WAPDA vs. Muhammad Zubair etc. (NLR 1996 Lahore 89).

WasimAhmad Khan vs. WAPDA (1997 SCMR 2000).

ZahirUllah vs. Chairman WAPDA Lahore (2000 SCMR 826).

WAPDA vs. Agha Nazim AIL (1986 SCMR 574).

WAPDA vs. Javaid Ahmad Line Superintendent (1989 SCMR 1068).

SyedZahid Hussain vs. U.B.L (2000 PLC (C.S) 927).

WAPDA vs. MemberN.I.R.C.Lahore (2002 PLC (C.S) 1199).

Kot Addu Power Company Limited vs. Muhammad Bashir (2001 SCMR 1898).

Muhammad Ibrahim Mangrio vs. ChairmanWAPDA (2001 SCMR 848).

He further submits that petitioner filed a petition before Respondent No. 1 as the competent forum is not functioning.

1. The learned counsel of the respondents submits that petitioner has no lawful authority the transfer the Respondent No. 2 form Cheechawatni to Quetta as the Respondent No. 2 is Lineman-II, in violation of the transfer policy of the petitioners which is attached with the report and parawise comments. He further submits that order of transfer was passed by an incompetent authority, therefore, the impugned order of the petitioners is not sustainable in the eyes of law. He further submits that Respondent No. 2 ceased to be an employee of the WAPDA from 1.4.2002, therefore, petitioners have no lawful authority and absolved in Multan Electric Power Company, therefore, the impugned order of the transfer of Respondent No. 2 from Multan Electric Power Company to Quetta has become infructuous. He further submits that when the basic order is withput lawful authority, then the superstructure shall have to fall on the ground automatically. In support of his contentions, he relied upon the case of Province of the Punjab vs. Dr.S. Muhammad Zafar Bukhari (PLD 1997 SC 351). He further submits that writ petition is not maintainable against the interim order. In support of his contentions, he relied upon the case of Mian Ghulam Dastgir Bari vs. RaiSalahuddin and 3 others (PLJ 1987 Lahore 42).

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

3. After addition of Section 2-A in the Service Tribunal Act, the petition filed by the Respondent No. 2 before Respondent No. 1 has abated automatically in view of the law laid down by the Honourable Supreme Court in Karachi Development Authority vs. Messrs Makhdoom BilawalCooperative Housing Society and others (2001 SCMR 1277) and Kot AdduPower Company Limited vs. Muhammad Bashir (2001 SCMR 1898).

4. In view of what has been discussed above, this writ petition is accepted. However, Respondent No. 2 is well within his right to avail the proper remedy before the competent authority/competent forum within ten days from today. Petitioners are restrained to take any action against Respondent No. 2 to enable Respondent No. 2 to avail the proper remedy before the competent authority/competent forum.

(A.A) Petition accepted.

PLJ 2003 Lahore 342

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J.

IBRAR HUSSAIN-Petitior

versus

ASSISTANT COMMISSIONER, GUJJAR KHAN and 3 others-Respondents

W.P. No. 2665 of 2000, heard on 4.10.2002.

(i) Punjab Revenue Department (Revenue Administration Posts) Rules 1990--

—Land Records Manual, Chap. 3—Para. 3.12 of Para. 4 Constitution of Pakistan (1973), Art. 199 Appointment of Patwariin a Sub-Division- Last of Matriculate Patwarpass persons who were bona fide residents of concerned Sub-Division was to be maintained-Such lists were to be up­ dated on annual basis-Patoarfs are to be appointed strictly in accordance with service Rules and Recruitment Policy-Patoarzs of each Tehsil as a rule be selected from residents of that Tehsil or of its immediate vicinity- No candidate who has not passed Patwariexamination is to be appointed in any case. [P. 344] A

(ii) Punjab Revenue Department (Revenue Administration Posts) Rules 1990-

—-Land Records Manual, Chap. 3, Para. 3.12 of Part-4 Constitutin of Pakistan (1973), Art. 199-Entitlement of petitioners to be appointed as Patoaris--Writ petition was disposed of with direction to respondents to immediately take necessary steps to fill up vacancies from petitioner the on basis of their seniority position or as per their position in list of Patwarpass persons admittedly being maintained in Sub-Division concerned-­ Further direction was that in future any vacancy occurs in concerned sub-Division subject to provisions of relevant Rules, same would be filled only from bona fide residents of concerned Sub-Division in accordance with substituted Provisions contained in memorandum dated 19.10.1989 issued by Board of Revenue and under Para 3.12 of Land Records, Manual. [P. 345] B

Malik Asif Taufique Awan, Advocate for Petitioner.

Raja Saeed Akram A.A.G. alongwith Mr. Khalid Mehmood Chaiidhary, A.C. Gujjar Khan and Mr. SohailMaqboal, Tehsildar Gujjar Khan. Date of hearing: 4.10.2002.

judgment

This judgment shall decide Writ Petition No. 2665 of 2000, Writ Petition No. 2757 of 2000, Writ Petition No. 109 of 2001, and Writ Petition No. 108 of 2001, as common questions are involved.

1. The petitioners in all these cases are vying for appointment as Patwarisin Suh-Division Gujjar Khan of District Rawalpindi. All of them possessed the requisite qualification and have also passed Patwarexamination. The grievance being made out in all these writ petitions is that the Collector, Sub-Division, Gujjar Khan, proceeded to take proceedings for appointment of Patwarisin the said Sub-Division. The candidates were examined and then interviewed. However, the petitioners were ignored despite the fact that they were duly entered in the list of Patwarpass persons maintained under Rule 3.6 of the Land Records Manual and to appoint several private respondents in these cases who are not residents of Gujjar Khan Sub-Division, rather many of them are not the residents of District Rawalpindi.

2. Learned counsel for the petitioners contends that the said appointments and consequent non-appointment of the petitioners is violative of the instructions contained in Part-II and IV of Chapter-3 of the said land Records Manual inasmuch as the petitioners are bona fide residents of Gujjar Khan Sub-Division and their names are duly entered in the said list of Patwarpass persons and as such the Collector Sub-Division has acted without lawful authority in ignoring the petitioners and appointing the said private respondents/non residents of Gujjar Khan Sub-Division.

3. Raja Saeed Akram, learned Assistant Advocate General with reference to a memorandum dated 19.10.1939 (Annex-B) to Writ Petition No. 2665 of 2000 argues that Paras 3.6 to 3.9 and 3.11 of Chapter 3 of the said Land Records Manual have been done away with. Now the instructions of the Board of Revenue, Punjab, are that the list is to be maintained, but the appointment of Patwariis to be made in accordance with the Service Rules and the Recruitment Policy applicable.

4. Learned counsel for the private respondents relies upon the Punjab Revenue Department (Revenue Administration Posts) Rules 1990, to argue that under the latter instructions of the Board of Revenue, appointments are to be made in accordance with the said Rules and there is no restriction as to appointments in a Sub-Division of only the residents of the said Sub-Division^ Also refers to a judgment dated 20.6.2000 of this Court in Writ Petition No. 289 of 2000 to urge that the Rules have to take precedence over the provisions of the Land Records Manual.

5. I have given some though to the respective contentions of the learned counsel as also of the learned Law Officer. There is no doubt that Paras 3.6 to 3.9 and Para. 3.11 have been done away with by the Board of

Revenue, Punjab, vide the said memorandum dated 19.10.1989 (Annex-B). However, the provision substituted does not entirely support the contention being raised by the learned A.A.G. and the learned counsel for the respondent I deem it proper to reproduce the said substituted provisions as follows: -

"In all Sub-Division, a list of all matriculate Patwarpass persons shall be maintained in the prescribed form with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies. la each Sub-Division the names of only those persons shah1 be enrolled, who are bona fide residents of the concerned Sub-Division. The namos of the eligible persons shall be added to the list as and when the result of Patwar Examination is received and no eligible person shall be refused enrollment. The list shall be annually verified and updated so as to exclude the names of those who have become un-available on account of death, migration, employment on any other post etc. However, the appointment of Patwarisshall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time."

1. Thus, it will be seen that the maintenance of list of matriculate Patwarpass persons who are bona .fide residents of the concerned Sub- Division is still to be maintained. Further instructions are that these lists are to be updated on an annual basis. It has, of course, further been directed that the Patwarisshall be appointed strictly in accordance with the Service Rules and the Recruitment Policy. The examination of the said Rules of 1990 show that only the qualifications of a person to be appointed as a Patwari(and all such appointments are made by direct recruitment) have been prescribed. I may further note here that the provisions of Para. 3.12 of Part-4 of Chapter-3 of the Land Records Manual still exists. It is this para i.e. 3,12 which lays down that the Patwariof each Tehsil should, as a rule, be selected from the residents of that Tehsil or of its immediate vicinity. The said para further insists that no candidate who has not passed the Patwarexamination is to be appointed in any case.

2. Needless to state here that the said instructions are still existing and are being followed continuously over decades. The insistence in the said provisions of Land Records Manual on the appointment of Patwariof a person resident of the Tehsil is with a purpose. It is the said village official who being at the lowest rung of the revenue hierarchy of the Province, who is responsible for collecting as well as providing the requisite information for maintaining the revenue records, some of which are prepared on periodical basis and some like Khasra Girdawriare to be prepared crops-wise and thereafter the daily transaction are to be recorded in the RozenamchaWaqiati. Such a person has to be from the vicinity in respect whereof the revenue records and other documents are to be prepared. I am of the opinion that the said long-standing instructions cannot be ignored. Of course, the Rules are there to prescribe the qualifications for appointment to the posts of Patwarisand those Rules of course are to be strictly followed in the matter of appointment of the Patwaris.

3. The appointments, however, made till date, at the same time cannot be termed as without lawful authority. As the said memorandum being relied upon by the learned A.A.G. does give an impression that the Member. Board of Revenue, had directed to ignore the said condition i.e.the residence of the candidates in the said Tehsil. I have been informed that at present four posts are available in Gujjar Khan Sub-Division. The Collector, Sub-Division Gujjar Khan present in person further informed me that two of the said posts were filled up by transfer during the pendency of this writ petition subject to its decision. The incumbents of the said two posts have retained their lien in their parent Tehsil wherefrom they were transferred to the said posts and can be repatriated.

4. In the light of the above discussion, all these writ petitions are disposed of with a direction to the respondents to immediately take necessary steps to fill up the said vacancies from the petitioners in these cases on the basis of their seniority position or as per their position in the said list of Patwarpass persons admittedly being maintained in the Sub- Division. It is further directed that in future if any vacancy occurs in Gujjar Khan Sub-Division, subject to the provisions of the said Rules, 1990, the same shall be filled only from the bona fide residents of Gujjar Khan Sub- Division in accordance with the substituted provisions contained in the said memorandum dated 19.10.1989 issued by the Board of Revenue and of course under Para 3.12 of the Land Records Manual. No order as to costs.

(A.A) Order accordingly.

PLJ 2003 Lahore 345

Present: CH. IJAZ AHMED, J. KHALID HUSSAIN-Petitioner

versus

MUHAMMAD SABIR JAVED-Respondent C.R. No. 1062 of 1998, heard on 7.10.2002.

Arbitration Act, 1940 (X of 1940)-

—S. 14-Civl Procedure Code (V of 1908), S. 115-Trial Court made award

in question, as rule of Court without adverting to objections filed by

defendant in haste in a summary manner-Appellate Court was justified

in law to set aside order of Trial Court-Appellate Court, however, acceded to its jurisdiction by dismissing suit although, same should have been remanded to Trial Court for decision of objections filed by defendant before Trial Court in accordance with law after providing proper hearing to parties-Judgment of Appellate Court was thus, not in accordance with law-Judgments of both Courts were set aside and case was remanded to Trial Court with direction to decide objections filed by defendant in accordance with law and decide case afresh. [P. 348] A & B

PLJ 1997 Lahore 1674; PLD 1983 SC 53; 1988 SCMR 851 ref.

Ch. M. Hassan, Advocate for Appellant.

Ch. M. Anwar Ghuman, Advocate for Respondent.

Date of hearing: 7.10.2002.

judgment

The brief facts out of which the present revision petition arises are that the petitioner/plaintiff filed a suit for declaration to the effect that he is owner in possession of the suit property. The contents of the plaint further reveals that the plot in - question was allotted to him whereupon, he has spent huge amount for construction and the respondent/defendant has no concern whatsoever who filed frivolous applications against him. The respondent/defendant filed an appeal against the Mutation No. 1087 before the Collector Nankana Sahib which was allowed vide order dated 19.5.1991. The aforesaid, order was challenged by the petitioner/plaintiff before the Civil Judge Nankana Sahib, being illegal, against facts, mala fide, without authority, fraudulent, void, ineffective qua his rights. The respondent/ defendant filed written statement, controverted the allegations levelled in the plaint and raised many preliminary objections. During the proceedings of the case, the parties agreed to appoint three arbitrators namely Rana Riasat All Patwari, Muhammad Sharif, and Lashkar Ali as is evident from the order of the learned Civil Judge dated 18.5.1992. On 30.5.1992 award was submitted. The respondent/defendant filed objections before the learned trial Court against the award. The learned Trial Court accepted the objections of the respondent/defendant vide order dated 16.9.1992. The petitioner/plaintiff being aggrieved filed revision petition before the learned Addl. District Judge concerned who upheld the order of the trial Court videjudgment and decree dated 3.1.1993. The parties again got compromise on 27.10.1994 to settle the dispute through the arbitrators and to appoint Muhammad Hussain Patwariretired, Rehmat Ali and Muhammad Ishaque as arbitrators who were appointed arbitrators according to the consent of the parties. The parties have also made their statements to the effect that whatever the decision of the arbitrators would be, should be abide by the parties. The arbitrators submitted the award before the trial Court on 18.1.1995. The learned Trial Court invited objections from the parties. The respondent/defendant raised objections before the trial Court that it was an \x-parte award and that he was not heard and as such the arbitrators have "committed misconduct. Copy of the award was also not supplied by the arbitrators to respondent/defendant. The learned Civil Judge 1st class, Nankana Sahib dismissed the objections of the respondent/defendant and made the award as rule of the Court videorder dated 8.2,1995. The respondent/defendant being aggrieved filed an appeal before the learned Addi. District Judge Nankana Sahib who accepted the appeal and dismissed the suit filed by the petitioner/plaintiff with costs throughout and also directed the SHO Police Station City Nankaaa Sahib to register a case against the petitioner/plaintiff under Sections 420/406/468/471 P.P.C, immediately with an intimation to the learned Addl. District Judge, Nankana Sahib. The petitioner/plaintiff being aggrieved filed this revision petition.

1. The learned counsel of the petitioner/plaintiff submits that judgments of both the Courts below are at variance. He further submits that the First Appellate Court erred in law to reverse the findings of the trial Court without adverting to the reasoning of the trial Court He further urges that if the award in question made a rule of the Court by the Trial Court on the account of the alleged objections of the respondent/defendant not having been adjudicated upon in a judicial manner by the Trial Court in such an eventuality, the only course open to the learned Addl. District Judge was to remand the case to the trial Court to attend to the objections of the respondent/defendant and adjudicate upon them in accordance with law sfter affording opportunities to the parties to lead evidence. He further urges

''that the First Appellate Court has no lawful authority to dismiss the suit ef the petitioner/plaintiff or to make any observation, or form any opinion or make any surmises on the merits of the award or the ease as no evidence had been led by the parties on the merits of the case or award nor any issue had been framed. He further urges that the first appellate Court erred In law to direct the SHO to register the case against the petitioner/plaintiff. He further submits that the arbitrators are not bound to supply copy of the award to the respondent/defendant. He further urges that the first appellate Court decided the case on surmises and conjectures as there was no material available on the record. He further urges that parties are duty bound to accept the award announced by the arbitrators and submit before the trial Court to make the rule of the Court.

1. The learned counsel of the respondent/defendant submits that petitioner/plaintiff committed the forgery and had been interpolated number of plot in question by cutting from 12/19 to 12/21 and thereafter mala fi^~got the Mutation No, 1087 recorded in his favour. The petitioner/plaintiff concealed the material facts in the contents of the suit. He further urges that the learned first appellate Court had rightly reversed the findings of the trial Court with cogent reasons. The learned counsel of the petitioner failed to point out any illegality or infirmity in the impugned judgment of the first appellate Court. He further urges that the learned counsel of the petitioner failed to point out any mis-reading or non-reading of the evidence by the first appellate Court and this Court has very limited jurisdiction to disturb the findings of the first appellate Court while exercising powers under Section 115ofC.P.C.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

3. The trial Court made the award dated 18.1.1995 as rule of the Court videorder dated 8.2.1995 without adverting to the objections filed by the respondent/defendant in haste in a summary manner. The learned First Appellate Court was justified in law to set aside the order of the learned Trial Court. The first appellate Court acceded to its jurisdiction and dismissed the suit of the petitioner/plaintiff. It is the duty and obligation of the first appellate Court to remand the case to the trial Court to decide the objections filed by the respondent/defendant before the trial Court in accordance with law after providing proper hearing to the parties. The judgment of the first appellate Court is not in accordance with the law laid down by this Court in the case of The Chief Administrator Auqaf Punjab, and another vs. Mst. NazirFatima (PLJ 1997 Lahore 1674). The judgment of the first appellate Court is in violation of the law laid down by this Court in the aforesaid case. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Knawal Nain's case (PLD 1983 SC 53) to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result therefrom. The first appellate Court has committed material illegality. This Court has ample jurisdiction to disturb the findings of fact in such situation as the principle laid down by the Honourbale Supreme Court Shaukat Nawaz's case (1988 SCMR 851).

4. In view of what has been discussed above, this revision petition is accepted with no order as to costs. Resultantly, the judgments of both the Courts below are set aside and the case is remanded to the trial Court who is directed to decide the objections filed by the respondent/defendant in accordance with law in terms of the law laid down by this Court in Mst. Nazir Fatima's case, supra, within six (6) months. Parties are directed to appear before the learned Trial Court on 17.10.2002, who is directed to decide the case afresh in accordance with law within six months till 17.4.2003. Parties and their counsel are also directed to cooperate with the Trial Court so that the matter may be concluded within the prescribed period.

with these observations the revision petition is disposed of. (A.P.) Revision accepted.

PLJ 2003 Lahore 349

[Election Tribunal Punjab, Lahore]

Present: mian muhammad najam-uz-zAman and pervaz ahmad, JJ.

AKHTAR RASUL--Appellant

versus

STATE etc.--Respondents E.A. No. 42/R of 2002, heard on 11.9.21302.

Representation of the People Act, 1976 (LXXXV of 1976)-

—S. 99(l-A)(h)--Conduct of the General Elections Order 2002, S. 8-D(2)(h)- -Rejection of appellants nomination papers on account of his conviction by Supreme Court for commission of contempt of that Court assailed- Admittedly at the time of occurrence appellant was sitting Member of Provincial Assembly representing the ruling party-Appellant alongwith other members of the Party stormed the building of Supreme Court during Court proceedings and having forced their entry into Court premises, raised slogans against sitting Chief Justice of Pakistan- Conduct of appellant being M.P.A. on the face of it was sufficient to shock the moral of society in general and also show that he was a man of depraved character-Case of appellant, thus, falls within the ambit of clause (h) of S. 99(1-A) of the Representation of the People Act, 1976 as well as S. 8-D(2)(h) of the Conduct of the General Elections Order 2002- Order of rejection of nomination papers was maintained. [P. 352] A

Aiyar's Judicial Dictionary eleventh edition 1987 SCMR 467 and; PLJ 1984 Lahore 22 ref.

Mr. Rashdeen Nawaz Kasuri, Advocate for Appellant.

Hafiz Abdul Rehman Ansari, Ch. Muhammad Hanif Khatana Addl. AG and D.A.G for Respondents.

Date of hearing: 11.9.2002.

judgment

Mian Muhammad Najum-uz-Zaman, J.-The nomination papers of the appellant for the Constituencies NA 122 Lahore and PP 148 Lahore were rejected by the learned Returning Officer vide order dated 29.8.2002 while accepting the objection petition titled Farced Ahmad Paracha etc. vs. Akhtar Rasool Ch. holding therein that case of appellant is covered under Clause (g) of Section 99(1-A) of the Representation of People Act, 1976, hence not entitled to participate in the forth-coming election.

1. Learned counsel for the appellant while challenging the legality of impugned order submitted that the appellant was no doubt convicted by the August Supreme Court of Pakistan for the commission of contempt of that Court, but that was a past conduct of the appellant whereas his nomination papers were rejected in lieu of clause (g) of Section 99(1-A) of ibid Act which deals with the situation happening in the present; that admittedly there was no material evidence available on the record showing that the appellant in the recent past had defamed the judiciary on acted in a manner to attract the provision of Clause (g) of the above said Act; that in the circumstances of this case, the nomination paper of the appellant were erroneously rejected by the Returning Officer.

2. We have heard learned counsel for the parties as well as Deputy Attorney General at some length and have gone through the relevant record.

3. On 28.11.1997 admittedly the appellant was sitting Member of Provincial Assembly, representing the ruling party (Pakistan Muslim League Nawaz Group), on the said date, a mob comprising of people belonging to different areas of the country who were allegedly workers of Pakistan Muslim League Nawaz Group including some MPAs and MNAs relating to the ruling party stormed the building of the Hon'ble Supreme Court of Pakistan during the proceedings and having forced their entry into the Court premises raised slogans against the then learned Chief Justice of Pakistan. The appellant alongwith others was proceeded against in contempt proceedings by the August Supreme Court of Pakistan and vide judgment dated 28.9.2000 appellant alongwith others namely Tariq Aziz, Mian Muhammad Munir, Chaudhary Tanvir Ahmad Khan, Akhtar Mehmood, Shahbaz Goshi and Sardar Muhammad Nasim Khan was found guilty of cpntempt of that Court and all of them were convicted and sentenced under Article 204 of the Constitution of Islamic Republic of Pakistan read with Sections 3 and 4 of the Contempt of Court Act, 1978, to undergo simple imprisonment for one month each and to pay fine of Rs. 5000/- each or in default whereof to further undergo simple imprisonment for. one month each. Admittedly, the appellant had already undergone the sentence of imprisonment as well as paid the fine.

4. As it is evident from the impugned judgment, the learned Returning Officer while rejecting the nomination papers had kept in mind the contents of Section 99(1-A), Clause (g) of the Representation of People Act, 1976. This clause reads as Under;-

"he is propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, or".

The bare reading of this Clause shows that it deals with the recent affairs and does not cover the incidents/actions of a person which had taken place in the past. The argument of learned counsel that learned Returning Officer while rejecting the nomination papers of appellant has erroneously relied upon this clause of Election Law is well founded and -forceful. Learned Deputy Attorney General has also supported the appellant on this legal aspect of the case and submitted that since the appellant was convicted for the contempt of Court in the past, the ingredients of Clause (g) of Section. 99(1-A) of ibid Act would not be attracted in the circumstances. The learned Law Officer further submitted that the case of the appellant would fall within the ambit of Clause (h) of ibid Act which reveals that a person who has been convicted by a Court of competent jurisdiction on the charge of moral turpitude would not be entitled to participate in the forthcoming election. Learned counsel for Respondent No. 3 while assisting the Court also took up the same plea that case of the appellant would be covered under the said clause. He had also relied -upon certain case law in support of his arguments.

1. In order to appreciate the arguments of learned Deputy Attorney General as well as the counsel for respondent, clause (h) of Section 99 (1-A) of the Representation of People Act, 1976 is reproduced as under:-

"has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or."

It is apparent from the contents of this clause that they speak about a person who has been convicted on the charges of corrupt practice, moral turpitude, mis-use of powers and authority. Admittedly appellant was convicted for the offence of committing contempt cf the Supreme Court in the year 2000 and the only thing to be seen is whether the ingredients of the said Clause would be attracted or not in the case of appellant.

The word moral turpitude has not been defined in the election laws and to interpret the same we have to look for the meaning of this word as given in different dictionaries or as defined by the Courts. In AIYAR'S JUDICIAL DICTIONARY Eleventh Edition, the\ word moral turpitude has been interpreted in the following form:-

(1) Whether the act leading to a connection was such as could shock the moral conscience of society in general;

(2) Whether the motive which led to the act was a base one; and

(3) Whether on account of the act having been committed, the perpetrator could be considered to be a depraved character of a person who was to be looked down upon by the society, (Mangali, us, Chhakki Lai, AIR 1963 All. 527 quoted in RisalSingh.... vs. Chandgi Ram, (AIR 1966 Punj. 393)

Similarly in Pramanatha Aiyar's Dictionaiy reprinted in 1996 the word moral turpitude has been defined as unden-

"Anything done contrary to justice, honestly, principle or good morals an act of baseness vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general contrary to the accepted and customary rule of right and duty between man and man".

The word moral turpitude has also been interpreted by Courts in Pakistan in case titled "Imtiaz Hussain Phulpto...... vs. Returning-Officer"

(1987 SCMR 468), their lordships while interpreting the word "moral turpitude" observed that:-

"the test which should ordinarily be applied for juding whether a certain offence does or does not involve moral turpitude appeal to be:

(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general;

(2) Whether the motive which led to the act was base one; and

(3) Whether on account of the act having been committed perpetrator could be considered to be a depraved character or a person who was to be looked down by the society."

Similarly, in case titled "Muhammad Shabbir AbbasL vs. Adbul Rasheed Mughal" (PLJ 1984 Lahore 22), a Division Bench of Lahore High Court, Rawalpindi Bench interpreted the word moral turpitude as under:-

"the expression implies anything done contrary to justice, honestly, modesty or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general contrary to the accepted and customary rules of right and duty between man and man".

Admittedly, at the time of occurrence appellant was sitting MPA representing the ruling party. He alongwith other members of his party stormed the building of Hon'ble Supreme Court of Pakistan during the Court proceedings and having forced their entry into the Court premises, raised slogans against the sitting honourable Chief Justice of Pakistan. The conduct of the appellant being MPA on the face of it was sufficient to shock the moral conscience of the society in general and also show that he was a man of depraved character. In the light of above said circumstances, we are convinced that the case of appellant falls within the ambit of Clause (h) of Section 99(1-A) of the Representation of People Act, 1976 as well as Section 8-D(2)(h), of the Conduct of the General election Order, 2002. In this view of the matter, we see no force in this appeal, same stands dismissed.

(A.A.) Appeal dismissed.

PLJ 2003 Lahore 353

Present: RUSTAM ALI MALIK, J.

Mst. GHULAM BIBI--Petitioner

versus SABIR HUSSAIN and another-Resopndents

C.R. No. 2795 of 1996, heard on 2.10.2002.

Civil Procedure Code,1908 (V of 1908)-

—Ss. 12(2) & l5--Dismissal of application under S. 12(2) C.P.C. without framing issue which were required to be resolved through evidence as substantial questions of facts and law had been raised therein-Petitiner in her application under S. 12(2) of C.P.C. had alleged fraud and misrepresentation while challenging decree in question-Petitioner's such application was dismissed summarily resulting in failure of justice-Everyquestion of limitation could be decided after recording evidence of parties in as much as, petitioner had claimed that decree in question, had never come to her knowledge previously and she had filed application as soon it came to her knowledge, thus, it was a mixed question of law and facts-Impugned order was set aside and case was remanded to District Judge with direction to decide application under S. 12(2) C.P.C. afresh after framing issues arising out of pleadings of parties and after recording evidence. [Pp.. 355 & 356] A

Mr. Akhtar Masood Khan, Advocate for Petitioner.

Mr. Farooq Hussain Naqvi, Advocate for Respondent No. 1. Date of hearing: 2.10.2002.

judgment

This is a Revision Petition against the order dated 9.4.1996 passed

by the learned District Judge, Sargodha by which he had dismissed the petition under Section 12(2) C.P.C. read with Section 151 and Order LX Rule 13 of C.P.C. and had declined to set aside the decree dated 5.5.1986 passed by the then learned District Judge, Sargodha, in a suit for specific performance of contract.

1. The brief facts of the case are that Sabir Hussain Respondent No. 1 had filed a suit for specific performance against Mst. Ghulam Bibi daughter of Subedar Raj Wali through her brother Raja Ghulam Hussain who was her General Attorney. The suit related to 1/3 share of 162 Kanalsand 5 Mariasof land (i.e. 54 Kanals) situated in Chak No. 92'/ Shamali, District Sargodha, Ghulam Hussain the aforesaid General Attorney of Mst.Ghulam Bibi defendant filed a consenting written statement in the learned

Civil Court, Sargodha while Defendant No. 2 i.e. Province of the Punjab through the Collector, Sargodha controverted the plea of the plaintiff inter alia on the ground that the land in question had been originally allotted to Muhammad Ayub Khan and then his son Raja Muhammad Yousaf Khan who had submitted an application for conferment of proprietary rights and who was allowed to deposit the price (for acquiring the proprietary rights) at the rate of Rs. 44/- per acre in four equal instalments, vide order of the Collector dated 27.3.1945 without depositing the said amount he could not be granted proprietary rights of the said land. It was also averred Defendant No. 2 that Defendant No. 1 had obtained only 54 Kanalsof land from the original allottee through Mutation No. 306 but she also did not possess the proprietary rights. Defendant No. 1 submitted an application on 5.12.1983 for conferment of proprietary rights and proceedings on the said application were underway when the plaintiff filed the suit. Defendant No. 2 also took the plea that it was not bound by the terms of an oral sale (between the plaintiff and Defendant No. 1) and that under the terms and conditions of grant, Defendant No. 1 was not competent to alienate the land in dispute without prior permission and before the execution of the Transfer Deed. Defendant No. 2 also raised a number of other objections as well, in the written statement. The learned Senior Civil Judge, Sargodha framed the issues on 23.7.1984 and the case was adjourned on a fewdates of hearing for the plaintiffs evidence. On 3.5.1986, the learned Presiding Officer in whose Court the case was pending was on leave. On the said date i.e. on 3.5.1984, the learned District Judge, Sargodha summoned the file and passed an order on the file of the Civil Suit, withdrawing the suit from the Court of the learned Senior Civil Judge to his own Court (on the original sits) and it was directed that notice to Defendant No. 2 be issued for next date. It seems that on 4.5.1986, Sabir Hussain, the plaintiff filed a formal application as well for the transfer of the suit and on which the learned District Judge, Sargodha again passed an order on 4.5.1986, withdrawing the suit from the Court of the learned Senior Civil Judge and entrusting it to his own Court. The said order dated 4.5.1986 was very surprising because on 3.5.1986 the learned District Judge, Sargodha had already transferred the civil suit to his own Court and there was no need to pass a fresh order on 4.5.1986, after obtaining a transfer application from the plaintiff. The story does not end there. On 5.5.1986 the learned District Judge, Sargodha observed that Defendant No. 2 is a formal party and as such he proceeded to delete its name as one of the defendants. It has already been mentioned above that in its written statement Defendant No. 2 i.e. Province of the Punjab had raised very serious objections (legal as well as on facts) and on the basis of which the learned trial Court had also framed the issues. After the deletion of the name of the Defendant No. 2 as a party to the suit, there was no obstacle left in decreeing the suit and so the then learned District Judge, Sargodha vide his order dated 5.5.1986 proceeded to decree the suit for specific performance of the agreement in favour of the plaintiff. He also directed that if the balance amount of Rs. 19,000/- is not paid within a week, the Sale-Deed shall be presented to the Registrar for registration through the officials of the Court. It appears that on 10.9.1994, Mst. Ghulam Bibi the defendant filed the application dated 28.8.1994 under Section 12(2) C.P.C. read with Section 151 and Order IX Rule 13 of the C.P.C. for setting aside the decree dated 5.5.1986 passed by the then learned District Judge, Sargodha in the suit for specific performance of agreement. Mst. Ghulam Bibi inter-alia took the plea that the decree aforesaid was the result of collusion between Ghulam Hussain, her general Attorney and the plaintiff and that she had never received any notice or any other intimation from the Court and that the proceedings of the suit had never come to her knowledge and that the entire proceedings were the result of collusion and fraud and that she had never received a single penny towards the payment of the sale price of the suit land nor had executed any agreement to sell in favour of the plaintiff. She further averred that as it was colony land, it could not be transferred without the permission of the District Collector (as per Section 19 of Colonization of Government lands Act, 1912. It was prayed by her that the judgment and decree dated 5.5.1986 (being the result of fraud, collusion and misrepresentation) be set aside. The plaintiff i.e.Sabir Hussain filed a written reply to the said petition. He also raised a number of preliminary objections in the petition including the one relating to the limitation. After hearing the arguments, the learned District Judge, Sargodha vide his order dated 9.4.1996 proceeded to dismiss the petition. Hence this Revision Petition.

1. Arguments have been heard and record perused.

2. It has already been mentioned above as to how the then District Judge, Sargodha had withdrawn the suit from the Court of the Senior Civil Judge, Sargodha to his own file and then had hurried to delete the name of Defendant No. 2 from the plaint and had then rushed to pass a decree in favour of the plaintiff (on the basis of the consenting written statement filed by Ghulam Hussain, the General Attorney of Ghulam Bibi). Anyhow, as it all happened in the year 1986, no useful purpose shall be served at this stage to question the action of the then learned District Judge, Sargodha in transferring the civil suit to his own file. Even otherwise, at present we are dealing with the impugned order dated 9.4.1996 passed by the then learned District Judge, Sargodha whereby the application under Section 12(2) C.P.C. had been dismissed.

5 I have carefully considered the Arguments advanced from both sides.

1. Section 12(2) of the C.P.C. provides that where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

2. It is not mandatory that in all application under Section 12(2), C.P.C., an enquiry be necessarily held. A frivolous application can be dismissed even summarily. But in a case of this nature (like the present one) holding an enquiry is a must. In her application, Mst. Ghulam Bibi had clearly alleged fraud and misrepresentation while challenging the decree in question. However, the learned District Judge, Sargodha did not frame issues and decided the application without recording the evidence of the parties and which in my view has resulted in failure of justice. Even the question of limitation could he decided after recording evidence of the parties because the petitioner had claimed that the decree in question had never come to her knowledge previously and that she had filed the application as soon as it came to her notice and so it was a mixed question of law and facts.

3. In view of what has been stated above, the Revision Petition is accepted, the impugned order dated 9.4.1996 passed by the then learned District Judge, Sargodha is set aside and the petition is remanded to the learned District Judge, Sargodha with the direction to decide the petition under Section 12(2) C.P.C. afresh, after framing issues arising out of the pleadings of the parties and after recording evidence.

4. Under the circumstances, the parties are left to bear their own costs.

5. The parties are directed to put in appearance in the Court of the learned District Judge, Sargodha on 21.10.2002 for further proceedings.

(A.P.) Case remanded.

PLJ 2003 Lahore 356 [Multan Bench Multan]

Present: farrukh lateef, J.

BRIGADIER AZIZ MUHAMMAD KHAN (Retired) Sitara Imtiaz (Military)--Petitioner

versus

SECRETARY MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN, RAWALPINDI and 3 others-Respondents

W.P. No. 7170 of 2002, decided on 3.9.2002. (i) Constitution of Pakistan (1973)--

—-Art. 199-Discretion in writ jurisdiction cannot be exercised in favour of a petitioner who cannot himself take benefit by order of Court. [P. 357] A

(ii) Constitution of Pakistan (1973)--

—Art. 199-Writ of mandamus-Essentials-Existence of a legal right is the foundation of every writ of mandamus-In order to succeed in obtaining relief by way of such writ, petitioner must satisfy Court that he has a legal right to compel performance of duty and person against whom right was sought was under legal obligation to perform that duty. [P. 357] B

(iii) Constitution of Pakistan (1973)--

—Art. 199-Contract Act (DC of 1982), S. 2(h)-Petitioner was neither a party to lease deed nor did he claim any right, title or interest in promises which he desires to be cancelled from name of respondent-Lease contract was between respondent official and contesting respondent-Petitioner, thus, cannot be deemed to be aggrieved party within meaning of Art. 199 (a)(vi) of Constitution, therefore, writ petition was not maintainable.

[P. 357] C

Petitioner in person. Date of hearing: 3,9.2002.

order

He has been heard.

1. Brief facts of this writ petition are that house of the petitioner is situated opposite to Plots Nos. 217-E and E-l which were obtained by Mst.Salma Anwaar Respondent No. 4 for residential purpose on lease from Military Estates Officer (Respondent No. 3). She converted the said premises into schools, in violation of the terms and conditions of the lease, which became a source of nuisance to the petitioner and his family; consequently the petitioner was constrained to enter into a protracted litigation with Respondent No. 4 which eventually culminated in his favour; resultantly Respondent No. 4 vacated the said premises.

2. Grievance of the petitioner is that Respondent No. 3 is not taking action against Respondent No. 4 for violating the terms and conditions of the lease, as is provided in the lease contract. Prayer in the writ petition is that a direction be issued to Respondent No. 3 to;

(i) take over the said premises forthwith and to get the lease cancelled on account of violation of its terms and conditions by Respondent No. 4; and

(ii) not to accept, forward or approve application of Respondent No. 4 for transfer of any right held by her under the lease to any other person.

1. Discretion in writ jurisdiction cannot be exercised in favour of a petitioner who cannot himself take benefit by the order given by the Court.

2. Existence of a legal right is the foundation of every writ of mandamus. In order to succeed in obtaining relief by way of such writ the „ petitioner must satisfy the Court that.he has a legal right to compel the performance of the duty and the person against whom the right is sought was under a legal obligation to perform that duty.

3. The petitioner is admittedly not a party to the said lease deed and also does not claim any right, title or interest in the premises which he desires to be cancelled from the name of Respondent No. 4. The lease contract is between Respondents Nos. 3 and 4.

4. In my view the petitioner cannot be therefore, deemed as an aggrieved party within the meaning of Article 199 (a) (i) of the Constitution. The writ petition being not maintainable is accordingly dismissed in limine.

(A.A) Petition dismissed.

PLJ 2003 Lahore 358

Present mian hamid farooq, J. MUHAMMAD ZAHID and another-Petitioners

versus

Mst. NASIM AKHTAR and another-Respondents W.P. No. 20804/2001 and 20805 of 2001, decided on 16.1.2002.

Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 13(6) Tenant--Ejectment of-Striking off defence of tenant by Appellate Forum-Rent Controller had refused to strike off defence of tenant—Order of Rent Controller whether interlocutory order or final order and whether appeal was cqmpetent against the same-Appeal under S. 15 of West Pakistan Urban Rent Restriction Ordinance 1959, was competent and maintainable against an order passed by Rent Controller under S. 13(6) of the Ordinance, either striking off defence of tenant or refusing to strike off defence of tenant. [P. 361] A, B & C

1996 MLD 138; 1986 SCMR 261; 1980 SCMR 298; PLD 1977 Karachi 1007;

PLD 1977 Lah. 538 ref.

Mr. Zafar Iqbal Chohan,Advocate for Petitioner.

M/s. Abdul Hameed Akhtar and Zafar Hameed, Advocates for Respondents.

Date of hearing: 16.1.2002.

order

This single order shall decide the present writ petition (W.P. No. 20804/2001) and W.P. No. 20805/2001, as the common questions of law and facts are involved in bovth the petitions.

1. Through the filing of these constitutional petitions, the petitioners/tenants have called in question order dated 29.9.2001, whereby the learned Additional District Judge, Faisalabad, accepted the appeals, filed by the respondent and directed the learned Rent Controller to strike off the defence of the petitioners.

2. Facts, giving rise to the filing of these two petitions are that Respondent No. 1 filed two ejectment petitions, under the provisions of Punjab Urban Rent Restriction Ordinance, 1959, (hereinafter referred to as Ordinance), against the petitioners, seeking their ejectment from Shops Nos. 6, 7 and 8 situated in D-ground, People Colony, Faisalabad, on the ground of default in payment of rent, before the learned Rent Controller. The petitioners contested the ejectment petitions thereby controverting the allegations of default and thereupon the learned Rent Controller, findings that there are no arrears of rent due against the petitioners, passed an order under Section 13(6) of the Ordinance, thereby directing the petitioners to deposit the future monthly rent. The learned Rent-Controller framed the issues and Respondent No. 1 was called upon to produce evidence, but she could not procure the attendance of her witnesses on numerous dates and ejectment petitions were dismissed for non-prosecution, however, the ejectment petitions were subsequently restored. Thereafter the respondent filed an application under Section 13(6) of the Ordinance, praying for the striking off the defence of the petitioners, however, the said application was dismissed on 21.11.2000. The said respondent assailed the aforenoted decision of the learned Rent Controller by filing two separate appeals before the learned District Judge, and the learned Additional District Judge accepted by the appeals, set aside the order of the learned Rent Controller, and further directed the learned Rent Controller to strike off the defence of the petitioners, videjudgment dated 29.9.2001. Aggrieved by the aforesaid order, the petitioners filed two appeals, befo,re this Court, however, the same were withdrawn in order to file the Constitutional petitions, hence, the present petitions.

3. Learned counsel for the petitioners has contended that the order of the learned Rent Controller dated 21.11.2000, whereby he refused to strike off the defence of the petitioners and was impugned through filing an appeal before the learned appellate authority, was an interlocutory order in nature, thus, no appeal against the said order was competent, as such, any order passed on an incompetent appeal is void and has no legal value, therefore, the impugned order is liable to be declared as illegal and have no lawful authority. Conversely, the learned counsel for the respondent has refuted the arguments and submitted that an order passed by the learned Rent Controller declining to strike off the defence of the tenants is not, an interlocutory order and, thus, appealable before the appellate authority. It has been submitted by the learned counsel for the respondent that the impugned order was passed on an appeal, competently filed by the respondent, therefore, it does not call for any interference by this Court.

4. It flows from the above contentions raised by the learned counsel for the parties that the question which has arisen for determination by this Court is as to whether an order passed by the learned Rent Controller refusing to strike off the defence of a tenant in exercise of its powers under Section 13(6) of the Ordinance, is an interlocutory order or a final order and as to whether an appeal is competent against such an order.

5. The said legal question came up for decision before this Court and it was held in Rana Zahid All Khan and 5 others vs. Ehsan Elahee(PLD 1977 Lahore 538) that the learned Rent Controller is not empowered to extend time for making deposit of rent and an order refusing to pass an order of ejectment by striking off defence should be considered to be a final order which will give a right to the landlord to file an appeal against it.

6. The same question came up for determination before the Sindh High Court and it was declared in the case of Mst. Fatima Bai vs. Mst. Fatima Begum. (PLD 1977 Karachi 1007) that the question of non-compliance with order under Section 13(6) of the Ordinance, is a question germane to dispute whether the tenant is liable to be evicted, such order if correctly passed may result in decision of-the entire controversy and may terminate the proceedings so for as the Controller is concerned. It was, thus, held that such an order is a final order and appeal to challenge its correctness would lie under Section 15 of the Ordinance. The same question of law was considered by the Hon'ble Supreme Court of Pakistan in the case ofHayatAlt vs. Miss Aziz Mehmood (1980 SCMR 298). It was laid down by the Apex Court of the Countiy, while relying upon the aforesaid judgments of Rana Zahid Ali Khan and Mst. Fatima Bai, that the order refusing to strike off the defence of a tenant is a final order and as such appealable in the same manner as if the defence of the tenant has been struck off and the appeal is maintainable. It would be advantageous to reproduce the relevant portion of the judgment of Hayat Ali's case:

"In assessing whether there is d'efault or not the Rent Controller has to consider the explanation resting on facts and in a given case his decision might be erroneous. If he holds against the tenant his order, beyond doubt, is final as it leads to ejectment of tenant. As such the order is appealable; and again it is for Appellate Court to Judge as to whether Rent Controller was right in holding that tenant was guilty of default; and if he is not so held, he is absolved of consequence of default. Vice versa if Rent Controller decides against landlord, can it then be said that such an order is not appealable howsoever erroneous it may be as it does not conclude proceedings? This would mean putting a premium on the right of the landlord to have the legality of the order determined in appeal, for, in that eventuality it may be that the appellate might come to^a contrary conclusion and hold default to have been proved, in which case his defence will be struck off. In either case there has to be an application1 of mind on the question of default which culminates in passing of an order for striking off the defence or condonation of non-compliance. The former leads to ejectment of tenant while the latter condones default. But what it pivotal is that is concludes controversy presented by the second part of sub-section."

1. In the case of Mrs. Zubaida Begum vs. Mrs. S.T. Naqvi (1996 SCMR 261) the Hon'ble Supreme Court of Pakistan declared the law that an appeal against Rent Controller's order refusing to strike off the defence is maintainable and the order of the Rent Controller passed under Section 13(6) of the Ordinance refusing to strike off the defence of the tenant is as much appealable as one striking out tenant's defence.

2. Same view was followed by Baluchistan High Court and it was held in HajiAbdul Ghafoor and 2 others vs. Muhammad Ibrahim (1996 MLD 138) that an appeal under Section 15 of the Ordinance is competent against an order striking off defence of tenant on account of non-compliance of tentative rent order of Rent Controller and non-striking off defence of tenant on that account. It was held that appeal in both such cases would be competent.

3. After having examined the case law as noted above, I have come to the conclusion that the consistent view of the Hon'ble Supreme Court of Pakistan and all the High Courts of the country is that an appeal under Section 15 of the Ordinance is competent and maintainable against an order passed by the learned Rent Controller under Section 13(6) of the Ordinance, 1959, either striking off the defence of the tenant or refusing to strike off the defence of the tenant.

4. Applying the aforesaid yardstick to the present petition as the only question raised by the learned counsel has duly been answered, same is devoid of any force, thus, the solitary contention raised by the learned counsel is hereby repelled.

5. In view of the above discussion, the writ petitions are devoid of any merits, thus, both of them are dismissed with no order as to costs.

(A.A.) Petitions dismissed.

PLJ 2003 Lahore 361 (DB)

Present:jawwad S. khawaja and abdul shakoor paracha, JJ.

ANWAR IQBAL-Appellant

versus MIAN TUFAIL AHMED and another-Respondents

R.F.A. No. 27 of 1995, decided on 21.2.2002. (i) Adverse Possession-

—Plea of-Proof--Person claiming adverse possession has to specify date of possession, nature in which the same was acquired and overt act ommitted by him to show open and hostile possession and right against egal owners of land. [P. 366] C

(ii) Islamic Jurisprudence--

—-Repugnancy to injunctions of Islam-Plea of adverse possession in respect of immovable property was declared un-Islamic by Shariat Bench of Supreme Court in Maqbool Ahmad's case reported as 1991 SCMR 2063-- Plea for ownership on basis of ownership was, thus, no more available- Judgment of Supreme Court, however, was to have prospective effect and would in no manner affect rights of parties which had matured prior to 31.8.1991, which was the target date when law enunciated by Supreme Court was to take effect [P. 365] A

(iii) Practice and Procedure--

—Defendants claimed to be owners of land in question vide sale-deed- Defendant simultaneously had raised plea of ownership on basis of adverse possession-Such two pleas were mutually contradictory and destructive. [P. 366] B

Qazi Khurshid Alam, Advocate for Appellant. Mr. M..A. Zafar, Advocate for Respondents. Date of hearing: 10.1.2002.

judgment

Abdul Shakoor Paracha, J.--This is first appeal under Section 96 C.P.C. filed by the appellant impugning the judgment and decree dated 8.1.1995 passed by the learned Senior Civil Judge, Bhakkar.

