PLJ 2004 Judgments

PLJ 2004 Karachi 1 (DB)

Present: saiyed saeed ashhad, C.J. and sarmad jalal osmany, J. MUHAMMAD YOUSUF KHAN-Petitioner

versus SINDH LABOUR APPELLATE

TRIBUNAL and 2 others-Respondents

Constitutional Petition No. D-1492 of 1999, decided on 22.12.2000. (i) Constitution of Pakistan, 1973-

—Art. 199--Constitutional petition-Jurisdiction-Dismissed in limine-Petitioner failed to point out any illegality in exercise of jurisdiction by two forums below as well as failed to establish that the findings thereof suffered from any illegality or were contrary to or in ignorance of the evidence on record or based on extraneous material so as to be liable to be interfered with by High Court to exercise Constitutional jurisdiction- Finding of Labour Appellate Tribunal, holding the order of Labour Court does not require to be interfered with. [P. 6] D

(ii) Industrial Relations Ordinance, 2002--

—-S. 25(A)--Standing Orders Ordinance-Ss. 2(i) & 12(3)--Constitution of Pakistan, 1973, Art. 199-Jurisdiction-Provisions of S. 12(3) of Standing Orders Ordinance empowers a "workman" to approach Labour Court under S. 25(A) of Industrial Relations Ordinance for redress of his grievance on account of illegal termination of his service-For invoking the jurisdiction of Labour Court, the person has to satisfy that he was a "workman" as defined in S. 2(i) of the Standing Orders Ordinance-Petitioner failed to adduce any reliable and satisfactory evidence to establish the factum of his being a "workman" during the course of his employment-Petitioner did not qualify to be a "workman" as based on two points, Firstly he was performing duties of supervisory nature and was not in any manner result of misreading or misconstruing the evidence on record or was contrary to the evidence adduced by parties--Secondly the duty to establish that he was doing manual, clerical or physical work and was not carrying out work of supervisory nature, was on petitioner which he failed to discharge-So two forums below rightly concluded that he was not a "workman" or a "worker"-Petition dismissed.

. [Pp. 4 & 5] A, B, C & E

1993 SCMR 672; 2000 SCMR 88; 2000 PLC 215; 1993 SCMR 672 and

1993 SCMR 511.

Mr, M.A.K. Azmati, Advocate for Petitioner.

Mr. Mehmood Abdul Ghani, Advocate for Respondent No.' 3.

Date of hearing: 22.12.2000

order

Saiyed Saeed Ashhad, C.J.--The petitioner by way of this Constitutional petition has assailed the order of the Sindh Labour Appellate Tribunal dated 8.2.1999.

The brief facts of the case are that the petitioner was employed in the factory of Habib Sugar Mills, Respondent No. 3, and on 28.3.1996 he was gate stopped and was not allowed to enter the Mills. According to the petitioner, he used to be present at the factory gate on every day from 28.3.1996 to 13.6.1996 but was neither allowed to enter the factory nor was handed over any letter of suspension or transfer or removal from his service but on 13.3.1996 he was informed that his services were already terminated. The petitioner served a grievance notice through registered post which was not replied to by Respondent No. 3 thus, compelling the petitioner to file a petition under Section 25-A of the Industrial Relation Ordinance (hereinafter referred to as the IRO) for his T instatement in service with full back benefits. The grievance petition was filed in Sindh Labour Court No. Ill, who by its order dated 2.4.1998 dismissed the same. Feeling aggrieved and dissatisfied with the decision of the Sindh Labour Court No. Ill, the petitioner filed an appeal under Section 37(3) of the IRO before the Sindh

Labour Appellate Tribunal, who by its impugned order dated 8.2.1999 dismissed the same, upholding the decision of the Sindh Labour Court No. III. Again feeling aggrieved and dissatisfied with the decision of the Sindh Labour Appellate Court, the petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.

We have heard the arguments of M/s. M.A.K. Azmati and Mehmood Abdul Ghani, the learned counsel appearing on behalf of the petitioner and Respondent No. 3 respectively.