1. The dispute relates to the land measuring 4 Kanals9 Mariassituated within the boundaries of Municipal Committee, Bhakkar, and has been shown in the attached plan with the plaint. Mian Tufail Ahmad and Mian Bashir Ahmad son of Mian Saeed Amir, plaintiffs-respondents filed a suit for possession of the aforesaid land. It was the case of the plaintiffs that they are legal heirs of Mst. Soodan. The said Mst. Soodan purchased the above stated land vide registered sale-deed dated 8.10.1952 from one Abdul Rehman son of Ghulam Mohayuddin Khan. Her sisters, namely, Mst.Anar Khatoon and Mst. Raushan Bano have died and the plaintiffs are legal heirs being the sons of real maternal uncle of Mst. Soodan. It was asserted that the land has been in illegal occupation of the appellant-defendant.

The suit was resisted by the defendant-appellant by filing the' written statement. It was asserted by the defendant-appellant that he is in possession of the suit land for more than 50 years and is owner-in-possession of the land in dispute. Further it was claimed that he had become owner of the suit land through adverse possession and that the suit is barred by limitation. Further it was stated that the plaintiffs have no cause of action to file the suit.

1. Following issues were framed from the divergent pleadings of the parties by the learned Civil Judge:--

2. Whether the plaintiffs are owners of the suit property and are entitled to recover possession from the defendant? OPP

3. Whether the suit is within time? OPD

4. Whether the plaintiffs are estopped by their words and conduct from filing the suit? OPD.

5. Whether Mst. Soodan was competent to sell the suit property to the plaintiffs? OPP

6. What is the effect of criminal proceedings in respect of the suit property initiated U/S 145 Cr.P.C.? OPD

7. Whether the plaintiffs have no cause of action? OPD.

8. Relief.

9. The learned Civil Judge decided Issue No. 1§ in favour of the plaintiff-respondents. It was observed that Abdul Rehman was owner of the suit land on the basis of sale-deed dated 14.1.1952 (Exh. P. 12) and the same was transferred in favour of Mst. Soodan vide sale-deed dated 8.10.1952 (Exh. P. 5). Further it was held that Mst. Soodan died issueless and on the basis of pedigree-table given in Mutation No. 596 (Exh. P. 1) and No. 597 (Exh. P. 2) the plaintiffs were lineal descendants of late Ms?. Soodan.

10. We have also examined the evidence and propose to decide this Issue No. 1 first. The plaintiffs-respondents produced registered sale-deed date 14.1.1952, Exh. P. 12. One Ghulam Sarwar Khan son of Ahmad Khan sold 4 Kanals9 Mariasof land in favour of Abdul Rehman Khan son of Ghulam Mohayuddin with the following specific boundaries:--

North: Malik Abdul Karim

South: House of Muhammad Nawaz Khalish, petition-writer.

East: Land of Thai Development Authority

West: Owners

The suit land was measured and the possession was delivered to the vendee Abdul Rehman Khan. The father of the present appellant, Muhammad Nawaz Khan signed the document as marginal witness. This suit land with specific boundaries was further sold to Mi>i. Soodan by Abdul Rehman vide sale-deed dated 8.10.1952 (Exh.P. 5). 'The specific boundaries were given in the sale-deed as under:--

North: Malik Abdul Karim

South: House of Muhammad Nawaz Khalish, petition-writer, and others.

East: Land of Thai Development Authority

West: owners, and the land has been mentioned to be

situated within the boundaries of Municipal Committee, Bhakkar.

The learned counsel for the appellant on the strength of cases reported as Mst. Asghari Bibi and 3 others vs. Settlement Officer, Kotli (PLD 1992 AJK 29) and Abdul Latif vs. Abdul Qayyum, (PLD 1992 Pesh. 103) argued that Ghulam Sarwar Khan, the alleged transferor of the suit land was not competent to alienate 'specific land' in favour of Abdul Rehman vide registered sale-deed dated 14.1.1952 (Exh.P. 12) as he was not the sole owner of the Khata nor he was in exclusive possession of the land. This " argument of the learned counsel is devoid of any force for variety of reasons. The sale-deed dated 14.1.1952 (P. 12) executed by Ghulam Sarwar in favour of Abdul Rehman shows that the land was in exclusive ownership and in possession of Ghulam Sarwar Khan and the same was sold to Abdul Rehman with specific boundaries. Secondly, the land was purchased by Mst. Soodan with specific boundaries; thirdly, the house of Muhammad Nawaz Khalish is mentioned in both the sale-deeds on the southern side. Fourthly, said Muhammad Nawaz Khalish signed the sale-deed Exh. P. 12 dated 14.1.1952 as marginal witness. There is no cavil with the proposition that a co-sharer being in joint ownership can sell his share out of the same, but no share could be separated as a 'Tatima' carved out of a common property without express permission of the plaintiff who is a co-sharer in the whole property. But, as stated above, the land was sold with specific boundaries to Abdul Rehman Khan who further sold it to Mst.Soodan and Muhammad Nawaz Khalish, father of the appellants was present at the time of execution of the sale-deed in favour of Abdul Rehman, therefore, it could not have been argued that the land was common between the co-sharers. In this view of the matter, the case of Abdul Latif (PLD 1992 Peshawar 103) and of Mst. Asghari Bibi (PLD 1992 AJK 29) referred to by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case.

The second objection of the learned counsel for the appellant that the appellant is not liable to be dispossessed from the suit land as he is a co-sharer in the Khatta of the property in dispute vide registered sale-deed dated 24.5.1951 (Exh. P. 11) is equally liable to be repelled. The sale-deed dated 24.5.1951 Exh. P. 11 would show that the appellant's father Muhammad Nawaz Khalish had purchased only 2 Kanalsof Jand, which was different than the suit land as the details and boundaries of the property owned by Mst.Soodan, purchased by her vide sale-deed dated 8.10.1952 (Exh. P. 5) are clearly mentioned in it. There is yet another document on the record, which is decree of the Civil Court dated 22.1.1978 (Exh. D-4) which shows that the defendant-appellant's father was dispossessed from the land measuring 147 & 20 ft. He filed a suit against Abdullah son of Inayat, whereas the suit property is 4 Kanalsand 9 Marias. The sale-deed dated 24.5.1951 Exh.P. 11, and decree dated 22.2.1978 Exh. D-4 will show that father of the appellant purchased altogether a different property, which has no nexus with the suit land owned by Mst. Soodan. We, therefore, confirm the findings of the learned trial Court that the plaintiffs-respondents have succeeded in establishing the title of Mst. Soodan to the suit property.

The entitlement of the plaintiffs to possession of the suit land, which is second part of the issue, will be discussed later as it depends on the

decision of Issue No. 2 of limitation and claim of the appellant that he had become owner of the land due to adverse possession which is being discussed first. .

The onus of proving Issues Nos. 2 and 3 was on the appellant-defendant. The learned Civil Judge held that the plea of adverse possession in respect of immovable property was declared as un-Islamic in terms of the judgment of the Hon'ble Shariat Appellate Bench announced on 22.5.1991 reported as MaqboolAhmad vs. Government of Pakistan (1991 SCMR 2063), as such this plea for ownership on the basis of adverse possession is no-more available. The above finding appears to have been recorded on wrong interpretation of the decision of the Hon'ble Shariat Appellate Bench of the Supreme Court titled MaqboolAhmad vs. Government of Pakistan (supra). The said precedent was to have prospective effect and not in any manner affect the rights of the parties which had matured prior to 31.8.1991, which was the date from which the law enunciated by the Hon'ble Supreme Court in the aforesaid precedent, was to take effect. In case of Abdul Rehman and 12 others v. Muhammad Akram and 79 others (1999 SCMR 100) it has been held by the Hon'ble Supreme Court:

"Decision rendered by the Supreme Court in said case, had" to take effect from 31st August, 1991 and on the date Section 28, Limitation Act, 1908 had ceased to have effect while the suit was instituted on 27.4.1976 and decree was passed on 9.4,1986, therefore, law laid down in 1991 SCMR 2063, was not applicable to facts of case."

The ratio of the above said precedent is squarely applicable to this case because the present suit was filed on 16.11.1987.

Before discussing the Issue No. 2 of limitation and adverse possession, we find that it would be useful to reproduce Section 28 and Article 144 to the First Schedule of the Limitation Act, which are as under:

"28. Extinguishment of right to property.At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

"Art. 144.

For possession of immovable Twelve When the poss- property or any interest therein not years session of the

hereby otherwise specially provided defendant be- for. comes adverseto the plaintiff." From the above noted statutory provisions, it is clear that the plaintiffs-respondents suit would only be time-barred and as a consequence his title in the suit property extinguished if it is proved on the record that the appellant had been in adverse possession of the suit property for a period of 12 years.

The case of the defendant-appellant is that Muhammad Nawaz Khalish purchased the suit land vide sale-deed Exh.P. 11. He was owner of the suit land. Simultaneously, he has raised the plea of adverse possession. These two pleas are mutually contradictory and destructive. In case reported as Khuda Bakhsh and others vs. Mureed and others (1999 SCMR 996) while interpreting Article 144 of the Limitation Act (IX of 1908), it has been ruled by the Hon'ble Supreme Court that:

"Plea of lawful title and adverse possession in the same case are contradictory pleas and cannot stand together."

In the present case also, in the first place it was claimed that the appellant-defendant had become owner of the suit property by adverse possession and that he is owner of the land on the basis of sale-deed. Even if it is accepted as asserted by the defendant-appellant that the suit land was in continuous possession of the defendant since more than 12 years, even then the mere possession is not enough to hold that the defendant-appellant was in adverse possession. It is by now well-settled law that in order to establish adverse possession the person claiming such possession has to specify the date of possession, the nature in which it was acquired and the overt act committed by him to show open and hostile possession and right against the legal owners of the land. Firstly, the appellant is not admitting the respondents as owners of the suit land; secondly no date of such a possession has been specified in the written statement or in evidence. The appellant himself lodged an FIR dated 21.8.1982 with Police Station Saddar, Bhakkar |(Exh. P. 4) against Muhammad Mukhtar Ahmad, PW-1, a step-son of Mst. jSoodaix and alleged his possession over the suit land. The possession over the property had been interrupted on 30.7.1982. In pursuance of the above said FIR the property was sealed under Sections 145 Cr.P.C. After inquiry the learned Magistrate, who was seized of the matter, videhis order dated 22.6.1983 (Exh.P. 3) ordered for desealing of the property. From the documents Exh.P. 4 and Exh.P. 6, the FIR and the order of the Magistrate, an irresistible conclusion can be drawn that the defendant's possession was not uninterrupted for more than 12 years. From all the facts and circumstances, we find that no overt act of the aforesaid nature has been pleaded by the appellant.

In these circumstances, we find that the defendant had not succeeded in discharging the onus placed on him in respect of Issues Nos. 2 to 4. The said two issues are, therefore, decided in the negative against the defendant"-appellant and the findings of the Civil Judge are maintained.

Now, we advert to the second part of Issue No. 1 that whether the plaintiffs-respondents are entitled to recove'r the possession from the defendant-appellant. Since Mst. Soodan was owner of the suit property as held under Issue No. 1 and in Mutation No. 596 (Exh. P. 1) and 597 (Exh. P. 2) a pedigree-table is given showing that the plaintiffs were lineal decedents of late Mst.Soodan and said Mst.Soodan had two other sisters who also died issueless leaving the plaintiffs only legal heirs. Besides the above stated documentary evidence, all the witnesses, i.e. PW-1 to PW-4, have stated in their statement that the plaintiffs are legal heirs of Mst.Soodan. In this view of the matter, we hold that the plaintiffs-respondents are entitled for the possession of the suit land being the lineal decendants of Mst. Soodan.

In view of the. foregoing discussion; we find that there is no merit in this appeal, which is dismissed with costs.

(A.A.) Appeal dismissed.

PL J 2003 Lahore 367

Present:abdul shakoor paracha, J. KHUSHI MUHAMMAD-Appellant

versus

ABDUL SATTAR-Respondent R.S.A. No. 31 of 1994, decided on 31.1.2002.

(i) Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984)--

—Art. 114-Agreement to sell-Deed writer and stamp vendor did not produce Register of stamp" vending-Adverse inference has to be drawn against plaintiff for withholding evidence under Article 114 of Qanun-e- Shahadat. [P. 369] A

(ii) Qanun-e-Shahadat Order, 1984 (P.O. 10 of1984)--

—Art. 84—Exhibition of documents—Documents which were not copies of judicial record should not be received in evidence without proving signatures and hand-writing of person alleged to have signed or written them, even if such documents were on record and exhibited without objection. [P. 369] B

PLD 1973 SC 160; 1999 SCMR 100; PLD 1997 Lahore 1526 ref.

Mr. Muhammad Zafar Chaudhry, Advocate for Appellant. Nemo for Respondent. Date of hearing: 31.1.2002.

. judgment

Khushi Muhammad son of HajiAll Muhammad appellant was the owner of the land measuring 42 Kanalsand 19 Marias, Khewat No. 126/132, Khatooni No. 604, Khasra Nos. 75,,74 & 100, situated stMohallahJowand Singh, Mauzia Islam Pura, Tehsil Depalpur, District Okara. An agreement to sell dated 17.7.1989 was allegedly executed by the appellant in favour of respondent-Abdus Sattar, herein-plaintiff. He filed suit for specific performance of-the agreement dated 17.7.1989 against the appellant on 12.5.1993 in the Court of learned Civil Judge, Depalpur. It was stated in the plaint that the appellant Khustii Muhammad agreed to sell the above stated land for Rs. 1,30,000/- through the sale agreement dated 17.7.1989. Rs. 1,20,000/- was paid to the appellant and the possession of the suit land was delivered to the respondent-Abdus Sattar and it was agreed that on the payment of the remaining sale price, the sale-deed will be executed by 28.7.1989. The suit was contested by the appellant. It was stated that the sale agreement dated 17.7.1989 is a forged document. He also denied receipt of advance money for delivery of the possession of the suit land. On the pleadings of the parties, the following issues Were framed by the learned trial Court-CD Whether the defendant executed an agreement to sell dated 17.7.1989 in favour of the plaintiff after receiving advance money Rs. 1,20,000/-? OPP.

(2) If Issue No. 1 is proved in affirmative whether the plaintiff is entitled for a decree of specific performance of a contract? OPP.

(3) Whether the plaintiff has got no cause of action to bring this suit? OPD.

(4) Whether the defendant is entitled for special costs? OPD.

(5) Relief.

1. The learned Civil Judge while recording finding on Issue No. 1 observed that no receipt of Rs. 1,20,000/- was obtained by the respondent and that it is surprising to note that plaintiff-defendant remained contesting long round of litigation and subsequently came to compromise and executed agreement by defendant in favour of the plaintiff in respect of the same land about which there was litigation.

2. The appeal was filed by respondent Abdus Sattar which was accepted by the learned Additional District Judge on 19.4.1994. It was observed by the learned First Appellate Court:

"that once the appellant had proved the execution of the document Ex.P. 1 the onus shifted on the respondent to rebut it, but no serious effort has been made to substantiate the allegation that the sale agreement Ex.P. 1 contained forged signature of the respondent."

1. The learned counsel for the appellant has argued that well reasoned judgment of the learned Civil Judge, has been set-aside by the learned First Appellate Court without discussing the evidence produced by the respondent-plaintiff. Further argued that the signature on Ex.P. 1, alleged agreement to sell dated 17.7.1989 was never confronted to Khushi Muhammad-appellant, and therefore, the document Ex.P. 1 could have not been exhibited or read in evidence under Article 145 of the Qanoon-e-Shahadat Order No. X of 1984. Further contends that. Abdus Sattar-respondent was tenant under the appellant. He filed suit for possession and lost it up to the High Court. The possession was taken by the appellant with the help of the police. In this view of the matter, one cannot imagine that the appellant will execute an agreement to sell with Abdus Sattar-respondent. Reliance has been placed on the case of Muhammad Sultan vs. Khair Din (PLD 1997 Lah. 1526).

2. Nobody has entered appearance on behalf of the respondent inspite of the fact that the name of his learned counsel has appeared in the cause list.

3. The onus of proving the Issue No. 1 was on the "plaintiff- respondent. Both the marginal witnesses of the agreement are not impartial. They are brother-in-law of the respondent-plaintiff. Ex.P. 1 has been marked and exhibited without formally proving the same, in violation of mandatory provision of Order 13, Rule 4 of the C.P.C. Ex.P. 1 was not put to the appellant Khushi Muhammad and his signature on the document Ex. P. 1 was not confronted. It is well settled rule of law under Article 145 of the Qanoon-e-Shahadat Order that a document will not be read in evidence unless it is confronted to its maker. In case reported as PLD 1997 Lahore 1526, it has been held that a document may not be helpful to the person if it is not confronted under Article 145 of the Qanoon-e-Shahadat Order. It is strange that the plaintiff and the defendant remained contesting long round of litigation and subsequently came to compromise and executed an agreement by the appellant in favour of the respondent in respect of the same suit land which there was litigation. The DW. 2 Deed Writer and Stamp Vendor has not produced the Register of Stamp vending, therefore, adverse inference under Article 14 of the Qanoon-e-Shahadat Order has to be drawn against the respondent-Abdus Sattar for holding the evidence..The learned Additional District Judge, has not recorded any finding on the basis of the evidence of the respondent. I myself has compared the disputed signatures of Khushi Muhammad on the agreement to sell Ex.P. 1, with his 'admitted signatures on his written statement. In view of the Article 33 of the Qanoon-e-Shahadat Order, and the case reported in 1999 SCMR 100, found that the signatures of Khushi Muhammad on the Ex.P. 1 are not similar in characteristics with his admitted signatures on the written statement. The signatures of Khushi Muhammad appellant on Ex.P. 1 agreement to sell are seem to have been forged. It has been settled as a rule of law in case of Muhammad Yousaf Khan vs. S.M. Ayyub (PLD 1973 SC 160), that the documents which are not copies of judicial record should not be received in evidence without proving of signatures and hand writing of person alleged to have signed or written them, even if such a document on the record and exhibited without objection.

4. For what has been discussed above, this appeal is accepted. The judgment and decree of the learned Additional District Judge dated 19.4.1994 is set-aside and decree dated 23.6.1993 passed by the learned Civil Judge, Depalpur, District Okara is restored with costs.

(T.A.F.) Appeal accepted.

PLJ 2003 Lahore 370

Present: maulvi ANWAR-UL-KAQ, J. Mst. ZATOON BIBI etc.-Petitioners

versus

MASHOOQ ALI etc.--Respondents C.R. Nos. 125 and 149 of 1995, decided on 15.2.2002. (i) Pedigree-table-

—Pedigree-table by itself would not be the evidence of relationship and the same has to be corroborated by a party or his witnesses to make the same relevant. [P. 373] B

(ii) Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984)--

—Art. 64-Admissibility of evidence of relationship-Provision of Art. 64 of Qanun-e-Shahadat postulates that opinion, expressed by conduct, as to the relationship of any person who was member of family or otherwise had special means of knowledge on the subject, was relevant. [P. 372] A

SyedZafarAli, Advocate for Petitioners.

Ch. Hafeez Ahmad, Advocate for Respondents.

Date of hearing: 15.2.2002.

judgment

This judgment shall decide C.R. No. 125/95 and C.R. No. 149/95 as they proceed against a common judgment.

1. On 8.5.1980 Respondents Nos. 1 to 3, Abdul Latif, the predecessor-in-interest of Respondents Nos. 14 to 16 (hereinafter to be referred to as the plaintiffs) filed a suit against the petitioners and the other respondents. In the plaint it was stated that Muhammad Siddiq had died before the year 1947 and his estate was mutated in favour of his widow Mst.Tajan under custom; that the said widow migrated to Pakistan and filed a claim form in respect of the said limited estate whereupon the suit land mentioned in para 3 of the plaint was transferred to her. It was stated that the said Mst.Tajan is entitled to 1/8 share as a widow while 1/2 share vests in Mst.Waseela Begum daughter of said Muhammad Siddiq while 3/8 reverts to the residuaries, the plaintiffs. It may be noted here that when the suit was initially instituted the said ladies i.e. the widow and daughter of said Muhammad Siddique were a party to the suit but they died during the pendency thereof and L.Rs. have been brought on record. It was further stated that out of the said land, an area of 78 Kandls10 Mariashas been sold by Mst. Tajan to the petitioners in C.R. No. 149/95 vide registered sale-deed dated 10.3.1980. This sale was stated to be illegal and void being in excess of the widow's share of 1/8 in the land. With these averments a decree for joint possession was sought. The said ladies as well as the petitioners filed separate written statements. They denied that the said plaintiffs have any relationship with Muhammad Siddique deceased. It was also asserted that Mst. Tajan was not the limited owner but was a full owner. Issues were framed, relevant being Issue No. 3 which is being reproduced here:

2. Whether Plaintiffs and Defendants Nos. 3 to 6 are collaterals of Muhammad Siddique?

Evidence of the parties was recorded. The learned trial Court vide decree dated 21.11.1987 dismissed the suit. A first appeal filed by the said plaintiffs was heard by a learned Additional District Judge, Daska who allowed the same on 15.1.1995 and decreed their suit.

1. Against the said judgment and decree dated 15.1.1995 of the learned Additional District Judge, Daska C.R. No. 125/95 has been filed by the petitioners who are heirs of Irshad Ahmad son of said Mst.Tajan while C.R. No. 149/95 has been filed by the said vendees.

2. Syed Zafar Ali, learned counsel for the petitioners argues that in the impugned judgment and decree of the learned Additional District Judge has opted to proceed on the basis of conjectures which is violative'of the law of evidence governing the proceedings. Learned counsel for the plaintiffs/ respondents has tried to support the impugned judgment and decree.

3. I have gone through the copies of the records placed on the files of both the Civil Revisions, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties above in some detail. In the plaint it has not been explained as to how the plaintiffs are related to the said Muhammad Siddique. It has, however, been claimed that they are entitled to the residue i.e. 3/8 share in the suit land which, according to them, is the estate of said Muhammad Siddique. The burden of the said Issue No. 3 obviously was upon the said claimants. Now Mashooq Ali plaintiff appeared as P.W. 1 and proceeded to state that Muhammad Siddique was son of Rahim Bakhsh who was son of Laskhari son of Majlis. Regarding himself he stated that his father was Muhammad Shafi s/o Karim Bakhsh s/o Panah and that Panah and Majlis were brothers. The statement of this witness was recorded on 28.1.1986 when he stated his age to be 50/55 years. He stated that he was 8/10 years of age when Muhammad Siddiq died and by that time his father had died. He admitted that he had not seen Rahim Bakhsh or Lashkari. Regarding the source of knowledge he stated that he had heard about the pedigree. Now regarding Abdul Latif s/o Bholu who is co-plaintiff. He stated that he is not his collateral and is not related to Muhammad Siddique. He does not know the name of his grand-father.

6. The other witness is Abdul Majid, P»W. 4. He is aged 75 years. His statement was recorded on 14.11.1987. He also stated that Muhammad Siddique was son of Rahim Bakhsh s/o Laskhari s/o Majlis while Mashooq Ali etc. are sons of Shafi Muhammad s/o Karim Bakhsh s/o Panah and that Majlis and Panah were brothers. In cross-examination when asked to state his own pedigree-table, he could not remember the same beyond his great grand-father. He had not seen Rahim Bakhsh or Karim Bakhsh. Regarding his source of knowledge he states as follows: When called upon to name the said persons he states that he does not know their names.

1. A plain reading of the statements made by the said witnesses i.e.one of the plaintiffs and the said P.W. 4 would show that apart from the fact that the said statements do not at all prove the relationship between Muhammad Siddique and the plaintiffs, they are wholly inadmissible. Both the witnesses have stated without demur that their evidence is hearsay. Learned counsel for the petitioners is veiy right in complaining that the learned Additional District Judge has thrown the Rules of evidence applicable to the case, to the winds while relying upon the statement of the said witness to hold that Muhammad Siddique was related to the plaintiffs in a manner to enable them to inherit his estate. Article 64 of Qanun-e- Shahadat Order, 1984 (Section 50 of Evidence Act 1872) laid down in absolutely unambiguous terms the parameters for the admissibility of the evidence of relationship. Under the said provision of law it is the opinion, expressed by conduct, as to the existence of such relationship of any person who is a member of family or otherwise has special means of knowledge on the subject, which is relevant. Such an opinion of a witness, if so competent, must be expressed by conduct. In the present case the plaintiff as well as his witnesses have not even claimed any special means of knowledge with reference to the membership of the family or otherwise. Both of them have stated without any demur that they have heard from others about the said relationship. There is thus no question of any expression by conduct, so as to make the said statements relevant.

2. It will also be noted that in the entire evidence there is no mention at all as to who was the father of Panah and Majlis who were stated to be the brothers. I called upon the learned counsel for the plaintiffs/ respondents as to whether he is in possession to disclose the said information. He is unable to do so.

3. Coming to the pedigree table Ex.P. 3, nothing turns on the same for the reason that the document does not disclose as to how Majlis and Panah are connected. Needless to state that by now it is well settled that a pedigree table by itself is not the evidence of relationship and has to be corroborated by a party or his witnesses to make the same relevant.

4. It is in the said state- of evidence on record that the learned Additional District Judge has proceeded to observe as follows in para 18 of the impugned judgment:

"18. So far as the paternity of Majlis and Panah is concerned, I am of the view that the said persons have been shown in one and the same pedigree-table and on account of some mistake of Revenue department of India and Pakistan, their paternity has not been shown in it and it should not be allowed to discard the oral evidence of the plaintiffs. Consequently, I rely upon the statements of PW. 1 and PW. 4 and I hold that the appellants and the proforma respondents are legal heirs/collaterals of Muhammad Siddique."

In the light of evidence on record the'said observations, to say the last, are perverse.

1. The findings of the learned Additional District Judge as to the nature of the estate being held by Mst. Tajan are also not supported by the evidence on record. The basis for the allegation that Mst.Tajan held a limited estate vis-a-vis., the land transferred to her, was the fact stated in the plaint that on the death of Muhammad Siddique land had been mutated in favour of Mst. Tajan under custom. Before proceeding further I may state here that there is no evidence on record regarding the ownership of land in India vis-a-visMuhammad Siddique or the said lady. Be that as it may, it was for the plaintiffs to prove their case as pleaded by them in the plaint. Now Mashooq Ali plaintiff (PW. 1) has stated that the parties were governed by Islamic Law even in India and so is the statement of Abdul Majid, PW. 4. Despite the said facts coming from the horse's mouth the learned Additional District Judge insists that the parties were governed by custom. Learned Additional District Judge has thus acted without lawful authority in reversing the findings of the learned trial Court on Issue No. 2.

2. For all that has been discussed above, the impugned judgment and decree of the learned Additional District Judge squarely falls within the mischief of Section 115 CPC and cannot be sustained. Both the Civil Revisions are accordingly allowed. The judgment and decree dated 15.1.1995 of learned Additional District Judge, Daska is set aside while the one passed by the learned trial Court on 21.11.1987 dismissing the suit of the plaintiffs/ respondents is restored with costs throughout.

(T.A.F.) Revision accepted.

PLJ 2003 Lahore 374

Present: mian SAQIB nisar, J. Mst. FATTAIN-Petitioner

versus

MUHAMMAD ASLAM etc.-Respondents C.R. No. 2098 of 1995, heard on 28.1.2002.

Shamilat--

-—Partition of--Entitlement of proprietary body-Partition of Shamilat is to be made on the basis of land revenue assessed to the holding of the co- sharers of the Shamilat--In earlier round of litigation between two main tribes of the village Shamilat had been partit ioned on the basis of revenue assessed on the holdings. [Pp. 375 & 376] A

Ch, Abdur Rashid Gujjar, Advocate for Petitioner.

Mr. Muhammad Farooq Qureshi,Advocate for Respondents.

Date of hearing: 28.1.2002.

judgment

Dispute between the parties relates to the entitlement of ShamlatDeh. Suit filed by the respondents for declaration, claiming the rights on the basis of Hasb-e-RasadZar-e-Khewat was dismissed by the trial Court, videjudgment and decree dated 15.1.1993. Appeal filed by the respondents was accepted on 27.7.1995 and the said suit was decreed.

1. Briefly stated the facts of the case are, that the parties are at discard about their entitlement qua the division of Shamlat Deh,measuring 15 Kanalsand 5 Marias, situated in village Doda, Tehsil Bhalwal, District Sargodha, which was jointly owned by the propriety body of the village. Consolidation proceedings in the village commenced somewhere before 1972. The Consolidation Officer, partitioned the ShamlatDeh on the basis of Hasb-e-Rasad Khewat, impugned by the respondents through appeal, which was allowed by the Commissioner, vide order dated 17.2.1971 and it was directed that sucn partition must be on the basis of Hasb-e-RasadZar-e-Khewat.Against the aboye, the petitioner preferred an appeal, which was accepted by the learned Additional Commissioner Consolidation, Sargodha, but with the direction that the aggrieved party, should approach the Civil Court for the determination of their entitlement and distribution. In this background, the respondents filed a suit, which as mentioned above, was disallowed, but the appeal has been accepted. The only dispute between the parties, is about the scale of division Le. whether on the basis of Hasb-e-RasadKhewat or Hasb-e- Rasad Zar-e-Khewat.

2. Learned counsel for the petitioner contends, that according to Misal Haqyyat for the year 1892-93 (Ex. D-4) and Jamabandifor the year 1901-02, the partition of the Shamlatbetween two groups of the propriety body was made on the basis of Hasb-e-RasadKhewat, but the subsequent Jamabandifor the year 1905, contemplates Hasb-e-Rasad Zar-e-Khewat, which entry continued till 1934 except Jamabandifor the year 1910. After 1934, the entries in the Jamabandi, again were changed and Hasb-e-RasadKhewatwas entered and this continued till 1962-63, whereafter, no change was made when ultimately the consolidation proceedings commenced, thus, on the latest Jamabandi, the consolidation authorities rightly proceeded to divide the Shamlaton the basis of Hasb-e-RasadKhewat and this is the factual and true legal position as well; the learned trial Court, has properly appreciated the evidence on the record, but the learned Appellate Court has misread the evidence. It is also submitted, that the entry in the revenue record on the basis of Hasb-e-Rasad Khewat, are since long standing and such entries, could not be changed by the revenue authorities without there being any legal order to the effect; as there is no such order, therefore, the change brought during certain period from Hasb-e-RasadKhewat to Hasb-e-RasadZar-e-Khewat, is illegal and unlawful. It is further submitted, that the order of Ganga Ram, the Collector, which has been made the basis of the judgment, by the Court of appal, has no relevance, because such order pertained to the division of Shamlat between two groups of the propriety body i.e. Tullas and Gondals. It is also argued, that the Appellate Court, has heavily relied upon Mutation No. 232, but there is no order of the competent authority on record to back/support the mutation on account of which the same could be shown to have been attested.

3. Conversely, learned counsel for the respondents, by relying upon the judgments reported as Sunder and others vs. Inder Singh (Lai) andothers (AIR 1935 Lahore 446), DasondhiKhan and others vs. JanMuhammad and others (AIR 1938 Lahore 318), Karim Bakhsh and others us.The State (PLD 1980 Revenue 55) and Mitha, and others vs. GhulamHussain, and others (PLD 1989 Lahore 46), contends that notwithstanding about the nature of the entry, may it be Hasb-e-RasadKhewat or Hasb-e- Rasad Zar-e-Khewat, as these are interchangeable terms, the division of Shamlat in either of the two cases has to be according to the revenue assessed on the holdings. It is also submitted, that actually Mst.Fattan, the original petitioner, is the successor of Jallu son of Boota, the revenue authorities assessed the land of the Jallu at the rate of Rs. 5.1 (Rupees Five and One Aana), and Mst. Fattan has only inherited to the extent of very meagre share whereas the other legal heirs of Jallu as also his collaterals and other members of the propriety body, have already accepted the mode of partition, as has been held by the Court of appeal.

4. I have heard the learned counsel for the parties and find, that the entries of Hasb-e-Rasad Khewat and Hasb-e-Rasad Zar-e-Khewat,in fact, are interchangeable terms and do not have much significance when the entitlement of the propriety body of the village for the purposes of partition of Shamlat is under consideration. In this regard, the judgments relied by the learned counsel for the respondents, are very clear, thus, applying either of the two rules, the partition of the Shamlat is to be made on the basis of the land revenue assessed to the holding of the co-sharer of the Shamlat. The judgment of the learned Court of appeal is absolutely in line with the above principle and is based upon the proper interpretation of the entries. Moreover, in the earlier round of litigation between the Tullas and Gondals, Ganga Ram, the Collector, had also partitioned the Shamlatin between these two groups, on the basis of revenue assessed on the holdings. Furthermore, as has been argued by the respondents side, that Mst. Fattan has a very meagre share in the Shamlatand it seems that the other legal heirs of Jallu, had already accepted the scale of partition, therefore, for such small sharej the settled division should not be upset.

5. In the light of above, the other contentions of the learned counsel for the petitioner, do not have much relevance for the disposal of this revision, because as held earlier, the petition is being decided mainly on the question, that the partition has to take place on the basis of the revenue assessed on the holdings and this is exactly what has been done by the learned Court of appeal. This revision petition, thus, has no merits and is hereby dismissed.

Revision dismissed.

PLJ 2003 Lahore 376 (DB)

Present: maulvi anwar-ul-haq & mian hamid farooq, JJ.

Mst. AISHA BIBI-Appellant

versus

ABDUL HAMEED etc.-Respondents R.F.A. No. 32 of 1991, heard on 14.1.1002.

Transfer of Property Act, 1882 (IV of 1882)--

—-S. 53-A-Sale agreement-Execution of-Quantum of proof-Document in question, does not show as to who purchased stamp paper and when the same was purchased-Scribe of document admitted in the Court that he had been convicted twice for forging agreements-Scribe could not explain as to how he knew alleged vendor-Examination of document in question, revealed that scribe had attempted to adjust the writing in accordance with the placement of thumb-impressions of alleged vendor on the document—Valid execution of agreement of sale and receipt of earnest money were not proved in circumstances. [Pp. 378 & 379] A, B

Mr. Muhammad Sharif Chohan, Advocate for Appellant. Mr. Muhammad Yaqoob Sabir, Advocate for Respondents.

Date of hearing: 14.1.2002, judgment

On 16.4.1984 Respondent No. 1 filed a suit against the appellants and Respondent No. 2. In the plaint it was stated that Respondent No. 2 is the owner of suit property measuring 200 Sq.ft. Bearing No. P-98 in Ward No. 6, Chak No. 212-RB, Faisalabad municipal limits and agreed to sell the same to Respondent No. 1 for a consideration of Rs. 3,00,000/-. He received a sum of Rs. 50,000/- by way of earnest money and executed an agreement and a receipt on 16.8.1993. The balance amount of Rs. 2,50,000/- was to be paid by 15.4.1984 when the sale-deed was to be executed and registered; that the basement and ground floor was delivered to Respondent No. 1; that towards the end of March, 1984 Respondent No. 1 came to know that Respondent No. 2 had executed a power of attorney in favour of the appellants; that on 12.4.1984 it revealed that Respondent No. 2 had gifted away the suit property to the appellants on 29.3.1984 and got a gift-deed registered on 10.4.1984. With these averments a decree for specific performance of the said agreement was prayed for. The suit was resisted by the appellants and Respondent No. 2 by filing a joint written statement. Respondent No. 2 by filing a joint written'statement. Respondent No. 2 denied having entered into any agreement of sale with Respondent No. 1 or to have executed the said documents. It was stated that Respondent No. 1 who is son of Respondent No. 2 represented that a challan has been made regarding encroachment vis-a-visthe shade of the suit properly and that some settlement is to be made and obtained his thumb impressions on a plain paper. Respondent No. 2 denied having receiving any money from Respondent No. 1; that criminal cases have been lodged in this regard. He affirmed that he had gifted away the property to his wife, the appellant and had delivered possession to her. Regarding the possession it was stated that Liaqat Ali is a tenant in the shop as also in the basement, to whom a notice under Section 13-A of the Punjab Urban Rent Registration Ordinance, 1959 has been issued by the appellants; that earlier the Respondent No. 1 got filed a fabricated suit in the name of Respondent No. 2 which has since been dismissed on the statement of Respondent No. 2. Following issues were framed by the learned trial Court:--

1. Whether the suit has gone infructuous after registered gift of the suit property in favour of Ms?. Aisha Bibi? OPD.

2. Whether the suit is barred by res-judicatalOPD.

3. Whether the plaintiff lacks cause of action? OPD.

4. Whether the plaintiff is estopped by conduct? OPD

5. Whether the plaintiff lacks locus standito challenge registered gift-deed in dispute? OPD.

6. Whether the suit is frivolous and defendants are entitled to recover special cost from the plaintiff? OPD.

7. Whether the thumb-impression of Din Muhammad, the Defendant No. 1 of this suit were obtained on receipt and agreement of sale dated 16.8.1983 by the plaintiff in a fraudulent manner as alleged in para (2) (Factual) of the written statement?.OPP.

7-A

If Issue No. 7 is not proved, whether the agreement of sale is bad for want of consideration in as much as Rs. 50,000/- were not received by the Defendant No. 1 as advance money? OPP.

7-B Whether the plaintiff is entitled to a decree of specific performance, if so, on what terms and conditions? OPP.

1. What is the effect of registered gift-deed of the suit property in favour of Mst. Aisha Bibi? OPP.

2. Relief.

Evidence of the parties was recorded. All the issues were found by the learned trial Court in favour of Respondent No. 1 and the suit was decreed vide judgment and decree dated 16.2.1991.

1. Learned counsel for the appellants contends that the pleadings as well as the evidence on record has been misread by the learned Courts below. According to the learned counsel, Respondent No. 1 failed to prove that Respondent No. 1 had validly executed the sale agreement in his favour and that he had received the part of consideration amount. Learned counsel for Respondent No. 1, on the other hand, supports the impugned judgments and decrees and primarily relied upon the admission on the part of Respondent No. 2 in the witness box that the documents Ex.P. 1 & P. 2 bear 'his thumb impressions.

2. We have gone through the records of the learned trial Court, with the assistance of the learned counsel for the parties. The examination of the record reveals that earlier on 2.10.1984 the learned Senior Civil Judge, Faisalabad framed the following issue on merits:-

3. Whether Din Muhammad executed sale agreement and receipt of payment dated 16.8.1983 in respect of the suit property; received earnest money Rs. 50,000/- and delivered possession of a portion of the suit property in token thereof. If so, whether he is entitled for specific performance of the sale agreement on payment of arrears of sale price Rs. 2,50,000/-? OPP.

It further appears that thereafter the case was transferred to the Court of learned Civil Judge, 1st. Class, Faisalabad who had been adjourning the case for recording the evidence of Respondent No. 1 for several dates. On 29.3.1986 the learned Civil Judge on his own proceeded to examine the pleadings and the issues and struck off the said Issue No. 7 and proceeded to frame Issues Nos. 7, 7-A & 7-B as reproduced above. We find that the said issues have been framed in utter disregard of the pleadings of the parties. Respondent No. 2 never admitted that he thumb marked the agreement and the receipt which are Ex.P. 1 & P. 2 respectively. On the other hand, his case was that he had never entered into any agreement for sale and had not received any part of the consideration from Respondent No. 1. He also stated that he never purchased the stamp paper for the agreement. He then explained that Respondent No. 1 who is his son got his thumb-impressions on plain papers to settle the matter of encroachment challan. The said averments have been read by the learned trial Court as if the case of Respondent No. 2 was that his thumb-impressions were got obtained on the agreement of sale and the receipt as allegedly scribed. The result "of the said misreading is that Respondent No. 1 stood absolved of the burden to prove valid execution of the agreement and the receipt. The impugned judgment clearly gives the impression that the learned trial Court has proceeded on the assumption that the agreement and the receipt stood validly executed and that it was for Respondent No. 1 to prove that some fraud has been played in the matter. Of course the duty of the appellants and Respondent No. 2 was to rebut any evidence that might have been led to prove execution of the two documents but this was primarily the burden of Respondent No. 1. We also find that it remains unquestioned that Din Muhammad, Respondent No. 2 when he entered the witness box was 100 years of age. He reiterated his version that there was no agreement of sale and no earnest money had been received by him. It is on record that he has two sons, including Respondent No. 1, from the first wife while the appellant is his second wife who had borne him three sons and three daughters. No reason is forthcoming on record as to why would a 100 years old man decide to sell his property and that too to his son at the fag end. It has not at all been suggested to him that he purchased the stamp paper otherwise also there is no evidence at all on record of the purchase of stamp paper. There is no thumb-impression of the purchaser of the stamp paper at the back of the document Ex.P. 1. It is true that Din Muhammad, Respondent No. 2, D.W. 3 did admit that the agreement and the receipt bear his thumb impressions but at the same time he reiterated that he had not agreed to sell the property to Respondent No. 1. It may be stated here that it was suggested to him that he agreed to sell the property to Respondent No. 1 for Rs. 2,50,000/-. There is no such transaction pleaded by Respondent No. 1 and it is not at all clear as to whether D'.W. 3 was in fact confronted with the documents Ex.P. 1 & P. 2. Respondent No. 3 also denied in the witness box having received any money from Respondent No. 1.

1. Muhammad Siddique, P.W. 1 is the scribed. According to his own showing he had been convicted at least twice for forging agreements. He has not at all explained as to how he knew Din Muhammad. He was confronted with the two documents, particularly Ex.P. 2, the receipt with the suggestion that he had attempted to fit in the contents of the documents so as to adjust the thumb-mark of Respondent No. 2 appearing on the same. His explanation was that since only a few words were to be scribed he wrote the document in the said manner. However, upon examination it does appear that the thumb-impressions were already there and the document was so written to adjust the writing in accordance with said thumb impressions.

2. We have already stated above that there is not a word on the record as to who purchased the stamp paper for Ex.P. 1 and when it was purchased. Examination of this document also reveals that the scribe had attempted to adjust the writing in accordance with the placement of the thumb-impressions of Respondent No. 2 on the said document.

3. So far as Qaid Jalil, P.W. 3 is concerned, he was unable to tell as to how many children Din Muhammad had although he claimed to know him for 20 years. He was not even able to say as to whether Din Muhammad is 125 years of age. It is thus evident that the witness did not know Din Muhammad.

4. Learned trial Court also failed to take note of the fact apparent on record that the poor old man was made a pendulum between his said son on the one hand and the wife on the other. This is evident from the copies of the plaints filed by Respondent No. 1 himself. The present suit was filed on 16.4.1984 while on 30.4.1984 the said plaint Ex.P. 3 was filed in Court challenging the gift-deed in favour of the appellants and at the same time stating that Respondent No, 2 had agreed to sell the property to Respondent No. 1 and that he is bound by the terms of the said agreement. This suit was filed through Mian Siddique Anwar, Advocate. Vide Ex.P. 10 he engaged Ch. Muhammad Sharif, Advocate on 19.5.1984 and withdrew the suit vide order dated 28.5.1984. Again on 7.3.1985 a verbatim reproduction of the said plaint was filed through same Mian Siddique Anwar, Advocate. This time he again engaged Ch. Abdul Aziz, Advocate and withdrew the suit on 23.4.1985, yet another plaint was filed on 29.6.1985 through the same Mian Siddique Anwar, Advocate and the suit was dismissed as withdrawn on 6.7.1989.

5. Having thus examined the record we are of the opinion that a valid execution of agreement Ex.P. 1 and receipt Ex.P. 2 and the receipt of earnest money by Respondent No. 2 has not been proved on record. The findings of the learned trial Court on Issues Nos. 7, 7-A & 7-B are accordingly reversed. Under Issue No. 1 we hold that the suit would not have rendered infructuous upon the registration of the gift-deed in favour of the appellants. Under Issue No. 8 we hold that a registered gift-deed would not be having any effect on the merit of the case as pleaded in the plaint subject to proof of facts which have not been proved. Findings on Issues Nos. 2, 3 & 4 are affirmed. Under Issue No. 5 we hold that upon proof of the allegations in the plaint, the plaintiff would be having a locus standi to challenge the gift. Findings on Issue No. 6 are also upheld.

6. As a result of the above discussion, this RFA is allowed and the judgment and decree dated 16.2.1991 of the learned trial Court is set aside leaving the parties to bear their own costs.

(T.A.F.) Appeal accepted.

PLJ 2003 Lahore 381

Present: MUHAMMAD SAIR ALI, J.

M/s. SlALKOT DAIRIES LTD. and 9 others-Petitioners

versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and 3 others-Respondents

T.A. No. 421-C of 2001, decided on 12.3.2002. (i) Civil Procedure Code, 1908 (V of1908)--

—S. 24-Financial Institutions (Recovery of Finances) Ordinance, 2001, Ss. 2(b)(ii) & 5--Transfer of suit pending before Banking Court to High Court under S. 24 C.P.C.-Effect-Where High Court under S. 24 of C.P.C. transfers Banking suit pending in Banking Court to itself for trial, such suit upon transfer would presumably become triable by the High Court-Such suit cannot, upon transfer, become triable by High Court as Banking Court under provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, because of clear jurisdictional bar placed on High Court as Banking Court under S. 2(b)(ii) of the Ordinance of 2001.

[P. 384] A

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

—S. 24-Transfer of case pending before Banking Court to High Court-­Provision of S. 24 of C.P.C.-Applicability-High Court while acting under Banking Jurisdiction acts as Banking Court and not as High Court-Provision of S. 24 of C.P.C., therefore, would not apply to Banking Court as constituted in High Court-Provision of S. 24 of C.P.C. applies and confers jurisdiction on the High Court or District Court only. [P. 384] B

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

—S. 24-Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 5(3)-High Court's general power of transfer cannot be exercised to transfer Banking case from Banking Court to itself as High Court for trial-Only power that can be exercised in such case is the one granted to High Court is under S. 5(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001. [P. 384] C

Mr. Hamid Khan, Advocate for Petitioners.

Mr. Jehanzeb Khan Bharwana, Advocate for Respondents.

Date of hearing: 12.3.2002.

order

Through this petition, transfer of the suit titled "Agricultural Development Bank of Pakistan vs. M/s Sialkot Dairies Ltd., and others" pending before the learned Banking Court, Gujranwala, is sought to be transferred to this Court under Section 5(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with Section 24 of CPC. The suit sought to be transferred for trial to this Court was filed by ADBP for recovery of Rs. 58,60,003/- against M/s. Sialkot Dairies Ltd. and others i.e. the petitioners. Another suit i.e. COS No. 5/1995 titled "ADBP vs. Sialkot Dairies Ltd. and others" for recovery of Rs. 12,80,45,876/- was also filed by Agricultural Development Bank of Pakistan against the same defendants (except two others defendants) in this Court under Banking jurisdiction and the same is presently pending.

1. The main ground raised in the transfer application and urged at the bar by the learned counsel for the petitioners is that both the suits are mainly between the same parties seeking enforcement of the same securities and oral as well as documentary evidence in both the suits shall be the same. And that interest of justice, convenience of parties and witnesses justify transfer of this suit from Banking Court, Gujranwala to this Court and by trial of both the suits together in the High Court acting as a Banking Court. It is further contended that effect of Section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with Section 7 thereof that Section 24 of the Civil Procedure Code will also become applicable to cross the bar of pecuniary jurisdiction to withdraw the case from the Banking Courts, Gujranwala to this Court. Contrarily, learned counsel for the respondents-Bank contended that Section 2(b) of the Ordinance of 2001 defines Banking Court with reference to pecuniary limit of 50 million rupees and above and that in respect of a case in which claim does not exceed 50 million rupees, only Courts established under Section 5 ibid by the Federal Government enjoy the jurisdiction- and in respect of other cases (exceeding Rs. 50 million), High Court has been given the jurisdiction as Banking Court and the jurisdictional bar cannot be waived.

2. I have considered the arguments of the learned counsel for the parties and have also examined the plaints in two cases. Civil suit titled "ADBP vs. Sialkot Dairies etc' for recovery .of Rs. 58,60,003/- relates to mark-up based financial facility and was initially filed before the Banking Tribunal at Lahore under the Banking Tribunals Ordinance, 1984. Upon promulgation of Banking Companies (Recoveiy of Loans, Advances, Credits and Finances) Act, 1997, the suit must have been transferred to the relevant Banking Court which is now trying under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. Suit Bearing COS No. 5/1995 titled "ADBP vs. Sialkot Dairies etc" for recovery of Rs. 12,80,45,876/- was filed to recover interest loan alongwith interest etc. This suit was initially filed before this Court under the Act of 1997 and is now being dealt with under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001,. Gujranwala's suit involves recovery of mark-up based finance while the suit pending in this Court involves interest based loan. The subject matter of both the suits is thus obviously different and distinct.

3. The law applicable to both the suits now of course is Financial Institutions (Recovery of Finances) Ordinance, 2001, which in its Section 2(b) defines the Banking Court as under: "Banking Court" means-- (i) in respect of a case in which the claim does not exceed fifty million rupees or for the trial of offences under this Ordinance, the Court established under Section 5; and (ii) in respect of any other case, the High Court."

4. Under the above reproduced Section, Banking Court has been defined and categorized with reference to its pecuniary limit. For suits involving recovery upto an amount of Rs. 50 million, the Court of competent jurisdiction is the Banking Court established under Section 5 of the said Ordinance of 2001 while in respect of any other case, High Court has been designated as a Banking Court to enjoy jurisdiction in suits for recovery of amounts exceeding 50 million rupees. The purpose of defining jurisdiction of the respective Banking Courts with reference to pecuniary limit is obvious. High Court as Banking Court cannot deal with "any other cases" except those in which claim exceeds 50 million rupees while for claims not exceeding 50 million rupees, jurisdiction has only been confined to the Banking Court established under Section 5 thereof. Pre-condition for transfer of a case from one Court to the other is that the transferee Court should also be,competent and possessed with jurisdiction to try such a case. Even Section 24 of the Civil Procedure Code emboies the same principle. Since under Section 2(b)(ii) of the special statute i.e. Ordinance of 2001, High Court as Banking Court is not vested with jurisdiction to tiy a suit below the monetary slab of fifty million rupees, a suit for recovery of amount less than 50 million rupees, cannot be transferred to it. However, with reference to Section 24 CPC, it can be argued that bar of competence/jurisdiction prescribed in sub-section (l)(a) and l(b)(ii) and of Section 24 CPC applies only to intra subordinate Court transfers and not to the High Court which upon withdrawing a case from a sub-ordinate Court can try it itself by assumption of such jurisdiction on transfer. To my mind, this principle by analogy cannot be employed to civil suits initiated and tried under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. If High Court under Section 24 of the Civil Procedure Code transfers a Banking suit pending in a Banking Court, to itself for trial, such suit, upon transfer may presumably become triable by the High Court. Such suit cannot, upon transfer, become triable by the High Court as Banking Court under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 because of the clear jurisdictional bar placed on High Court as Banking Court under the above reproduced Section 2(b) ibid.The object and prayer of the petitioners shall thus obviously be defeated because they are seeking trial of both the suits together under the Banking jurisdiction of the High Court.

5. The law is fairly settled that while acting under the Banking jurisdiction, this Court acts as the Banking Court and not as the High Court. Whereof, Section 24 of the Civil Procedure Code cannot be said to apply to a Banking Court as constituted in the High Court, Section 24 PPG applies and confers powers of transfer on the High Court or the District Court only.

6. The argument of the learned counsel for the petitioners is that this Court can exercise powers of transfer both under Section 24 of the Civil Procedure Code as well as under Section 5(3) of the Ordinance of 2001 .There is no doubt that Section 24 of CPC confers powers of transfer on the High Court and so does 5(3) of 2001 Ordinance. There is, however, an obvious distinction and independence of two statutory powers. Section 24 of CPC gives powers to the High Court to transfer any suit etc to any Court subordinate to it or withdraw any suit etc pending in any Court subordinate to it for trial or disposal of the same itself or by any other Court, so upon transfer, it is the High Court that may tiy the same itself. However under Section 5(3) of the Financial Institutions (Recoveiy of Finances) Ordinance, 2001, High Court has been empowered to transfer "any case from one Banking Court to another". Such power of transfer is thus exercisable under the special Statute only to transfer a Banking case from one Banking Court to another Banking Court, only if, as per the opening words of sub-section (3) of Section 5 ibid, "where more Banking Courts than one have been established in the same or different territorial limits". As such, High Court under its general power of transfer under Section 24 of the Civil Procedure Code, cannot transfer a Banking case from a Banking Court to itself as High Court for trial. High Court will have no jurisdiction in view of exclusively of jurisdiction of Banking Courts established un'der the provisions of Financial Institutions (Recoveiy of Finances) Ordinance, 2001. In my opinion, therefore, Section 24 of CPC does not apply and is not available to the High Court for exercising powers of transfer quasuits filed under the Ordinance of 2001. The only power that can be exercised is the one granted to the High Courts sub-section (3) of Section 5 of the Ordinance of 2001.

7. The question arising for determination is whether exercising power under sub-section (3) of Section 5 ibid, can the High Court withdraw/lift/transfer a suit involving claim less than 50 million rupees to its Banking Court for trial from a Banking Court of competent jurisdiction. It requires re-reference to above reproduced definition of the Banking Court as given in Section 2(b) of the Ordinance of 2001. Under clause (i) of Section 2(b) ibid in respect of a case in which claim does not exceed 50 million rupees, the Banking Court having jurisdiction shall be the Court established under Section 5 of the Ordinance of 2001, which is reproduced as under: "Establishment of Banking Court.-(l) The Federal Government may, by notification in the official Gazette, establish as many Banking Courts as it considers necessary to exercise jurisdiction under this Ordinance and appoint a Judge for each of such Courts and where it establishes more Banking Courts than one, it shall specify in the notification the territorial limits within which each of the Banking Courts shall exercise its jurisdiction.

(2) Where more Banking Courts than one have been established to exercise jurisdiction in the same territorial-limits, the Federal Government shall define the territorial-limits of each such Court.

(3) Where more Banking Courts than one have been established in the same or different territorial limits, the High Court may, if it considers it expedient to do so in the interest of justice or for the convenience of the parties or of the witnesses, transfer any case from one Banking Court to another.

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

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

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

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

(8).....................................

(9) ...................................

(Under lining for emphasis is mine)

1. The bare reading of above reproduced Section 5 reveals that Federal Government, in exercise of powers under this Section, establishes Banking Courts and appoints Judges for such Banking Courts and specifies their respective territorial-limits through relevant notifications. – Where Federal Government establishes "more Banking Courts than one", it defines their territorial-limits and if "more Banking Courts than one have been established to exercise jurisdiction in the same territorial-limits' the Federal Government defines the territorial-limits of each such Court. Banking Court so established by Federal Government exercises powers under Section 2(b)(i) ibid over suits not exceeding Rs. 50 million. High Court which tries "all other cases" as Banking Court does not fall within this category of the Banking Courts because High Court is not established under Section 5 of the Ordinance of 2001. To say the least, High Court has been set-up and established under Article 175 of Chapter-I, Part VII of the Constitution of Islamic Republic of Pakistan, 1973. Constitution of High Court and appointment of High Court Judges and establishment of its Benches is regulated by Articles 192 to 198 of Chapter-Ill of the Constitution of Islamic Republic of Pakistan, 1973. Further-more, above said Article 175 provides that "there shall be a Supreme Court of Pakistan, High Court for each Province and such other Courts as may be established by law". The Constitution of Islamic Republic of Pakistan thus visualizes establishment of "High Court for each Province". As such, there cannot be more than one High Court for each Province. It goes without saying that each High Court established in the Province may, under Article 198, have its Benches and circuit Courts, while the Lahore High Court under Article 198(3) "shall have a Bench each at Bhawalpur, Multan and Rawalpindi."

2. Provisions of above reproduced sub-section (3) of Section 5 of the Financial Institutions (Recoveiy of Finances) Ordinance, 2001, if read in above given perspective makes the position of law rather clear. This sub­section relates to High Court's power to transfer any case from one Banking Court to another" where more Banking Courts than one have been established in the same or different territorial-limits". High Court's power to transfer only comes into play "where more Banking Courts than one have been established". Such'Courts are obviously established by the Federal Government under sub-section (1) of Section 5 ibid.Each of the sub-sections while referring to plurality of Banking Courts use identical words, i.e. "Where more Banking Courts than one have been established". The obvious conclusion, therefore, is that under above said sub-section (3) of Section 5 ibid,High Court's power of transfer is confined to exercising the same for transfer of cases from one Banking Court to the other as established under sub-section (1) of Section 5 and defined in Clause (i) of sub-section (2)(b) of the Ordinance. Such power cannot, therefore, be enlarged to include transfer of a case from such Banking Court to the High Court acting as Banking Court as defined in Clause (ii) of sub-section (2)(b) of the Ordinance of 2001. The power of transfer as provided to the High Court in sub-section (3) of Section 5 ibid is not available and cannot be exercised to transfer of a case to the High Court in its Banking jurisdiction. This petition is, therefore, dismissed with no order as to costs.

(T.A.F.) Petition dismissed.

LJ 2003 Lahore 387 (DB)

Present: maulvi anwar-ul-haq and mian hamid farooq, JJ.

FECTO SUGAR MILLS LTD. through its DIRECTOR DISTT. BHAKHAR-Petitioner

versus

GOVERNMENT OF PAKISTAN through SECRETARY MINISTRY OF

FINANCE OF ECONOMIC AFFAIR ISLAMABAD

and others-Respondents

W.P. No. 12519 of 1996, decided on 19.2.2002. Central Excise and Salt Act, 1944 (1 of 1944)--

—Sched.-Constitutional petition-Factory manufacturing sugar in financial year exceeding from average production in that factory for preceding three years, such excess quantity of sugar would be exempted from payment of excess duty-Petitioners were allowed to clear excess stock, on payment of duty prescribed in S.R.O. No. 545(l)/94 and conditions mentioned in S.R.O. No. 476(l)/95 as to the operation of the mills for the period prescribed therein, would not be applicable to stocks that were manufactured in excess in terms of S.R.O. No. 545(1) 94. [P. 392] A

1992 SCMR 1652; 2000 SCMR 1266; 1992 SCMR 1652 ref.

Mr. Hamid Khan, Advocate for Petitioner. Mr. A. Karim Malik,Advocate for Respondents. Date of hearing: 31.1.2002.

judgment

Maulvi Anwar-ul-Haq,J.-This judgment shall decide several writ petitions categorised hereinafter. The reasons for the categorization will be forthcoming while we deal with each category of cases:—

CATEGORY-I.

I. W.P. No. 12519/96 2. W.P. No. 14750/95 , 3. W.P. No. 5019/96 4. W.P. No. 18715/95

1. W.P. No. 16999/95 6. W.P. No. 16415/95

2. W.P. No. 7881/84 8. W.P. No. 15647/95

9/W.P. No. 1784/95 10. W.P. No. 2982/96

II. W.P. No. 12876/95 12. Vf'.P.No. 15596/95

1. W.P. No. 15959/96 14. W.P. No. 12225/97.

CATEGORY-II.

1. W.P. No. 3858/89 2. W.P. No. 4583/89 3. W.P. No. 5299/89 4. W.P. No. 3857/89

5.W.P. No. 5219/89 6. W.P. No. 5069/89 7.W.P. No. 3856/89

CATEGORY-m.

1. W.P. No. 2709/95 2. W.P. No. 7958/91 3. W.P. No. 13801/94 4. W.P. No. 7686/91 5. W.P. No. 8541/91 6. W.P. No. 8542/91 7. W.P. No. 8802/91 8. W.P. No. 3048/92 9. W.P. No. 6774/92 10. W.P. No. 7908/92 11. W.P. No. 5382/94 12. W.P. No. 11376/97

CATEGORY-I CASES:

1. In all these cases the writ petitioners stated that they are engaged in the manufacture/production of cane sugar; that vide an SRO No. 376(I)/94 dated 10.5.1994, the Federal Government amended Notification No. SRO No. 500(I)/93, dated 14.6.1993 whereby against Item 02.02 in the table of the said Notification dated 14.6.1993, the existing entires were substituted as follows:-

(f) Sugar manufactured in a factory in One Rupee & eight excess of average production that paisas per Kg. factoiy in the preceding 3 years.

1. This was followed by a Notification Bearing No. SRO 545(I)/94 dated 9.6.1994 granting an exemption in the same manner against heading 1701.000 in the 1st Schedule to the Central Excise and Salt Act, 1944. According to the writ petitioners they geared up the resources and by putting in extra efforts they produced sugar during the crushing season, 1994-95 in excess of the previous three years average production and thus becoming eligible for the said benefit i.e. the payment of duty at a rate 50% less than payable on the normal production, requested for clearance of the said excess stocks on payment of duty prescribed in the said Notification. The cases were processed and ultimately the clearance was allowed but later was withdrawn with reference to Notification No. SRO-476/95 dated 14.6.1995. By virtue of the said Notification, the following amendment was made in the said SRO No. 545(I)/95 dated 9.6.1996: "Cane sugar 1701.1100 If manufactured One rupee and fifty in a financial year in excess of the eight paisa per Kg. average annual production of cane sugar in that factoiy in the preceding three financial years provided that the factoiy operated for a period not less than 150 days for rushing, in each of the preceding financial years, for production of cane sugar."

2. The ground taken by the respondent Department for refusing the said benefits precisely was that since the petitioners Mills have not operated for a period of not less'than 150 working days in each of the three preceding financial years, the excess stock of sugar cannot be cleared on the said concessionary rates.

3. The writ petitioners in these cases have denied the factual allegation that the mills had not operated for 150 days during the relevant three years. However, a common question arising in these writ petitions is as to whether or not the exemption granted vide an SRO No. 545(I)/94, dated 9.6.1994 be subjected to conditions retrospectively so as to derogate from the benefit available to the etitioners under the said former SRO.

4. The matter has already been dealt with by the Supreme Court of Pakistan in case of Messrs Army Welfare Sugar Mills Ltd. vs. Federation of Pakistan (1992 SCMR 1652) while dealing with the similar question in the matter of withdrawal of exemption from payment of excise duty granted vide a Notification SRO No. 555(I)/79 dated 28.6.1979, as amended by SRO No. 560(I)/82 dated 14.6.1982, by means of SRO No. 555(I)/89, dated 3.6.1989, the relevant observations of the Honourable Supreme Court of Pakistan appear in Paras 53 and 55 of the judgment at Pages 1697 to 1699 of the said report. It was held that the said SRO No. 560(I)/82 contains standing representations to the effect that if a factory would manufacture sugar in a financial year exceeding from the average production in that factoiy for the preceding two years, such an excess quantity of sugar shall be exempted from the payment of excess duty. The relevant category of cases was disposed of in the following mannen- "In the present case, there is nothing on record to indicate, whether factually the appellants had passed on the additional burden to the purchasers under the above section or otherwise. The amount of the public revenue involved is veiy heavey. We are, therefore, of the view that it is a fit case in which the appeals are to be allowed but the cases are to be remanded to the Central Board of Revenue with the direction to inquire into the following aspects:-

(i) How much quantity of sugar manufactured by the appellant in the financial year in question upto the date of rescission of SRO 560(I)/82 on 3.6.1989, exceeded the average production for the preceding two years of the factories under reference.

(ii) Whether the appellants had passed on the additional amount of the excise duty or part thereof which become due and payable on the above excess quantity of sugar on account of the rescission of SRO 560(I)/82, to the purchase and/or to any other person or persons.

If the answer to the above second question is in the negative, the Board of Revenue shall not charge any excise duty on the excess quantity of sugar, as determined in terms of above sub-para (i) of Para 55."

1. Pursuant to the said remand the cases were dealt with by the departmental authorities. Against the decision by the ultimate appellate authority in the hierarchy of the Central Excise and Salt Act, 1944, the CPs filed by the respondent Department were considered in the judgment in the case of Collector Customs and Central Excise, Government of Pakistan vs. Bawany Sugar Mills Ltd. (2000 SCMR 1266) the proposition laid down in the said case of Army Welfare Sugar Mills were re-affirmed. In the present case the petitioners acting on the said SRO No. 545CD/94 proceeded with the manufacturing process resulting in production of excess stocks of sugar in juxta-position to the average production in the previous three financial years. The cases have been processed by the departmental authorities and the excess sugar had been ordered to be cleared on the concessionary rates. The Department has proceeded to withdraw the orders on the ground that the mills had not operated for a period of less than 150 days in each of the three preceding years. The factual controversy as to whether or not the mills operated for not less than 150 days, aside what has to be seen us to whether the exemption could have been made subject to the said condition by issuing a Notification. The answer to the said question in the light of the law laid down in the said case of Army Welfare Trust is, in our opinion to be in the egative for the simple reason that adding a condition to the grant of exemption at a point of time when the mills have already produced the excess stocks acting on the basis of average production for the three previous years set down in SRO No. 545(I)/94 may well be impossible for the mills to meet with at the point of time when the latter notification was issued. Thus for all purposes it will be withdrawal of exemption when the representation had already been made to the Mills that stocks in excess of the said three years average production would be cleared at the concessionaiy rates and acted upon.

2. CATEGORY-II:

3. The cases falling in this categoiy are squarely covered by the judgment of the Honourable Supreme Court of Pakistan in the said case of Army Welfare Sugar Mills Ltd. and are accordingly decided strictly in terms thereof as stated in Para-55 of the said judgment.

CATEGORY-m.

1. In these cases vide SRO No. 505(I)/90, the Federal Government amended SRO No. 555(I)/79 dated 22.6.1979 inasmuch as the following entiy was added against Item No. 02.02 in the Schedule to the said Act:- (g) Sugar manufactured in a factory in a One rupee and financial year which exceeds the eight paisa per Kg. production for the preceding year in that factory provided the factory had worked for a full crushing season in the preceding year."

2. In a later Notification No. SRO. 823(I)/91, dated 20.8.1991, the crushing season was defined as 160 days qua the Province of the Punjab. The claims filed by the petitioners for clearance of the sugar at the said concessionary rates are pending with the Collector of Central Excise and Sales Tax. The learned counsel for the petitioners, in these cases contend that the cufshing seasion having not been independently defined in the said SRO dated 7.6.1990, the definition specifying the parties of the said season to be 160 days in the latter Notification cannot be imported into the said Notification dated 7.6.1990. The learned counsel for the respondent on the other hand, argues that crushing season as prescribed in Sugar Factories Control Act, 1950 will have to be adopted.

3. The Proviso to the said Clause (g) lays down that the said concessionary rates would be available in case the factory had worked for a full crushing season in the preceding year. Section 2(h) of the said Sugar Factories Control Act, 1950 defines crushing season "to mean a period beginning on the 1st. October in any year and ending on the 30th June next following". Section 8 of the said Act mandates an occupier of a factoiy to start crushing by a date not later than 30th November each year. Going by the provisions of the said Sugar Factories Control Act, 1950, the crushing season Would be of 9 months and consequently of as many days as there are in the said 9 months. The day of commencement of the said crushing season can either by 1st. October but not later than 30th November while concluding date is 30th June.

4. Another aspect of the matter is that in a sugar factoiy only crushing operation is not conducted but further manufacture process is also undertaken and the working of the factoiy would not be dependent upon merely on the crushing of the sugar cane. The wording of the said Proviso does give impression that the working of the factoiy is not relatable to the crushing process only rather the intent appears to be that the factoiy must have been working during the said full crushing season.

5. Mr. Ashtar Ausaf AH, Advocate appearing in some of these case is of the opinion that term "Crushing Season" cannot be interpreted strictly with reference to the definition contained in the Sugar Factories Control Act, 1950. For this he relies on the veiy Notification impugned herein defining the said season with reference to the number of days i.e.160 days. He relies on Pakistan Sugar Journal Vol. V-2, according to which the commencement of the crushing season is to be adjusted dependents upon the available quantity of the cane. Thus according to the Iparned counsel the cases have to be dealt by the respondent Department on individual basis with reference to the said circumstances. We find ourselves unable to agree with the learned counsel inasmuch as the said Proviso does not refer to the working of the factory with reference to the crushing operation rather it says that the factory must have been working for the full crushing season that is to say that a factory must have been operational during the said season.

6. We, therefore, hold that for the purpose of the said Proviso in the said SRO No. 505(I)/90 dated 7.6.1990, crushing period will mean a period starting from, 30th of November and ending on 30th June the next following year. However, we find that the respondent Department is treating the said crushing season to mean 160 days which is less than the period of the crushing season as held by us. The petitioners shall, therefore, be entitled to the benefit of the said departmental interpretation. In view of the above discussion the writ petitions falling under category-I above are allowed and it is declared that subject to the fulfilling of the conditions laid down in Para-55 of the judgment of the Honourable Supreme Court of Pakistan in the case of Messrs Army Welfare Sugar Mills Ltd. and others us. Federation of Pakistan and others (1992 SCMR 1652) as re-affirmed in the case of Collector of Customs and Central Excise, Government of Pakistan vs: Bawany Sugar Mills Ltd. and others (2000 SCMR 1266). The petitioners shall be allowed to clear the excess stocks on payment of duty prescribed in SRO No. 545(I)/94 and the conditions mentioned in SRO No. 476(I)/95 as to the operation of the mills for the period prescribed therein shall not be applicable to the stocks that were manufactured in excess in terms SRO No. 545(I)/94. The writ petitions falling under Category-II are allowed in terms of Para-55 of the said judgment in the case of Messrs Army Welfare Sugar Mills Ltd. and others vs. Federation of Pakistan (1992 SCMR 1652).

7. The Writ petitions falling under Category-Ill inasmuch as controversy regarding the period of crushing season is concerned, are dismissed.

(T.A.F.) Order accordingly.

PLJ 2003 Lahore 392

Present: mian saqib nisar, J.

SALEEM ULLAH-Petitioner

versus

JAVED AKHTAR-Respondent C.R. No. 2076 of 1999, decided on 1.3.2002. (i) Pre-emption—

-—Civil Procedure Code, 1908 (V of 1908), S. 115-Suit for pre-emption filed well beyond period of four months of transaction of sale-Both Courts below having found that suit was filed within limitation, High Court refused to go into question of limitation-Such concurrent finding having not been challenged, there was no infirmity in findings of Courts below on issue of limitation. [P. 395] A

(ii) Qanun-e-Shahadat, 1984 (10 of 1984)--

—-Art. 118-Transaction of sale claimed to be sale-Key witnesses to prove transaction being sale, admitted their indirect knowledge about factum of sale and all what they had deposed was hearsay in nature-Such evidence being inadmissible under Qanun-e-Sahahadat, 1984, sale was not proved. [P. 396] B

PLD 1989 Lahore 73; PLD 1961 Pesh. 62; 1984 SCMR 1412; AIR 1934 Lah. 823; AIR 1930 Lahore 234 and 1997 SCMR 197.

Mr. S.M. Masud, Advocate for Petitioner. Ch. Imtiaz Ahmad, Advocate for Respondent. Date of hearing: 15.2.2002.

judgment

Mian Saqib Nisar J.-The petitioner's suit for pre-emption was allowed by the learned trial Court videjudgment and decree dated 17.10.1998. Appeal filed by the respondent has been accepted and the judgment and decree of the learned trial Court has been set aside.

1. Briefly stated the facts of the case are that vide registered exchange deed dated 17.2.1988 (Ex. P. 2/Ex. D. 10), the respondent exchanged his land measuring 22 Kanalsand 13 Mariassituated in village Shadiwal District Gujrat with the suit land measuring 41 Kanalsand 3 Marias. The petitioner/plaintiff on 11.2.1989, brought a suit for pre-emption alleging that the exchange infact is a sale and that no learning about this fact, the petitioner made Talb-e-Muwathibatand also asserted Talb-e-Ishhadverbally in the presence of two witnesses and issued a notice in writing to the respondent as well. This suit was resisted by the respondent and the learned trial Court framed the following issues:-

2. Whether the suit is not maintainable in its present form? OPD

3. Whether the plaintiff has no locus standi to file this suit? OPD

4. Whether the plaintiff is estopped from filing of suit? OPD

5. Whether the suit is bad for non-joinder of necessary parties? OPD

6. Whether the suit is not correctly valued for the purposes of Court fee and jurisdiction? OPD

7. Whether the suit is time-barred? OPD

8. Whether the defendant spent Rs. 10,000/- on development of suit land? Whether he is entitled to receive the same in case the suit is decreed? OPD

9. Whether the disputed transfer is sale under colour of exchange? OP1.

10. If Issue No. 8 is proved in affirmative then what was the consideration of disputed transaction or otherwise what was the market value of the disputed property at the time of disputed transaction? OPP

11. Whether the plaintiff has superior right of pre-emption quathe defendant? OPP

12. Whether the plaintiff has fulfilled the requirements of talbs? OPP

13. Relief.

Parties produced their evidence and the learned trial Court, by giving finding on Issues Nos. 8, 10 and 11 in favour of the petitioner decreed the suit, however, finding on Issues Nos. 7 and 9 were against him Appeal filed by the respondent was allowed and finding on the material issues have been reversed, while that filed by the petitioner has been dismissed by the learned Additional District Judge Gujrat vide judgment dated 28.10.1999, hence this revision petition.

1. Learned counsel for the petitioner has argued that the learned Court in appeal has erroneously reversed the findings of the learned trial Court on the material issues by mis-reading and non-reading the evidence on the record. It is contended that the petitioner had proved that the suit land and the one with which, it was allegedly exchanged, are not corresponding in value and the location and thus it was a sale but, with a view to prevent the petitioner from filing a pre-emption action, the parties to the sale collusively had given it a colour of exchange. The finding of the learned trial Court that the transaction infact is a sale is based upon proper reading of the evidence and for sound reasoning, while that of the learned Court in appeal suffers from erroneous reading of the evidence. It is further submitted that the Court of appeal has illegally reversed the finding of the learned trial Court on the issue of talbs, when it was proved on the record by the petitioner that on learning about the sale, he immediately made Talb-e-Muwathibatand also asserted Talb-e-Ishhadin the presence of two truthful witnesses, followed by a notice in writing in that behalf. It may be pertinent to state here that the present suit was filed during the interregnum, when there was no statutoiy law of pre-emption in force in the province of Punjab, therefore, the requirements according to the learned counsel for the petitioner under the Islamic Law with regard to talbs,were duly met.

2. I have heard the learned counsel for the parties. Only for the reason that the areas of the two parcels of land which have been exchanged, are not equal and these are not compatible located and the value also does not corresponds, by itself is no conclusive proof of the fact that transaction, which was entered into by the respondent with his counterpart, was necessarily a sale and not the exchange, particularly, when the exchange has been effected through a registered document and the requisite incorporation has also been made in the,revenue record. The petitioner has miserably failed to lead any direct and positive evidence to the effect that the parties to the exchange entered into a sale transaction and collusively gave it a colour of exchange. In this behalf, it may be stated that the petitioner, while appearing as a witness, admitted in the cross-examination that he does not know about the nature of the transaction, the time and the place, and the negotiations, which took place between the parties to the exchange; price if any was settled or not. He categorically mentioned that Fateh Muhammad PW3 infact apprised him that the transaction is a sale. When Fateh Muhammad appeared as a witness, he attributed that one Muhammad Yousaf told him that the suit land was sold. Muhammad Yousaf has not been examined by the petitioner. Both these PWs who are the key witnesses to prove the transaction being a sale, have admitted their indirect knowledge about the factum of sale and all what they had deposed in hearsay in nature, which evidence is inadmissible under the Qanun-e-Shahadat Order, 1984. According to judgment reported as Ghulam Hussain versus Jam. Allah Dad through legal heirs (PLD 1989 Lahore 73), "the contract of exchange entered into by the parties, could not be brushed aside merely on the basis of conjectures and surmises. Disparity jn value of properties, is not a strict equation to hold that exchange is infact a sale". As per Ali Muhammad versus Malik Sanwal and others (PLD 1961 (W.P.) Peshawar 62), "in order to prove that a transaction of exchange is a sale, evidence of strict and strong character must be led by the person impugning ostensible nature of the sale". In SaudullahKhan and others versus Qalandar and others (1984 SCMR 1412), it is held that "in the absence of extrinsic evidence to established that the transaction is a sale, merely on the basis of a price, which a land in dispute could fetch or improbability of exchange of one Kanalin lieu of three Kartalsis not a strong criteria to hold that the transaction is not an exchange, but a sale." Learned counsel for the petitioner, though has relied upon AIR 1934 Lahore 323, PLD 1941 Peshawar 14, AIR 1936 Lahore 234, and 1997 SCMR 197, to argue that where the value and the areas of the exchanged properties are disproportionate, it.should be assumed that the transaction of sale has been given a colour of an exchange to defeat the right of a pre-emptor. But, I find these dictums distinguishable on their own facts. To my mind, in order to controvert the ostensible nature of transaction of an exchange and to prove it as a sale, the petitioner at least was required to lead some evidence to show as to when the parties to the exchange agreed for the sale, tut with an object to circumvent the right of the petitioner, they device the transaction as an exchange. There is no proof of the date, the day, the time, the place and the nature of the negotiations held between the two exchangers qua the sale. Even this is not proved if any price was settled and was paid by the respondent and in whose presence. The above mentioned conspicuous omissions have serious reflection upon the case of the petitioner. Two statements of the PWs, referred to above, are not sufficient to prove the fact of sale, rather can be discarded on the principle of hearsay evidence, therefore I am constrained to uphold that finding of the learned Court in appeal that the transaction is in the nature of an exchange and not sale.

3. Now coming to ,the other question, whether the petitioner had made talabsin accordance with law. As mentioned earlier, the present suit was filed during the period of interregnum and the petitioner necessarily was not required to prove Talb-e-Ishhadaccording to the requirement of Act, 1991, but still, in order to establish of having made the Talbs, confidence inspiring evidence, should have been l,ed by the petitioner. As has been highlighted in the judgment of the learned Court of appeal, there are inherent discrepancies in the statements of the PWs. Suit land was exchanged about seven months before the alleged knowledge of the petitioner, but neither in the plaint it was asserted nor in evidence, the petitioner has been able to prove the exact day, date and time as to when he learnt about the transaction and made Talb-e-Muwathibat. Likewise the evidence about Talb-e-Ishhadis also not of the quality, which is required to prove this talb, therefore, the finding of the learned Court of appeal on the issues of talbs, is also upheld. Learned counsel for the respondent has, however, attempted to argue that the suit of the petitioner was barred by time on the ground that exchange had taken place on 7.2.1988, whereas the present suit was filed on 11.2.1989 and, therefore, suit having been filed after four months was beyond limitation. I do not intend 4o go into this question, for the reason that both the ourts below have held that the suit of the petitioner was within time and such concurrent finding of fact, has not been challenged by the respondent through a revision before this Court. Even otherwise, I do not find any infirmity in the finding of the learned Courts below on the issue of limitation. In the light of what has been stated above, this petition has on force and is hereby dismissed.

(T.A.F.) Petition dismissed.

PLJ 2003 Lahore 397

Presnet: MlAN saqib NlSAR, J. MUHAMMAD NAZIR-Petitioner

versus MUHAMMAD KHAN and another-Respondents

C.R. No. 965 of 1994, heard on 16.1.2002.

(i) Qanun-e-Shahadat, 1984 (10 of 1984)-

—Art. 115-Estoppel by conduct-Defendant having taken benefit and premium of the same agreement by alienating land owned by plaintiff would be estoppled by his conduct from taking plea of invalidity of agreement in question. [P. 399] B

(ii) Specific Relief Act, 1877 (1 of 1877)--

—S. 12-Agreement of exchange-No dispute relating to execution of the same-Concurrent findings of Courts below were to the effect that parties did enter into agreement of exchange—Defendant on the basis of same agreement had already sold land in favour of vendee respondent vide sale- deed-Defendant thus, having acted upon exchange, cannot now back out from agreement in question, and refuse performance of his part of agreement. [P. 399] A

Sheikh Naveed Shahar Yar, Advocate for Petitioner. Mr. Muhammad Anwar Sipra,Advocate for Respondents. Date of hearing: 16.1.2002.

judgment

On 3.7.1987, Respondent No. 1, filed a suit for,possession through specific performance of the agreement of exchange dated 11.3.1984, between the parties ; for the declaration about ownership of the disputed plot and in the alternate claimed damages to the tune of Rs. 20,000/K It is the case of the plaintiff/Respondent No. 1 that petitioner/defendant through the aforesaid agreement, agreed to exchange his land measuring 1 Kanaland 10 Marias, out ofKhasraNos. 100 and 397, (described in the plaint), situated in Mouza Arki with the land measuring 1 Kanalsand 10 Marias, bearing KhasraNo. 455, belonging to the Respondent No. 1. Subsequently, the petitioner/defendant, on the basis of same agreement sold such exchanged land of the plaintiff to Respondent No. 2, but did not abide by the agreement, to give the possession of his land to the plaintiff. In addition to the enforcement of agreement, sale made by Defendant No. 1 in favour of Defendant No. 2 was also challenged. Learned trial Court framing the following issues:—

1. Whether the suit is not maintainable in its present form? OPD

2. Whether the plaintiff is estopped to sue? OPD

3. Whether the suit is bad for mis-joinder of causes of action OPD

4. Whether the impugned document is liable to be impounded? OPD

5. Whether the plaintiff is entitled to the decree for specific performance of the contract dated 11.3.1984? If so, on what terms modes and conditions? OPP

6. If Issue No. 5, is not proved, whether the plaintiff is entitled to the declaration prayed for? OPP

6.A. If Issue No. 6, is proved in affirmative, whether the impugned agreement is result of fraud, misrepresentation and as such is not enforceable? OPD

1. Relief.

While discussing Issues Nos. 5, 6 and 6-A, together, the learned trial Court, came to the conclusion that plaintiff is entitled to the decree for specific performance of the agreement and thus on the basis of these findings, Issues Nos. 6 and 6-A, were accordingly disposed of. Suit . of the plaintiff/Respondent No. 1, was decreed for the specific performance, as prayed for." Against the above, petitioner preferred an appeal and the learned appellate Court, vide judgment dated 7.3.1993, came to the conclusion that "From the pleadings of the parties it is clear that the plaintiff has sought the annulment of the sale-deed dated 11.3.1984, in favour of Defendant No. 2. He also claimed Rs. 20,000/-, as penalty from the Defendant but the issues in this behalf, have not been framed, accordingly following two issues were framed by the Court, which are as under:-

6.B. Whether the impugned sale-deed dated 11.3.1984, by Defendant No. 1, to Defendant No. 2 was illegal, void and in-operative on the plaintiffs right.

6.C. Whether the plaintiffs is entitled to get any penalty from the defendant, if so, to what extent? OPP

After framing of the above issues, the learned appellate Court concluded as follow:

After addition of these issues, the file of the learned trial Court is remitted to it with the direction to record evidence of the parties on these issues, give its findings and return the record to this Court, with evidence recorded thereon together with its findings on its basis within a period of two months from today. The proceedings in this appeal shall remain sine die. It be put up for further proceedings on the receipt of the record from the trial Court.

On account of the remand, the learned trial Couzt, after recording evidence, returned its findings on the above issues. Issue No. 6-B was decided in favour of plaintiff and sale in favour of Defendant No. 2, was declared inoperative and illegal. On Issue No. 6-C, a decree for compensation to tune of Rs. 20,000/- was awarded to the plaintiff. While hearing the appeal, after the findings of the trial Court on the aforesaid two issues, learned ADJ, dismissed the appeal, holding that the finding of the Court below on Issues Nos. 5, 6 and 6-A are valid. As regard Issue No. 6-B, concerned, it was held as below:

"As plaintiff succeeds to prove that he was entitled to the relief of specific performance of contract. So there is no need to discuss the alternative relief claimed by him for the annulment of the sale-deed in favour of Defendant No. 1 and for the recovery of penalty of Rs. 20,000/- from the defendant. Resultantiy, this appeal has no force and the same is hereby dismissed.

1. Learned counsel for the petitioner, by relying upon the cases reported as Abdul Basir Khan, etc versus Sanaur Rehman and others (PLD 1994 Peshawar 197), Noor Rehman and others vs. Muhammad Yousaf (2000 CLC 1138) and Muhammad Sadiq and another versus Abdul Aziz and another (1990 CLC 1387) argued that the agreement of sale of un-partitioned property, could not be enforced in the eyes of law.

2. I have heard the learned counsel for the parties and find that, there is no dispute between them about the execution of the agreement of exchange dated 11.3.1984. This is also the concurrent finding of the learned Courts below that parties did enter into an agreement of exchange. On the basis of same agreement, the petitioner has already sold the land from KhasraNo. 100 in favour of Nasar Masih Respondent No. 2 videsale-deed dated 11.3.1984, thus having acted upon the exchange, he cannot now back out from the agreement and refuse the performance of his part of the agreement by effecting the exchange in favour of the Respondent No. 1, with regard to the land pertaining to KhasraNo. 455 i.e.the subject matter of the agreement of exchange dated 11.3.1984. The argument that un-partitioned land cannot be exchanged and the agreement in this behalf is void, suffice it to say that the judgments cited by the petitioner's counsel are extinguishable. Moreover, once having taken the benefit and premium of the same agreement by alienating the land owned by the Respondent No. 1 the petitioner is stopped by his conduct from taking the plea of invalidity of the agreement.

In the light of above, the judgment and decree of the trial Court, regarding enforcement of agreement of exchange as mentioned above is upheld but to the extent of granting compensation to Respondent No. 1, for the amount of Rs. 20,000/- and declaring sale in favour of Respondent No. 2, is set aside and the decree is accordingly modified. This petition is therefore, partly allowed.

(T.A.F.) Petition partly allowed.

PLJ 2003 Lahore 400 (DB)

Present: JAWWAD S. KHAWAJA AND abdul shakoor paracha, JJ.

M/s. SIMPEX TRADING CORPORATION and another-Appellants

versus

PROVINCE OF THE PUNJAB through SECRETARY HOME DEPARTMENT LAHORE and another-Respondents

R.F.A. No. 152 of 1992, heajd on 26.2.2002.

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

—-S. 2(h)--Suit for recovery-Defendant's plea that a foreign company was contracting party which ought to have been sued was repelled, on the ground that there was nothing in contract to suggest even remotely that defendant was acting as agent of foreign company mentioned by it. [Pp. 401 & 402] A

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

—- S. 2(h)--Defendant was required by contract to supply certain wireless equipment to plaintiffs-Short supply of contracted goods was admitted by defendant-Contractual equipment having not been supply as per terms of contract, defendant was rightly decided liable for recovery of claimed amount. [P. 402] B & C

SyedAsghar, Haider, Advocate for Appellants. Mr, ZahidAslam Khan, A.A.G. for Respondents. Date of hearing: 26.2.2002.

judgment

Jawwad S. Khawaja, J.-This appeal is directed against the judgment and decree of the learned trial Court dated 30.4.1992.

1. The respondents/plaintiffs filed a suit for recovery of Rs. 8,52,641.83 together with interest thereon as detailed in the plaint. The claim of the respondents/plaintiffs was founded on a contract dated 26.6.1984 entered into by the respondents/plaintiffs with the appellants defendants whereunder the appellants had agreed to supply certain wireless equipment to the respondents/plaintiffs.

2. The suit was resisted by the appellants/defendants. The main thrust of the case set up by the appellants, was that they were merely agents acting for and on behalf of M/s. International Telecommunication System, Florida, USA and were not independent contractors. On this basis liability for performance of the above-refen-ed contract or to pay damages thereunder, was disclaimed by the appellants/defendants.

3. Based on the pleadings of the parties, the learned trial Court framed the following issues:-:

4. Whether the suit is bad for mis-joinder and non-joinder of the parties? OPD

5. Whether the plaintiff has no cause of action and locus standi?OPD

6. Whether the suit has been filed with malafide intention? QPD

7. Whether the plaintiff is entitled to recover Rs. 8,52,614/83 from the defendant/OPP

5.Relief.

1. We propose to deal with Issue No. 1 first. Learned counsel for the appellants reiterated the stance adopted in the written statement and before the learned trial Court. He argued that M/s. International Telecommuni­ cation System, Florida, USA, was the contracting party which ought to have been sued as a defendant. To support this contention, learned counsel for the appellants referred to various letters to show that the appellants were acting on behalf of M/s. International Telecommunication System, Florida, USA merely as agents. He also referred Para-5 of the plaint wherein M/s. International Telecommunication System, Florida, USA, was mentioned as the principal of the defendants. In addition, learned counsel for the appellants drew the attention of the Court'to Clause 21 of the aforesaid contract which required payment of a sum of US $42737.20 to be made to Ms. International Telecommunication System, Florida, USA, through an irrevocable letter of credit.

2. We have considered the aforesaid arguments of learned counsel for the appellants and find the same to be without merit. The contract, on the basis of which the present suit was filed by the respondents/plaintiffs, is the most relevant piece of evidence and, in our opinion, is conclusive of Issue No. 1. The said contract has been produced on record as Ex. P-3. It shows that Appellant No. 1, namely, Simpex Trading Corporatoin was the contracting party. M/s. International Telecommunication System, Florida, USA, has only been mentioned in Clause 21 referred to above. Clause 21 merely stipulates the mode of making payment of the contract price. Although it stipulates that payment shall be made to M/s. International Telecommunication System, Flori'da, USA, through irrevocable letter of credit, this alone does not convert the appellants into agents of M/s International Telecommunication System, Florida, USA. As noted, the Appellant No. 1, in clear and unambiguous terms, is mentioned as the contractor. There is nothing in the contract to suggest even remotely that the Appellate No. 1 was acting as an agent of M/s. International Telecommunication System, Florida, USA. In these circumstances, it cannot be held that Appellant No. 1 was not liable under the contract. The mere fact that payment had to be made through letter of credit in favour of M/s. International Telecommunication System, Florida, USA, does not, in any manner, detract from the aforesaid conclusion. In the circumstances, we find-that Issue No. 1 was rightly decided against the appellants by the learned trial Court.

3. We next come to Issue No. 4. On this issue, the plaintiffs/ respondents have led extensive documentary evidence. Ex. P-10 clearly shows that there was shortage in the supplies made by the contractor. Learned counsel for the appellants also did not deny that there was a short supply of contracted equipment. He only stated that the goods arrived at Karachi Airport by mistake and were subsequently delivered at Lahore. From the contract we note that the entire consignment of contracted goods was to be delivered at Lahore by the first appellant. This contractual commitment was, admittedly, not fulfilled by the said appellant.

4. In addition, Ex. P-ll has also been produced on the record. This document, signed by the appellants, clearly acknowledges the liability of the appellants/defendants to make payment to the respondents/plaintiffs for the short supply made by them under the above-referred contract. On the basis of the aforesaid evidence, we conclude that Issue No. 4 was also correctly decided by the learned trial Court.

5. The findings of the learned trial Court on Issues Nos. 2 and 3 were not assailed before us.

6. In view of the foregoing discussion and analysis of the evidence, we find that the impugned judgment and decree are not open to exception. As a consequence, this appeal is dismissed.

(T.A.F.) Appeal dismissed.

PLJ 2003 Lahore 402

Present: mian hamid farooq, J.

SALEEM AHMAD-Petitioner

versus

TAHIR HUSSAIN-Respondent C.R. No. 2559 of 2001, decided on 25.1.2002.

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

—-S. 115-Document of alleged acknowledgement of loan amount though attested by two marginal witnesses, yet such witnesses were not produced in proof of acknowledgment in question- Petitioner having denied execution of acknowledgment, respondent was under obligation to prove through producing of cogent evidence that in fact document in question, was signed and executed by petitioner in presence of marginal witnesses-Document in question was, thus, not proved for non- production of marginal witnesses. [P. 404 & 405] A

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

—-O.XLI, R. 22 & S. US-Respondents failure to file appeal or crossobjections against definite findings of Courts below that due to non- production of marginal witnesses, document in question, was not proved, would disentitle him to challenge such findings. [P. 405] B

Malik Mumtaz Ahmad, Advocate for Petitioner. Mr. S. Ijaz Ahmad, Advocate for Respondent Date of hearing: 25.1.2002.

order

This single order shall decide the present revision petition (C.R. No. 2559/2001) as well as the other connected revision petitions (Bearing Nos. 2560/2001, 2561/2001 and 2562/2001) as the common questions of law and facts are involved in all the revision petitions, they are between the same parties and have arisen out of the identical judgment dated 20.9.2001 passed by the learned Additional District Judge, Ferozewala.

1. Through the filing of these revision petitions, Saleem Ahmed, the petitioner/defendant, has called in question the judgment and decree dated 20.9.2001, whereby the learned Additional District Judge, Ferozewala, dismissed the appeals, filed by the petitioner, and maintained the judgment and decree dated 31.10.1998, passed by the learned Civil Judge, through which he decreed four suits for recovery against the petitioner.