It was argued on behalf of the petitioner that he was a worker and throughout his Service in the establishment of Respondent No. 3, he had. been carrying out manual and labour work. It was further submitted on behalf of the petitioner that he did not enjoy any supervisory power so as to

come within the definition of "employer" and that both the forums below had completely misread and misconstrued the evidence on record in not holding the petitioner to be an employee, which has resulted in great injustice and

prejudice to the petitioner. Mr. M.A.K. Azmati further submitted that merely designating or calling a person as a "supervisor" would not be sufficient to hold him as a "supervisor" or "officer" but the same was to be decided on the basis of the duties which the person was actually performing and reiterated that during the entire period of his service with Respondent No. 3, the petitioner had performed manual and physical labour and did not enjoy any supervisory powers. For his above contention, he placed reliance on the case of National Bank of Pakistan versus Punjab Labour Court No. V,Faisalabadand others (1993 SCMR 672). Mr. Azmati further submitted that in exercise of the Constitutional jurisdiction, this Court was required only to set right or correct any error, omission or wrong committed by any of the two forums below. He further submitted that this Court in exercise of its Constitutional jurisdiction could interfere with the order of the Labour / Appellate Tribunal and the Labour Court, if it was found that the same was

based on misreading of the evidence or extraneous material. It was further

contended that this Court in exercise of the powers under Article 199 of the

Constitution could strike down an order passed by a subordinate'Court or forum as without lawful authority and of no legal effect. In support of his above contention, he placed reliance on the case of Shahjehan and others versus Syed Amjad All and others (2000 SCMR 88).

Mr. Mehmood Abdul Ghani, on the other hand, submitted that the petitioner was never a worker but was performing duties as incb,arge of stitching department, wherein he used to supervise forty (40) workers. He further submitted that none of his duties involved any clerical, manual, skilled or unskilled work and that he did not come within the definition of, "workman" as defined in Section 2(i) of the Industrial and Commercial •• Employment (Standing Orders) Ordinance and thus he could not approach the Labour Court under Section 25(A) of the IRQ, Mr. Mehmood Abdul Ghani also objected to the maintainability of this Constitutional Petition and submitted that a Constitutional Petition under Article 199 of the

Constitution would be competent only when it was shown that the impugned judgment/order was without jurisdiction or without lawful authority or it was based on no evidence at all and further submitted that neither in the memorandum of petition nor during the course of arguments, the petitioner has been able to, point out lack of jurisdiction or illegality, or that the orders of the two forums below were without lawful authority or that they were based on no evidence at all, absence of which would not confer jurisdiction to this Court to proceed with this Constitutional Petition. In .support of the above, he placed reliance on the case of Qayum Nawaz and others versus NWFP. Small Industries Development Board and others (2000 PLC 215). Mr. Mehmood Abdul Ghani further submitted that it is a settled principle that a person who approaches a Court on the basis of an averment tfcat he is a "workman" as defined in Section 2(i) of the Standing Orders Ordinance, the burden of proof that he was a "workman" and was performing manual, physical or clerical work lay on him and it was not for the employer to disprove that he was not an employee. In support of the above, he placed reliance on the case of National Bank of Pakistan versus Punjab Labour Court No. V (1993 SCMR 672). Mr. Mehmood Abdul Ghani relying on the case of Karachi Shipyard and Engineering Works Limited versus Abdul Ghaffar and 2 others (1993 SCMR 511) submitted that in exercise of the powers under Article 199 of the Constitution, this Court would not substitute its own finding in place of the finding given by the forums below on a question of fact solely because from the evidence on record another finding could be inferred or arrived at by the Courts/forums below.

We have, considered the arguments advanted by the learned counsel for the parties in support of thier.respective contentions as well as the case law relied upon.