2. Facts, leading to the filing of these revision petitions are that the respondent instituted four different suits for recovery of distinct amounts against the petitioner before the learned Civil Judge, alleging therein that he sent different amounts through bank draft to the petitioner in the year, 1987, and when the said amounts were demanded from the petitioner, he admitted the said amounts through the acknowledgment dated 30.6.1992 which was executed in the presence of the witnesses. According to the respondent, despite repeated demands, the said amounts were not paid, resultantly, he filed four different suits for recoveiy of various amounts. Said suits were contested by the petitioner, inter alia, pleading that the suits are barred by time and that he never executed the alleged acknowledgment, which is a forged one. The learned Civil Judge after framing the necessary issues, recorded the evidence of the parties and proceeded to decree all the suits in favour of the respondent vide judgment and decree dated 31.10.1998. Feeling grieved, the petitioner filed separate appeals before the higher forum, but the learned appellate Court, although coming to the conclusion that Exh. P. 2 acknowledgment has not been duly proved yet dismissed the said four appeals and maintained the judgment and decree passed by the learned Civil Judge, which according to him was rightly passed, vide identical judgment and decree dated 20.9.2001, hence, the present revision petitions.

3. Learned counsel for the petitioner has contended that even according to the respondent/plaintiff, the alleged transaction of borrowing the money took-place in the year, 1987, and the suits were filed in December, 1992, thus, the same were grossly barred by time. It has further been contended by the learned counsel that the learned appellate Court after coming to the conclusion that the acknowledgement of debt (Ex. P. 2) has not been proved according to law, yet he proceeded to dismiss the appeals without any lawful justification, thus, it has been argued that the impugned judgments and decrees are not sustainable in law. Conversely, the learned counsel for the respondent has admitted that his cases does not fall within the scope of Section 19 of the Limitation Act, yet he while relying on Section 25 (3) the Contract Act, has submitted that the said acknowledgement need not to be proved by the respondent. In the above back-drop, he submitted that the suits of the petitioner were within time and, thus, both the impugned judgments and decrees are not liable to be interfered by this Court in exercise of its revisional jurisdiction.

4. Upon the examination of the plaints it is discernible that, admittedly, the respondent filed four suits for recovery regarding the alleged transactions took place in the year, 1987, whereas the suits for recovery were filed on some-where December, 1994, i.e.after the lapse of more than seven years. The respondent being conscious of the weakness of his case, being out of time, relied upon the alleged acknowledgment dated 30.6.1992, which according to him was executed by the petitioner in the presence of the witnesses. The case of the respondent entirely hinges upon the acknowledge­ ment dated 30.6.1992, the execution of which was subsequently denied by the petitioner in his written statements inter alia pleading the plea of limita­ tion further asserting therein that the suits are barred by time. Not only this, but the respondent, while appearing as PW. 2 has also relied upon Ex. P. 2, which is written by him and allegedly bears the signatures of the petitioner. In the cross-examination, he has admitted that the two witnesses of this document were his tenant and that he now does not know about their where-abouts. Even from the statement of the respondent, it is clear that his' reliance is only upon the said acknowledgement.

5. Upon the examination of the judgment rendered by the learned Additional District Judge, Ferozewala, I find that there is a definite finding given by the learned lower appellate Court about the said document i.e. Ex. P. 2, which according to the learned appellate Court has not been proved by the respondent by producing the marginal witnesses. These findings of the learned lower appellate Court are unexceptionable and in accordance with law. Admittedly, the said document was relied upon by the respondent and was the only basis for claiming different amounts, which was specifically denied by the petitioner. After this denial, the respondent in order to discharge the onus of issues was under obligation to prove through producing of cogent evidence that in fact Ex. P.2 was signed and executed by the petitioner in the presence of the witnesses and the best witnesses, who could have proved the execution of this document, were the marginal witnesses, who statedly, signed the document and according to the respondent, were his tenants. The respondent failed to prove this document by producing marginal witnesses as has rightly been observed by the learned lower appellate Court.

6. There is yet another aspect of the case that there were definite findings given by the learned Additional District Judge against the respondent. Admittedly, the respondent has neither filed any appeals, challenging the said findings, operating against him nor he has filed the cross-objection. As both the remedies available to the respondent, admittedly, were not availed by him, therefore, in the present revision petitions, filed by the petitioner, he cannot challenge the said findings against whom no revision petitions have even been filed by the petitioner. Thus, at this stage, the respondent is pre-cluded from challenging the said findings of the learned appellate Court in the present revision petitions.

7. I have examined both the impugned judgment and find that except the finding of the learned Additional District Judge regarding, non- proving of Ex. P. 2, both the judgments were passed in complete oblivion of the law on the subject and documents/evidence on'record, thus, I am of the considered view that they are not sustainable in law. The learned Additional District Judge although initially proceeded in the right direction, while holding that Ex. P.2 was not proved in accordance with law by not producing evidence, yet in the latter portion of the judgment fell into legal error while dismissing the appeals of the petitioner completely forgetting that in view of non-proving of Ex. P.2 even according to the stance of the respondent, the suits were barred by time. Once the learned Additional District Judge came to the conclusion that Ex. P. 2 does not exist, there was no material left before the learned appellate Court to decree the suits, more so when according to the plaint, the transactions, were allegedly undertaken in the year, 1987, while the suits were filed in the year, 1994. In view of such contradictoiy findings, I am not-inclined to maintain both the judgments and decrees which are highly exceptionable and call for interference by this Court in exercise of its revisional jurisdiction.

8. The up-shot of the above discussion is that all the revision petitions are accepted and both the impugned judgments and decrees dated 20.9.2001 and 31.10.1998 passed by the learned Additional District Judge and the learned Civil Judge, respectively are hereby set aside with no order as to costs,

(T.A.F.) Revision petition accepted.

PLJ 2003 Lahore 406 (DB)

Present: ch. ijaz ahmad and mian saqeb nisar, JJ.

SyedSADIQ HUSSAIN SHAH-Petitioner

versus

FEDERAL LAND COMMISSIONER, LAHORE and 2 others-Respondents

W.P. No. 7958 of 1995, heard on 20.2.2002.

(i) Land Reforms Act, 1977--

—S. 7-Constitution of Pakistan (1973), Art 199—Matter in question, has been finally decided up to Apex Court on the side of Land Reforms Act, 1977-Surpeme Court had declared certain provisions of Land Reforms Law to be against injunctions of Islam in Qazalbash Waqf case reported as PLD 1990 SC 99 case of Qazalbash Waqf having been decided on 10.8.1989, writ petition filed on 8.12.1994, was liable to be dismissed on ground of lashes. [P. 409] A

(ii) Land Reforms Act, 1977--

—Ss. 7 & 24-Constitution of Pakistan (1973), Art. 204-E-Repugnancy to injunctions of Islam-Decisive step und,er provisions of Land Reforms Act, 1977 had already been taken before the target date i.e. 23.3.1990, when judgment of Supreme Court was to become effective-Matter in question, being past and closed transaction was not affected by the judgment of Supreme Court (PLD 1990 SC 99).[P. 413] B

Raja Muhammad Anwar, Advocate for Petitioner. Mr. Muhammad Ashraf, A.A.G. For espondents. Date of hearing: 20.2.2002.

judgment

Ch. Ijaz Ahmad, J.-Brief facts out of which present writ petition arises are that the petitioner's father was owner in agricultural land in Tehsil Depalpur, District Okara and Tehsil Hafizabad. The father of the petitioner died on 30.10.1957 and the landed property was owned by the father of the petitioner which is inherited by his legal heirs who are as under:-

(i) Col. Mukhtar Hussain.

(ii) Maj or Nadir Hussain.

| | | --- | | sons of original owner. |

(iii) Iqbal Hussain.

(iv) Shaukat Hussain.

(v) Syed Sadiq Hussain, petitioner.

(vi) Syeda Akhtari Begum.

,...,,,.,. t. " daughters of original

(vu) Syeda Asghan Begum. ° &

(viii) Syed Khawar Sultana.

(ix) Mst. iNazir Sultan widow of original owner.

Syed Ashiq Hussain, father of the petitioner in his life time had transferred some of his land in the year 1950 situated in Ashiqabad, Chah-hat Shergarh, Iqbalpura, Boharwala, 19-A/A-L and Kot Nadir Shah to mentioned above legal heirs. The petitioner and his father through family arrangement, distributed the land in the year 1963 amongst them. The family arrangement was incorporated in the Revenue Record in the name of the petitioner and his brother, and the possession of their shares was also transferred to them. In view of family settlement, the petitioner did not own any land in village Ashiq-abad and 19-A/l-AL, therefore, the petitioner had relinquished his Lambardariin favour of his real brother Syed Shaukat Hussain in the aforesaid two villages, without proceeding under the Land Reforms Regulation, 1972 which came into force at once i.e. on 11-3-1972. The petitioner under the provision of aforesaid Land Reforms Regulation Act, submitted his declaration form before the D.L.C. concerned. The D.L.C. concerned-i.e. Respondent No. 3 vide his order dated 03-5-1973 held that the petitioner is holding excess PIUS units. He was directed to surrender 4140 PIUS units being surplus which is attached with the writ petition as Annexure-A. The petitioner being aggrieved filed an appeal before the Land Commissioner, Respondent No. 2, who rejected the same vide order dated 13-9-1973. The petitioner being aggrieved filed appeal before Chief Land Commissioner, who also dismissed the same vide order dated 07-5-1974. Subsequently, the petitioner filed a revision before the Federal Land Commissioner, who also dismissed the same vide order dated 14-9-1974. The petitioner being aggrieved filed writ Petition No. 1917/74 which was also dismissed in limine by this Court videorder dated 23-12-1974. Thereafter, the petitioner being aggrieved, filed CPSLA No. 148/1975 before the Hon'ble Supreme Court and was granted stay order videdated 21-5-1975 in respect of transfer of the possession. Subsequently, the petitioner had withdrawn the aforesaid CPSLA before the Hon'ble Supreme Court.

1. Mst. Nazir Sultana, mother of the petitioner gifted the land in favour of the petitioner and Mutation No. 35 was entered and sanctioned in favour of the petitioner on 20-9-1968 by the Revenue Officer. The petitioner filed a review petition before the Revenue Officer for setting-aside Mutation No. 35 before D.C. Shaiwal/D.L.C. who granted the sanction of revenue vide order dated 06-3-1975. Subsequently, the A.C. Depalpur accepted the review petition vide order dated 06-3-1974. The land was mutated in the name of the legal heirs. The entry in the Revenue Record consisting of KhasraGirdawariand Jamabandiwas incorporated in the year 1976. The mother of the petitioner also filed a suit for declaration to the effect that her land measuring 126 Kanaland 10 Mariaswas never gifted by her to the petitioner and Mutation No. 35 dated 28-12-1970 is illegal non-existing as gift, was never made and possession was never transferred to the petitioner. The Mutation No. 35 was reviewed and set-aside by the Revenue authority and land in-question was reverted to all the legal heirs i.e. Mst. Nazir Sultana mother of the petitioner and other legal heirs of her husband. Ceiling of the petitioner reduced automatically after acceptance of the review petition filed by the petitioner. The mutation in-question was reviewed as it was void being hit by Para No. 24 of Martial Regulation 115 and dues of .the District Council was not paid. The suit was decreed by the consent by the Civil Judge vide judgment and decree dated 25-1-1979. The decree of the Civil Court was duly incorporated in the Revenue Record. The petitioner being aggrieved challenged the vires of the orders of D.L.C, C.L.C. and Member of Federal Land Commissioner through this writ petition.

2. The learned counsel of the petitioner submits that petitioner has no excess units under the provision of Land Reforms Regulation, 1972. Mutation No. 35 which reveals that mother of the petitioner had gifted the land measuring 1263 Kanalsand 10 Mariasin favour of the petitioner vide Mutation No. 35 dated 28-12-1970 and the same was set-aside by the Revenue Authority on the ground that mutation in-question was hit by Para No. 24 of M.L.R. 115 of 1972. He further submits that mutation in-question was also set-aside by the consent decree dated 25-1-1979 passed by the competent Court. The judgment of the Civil Court shall prevail upon order of the Land Reforms Authority. He further submits that Para No. 7 of the MLR 115 had already been declared repugnant to Injunction of Islam by the Hon'ble Supreme Court in 1990 S.C. 1999. The review petition filed by the aggrieved person, had also been dismissed by the Hon'ble Supreme Court reported in 1993 S.C.M.R. 1697. "Gout, of Pak. Ministry of Law. vs. Qazalbash Waqf, etc." He further submits that possession of the land in-question was not taken from the petitioner, therefore, the respondents had no authority whatsoever to take possession of the land in-question form the petitioner after cut of date fixed by the Hon'ble Supreme Court in (PLD 1990 S.C. 99) "Qazalbash Waqf. vs. Chief Land Commissioner, Punjab". He further submits that principle of past and close transaction is not attracted in the present, case as possession of the land was not taken from the petitioner. In support of his contention, he relied upon (PLD 1998 SC 132) "Chief Land Commissioner, Pb. vs. Chief Administration of Auqaf, Pb." He further submits that writ petition can not be dismissed on the ground of laches. In support of his contention, he relied upon (1963 Lahore 8) "Mubarik Mi Bhatti vs. FayyazAll".

3. The learned counsel of the respondents submits that writ petition is liable to be dismissed on the well known principle of laches.He further urged that writ petition is also liable to be dismissed on the well known principle of past and closed transaction. He further urged that Hon'ble Supreme Court decided the case ofQazalbash Waqfon 10-8-1989 and certain provisions of Land Reforms Law were declared against the injunction of Islam and also fixed cut of date to the extent that provision of law would cases to be operative w.e.f. 23-3-1990. In the present case, resumption order was passed by the Deputy Land Commissioner on 03-5-1973. The order of the Deputy Land Commissioner was up-held upto Apex Court of this Country. In support of his contention, he relied upon un-reported judgment of this Court in Writ Petition No, 2057/1997 decided on 09-7-2001 and un- reported judgment of the Hon'ble Supreme Court in Civil Petition for leave to Appeal No. 1142-L/92.

4. Learned counsel of the petitioner in rebuttal submits that principle of laches and principle of past and closed transaction are not attracted in the present case as the petitioner did not exercise his choice with regard to surrender of his land in-question to the Land Reforms Authority. The possession of the land ingestion is still with the petitioner, therefore, the Land Reforms Authority have no authority whatsoever under the law to taken action against the petitioner in view of law laid down by the Hon'ble Supreme Court in the following judgments:- "Qazalbash Waqf. vs. Chief Land Commissioner" (PLD 1990 S.C. 1999) "Chief Land Commissioner, Pb. vs. Chief Administrator of Auqaf, Pb." (PLD 1998 S.C. 132).

5. We have given our anxious considerations to the contentions of the learned counsel of the parties and perused the record ourselves.

6. It is admitted fact that the matter has been finally decided upto Apex Court on the side of Land Reforms Regulations. The Hon'ble Supreme Court declared certain provisions of Land Reforms Law which are against Injunction of Islam in QazalbashWaqfs case which was decided by the Hon'ble Supreme Court on 10-8-1989. The petitioner filed writ petition on 08-12-1994, therefore, the writ petition is liable to be dismissed on the ground of laches. In arriving to this conclusion, we are fortified by the following judgments:-

"PLD 1997 .S.C. 304 "Khiali Khan's case"

"NLR 1982 Revenue (SC) 201 Khushi Muhammad's case"

It is also settled principle of law that Constitutional jurisdiction being equitable jurisdiction cannot be exercised in favour of a person, who has come to the Court with gross negligence. We are fortified by the judgment of the Hon'ble Supreme Court in Mohsin Khan's case (1969 SCMR 306) and Suleman Khan's case (1970 S.C.M.R. 574). It is admitted fact that the matter has been finally decided between the parties upto Apex Court under the provisions of Land Reforms Regulation, therefore, the writ petition is liable to be dismissed on the well known principle of Res-judicataas per principle laid down by the Hon'ble Supreme Court in Pir Bakhsh's case (PLD 1987 S.C. 145). It is pertinent to mention here that principles of CPC are applicable in Constitutional proceedings, therefore writ petition is not maintainable in view of Section 11 of the CPC. The question of law has already been settled by the D.B. of this Court in case Chief Administration of Auqaf, Punjab vs. The Federal Land Commission and 8 others" (PLD 1994

Lahore 50) and laid down following principle:-

"As has already been observed on the passing of order dated 27-2-1978 by the Deputy Land Commissioner under the provisions of sub-section (5) of Section 7 of Act, the excess land forthwith vested in the Provincial Government and due to this characteristic of this provision of law it can safely be held that the same was certainly "self-executory provision" having take effect long before 23-3-1990 the date fixed in Qazalbashcase with effect from which the law was- to cease to operate to the extent of repugnancy. Merely because further steps were yet to be taken to implement the "self-executory provision" of the Act such as separation of excess land from the land to be retrained by the petitioner within the permissible limits does not, have the effect of rendering the said provision of law as also legal effect of order dated 27-2-1978 as non-self-executory or exclusion of the same from the purview of the said expression. This view finds supports from judgments delivered by the Supreme Court in Civil Appeal Nos. 292 and 293 of 1976 in which identical questions were raised and it was held as under:

"Therefore, even if some of the appellants have yet not surrendered the excess land it would not make any difference for now it is a question of merely implementing the orders already passed by competent authorities. In the circumstances the appellants cannot take advantage of the judgment in the Qazalbash Waqf case."

Yet in another case reported as The Chief Land Commissioner, Punjab Lahore and another vs. Ch. Atta Muhammad Bajwa and others (1994 S.C.M.R. 736) it was held as under: "The provision invoked against the appellants being a self-executory provision, does not await the decision of any authority or Court for having effect. It is only the interpretation, the exclusion or the limitation, which can be decided upon by the Court and not the operation of law as such."

A Similar view was taken in a case reported as the Chairman, Federal Land Commission, Islamabad and another vs. Akhtar Abbas (PLD 1989 S.C. 550) and the above rule laid down was re-affirmed."

1. The aforesaid proposition of law is also supported by the following judgment of the Hon'ble Supreme Court reported as "The Chief Land Commissioner, Punjab Lahore and another vs. Ch, Atta Muhammad Bajwa and others ((1994 SCMR 736). After considering the judgment of the Sharait Appellate Bench, the Supreme Court of Pakistan in Qazabalsh Waqf s case. Mr. Justice Shafi-ur-Rahman observed as follow:

"The decision of the Sharait Appellate Bench of this Court in the case of Qazilbash Waqf will not directly affect the adjudication in this case because the Court's order referred to itself in Paragraph 7 made the following observations:

"The operation of the self-executory provisions of the Regulation and the Act, and provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. 23-3-1990.

The provisions invoked against the appellants being a self executory provisions, does not await the decision of any authority or Court for having effect. It is only the interpretation, the exclusion or the limitations which can be decided upon by the Court, and not the operation of law as such."

The Supreme Court of Pakistan had also considered the authority reported as PLD 1990 S.C. 99 Qazalbash Waqfs case while delivering judgment dated 10-7-1991 in Civil Appeals Nos. 292 and 293 of 1976 139, 847 of 1984 and 369 of 1988 (Muhammad Tahir Shah etc. vs. Federal Land Commissioner, etc.) and held as under:

"It is to be noted that by the force of Paragraph 7 of the Regulation itself all gifts, leaving aside those which were expressly saved, became void. The declaration submitted by the donors already stand scrutinized and the lands covered by the gifts have been treated as part of their holdings. Therefore, if some of the appellants have not yet surrendered the excess land, it would not make any difference for now it is a question of merely implementing the orders already passed by the competent authorities. In the circumstances, the appellants cannot take advantage of the judgment of the Qazalbash Waqf s case."

1. It is true and undeniable that the Supreme Court of Pakistan in Qazalbash Waqf s case held certain provisions of the Land Reforms Act, 1977 to be violative of the Injunctions of Islam as ordained by the Holy Quran and Sunnah and that judgment came into force on 23-3-1990 but the question arises as to the effect of the declaration of law as un-Islamic in the matters pending at that time or thereafter. The answer to this question is to be found in the same judgment wherein Muhammad Afzal Zullah, J (as he then was) observed as under:

"However, I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course at any stage of the proceedings in implementation of the provisions which would cease to have effect as a result of the Court order, prior to the date to be fixed therein".

Again the same judgment Shafi-ur-Rehman, J. (as he then was made the following observations:

"As most of the provisions found repugnant to Islam happen to be self-executory, they have of their own force taken effect, accomplished the object of the legislation leaving the mere implementation of it, to be completed on the strength of machinery previsions. Such self-executory provisions will remain un-effected by this decisions."

1. In view of the above dictum, it becomes necessaiy to determine as to whether in the present case any decisive step had been taken before 23-3-1990 when the judgment of the Hon'ble Supreme Court was to become effective. On the basis of the record, it cannot be denied that much earlier to the aforesaid date i.e.27-5-1972, the land of the petitioner was resumed by the Deputy Land Commissioner and there after, videorder dated 03-5-1973, the petitioner was directed to give choice of the surrendered area equal of 4140 PUIS units within 7 days. These proceedings were admittedly finalized upto the Apex Court before the target date mentioned by the Hon'ble Supreme Court in the aforesaid judgment of Qazalbash i.e. 23-3-1990. The decisive step under the provisions of Land Reforms Law has already been taken. That being so, the case against the petitioner was not covered by law declared by the Supreme Court of Pakistan in Qazalbash Waqf s case, meaning there by the land which was subject-matter of present controversy of the petitioner had vested in the Provincial Government under the self- executory provisions of the Land Reforms Law and resumed long before 23-3-1990. It being a past and closed transaction was not affected by the judgment of the Shariat Appellate Bench, the Supreme Court of Pakistan in Qazalbash Waqf s case. In arriving to this conclusion, we are fortified by Miani's case (PLD 1973 S.c. 17). The aforesaid proposition of law was again considered by the Hon'ble Supreme Court in FederalLand Commission Cabinet Secretariat Islamabad vs. Sardar Noor Ahmad Khan and 7 others (1999 S.C.M.R. 2697). The relevant observations are as under:

"In the instant case, the O.S.D. passed the order in exercise of his suo-moturevisional jurisdiction on 26-10-1976. Mr. Muhammad Mehmood Bhatti, learned Advocate Supreme Court for the respondents, was unable to persuade us that the judgment of the Federal Land Commission impugned before the High Court was hit by the law laid down in Qazalbash Waqf (supra). It is clearly pointed out in the case of Qazalbash Waqf (supra) that the declaration given therein was to take effect on 23-3-1990 and as such the provisions of the Regulation which were as executory were not to be in any manner, affected thereby. Refer Chief Land Commissioner Punjab vs. Chief Administrator of Auqaf Punjab (PLD 1998 S.C. 132). Thus, visualized, the decision rendered by the Federal Land Commissioner on 26-10-1976 could not be declared as without lawful" authority in the writ petition filed in 1977 though decided on 29-3-1994, in view of the decision of the Federal Sharait Court Qazalbash Waqf (supra) and decision of the Sharait Appellate Bench of this Court in Qazalbash Waqf s case (supra).

1. It is also settled principle of law that judgment of the Hon'ble Supreme Court has prospective effect and not retrospective effect. In arriving „ to this conclusion, we are fortified by law laid down in case of "MuhammadYousaf vs. Chief Settlement and Rehabilitation Commissioner" (PLD 1968 S.C. 101).

2. We have taken the aforesaid view in writ Petition No. 2057/97 decided on 09-07-2001, therefore, we are not in a position to deviate from law and. our own view on the well known principle of consistency as per principle laid down by the Hon'ble Supreme Court in Muzaffar Khan's case (PLD 1959 S.C. 9).

3. The consent decree secured by the petitioner is also not in accordance with law laid down by this Court in case "Ghulam Mehr vs. Chief Land Commissioner Punjab, Lahore and 2 others" (PLD 1974 Lahore 520). It is pertient to mention here that this judgment was up-held by the Hon'ble Supreme Court. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law and are not relevant. It is also settled principle of law that each and eveiy case is to be decided on its circumstances and facts.

4. In view of what has been discussed above, this writ petition has not merit and the same is dismissed with no order as to costs.

(T.A.F.) Petition dismissed.

PLJ 2003 Lahore 414

Present: ABDUL SHAKOOR PARACHA, J. SAIN AKHTAR-Petitioner

versus MUHAMMAD YUSUF and 3 others-Respondents

C.R. No. 373 of 1995, decided.on 15.1.2002. (i) Punjab Pre-emption Act, 1913 (1 of 1913)-

—S. 22--Civil Procedure Code (V of 1908), O.XX, R. 14-AppeUate Court can extend time for depositing pre-emption amount both during pendency of appeal before it, as also when appeal was dismissed. [Pp. 417 & 418] A

(ii) Punjab Pre-emption Act, 1913 (1 of 1913)-

—S. 22-Civil Procedure Code (V of 1908), O.XX, R. 14-Deposit of pre-

• emption money-Appellate Court was bound to give reasonable time in as much as, there were no exceptional circumstances to exercise discretion otherwise-First Appellate Court had committed material irregularity by not exercising its jurisdiction vested in it while not giving time to petitioner for deposit of amount. [P. 419] B

1986 SCMR 489; 1976 SCMR 502; PLJ 1988 Lahore 217; PLJ 1982 SC (AJK) 73; 1999 MLD 135; 1986 SCMR 849; 1991 SCMR 2149; 1997 MLD 631 ref.

Malik Amjad Pervaiz, Advocate for Petitioner.

Ch. Muhammad Nawaz Sulehra, Advocate for Respondent.

Date of hearing: 15.1.2002.

judgment

This civil revision is directed against the judgment and decree dated 26.6.1994, passed by the Distt. Judge, Sialkot, dismissing the appeal against the judgment and decree dated 22.7.1984, whereby the suit filed by the petitioner for possession through pre-emption of the land 128. Kanal 11 Maria was decreed against the respondent-defendants on payment of Rs. 84,800/- and the petitioner-plaintiff was directed to deposit the above said amount after deducting Zara-Panjam if already deposited by him on or before 17.9.1984 failing which the suit of the plaintiff shall stand dismissed.

1. Brief facts of the case are that Habib Ullah alias Habib was the owner of the land measuring 128 Kanals and 11 Marias Khata No. 63/84 Khasras Nos. 2257, 2258, 2259, 2264, 2265, 2266, 2268, 2271, 2281, 2282, 2284, 2285, 2469, 2472, 2473, 2496, 2497, 2498, 2507, 2512, according to the register Haq Daran-e-Zamine, for the years 1975-1976, situated in Mauzia Seeowal Tehsil Pasroor, District Sialkot, was the owner. The above said land was sold through registered sale-deed dated 15.1.1980 by the said vendor in a fictitious sale price of 80,000/- in favour of Muhammad Yousaf, Shaukat Ali, Abdur Rashid, and Muhammad Rafqiue respondents, whereas only Rs. 55,000/- was actually paid. The petitioner filed a suit for possession through pre-emption on 13.1.1981 being the real son of vendor and also as owner in Tarrf, Patti, Deh and disputed Khata. -

2. The suit was contested by the defendants respondents by filing their written statement. They raised an objection that the suit has been incorrectly valued and that Rs. 80,DOO/- were actually paid as sale price of the suit to the vendor. On merit it was denied that the petitioner-plaintiff has superior right of pre-emption. From the divergent pleadings of the parties the following issues were framed by the learned trial Court:-

(1) Whether the plaintiff possesses superior right of pre-emption? OPP.

(2) Whether a sum of Rs. 80.000/- was fixed in good faith as the sale price of the suit land or was actually paid? OPD.

(3) If not so what was the market value at the time of sale? OP. Parties;

(4) Whether the suit has not been correctly valued for the purposes of Court-fee and jurisdiction? OPD.

(5) Whether the defendants are entitled to receive he expenses of registration of sale-deed etc. in case the suit is decreed? OPD.

(6) Relief.

1. As regard the superior right of pre-emption it was decided that the petitioner is the son of Habib Ullah vendor on the basis of birth entry Ex. P. 4, therefore, he has the superior right of pre-emption. Regarding Issue No. 2 about the sale price it was held that Rs. 80,000/- was paid by the vendee, on the basis of sale-deed Ex. D. 1 and agreement to sell Ex. D. 2. Issue No. 5 was decided in favour of the defendant. No finding was recorded on Issue No. 3 and it was held that the suit was correctly valued for the purposes of Court fee and jurisdiction. Consequently it was answered against the defendants. Resultantly vide judgment and decree dated 22.7.1984, the suit was decreed in favour of the petitioner subject to the payment of Rs. 84,800/- including Zara Panjum and costs of registration of the sale- deed. The plaintiff-petitioner was directed to deposit the above said amount after deducting Zar Pan/am if already deposited by him on or before 17.9.1984. No appeal was filed by the vendee-respondent-defendant. However, the petitioner feeling aggrieved regarding the sale price on Issue No. 2 filed the appeal before the learned District Judge on 29.8.1994. The same was admitted for regular hearing on 30.8,1984 by the learned Additional District Judge, who passed the order.

"Heard. To be registered. Notice to respondent for 27.9.1984. Record of the trial Court to summoned for this date. Decretal amount to the extent of Rs. 25,000/- by not paid to the respondents."

1. However, the petitioner deposited the amount to the extent of Rs. 55,000/- as sale price and Rs. 4,800/- as incidental charges before 17.9.1984. However, the appeal was dismissed by the learned District Judge, Sialkot, vide judgment and decree dated 26.6.1994, who observed that in fact the petitioner-pre-emptor failed to deposit the pre-emption money within time allowed by the learned trial Court. The operation of which was never suspended and had entailed in dismissal of the suit as pre-emption money was not paid within time specified in the decree and there was no valid extension of time, the suit stood automatically dismissed by force of compulsive provisions contained in Order 20, Rule 14 C.P.C.

2. Malik Amjid Parvaiz, the learned counsel for the petitioner has argued that the petitioner challenged the decree to the extent of sale price passed in respondent's favour. He had also sought interim relief in the nature of 'stay' but on account of technical error based on innocent mistake in the stay order, the petitioner could not deposit an amount as directed by the learned trial Court because the appeal was filed much before the expiiy of the time granted by the learned trial Court to deposit the amount on 29.8.1984 which was admitted on 30.8.1984 and the learned First Appellate Court passed the order that Decretal amount to the extent of Rs. 25,000/- be not paid to the respondents. The learned counsel has relied on the case reported in Bhai Khan vs. Allah Bakhsh (1986 SCMR 489), to contend that the appellate Court even when dismissing the appeal in a pre-emption matter should grant a reasonable time to the successful pre-emptor for depositing the amount. Further contends that in this case the appellate Court could have granted reasonable time because there was no exceptional circumstances not to exercise discretion in favour of the petitioner, who was a minor and was pursuing the case through her mother Mst. Rehmat Bibi Parda Nashin Lady, who was mis-led by the interim order dated 30.8.1984, whereby it was ordered that Decretal amount to the extent of Rs. 25,000/- be not paid to the respondents.

3. On the their hand, the learned counsel for the respondents. Ch. Muhammad Nawaz Sulehra, Advocate, argued that the petitioner was directed to deposit the Decretal amount of Rs. 80,000/- alongwith the incidental charges of Rs. 48,00/- before 17.9,1984. In view of the matter, the decree was not awarded in favour of the petitioner and there was no valid extension of the time. The suit stood automatically dismissed under Order 20, Rule 14 C.P.C. He has relied on the case of Haji Nawaz reported in 1976 ' SCMR 502, PLJ 1988 Lahore 217, to contend that if payment of the pre­ emption money was not paid within time specified in the decree and there is no valid extension of the time, the suit stood automatically dismissed.

4. The pivital and legal question for determination for this Court is whether the suit of the petitioner automatically stood dismissed on 17.9.1984 when he failed to deposit the full amount of Rs. 80,000/- in compliance with the judgment and decree dated 26.6.1994 when admittedly through an interim order dated 30.8.1984, the appeal of the petitioner was admitted for regular hearing. Record of the learned trial Court was summoned and it was directed that the Decretal amount to the extent of Rs. 25,000/- be not paid to the respondents. There was dispute about the actual price of the land in dispute between the parties whether the appellate Court while deciding the appeal gave reasonable time to the petitioner-pre-emptor and in that examination, the refusal to grant time could be only in exceptional case and whether there was an exceptional circumstances to exercise discretion otherwise in this case. So on the controversy between the parties provisions of Order 22 of Punjab pre-emption Act, I of 1993, read with provision of Order 41, Rule 33 are relevant. Section 22 of Punjab pre-emption Act (I) of 1913 read as follow: -

"22 (1) In every suit for pre-emption the Court shall at or at any time before he settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required of a sum not exceeding such probable value within such time as the Court may fix in such order."

Order-XLI. Rule 33 C.P.C. "33. Power of Court of appeal.-The Appellate Court shall have power to pass any decree and made any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, (provided that the Appellate. Court shall not make any order under Section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order)."

1. There is no dispute about the fact that the appellate Court had the power to pass any decree and made any order which ought to have been passed or made and to pass or make such fuzther or other decree or order as the case may require and this power may be exercised by the Court. The combined interpretation of Section 22 of the Pre-emption Act, of 1913 and Order 41, Rule 33 of C.P.C., Order-V of 1908 would show that the pre-eniptor is bound to deposit pre-emption money within the stipulated time granted by the learned trial Court in compliance with the provision of Order 20, Rule 14 of the C.P.C. and failure to make payment, the suit is liable to be dismissed. On the touch stone of Order 41, Rule 33 CPC, the appellate Court has the discretion to grant reasonable time to pre-emptor while dismissing the appeal. But in exceptional case the Court can refuse to exercise its discretion in favour of pre-emptor. In case reported in PLJ 1982 S<5 A.J.K. 73, it was held that the provision regarding the right of pre-emption are to be strictly construed and followed, therefore it was obligatory upon the plaintiff to follow the provision of Order 20, Rule 14 of the CPC. In the case Manzoor Ahmad vs. Rehmat All and 4 others (1999 MLD 135), the suit of the plaintiffs-pre-emptor was dismissed, who paid the amount to the vendee out side the Court instead of depositing the same in the Court. It was held that it is not valid deposit with the meaning of Section 22 of Pre-emption Act and Order 20, Rule 14 of the CPC. There is no dispute about the fact that the appellate Court can extend time for depositing the pre-emption amount both during the pendency of the appeal before it, as well when appeal is dismissed. However, this power is a subject to certain restriction and in the discretion of the appellate Court which has to be exercised in each case according to the facts of that case.,In case reported as Bhai Khan vs. AllahBakhsh (1986 SCMR 849), the Hon'ble Supreme Court held that the power to extent the time for deposits of the amount was available to the appellate Court but since the pre-emptor did not have a sufficient fund and it was merely interested in gaining time by filing appeal having hardly any merit and it was, therefore, not in the interest of justice to have extended time in favour of the pre-emptor, in above mentioned, case for depositing pre­ emption amount,,the Supreme Court did not interfere in the Order of the High Court and dismissed the appeal. The question of depositing of pre­ emption amount and to grant reasonable time to pre-emptor while dismissing his appeal came for consideration before the Hon'ble Supreme Court in case of Muhammad Arshad vs. Ch. Fazal Haq and 5 others (1991 SCMR 2149) and it was held that appellate Court has to grant reasonable time to the pre-emptor but it can be in exceptional case, refuse to exercise its

discretion in his favour. It was a case of two rival pre-emptor. Both were parties before the appellate Court and subject-matter had been re-opened in the appellate jurisdiction where in appeal in one or the other case and the Hon'ble Supreme Court made a distinction in the case of Bhai Khan (1986 SCMR 849) accepted the appeal, allowed 10 days time for making the necessary deposit. In case reported as Muhammad Iqbal vs. Anwaar and

another(1997 MLD 631), the Court while interpreting the provision Order 20, Rule 14 CPC endorsed the view that the appellate Court was

legally not correct while dismissing the appeal against the sale price has not fixed time for depositing of pre-emption money. High Court extended time

on the application of the pre-emptor which was maintained by the Hon'ble Supreme Court. On the touch stone of the provision of Section 22, punjab Pre-emption Act (1) of 1913, Order 20, Rule 14 and Order 41, Rule 33 of the CPC and the case of Muhammad Arshad (PLD 1991 SCMR 2149), the case has been examined and I have come to the conclusion that the learned District Judge was legally not correct for not to exercise his discretion in favour of the petitioner to give reasonable time to the petitioner for deposition the pre-emption money. There was a dispute about the actual

price of the land. The case of the petitioner before the learned trial Court

was that in fact Rs. 55,000/- has been paid by the vendee to the vendor and Rs. 80,000/- has been incorporated in the sale-deed fictitiously to defect the rights of the pre-emption. Sale price was disputed and contested. Decree was awarded and time was granted by the learned trial Court to deposits Rs. 80,000/- as sale price plus Rs. 4,800/- on account of incidental charges, the petitioner filed the appeal on 29.6.1984 but no appeal was filed by the jvendee. The appellate Court passed an ambiguous order that decretal amount to the extent of Rs. 25,000/- may not be paid to the respondents. The petitioner in compliance with the judgment and decree dated 26.6.1984

deposited the sale price to the extent of Rs. 55,000/- plus incidental charges

of Rs. 4,800/- before the stipulated time granted by the Court. The petitioner

was minor and the case was pursuaded by Mst.Rehmat Bibi his mother. It is

not th,e case of the respondents that the petitioner had no fund or that there

was some mala fide on the part of the petitioner for not depositing the Rs.

25,000/- less than sale price of Rs. 80,000/- fixed by the learned trial Court

in the impugned judgment and decree. Had been there any mala fide on the

part of the petitioner than there would have not been any deposit of amount

in the Court before-the stipulated time. The appellate Court has paid no

intention to the postponing of the payment of the pre-emption money during

the pendency of the appeal in clear manner. If proper rriind would have been applied, the payment would certainly have been postponed by suspending the excess value of the suit land amounting to Rs. 25,000/- and who was at

fault, the Court or the counsel for the appellant when the 25,000/- rupees

was not deposited, is not necessary to determine in this case because on this point decided in case of Bhai Khan the appellate Court was required even in case where no application was made for interim order to examine when

deciding the appeal to give reasonable time to the appellant-pre-emptor. In that examination the Hon'ble Supreme Court held that the refusal to grant time falls in the categoiy of exceptional cases. In case of Muhamamd Arshad (1991 SCMR 2149), the Hon'ble Supreme Court held that the appellate Court was bound to give reasonable time because there was no exceptional circumstance to exercise discretion otherwise. In this view of the matter, relying on the case of Muhammad Iqbal vs. Anwaar Anwar (1997 MLD 631) and following the Muhammad Arshad's case 1991

SCMR 2149 I am constrained to hold that in this case the appellate Court was bound to give reasonable time because there was no exceptional

circumstances to exercise discretion otherwise. The First Appellate Court

has committed material irregularity and has not exercised its jurisdiction vested in it while not giving the time to the petitioner for deposit of the amount.

1. For the reasons stated above, this revision petition is bound to succeed. The judgment and decree of the learned District Judge dated 26.6.1984 is set-aside. The judgment and decree of the learned trial Court is restored. The petitioner is given 10 days time for making the necessary deposit. There shall be no order as to the costs. The revision petition is allowed.

(T.A.F.) Revision petition allowed.

PLJ 2003 Lahore 420 (DB)

Present:maulvi anwar-ul-haq and mian hamid farooq, JJ.

AHMAD All-Appellant

versus MUKHTAR AHMAD and 13 others-Respondents

R.F.A. No. 201 of 1995, heard on 26.2.2002. (i) Qanun-e-Shahadat, 1984 (10 of 1984)--

—Arts. 100 & 101-Provisions of Art. 100 of Qanun-e-Shahadat deals with original document while certified copies are the subject matter of Art. 101 of Qanun-e-Shahadat 1984-Under Art. 101 of Qanun-e-Shahadat, it is not the age of original document but it is the age of certified copy which is relevant for the purpose of admissibility if said document which is relevant for purpose of admissibility of said document when produce.

[P. 423] A

(ii) Qanun-e-Shahadat, 1984 (10 of 1984)--

—Art. 74-Civil Procedure Code (V o 1908), O.XLI, R. 23-Remand of case- Respondent's plea, that his client be given a chance to produce and prove original document i.e., power of attorney executed by his predecessor in favour of respondent's predecessor-Case was remanded for production and proof of such evidence. [P. 423] B

Malik Abdul Wahid, Advocate for Appellant.

Mr. Jarri-Ullah Khanand Mr.M.A. Zafar,Advocates for Respondents.

Date of hearing: 26.2.20002.

judgment

Maulvi Anwar-ul-Haq, J.--On 4.5.1992, the appellant filed a suit against the respondents. In the plaint, it was stated that the suit property

was owned by Naik Muhammad. He was survived by the appellant, Fazal Muhamamd (Predecessor-in-interest of Respondents Nos. 1 to 7, Jan Muhammad (Predecessor-in-interest of respondents Nos. 8 to 12 as sons) and Mst. Daulat Bibi (deceased Respondent No. 13, as daughter); that Naik Muhammad died in December, 1963; that he had appointed the said Fazal' Muhammad as an attorney authorising him to pursue claim form regarding suit property and to pursue the matter of transfer. This Power of Attorney was registered on 23.2.1963; that the suit house was transferred to Naik Muhammad vide an order dated 23.1.1960 by D.S.C. Faislabad; that the suit property formed part of a house and the other part was transferred to Rao Jamshed All Khan. Later an appeal was filed against the order dated 23.1.1960 which was dismissed in the year 1962 while revision petition was dismissed in the year 1966. The P.T.D. was, however, issued after the dismissal of the said appeal in favour of the said Naik Muhammad on 26.6.1963. It was specifically stated in the plaint that Fazal Muhammad was never authorised to sell the suit property; that the said Fazal Muhammad proceeded to transfer the suit property in favour of his sons i.e. Respondents Nos. 1 to 4 vide a registered sale-deed dated 10.7.1963. The sale was stated to be unauthorised, without consideration and as such illegal. It was further mentioned in the plaint that the said Rao Jamshed All had also filed a writ petition against Naik Muhammad and all his sons and daughter of their successors were impleaded as respondents; that Fazal Muhammad never gave out that the property had been sold by him rather he obtained Power-of-Attorney from the said L.Rs. This writ petition was dismissed in the year 1973. It was further stated that the proceedings were started by the enforcement staff regarding the said claim of the deceased Naik Muhammad and thereupon the appellant and the respondents filed a writ petition. The

case was remanded back to the Settlement Commissioner who maintained the cancellation of the claim vide an order dated 19.11.1975. Thereafter one Mst. Bilqees Begum filed an application before the D.S.C. that the suit property be transferred to her. The matter was sent to the Chief Settlement Commissioner who videan order dated 15.11.1977 cancelled the transfer. Thereupon all the L.Rs. of Naik Muhammad filed a writ petition Bearing No. 1611/R/77 which was decided in their favour on 26.1.1980; that the appellant is a resident of Quetta and reposed trust in; Fazal Muhammad who had been appointed as an attorney by him. After the death of the said Fazal _T Muhammad and the other brother, namely, Jan Muhammad, the appellant checked up the record when he found that P.T.D. in favour of the L.Rs. had not been issued. An application was accordingly filed before the Notified Officer whereupon a notice was issued in the Newspaper. It was at this stage that the Respondents Nos. 1 to 4 declared that the property stands transferred to them and then on 22.3.1992 he obtained a copy of the impugned sale-deed. With these averments the appellant sought a declaration that the sale-deed be declared illegal and void and further sought a decree for a separate possession of his 2/7 share in the suit house. The suit was contested. The Respondent No. 1, on the one hand, while the remaining respondents, on the others, filed separate written statements. They objected that the suit is barred by time that the Respondents Nos. 3 and 4 have gifted away their share in favour of Respondent No. 1 videa registered gift-deed dated 3.6.1986; that the suit is bad for non-joinder of necessary Parties. On merits, it was insisted that the said Fazal Muhammad was duly authorized to transfer the suit property and that the sale in favour of Respondents Nos. 1 to 4 is valid.

1. The Respondent No. 1 also filed a suit against the appellant. In this suit he claimed to be the owner in possession of the suit property as his grand-father Naik Muhammad had executed a power of attorney in favour of his father on 23.2.1960 who transferred the property in favour of Respondent No. 1 and his other brothers and the other vendees gifted away their share in favour of Respondent No. 1 videa gift-deed dated 3.6.1986. He .sought a decree for a declaration that he is lawful owner in possession of the suit property and the appellant be restrained from dis-possessing him. This suit was resisted by the appellant with these pleas already stated above. Both the suits were consolidated and the learned trial Court framed the following issues:

"1. Whether the instant suit is time barred? OPD.

1. Whether the plaintiff has got no cause of action and locusstandi to file the instant suit? OPD.

2. Whether the plaintiff is estopped by his words and conduct from bringing the instant suit? OPD.

3. Whether this Court lacks jurisdiction to tiy the instant suit? OPD.

4. Whether the instant suit has not been properly valued for the purposes of Court-fee and jurisdiction? OPD.

5. Whether the instant suit is bad for mis-joinder and non-joinder of necessary parties? OPD. , 7. Whether the instant suit is false and frivolous and as such the defendants are entitled to recover special costs u/Section 35-A CPC? OPD.

6. Whether the registered sale-deed No. 2935 dated 10.8.1963 is illegal, without any authority, without any consideration, void, inoperative and ineffective qua the rights of the plaintiffs? OPD.

7. Whether the plaintiff is entitled to get a decree for possession through partition as prayed for? OPD.

9-A. Whether the Defendant No. 1 is entitled to get a decree for ' permanent injunction as prayed for? OPD.

1. Relief.

Evidence of the parties was recorded. The learned trial Court took up Issues Nos. 8, 9 and 9-A together and decided the same in favour of Respondent No.

1. Under Issue No. 1, the said suit was held time-barred. The Issues Nos. 2

and 3 were answered in affirmative for findings record on Issue No. 9-A. Issues Nos. 4 to 7 were found against the respondents. The suit filed by the

appellant was dismissed while the-suit filed by the respondent was decreed

videjudgment and decree dated 14.5.1995.

1. We have heard the learned counsel for the parties and have perused the trial Court record with their assistance. For the order we propose to pass in this R.F.A. we do not feel the necessity to note the respective contentions of the learned counsel for the parties.

2. As would be apparent from the pleadings of the parties, referred to by us above, the sale-deed (Exh. P/5 and Exh. D/4) was executed by Fazal Muhammad in favour of his sons acting as an attorney of late Naik Muhammad. The appellant had denied that Fazal Muhammad was authorised to sell the suit property of Naik Muhammad. Conversely the case of the respondents in their written statements and particularly of Respondent No. 1 in his plaint was that Naik Muhammad validly authorised Fazal Muhammad to transfer the suit property. Otherwise the burden of Issue No. 9-A lay squarely upon respondents, particularly Respondent No. 1. We find that the original power-of-attorney is not forthcoming on the record. A certified copy of the same was placed on the record by both the parties. The copy filed by the appellant is Exh. P/6. We find that this copy was issued on 10.7.1991. The copy filed by respondents is Exh. D'/3 and this copy was issued on 2.4.1995. Article 85(5) of Qanoon-e-Shahadat Order, 1984 excludes a registered, document the execution whereof is disputed, from the ambit of public document. Now it is a certified copy only of a public document as defined in the said Article 85 which is admissible in evidence as proof of the contents of the documents. In this state of evidence on record the learned trial Court has dealt with the matter at Page 8 of his impugned judgment in the Page 8 of his impugned judgment in the following manner:

"The above two documents i.e. the Power-of-Attorney dated 23.2.1960 and registered sale-deed dated 10.7.1963 are 30 years old and as such the requirement of their formal proof is dispensed with."

We are constrained to observe that the learned trial Court has virtually decided the case without any evidence and the reason is obvious i.e. the learned trial Court appears to be oblivious of the relevant provisions of Qanoon-e-Shahadat Order, 1984. The reference in the impugned judgment, of course, is to Article 100 of the said Order; 1984. But this provisions of law deals with original document. Certified copies are the subject-matter of Article 101 of the said Order, 1984. Under this Article it is not the age of the original document but it is the age of the certified copy which is relevant for the purposes of the admissibility of the said document when proceeded. We have already given the respective dates of issue of the copies above. None of the documents as such are 30 years old within the meaning of Article 101 of the Qanoon-e-Shahadat Order, 1984.

1. We also find that Issue No. 1 regarding the question of limitation has also been decided without any reference to the specific assertions contained in the plaint and also brought on record in the course of evidence to the effect that all the L.Rs. of Naik Muhammad had been litigating for this property in Courts several years after the alleged execution of the sale-deed by the said Fazal Muhammad in favour of his sons. The appellant had clearly stated that he acquired knowledge of the said sale in the year 1992. Findings of Issue Numbers 2 and 3 also flow from the said erroneous findings that had been recorded without any reference at all to the pleadings and the evidence on record, we are not inclined to uphold the same.

2. Confronted with the said situation prevailing on the face of the record, the learned counsel for the respondent contends that his clients be given a chance to produce and to prove the original documents i.e. the said power-of-Attorney stated to be executed by the said Naik Muhammad in favour of Fazal Muhammad or to prove the document in anyother manner prescribed by law. The learned counsel for the appellant does not object.

3. As a result of above discussion and in view of the said agreement between the learned counsel for the parties. This R.F.A. is allowed, the impugned judgments and decrees dated 14,6.1995 (Consolidated) are set aside. The result would be that both the suits shall be deemed to be pending in the Court of the learned Senior Civil Judge, Faisalabad where the parties shall appear on 3.4.2002.

4. The record of the learned trial Court immediately be remitted to the learned Senior Civil Judge, Faisalabad. The leaned trial Court shall give a chance to the respondents to produce the original Power-of-Attorney, referred to in the pleadings stated to have been executed by late Naik Muhammad in favour of late Fazal Muhammad and to prove the same or to lead evidence to prove the same in accordance with the provisions of the Qanoon-e-Shahadat Order, 1984. Thereafter to give a chance to the appellant to rebut the evidence, if any, to be led by the respondents and then to decide the Issues Nos. 1, 8, 9 and 9-A afresh in accordance with law and in the light of the observations made above.

5. No order as to the costs.

(T.A.F.) UFA allowed.

PLJ 2003 Lahore 424

Present: MlAN SAQIB NlSAR,J.

Hqji MUHAMMAD SIDDIQUE and 7 others --Petitioners

versus

MARKET COMMITTEE GUJRANWALA through its ADMINISTRATOR and 26 others-Respondents

W.P. No. 14393 of 1999, heard on 15.1.2002. Punjab Agricultural Produce Markets (General) Rules, 1979--

—-Rr. 21 & 72-Constitution of Pakistan (1973), Art. 199-Constitutional' petition-Maintainability in presence of availability of alternate remedy of appeal which has not been availed—Alternate remedy in terms of R. 21 of Punjab Agricultural Produce Markets (General) Rules, 1979 would not be available when the order had been passed by Government in granting ex post facto sanction while relaxing rules under R. 72 Constitutiona l petition was, thus, maintainable. [P. 427] A

Punjab Agricultural Produce Market (General) Rules, 1979-

—R. 67-Constitution of Pakistan (1973), Art. 199--Allotment of plots-Quota reserved for growers could only be made through Public auction-Relaxation of Rules and allotment of plots to favourites was colourable exercise of jurisdiction on the command of the Minister without proper application of mind and in violation of relevant Rules-Order of allotment of plots, being in violation of Rules and in colourable exercise of jurisdiction was not maintainable in circumstances. [Pp. 427 & 428] B

Syed Zain-ul-Abidin,Advocate for Petitioners.

M/s. M.A. Zafar, M. Aslam Sindhu, Sarfraz-ul-Hassan, Sardar Muhammad All Dogar, Umar Daraz Cheema, Mr. Nazeer Ghazi and Anwar Rehman, Advocates for Respondents.

Date of hearing: 15.1.2002.

judgment

Mian Saqib Nisar, J.-The instant Writ Petition No. 14393 of 1999, as also Writ Petition No. 16452/99, 16469/99, 17028/99, 17029/99, 18428/99, 18429/99, 10731/2000 and 418/2002, are being disposed of together as being connected matters.

1. Dispute raised in the present petitions relates to the transfer of 25 plots out of 30% quota of the plots meant for the allotment to the growers through public auction as required by proviso to Rule 67(6) of the Punjab Agricultural Produce Markets (General) Rules, 1979, (here-in-after called as Rules).

2. The above dispute has arisen in the background that the Government decided to establish new Fruit and Vegetable Market at the site named as "Noshehra Sansi Bypass", Gujranwala and for the purpose of allotment of plots in the newly established Market, constituted an Allotment Committee, vide letter dated 02.01.1986. It may be pertinent to state here that about 200 plots in the said Market, were available for allotment, out of which, 30% quota i.e. 60 plots, was meant for the purpose of sale to growers, but according to the provisions of the Rules mentioned above, this sale could only be made through public auction. However, in deviation thereof, the Respondent No. 1, who is stated in the petition to be the brother of an MPA, secretly after obtaining a resolution of the Market Committee, allotted 25 plots to the Respondents Nos. 2 to 26 and addressed the letter dated 26.3.1991 to the Agricultural Minister, Punjab for the ex post facto sanction. In the said letter, it is mentioned as follows:

"Keeping in view the importance of the matter, it is submitted for the ex post facto sanction by the Government. Therefore, it is requested that the approval for the above mentioned allotment may kindly be granted for relaxation of Rule 67 of the Punjab Agricultural Produce Markets (General) Rules, 1979."

On the above letter, Deputy Secretary, Government of the Punjab Agricultural Department, issued an order dated 24.4.1991 reading as follows:

"In exercise of powers vested under Rules 72 of the Punjab Agricultural Produce Markets (General) Rules, 1979, sanction is hereby granted in relaxation of Rule 67 ibidto allot 25 plots to growers in newly established Fruit/Vegetable Market Gujranwala at a price fixed by the Market Committee in accordance with the regulatory provisions of Punjab Agricultural Produce Markets Ordinance and the Rules framed thereunder."

On the basis of above, the said plots were transferred/allotted to the Respondents Nos. 2 to 26. One Ch. Muhammad Arshad Waheed, who was nominated as a Member on behalf of Fazal Fruits and Vegetable Market, challenged the orders in Writ Petition No. 12856/95, in which, comments were called from the official respondents and the petition was admitted to regular hearing on 12.10.1995. Status quo was also ordered to be maintained pending the writ petition. Petitioner No. 1, who is President of Jadeed Vegetable Market, Sheikhupura Road, Gujranwala and licensed Commission Agent, filed an application to be impleaded as a party to said writ petition. But the writ petition was withdraw by Ch. Muhammad Arshad Waheed. Resultantly, impleadment application could not be decided and thus, the present petition was filed.

1. In the other writ petitions, the petitioners are the persons, who were originally allotted plots out of the 25 mentioned earlier, but subsequently, their allotments have been cancelled and they have challenged this action of the Market Committee.

2. Learned counsel for the petitioners while arguing the case, has submitted that the proviso to Rule 67(6) .of the Rules, clearly envisages that the quota meant for the growers could only be disposed of through a public auction; the allotments were made in breach of the above rule, which is absolutely illegal and without jurisdiction. It is also submitted that the Minister Government of Punjab Agricultural Department, to whom the letter dated 26.3.1991 was addressed by the Administrative Market Committee Gujranwala, had no authority or power to grant ex post factosanction or to relax th.e rules. This power is only vested with the Government, and is circumscribed by certain conditions, which have not been adhered to while passing the impugned order; there is no application of mind by the Government, while relaxing the rules through order dated 24.4.1991 and such order is not only mechanical in nature, but also result of

dictated exercise of jurisdiction, having been passed on the behest of the Minister Government of Punjab Agricultural Department, who had no business to interfere in the matter. On the strength of above, the allotments made in favour of the Respondents Nos. 2 to 26, have been sought to be cancelled.

1. Mr. M.A. Zafar, Advocate, appearing on behalf of the Market Committee has explained the position, that though 25 plots were allotted to the Respondents Nos. 2 to 26, but subsequently, another committee was constituted and this committee has cancelled certain plots, which is the subject-matter of other petitions, anyhow, out of 60 of the total plots, subsequently, through open auction held on 01.01.1998, 18 plots have been disposed of, while 23 plots have been disposed of through same process on 08.09.1999; in this manner, 41 plots have already been sold through open' auction to the growers and only 19 plots now remains, allotted to the private respondents in pursuance of the resolution of the Market Committee and the order of the Government dated 24.4.199.1.

2. More over, Mr. M.A. Zafar, Advocate, has also raised two preliminary objections, firstly that the present petition is hit by the principle of laches, because the allotment order pertaining to the year 1991, has been challenged through the petition filed in the year 1999; besides that according to Rule 21, the petitioners had an alternate remedy of filing an appeal, which has not been availed.

3. Arguments heard. Firstly, I would like to dispose of the preliminary objections. As regards the issue of laches is concerned, suffice it to say that according to the petitioner, the impugned allotments were kept secret for considerable period of time, however, on learning about the same, Ch. Muhammad Arshad Waheed, who was the representative^for another group filed a petition, in which, Petitioner No. 1 moved an application for impleadment as party, but this petition was subsequently withdrawn and thereafter, the present petition has been filed. This clearly shows that the petitioners had always felt aggrieved of the above orders of allotment when those came to their knowledge. Besides, as for the reasons to follow, the impugned allotments are being declared patently illegal, in colourable exercise of jurisdiction and without lawful authority, therefore, while exercising the Constitutional jurisdiction, for equitable and fair dispensation of justice, the delay in filing this petition has no much relevance, thus, the objection is overruled. As regards the other plea that the petitioners have an alternate remedy as per Rule 21 of the Rules, suffice it to say that such rule does not provide the remedy of appeal to the petitioners, when, the order has been passed by the Government in granting ex post facto sanction, while relaxing the rules under Rule 72, therefore, this objection has no force.

4. Now coming to the main case, according to the provisions of Rule 67 (6) of the Rules, 30% quota was reserved for the growers and such allotment/sale could only be made through a public auction. This has not been done, rather the Administrator Respondent No. 1, who had no authority, made the allotment in breach of the rules and thereafter, applied to Minister Government of the Punjab Agricultural Department for the ex post facto sanction. The Minister was not the Government within the purview of law and had no authority to dictate to the Government for the relaxation of the rules. Nothing has been brought on the record by the respondents to rebut the allegations of the petitioners that the order dated 24.4.1991 has been passed by the Government in colourable exercise of jurisdiction and on the command of the Minister. There is also no material to show, if, proper application of mind was made at the appropriate level in the Government and the conditions laid down in Rule 72 were fulfilled. According to this rule, relaxation cannot be made as a matter of course, but for the reasons to be recorded in writing, the order dated 24.4.1991, does not mention any reason, why the ex post facto sanction was being granted. Besides, the rules can only be relaxed in individual cases, where the Government is satisfied that strict application of the rule would cause hardship to the individuals concerned. Again, this aspect of the matter, is conspicuously missing. No material about the satisfaction of the Government to relax the Rule 67 is postulated in the matter impugned before this Court. On the basis of above, it is absolutely clear that the allotment of 25 plots had been made for extraneous consideration by breaching the proviso to Rule 67(6) and the relaxation of rule ex post facto sanction is a colourable exercise of jurisdiction without meeting the requirement of Rule 72 and that too not by the Government, rather on the dictation of the Minister. Such order cannot be sustained, therefore, by accepting this petition, the impugned order making the allotment of 25 plots are declared to have been passed without lawful authority and are set aside with the result that all the allotments made on the basis thereof, stand cancelled. However, as pointed out by Mr. M. A. Zafar, Advocate that through subsequent allotment, 41 plots have been disposed of through open auction and only 19 of the disputed plots remains in issue, therefore, this order would apply only to the extent of 19 plots.

5. As regards the other writ petitions suffice it to say that because of the acceptance of the noted writ petition, all these writ petitions cannot be allowed for the reasons that the allotments of all the 25 plots including the plots qua which, the other writ petitions pertain, have been declared to have been allotted without jurisdiction and lawful authority, therefore, these petitions are hereby dismissed.

(T.A.F.) Petition dismissed.

PLJ 2003 Lahore 429

Present: maulvi ANWAR-UL-HAQ, J. MUHAMMAD AKRAM KHAN-Petitioner

versus MALIK MUHAMMAD YOUSUF-Respondent

C.R. No. 143 of 1996, heard on 8.4.2002. (i) Punjab Pre-emption Act, 1913 (1 of 1913)-

—S. 31~Public notice in respect of sale through registration within two weeks would he necessary-Such notice was required to be displayed on main entrance of a mosque and on any other public place of the village or place where property was situated-Provision of notice though couched in mandatory term, yet no consequences for non-compliance of «uch provision have been provided while Section 3 of Limitation Act 1908, provides that suit filed beyond limitation prescribed would be dismissed.

[P. 430] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 31--Notice of sale by Registrar-Non-compliance of~Non-compliaace thereof, cannot be pressed into service as a ground for extension of limitation prescribed by S. 30 of Punjab Pre-emption Act, 1991. [P. 431] B

Mr. Hassan Ahmad Khan Kanwar, Advocate for Petitioner.

•f

Nemo for Respondent. Date of hearing: 8.4.2002.

judgment

This judgment shall decide C.R. Nos. 143/96 to C.R. No. 147/96 ascommon questions are involved. In all these cases through five sales-deeds

Bearing Nos. 272 to 276 registered on 20.6.1993 the respondent purchased the suit land involved in each of these cases. On 17.11.1994 the petitioner filed suits for possession by pre-emption. In the plaint it was stated that the petitioner could not acquire knowledge of the sale because of the failure of the Registrar to affix a notice in accordance with provisions of Section 31 of the Punjab Pre-emption Act, 1991. Since the suit was filed beyond the period of limitation prescribed in Section 30 of the said Act, the respondents in all these cases filed an application under Order VII Rule 11 CPC. The learned trial Court finding the suit to be barred by law, proceeded to reject the plaint vide orders dated 11.4.1995. Decree sheets were also prepared. First appeals filed by the respondent were dismissed by the learned District Judge, T.T. Singh on 20.9.1995.

1. Learned counsel contends that Sections 30 and 31 of the said Punjab Pre-emption Act, 1991 are complimentary to each other and are to be read together. The precise plea of the learned counsel is that the period of limitation for filing a suit under the said Act would commence from the date when a proposed pre-emptor has the knowledge and that this knowledge is to be determined with reference ,to the performance of the act of fixation of notice at a public place by the Registrar while registering the sale-deed.

2. I have given some thought to the said submissions of the learned counsel. There is no doubt at all that whereas the sales in these cases were registered on 20.6.1993 the suits were filed on 17.11.1994 i.e. after about 17 months of the sale. The time prescribed for filing a suit under the said Act is four months and the date of commencement is the date of registration of the sale-deed (in this particular case). Now the Section also caters for a situation where the sale takes place by means of attestation of a mutation and also where neither the sale-deed is registered nor a mutation is attested but the possession is delivered to the vendor under the sale. In the said two cases the said period of four months is to start from the date of attestation of mutation and the date of delivery of possession respectively. Clause (d) of Section 30 is also relevant inasmuch as it does provide for commencement of limitation so prescribed in Section 30 from the date when J;he pre-emptor has the knowledge of the sale but this is so only if the sale is not made in any of the manners stated in Clauses (a), (b) and (c) of the said Section 30.

3. Section 31 of the said Act, on the other hand, ordains an officer registering the sale-deed to give a public notice in respect of such registration within two weeks of the registration. Sub-section (2) of Section 31 lays down that such a notice shall be deemed to have been sufficiently given if it is displayed on a main enterance of a mosque and on any other public place of the village or place where the property is situated. The provision appears to be couched in a mandatory term since the word "shall" has been used.

However, neither the said Section 31 nor any other provision of the said Act of 1991 provides for any consequences for the non-compliance of the said provisions. To be precise no penal effect stands spelt out in the entire Act for the non-compliance of the provisions of Section 31 thereof. On the other hand, Section 3 of Limitation Act, 1908 read with Section 29 thereof provides that a suit filed beyond limitation prescribed shall be dismissed.

1. The sales in these cases have been effected by means of registered documents. To my mind, there can be no concealment or even attempt at concealment by the vendor and the vendee i.e. the parties to the said registered documents, in this case for the reason that the proceedings are conducted by a public functionary at a public place and the copies can be obtained by any member of the public on paying the usual charges. To my mind Section 31 of the said Act has no nexus with Section 30 thereof. If at all when read in the light of Section 13 (read with Section 6) of the said Act, the said provision of Section 31 may be pressed by a vendee defendant to post the pre-emptor with a positive knowledge of the sale with reference to the performance of Talb-e-Muathibat as.prescribed in Section 13 of the said Act.

It will be noted that the charges for the notice are payable by the vendee and recoverable from him. Thus the vendee, in case the Talb-e-Muathibat has been made, at a point of time after two weeks of the registration of the sale-deed, can show, either by proof or with reference to statutory presumption attached to the performance of public functions that a notice was given in terms of Section 31 and that the pre-emptor will be deemed to be posted with the knowledge of the sale with reference to the point of time mentioned in Section 31 of the Act.

1. I am, therefore, of the opinion that the provisions of Section 31 or to be more precise, the non-compliance thereof by the Registrar, cannot be pressed into service as a ground for extension of the limitation prescribed by Section 30 of the Punjab Pre-emption Act, 1991. All these five Civil Revisions are accordingly dismissed leaving the parties to bear their own costs.

(T.A.F.) Revision dismissed.

PLJ 2003 Lahore 431 (DB)

Present :ch. ijaz ahmad and saved sakhi

HUSSAIN BUKHARI, JJ.

GHULAM MUSTAFA and another-Appellants

versus

MUHAMMAD KHALID CHAUDHRY-Respondent

R.F.A. No. 155 of 1998, heard on 21.3.2002. Contract Act, 1872 (IX of 1872)--

— S. 2(h)-Time is not essence of contract qua agreement with regard to immovable property unless and until the same was proved by the party who claims that time was essence of contract with cogent evidence-­ Defendants failed to bring on record sufficient material to show that time was essence of contract-Re-appraisal of evidence on record showed that finding of trial Court on such aspect of case was correct and, thus, the same was maintained. [P. ] A & B

Safdar Hayat Bhatti, Advocate for Appellants. Mian Javid Rasheed, Advocate for Respondent. Date of hearing: 21.3.2002.

judgment

Ch. Ijaz Ahmad, J.-The brief facts out of which the present appeal arises are that agreement to sell was executed between the parties qua the property in question on 3.6.1989. The terms of the agreement reveal that agreement was executed between the parties for a consideration of Rs. 10,00,000/- out of which appellants had received Rs. 2,80,000/-. The appellants failed to executed sale-deed in favour of the respondent. The respondent being aggrieved filed a suit for specific performance before the learned Civil Judge 1st Class, Lahore. The appellants/defendants filed

written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:--

1. Whether the plaintiff himself resiled from the terms and conditions of the impugned contract and as such due to his own conduct and fault the sale-deed was not executed? OPD.

2. Whether the suit is not maintainable in its present from in view of preliminary Objection Nos. 2 and 5, of the written statement? OP.D.

3. Whether the suit is time-barred? OPD.

4. Whether the suit is false and frivolous? OPD.

5. If Issue No. 1, is proved in negative then whether plaintiff is entitled to a decree for specific performance of contract? If so upon what terms and conditions? OPP.

6. Relief.

After recording the evidence of the parties, the learned trial Judge decreed the suit vide his judgment and decree dated 11.4.1998. Hence the present appeal.

1. Learned counsel for the appellants submits that time was fixed between the parties to execute the sale-deed till 30.11.1989 but the respondent/plaintiff did not file suit within the prescribed period, the

respondent/plaintiff filed an application for condonation' of delay alongwith

the plaint without explaining the delay of each day and that the learned trial Court was erred in law to decide the Issue No. 3 in favour of the respondent/plaintiff. He further submits that trial Court-was erred in law to decide the remaining issues against the appellant without any justification and with proper appreciation of evidence on record. He further submits that respondent failed to honour his own commitment in terms of the agreement to sell. The learned counsel of the respondent submits that appellants accepted the agreement to sell as is evident from the written statement of the appellants before the trial Court and also admitted in evidence by D.W-1 qua the contents of the agreement to sell as well as accepted that part of the earnest money was received by the appellants after target date.

He further submits that learned counsel of the appellants failed to point out any illegality or infirmity in the impugned judgment of the trial Court and that the trial Court had decided all issues against the appellants after proper appreciation of evidence on record.

1. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves.

2. It is pertinent to mention- here that there is no dispute between the parties pertaining to the sale agreement dated 3.6.1989 and receipt of Rs. 1,00,000/- as earnest money. It is also admitted fact that the appellants

defendants received Rs. 50,000/- from the respondent/plaintiff as earnest money after the target date. This fact brings the case in the area where the parties did not stick to the target date for the execution of the agreement to sell within the specified period mentioned in the original agreement. After receiving the said amount by the appellant i.e. Rs. 50.000/- on their ownrequest the amount of earnest money was further enhanced to the tune of Rs. 50,000/- and again Rs. 80,000/- were paid by the respondent/ plaintiff to the appellants/defendants. In this way the appellants received Rs. 1,80,000/- as enhanced amount after the target datez.e. 30.11,1989. The appellants/ defendants admitted that they received Rs. 2,80,000/- from the respondent/ plaintiff. In case the whole evidence be put in a Juxta position then it brings the case in the area that time was not essence of the contract. Even otherwise it is settled principle of law that time is not essence of contract quathe agreement with regard to the immovable property unless and until the same is proved by the party who claims that the time is essence of the

contract with cogent evidence. But the appellants/defendants failed to bring on record sufficient material to show that time is essence of the contract. We have reappraised the evidence on the record and we uphold the finding of the learned trial Court on Issue No. 1. In arriving to this conclusion we are fortified by the law laid down in Malik Ghulam Jilani versus Malik Munir Ahmed Khan and others (PLD 1960 (W.P.) Karachi 517). The relevant observation is reproduced hereunder:

The question therefore whether time is of the essence of the contract depends upon the intention of the parties, the surrounding circumstances and the nature of the property. The mere fact that certain time is specified for the payment of the amounts in consideration of which the property is transferred will not show that time is of the essence of the contract. So far as the contracts relating to land are concerned, it is well settled that time fixed for the completion of the transaction is not considered to be of the essence of the contract. The presumption in such contracts, though specified .-f time is mentioned within which completion is to take place, is that the parties really and in substance only intended that it should take place within a reasonable time. This presumption, however, is rebuttable

The subsequent conduct of the defendants also shows that they never treated the time fixed for the payments of the amounts in the agreement as of essence of the contract. Under Clause of the agreement Rs. 19,000/- was to be paid after a week from the notice of construction give to the plaintiff " Similarly we uphold the finding of the trial Court on Issue No. 2 as agreement to sell was not 'denied by the appellants/defendants in their evidence as well as in the written statement. We have already held that time in not essence of the contract while discussing Issue No. 1, therefore, we

uphold the findings of the learned trial Court on Issue No. 2. In vie^ of our finding on the aforesaid issues we uphold the findings on the remaining issues. It is pertinent to mention that the learned counsel of the appellants only pressed Issues No, 3 before us.

1. In view of what has been discussed above, this appeal has no merits and the same is dismissed.

(T.A.F.) Appeal dismissed.

PLJ 2003 Lahore 434 (DB)

Present:mian saqib nisar and

mian hamid farooq, JJ

4 MAQSOOD AHMAD KHAN and another-Appellants

versus MUHAMMAD SAEED and 3 others-Respondents

R.F.A. No. 56 of 1994, heard on 3.4.2002. (i) Civil Procedure Code (V of 1908)—

-—S. 115--Specific Relief Act (I of 1877), S. 42-Judgment and decree of Trial 4Court on basis of evidence on record to the effect that vendor had validily / executed agreement to sell, appeared before Sub-Registrar, received sale " amount, delivered possession of land in question to defendant and that sale was valid in law was borne out from evidence-No interference in judgment and decree of Trial Court was warranted in circumstances.

[P. 438 & 439] B

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

—S. 42-Execution and registration of sale-deed-Perusal of evidence on record establishes beyond doubt that sale-deed in question, was executed by vendor, he presented the same before Sub-Registrar, received sale amount from defendant vendees-Fact that amount in question deposited in the name of vendor's nephew, would not make the sale void or ineffective against his rights. [P. 438] A

Muhammad Iqbal Ghaznavi, Advocate for Appellants Ch. Nazeer Ahmed Bhutta, Advocate for Respondents. Date of hearing: 3.4.2002.

judgment

Mian Saqib Nisar, J.-Munshi Khan, the predecessor-in-interest of the appellants, on 10.06.1989 brought a suit for possession, and also challenged the sale-deed dated 13.03.1988, registered in favour of the Respondents Nos 1 and 2, on the ground that the said respondents had procured the same through fraud and mis-representation. Plaintiffs case is, that though he executed the sale-deed dated 12.03.1988, but the Respondents Nos. 1 and 2, did not make him the payment of the consideration amount of Rs. 4,16,000/- on the pretext that the sale-deed shall be submitted for registration the next day, but thereafter, they did not contact the plaintiff, rather by producing some fictitious person before the Sub-Registrar/Joint Registrar, Faisalabad, on 13.03.1988, got the sale-deed registered in their names, resultantly, such sale is ineffective are invalid qua his rights, he accordingly asked for the declaration and prayed for the possession of the suit property. It may be pertinent to state here, that besides the vendees, the two witnesses of the sale-deed namely Muhammad Sharif, the alleged broker, and Muhammad Ashraf, the nephew of the plaintiff, were also impleaded as defendants, on the ground that all the defendants in collusion with each other, had played fraud upon the plaintiff. The suit was contested by the defendants, following issues were framed:-

1. Whether the plaintiff has no cause of action to file this suit? O.P.D.

2. Whether the suit is collusive with Maqsood Ahmed Khan? O.P.D.

3. Whether the suit is not maintainable because the thumb impression of the plaintiff is not genuine? O.P.D.

4. Whether the plaintiff has no locus standi to file this suit? O.P.D.

5. Whether the plaintiff is estopped by his conduct to file this suit? O.P.D.

6. Whether the suit property has not properly valued for the purposes of Court-fee and jurisdiction? O.P.D.

7. Whether the plaintiff has not come with clean hands ? O.P.D.

8. Whether the plaintiff has not given the details of fraud and the suit is defective ? O.P.D.

9. Whether the suit is frivolous and the Defendants Nos. 1, 2 are entitled to special costs U/S. 35-A C.P.C. ? O.P.D.

10. Whether the registered sale-deed dated 13.3.1988 is not executed by the plaintiff before the Joint Registrar, Faisalabad ? O.P.P.

11. Whether the plaintiff is entitled to decree as prayed for ? O.P.P.

12. Relief.

The plaintiff examined PW1, Bashir Ahmad, Accountant ABL Branch, Faisalabad, who deposed that the amount of Rs. 3,00,000/- was deposited in the hank account of Muhammad Ashraf/Respondent No. 3, Muhammad Arshad Tirmazi/PW2, in the Head Clerk in the office of D.C., Faisalabad, and has stated that the endorsement at the back of the sale-deed Ex. Dl is not in his hand-writing, but of his Assistant, PW3/ Akbar Ali, the Reader of the B.C., Faisalabad has stated that though there is thumb impression of the vendor on the register against relevant serial number, but he has not got this impression affixed in his presence. The plaintiff also applied to the Court for seeking comparison of his thumb impression on the record of the Sub-Registrar/Joint Registrar office, which request was finally allowed, however, it was found that there is double mark on the thumb impression, and resultantly, no comparison could be effected. Conversely, the defendants/ respondents examined DWl/Rao Muhammad Tariq, Magistrate 1st Class/ Sub-Registrar, Faisalabad, who had effected the registration of Ex. Dl, Muhammad Sharif, the alleged broker and Muhammad Ashraf, nephew of the plaintiff, appeared as DW2 and DW3, they are the marginal witnesses of the aforesaid document and had also identified the plaintiff at the time of the registration, and DW4 is the vendee himself. Besides, the above oral evidence, the respondents/defendants also brought on record copy of the impugned sale-deed Ex. Dl, Iqrarnama/agreement to sell dated 29.02.1988 as Ex. D2, the receipt of an amount of Rs. 1,16,000/- as Ex. D3, copy, of the plaint in a suit earlier filed by Maqsood Ahmed against the plaintiff and also the defendants, as Ex. D4, which was dismissed by the Court on account of non-deposit of the process fee, vide order Ex. D5; Ex. D6 is the notice for pre­empting the sale, issued by one Nazir Ahmad. The trial Court on the conclusion of the trial had dismissed the suit, holding that Munshi Khan, had executed the sale-deed and also appeared before the Sub-Registrar. Hence this-appeal.

1. Learned counsel for the appellants contends, that the Court below has misread the evidence; because it was established on the record that the plaintiff/Munshi Khan, was never present before the Sub-Registrar on 13.03.1988, and some fictitious person was produced. It is also stated that the sale-deed in view of the location of the suit property should have been got registered at the Tehsil Jaranwala, but with a fraudulent intent, the respondents had the same registered at District Faisalabad, and resultantiy, on account of the above, the fraud stands established. It is further submitted, that the respondents with an object to perpetuate and conceal their fraud had tempered the thumb impression of Munshi Khan on the record of the Sub-Registrar/Joint Registrar, Faisalabad, so that those could not be examined arid proved not belong to him. In elaborating the above contention, it is submitted that the appellant at the earlier applied to the trial Court for the opinion of the Finger Print Expert about this impression on the record of the Sub-Registrar, but the respondents resisted the matter, obviously with an object to gain time to manipulate and tamper the impression. It is also contended, that the fraud has been committed with the plaintiff, in collusion with Muhammad Ashraf and Muhammad Sharif, and the proof of the fact is that an amount of Rs. 3,00,000/- was deposited in the account of Muhammad Ashraf on 14.03.1988, which fact proves that the consideration amount was not paid to Munshi Khan. It is further submitted, that on the copy of register Ex. P3 of the Sub-Registrar, there is no date of any other entry with regard to the attestation of the sale-deed Ex. Dl. Lastly, it is submitted that the endorsement at the back of the sale-deed should have been reverified by the Sub-Registrar and not by a Clerk as is in the instant case.

2. We have heard the learned counsel for the parties, and find that apart of the execution and registration of the sale-deed Ex. Dl, Munshi

Khan, had entered into an agreement to sell with the Defendants Nos. 1 and 2 for the sale of the suit land for a total consideration of Rs. 4,16,000/-and in this behalf, had executed an agreement to sell Ex. D2, dated 29.02.1988, as per this agreement, which has been proved through the marginal. witnesses Muhammad Sharif and Muhammad Sharif, Munshi Khan, had received Rs. 1,16,000/- as an advance/earnest money and the balance amount was payable at the time of the fmalization of the transaction. Ex. D3, is the receipt of the even date, through which Munshi Khan, had received the above advance amount and this document has also been proved through the marginal witnesses, thus, in pursuance of the above agreement, sale-deed Ex. Dl, was executed by Munshi Khan on 12.03.1988, and the

same was registered by the Sub-Registrar, Faisalabad, on 13.3.1988. The attorney of Munshi Khan while appearing as a witness, has not denied the execution of the sale-deed in which due reference has been made to the agreement to sell and the receipt of the advance money. The case of Munshi Khan, is that as the consideration was not paid to him on 12.03.1988 and on the request of the Defendants Nos. 1 and 2 the registration process was postponed, but subsequently the respondents by producing some fictitious person got the sale-deed executed/registered, is absolutely not proved on record. It may be mentioned here, that Maqsood Ahmed, son of Munshi

Khan/plaintiff, had earliest filed a suit against the defendants and in paragraph 4 of the plaint Ex. P4, it is stated that the amount of the sale proceeds receipt on the basis of the sale-deed, was not given to Munshi Khan, rather Defendant No. 3, had deposited this amount in his own account. Even in the present case, the basic grievance agitated, is that the amount of consideration has not been paid to Munshi Khan. The plaintiff himself has produced PW1, the Accountant of the ABL, Faisalabad, who has stated that an amount of Rs. 3,00,000/- was deposited in the account of Muhammad Ashraf/Respondent No. 3, who is the nephew of Munshi Khan and is the marginal witness of the above three documents and had also identified Munshi Khan at the time when the sale-deed was presented. This clearly shows, that the Defendants Nos 1 and 2, did pay the consideration to Munshi Khan, but if he was accompanied by Muhammad Ashraf, his nephew, and the amount has been retained by Muhammad Ashraf and deposited in his own account, the Defendants Nos. 1 and 2 cannot be held to have not paid the consideration and on this account, the sale-deed cannot be rendered ineffective and declared that the same was got registered by producing some fictitious person in the place of Munshi Khan. PW3/Maqsood Ahmed, son of the plaintiff, while appearing as a witness, had stated that he was residing in Sind and that in his absence Muhammad Ashraf, PW3, was looking after Munshi Khan, and also providing him with food etc. It may be pertinent to state here, that in pursuance of the above sale-deed, the mutation was also attested in favour of the Defendants Nos. 1 and 2 and the possession was also taken over by them. It may further be mentioned here, that DW1/ Rao Muhammad Tariq, Magistrate 1st Class, who is the Sub-Registrar, Faisalabad, had appeared and has testified that he also checked the Identity Card of Munshi Khan at the time of the presentation of the sale-deed Ex. Dl before him, and that the payment was made to the vendor in his presence. All this evidence establishing beyond doubt, that the sale-deed was executed by Munshi Khan, he presented the same before the Sub-Registrar, received the money from the Defendants Nos 1 and 2, but if the amount has been misappropriated by his nephew Muhammad Ashraf/DW3, the sale as mentioned earlier cannot be held void or ineffective against his rights.

1. As regards the argument, that there are certain discrepancies in the record of the Sub-Registrar regarding serial number etc., suffice it to say, that it is not the case of the plaintiff in the plaint, and it is settled law, that no person can lead evidence beyond the scope of his pleadings; specific grievance of the plaintiff, is that he never appeared before the Sub-Registrar on 13.03.1988, but now to refer to any discrepancy in the record of the registration authority, would not be of any advantage to the plaintiff. It may also be mentioned here, that the discrepancies pointed out about the serial numbers and the signatures of the Sub-Registrar, are of very insignificant nature and have no effect upon the validity of the sale-deed which otherwise stands proved.

2. The other submission, that the sale-deed was not got registered at Jaranwala, rather at District Faisalabad, it may be mentioned, that in support of the above submission, no law has been cited due to which the sale-deed can be held to be valid on this account.

3. The last submission that the thumb impression of Munshi Khan, was tampered by the responded, on the register of the Sub-Registrar, so as to avoid the possibility of the -comparison by a Finger Print Expert, and therefore, the sale by declared invalid. It may be held that no inference without any evidence on the record, that the thumb impression has been tampered by the Defendants Nos. 1 and 2, can be drawn against them.

4. In the light of above, we do not find any error in the judgment of R the Court below in reaching to the conclusion that Munshi Khan, had validly

executed the agreement to sell, appeared before the Sub-Registrar, received the money of the consideration, delivered the possession, and therefore, the sale is valid in law; our own reading of the evidence on record, takes us to the same conclusion. Accordingly, this appeal has no merits and is hereby dismissed.

(T.A.F.) Appeal dismissed.

PLJ 2003 Lahore 439

Present: MAULVI ANWARUL HAQ, J. Mst.MEHR KHATOON and 2 others-Petitioners

versus PROVINCE OF PUNJAB through COLLECTOR-Respondents

C.R. No 710 of 2002, decided on 8.4.2002 (i) Civil Procedure Code (V of 1908)—

—-O. VIII, R. 11 (c)--Relief sought by petitioner/defendant upon setting aside of judgment of High Court rendered in petitioner's, writ petition which Trial Court or Appellate Court or even High Court while exercising revision petition could not do-Plaint was thus, rightly rejected by Trial Court. [P. 441] A

(ii) West Pakistan Land Revenue Act (XVII of 1967)—

—S. 53-West Pakistan Land Revenue Act 1967, itself provides right to a party to get its title established in Civil Court by filing declaratory suit notwithstanding entries to the contrary in revenue record. [P. 441] B

1994 SCMR 826; 2002 SCMR 338 ref.

Mr. Muhammad HanifNiazi Advocate for Petitioners. Date of hearing: 8.4.2002.

order

On 27.1.2001 the petitioners filed a suit against the respondent. In the plaint it was stated that father of the petitioners was an owner in village Ditta Khail Kacha, Tehsil and District Mianwali and that the land was inherited by them vide Mutation No. 6632 attested on 25.3.1971; that the said land of the deceased predecessor-in-interest had been acquired by WAPDA for Chishma Barrage. The land inherited by the petitioners and acquired for the said purpose was classified as 5 Kanals 17 Marias Nul Cham" (Petitioner No. 1), 5 Kanals 17 Marias Nul Chahi (Petitioner No 3) and 5 Kanals18 Marias Chahi\ (Petitioner No. 2). This classification was made with reference to Rabi, 1971. On the basis of this assessment entitlement Certificates Nos 32, 33 and 34 were issued and land was allotted and delivered. Thereafter it was stated that these certificates have been cancelled by the Deputy Commissioner illegally; that appeal filed before the Commissioner, Sargodha Division was dismissed on 6.3.1993 while revision petition was dismissed by the Board of Revenue, on 15.8.2000. With these averments a declaration was sought and that the said orders cancelling the certificates of entitlement are illegal and void. The respondent in its written statement asserted that the entitlement certificates were wrongly issued and were correctly cancelled. It was also pointed out that W.P. No. 22296/2000 filed by the petitioners against the said orders of the Collector, Commissioner and the Member Board of Revenue has been dismissed by this Coiirt on 3.11.2000. The learned trial Court vide order dated 28.6.2001 rejected the plaint under Order VII, Rule 11 CPC. A first appeal filed by the petitioners has been dismissed by a learned Additional District Judge, Mianwali on 13.9.2001.

1. Learned counsel with reference to the case ofJewan and 7 othersvs. Federation of Pakistan through Secretary, Revenue Islamabad and 2 others (1994 SCMR 826), vehemently argues that the learned Courts below have acted without jurisdiction while rejecting the plaint According to the learned counsel for purposes of Order VII, Rule 11 CPC only the plaint could have been looked into and this Rule has been violated by the learned Courts below while passing the impugned orders.

3.I have gone through the reconstructed records, with the assistance of the learned counsel. I have already referred to the material contents of the plaint above. I have examined the impugned orders in the light of the plaint, I find that the learned Courts below have not at all referred to any document other than plaint while passing the impugned order. It is mentioned in the plaint itself that the Collector had cancelled the entitlement certificates and that the appeal and revision were dismissed. It is true that the respondent had brought it to the notice of the Courts below that this Court had also dismissed the writ petition filed against the said orders but then it cannot be said that the learned Courts below have walked out of their domain by referring to the said judgment of this Court. To my mind, it was for the petitioners to have mentioned the fact in the plaint that this Court had rejected their writ petition against the orders being questioned by them in the civil suit. They are in fact guilty of concealment of facts. Be that as it may, the learned counsel does not deny the said fact. I may here refer to a recently reported judgment of the Hon'ble Supreme Court in the case of S.M. Shafi Ahmad Zaidi through Legal Heirs vs. MalikHassan All Khan (Main) through Legal Heirs (2002 SCMR 338), wherein it has been observed in Para 14 of the judgment at Page 342 of the report as follows:

"14. Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered alongwith the averments made in the plaint."

To my mind, the learned Courts below have acted within their jurisdiction, rather they were bound to take notice of the judgment of this Court dismissing the writ petition filed against the orders impugned before the learned Civil Judge.

1. Learned counsel then tried to argue that notwithstanding the said judgment of the Court, the suit can proceed. I am afraid the contention is misconceived at least in the facts and circumstances of the present case. I confronted the learned counsel with ground (c) (Para 11) of this Civil Revision wherein it has been alleged that this Court had committed an error while dismissing the writ petition in limine. Now it is but obvious that if the relief is dependent upon setting aside of the said judgment of this Court, the same cannot be granted by a Civil Judge or for that matter by the Additional District Judge or by even this Court hearing the Civil Revision. In case the petitioners were aggrieved of the said judgment, the same had to be challenged in the manner prescribed by law.

2. Learned counsel then argues that this Court while deciding the writ petition earlier did not take note of a later notification issued on the subject. The learned counsel then corrected himself and stated that the said later notification was not brought to the notice of this Court whom the earlier judgment was rendered in the writ petition. If this is so, even then the same may, if so permitted, by law, constitute a ground for review of judgment of this Court out not a ground to challenge the judgment by filing a civil suit.

3. Learned counsel then referred to some judgments rendered under the provisions of the Punjab Land Revenue Act, 1967 to urge that the suit was still competent. I am afraid the said Act by itself provides a right to a party to get its title established in a Civil Court by filing a declaratory suit notwithstanding the entires to the contrary in the revenue record. Nothing, therefore, turns on the said contention.

4. No other point has been urged. The Civil Revision is dismissed inlimine.

(T.A.F.) Civil Revision dismissed.

PLJ 2003 Lahore 442 (DB)

Present:JAWWAD S. KHAWAGA & ABDUL SHAKOOR PARACHA, JJ SABRAN BIBI and 7 others-Appellants

versus WAPDA through its CHAIRMAN WAPDA HOUSE-Respondents

R.F.A. No. 249/1992, heard on 10.4.2002. (i) Fatal Accidents Act (XIII of 1855)—-

—S. 1—Res Ipsa Loquitur, principle of~Connotation~In suit for damages under Fatal. Accidents Act 1855, normally plaintiff has to prove negligence and in some cases such principle might cause hardships to plaintiff for reason that true cause of accident lies slowly within the knowledge of defendants who caused the same-Such hardship, however, can be avoided to considerable extent by maxim "Res Ipsa Loquitur" which means that "things speak for themselves". [P. 444] A

(ii) Fatal Accident, Act (XIII of 1855)—

—S. 1-Death caused by accident due to broken wire of electricity-Suit for damages-Question of evidence-Neither death certificate nor post­mortem report of deceased were produced-Report of death was although lodged, yet informant had not been produced nor record by Police Station was summoned-Plaintiff s thus, were not able to discharge initial onus of proving that death of deceased was caused of electric wire which was lying broken-On proof of initial onus, burden would have shifted to defendant to prove that it's official were not negligent. [P. 444] B & C

M/s. Zahid Saleem and Muhammad Yaqub Chatha, Advocates for Appellants.

Ch. Ghulam Hassan Gulshan Advocate for Respondents. Date of hearing: 10.4.2002.

judgment

Abdul Shakoor, Paracha, J.--This appeal impugns the judgment and decree dated 25.4.1992, passed by Civil Judge, Shaikhupura, whereby the suit filed by the appellants under the Fatal Accidents Act, 1855 (XIII of 1855) for recovery of Rs. 7,20,000/- as damages on account of death of Sardar Muhammad as a result of shock caused by the electric wire of WAPDA, was dismissed.

1. Sardar Muhammad, deceased was running a shop of tea. On 2.6.1989 in the evening he was going his village after doslHg his shop. When he reached in the area of HalJuana, lu; v-'u.; shocked by the electric wire which was lying broken. A suit for recovery of damages under the Fatal. Accidents Act, 1855 was filed by. the appellants on the ground that the defendant WAPDA was duty-bound to make repair of the broken electric wire installed and the negligence and carelessness of the officials of WAPDA caused accidental death of the deceased. It is claimed that Sardar Muhammad being head of the family was 39/40 years of age. Had he not died because of this accident, he would have been alive till the age of 60 years. The said deceased was earning Rs. 100 daily and in this way his expected income was Rs. 36000/- per annum and this amount if calculated up to 60 years of his age then the appellants were entitled to recover Rs. 7;20,000/-..

2. The respondent (WAPDA) contested that suit by filing written statement. It was contended that the defendant had no knowledge about the broken wire nor it is in the knowledge of the WAPDA that death of Sardar Muhammad deceased was result of shock by the electric wire. The defendant was never informed by the local police in respect of this accident nor any inquiry was initiated on the report by the local police. There was no post­ mortem report of the deceased. There is also no record about the breaking of the electric wire and the repair of it.

3. From the divergent pleadings of the parties, following issues were framed by the trial Court:-

4. Whether the plaintiffs are entitled for decree of Rs. 7,2Q,000/- for damages as alleged in the plaint? OPP

5. Relief.

6. On behalf of the appellant Muhammad Sharif and Wazir Muhammad appeared, as PW-1 and 2 and Mst. Sabiran one of the plaintiffs/appellant as PW-3. Copy of the report to the police was produced as Exh. PW-1. The respondent produced Mian Abdul Slam SDO WAPDA, as DW-1, Muhammad Rafiq Line Superintendent as DW-2 and Muhammad Aslam Lineman as DW-3.

7. The learned Civil Judge, Sheikhupura on the appraisal of evidence observed that:--

"The plaintiffs have failed to established their case as they have not produced the death certificate, post-mortem report, copy of the complaint regarding the accident to the WAPDA Department and they also did not produce the copy of the further inquiry after entering of the report with the police. DWs have fully rebutted the oral assertion of the PWs. The plaintiffs have badly failed to prove ' this issue."

The learned Civil Judge on the basis of the above stated finding on Issue No. 1 proceeded to dismiss the suit filed by the appellants, vide judgment and decree dated 25,4.1992.

1. Before us, the learned counsel for the appellants contended that the appellants/-plaintiffs produced Muhammad Sharif and Wazir Muhammad as PWs-1 and 2 and one of the plaintiffs/appellants Mst.Sabiran appeared as PW-3 which was sufficient evidence to show that Sardar Muhammad was shocked by the electric wire of the WAPDA, which was lying broken and the respondents had not performed their duty to make repair of the broken electric wire and for maintenance of the electric wire installed at the site. He contends that under the doctrine of 'Res IpsaLoquitur' as the electric wire which inflicted the damage was under the sole management and control of WAPDA therefore the burden to prove that the same has been repaired and there was no negligence and carelessness of the officials of the defendant has shifted to the respondent.