The petitioner had invoked the jurisdiction of the Labour Court in view of the provisions of Standing Order 12(3) of the Standing Orders Ordinance which empowers a "workman" to approach the Labour Court under Section 25-A, Industrial Relations Ordinance for redress of his grievance on account of illegal termination of his service. For invoking the jurisdiction of Labour Court, the person has to satisfy that he was a "workman" as defined in Section 2(i) of the Standing Orders Ordinance. It was therefore, necessary for the petitioner to have brought on record satisfactory and plausible material to establish beyond any doubt that during the course of his employment in the establishment of Respondent No. 3, he was carrying on • manual, physical or clerical work of skilled or unskilled nature and that1'he was a "workman" as defined in the Standing Orders Ordinance. However, the petitioner failed to adduce any such reliable and satisfactory evidence to establish the facturj of his being a "workman" during the course of his employment in the establishment of Respondent No. 3. Reference may be made to his evidence, wherein he stated that he himself used to work on, machine in the stitching/cutting department but failed to adduce any evidence to prove that he ever worked on any machine or was even provided with a machine. Respondent No. 3 had brought on record

termination letter wherein the petitioner was described as "supervisor/ incharge of the stitching/cutting department". The contents of'this letter were not challenged or controverted and have gone un-rebutted. On the other hand, respondents witness .alongwith his affidavit-in-evidence produced two applications for grant of leave and two office memos. The two applications for grant of leave which appear at pages 47 and 49 of the Labour Court's file are in the hand-writing of the petitioner describing himself to be a "supervisor". In the two office memos appearing at pages 51 a\nd 53, whereby leave .was granted/sanctioned to the petitioner, he was also described as "supervisor". This being the position, the "finding of the two forums below that the petitioner did not qualify to be a "workman" as he was performing duties of supervisory nature was not in any manner the result of misreading or misconstructing the evidence on record or was contrary to the evidence adduce by the parties. The said finding also cannot be said to be based on any extraneous material so as to render it as illegal, contrary to record and liable to be interfered with. The duty to establish that he was doing manual, clerical or physical work and was not carrying out work of supervisory nature was on the petitioner as per the observations made in the case of National Bank of Pakistan versus Punjab Labour Court No. V, Faisalabad and others (1993 SCMR 672), which he failed to discharge and the two forums below rightly concluded that he was not a "workman" or a "worker".

From whatever evidence has been produced by the parties in the Sindh Labour Court No. Ill, it is established beyond any doubt that the petitioner was performing supervisory functions as he used to oversee the work of the workers in the stitching/cutting department and as he was performing the functions of supervisory nature, he would be secluded from the definition of "workman" and "worker" as given in Standing Order 2(i) of the Standing Order Ordinance and Section 2(xxviii) of the Industrial Relations Ordinance thus being deprived from invoking the jurisdiction of the Labour Court under Section 25 of the IRO.

Upon the above discussion, we are satisfied beyond any shadow of doubt that the petitioner was not a "workman" and Sindh Labour Court No. Ill as well as Sindh Labour Appellate Tribunal in holding the petitioner not to be a "workman" but "supervisor" did not commit any illegality, misreading or misconstruing of the evidence or relying on any extraneous material. It may be pointed out that the case-law relied upon by Mr. M.A.K. Azmati in support of his contentions is of no help to the petitioner and does not advance his case. There can be no dispute with the observation made in the case of National Bank of Pakistan versus Punjab Labour Court No. V (1993 SCMR 672) regarding the basis for determining whether a particular person was a "workman/worker" or employer but the petitioner failed to adduce evidence to establish himself as a "worker/workman". There is also no cavil with the principle laid down in the case of Karachi Shipyard & Engineering Works Ltd. versus Abdul Ghaffar and others (1993 SCMR 511), that this Court in exercise of its Constitutional jurisdiction cannot substitute the finding of the forum below with its own finding but can only interfere if it finds that the finding was based on misreading, non-reading or was contrary to the fecord or the forum below exercised jurisdiction illegally or the findings were contraiy to the evidence or record. In the present case, the findings of the Sindh Labour Appellate Tribunal and the Sindh Labour Court were neither in exercise of jurisdiction illegally nor were based on misreading, non-reading or contrary to the evidence, on record and the same have been upheld thus completely ruling out the exercise of this Court substituting the findings with its own findings. The observations made in the case ofShahjehan and others versus Syed Amjad Ali and others (2000 SCMR 88) are to the same affect as made in the case of Karachi Shipyard and Engineering Works versus Abdul Ghaffar and others, (sic) and it has already been held above that the petitioner has failed to point out any illegality in the exercise of jurisdiction by two forums below as well as failed to establish that the findings thereof suffered from any illegality or were contrary to or in ignorance of the evidence on record or based on extraneous material so as to be liable to be interfered with by this Court to exercise of its Constitutional V jurisdiction.

Upon the above discussion, we are satisfied that the finding of the Sindh Labour Appellate Tribunal holding the order as the Sindh Labour Court does not require to be interfered with.

But by a^ short order, we had dismissed this Constitutional Petition in liminealongwith the listed application for the reasons to be recorded later. These are the reasons for the said short order.

(N.T.)

Petition dismissed.

PLJ 2004 Karachi6

Present: gulzar ahmed, J.

M/s. MUSLIM COMMERCIAL BANK LTD. REGIONAL OFFICE LARKANA through its OFFICER GRADE-I & HOLDER OF, POWER OF

ATTORNEY-Applicant

versus

AHMED ALI-Respondent Labour Revision Application No. 1 of 2003, decided on 3.6.2004.

Industrial Relation Ordinance, 2002--

—S. 48(3)~National Industrial Relation Commission, S. 53 r/w National Industrial Relation Commission (Procedure and Function) Regulation, 1973--Regln. 32-IndustriaI Regulation Ordinance, 1969. S. 25-A--

Revision petition-Allowed-Respondent in his evidence did not utter a single word as to nature of duties which he was performing as Officer Grade-Ill—Status whether person was workman or hot, was not determined or the basis of designation but on nature of duties-Initial burden of proof to prove the fact that employee was a workman rest upon him and after he had discharged his burden "by leading evidence to that effect, then burden shifts on employer-Held: Court is seized of matter, it has to decide it in accordance with the record available before it and more particularly when specific question is raised which is based on record has to be decided in accordance with law-Respondent had failed to make out a case that he was a workman performing manual or clerical duties- Grievance petition could be filed only by a workman-Consequently revision application allowed. [P. 14] A, B, C, D & E

2001 SCMR 1062; 2004 SCMR 734; Statutes Law, sixth Edition page 114;

Trayers Latin Maxim, fourth Edition page 309; NLR 2004 Civil 295; PLD

1986 Quetta 3321; PLJ 1986 Karachi 369; PLC 1983 (C.S.) 642; PLD 1986

Karachi 437; PLD 1984 Karachi 519; 1990 MLD 563; 1999 SCMR 799;

PLD 1974 SC 678 and 2002 SCMR 943.

Mr. Mahmood Abdul Ghani and Mr. Syed Vizarat Hussain Zaidi, Advocates for Applicant.

Mr. Abdul Hameed Khan, Advocate for Respondent. Date of hearing: 12.5.2004.

judgment

This revision application under Section 48(3) of Industrial Relations Ordinance, 2002 \has been filed against the order dated 23.6.2001 passed by the learned Presiding Officer of Labour Court No. VIII, Larkana overruling the illegal objections regarding the maintainability of grievance petition filed by the respondent.

The facts' of the matter in brief are that the Respondent No. 1 was employed as Officer Grade-Ill in the applicant Bank. He was charge sheeted for commission Of certain misconduct on which the Respondent No. 1 filed a petition under Section 22-A(8)(g) of I.R.O. 1969 in the NIRC in which the applicant was restrained from passing of final order in the disciplinary action initiated against the respondent. The applicant filed appeal before the Full Bench of NIRC who accepted the appeal of the applicant. It is alleged that respondent challenged the decision of the Full Bench of NIRC by filing a Constitutional petition in the High Court but did not succeed. On completion of disciplinary proceeding the applicant dismissed the respondent from service videletter dated 31.7.1997. Against the order of dismissal from service, respondent again filed complaint in the NIRC under Section 53 R/w Section 15 of IRQ 1969 and Regulation 32 (i) of the NIRC (P&F) Regulations 1973. While such, complaint of the respondent was pending before the NIRC, the respondent also filed a grievance petition under Section 25-A of IRO 1969