2. Conversely, the learned counsel for the respondent-WAPDA argued that there is no evidence on the record that there was any wire lying broken and that Sardar Muhammad was shocked by that electric wire. Further contends that there is no proof of the fact that WAPDA Officials were negligent and careless in performance of their duty due to which Sardar Muhammad sustained death and it was the act of the respondent WAPDA officials which caused accidental death of Sardar Muhammad.

3. It is well settled principle of law that in a suit for damages under the Fatal Accidents Act normally the rule is that it is for the plaintiff to prove negligence and in some cases this principle may cause hardship to the plaintiffs because it may be that true cause of accident lies slowly within the knowledge of the defendant who caused it. This hardship is, however, avoided to a considerable extent by the maxim 'Res Ipsa Loquitur'. Thismaxim means that, the things speak for themselves". An accident may by its nature be more consistent with its being caused by negligence, for which the defendants are responsible then by other causes and in such a cause the more fact of the accident isprima facie evidence of such a negligence.

4. Before we examine the question of awarding damages to the appellants, we have read the evidence to see whether the appellants have discharged the initial issue of proving that Sardar Muhammad died due to ' shock of the electric wire of WAPDA which was lying broken. The negligence and carelessness of the officials of WAPDA if caused accidental death of Sardar Muhammad would be discussed in the later part of the judgment. To prove Issue No. 1, the appellants produced Muhammad Sharif who deposed that Sardar Muhammad, husband of Appellant No. 1 and father of the rest of the appellants sustained electric shock caused by electric wire which was lying broken. Wazir Muhammad and Mst.Sabiran also made statement to the similar facts. The respondents have denied the occurrence. There is neither any death certificate nor post-mortem report of the deceased. Copy of the report dated 2,6.1989 Exh. PA has been examined by us, which copy has been issued by Liaqat Ali, Moharrir/HC. This report was lodged by Shaukat Ali, who has not been produced. The record of the police station has not been summoned. In this view of the matter, the appellants were not able to discharge initial onus of proving that the death of Sardar Muhammad was result of electric shock caused by the electric wire which was lying broken. Had it been proved, the burden would have been shifted to WAPDA as the respondent was duty-bound to make repairs of broken electric wire and for maintenance of the electric wries installed.

5. As stated earlier, the burden was not shifted to the WAPDA, respondent, therefore, it was not under a legal obligation to discharge its burden to show that the officials of WAPDA were not negligent. In case reported as Iftikhar Hussain and another vs. Karachi Electric SupplyCorporation Ltd. (PLD 1959 Karachi 550) the principle of law relating to principle of neglect and default came up for consideration before the Sindh

High Court and on the basis of Paras 956 and 957 of Volume-XXIII of

Halsbury's laws of England at Page 671-74 (Edition-II) it was noted that the general rule places burden on plaintiff. Defendant however to disprove liability whereby exercise of requisite care no risk in ordinary course would ensue. Death cause by contact with broken down live electric wire of public line provided by defendant's Company. It was held that the Company was liable for the damages.

1. The principle of doctrine of 'Res Ipsa Loquitur' and the provisions of Fatal Accident Act, 1855 came under consideration before the Hon'ble.Supreme Court of Pakistan in the case reported as Pakistan Steel

Mills Corporation and others u. Malik Abdul'Habib and another (1993

SCMR 848) and their Lordships were pleased to observe:

"Res ipsa Loquitur means that the things speak for themselves. This doctrine applies firstly, when the thing that inflicted the damage was under the sole management and control of the defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence."

On the basis of the evidence on the record, since the appellants have not discharged the initial burden of proof of death of Sardar Muhammad due to the shock caused by the electric wire which was lying broken at the site, therefore, the burden has not been shifted that the officials of the WAPDA were negligent. We maintain the finding of the learned Civil Judge on Issue No. 1.

Since the death of Sardar Muhammad has not been proved to have been caused because of shock by broken electric wire of WAPDA, therefore, there is no question of determining the damages. There is no force in this appeal, which is dismissed. Parties to bear their own costs.

(T.A.F.) Appeal dismissed.

PLJ 2003 Lahore 446

Present: ABDUL SHAKOOR PARACHA, J. UMAR KHAN--Petitioner

versus

ABDUL GHAFFAR-Respondent C.R. No. 578/2001, decided on 4.3.2002. (i) Punjab Pre-emption Act (IX of 1991)—

—-S. 13 (3)-Notice of talab-i-Ishhadpurportedly sent on wrong address-­ Notice in question, was sent on the address mentioned in mutation and the same was received by defendant'who had not denied such address on which notice was addressed-Courts below, thus, have misread documentary as well as oral evidence produced by petitioner (plaintiff) to establish talab-i-Muwathibat and talb-i-Ishhad.[P. 450] A

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

—-S. 115-Pre-emption-Case of-Findings of Courts below relating to transaction in question as also of talb-i-Ishhadbeing result of complete misreading of evidence were set aside-Suit for possession through pre­emption was decreed with direction to plaintiff to deposit remaining sale price within one month after receipt of order of High Court. [P. 450] B

Kh. Abdul Hameed Butt Advocate for Petitioner

Mr. Muhammad Hussain Awan Raja Shafqat Khan Abbasi, Advocates for Respondents.

Date of hearing: 4.3.2002.

judgment

This revision petition is directed against the order dated 3.5.2000 passed by Additional District Judge, Jaranwala, District Faisalabad dismissing the appeal of the petitioner-plaintiff Umar Khan filed against the judgment and decree dated 31,7.1997 of the Civil Judge, Jaranwala whereby the suit of the plaintiff-petitioner Umar Khan against Abdul Ghaffar was dismissed.

1. Faizuallah Khan was the owner of suit land measuring 100 Kanais 12 Marias, which he sold to Abdul Ghaffar Khan, defendant-respondent for consideration of Rs. 3,42, OOO/-. In order of defeat the right of pre-emption of Umar Khan petitioner this transaction was given the colour of exchange. Faizullah Khan sold the land to. Abdul Waheed Khan, Nephew, son-in-law of respondent Abdul Ghaffar Khan vide Mutation No. 36 dated 20.5.1993. It is alleged that vendor Faizullah got the land in exchange vide Mutation No. 35 dated 20.5.1993 and transferred the same on the same day to Waheed Khan vide Mutation No. 36 dated 20.5.1993. The petitioner Umar Khan came to know about this transaction on 5.6.1993 through Muhammad Zaman Khan (PW-3) and declared his intention to pre-empt the transaction in the same meeting at the same moment. Lateron a demand was made to acknowledge the right of pre-emption. It was further stated that the petitioner on the same day went to the disputed land and made Talb-e-Ishhad where in reference of Talb-e-Muathebat was made. On 16.5.1993 notice of Talb-e-Ishhadas required by law was sent to the respondent, who refused to receive it, which was received back by the petitioner'on 3.7.1993. It was asserted in the plaint that petitioner Umar Khan possessed the right of pre-emption as a Shafi Jar and Shafi Khaleet. Actually land was included in the joint Khata wherein petitioner was also co-sharer, which was partitioned on 30.12.1991. The disputed land in contiguous to the land owned by the petitioner. Right of passage and source of irrigation are common.

2. Respondent-defendant Abdul •Ghaffar Khan appeared and submitted written statement to the plaint. It was stated that the transaction is an exchange which is not pre-emptible. Faizullah Khan vendor is close relative of the petitioner and the petitioner participated in the transfer of land in favour of respondent.

From the divergent pleadings of the parties, following issues were framed by the trial Court:-

1. Whether the plaintiff enjoys the superior rights quathe defendant over the land in dispute? OPP.

2. Whether the transaction in dispute is not exchange but a sale for consideration of Rs. 3,42,000/- ?OPP.

3. Whether all the legal requisites were performed by the plaintiff before filing the suit? OPP.

4. Whether the plaintiff has no cause of action and locus-standi to file this suit? OPD.

5. Whether the plaintiff is estopped by his words and conduct to bring the suit? OPD.

6. Whether the plaintiff has waived his right of pre-emption? OPP.

7. Whether the defendant is entitled to Rs. 2,00,000/- in case decree is passed for improvement of the land? OPD.

8. Whether the suit is false and frivolous, if so, then whether llie defendant is entitled to recover special costs from the plaintiff u/S. 35-A of C.P.C. If so, what extent? OPD.

9. Relief.

The learned Civil Judge recorded a finding on Issue No. 1 regarding superior right of pre-emption qua the defendant over the land in dispute, in favour of the petitioner. However, on Issue No. 3 it was observed that Talbs as required under the law have not been fulfilled by the plaintiff-petitioner before filing the suit, therefore, finding on Issue No'. 3 was recorded against the petitioner. Finding on Issue No. 2 was also recorded against the petitioner and the learned Civil Judge observed that transaction is an exchange and not a sale. He dismissed the suit videjudgment and decree dated 31.7.1997. The appeal filed thereagainst by the petitioner was also dismissed by the learned Additional District Judge on 3.5.2000.

1. The learned counsel for the petitioner has argued that llie learned Civil Judge and the learned Additional District Judge despite givijig a finding on Issue No. 1 in favour of the petitioner-plaintiff that he enjoys the superior right qua the defendant over the suit land has non-suited the petitioner on the following ground-

(a). that the transaction in question is an exchange;

(b) that the petitioner has failed to perform Talbs in accordance with law;

(c) Talb-e-Ishhadhas not been made in accordance with law as the PWs have admitted that respondent liyed in Chak No. 569/GB, Tehsil Jaranwala,- but the notice of Talb-e-Ishhad was addressed at the address of Chak No. 587/GB Jaranwala.

The learned counsel contends that all the above stated findings of the learned Civil Judge as well as of the learned Additional District Judge are the result of complete misreading of evidence. Reliance has also been placed on the cases reported as:

PLJ 1998 SC 1751 Muhammad Ajaib and another vs. Muhammad Afzal and 2 others.

1. On the other hand, the learned counsel for the respondent has argued that the petitioner has failed to prove Issue No. 2 by cogent evidence and therefore both the Courts below have correctly held that the transaction in dispute is not a sale but in fact an exchange which was not pre-emptive. Further contends that the petitioner was notable to prove Talb-e-Muathibatand also Talb-e-Ishhad therefore the learned Civil Judge as well as the learned Additional District Judge has recorded a finding on fact on Issue No, 3 against the petitioner by well-reasoned judgment which cannot be interfered with by this Court. Reliance has been placed on the case reported as Pir Walayat Shah versus • Muhammad Shaft and another (1968 SCMR 1304).-

2. There is no dispute about the fact that the petitioner has a superior right of pre-emption qua the defendant respondent over the land in dispute and Issue No. 1 has been decided in favour of the petitioner. The crucial point for determination-in this case is whether the petitioner-plaintiff Umar Khan was able to prove that transaction in dispute is not an exchange but a sale for consideration of Rs. 3,42,000/-. The evidence on the record is Mutation No. 1347, Mutation No. 35 and Mutation No. 36, Exh. P.I to Exh. P.3 produced by the petitioner-plaintiff, which clearly show that the land in dispute measuring 100 Kanals 12 Marias was actually sold by Faizullah to Abdul Ghaffar Khan and the mutation was attested on 20.5.1993. This land was, in fact, acquired by Faizullah Khan from Abdul Ghaffar Khan through Mutation No. 35 and in exchange Faizullah Khan transferred to Abdul Waheed Khan son of Muhammad Yaqoob. Faizullah Khan transferred 100 Kanals 12 Marias of land in favour of Abdul Ghaffar Khan vide Mutation No. 1347 whereas Abdul Ghaffar transferred 111. Kanals and 12 Marias. 11 Kanals more than the actual land was transferred by Abdul Ghaffar. In this view of the matter, the device of exchange has apparently been introduced to defeat the superior right of pre-emption of the petitioner. The learned Civil Judge as well as the learned Additional District Judge has recorded a finding by misreading the evidence Exh P. 1 to Exh P. 9 on the record. Irresistible conclusion can be drawn that the transaction was in fact a sale and not an exchange.

Both the learned Courts below were of the view that only the difference of Market value between the suit land and also the land transferred by defendant in exchange thereof cannot be made basis to arrive at the conclusion that the transfer in question was not an exchange. Similarly, no weight was given by the two Courts below to the fact that the land was transferred by the defendant to his real nephew Abdul Waheed. It is surprising that the land measuring 111 Kanals,which was exchanged through Mutations Nos. 35 and 36, was valued at Rs. 6 lac, whereas the land in dispute, which has been pre-empted, has been shown for Rs. 3,42,000/-. Further, if the land was exchanged by Faizullah and Abdul Ghaffar through Mutations Nos. 35 and 36 an the same land was not to be retained, why this land was transferred in favour of the defendant-respondent.

From all the above circumstances, it cannot be concluded that the transfer through the impugned Mutation No, 1347 dated 27.5.1993 was not an exchange but a sale. Therefore, the finding on Issue No. 2, recorded by both the Courts below is the result of misreading of evidence, which is not sustainable and I reverse the same.

The transaction in question took place on 27.5.1993, whereas Umar Khan petitioner has stated that he came to know about the\ame on 5.6.1993 through one Muhammad Zaman Khan, and also alleged that persons, namely, Ameer Muhammad Khan and Muhammad Aslam Khan were also present at that time. PWs 2-3, and 4 are consistent in their statements, but the learned Civil Judge has misread the evidence and observed that the PWs are not truthful witnesses^ There is no dispute of the fact that notice was addressed by plaintiff-petitioner Umar Khan on the address which was given on the mutation. The address of the respondent-vendee on the envelop is not disputed. Notice Exh. PW-2/1 is on the record. The learned Civil Judge has influenced himself by the date which has been given by the scribe on the notice Exh. PW-2/1 dated 16.5.1993. This was a clerical mistake because on 16.5.1993 Mutation No. 1347 was not even attested. The learned Civil Judge has observed that if the plaintiff had gained the knowledge about the transfer in question on 5.6.1993 then how could he get the notice Exh. PW-2/1 written on 16.5.1993. The above observation of the learned Civil Judge as well as of the learned Additional District Judge is because of wrong date mentioned in the notice Exh. PW-2/1. It is well-settled law that the registered post is presumed to have been received by the defendant if the address on the envelop is correct. Suffice to say that the defendant- respondent has not denied his address on which the notice was sent by the petitioner to establish the Talb-e-Ishhad. In this view of the matter, the learned Civil Judge as well as the learned Additional District Judge has JX misread the documentary as well as oral evidence produced by the petitioner to establish Talbe-e-Muwathibat and Talb-e-Ishhad.

Since the concurrent findings of fact are the result of complete misreading of evidence, therefore, the same are set aside and the revision petition is accepted. The judgment and decree dated 3.5.2000 of the learned Additional District Judge and dated 31.7.1997 of the learned Civil Judge are set aside. Suit for possession through pre-emption filed by the petitioner- plaintiff Umar Khan is decreed with costs. Umar Khan is directed to deposit the remaining sale price, after deducting the amount already paid, within one month after the receipt of this order, failing which his suit shall stand dismissed.

(T.A.F.) Orders accordingly.

PLJ 2003 Lahore 450

Present: mian hamid farooq, J.

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN-Plaintiff

versus

M/s. NAQI BEVERAGES (PVT.) LTD. through its Chief Executive and 7 others-Defendants

C.O.S. No. 131 of 1999, heard on 8.1.2002.

(i) Banking Companies (Recovery of Loans, Advances Credits and Finance) Act, 1997 (XV of 1997)---

—S. 7 (6) Qanun-e-Shahadat (10 of 1984), Art. 17-Attestation non attestation of documents-Effect-All documents relied upon by plaintiff in support of its claim were signed and executed before coming in force of Act XV of 1997, therefore, simply on account of the fact, that some of those documents were not attested by witnesses, would not invalidate those documents.[P. 457] C

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

—S. 17 (3)--Plea of bar of limitation not taken by defendants in application to defend suit-Such plea cannot be allowed to be raised or pleaded for the first time during arguments-However, Act (XV of 1997), having been promulgated on 31.5.1997, fresh cause of action arose in favour of plaintiff on the date of promulgation of the Act i.e. 31.5.1997, therefore, suit filed on 23.12.1999, for a cause of action accrued on 31.5.1997, cannot be deemed to be barred by time. [P. 457 & 458] D

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

—-S. 7 (6)-Civil Procedure Code (V of 1908) O. XXXVII, R. 3-Leave to defend suit-Defendants comprehensively failed to raise question of law and fact to be tried by High Court in respect of which evidence needs to be recorded-Application to defend suit was thus, not maintainable and was dismissed. [P. 458] E

(iv) Court Fees Act (VII of 1870)—

—-S. 17--Multifarious suits-Payment of aggregate amount of fees-plaintiff having paid maximum Court-fee payable at the relevant point of time on the plaint, plaint cannot be decreed to be insufficiently stamped.

[P. 455] A

(v) Industrial Development Bank of Pakistan ordinance 1961 (XXXI of 1961)—

—S. 42-Filing of suit by plaintiff bank-Objection of filing of suit by un­ authorised person-Board of the Bank under S. 42 of Industrial Development Bank of Pakistan has given/delegated certain powers to its officers, whereunder those officers had been authorised, in the name and on behalf of the bank, to do and transact alone and singly without joining other attorney or officer of the Bank, to commence, prosecute or continue and defend all actions, suits or legal proceedings, whether criminal or revenue-Present suit having been filed such authorized person was duly filed by such person. [P. 456] B

Ch. Shehram Sarwar, Advocate for Plaintiff.

Mr. Khalid Mahmood Ansari Advocate for Defendants.

Date of hearing: 8.2.2002.

judgment

Industrial Development Bank of Pakistan, established under the Industrial Development Bank of Pakistan Ordinance, 1961 (XXXI of 1961) (hereinafter called the plaintiff), through M.A. Javaid, Senior Vice President of the plaintiff Bank, statedly, fully conversant with the facts of the case and competent to depose the same, has filed the present suit for the recovery of Rs. 52,226,326.06 with compensatory charges and liquidated damages etc, against Defendant No. 1, a private limited company, being sued the capacity of a customer, wherein Defendants Nos. 2 to 7 have been arrayed as defendants in their capacity of Directors/guarantors and mortgagors, while Defendant No. 8, reportedly, the owner of the properly, statedly, mortgaged his property in favour of the plaintiff as collateral security. It has been stated in the plaint that pursuant to the request of Defendant No. 1, the plaintiff sanctioned a financial facility, known as "Local Currency Financial Assistance under SBR LMM Scheme" amounting to Rs. 19.00 Million, vide letter dated 23.11.1993 in favour of Defendant No. 1 for the purchase of locally manufactured machineries for setting up a factory at Rahim Yar Khan, which financial assistance, at the request of the defendants, was subsequently enhanced to Rs. 20.335 Million, videletter dated 29.1.1994, which facility was utilized by the defendants in its entirety. Another financial facility, i.e. "Additional Local Currency Financial Assistance under BOR Scheme", for a sum of Rs. 2.950 Million, was, additionally, sanctioned by the plaintiff vide letter dated 25.4,1995, for import of diesel generator, however, out of the total sanctioned facility under this head, only an amount of Rs. 1.475 Million was disbursed, while the remaining sanctioned amount of Rs. 1.495 Million was, later on, withdrawn by the plaintiff vide letter dated 6.6.1997. It has been averred in the plaint that the defendants secured the said financial facilities, by executing/handing over charge/securities V documents in favour of the plaintiff elaborately described in Para 7 of the ' plaint. It is the case of the plaintiff that the said financial facilities were utilized by Defendant No. 1, as mentioned above, and the repayment of the financial facilities, under LMM Scheme, was started w.e.f. 30.9.1995, whereas the repayment of financial facility, under BOR Scheme, was started w.e.f. 31.3,1997, but the defendants could not pay three instalments due against them during September, 1995, September, 1996 and December, 1997, whereafter the company requested the plaintiff for rescheduling the overdues and for changing the Directors of the company, which request, $ although was acceded to by the plaintiff yet despite that the outstanding amount remained unpaid. The charge on the assets of the company was duly registered with the Registrar Joint Stock Companies, who issued requisite certificate of the registration of charge, which has been placed on record. In the above backdrop the plaintiff has contended in the plaint that the defendants failed to adhere to the terms and conditions of sanctioned letters, to make due payment in time despite repeated promises and, thus, they became defaulters, with the result that a sum of Rs. 52, 226, 326.06 fell due against the defendants in the following manner:-

Local Currency Financial Assistance Under SBP LMM Scheme.

(1) Account No. 05796-A4-O Rs. 48,078,784.79

(2) Account No. 05796-BI-O Rs. 700, 503.44

Additional Local Currency Financial Assistance Under BOR Scheme (3) Account No. 05796-CB-O

Rs. 3,447,039.80

Total Amount, Rs. 52,226,326.06

According to the plaintiff, on account of persistent defaults on the part of the defendants and failure to liquidate the outstanding liabilities, despite various demands made by the plaintiff and its functionaries from time to time, necessitated the filing of the suit in hand, on 23.12.1999, under the provisions of the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997 (hereinafter referred to as Act, XV of 1997).

1. In response to the summons issued by this Court through all the modes of service provided under the law all the defendants on 12.2.2000 filed an application for leave to defend the suit (PLA No. 23-B of 2000). It was contended in the aforesaid application that the suit has not been filed by duly authorised person and in this regard the plaintiff has failed to produce any document on record; that dual rates of instalments had been provided in the agreement; that at the time of introduction of Circular No. 19, issued by the State Bank of Pakistan, although Defendant No. 1 applied to the plaintiff bank for the revivial package, yet the same was illegally refused; that the amounts being claimed by the plaintiff are illegally claimed, grossly inflated and erroneously calculated; that the statement of accounts is inadmissible in evidence; that the blank printed forms were got signed from the defendants with intention to subsequently entrap them and that no cause of action has accrued to the plaintiff. In view of the above pleas, it was prayed therein that the application be accepted and the applicants be granted leave to appear and defend the suit and allowed to file written statement. This application was replied by the plaintiff thereby controverting the contents of the application with the prayer that the aforenoted application by dismissed and the suit be decreed with special costs.

2. On 30.8.2001, the Financial Institutions (Recovery of Finances) Ordinance, 2001, was promulgated and per force of Section 29 of Ordinance 2001, repealed Act XV of 1997. However, according to Section 7(6) of the latest Ordinance of 2001, all proceedings pending in any Banking Court, including suit for recovery, shall stand transferred or deemed to be transferred and heard by the Banking Court established under the latest Ordinance of 2001. The present suit alongwith aforenoted application, which were pending before the Banking Court constituted under Act XV of 1997, after the promulgation of latest Ordinance and per force of Section 7(6) of the latest Ordinance, were deemed to be pending for disposal before this Court, established under Section 5 of Ordinance XLVI of 2001. As an application for the grant of leave to defend the suit (PLA No. 23-B of 2000), filed by the defendants, was pending in this Court before coming into force of Ordinance XLVI of 2001, promulgated on August 30, 2001, therefore when the case came up for hearing, before this Court, for the first time, this Court on 27.9.2001, perforce of Section 10(12) of latest Ordinance of 2001, allowed the defendants a period of 21 days for filing the amended petition for leave to defend the suit. Pursuant thereto the defendants filed an amended application for leave to appear and defend the suit, however, it appears from the record that the plaintiff, despite affording an opportunity to file the reply, choose not to file the same.

3. In support of the application for the grant of leave to defend, the learned counsel for the defendants has raised the following contentions-

(1) that the plaintiffs has combined distinct causes of action in one suit, which cannot be clamped together, as the cause of action is different, documents/evidence in all the cases is different and the Court-fee is to be paid for eachtlaim, therefore, the present suit cannot proceed;

(2) that the suit has been filed by the.plaintiff on the basis of fabricated and forged documents and they have not come to this Court with clean hands, as such not entitled to any relief;

(3) that M. A. Javaid, Senior Vice President, has no lawful authority to file the present suit and no document of authorization has been placed on record;

(4) that all the documents, which have been made basis for the filing of the suit are not attested by two witnesses, therefore, the said documents have get no legal value and the same cannot be considered at the time of deciding of the suit; and

(5) that most of the documents said to have been executed on 6.2.1994 and 12.7.1995 while the suit was filed on 23.12.1999, therefore, the same is barred by time;

Conversely, the learned counsel for the plaintiff, while controverting the contentions raised by the learned counsel for the defendants has submitted that the suit is maintainable, that the documents are neither forged nor fabricated and that the suit has been filed through a duly authorized person.

1. As regards the first contention raised by the learned counsel regarding the misjoinder of causes of action in one suit, suffice it to say that Order II Rule 3 C.P.C. is complete answer to that contention which empowers a plaintiff to combine several causes of action against the defendants in one suit, when these causes involve joint interest. In the present case two financial facilities were granted in favour of Defendant No. 1 by the plaintiff, the parties are the same and the interest is joint;

therefore, 1 am of the view that these causes of action can be amalgamated in one suit and there is no illegality committed by the plaintiff in filing one suit thereby combining two causes of action. I am fortified in my view by a judgment reported as The Directorate of Industries and Mineral Development Government of the Punjab, through its Director, Lahore and 3 others versus Messrs Masood Auto Stores through Masood Ahmad Malik, Partner, Lahore (P.L.D. 1991 Lahore 174) whereby a learned Division Bench of this Court decided the said proposition of law and held that the plaintiff having several causes of action against the same defendant jointly is entitled to amalgamate them in one suit. In view of this, the contention of the learned counsel has no force and is hereby repelled.

1. Pursuant to the objection of the learned counsel viz that the plaint is insufficiently stamped, I have examined the original record and find that the plaintiff has paid a sum of Rs. 15,000/- (being the maximum Court- fee payable at the relevant point of time) on the plaint. According to Section 17 of Court-Fees Act, 1870, where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memorandum of appeal in suits embracing separately each of such subjects would be liable Section 17 of the Court-Fees Act, 1870, is reproduced below:-

"17. Multifarious suits.-Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subj ects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power conferred by the Code of Civil Procedure, Section 9."

It has been held in the case of Directorate of Industries and Mineral Development, supra, that the provisions of Section 17 applies to suits which embraces two or more distinct causes of action and when suit is filed combining multifarious causes of action, then each claim on the basis of causes of action is to be valued separately and requisite Court-fee is to be paid on it. In this case, as the plaintiff has paid the maximum Court-fee, therefore, it cannot be argued that the plaint is insufficiently, stamped. The said contention is devoid of any force.

1. So far as the next contention of the learned counsel is concerned, he has reinforced his agreements, by referring to the memorandum of deposit of title deed (Page 187) and agreement of hypothecation (Page 443), by saying that in these two documents, the dates of execution of the documents and purchase of stamp-paper are different, therefore, these documents are fabricated. I have examine'd the memorandum of deposit of title deed, which has been notarized by the Notary Public on 1.8.1994, whereas the date of the purchased of the stamp paper is 19.6.1994. This

document is unilaterally signed by Defendant No. 1 confirming therein that said defendant has already deposited all the documents specified in the schedule with the plaintiff. Obviously, the plaintiff is not party to this document It is evident from the back portion of this document that the stamp-appear was purchased by Defendant No. I itself, the same was signed and executed by Defendant No. 1 and the plaintiff figures nowhere. The next document is the agreement of hypothecation said to be executed on 27.4.1995, yet the date of purchase has been shown as 10.7.1995. However, it is not legible from the back of this document that who purchased the stamp-paper, but one thing is support that the same has been signed on behalf of Defendant No. 1. This document has also been signed on behalf of IDBP and has also been attested by two witnesses. Apart from this minor discrepancy, the learned counsel for the defendants could not be able to point out any other legal infirmity in this document gong to the root of the matter. Furthermore the defendants have not taken this plea in their application for the grant of leave to appear and defend the suit. Under the law, they are precluded from pleading and raising the plea at the time of the arguments,. which has neither been pleaded nor raised in the application for the grant of leave. Reliance is placed on City Bank versus Tariq Mohsin Siddiqui and others (P.L.D. 1999 Karachi 196). In view of this, the argument of the learned counsel is without any legal foundation and is hereby repelled, moreso when other voluminous documents to which no objection is raised by defendants, are on record.

1. As regards the objection of filing the suit by unauthorized person, upon the examination of the record I find that the plaint has been signed and verified in accordance with law by M.A. Javaid, Senior Vice President of the plaintiff bank. Now the question arises as to whether said M.A. Javiad has been authorized by the plaintiff to sing, verify and institute the present suit or not. Under Section 42 of the Industrial Development Bank of Pakistan Ordinance, 1961, the Board is empowered to delegate all or any of the rights powers and duties vested, Under this Ordinance, in the Board to the Managing Director or any other officer of the bank. I find from the record a gazette notification dated 13.9.1974, whereby in exercise of powers under Section 42 of IDBP Ordinance, 1961, the Board has delegated certain powers to its officers, whereunder in Clause 10(1) those officers have been authorized, in the name and on behalf of the bank, to do and transact alone and singly without joining other attorney or officer of the bank, to commence, prosecute or continue and defend all actions, suits or legal proceedings, whether civil, criminal or revenue. Admittedly, under Clause 10 of the said notification certain other ancillary powers have also been conferred upon the persons, who can institute suits on behalf of the plaintiff. In view of the above, it cannot be said that the instant suit has not been filed by a duly authorized person, thus, the argument of the learned counsel for the defendants is devoid of any force and is hereby repelled.

2. So far as the next contention of the learned counsel is concerned. I have "examined the documents and find that of course some of the documents are not attested by two witnesses, yet majority of the documents bear the signatures of two witnesses thereby testifying the execution of documents. Even otherwise the documents were executed during the period ranging from 6.2.1994 to 12.7.1995 and, thus, all the documents were admittedly, executed prior to 31.5.1997, the date of the enforcement of Act XV of 1997. Section 17(2) of the said Act, provides that all banking agreements executed bv or on behalf of a bank and a borrower or customer

shall be duly attested in the manner laid down in Article 17 of Qanun-e-

Shahadat Order. 1984. Sub-section (3) of Section 17 provides that nothing

contained in sub-sections (1) and (2) shall invalidate any document executed

prior to the coming into force of this Act". As all the documents relied upon by the plaintiff bank in support of its claim were signed and executed before coming into force of Act XV of 1997, therefore, simply on account of the fact that some of the documents are not attested by two witnesses, will not invalidate these documents. The said proposition has been discussed in a judgment reported as Messrs United Bank Ltd. versus Messrs Redco Textiles Ltd. and 7 others (2000 C.L.C. 968) wherein while dealing with his aspect of the case and adverting to Section 17(3) of Act XV of 1997, this Court has held as under:-

"In view of sub-section (3) of the aforesaid section, the documents even if obtained blank and not attested in the manner laid down in Article 17 of the Qanun-e-Shahadat Order, 1984 are not invalid, if those documents were executed prior to coming into force of Banking Companies (Recovery of Loads, Advances, Credits and Finances) Act, 1997....... "

In view of the discussion on the subject, this contention of the learned counsel has also no force.

1. Regarding the next contention of the learned counsel for the defendants viz. the suit is barred by time, suffice it to say that upon the examination of the leave application, it is discernible that the defendants have not taken this plea in the said application, therefore, under the law they are precluded from raising the said plea at the time of agreements. Be that as it may, all the documents were executed during the period ranging from 6.2.1994 to 12.7.1995, whereas the present suit was filed, on 23.12.1999. Proviso to sub-section (2) of Section 22 of Act XV of 1997, provides that in revision to past transaction a fresh cause of action will be deemed to arise.

for the purposes of limitation only, on the date when this Act comes into

force" Act XV of 1997, was promulgated on 31.5.1997, as such per force of the aforesaid provision of law, a fresh cause of action arose in favour of the plaintiff on the date of promulgation of the said Act, i.e.31.5.1997, therefore, the suit filed on 23.12.1999, for a cause of action accrued on 31.5.1997, cannot be said to be barred by time. The contention of the learned counsel has no force.

1. In view of the above discussion and reasons, the defendants have comprehensively failed to raise substantial questions of law and facts to be tried by this Court in respect of which evidence needs to be recorded. Present application (PLA No. 23-B of 2000), filed on behalf of the defendants being devoid of any merits, is hereby dismissed.

2. With the dismissal of the said application for leave to defend the suit, under the law, the allegations made in the plaint shall be deemed to be admitted. The plaintiff has produced photo copies of all the documents on the basis of which it had filed the present suit, execution whereof has vaguely and feebly been denied by the defendants in their application for leave to defend the suit. Moreover the plaintiff has. produced certified/verified copies of'the statement of accounts pertaining to the account of Defendant No. 1 to which presumption of correctness is attached. Apart from this recovery certificate, showing the outstanding amount of Rs. 52,226,326.06, has also been placed on record, to which no objection was raised by the defendants. Additionally, there is no rebuttal of the aforementioned documents on record and the statement of accounts.

3. Although the amount of liquidated damages has not been included in the statement of account, yet upon the examination of the plaint, especially prayer clause of it, it is evident that the plaintiff has claimed 20% as liquidated damages. Suffice it to say that in such like cases the plaintiff is not entitled to claim liquidated damages as per the law laid down in Allied Bank of Pakistan Ltd., Faisalabad versus M/s. Aisha Garments etc. (P.L.J. 2001 Lahore 937) wherein it has been held that the plaintiff is not entitled to recover the amount of liquidated damages, thus, the claims of the plaintiff qua the liquidated damages is hereby rejected.

4. For the foregoing reasons and findings, a decree for the recovery of Rs. 52,226,326.06 with costs is passed in favour of the plaintiff and against all the defendants jointly and severally. Additionally, the plaintiff shall also be entitled for the costs of funds to be determined under Section 3(2) of Ordinance No. XLVI of 2001.

(T.A.F.) Orders accordingly.

PLJ 2003 Lahore 459

Present: tassaduq hussain jilani, J.

Ch. MAQBOOL AHMAD and others-Petitioners

versus

Malik .FALAK SHER FAROOQA ADDL. DISTRICT & SESSIONS JUDGE, TOBATEK SINGH ELECTION TRIBUNAL, FAISALABAD

and others—Respondents

W.P. Nos. 9834, 9338, 8752, 9923, 9029 and 9004 of 2002, decided on 20.12.2002.

(i) Construction of Statutes-

—NOSCITUR A SOCIIS-It means that words derive colour from those words which surround them-It is a fundamental rule in construction of statutes that associated words explain and limit each other-Meaning of a word may be ascertained by a consideration of company in which it is found and meaning of words which are associated with it. [P. 478] D

(ii) Interpretation of States­'—Statutory interpretation has been a subject of debate among Lawyers, Jurists and Judges down the ages-Methods of Statutory interpretation have not been generally regulated by Parliament or law maker-These have been evolved by judges-These modes have varied in time and space--Various modes, ultimately, culminated in what Jurists have termed as "rules of statutory interpretation"--These rules, broadly speaking, are as under :--

(i) The Mischief Rule;

(ii) The Literal Rule;

(iii) The Golden Rule;

(iv) The United Contextual Approach;

For purpose of instant case united contextual approach would be of relevance-This has a rather recent origin-Smith and Bailey (in The English Legal System, third edition, page 363), referred to following passage in Attorney General vs. Prinvr Ernest Augustus Hanover (1957 A.C. 436) to explain this approach :--

"Words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context-So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense which I have already indicated as including not only other enacting provisions of same statute, but its preamble, existing state of law, other statutes in pari materia, and mischief which I can by those and other legitimate means, discern statute was intended to remedy. [Pp. 475 & 476] B

(iii) Interpretation of Statutes-

-—EJUSDEM GENERIS-It means general words which follow particular ones normally apply only to such persons or things as are ejusdem generis (i.e. of same genus or class) as of particular ones. [P. 478] C

(iv) Punjab Local Government Elections Ordinance, 2000-

—S. 16~Whether conncept of co-candidacy stipulated in Section 16 of Punjab Local Government Elections Ordinance 2000 would continue to hold field after candidates have been returned as Nazim and Naib Nazim and can this principle be invoked to annual election as a whole if an Election petition is allowed against either of them on any ground stipulated in law ?~Held : High Court is of the considered view that "joint candidacy" is limited to elections only, that principle of sinker would not be applicable and removal, disqualifiction or annulment of an election of a member would not affect election of other returned candidate who may have contested elections as a Joint Candidate with former.

[Pp. 475 & 478] A & E

(v) Punjab Local Government Elections Ordinance, 2000-

—S. 167--Qanun-e-Shahadat Order 1984, Art. 85-Whether learned Tribunal fe1! in error in declaring Petitioner as below 25 years of age and thereby ignoring Birth Certificate issued by Municipal Corporation wherein his date of birth is entered-Held : municipal register of births and deaths are a public record within meaning of (Article 85 of Qanun-e- Shahadat Order 1984 and therefore certified copies of entries in them are admissible in evidence. [Pp. 478 to 480] F & G

59 Pr 1901; Principles and Digest of Law of Evidence by M. Monir page 786 Pakistan Edition AIR 1934 Oudh 167; AIR 1936 Allah Abad 218 rel.

(vi) Punjab Local Government Elections Ordinance, 2000--

—- Constitution of Pakistan, 1973, Art. 199--Whether learned Tribunals rightly declared matriculation certificate of Petitioner to be fake-Held : Findings of fact arrived at by learned Tribunals of competent jurisdiction cannot be interfered in Constitutional petitions-

[P. 480 & 481] H & I

(vii) Punjab Local Government Elections Ordinance, 2000-

—S. 165 & 166-Whether learned Tribunal correctly interpreted relevant statutory provisions in holding that act of petitioner in surrendering his personal land in favour of residents to widen village street amounted to

bribery and illegal practice entailing disqualifiction ?-There is no civil to proposition that if a candidate offers or gives or promises any gratification for purpose of inducing a voter to vote or a candidate to withdraw or to influence course of election, it would constitute a corrupt practice within meaning of Sections 165 and 166 of Punjab Local Government Ordinance, 2001 and election of a returned candidate could be annulled if this charge is proved-These provisions of election laws are meant to ensure sanctity of election process-However, while interpreting these provisions care has to be taken in distinguishing a voluntary expression of good will in favour of residents of locality and offer made to a potential voter in lieu of promise held by latter of support in election--In former act, there is no element of bargain whereas in latter act bargain could be overt or covert or could be subtle or implied-Declare an act to be a corrupt practice or transaction to be bribery in context under consideration, element of • bargain is a condition precedent—Two elements are essential in order to constitute a bargain—Firstly; there must be a gift, an offer or a promise or a gratification and, secondly, there should be an element of solicitation for votes in lieu of gift or promise or gratification-Wording of (Iqrar Nama) indicates that surrendered land to widen street was made voluntarily in Name of God Almighty and there was no element of soliciting vote in said Iqrar Mima-Allegation that petitioner promised and provided electric polls in locality with a view to influence course of election is not borne out from record-Three witnesses produced by respondent objectors belonged to loosing party and no implicit reliance can be placed on their 'testimoney-View that bargaining with voters is an essential ingredient to prove corrupt practice or bribery has not proved. [Pp. 481 & 482] J & K

Rana Muhammad Arshad Khan, Advocate for Petitioners (in W.P. No. 9834/2002).

Mr. Muhammad Ahsan Bhoon, Advocate for Respondents (in W.P. No. 9834/2002).

Rana Mashhood Ahmad Khan, Advocate for Petitioners (in W.P. No. 933/2002).

Malik Saeed Hassan, Advocate for Respondents (in W.P. No. 9338/2002).

Dr. M. Mohayuddin Qazi, Advocate for Petitioners (in W.P. No. 8752/2002).

Mr. Anwar Akhtar, Advocate for Respondents (in W.P. No. 8752/2002).

Mr. Muhammad Saeed Ansari, Advocate for Petitioners (in W.P. No. 9923/2002).

Syed Zameer Hussain, Advocate for Respondents (in W.P. No 9923/2002).

Dr. A. Basit, Advocate for the Petitioners (in W.P. No. 9029/2002).

Mr. Asad Manzoor Butt, Advocate for Respondent (in W.P. No. 9029/2002).

Dr. A. Basit & Ch. Muhammad Afzal Wahla, Advocates for Petitioners (in W.P. No. 9004/2002).

Maj. Rtd. Arshad Mehmood, Advocate for Respondents (in W.P. No. 9004/2002).

Mr. M. Bilal Khan, Addl. Advocate General in all cases. Dates of hearing: 30, 31.10.2002 & 5, 6, 7 & 11.11.2002.

judgment

This judgment shall dispose of the following Constitutional petitions

as almost similar questions of law have been raised :--

(I) W.P. No. 9834/2002( 1. Ch. Maqbool Ahmad 2. Mehr Ali vs. Malik Falak Sher Farooqa AD&SJ TT Singh/Election Tribunal Faisalabad etc.);

(II) W.P. No. 9338/2002 (1. Muhammad Nauman Butt, 2. Muhammad Usman Mirza vs. The D&SJ Hafizabad/Election

Tribunal for District Gujranwala etc.);

(III) W.P. No. 8752/2002 (1. Muhammad Saood Hussain, 2. Allah Dad vs. The D&SJ Faisalabad/Election Tribunal District Jhang etc.);

(IV) W.P. No. 9923/2002 (Babar Javed Butt vs. The D&SJ/Election Tribunal Hafizabad etc.);

(V) W.P. No. 9029/2002 (1. Muhammad Abbas Ansari, 2. Rana Mehboob Alam vs. Electidn Tribunal UC NO. 86/40 City Gujranwala/Election Tribunal etc.);

(VI) W.P. No. 9004/2002. (1. Javed Iqbal, 2. Rana Muhammad Ashraf vs. Election Tribunal Okara etc.)

1. Facts briefly stated are as under :— WRIT PETITION NO. 9834/2002:

Petitioners Nos. 1 and 2 contested the election of Local Bodies on 31.5.2001 and were returned against the seats of Nazim and Naib Nazim of Union Council No. 179-Faisalabad, respectively. The election of Petitioner No. 1 was challenged before the Election Tribunal on the grounds that he was not matriculate. There was no allegation against Petitioner No. 2. The Election petition was

allowed vide order dated 2.5.2002 by the learned Election Tribunal T.T. Singh and it was held that since the petitioner was not eligible to contest the election, candidature being joint, the entire election would be void and fresh election were directed to be held. This Constitutional petition, to the extent of Petitioner No. 1, was dismissed in limine and qua Petitioner No. 2 notice was issued.

WRIT PETITION NO. 9338/2002:

The petitioners in this case contested election for the seats of Nazim and Naib Nazim of Union Council No. 45/9-Urban City Gujranwala Respondents Nos. 2 and 3 filed Election Petition challenging election of Petitioner No. 2 on the grounds that his matriculation certificate tendered at the time of submission of nomination papers was bogus. Vide judgment dated 11.5.2002 passed by the learned Election Tribunal for District Gujranwala it was held that Petitioner No. 2, namely, Muhammad Usman Mirza did not possess the requisite qualification of matriculation, the certificate was fictitious and since it was a joint candidature, the election of Petitioners Nos. 1 and 2, as a whole, was declared void.

WRIT PETITION NO. 8752/2002 :

Petitioners contested election for the seats of Nazim and Naib Nazim of Union Council No. 72-Kot Shakir, Jhang. They were returned successful. This election was challenged on the grounds that Petitioner No. 2 (Allah Dad) was not matriculate. Vide the impugned judgment dated 18.5.2002 passed by the learned Election Tribunal for District Jhang, allowed the Election Petition on the grounds that the matriculation certificate produced was fake and since it was a joint candidature, the entire election was declared void.

WRIT PETITION NO. 9923/2002 :

In this case Muhammad Arshad and petitioner Babar Jameel contested for the seats of Nazim and Naib Nazim respectively. Petition filed against Muhammad Arshad alleging that he suppressed his assets, was allowed and the election, as a whole, was declared void. Arshad filed W.P. No. 9860/2002 which was dismissed on 16.6.2002. August Supreme Court has suspended it in CA No. 884/2002. Learned counsel for respondent concedes that the judgment of this Court stands suspended.

WRIT PETITION NO. 9029/2002 :

Petitioners contested Local Bodies Elections and were returned as Nazim and Naib Nazim of Union Council No. 86/50 Gujranwala City. Their election was challenged inter alia on the grounds that

Petitioner No. 2 (Mahboob Alam) was less than 25 years of age at the time of filing of the nomination papers, therefore, he was not qualified to contest the election. This Election Petition was allowed vide judgment dated 14.5.2002 passed by'the learned Election Tribunal and since the candidature was joint the election, as a whole, was declared void.

WRIT PETITION NO. 9.004/2002 :

Both the petitioners contested for the seats of Nazim and Naib Nazim of Union Council No. 24 Phoolnagar-I, they were returned, Election Petition was filed and was allowed vide judgment dated 17.5.2002 passed by the learned Election Tribunal and was held that Petitioner No. 2, namely, Muhammad Ashraf had transferred his six feet privately owned land to widen the thoroughfare, to the residents of the locality and that petitioner No. 1 was signatory to the said transaction and both were thereby guilty of corrupt practice within the meaning of Rule 81 of the Punjab Local Government Election Rules 2001 as this amounted to bribing the voters.

1. Learned counsel for the petitioners in Writ Petition No. 9834/2002 (Rana Muhammad Arshad Khan, Advocate) adopted the arguments of Dr. Mohayyuddin Qazi, Advocate/learned counsel for petitioners in W.P. No. 8752/2002 while learned counsel for the respondents (Mr. Muhammad Ahsan Bhoon, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate (learned counsel for respondents in W.P. No. 9338/ 2002.

2. Learned counsel for the petitioners in Writ Petition No. 9338/2002 (Rana Mashhood Ahmad Khan, Advocate) adopted arguments of Dr. Mohayyudin Qazi, Advocate/learned counsel for petitioners in W.P. No. 8752/2002.

Malik Saeed Hassan, Advocate/learned counsel for respondents defended the impugned judgment by submitting that the Petitioner No. 1 was not a matriculate; that the Election Petition filed against him was rightly allowed and since they were joint candidates and it was a joint election, the election of both the petitioners has been validly annulled. Explaining the concept of joint candidacy he argued that by a legal fiction, the election of two persons has been classified as one election and if any one of the two returned candidates is declared disqualified to contest the election and the petition is allowed against him on any of the grounds enumerated in law it would hit his co-candidate who won the election alongwith him. According to him, the concept of joint candidacy would be relevant till the election process is over. An election petition, he further added, is part of the election process and the concept of joint candidacy would not only be invoked at the time of scrutiny of nomination papers but would continue to hold the field till the final termination of the election process i.e. the decision of the election petition. Referring to Webster's Twentieth Centuiy Dictionary

(second edition), with regard to the meaning of "joint" he submitted that it is something which is shared by two, and if one sinks, the other also sinks with him. Any other interpretation he lastly contended would be violative of the legislative intent.

1. Learned counsel for the petitioners in Writ Petition, No. 8752/2002 (Dr. M.Mohayuddin Qazi, Advocate) submitted as under :--

(i) That the concept of joint candidature stipulated in Section 16 of the Punjab Local Government Elections Ordinance 2000 is relevant only for the purpose of Election and the moment election is over, the returned candidates are independent entities and are liable to be adjudged independently so far as the questions of qualification and disqualifications are concerned ;

(ii) That in terms of Section ISA of the Punjab Local Government Elections Ordinance 2000 in the event of a seat having fallen vacant, a bye-election has to be held to the extent of the vacant seat and not on the seat which his co-candidate has been returned. Sub-section (2) to Section ISA referred to above, election talks of the Election of a Nazim in case a seat becomes vacant and not of a Naib Nazim with it;

(iii) That after the election a vested right accrues in favour of the returned candidate and it cannot be taken away by any fault of the co-candidate;

(iv) That the Punjab Local Government Elections Ordinance 2000 was repealed on 2.8.2001, the new law i.e. the Punjab Local Government Elections Ordinance 2001 (Ordinance XIII of 2001) was promulgated. Section 152(l)(e) of the Punjab Local Government Ordinance 2001 read with Sections 161 and 169 of the said Ordinance would indicate that an election of a returned candidate can only be challenged before the Chief Election Commissioner and the respondent Tribunal had no power under the law to annul the election;

Learned counsel for the respondents (Mr. Anwar Akhtar, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate for Respondents in W.P. No. 9338/2002.

1. Learned counsel for the petitioners in Writ Petition No. 9923/2002 is not present. Learned counsel for the respondents (Syed Zameer Hussain, Advocate) adopted the arguments of Malik Saeed Hasan, Advocate/learned counsel for Respondents in WP. No. 9338/2002., 7. Learned counsel for the petitioners in Writ Petition No. 9029/2002 (Dr. A. Basit, Advocate) submitted as under :-

(i) That the concept of swimming and sinking together is relatable to candidacy and after the declaration of result, this concept would not be relevant;

(ii) That a reading of various provisions of law would show that the election petition is filed on grounds relatable to individual merit or demerit of a returned candidate. The allegations are specific and there is no provision of law entailing disqualification or annulment of the entire election on the exclusive ground that a member, who got elected with him, incurred any disqualification or was guilty of any illegal practice.

(iii) That Petitioner No. 2 (Mehboob Alam) was above twenty five years of age on the day of filing his nomination papers as his date of birth in terms of the birth, certificate was 31.3.1974 and the learned Election Tribunal has erred in law in giving preference to the entries made in the school leaving certificate;

(iv) That even the entry made in the school leaving certificate and in the matriculation certificate was correct and the Election Tribunal had no authority in law to interfere with the finding of a Tribunal of a domestic jurisdiction.

Learned counsel for respondents (Mr. Asad Manzoor Butt, Advocate), on the other hand, defended the impugned judgment by submitting that the birth certificate did not belong to Petitioner No. 2; that the finding of the Tribunal does not reflect arbitrariness or jurisdictional defect to warrant interference in the Constitutional jurisdiction of this Court. On the question of joint candidacy, learned counsel adopted the arguments of Malik Saeed Hassan, Advocate/learned counsel for respondents in WP No. 9338/2002.

1. Learned counsel for the petitioners in Writ Petition No. 9004/2002 (Dr. A. Basit & Ch. Muhammad Afzal Wahla, Advocates) submitted that the Iqrar Nama (Exh. 8/2) vide which the land was voluntarily denoted to the inhabitants of the village for widening the thoroughfare, could not be classified as a corrupt practice or bribery within the ambit of Rule 81(2) of the Punjab Local Government Election Rules 2001 and that even otherwise any finding against Petitioner No. 2 could not have the effect of annulling the entire election.

Learned counsel for the respondents (Maj.® Arshad Mehmood, Advocate) submitted that the so-called voluntary donation was an inducement, an offer of bribe to the voters, it was made during the election process and the said act falls within the mischief of Rules 81 and 82 of the Punjab Local Government Ordinance Election Rules, 2001. He added that since it was a joint candidature, the fining of corrupt practice against Petitioner No. 2 would hit Petitioner No. 1 and the entire election has rightly been declared void.

1. I have heard learned counsel for the parties, learned Law Officer, have gone through the impugned judgments as also the precedent case law and have given anxious consideration to the contentions raised.

2. Notwithstanding the findings given in the impugned judgments, with regard to the qualification or disqualifications of the co-candidates against whom the election petitions were allowed, the common questions which cropped up for consideration, are as under :--

(I) Whether the concept of co-candidacy stipulated in Section 16 of the Punjab Local Government Elections Ordinance 2000 would continue to hold the field after the candidates have been returned as Nazim and Naib Nazim and can this principle be invoked to annul the election as a whole if an Election Petition is allowed against either of them on any ground stipulated in law?

(II) Whether the learned Tribunal fell in error in declaring Petitioner No. 2 as below 25 years of age and thereby ignoring the Birth Certificate issued by the Municipal Corporation wherein his date of birth is entered as 31.3.1974 ? (in W.P. No. 9029/2002).

(II!) Whether the learned Tribunal rightly declared the matriculation certificate of Petitioner No. 2 (Allah Dad) in W.P. No. 8752/2002 and Petitioner No. 2 (Muhammad Usman Mirza) in WP No. 9338/2002 to be fake ?

(IV) Whether the learned Tribunal correctly interpreted the relevant statutory provisions in holding that the act of Petitioner No. 2 (and his brother), in surrendering his personal land in favour of the residents to widen the village street amounted to bribery and illegal practice entailing disqualification ? (In WP No. 9004/2002).

1. To better appreciate the afore-referred issues, it would be of relevance to quote some provisions of the Punjab Local Government Election Ordinance 2000, Rules framed thereunder, Punjab Local Government Ordinance 2001 and the amendments, if any, which have a bearing on the issues raised.

2. The Punjab Local Government Ordinance 2001 was promulgated on 14th August, 2001. This Ordinance provided for repeal and savings of the old law. Its date of enforcement was qualified in terms of Section 1(3) which is as follow :

"1(3). It shall come into force on the fourteenth day of August, 2001, except the provisions as contained in Section 39(K) Chapter XVII and Section 196(l)(ii) of Chapter XIX which shall

coine into force on such date or dates as the Government may, by notification in the official Gazette, declare."

Section 196 of the afore-referred Ordinance reads as under :

"196. Repeal and Savings.-(l) On commencement of this Ordinance, (i) the Punjab Local Government Ordinance 1979 (VI of 1979) shall be repealed;

(ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000), shall be repealed; and

(iii) all Metropolitan Corporations, Municipal Corporations, District Councils, . Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government' Ordinance, 1979 (VI of 1979) shall stand dissolved.

(2) Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI of 1979) and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town, Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979), under sub-section (1), subject to Sections 4 and 23 of Punjab General Clauses Act, 1956 (-W.P. Act VI of 1956), all rules, regulations and bye-laws made under the repealed Punjab Local Government Ordinance, 1979 so far those are not inconsistent with the provisions of this Ordinance shall continue to be in force until amended or varied by the competent authority:

Provided that, until otherwise decided by the Government, the Local Government Boards established under the Punjab Local Government Ordinance, 1979 (VI of 1979), for the administration of officers and officials of the Local Council Service shall continue to function.

(3) Notwithstanding the repeal of Punjab Local Government Elections Ordinance, 2000 (V of 2000) all Nazims, Naib Nazims, and members of the Local Governments elected under the said Ordinance shall deemed to be have been elected under this Ordinance and shall continue to hold their respective offices till the completion of their terms, unless earlier removed or recalled under this Ordinance", (underlining is mine).

The qualifications for candidates and elected members are given in Section 14 of the Punjab Local Government Elections Ordinance 2000 which stipulates as under : . .

"14. Qualification for candidates and elected members.--A

person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he:-

(a) is a citizen of Pakistan ;

(b) is at least twenty five years of age;

(c) is enrolled as a voter in the electoral roll of the relevant ward;

(d) is of good character and is not commonly known as one who violates Islamic Injunctions; has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins:

Provided that these qualifications shall not apply to a'person who is a non-Muslim, but such a person shall have a good reputation;

(e) has academic qualifications of not less than matriculation or secondary school certificate or equivalent from recognized institution, for contesting the election of a Nazim or Naib Nazim;

(f) has not been declared by a competent Court to be of unsound mind;

(g) is not in the service of the Federal, Provincial or a Local Government or, any statutory .body or a body which is controlled by any such Government or, in which any of such Government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee:

Provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement;

(h) has not been dismissed, removed or compulsorily retired from public service on grounds of moral turpitude;

(i) does not posses assets which are inconsistent with his declaration of assets or justifiable means, whether held in his own name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby ' the de-facto control of such assets including their sale, transfer or pecuniary interest, is retained by him;

(j) has not been adjudged a wilful defaulter of any tax or other financial dues owed to the Federal or a Provincial or a

Local Government or any financial institution, including utility bills outstanding for six months or more;

(k) has not been convicted by a Court of Competent jurisdiction on a charge of corrupt practice involving moral turpitude or misuse of power or authority under any law for the time being in force;

(1) has not been sentenced to imprisonment for more than three months of an offence under any law and, a period of not less than five years has elapsed since his release; and in case of a member or a holder of a public office, has not been sentenced to imprisonment;

(m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws;

(n) has not been declared an un-discharged insolvent by any Court;

(o) does not engage in any transaction involving pecuniary interest with the Local Government of which he is a member;

(p) does not absent himself without reasonable cause from there consecutive meetings of the Local Government of which he is a member;

(q) does not fail to attend a training course when required to do so by law;

(r) has not been and is not involved, in activities prejudicial to the ideology, interest, security, unity, solidarity, peace and integrity of Pakistan and its people, and the good order and harmony of society;

(s) has not used for his election the platform, flag, symbol, and financial or material resources or support of a political, religious, ethnic or sectarian party, formation or organization."

The concept of joint candidacy is provided in Section 16 of the Punjab Local Government Elections Ordinance 2000 which is as under :--

"16. Joint Candidacy and elections.--(l) A Zila Nazim and a Naib Zila Nazim or a Town Nazim and a Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim or a Union Nazim and a Naib Union Nazim shall contest election in their respective wards as joint candidates.

(2) The Nazim and the Naib Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates the highest number of votes shall be declared elected.

(3) In case a Zila Nazim and a Naib Zila Nazim do not secure majority of the total votes of the members of the Union Councils in the District, there shall be held a fresh election, within one week of the first election, in which the joint candidates for such offices securing the highest and the second highest number of votes shall be contestants, and the joint candidates securing the highest number of votes in the fresh election shall be declared election".

Section ISA of the Punjab Local Government Election Ordinance 2000 provides for election of a candidate in case a member ceases to hold office for one reason or the other. It reads as under :--

""ISA. Casual Vacancy : (1) If the seat of a member becomes vacant during the term of office of a Council, a new member shall be elected through bye-election and such member shall hold office for the remaining part of such term: (underlining is mine).

Provided that all bye-elections shall be held once a year on dates fixed by the Chief Election Commissioner.

(2) A vacancy in the office of a Nazim shall be filled by an officiating Nazim elected by the members of the Council concerned by a majority vote :

(a) The member so elected shall continue to hold his substantive office as member till they bye-election to fill the vacant office is held;

(b) A Naib Nazim will not be eligible for bye-election or to be an officiating Nazim, and

(c) In the event of temporary absence of a Nazim the Naib Nazim of the Council concerned shall act in place of the Nazim."

Corrupt practice, bribery, undue influence and illegal practice corresponding penal consequences, have been defined in Sections 22, 23, 25 and 26 of the Punjab Local Government Elections Ordinance, 2000 which are reproduced as under:

Section 22 of the Ordinance mandates as follow:-

"22. Corrupt practice.--A person is guilty of corrupt practice punishable with imprisonment for a term which may extent to three years, or with fine which may extend to five thousand rupees, or with both, if he is guilty of bribery, personation of undue influence.

Section 23 reads as under :--

"23. Bribery.-A person is guilty of bribery, if he, directly or indirectly, by himself or by any other person on his behalf.

(1) receives, agrees or contracts for any gratification for voting or refraining from voting, or for being or refraining from being a candidate at, or withdrawing or retiring from an election;

(2) gives, offers or promises any gratification to any person;

(a) for the purpose of inducting:

(i) a person to be or to refrain from being a candidate at an election; or

(ii) a voter to vote, or refrain from voting at any election; or

(iii) a candidate to withdraw or retire from an election; or

(b) for the purpose of rewarding:

(i) a person for having been or for having refrained from being a candidate at an election; or

(ii) a voter for having voted or refrained from voting at an election; or

(iii) a candidate for having withdrawn or retired from an election.

Explanation. --In this section, gratification included a gratification in money or estimable money and all forms of entertainment or employment for reward."

Section 25 ibid is as under :--

1. Undue influence.'--A person is guilty of undue influence, if he-CD in order to compel any person to vote, refrain from voting, or to induce or compel any person to withdraw his candidature at an election, directly or indirectly, by himself or by any other person on his behalf.

(a) makes or threatens to make use of any force, violence or

restraint;

(b) inflicts or threatens to inflict any injury, damage, harm or loss; or

(c) uses any official influence or Governmental Patronage.

(2) on account of any person having voted or refrained from voting, or having withdrawn his candidature, does any of the acts specified in clause (1).

(3) By abduction, duress or any fraudulent device or contrivance.

(a) impedes or prevents the free exercise of the franchise by a voter; or

(b) compels, induces or prevails upon any voter to refrain from voting or compels any voter to vote.

Explanation.--In this section, harms includes social ostracism or ex-communication or expulsion from any caste or community."

Section 26 mandates as under :--

"26. Illegal practice.~A person is guilty of illegal practice punishable with fine which may extend to one thousand rupees, if he.

(1) obtains or procures, or attempts to obtain or procure, the assistance of any officer or official of the Federal Government, a Provincial Government or a Local Government or authority to further or hinder the election of a candidate;

(2) votes; or applies for a ballot paper for voting at an election knowing that he is not qualified for voting or is disqualification from voting.

(3) Votes, or applies for a ballot paper for voting more than once at any polling station;

(4) Removes a ballot paper or a ballot box from a polling station or destroys, damages or tampers with the ballot-box used at a polling station;

(5) Knowingly induces or procures any person to do any of the aforesaid acts;

(6) Fails to provide statement of election expenses as required under this Ordinance;

(7) Makes or publishes a false statement.

(a) concerning the personal character of a candidate or his relaxation calculated to adversely affect the election of such candidate or, for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable ground for believing, and did believe, the statement to be true;

(b) relating to the symbol of a candidate whether or not such symbol has been allocated to such candidate; or

(c) regarding the withdrawal of a candidate;

(8) knowingly, in order to support or oppose a candidate lets, lends, employs, hires, borrows, or uses any vehicle or vessel for the purpose of conveying voters to or from the polling station, except when a person conveys himself or any member of the household to which he belongs, to or from the polling station;

(9) causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting."

The grounds on the basis of which the election of a returned candidate can be declared void are stipulated in Rule 81 of the Punjab Local Government Election Rules 2000 which stipulate as under :

1. Grounds of declaring election of returned candidate

void.-(l) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that --

(a) the nomination of the returned 'candidate was invalid; or

(b) the returned candidate wa§ not, on the nomination day qualified for, or was disqualified from, being elected as a member of Nazim or Naib Nazim, as the case may be; or

(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or

(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent.

(3) The election of a returned candidate shall not be declared void on the ground :--

(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or

(b) that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a member."

Section 152 of the Punjab Local Government Ordinance 2001 enumerates the qualifications for candidate and elected members of a local council and lays down that if it is found by the Chief Election Commissioner that any one has contravened the afore-referred provisions, the said member shall stand disqualified for being a candidate for election to any office of the Local Government for a period of four years. Section 154 of the said Ordinance reiterates the principle of joint candidacy in election as provided in

Section 16 of the Punjab Local Government Elections Ordinance 2000 but provides that in the event of the occurrence of a casual vacancy, "a candidate in the office of a Nazim or Naib Nazim shall contest the election for such office in individual capacity". Section 161 of Ordinance 2001 lays down the procedure for the removal of a member and it reads as under :--

"161. Removals.--(l) Where proceedings of disqualification under Section 152 have been initiated on an application made by any person or by the" Chief Election Commissioner on his own motion against a member, Nazim or Naib Nazim, the Election Commissioner or any authority authorized by it may issue a notice to show cause to a member. Nazim or. as the case may be. Naib Nazim, within a specified period as to why proceedings against him may not be taken for his removal for breach of any of the provisions of Section 152. (underlining is mine).

(2) Where the Election Commission or an authority authorised by it is not satisfied with the reply to the notice to show cause referred to in sub-section (1) or any reply to the said notice is not filed within the period fixed by him, he may order for an enquiry in the matter and for that purpose appoint an enquiiy officer.

(3) On the basis of enquiry held under sub-section (2), the Election Commission or an authority authorized by it may order the removal

of a member, Nazim or, as the case may be, Naib Nazim :

Provided that before an order of removal is passed, the member, Nazim or, as the ease may be, Naib Nazim against whom enquiry proceedings are carried out shall be afforded a reasonable opportunity of being heard, including personal hearing if so requested."

ISSUE NO. 1

Whether the concept of co-candidacy stipulated in Section 16 of the Punjab Local Government Elections Ordinance 2000 would continue to hold the field after the candidates have been returned as Nazim

and Naib Nazim and can this principle be invoked to annul the election as a whole if an Election Petition is allowed against either of them on any ground stipulated in law ?

1. The fundamental issue in all these petitions is the question of interpretation of the expression "Joint Candidacy". Statutory interpretation has been a subject of debate among Lawyers, Jurists and Judges down the ages. Methods of statutory interpretation have not been generally regulated by the Parliament or the law maker. These have been evolved by the Judges. These modes have varied in time and space. The various modes, ultimately, culminated in what the Jurists have termed as "rules of statutory interpretation". These rules, broadly speaking, are as under :--

(i) The Mischief Rule;

(ii) The Literal Rule;

(iii) The Golden Rule;

(iv) The United Contextual Approach;

For the purpose of the instant case the united contextual approach would he of relevance. This has a rather recent origin. Smith and Bailey (in The English Legal System, third edition, page 363), referred to the following passage in Attorney General vs. Prinvr Ernest Auqustus Hanover (1957 A.C. 436) to explain this approach :--

"Words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine eveiy word of a statute in its context, and I use context in its widest sense which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can by those and other legitimate means, discern the statute was intended to remedy..

No one should profess to understand any part of a statute or of any other document before he has read the whole if it. Until he has done so, he is not entitled to say that it, or any part of it, is clear and unambiguous."

The very title of Section 16 is suggestive of its meaning and import. It is "Joint Candidacy and elections". It shows that the element of "Joint" is relatable to candidates in elections only and not beyond that. This legislative intent is implicitly reiterated/reflected in other provisions of the same Act, the related Statutes and the'rules framed thereunder. For instance if a returned candidate/member is un-seated or a seat falls vacant, then Section ISA (The Punjab Local Government Elections Ordinance 2000) stipulates bye-election of that seat only and not that of the other member who got elected with him through joint candidacy. Section 154 and Section 156 of the Punjab Local Government Ordinance 2001 are analogous to Sections 16 and ISA respectively of the Punjab Government Elections Ordinance 2001. Section 196 of the Punjab Local Government Ordinance 2001 provides for repeal of the previous two related Ordinances (1. The Punjab Local Government Ordinance 197£, 2. The Punjab Local Government Elections Ordinance 2000). Yet sub-section (.3) of Section 1 of the same Ordinance (of 2001) defers its enforcement and the repeal of the earlier law to a date or dates, the Government may by notification in the official gazette declare. Those provisions remained in vogue till 26th September, 2002 when the Local Government and Rural Development'Department, Government of the Punjab issued the requisite declaration in terms of sub-sueuon (3) of

Section 1 of the Punjab Local Government Ordinance 2001 which was notified in The Punjab Gazette and reads as under :--

"NOTIFICATION:

No. SOV/(LG)5-3/2001, In exercise of the powers conferred upon him under sub-section (3) of Section 1 of the Punjab Local Government Ordinance, 2001 (XIII of 2001), the Governor of the • Punjab is pleased to enforce the provisions of Chapter-XIX of the said Ordinance, with immediate effect."

Sub-section (2) of Section 196 (of the Punjab Local Government Ordinance 2001) provides that notwithstanding the repeal of the Punjab Local Government Ordinance 1979, all rules, regulations and bye-laws framed under the repealed Ordinance shall continue-to be in force provided those are not inconsistent with the other provisions of this Ordinance (of the repealing Ordinance). Sub-section (3) of Section 196 contemplates the continuity and mode of removal of those elected under the repealed Ordinance. The operative part whereof reads as "shall continue to hold their respective offices till the completion of their terms, unless earlier removed or recalled under this Ordinance". .

Section 161 (of the Punjab Local Government Ordinance 2001) lays down procedure of removal of a Nazim or Naib Nazim if he lacks any of the qualifications in terms of Section 152 and it does not talk of any joint removal/liability. And finally under Section 164 of the same Ordinance, the Chief Election Commissioner, who is to notify "every election, bye-election, and result of such elections and resignation, removal or recall of a member, Nazim or Naib Nazim as the case may be." (the underlining is mine). Under Section 38 of the Punjab Local Government Elections Ordinance 2000, the Punjab Local Government Elections Rules 2000 were framed which, by virtue of Section 1 sub-section (3) were still in force at the relevant time as admittedly the Punjab Local Government Elections Ordinance 2000 had not, by then, been notified by the Government to have been repealed. Rule 81 lays down the grounds on the basis of which the Tribunal shall declare the election of "the returned candidate" and not of candidates as void. Those grounds are also relatable to a returned candidate. Those are as under :--

(a) the nomination of the returned candidate was invalid; or

(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim, as the case may be; or

(c) the election of the returned candidate has' been procured or induced by any corrupt or illegal practice; or

(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent."

The above-mentioned scheme of law clearly shows that the post election procedure for (i) removal of a member, (ii) the bye-election to a vacant seat and the subsequent (Hi) notification of its result is member specific and not joint.

Besides looking at the statutory context to interpret the "Joint Candidacy", the well known rules of language can also be made use of for the same purpose. One such rule is EJUS DEM GENERIS. It means general words Which follow particular ones normally apply only to such persons or things as are ejusdem generis (i.e. of the same genus or class) as of the particular ones. (Smith & Bailey on the Modern English Legal C System, third edition, page 378). In the present context, the word "Joint' is ejusdem generis to the word which follows i.e. "candidacy".

Yet another Latin tag i.e. NOSCITUR A SOCIIS would also be very instructive. It means that words derive colour from those words which surround them. It is a fundamental rule in the construction of statutes that associated,words explain and limit each other. The meaning of a word may be ascertained by a consideration of the company in which it is found and the meaning of the words which are associated with it. (Brown vs. Chicago N.W.Ry.Co. 78 NW 771).

The distinction between the two Latin tags was graphically explained in State of Bombay vs. Hospital Mazdoor Saba (AIR 1960 SC 610 & 613) as under :--

"Associated words take their meaning from another under the doctrine of Noscitur a SOCIIS, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associted with it. Such doctrine is broader than the maxim ejusdem generis. In fact the latter maxim is only an illustration of specific application of the broader maxim noscitur a Sociis".

This is in line with the law laid down in Zamiruddin Ahmad vs. Havas Khan (PLD 1969 Supreme Court 57) and Messrs Kashmir Pottery Works vs. Commissioner of Sales Tax (PLD 1973 Lahore 837).

In the light of what has been discussed in the preceding paras, this Court is of the considered view that "joint Candidacy" is limited to elections only, that the principle of sinker would not be applicable and removal, disqualifiction or annulment of an election of a member would not affect the election of the other returned candidate who may have contested elections as a Joint Candidate with the former."

ISSUE NO. II

Whether the learned Tribunal fell in error in declaring Petitioner No. 2 as below 25 years of age and thereby ignoring the Birth Certificate issued by the Municipal

Corporation wherein his date of birth is entered as 31.3.1974 ? (In W.P. No. 9029/2002).

1. In the above-mentioned case Petitioner No. 2's date of birth, as per the entries made in the Municipal Register, was 31.3.1974. However, in the original Matriculation Certificate his date of birth was mentioned as 10.8.1976 but subsequently it was changed, as per the evidence, on 1.3.2001. In those circumstances, the Tribunal was of the view that "the change of date of birth in the matriculation certificate as well as in the corporation record was made with malafide intention in order to avoid disqualification". If the age of the Petitioner No. 2 is calculated in terms of the entries made in the earlier matriculation certificate (date mentioned as 10.8.1974) it becomes to 24 years 6 months and 13 days on 23.2.2002 which was the last date for filing the Nomination Papers. However, in the municipal register, his date of birth is 31.3.1974. Certified copy of the said entry was placed on record as Exh. R2 which shows that the information qua his birth was reported to the concerned Municipal Officer on 1.4.1974 i.e. within a week of his birth. There is nothing on record and it has not been contended either before this Court that any challenge was thrown by the respondent objectors to the afore-referred entries made in the Municipal Register before any competent authority under the hierarchy of Punjab Local Government Department Such entries have a presumption of truth and if necessary correction was made in the matriculation certificate no exception could be taken to it. Preference is always given to these municipal entries as compared to the entries made in the School Leaving Certificate or the r Matriculation Certificate. The question of his date of birth is further affirmed by another piece of circumstantial evidence i.e. Exh. R. 3 which is the certified copy of the Municipal Register indicating that Petitioner No. 2's younger sister was born on 19.9.1976. In the backdrop of the afore-referred material on the record the entries made in the Municipal Register of birth had to be given preference to the school leaving certificate or matriculation certificate. Similar view was taken in Khushnood Iqbal vs. D.R.O. (2001 MLD 1908) wherein, at page 1910, it was observed that "once this isprima facie found then the entry in the said birth register has to take precedence over the entry in the Matric Certificate".

A presumption of truth is attached to entries made in the register of births and deaths under Articles 85 and 90 of the Qanun-e-Shahadat Order, 1984.1 am fortified in my view by a judgment of the Hob'bel Supreme Court reported in Muhammad Aslam and another vs. Mst. Sardar Begum @ Noor Nishan (1989 SCMR 704), wherein at page 706, it was held as under :-

"All the submissions are devoid of any legal force. Taking up the first submission it may be stated that the municipal register of births and

deaths are a public record within the meaning of Section 74 of the Evidence Act 1872 (Article 85 of Qanun-e-Shahadat Order 1984); and therefore certified copies of entries in them are admissible in evidence [{see Anisur Rehman vs. Beni Ram (59 PR 1901)} and Principles and Digest of the Law of Evidence by M. Monir, page 786 (Pakistan Edition). See also Jai Bhagwan vs. Gutto and others (AIR 1934 Oudh 167) and Mst. Anwari Jan vs. Baldua and another (AIR 1936 Allahabad 218). Therefore, appellants could prove her age by production of certified copy of the relevant entries of the register of births and deaths and the Court was bound under Section 79 of the Evidence Act to presume that the certified copy was genuine. It was, however submitted that there,is no presumption as to correctness of the entries in the register, therefore, the certified copy could not prove that respondent's; date of birth was 14th September, 1963. This date of birth was recorded on 20th September, 1963, within six days of the birth. At that time there could be no need or reason to give a wrong date of birth. Therefore, this must be her real date of birth and would and should prevail over the oral evidence in this case."

The finding of the learned Tribunal with regard to the age of Petitioner No. 2 in Writ petition No. 9029/2002 in the light of the afore-refered discussion cannot be maintained.

ISSUE NO. Ill

Whether the learned Tribunals rightly declared the matriculation certificate of Petitioner No. 2 (Allah Dad) in W.P. No. 8752/2002 and

,, Petitioner No. 2 (Muhammad Usman Mirza) in WP. No. 9338/2002

" to be fake?

1. In WP No. 8752/2002 Petition No. 2's matriculation certificate was declared by the Tribunal to be fake. The learned Election Tribunal based its finding on a letter received from the Secretary Punjab Board of Technical Education Lahore Bearing No. 821 dated 24.4.2002 to the following effect :-

"The certificate of Mr. Allah Dad son of Ata Muhammad bearing Roll No. 53 Certificate No. 001253 Secondary School Certificate (Matric Tech.) Session 1981 is fake/bogus."

No tenable evidence was led by the petitioner in rebuttal to the afore-refered letter. The afore-referred letter- was duly proved before the learned Tribunal b the official of the Board and there is nothing to indicate that the petitioners ever challenged the afore-referred finding before the competent forum in the hierarchy of the Punjab Board of Technical Education.

Similarly in W.P. No. 9338/2002 the learned Tribunal found that the matriculation certificate produced by Muhammad Usman Mirza (Petitioner No. 2 in the said petition) was fictitious. This finding is hased on (i) statement of PW 1 Abaidullah an official of the concerned Board to the effect that Roll No. 10573 on which the said petitioner claimed to have appeared and cleared Matriculation was that of a girl named Rukhsana daughter of Muhammad Anwar; (ii) statement of PW 2 (Mushtaq Ahmad) of the Registration Office. He said that in Form-Alf, the said petitioner is shown to have "middle" qualification; (iii) Exh. PI was placed on record which is the enquiry report of the Board wherein it was held that Petitioner No. 2's matriculation certificate was fake. Petitioner could not lead any tenable evidence in rebuttal.

This afore-referred findings of fact arrived at by the learned Tribunals of competent jurisdiction cannot be interfered in the Constitutional petitions. The findings, therefore, to the extent of Petitioner Xo. 2 in both the petitions, merit no interference.

ISSUE XO. IV:

Whether the learned Tribunal correctly interpreted the relevant statutory provisions in holding that the act of Petitioner No. 2 (and his brother), in surrendering his personal land in favour of the residents to widen the village street amounted to bribery and illegal practice entailing disqualifiction ? (In WP No. 9004/2002).

1. The allegation against Petitioner No. 2 in the afore-refered petition was that he provided electric polls to the residents of the locality during the election campaign and that he was signatory to an Iqrar Nama (Exh. A2) entered into between himself, his brothers and residents of the locality to the effect that to widen the street to the extent of six feet he and his brothers, in the Name of God Almighty would, surrender a certain part of the land/property owned by them and that they had no objection if the residents of the locality got the said land mutated, in the revenue record for the said purpose.

There is no cavil to the proposition that if a candidate offers or gives or promises any gratification for the purpose of inducing a voter to vote or a candidate to withdraw or to influence the course of election, it .would constitute a corrupt practice within the meaning of Sections 165 and 166 of the Punjab Local Government Ordinance, 2001 and the election of a returned candidate could be annulled if this charge is proved. These provisions of election laws are meant to ensure the sanctity of the election process. However, while interpreting these provisions care has to be taken in distinguishing a voluntary expression of good will in favour of the residents of the locality and the offer made to a potential voter in lieu of the promise held by the latter of support in the election. In the former act, there is no element of bargain whereas in the latter act the bargain could be overt or covert, or could be subtle or implied. To declare an act to be a corrupt practice or the transaction to be bribery in the context under consideration, the element of bargain is a condition precedent. Two elements are essential in order to constitute a bargain. Firstly; there must be a gift, an offer or a promise or a gratification and, secondly, there should be an element of solicitation for votes in lieu of gift or promise or gratification. In the instant case, the wording of "AW2 (Iqrar Nama) indicates that the surrendered land to widen the street was made voluntarily in the Name of God Almighty and there was no element of soliciting the vote, in the said Iqrar Nama. The allegation that the petitioner promised and provided electric polls in the locality with a view to influence the course of election is not borne out from the record. Only AW3 Rao Muhammad stated so and that too to the extent that four cemented electric polls were brought by Petitioner No. 2 three/four days prior to the election day and were kept in his house. This allegation is not corroborated by any other material on record. The three witnesses produced by the respondent objectors belonged to the loosing party and no implicit reliance can be placed on their testimoney. The view that bargaining with voters is an essential ingredient to prove corrupt practice or bribery is fortified by two judgments of the India Supreme Court reported in HarjitSingh vs. S. Umrao Singh (AIR 1980 SC 701) and Iqbal Singh vs. Gurdas Singh (AIR 1976 SC 27). '

For what has been discussed above it is declared and held as under:-

(i) That the concept of Joint Candidacy stiuplated in Section 16 of the Punjab Local Government Ordinance, 2000 is relatable to , election or bye»election only and would not affect the election of a returned candidate if an election petition is allowed against a co-returned candidate. All the Constitutional Petitions to the afore-referred extent are allowed;

(ii) Writ Petition No. 9029/2002 is allowed. For reasons given in para 14, the findings qua Petitioner No. 2 are not sustainable.

(iii) For what has been discussed in Para 15, Writ Petition No. 8752/2002 and Writ Petition No. 9338/2002 are dismissed with regard to Petitioner No. 2 in both the petitions.

(iv) Writ Petition No. 9004/2002 is also allowed to the extent of Petitioner No. 2 as well (Reasons are in para 16 above).

(T.A.F.) Orders accordingly.

PLJ 2003 Lahore 483 [Multan Bench Multan]

Present: MUHAMMAD KHALID ALVI, J.

MUHAMMAD ZIKRIYA and others-Petitioners

versus

SENIOR SUPERINTENDENT OF POLICE, MULTAN

and others-Respondents

W.P. Nos. 1314, 1714, 1318 and 1574 of 2002, heard on 21.11.2002. Service Matters-

—-Art. 199-Constitution of Pakistan 1973-Police Rules, 1934 R. 13.7-Brief facts of all these cases are that petitioners in all these cases were initially appointed as Constable on various dates in—All of them qualified their exarn for being placed on List-A-Since exam for list-A was delayed, therefore, all petitioners were given two years' age relaxation for appearance in said examination by SSP—It is also submitted that since 1999. no exam was held for List-A & List-B/1, till 6.2.2002, when for the first time, after 1999 examination of List-B/1 was held, in which petitioners were allowed to participate-All petitioners cleared said written examination and were called upon for interview on 8.2.2002-On S.2.2002. petitioners appeared before SSP for interview but same was refused on the ground that they have alneady crossed prescribed age limit cf 33 years under Rule 13.7 of Police Rules, 1934, hence this petition~A policy framed by respondents was being flouted by themselves cannot have binding effect on others-But otherwise qualified constables cannot be refused a right to compete who qualify for B/l Examination-Omission of respondents for not holding examination every year has undoubtedly deprived petitioners of their right of fair competition-They have become over age not because of any lapse on their part but on pail of Respondent for which they should not suffer-Petitions allowed with the order to do the needful.' [Pp. 483 to 485] A, B & C

Mr. Zafarullah Khan Khakwani, Advocate for Petitioners. Mr. Muhammad Qasim Khan, learned AAG. for Respondents. Date of hearing: 21.11.2002.

judgment

Through this single Order I propose to dispose of Writ Petitions Nos. 1314/2002, 1714/2002, 1477/2002, 1318/2002 and 1574/2002, as all these petitions are arising out of common question of law and fact. With the concurrence of learned counsel for the parties, all these cases are being treated as "Pacca" cases.

1. Brief facts of all these cases are that the petitioners in all these cases were initially appointed as Constable on various dates in District of Multan. All of them qualified their exam for being placed on List-A. Since the exam for list-A was delayed, therefore, all the petitioners were given two years' age relaxation for appearance in the said examination by the SSP., Multan. It is also submitted that since 1999, no exam was held for List-A & List-B/1, till 6.2.2002, when for the first time, after 1999 examination of List-B/1 was held, in which the petitioners were allowed to participate. All the petitioners cleared the said written examination and were called upon for interview on 8.2.2002. On 8.2.2002, petitioners appeared before the SSP. for interview but the same was refused on the ground that they have already crossed the prescribed age limit of 33 years under Rule 13.7 of the Police Rules, 1934, hence this petition.

2. Learned counsel for the petitioners contends that on the ground of delay in holding the Examination for List-A, the petitioners were earlier granted two years' age relaxation, therefore, on the same principle since their earlier examination of List-A, was delayed and they were given two years age relaxation, therefore, they are entitled to further age relaxation for qualifying B-l examination. To substantiate his this contention, he has referred to a letter issued by the SSP, Multan dated 25.2.2000, according to which all Constables, otherwise eligible for List-A were allowed to participate in the examination provided they have not crossed the age limit of 32 years. Although, admittedly, the normal age for such examination is 30 years. With reference to a Standing Order No. 8 of 2001, issued by the Inspector General of Police, it is contended that the Respondent No. 1 is required to hold examination for maintaining List-B/1 in first week of February each year. Non-holding of such examination in the years 1999, 2000 & 2001 has materially effected the rights of the petitioners due to which, they have become over-age, having no fault on their part. He has also referred to a letter dated 9.6.1998, issued by the Deputy Inspector General of Police, Multan "addressed to all SSPs in the Range, directing them to hold such examination regularly, to indicate that omission on the part of Respondent No. 1, to hold such examination regularly, had resulted in miscarriage of rights of the petitioners. It is finally contended that age relaxation can be granted by the SSP, Multan as he has quoted the case of Muhammad Ashraf, Constable No. 1466 of Multan, to whom one year's age relaxation was given vide order dated 29.10.1990. It is thus contended that under Rule 13.20-of the Police Rules 1934, keeping in view of hardship, cases of the petitioners age could be relaxed in their .cases.

3. It is contended by the learned AAG that prior to the issuance of Standing Order No. 8 of 2001, through a directive of DIG, Multan Range, Multan District was allocated only 30 seats for maintaining the list of Constables for list B/l and thereafter, through Standing Order No. 8 of 2001, the number of constables to be maintained on list B/l, was prescribed as 3% of the total strength of Constables in a District. He has placed on record the detail of Constables on List-B/1 from year 1999 to 1.12.2001. According to this list in the year 1999, 94 Constables were on List B/l out of them'were sent on course. On 14.2.2000 the member was 87 as same Constables were transferred from other Districts to Multan. Out of these 87, 6 were sent to lower course but the number still increased r,o 88. On

8.8.2000, due to further transfers of Constables from other Districts, when 14 Constables were sent to lower course but still on 9.7.2001 the number remained 77 when 11 Constables were sent to lower course but instead of decreasing the number on 1.12.2001, the number increased to 84 when 18 Constables were sent on lower course. The final resume of this variation is that at the time when this examination was held on 8.2.2002, the available strength of List-B/1 was 66. It is further submitted that total strength of the Police Constables in the Multan District is 2679 and according to Standing Order No. 8 of 2001, the allocation was only of 3% for Multan District, therefore, no examination could have been held. After the issuance of the above referred standing order, the examination was rightly held in the year 2002. So for as the question of relaxation of age is concerned, it is contended that under Rule 13.20, Inspector General of Police is authorised to relax the prescribed age limit but I.G. of Police has not relaxed the age in any case.

1. I have considered the arguments of learned counsel for the

parties.

1. In the year 1999, the respondents we're maintaining 94 Constables, qualified in B-l Examination, likewise, in the year 2000 &2001 as well they were having a strength of more than 30. Meaning thereby, that according to their own case, Respondent No. 1 was to maintain a maximum of 30 Constables on list B-l. He was not following the instructions of the DIG as contended by the learned AAG. A policy framed by the respondents was being flouted by themselves cannot have binding effect on others. The petitioners were earlier allowed two years' age relaxation by the SSP., Multan, considering the Departmental lapse for not holding the examination in time. Likewise, in the present case as well for at lease three years no examination for list B/l was held by the respondents, which was otherwise required to be held each year in the first week of February. If a candidate (Constable) is, otherwise, qualified in an examination, he cannot be denied his right to compete. However, under Rule 13.7 it is the prerogative of the DIG to choose out of that list as to who is to be sent for the course, keeping in view the seniority in age among the qualified B/l Constables. But otherwise qualified constables cannot be refused a right to compete who qualify for B/l Examination. The omission of the respondents for not holding the examination every year has undoubtedly deprived the petitioners of their right of fair competition. They have become over age not because of any lapse on their part but on the part of Respondent No. 1, for which they should not suffer.

2. For what has been stated above, these writ petitions are allowed. The competent authority in the cases of the petitioners with respect to relaxation of age shall pass appropriate orders with respect to the individual case of every petitioner. The petitioners shall be Intel-viewed if they have already passed their written examination held on 6.2.2002. If they qualify in the interview, their names shall be placed on List-B/1.

3. .Disposed of. No order as to costs. (T.A.F.) Orders accordingly.

PLJ 2003 Lahore 486

Present: SAYED ZAHID HUSSAIN, J.

Ch. ABDUL MAJEED and 6 others-Petitioners

versus

ADDITIONAL DEPUTY COMMISSIONER (GENERAL)

WITH POWERS OF NOTIFIED OFFICER, SHEIKHUPURA

and another-Respondents

W.P. No. 65 R of 1999, heard on 14.10.2002. (i) Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958)--

—Ss. 10 & ll-Constitution of Pakistan, 1973, Art. 199--Allotment of evacuee property-Dispute between parties related to the extent of area allotted to each of them—Perusal of application of predecessor of petitioners would show that he had applied for "flour chakki" and extent of share transferred to him was "full" as per transfer order issued to him- Such Transfer order was given effect to in revenue record and same was not challenged by any one at all—Finding of Notified Officer to the contrary were not supportable by any cogent material and same was not sustainable. [P. 489] A

(ii) Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958)-

—- Ss. 10 & 11-Property allotted to respondents was to the extent of specified area which is borne out from very opening sentence of judgment of High Court dated 2.12.1992-Said judgment having been maintained by Supreme Court as well, no addition or deletion can either be made nor is permissible. [P. 439] B

(iii) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-

—-S. 2 (2)-Constitution of Pakistan (1973), Art. 199-Locus Standi to challenge allotment-Transfer in favour of allottees, had assumed finality with issuance of P.T.D. in 1968-Petitioner challenging such allotment/ transfer being not a party to those proceedings would have no locusstandi to challenging same and allotment in question, having attached finality in 1968, cannot now be re-opened. [P. 490] C

1988 MLD 1457; 1991 MLD 1774; 1988 CLC 1114 and 1990 CLC 718 ref, Ch. Khurshid Ahmad and Mr. Abdul Wahid Ch. Advocates for Petitioners.

Ch. Mushtaq Masood; Advocate for Respondent No. 1. Ch. QadirBakhsh, Advocate for Respondent No. 2. Date of hearing : 14.10.2002.

judgment

Property No. B-l-S-H-32 and Property No. B-l-S-II-33 adjacent to each other situated on Railway Road Nankana were owned by evacuees namely Devi Dayal and Ladha Ram respectively. The two properties will be hereinafter referred to as No. 32 and No. 33 respectively. Leaving aside the unnecessary details suffice it to state that All Muhammad, the predecessor in interest of writ petitioners in W.P. No. 65-R/99 was transferred Property No. 33, whereas Property No. 32 was purchased in auction by Ghulam Rasool who surrendered his rights in favour of Muhammad Tufail, writ petitioner in W.P. No. 48-R/99. They do not dispute the respective transfers of each other, the dispute however, is as to the extent of each of the property. In order to comprehend the real controversy it may be mentioned that Property No 33 which was an unregistered Chakki (Flour Mill), was transferred to Ch. Ali Muhammad on 9.2.1960, whereafter the price was calculated, measurement of the property is stated to have been undertaken and plan prepared. On payment of the price the Transfer Order (T.O.) was issued to him on 29.6.1974. Mutation No. 606 was thereafter sanctioned on 26.7.1983. The area mentioned therein is 2 Kanals 3 Marias and 2 Sarsahis. The transfer was not challenged by any one. So far as Property No. 32 is concerned the same was, as stated above, purchased in opeii auction by Ghulam Rasool who surrendered his rights in favour of Muhammad Tufail, PTD was issued on 26.3.1968 to him. W.P. No. 4880/92 was filed by Muhammad Tufail as Lahore Harike Transport Company also started laying claim to the property. His writ petition was accepted by this Court on 2.12.1992, upholding the transfer of Ghulam Rasool/Muhammad Tufail. That order was challenged by filing petition for leave (C.P. No. 1226-L/92), which was, however, dismissed on 11.4.1993. Muhammad Tufail then filed W.P. No. 15926/93 that area of Property No. 32 was 5 Kanals 17 Marias. In that petition a Local Commission was appointed whose report was, however, objected to by Ali Muhammad. The matter had not yet concluded when that petition was withdrawn on 7.5.1994, by Muhammad Tufail. After the dismissal of that petition, a review petition (R.A. No. 63/94) was filed by Muhammad Tufail before this Court in W.P. No. 4880/92, in which report was called for, which report was submitted by the Notified Officer, but the said petition for review was withdrawn on 5.6.1995 and was dismissed accordingly. It may be mentioned that in the report submitted by the Notified Officer, Sheikhupura, the area of Property No. 32 was stated to be 2 Kanals 17 Marias approximately. It may be mentioned here that Ali Muhammad also had to initiate civil litigation, in which he was successful. Muhammad Tufail again filed W.P. No. 2380/96 against Mutation No. 606, referred to above, disputing correctness of the same as to the area mentioned

and transferred to All Muhammad. In that writ petition the matter was remanded to the Notified Officer by consent of the parties in view of the disputed questions of fact involved in the case. It is in this background that Respondent No. 1 has passed order dated 25.2.1999, wherein he has come to the conclusion that "the total area of this Property No. BI-SII-32 was 2 Kanals 17 Marias and not 5 Kanals. Since this area is already with the petitioner (Muhammad Tufail) therefore he has got no legal right to claim area in excess of that". He has observed that "Ali Muhammad was transferred Ladha Ram/Maljee Flour Chakki located in Property No. BI-SII-33 and full rights were transferred to him. The total area transferred to him is 2 Kanals 3 Marias and 8 Sarsahis,.which is mentioned in Mutation No. 606." He, However, came to the conclusion that "Ali Muhammad was entitled to only that land which come under his Flour Chakki and it was worked out to be 2 Marias 3 Sarsahis. It should be noted that even the entire Property BI-SII-33 was not transferred to Ali Muhammad, in fact two other shops are also located in this property which have been transferred to two different person other than Ali Muhammad." It was thus concluded by him that Ali Muhammad had failed to establish his rightful claim over 2 Kanals 2 Marias and 2 Sarsahis, which was ordered to be resumed in favour of the Provincial Government. He accordingly ordered the review of Mutation No. 606. Both Muhammad Tufail and Ch. Ali Muhammad have felt aggrieved of this order and filed W.P. No. 48-R/99 and \f.P. No. 65-R/99 respectively.

1. The principal contention of the learned counsel for Ch. Ali Muhammad is that since the full interest in- Property No. 33 had been transferred to him, he was transferee of whole of it, area whereof was 2 Kanals 3 Marias and 8 Sarsahis as per the plan drawn and prepared by the Department after measurement of the site. It is contended that Muhammad Tufail could not lay claim to the property transferred to Ali Muhammad as his property' (Property No. 32), measured 2 Kanals 17 Marias, which was already owned and possessed by him. The view taken by the Notified Officer, with reference to the report of the Local Commission, mentioned earlier has been criticized by him that the said report was of no effect, to which objections had been filed by Ch. Ali Muhammad, which had yet to be decided, but the petition- was withdrawn. According to him, such a report had no binding effect in view of Haji Muhammad Sharif and others vs.Ijazuddin Ahmad and others (1988 MLD 1457). Messrs Kausar & Co. v.Messrs Universal Insurance Co. (Put.) Ltd. (1991 MLD 1774). Nabi Bakhsh v. Liaqat Ali (1988 CLC 1114) and Akbar Ali and others v. Province ofPunjab and others B (1990 CLC 718).

2. Ch. Qadir Bakhsh, Advocate, the learned counsel for Muhammad Tufail on the other hand contends that Ch. Ali Muhammad had only been transferred Flour Chakki and not the whole of Property No. 33, therefore, he was entitled to only that area which was covered by the Flour Chakki and

nothing beyond that. It is contended that 4he Notified Officer has correctly recorded his finding to that extent whereas he went wrong in taking the view that Property No. 32 transferred to Muhammad Tufail was only 2 Kanals 17 Marias.

The learned Counsel for the Department has also been heard, who supports the order passed by the Notified Officer.

1. Material on the record has been referred to by the learned counsel for the parties and perused with their assistance. As mentioned at the very opening of this order, the dispute between the parties is as to what was the area transferred to Ch. Ali Muhammad Le. Property No. 33 and Muhammad Tufail i.e. • Property No. 32. Insofar as the transfef of Ch. Ali Muhammad is concerned, the perusal of this application form and the later orders passed would clearly show that he had applied for Flour Chakkicomprising Property No. 33. The extent of the share therein transferred'to him was "full" as per Transfer Order issued to him. It was the said Transfer Order, which was given effect to in the revenue record by sanctioning Mutation No. 606. Not only that the transfer in favour of Ch. Ali Muhammad was not challenged by any one at all, it was not even disputed by the Department itself, as to what was the extent of the area. The quantum of the price determined and paid by him also supported that Property No. 33 comprising Ladha Ram Malji Flour Chakki in "full" and as a whole had been transferred to him. The findings of the Notified Officer to the contrary are not supportable by any cogent material. He was impressed by the report of Local Commission but reliance thereupon was neither warranted nor apt inasmuch as the said report was subject to objections by Ch. Ah' Muhammad, but without awaiting the decision of those objections the petition was withdrawn by Muhammad Tufail. Such a report of the Commission thus had no legal efficacy. Moreover finality attached to the Transfer Order which had remained unchallenged for a long time, could not be eroded, on the basis of assumptions. The view thus taken by the Notified Officer in ordering the resumption of an area measuring 2 Kanals 2 Marias and 2 Sarsahis is not sustainable. Writ Petition No. 65-R/99 thus merits acceptance.

2. Insofar as the claim of Muhammad Tufail beyond 2 Kanals 17 Marias is concerned, the same does not pose any difficulty whatsoever, because he was transferred Property No. 32 measuring 2 Kanals 17 Marias only as associate of Ghulam Rasool. This is borne out from the very opening sentence of the judgment of this Court dated 2.12.1992 (W.P. No. 4880/92). The said judgment having been maintained by the Hon'ble Supreme Court of Pakistan as well, no addition or deletion can either be made nor is permissible. The P.T.D, issued to him also relates to Property No. 32 owned by Devi Dayal evacuee in "full". There is no doubt that both properties, No. 32 and No. 33 are independent and distinct, thus neither the transferee of Property No. 32 can lay claim beyond what Property No. 32 was, nor the transferree of Property No. 33 can .be denuded of his rights in that property. Indeed after issuance of Transfer documents and repeal of Settlement Laws the matter could not be reopened and the parties should have been content with what had been transferred to them. Muhammad Tufail thus has rightly been found to confine himself to an area measuring 2 Kanals 17 Marias. His writ petition i.e. W.P. No. 48-R/99 thus merits dismissal.

3. There are few other writ petitions concerning the same property. W.P. No. 220-R/99 has beetf filed by Abdul Majeed and another for a direction that land measuring 2 Kanals 2 Marias, which in pursuance of the order passed by the Notified Officer quaProperty No. 33 had become available, the same be ordered to be transferred to them. Since the cause of the petitioners was dependent upon the fate of the order passed by the Notified Officer in particular Property No. 33 and that part of the order of the Notified Officer has not been sustained, this petition has lost it ground, which is dismissed accordingly.

4. In W.P. No. 196-R/2000 Muhammad Nazir seeks a direction that the matter of transfer of Property No. 32 in favour of Muhammad Tufail be ordered to be enquired into by the Chief Settlement Commissioner being a fraudulent affair. When asked as to what was the locus standi and the interest of the petitioner in seeking reopening of a matter past and closed, the learned counsel contended that the transfer was wholly illegal, therefore, it need to be set aside. Suffice it to observe that the petitioner has no locus

standiwhat so ever to challenge transfer, which assumed finality with the

issuance of PTD in the year 1968. It cannot be allowed to be reopened at this

stage. The petition is accordingly dismissed.

1. Writ Petition No. 16791-R/2000 was filed by Muhammad Tufail, seeking a direction to WAPDA for payment of rent to him. In view of the judgment in W.P. No. 48-R/99 and W.P. No. 65-R/99 this petition has become infructuous. It is dismissed accordingly.

2. Civil Revision No. 1997/93 arises out of an order passed on

28.10.1993 whereby an application filed by the petitioner Muhammad Tufail

under Section 12(2) CPC was dismissed. This petition also has no merit and rather has become infructuous in view of the judgment in W.P. No. 48-R/99 and W.P. No. 65-R/99. It is also dismissed accordingly.

As a sequel to the above, W.P. No. 65-R/99 is accepted, order of the Notified Officer dated 25.2.1999 is declared as of no legal effect to the extent of Property No. B-I-S-II-33, whereas W.P. No. 48-R/99 is dismissed maintaining the order of the Notified Officer qua the extent of Property No. B-I-S-II-32. No order as to costs.

(A.P.) Order accordingly.

PLJ 2003 Lahore 491

Present: muhammad sato An, J.

NATIONAL BANK OF PAKISTAN through Mr. WAJAHAT A. BAQAI, AVP AT CREDIT DIVISION, HEAD OFFICE, KARACHI

and 5 others-Plaintiffs

versus

PUNJAB ROAD TRANSPORT BOARD through its M,D. and 3 others-Defendants

C.O.S. No. 41 of 2000, decided on 24.9.2002. Financial Institutions (Recovery of Finances) Ordinance, 2001--

—- S. 9--Bankers Books Evidence Act, 1891, S. 2(3)-State Life Insurance Corporation falls within definition of "Financial Institution" as given in S. 2-A of the Financial Institutions (Recovery of Loans) Ordinance, 2001 and whether it can file suit under S. 9 of the Ordinance of 2001-Under S. 9 of the Ordinance of 2001, no suit can be instituted through a plaint without the support of a statement of Account, which is not duly certified under the Bankers Books Evidence Act, 1891-Books of Insurance Corporation are not the books of the Bank used in its ordinary business- State Life Insurance Corporation, thus, cannot institute a suit under S. 9 of Financial Institutions (Recovery of Finances) Ordinance 2001, in absence of statutory authority to certify entries in its books under Bankers Books Evidence Act 1891-State Life Insurance Corporation is not one of those companies which can transact business of Banking or that of a Modarba, Leasing, Investment Bank or venture capital etc., to fall within the definition of financial institution—State Life Insurance Corporation, thus, has no locus standi to institute present suit-Name of Plaintiff, State Life Insurance Corporation was thus, deleted and struck' off the plaint under O. I, R. 10 C.P.C. [Pp. 493 & 495] A

Mr. Muhammad Raza Farooq, Advocate for Plaintiffs. Mr. Ahmad Awais, Advocate for Defendant No. 1. Mr. Muhammad Asif Bhatti, Advocate for Counsel for Defendants, Nos. 2 and 3.

Date of hearing: 24.9.2002.

order

As noted iij detailed order dated 4.7.2002, the suit was filed jointly by the following six plaintiffs:--

1. National Bank of Pakistan

2. Habib Bank Limited

3. United Bank Limited

4. Muslim Commercial Bank Limited

5. Allied Bank Limited; and

6. State Life Insurance Corporation of Pakistan.

7. Upon settlement of claims of Plaintiffs Nos. 1, 2, 3 and 4 against the defendants, the learned counsel for the parties jointly /equested for dismissing the suit of-the said plaintiffs as not pressed. Accordingly, by order dated 4.7.2002, suit/claim of Plaintiffs Nos. 1 to 4 was dismissed as per joint request of the learned counsel for the parties.

8. It is to be noted that State Uf° Insurance Corporation of Pakistan is one of the plaintiffs to the extent of its own separate claim, though arising out of a consortium agreement. Question thus arose as to whether State Life Insurance Corporation (State Life) could fall within the definition of "financial institution" as given in Section 2-A of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

9. The learned counsel for the plaintiffs stated that under Sub Clause (i), (ii) and (iii) of Section 2-A of the Ordinance, 2001, financial institution includes any company transacting the business of Banking or any associated or ancillary business and a financing company or a credit investment institution or any company authorized by law to carry out any similar business. Reference there-upon was made to Life Insurance (Nationalization) Order, 1972, where-under, State Life Insurance Corporation was established and business of the Corporation was defined in Section 14(2)(e) of the Order of 1972 to include advancing or lending money on security or otherwise. Learned counsel for the plaintiffs there-upon, stated that the words employed in the above said Section 14(2)(e) ibid are almost synonymous to the words used in Section 7-A of the Banking Companies Ordinance, 1962, which defines the business of Banking "as the borrowing, raising or taking up of money; the lending or advancing of money

either upon or without security ........ " It was thus stated that State Life

Insurance Corporation falls within the definition of financial institution to sue a customer or a borrower under Financial Institutions (Recovery of Finances) Ordinance, 2001. It was further asserted that the finance/loan of defendants was a consortium debenture loan disbursed through all the plaintiffs by one agreement, wherefor, exclusion of State Life would have exposed the parties to a risk of conflicting judgments, hence the present suit.

1. I have considered the arguments of the learned counsel for the plaintiffs and have also examined the provisions of law referred to by him. Section 7 (1) of the Banking Companies Ordinance, 1962 defines the forms of business in which Banking company may engage. It reads as under:

2. Forms of business in which banking companies may engage.--(l)In addition to the business of banking, a banking company may engage in any one or more of the following forms of business, namely:

(a) the borrowing, raising or taking up of money; the leading or advancing of money either upon or without security ...."

1. The above said Section has been reproduced for containing the definition of business of Banking allowed to Bank. Endeavour of Plaintiff No. 6 i.e. State Life Insurance Corporation is to re-inforce its case by stating that under Section 14(2)(e) of the Life Insurance (Nationalization) Order 1972, State Life has the power and function to advance and land money either upon or without a security which is the same function as that of a Banking Company defined under Section 7(l)(a) of the Banking Companies Ordinance, 1962. By raising this argument, learned counsel for the said plaintiffs has over looked the opening words of Section 7(1) of the Ordinance of 1962, which only empower a Banking Company to engage in any one or more of the businesses defined in the said Section. State Life Insurance Corporation is obviously and admittedly not a Banking Company falling within the provisions of Banking Companies Ordinance, 1962 as regards its incorporation, establishment, approvals, licenses, sanctions, functions, powers, business etc. etc.

2. Similarly, sanctity has been attached to the entries in the Statement of Account or Bankers Books under the Bankers Books Evidence Act, 1891. Bankers books have been defined in sub-section (3) of Section 2 of the Act of 1891 to include "ledgers, day books, cash books, account books and all other books used in the ordinary business of Banks". Upon certification as per sub-section (8) of Section 2 above, the certified copy of any entry in a Bankers book becomes receiveable as prima-facieevidence in all legal proceedings under Section 4 ibid. It has not been argued that the books of State Life Insurance Corporation are the books "used in the ordinary business of Bank". This argument obviously was not available to the learned' counsel for the plaintiff because business of Insurance Corporation is not the business of the Bank.

3. Under Section 9(1) and (2) of the Financial Institutions (Recoveiy

of Finances) Ordinance, 2001, no suit can be instituted through a plaint without the "support" of a Statement of Account which is not duly certified under the Bankers Books Evidence Act, 1891. Since books of the Insurance Corporation are not the books of the Bank used in its ordinary business, State Life cannot claim similar sanctity for its Statement of Account, as has been allowed to that of a bank under the Bankers Books Evidence Act, 1891. It is thus obvious that State Life Insurance Corporation cannot institute a suit under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 in absence of statutory authority to certify entries in its books under the Bankers Books Evidence Act.

1. The entire thrust of the definition of financial institution is on the business of Banking or any associated'or business ancillary thereto. Merely on the strength of Section 14(2) (e) of the Life Insurance (Nationalization) Ordinance, 1972 allowing State Life power to advance or lend money with or without security, it cannot be said that it is one of those companies which can transact business of Banking or that of a Modarba, Leasing, Investment

Bank or Venture Capital etc. etc., to fall within the definition of financial institution.

10, In view ,of the above, I hold that State Life Insurance Corporation of Pakistan (Plaintiff No. 6) had no locus standi to institute the present suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001. The name of Plaintiff No. 6 and its claim is thus deleted and struck of the plaint under Order I Rule 10 CPC. The suit thus shall proceed only for the claim of Allied Bank Limited against the defendants. This suit shall proceed in this Court as the subject-matter thereof is above Rs. 50 million.

1. To come-up for further proceedings on 29.10.2002.

(A.A.) Order accordingly.

PLJ 2003 Lahore 494 (DB)

Present: mian hamid farooq and parvez ahmed, JJ.

Sh. MUHAMMAD NAEEM and 3 others-Appellants

versus

HABIB BANK LTD. HEAD OFFICE HABIB BANK PLAZA, KARACHI through its Manager and 4 others-Respondents

R.F.A. No. 184 of 2000, heard on 3.10.2002. (i) Civil Procedure Code, 1908 (V of 1908)--

—O.XXXVII, R. 3~No replies to applications to defend suit had been filed by plaintiff bank denying assertions in such applications-Banking Court did not provide any opportunity to hearing to defendants-Judge Banking Court proceeded to decide applications to defend suit, even without considering record of the case and without noticing that plaintiff did not file reply to leave application instituted on behalf of defendants- Opportunity of hearing having not been provided to defendants, their interests have greatly been prejudiced-Such ground alone was sufficient to set aside impugned judgment and decree as they have been condemned unheard. [P. 497] A

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

—O.XXXVII, R. 3 & S. 96~Decree in suit for recovery of loan amount- Banking Court after dismissing application to defend suit without looking at Banking Accounts, decreed plaintiff's suit—Defendants had the right that documents relied upon by them be considered by the Court before granting decree for a huge amount against them-Defendant's case is a clear cut case of non-reading of documents on record—Impugned judgment being not a speaking judgment was devoid of reasons, thus, not sustainable in law. [Pp. 498 & 499] B, C & D

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

—-O.XXXVII, R. 3 & S. 96--Non-speaking judgment and decree of Court being devoid of reasons was set aside and case was remanded to Banking Court with the result that suit of plaintiff and application to defend suit filed by defendant would be deemed to be pending Banking Court on first date of bearing would grant opportunity to file replies to applications for leave to appear and defend .suit and complete statement of accounts and thereafter decide said applications providing sufficient opportunity to plaintiffs to,file replies thereof to plaintiffs and thereafter to decide the case within specified period. ' [P. 499] E

PLD 1959 S.C. (Pak) 272; PLD 1970 SC 158; PLD 1970 SC 173 and 1984 SCMR 1014 ref.

Mr. Ijaz Feroz, Advocate for Appellants.

Mr. Naseem Mehmood, Advocate for Respondents.

Date of hearing: 3.10.2002.

judgment

Mian Hamid Farooq, J.--This single judgment shall decide the present appeal (RFA No. 184/2000) and the connected appeal (RFA No. 295/2000), as common questions of law and facts are involved in both the appeals and they have arisen out of a single judgment.

1. Through the filing of the present appeals, the appellants, who all were arrayed as defendants in a suit for recovery of Rs. 197,43,042/-, filed by the respondent-bank, have called in question judgment and decree dated 11.4.2000, whereby the learned Judge, Banking Court, dismissed the separate applications for leave to defend the suit, filed on behalf of the appellants, and proceeded to decree the suit for the recover of Rs. 1,97,43,042/-with costs against them.

2. Precisely stated, the facts leading to tiie filing of both the appeals are that the respondent-bank filed a suit for recovery of Rs. 1,97,43,042/-, against the appellants, wherein Appellant No. 1, in RFA No. 295 of 2000, was arrayed as the principal debtor, while the other appellants in both he appeals were sued as guarantors. It was the case of the respondent-bank that certain financial facilities were granted in favour of M/S. Star Rug, the appellants, being the defendants in the suit, who executed certain documents, as detailed in para 6 of the plaint; the appellants, other than the principal debtor, also executed guarantees in order to secure the financial facilities; some of the appellants executed registered mortgage-deed, which find mention in para 9 of the plaint, and a general power of attorney was also executed in favour of the respondent-bank. It was submitted in the plaint that as the appellants, in both the appeals, committed default in fulfilling their legal and contractual obligations resulting into accumulation of the suit amount, thus, necessitating the filing of the suit. Under the above circumstances, the respondent-bank prayed for a decree for the suit amount alongwith costs. Pursuant to the receipt of summons, the appellants, in the present appeal (RFA No. 184/2000), filed application seeking leave to defend the suit, while the appellants, in RFA No. 295/2000, filed a separate application praying for almost identical relief- In both the applications, the appellants raised certain legal and factual controversies. However, during the pendency of these applications, the respondent-bank filed an application seeking amendment in the plaint. Separate replies to the aforenoted application were filed by the appellants and the learned Judge, Banking Court, dismissed the application for the amendment of the plaint and both the applications, filed by the appellants, seeking leave to defend the suit vide separate order of even dates and consequent to that decreed the suit for the recovery of Rs, 1,97,43,042/-, with costs, against the appellants vide judgment and decree dated 11.4.2000, hence, the present appeals.

3. Learned counsel for the appellants, ion RFA No. 184 of 2000, has contended that although the learned counsel of the parties addressed arguments only on the application for the amendment of the plaint, yet the learned Banking Court proceeded to decide even the applications for leave to defend the suit without providing any opportunity, to the appellants, of hearing on those applications, thus, the appellants have been condemned un­ heard. He has further contended that though the appellants created mortgage, favouring bank but the same was restricted to the amount of Rs. 8.8. million and as the said amount has been paid by the principal debtor, therefore, the mortgage created by the appellants stood automatically redeemed. He has added that the statement of accounts was not prepared in accordance with law and, in any case, the suit could not have been decreed on the basis of such a statement of accounts. Learned counsel for the appellants, in the other appeal (RFA No. 295/2000) has contended that although a considerable amount, as is evident from the vouchers annexed with their leave application, was paid, yet the same has not been accounted for in the statement of accounts, filed by the respondent-bank, and this aspect of the case has not at all been considered by the learned Judge, Banking Court. He has further contended that the financial facilities were sanctioned on 29.11.1992, but the statement of accounts shows a debit entiy of Rs. 89,30,727/- even prior to the sanctioning of the amount and that too, without any explanation. He has added that the functionaries of the respondent-bank obtained the signatures of the appellants on blank-papers, which was subsequently filled in and that this aspect of the case has been ignored by the learned Banking Court.

Conversely, the learned counsel for the respondent-bank has submitted that all the grounds taken by the appellants in their leave applications have properly been attended to by the learned Banking Court and that no case for the interference in the impugned judgment and decree is made out, thus, he prayed for the dismissal of the appeals.

1. Upon the examination of the record, we find that upon the presentation of the plaint, the learned Judge, Banking Court issued summons to the appellants, being the defendants in the suit, and pursuant thereto Defendants Nos. 1 to 3 and 8 and Defendants Nos. 4 to 7, filed two different leave to defend applications on 27.10.1999, the replies of which were not filed by the respondent-bank on 23.11.1999 and instead thereof an application under Order VI, Rule 17 C.P.C. for the amendment of plaint, was filed by the respondent-bank, which was also fixed for filing of the reply on behalf of the appellants. However, some of the defendants filed reply to the said application on 23.12.1999 and the others on 3.2.2000 and thereafter the case was fixed for addressing arguments. However, order dated 3.2.2000 is not clear as to whether the case was fixed for hearing the arguments on all the applications or only the application for the amendment of the plaint was to be heard. The tenor of the order, if read in juxta-position with the preceding order, shows that the case was fixed for arguments only on the application for the amendment of the plaint. However, on the next date of hearing i.e. on 17.2.2000, the case was posted for addressing arguments on the applications for leave to appear and defend the suit. Although order dated 2.3.2000 shows that the arguments were addressed on the application, yet, it is not clear that on which application, the arguments were addressed. Thereupon, the case was postponed for the announcement of orders, which could not be announced for a considerable period necessitating the re­hearing of the case. Even after rehearing of the case, the learned Judge, did not announce the order for three dates and ultimately on 11.4.2000 dismissed all the applications and also decreed the suit through a composite judgment.

2. Above resume of the order-sheet amply manifests firstly that the respondent-bank did not file replies to the applications for leave to appear and defend the suit and secondly the learned Judge did not provide any opportunity of hearing to the appellants on these applications, thus, undoubtly they have been condemned unheard. Additionally, the tenor of the order-sheet as narrated above, sufficiently supports the contention raised by the learned counsel for the appellant that no arguments were heard on the applications for leave to appear and defend the suit. The learned Judge did not specify in any of the orders as to whether the arguments were to be addressed on the application for amendment of plaint applications for leave to defend the suit or on all the applications, as we find that the interim orders passed by the learned Judge are vague and unspecific. We are of the view that the appellants were not afforded any opportunity of hearing on these applications and the learned Judge, after hearing the arguments only on the application for amendment of the plaint, proceeded to decide all the applications under the erroneous perception that he has heard the arguments on all the applications. After hearing the arguments on the application for amendment, the case was adjourned on numerous occasions, which, to our mind, must have resulted in mis-conception in the mind of the learned Judge, Banking Court, who proceeded to decide all the applications, even without taking into consideration the record of the case and without noticing that the respondent-bank did not file reply to the leave applications instituted on behalf of the appellants. By not affording the opportunity of hearing to the appellants, their interests have gravely been prejudiced, as, at least, they had right to be heard by the learned Banking Court before saddling them with a colossal liability. This ground alone, to our mind, is sufficient to set aside the impugned judgment and decree, so that the appellants may be afforded a sufficient opportunity of hearing, lest they complain again that they have been condemned un-heard.

3. Another important aspect of the case is that we find from the record, as noted above, that the respondent-bank did not file replies to the applications for leave to defend, thus it, inter alia, flows therefrom that there is no rebuttal on record by the respondent-bank to the assertions made by the appellants in their leave application, inasmuch as no counter-affidavits were filed in order to contradict the pleas raised by the appellants. Had the learned Judge noticed this aspect of the case, he would, perhaps, have granted leave to defend the suit on this score alone. We are of the view that learned Judge has completely mis-read the record of the case and proceeded to pass the impugned decree in a mechanical manner without application of judicial mind.

4. In view of the arguments raised by the learned counsel, we have also examined the statement of accounts, which is not only sketchy but the necessary particulars of debit entries are also missing. Even the statement of accounts does not bear the account number, to which this statement of accounts relates. We have perused the said statement of accounts and find that the same is ambiguous and does not at all explain as to how these huge amounts have been debited in the account of the principal debtor. Mark-up entries are also not understandable. Even the learned counsel for the respondent-bank could not explain the entries in the statement of accounts and as to how the huge suit amount has been worked out. Confronted with the contents of statement of accounts, the learned counsel, after finding difficult to explain the entries, was constrained to request that he may be allowed some time to file the complete and detailed statement of accounts. We are afraid, we cannot allow this request at this stage as this would amount to putting the cart before the horse. The learned Judge Banking Court has already passed a decree, most probably, without even looking at the statement of accounts. We find in the impugned judgment that after the dismissal of the applications for leave to appear and defend the suit, the learned Banking Court, without discussing the statement of accounts and even the documents on record, only on the basis of dismissal of the applications for leave to defend, proceeded to decree the suit.

5. As regards the contention riased by the learned counsel of the appellants, in RFA No. 295/2000, we have examined the application for leave to defend the suit, filed on behalf of the said appellants, and do find that alongwith the said application, photo-copies of certain credit advises have been annexed. Now if the contents of the said leave application coupled with those documents are placed in juxta-position with the impugned judgment and decree, it would be evident that the same have not at all been taken into consideration by the learned Banking Court before passing a decree for the Luge amount. At least, the appellants have this much right that the .. documents replied upon by them are to be considered by the Courts before piling up the huge liability against them. We are of the view that this is a clear case of non-reading of documents on record.

6. Upon the examination of the impugned judgment, we find that the approach of the learned Judge is perfunctory and he has without discussing the documents on record and dealing with the respective contentions raised by the learned counsel for the parties jumped to the conclusions viz "that the documents appended with the plaint fully support the claim of the plaintiff'. Even no documents have been referred to in the impugned judgment. We are of the view that the impugned judgment is not a speaking judgment and is devoid of reasons, thus, in our view, the same is not sustainable in law being in contravention of law declared by the Hon'ble Supreme Court of Pakistan in various cases, like Adamjee Jute Mills Ltd. vs. The Province of East Pakistan and others (PLD 1959 Supreme Court (Pak) 272), Gouranga Mohan Sikdar vs. The Controller Import and Export and 2 others iPLD 1970 Supreme Court 158),MollahEjaharAli vs. Government of Ezst Pakistan and others (PLD 1970 Supreme Court 173) and Muhammad

Ibrahim Khan vs. Secretary Ministry of Labour and others (1984 SCMR ' 10141.

1. As we are inclined to remand this case to the learned Judge Banking Court for the fresh decision of the suit and applications for leave to defend the suit, therefore, we have refrained from rendering our findings on some of the pleas raised by the learned counsel for the parties, touching the merits of the case, lest these findings may prejudice the cause of either of the parties, as after the remand of the case, the entire case would be opened before the learned Judge Banking Court.

2. Upshot of the above discussion is that both the appeals are allowed and the impugned judgment and decree dated 11.4.2000 is set aside with no order as to costs. The result would be that the applications for leave to defend the suit, filed by the appellants, and the suit instituted by the respondent-bank, shall be deemed to be pending before the learned Judge Banking Court, who on the first date of hearing shall grant an opportunity to the respondent-bank to file the replies to the two applications for leave to appear and defend the suit and complete statement of accounts and thereafter decide both the aforenoted applications providing sufficient opportunity of hearing to the parties and of course in accordance with law within a period of two months from the receipt of the order.

(A.P.) Case remanded.

PLJ 2003 Lahore 500

[Multan Bench Multan]

Present: FARRUKH LATEEF, J. MUHAMMAD JAMEEL-Appellant

versus

Mst. IRSHAD BEGUM-Respondent F.A.O. No. 32 of 2002, decided on 5.11.2002.

(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—Ss. 13 & 15-Ejectment of tenant on the ground of personal need of landlady ordered by Rent Controller assailed-Requirement of premises in good faith by landlady whether proved-Main contention of landlady was that she was at present living in a city where her parents live because of death of her husband and her children being minor at that time; that now her children have attained majority and she wanted to shift to her husband's house which was in occupation of petitioner as a tenant-­ Petitioner's evidence to the effect that landlady owned her own house in the city where she was presently living was of no consequence in view of the fact that law does not give either to tenant or to Rent Controller power to determine where landlady should personally reside-Landlady as her own witness was the best witness to make out case of bona fidepersonal need and she has successfully proved such fact. [P. 503] A

(ii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—Ss. 13 & 15—Tenant's miscellaneous application for seeking permission to produce additional evidence during pendency of appeal-Perusal of evidence already recorded and after hearing arguments Court's considered view was that documents sought to be produced were neither essential nor necessary for enabling High Court for pronouncing judgment-Application seeking to produce additional evidence was dismissed. [P. 504] B

Ch. Habib-Ullah Nehang, Advocate for Appellant. Syed Muhammad Ali Shah, Advocate for Respondent. Date of hearing: 23.10.2002.

judgment

This appeal is directed against order dated 15.1.2002 passed by Rent Controller, Multan Cantt. whereby he accepted rent petition of the respondent.

1. Mst. Irshad Begum widow of Muhammad Hafeez owner and landlord of House No. 75/53 Ward No. 7, Allama Iqbal Town (Lai Kurti) Multan Cantt. filed a petition for eviction of the petitioner (tenant) from the said house on the grounds of wilful default in payment of rent and her bona fide personal need as she was presently residing in Toba Tek Singh and wanted to shift to Multan.

2. The appellant admitted that he was tenant of Mst.Irshad Begum but declined that he had defaulted in the payment of rent and asserted that the premises was not required by Mst. Irshad Begum in good faith for her personal need as she intended to sell it out after evicting him. It was also alleged that son of the petitioner who is studying in Multan is staying in the hostel of the University. The following issues were framed by the learned Rent Controller:

ISSUES:

1. Whether the respondent has been paying/tendering rent regularly to the petitioner.

2. Whether the petitioner requires the property in good faith, bona fide for her personal use.

3. Relief.

After recording evidence on the said issues, the learned Rent Controller decided Issue No. 1, in favour of the respondent while Issue No. 2, was in favour of the petitioner; resultantly the rent petition was accepted vide order dated 15.1.2002.

1. Aggrieved thereby tenant preferred this appeal.

2. The appeal is strongly opposed by the learned counsel for the respondent. Arguments heard. Record also perused.

3. Learned counsel for the appellant has assailed the impugned order on the ground that evidence was not correctly appraised by the Rent Controller as bona fide requirement of the petitioner was not proved and'it was rather established on record that the petition was mala fide. In support of the said argument the learned counsel for the appellant had drawn my attention to Page No. 2, of the impugned order where, while discussing Issue No. 2 the Rent Controller had observed that, "the petitioner further stated that she is living in Toba Tek Singh in the house of her brothers and that due to increase in the members of the family of her brothers, their wives were pressing her to vacate the house." It was urged that the said observation of the Rent Controller is against record.

4. It was next submitted that the Rent Controller had believed the statement of the landlady that the house in which she was presently living in Toba Tek Singh was joint property as it was owned by her father when it was proved on record that she is owner of independent house in Toba Tek Singh having more accommodation than the premises in question.

5. It was further contended that the Rent Controller did not take notice of the statement of landlady where she said that her son was studying in the University since the last four years and his course was also of four years duration. According to the learned counsel the said statement nullified the contention of the landlady because the course was about to get over and apart from that the said son of the landlady was also not produced in the witness box in support of that contention. In that context the learned counsel had also drawn my attention to the statement of AW. 2, Shamshad Ahmad who said that the premises was required by the landlady because her son was studying at Multan and was residing in hostel.

6. It was finally contended that from the testimony of RW. 1, Mushtaq Ahmad, it was amply proved that on 18.2.1998, an agreement to sell was executed by the landlady in favour of Mst. Saeeda Perveen to sell the premises in question but the learned Rent Controller failed to take notice of the aforesaid evidence wherefrom it was established that the rent petition was mala fide and the premises was not f e.quired at all by the landlady in good faith for her personal requirement.

7. The main thrust of the appellant's version was that the alleged personal requirement of landlady was not bona fide as she wanted to sell the house after getting it vacated and she had also executed an agreement to sell in that regard with one Mst. Saeeda Perveen. In order to prove that version RW. 1, Mushtaq Ahmad stamp vendor was produced who stated that on 18.2.1998 he had sold stamp paper of the value of Rs. 50/- in the name of Mst. Irshad Begum (landlady) and the said sale is entered at Serial No. 4091 of his register of stamp vending. He further went on to say that on that stamp paper sale agreement was scribed by him in respect of a,house belonging to Mst. Irshad Begum situated in Lai Kurti Multan. He, however, admitted that regarding the aforesaid agreement to sell, Mst. Irshad Begum did not ever come to him and he did not enter that sale agreement in his register. He further admitted that his register of stamp vending was not bound every page of it was separate, it did not contain signature or I.D. Card number of Mst. Irshad Begum and that Entry No. 4091 regarding sale of stamp paper also does not contain the number of the house regarding which agreement to sell was made. He admitted that he does not personally know Mst. Saeeda Perveen neither it is in his knowledge where she lives.

8. He was the only witness of sale agreement and from his statement it was obvious that any of the parties to the alleged sale agreement did not appear before him. Inspite of claiming himself as petition-writer he did not enter that sale agreement in the register and the alleged sale agreement was also not produced in evidence.

9. Only an entry in the register of stamp vending was produced showing that a stamp paper worth Rs. 50/- was sold by the witness but even on that register neither signature of the landlady nor her I.D. Card number was mentioned. The said solitary statement which did not prove anything was not supported or corroborated by any other independent evidence.

10. On the other hand the landlady had specifically alleged in Para No. 8 of the petition that she wants to shift from Toba Tek Singh in her own house at Multan where she intends to reside with her children and that she has no other residential house at Multan. While appearing as AW. 1, she explained that about 23-years ago she was living in this house with her husband and children and on his death she shifted to Toba Tek Singh in her father's house as the children were minors at that time and now she intends to shift to Multan in her own house and the same is required by her for her own personal need. She also said that one of her son was studying in Multan in the University and it was also required for him but she stated in clear words that the house was required by her for her personal requirement as she wanted to reside therein.

11. Appellant admitted during cross-examination that on the death of the respondent's husband she shifted from Multan to Toba Tek Singh, at that time her children were minors and now they have grown up.

From the testimony of Mst. Irshad Begum (Respondent) it was obvious that the premises was required by her in good faith for her personal need and contentions of the appellant's counsel that the learned Rent Controller incorrectly observed that wives of the brothers of the landlady were pressing her to vacate the house at Toba Tek Singh or that Rent Controller had erred in believing that the house in which landlady was living at Toba Tek Singh was joint property when it actually belonged to her, are of no significance because even if it be assumed that the landlady owns an independent house at Toba Tek Singh which has got more accommodation, even then the law does not give either to the tenant or to the Rent Controller the power to determine where the landlady should personally reside.

Landlady as her own .witness was the best witness to make out the case of bona fide personal need. As it was proved that the landlady wanted to live in that house with her children who had now grown'up, it was immaterial if the course of one of her son who was studying in the University at Multan was about to get over or was over because the house was not exclusively required for that son for the purpose of studying at Multan.

1. For the reasons stated above, I see no reason to disagree with the finding given by the learned Rent Controller.

2. During the pendency of this appeal an application for seeking permission to produce additional evidence was moved by the appellant stating that the following documents were not available at the time of evidence before the Rent Controller and would dispose of the controversy between the parties. The documents sought to be produced were:

3. Copy of licence of stamp vending.

4. Certified copy of form PTI which reflects that respondent owns a house in Toba Tek Singh.

5. Affidavit executed by Mushtaq^ Ahmad which discloses regarding an agreement to sell in favour of Mst.Saeeda Perveen.

6. Copy of hostel releaving application of Abid Javed son of Mst.Irshad Begum.

7. The C.M. was opposed by the learned counsel for the respondent. After going through the evidence already recorded and after hearing the arguments from the learned counsel for both the sides I am of the considered view that the aforesaid documents are neither essential nor necessary for enabling this Court for pronouncing judgment. C.M. is

g accordingly dismissed.

1. The impugned order passed by the learned Rent Controller is upheld and the appeal is hereby dismissed with costs.

(A.P.) Appeal dismissed.

PLJ 2003 Lahore 504

[Multan Bench Multan]

Present: farrukh lateef, J. GHULAM FARID-Petitioner

versus ADDITIONAL DISTRICT JUDGE LODHRAN and others-Respondents

W.P. No. 8976 of 2002, decided on 14.11.2002. (i) Constitution of Pakistan, 1973--

-—Art. 199--Family Courts Act (XXXV of 1964), S. 5 & Sched.-Findings of Family Court assailed in writ jurisdiction-Effect--High Court in its extra­ ordinary jurisdiction can neither substitute findings of fact recorded by Courts below nor give its opinion regarding adequacy of evidence-Such matter should be decided by Courts below vested with jurisdiction to decide them-Assessment of evidence was function of Family Court which was vested with exclusive jurisdiction to decide the matter-No misreading or non-reading of evidence by Courts below was pointed out- Concurrent findings of Courts below cannot be successfully assailed in writ jurisdiction. [P. 507] E

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

—Reliance on evidence of respondent by Court while deciding case, assailed-Such objection was without any force because on the record only evidence of respondent was available as petitioner did not produce any evidence Court therefore, had no alternative but to advert to that evidence which was available on record and to decide in the light of that evidence. . [P. 507] D

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

—-S. 5 & Sched-Family suit-Closing of petitioner's evidence-Date on which petitioner's evidence was closed was obtained by petitioner's counsel subject to cost and warning that it would be the last opportunity; despite that on such date neither defendant and his evidence was present nor cost was paid-Besides, no request was made on behalf of petitioner for providing another opportunity for producing evidence-Even otherwise declining adjournment or extension of time for producing evidence is absolutely discretionary and such order cannot be interfered with in writ jurisdiction. [P. 507] C

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

-—S. 5 & Sched.-Non-consolidation of suit for restitution of conjugal rights with suit for jactitation of marriage-Effect-Suit for jactitation of marriage was on evidence stage when suit for restitution of conjugal rights was filed—Apart from that Family Court was not bound to have consolidated suit for restitution of conjugal rights with that of jactitation of marriage in as much as identical questions of law and facts were not involved. [P. 506] A

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

—Ss. 10 & 12-Pre-trial and post trial re-conciliation proceedings not conducted-Effect-Reconciliation proceedings would be necessary where marriage admittedly subsists-In suit for jactitation of marriage existence of valid marriage was denied-Reconciliation proceedings in such a case would thus be meaningless-Pre-trial re-conciliation were, however, conducted, while after conclusion of evidence which were un-rebutted, it had become apparent that no valid Nikahbetween parties subsisted-Post reconciliation proceeding in such case were not considered necessary- Non-compliance of provisions of Sections 10 and 12 of Family Courts Act 1964, does not constitute a ground for exercise of constitutional jurisdiction when such objection was not raised in appeal before Appellate Court, [P. 506] B

Mehar Masood Ahmad, Advocate for Petitioner. Date of hearing: 14.11.2002.

order

Ghulam Fareed has through this Constitutional petition called in question judgments and decrees dated 29.3.2002 and 12.8.2002 respectively passed by Family Court and Additional District Judge, Lodhran as void and without lawful authority.

1. Brief facts which led to this petition are that Mst. Bakhtan Bibi (Respondent No. 3) filed a suit for jactitation of marriage against the petitioner in the Family Court, Dunyapur (Respondent No. 2). It was contested by the petitioner. Issues were framed, evidence of the respondent was recorded and the case was posted to 19.3.2002 for evidence.of the petitioner. On that date the petitioner did not appear neither his evidence was present. However, on the request of his counsel last opportunity .was provided to the petitioner on cost of Rs. 200/- for. producing evidence on 28.3.2002. On that date, the petitioner was again not present neither his evidence was present, cost was also not paid by him. Hence his evidence was closed by the Family Court and the case was adjourned for final arguments to 29.3.2002 when the case was finally argued by the learned counsel for the parties and it was ultimately decreed.

2. Petitioner's appeal against that decree was also dismissed by the Additional District Judge, Lodhran on 12.8.2002.

3. Learned counsel for the petitioner has urged that the learned Family Court committed an illegality in not consolidating the petitioner's suit for restitution of conjugal rights with the suit for jactitation of marriage. This argument is without any substance because suit for restitution of conjugal rights was filed on 20.2.2002 when in the other suit issues stood framed prior to that on 14.2.2002 and the case was at the evidence stage.

Apart from that it was not mandatory for the Family Court to have consolidated suit for restitution of conjugal rights with that of jactitation of marriage as idential questions of law and facts were not involved.

1. It was next submitted by the petitioner's counsel that pre-trial and post-trial reconciliation proceedings were not conducted by the Family Court which were mandatory.

2. This argument is mis-conceived inasmuch as object of reconciliation is to try to organize a compromise for harmonious union of the spouses with a view to save matrimonial life from further deterioration. It is necessaiy where marriage admittedly subsists. In a suit for jactitation of marriage existence of valid marriage is denied. Hence reconciliation

proceeding in such a case would be meaningless. Anyhow, pre-trial reconciliation proceedings were conducted in this case by the trial Court on 14.2.2002. However, after conclusion of evidence which was un-rebutted it had become apparent that no valid Nikah between the parties subsists. It was therefore, not found fit to fix a date for post-reconciliation proceedings.

Non-compliance of the provisions of Sections 10 and 12 of the Family Court Act does not constitute a ground for exercise of Constitutional jurisdiction when the said objection was not raised in appeal before the appellate Court.

1. Next argument of the petitioner's counsel was that the Family Court had closed the petitioner's evidence in a hasty manner and sufficient opportunity was not provided to him for producing evidence.

2. According to record the date on which the petitioner's evidence was closed was obtained by the petitioner's counsel subject to cost and warning that it would be last opportunity; despite that on the said date neither defendant and his evidence was present nor cost was paid. According to record no request was made on behalf of the petitioner for providing another adjournment for producing evidence. Even otherwise order of Family Court declining adjournment or extension of time for producing evidence is absolutely discretionary and such order cannot be interfered with in writ jurisdiction.

3. It was lastly submitted by the learned counsel for the petitioner that the learned trial Court while deciding the suit relied only on the evidence of Respondent No. 3 which was not confidence inspiring.

4. The said argument is without any force because on record, only evidence of Respondent No. 3 was available as the petitioner did not produce any evidence. The Family Court, therefore, had no alternative but to advert to that evidence which was available on record and to decide the case in the light of that evidence.

5. So far as the reliability of that evidence is concerned, the learned counsel for the petitioner could not explain any cogent reason to support his said contention.

6. High Court in its extra-ordinary jurisdiction can neither substitute findings of facts recorded by the Courts below nor give its opinion regarding adequacy of evidence. Such matters should be decided by the Courts below vested with jurisdiction to decide them.

7. Assessment of evidence is the function of the Family Court which was vested with exclusive jurisdiction to decide the matter. Neither there appears to be any mis-reading of evidence nor any material piece of evidence appears to have been over-looked while decreeing the case. Concurrent findings by the Family Court and the Appellate Court cannot be successfully assailed in writing petition.

8. For the reasons stated above, writ petition is hereby dismissed in limine. .

(A.A.) Petition dismissed.

PLJ 2003 Lahore 508

Present: tanvir bashir ansari, J.

Maj. (R) S. AHMAD and other-Petitioners

versus ELECTION TRIBUNAL and other-Respondents

W.P. No. 3206 of 2002, decided on 4.12.2002. (i) Administration of Justice--

—Plea that where a Tribunal is clothed with jurisdiction under a special law, said Tribunal is competent to decide it rightly or wrongly was repelled--Such view has undergone a substantial change as per Rule laid down in PLD 1987 SC 447; that special Tribunal having jurisdiction in matter must decide controversy rightly and in accordance with law.

[P.510]C

(ii) Constitution of Pakistan, 1973-

—Art. 199--Pujijab Local Government Election Rules, 2001-R. 8- Petitioners contested elections as joint candidates for post of Nazim and Naib Nazim of Union Council Election Tribunal declared result of elections as null and void dve to irregularities committed at specified polling station and directed fresh elections, legality-Record showed that it had not been established by any solid evidence by Election Tribunal that by whom and in whose favour, such irregularities were committed- Election Tribunal was, thus, not justified to declare result of such polling station as null and void as it was not satisfied that such corrupt or illegal practices ere committed by or with consent or connivance of Election Agent of returned candidates—before extreme penalty of declaring election as void is taken charge of commission of illegal practice against returned candidate must be proved beyond any reasonable doubt- Impugned judgment was, thus, set aside. [P. 511] A & B

PLD 1987 SC 447; PLJ 1984 Lahore 367 and PLD 1\990 Lah. 378 ref.

Mr. ShoukatAziz Siddiqi, Advocate for Appellants. Mr. M. Younas Bhatti, Advocate for Respondents. - Date of hearing: 3.12.2002.

judgment

The petitioners on the one hand and Respondents Nos. 2 and 3 and Respondents Nos. 4 and 5 on the other contested the elections as joint candidates for the posts of Nazim and Naib Nazim of Union Council No. 44 Manianda Tehsil Kahuta District Rawalpindi.

1. According to the consolidated statement, the petitioners were declared as returned candidates. The votes secured by the respective parties are as under :--

PETITIONERS: 3062

RESPONDENTS Nos. 2 & 3 2949

RESPONDENTS Nos. 4 & 5 : 30

Consequently, the petitioners were notified as Nazim and Naib Nazim of the Union Council. Respondents Nos. 2 and 3 filed Election Petition No. 19 of 2001 before the learned Election Tribunal. The petitioners contested the Election Petition by filing their written reply, wherein, the contentions of Respondents Nos. 2 and 3 were controverted.

1. From the divergent pleadings of the parties, the learned Election Tribunal framed the following issues :--

1.

Whether petition is vague and based upon mala fide ? OPR.

1. Whether petitioners are estopped by their words and act to file the petition ? OPR.

2. Whether Respondents Nos. 1 and 2 and their agents committed corrupt and illegal practice on the day of election during the polling day and procured success in election illegally on the grounds mentioned in the petition ? OPP.

3. Whether election of Returned Candidates of the seat of Nazim/Naib Nazim UC. No. 44, Tehsil Kahuta is liable to be declared as void and petitioners are entitled to be declared as returned candidates ?

4. Relief.

5. Respondents Nos. 2 and 3 produced five witnesses AW. 1 to AW. 5, whereas, they tendered in evidence documents Exh. A. 1 to Ex. A. 256 alongwith mark A and Mark B. In rebuttal the Petitioner No. 1 appeared as RW. 1.

6. The learned Election Tribunal evaluated the oral and documentary evidence produced before it and on the basis of documents Ex. A. 181 to Ex. A. 231 came to the conclusion that 17 votes at Polling Station No. 63 were polled thrice. It also held that according to Ex. A. 232 to Ex. A. 252, 7 votes were polled thrice at Polling Station No. 64.

7. Relying upon Ex. A. 135 to Ex. A. 142 Ex. A. 148 to Ex. A. 167 and Ex\A. 171 to Ex. A. 180 it concluded that 20 votes were polled twice. It also concluded that according to Ex. A. 143 to Ex. A. 147, five votes were issued without numbers.