in the Labour Court. The applicant filed legal objections to the maintainability of the grievance petition before the Labour Court. The Labour Court passed an order against which the applicant filed a revision application in the Sindh Labour Appellate Tribunal (for short the Tribunal) who vide its order dated 18.12.1998 remanded the case back to the Labour Court for deciding the legal objection as a preliminary issue. The learned Labour Court again vide order dated 25.12.1999 over ruled the legal objections of thejapplicant against which the applicant again filed a revision application in the Tribunal. The Tribunal also did not accept the legal objections of the^applicant. The applicant then filed a Constitutional Petition No. D-118/2000 in the High Court of Sindh at Karachi. In the Constitutional petition a consent order was passed on 8.2.2000 by which the impugned decision of the Tribunal was set aside and the case was remanded to the Tribunal to determine the question of maintainability of the grievance petition. It seems that the Tribunal remanded the matter to the Labour Court for deciding the legal objections on which the impugned order was passed by the Labour Court-VIII, Larkana who over ruled the legal objections of the applicant Bank. However it seems that evidence of the parties were also recorded before the Labour Court. Against the impugned order the applicant again filed a revision petition in the Tribunal which was registered as Revision Application No. L-152/01. The Tribunal vide its order dated 10.8.2001 Admitted the revision application and stayed the proceeding before the Labour Court, while the said revision application was pending before the Tribunal, I.R.O. 2002 was promulgated by which repealed the I.R.O. 1969 (for ishort the late Ordinance). It seems that by IRQ 2002 (for Short the new Ordinance), the Tribunal was abolished and by Section 43(3) of the new Ordinance, revisional jurisdiction against the orders passed by the Labour Court was conferred on the High Court. The record shows that after coming into force of the new Ordinance, the said revision application of the applicant was transferred to the High Court of Sindh at Karachi which was allotted Misc. Appeal No. 48/2003 and it also came up for regular hearing on 2.4.2003 before the Judge of the High Court but was adjourned. It is stated by the counsel for the applicant which is not disputed by the counsel for the respondent that the said revision application of the applicant transferred to the High Court of Sindh at Karachi was sent back by an administrative order passed by the Hon'ble Chief Justice with the observation that new Ordinance does not make provision for transferring of the pending revision applications from the Tribunal to the High Court. The applicant therefore filed a fresh revision application which is under consideration.

At the out set Mr. Abdul Hameed Khan, the learned counsel for the respondent took objection to the maintainability of this revision application on two grounds, one that in the presence of pendency of Revision Application No. L-152/2001 filed before the Tribunal, fresh revision application under the new Ordinance in this Court will not be maintainable and secondly the fresh revision application is barred by laches. Both the counsel for the

applicant as well as the respondent argued the matter at substantial length on the maintainability of this revision application so also on merits.

It is contended by Mr. Mahmood Abdul Ghani, the learned counsel for the applicant that notwithstanding the abolition of the Tribunal by the new Ordinance, Section 80 of the new Ordinance saves all pending proceedings. He further contended that as the revision application of the applicant was returned from the High Court by the administrative order of the Hon'ble Chief Justice, the possibility of the said revision application being heard and decided in near future was remote and the new Ordinance itself having provided for filing of the revision application in the High Court under Section 48(3) the applicant without wasting much time has approached this Court and that there is no limitation period provided for making of the revision application under the new Ordinance. In support of his submission he has relied upon the case of Sarfraz v. Muhammad Aslam Khan 2001 S.C.M.R. 1062, Ranjha v. Mst. Zahrai Begum 2004 S.C.M.R. 734, Craies on Statute Law, Six Edition page 413, understanding statutes by S.M Zafar page 114 and Trayner's Latin Maxims, Fourth Edition page 309. In this respect he has also cited the cases of NLR 2004 Civil 295. On the other hand counsel for the respondent has referred to the cases of PLD 1986 Quetta 3321, PLJ 1986 Karachi 369, PLC 1983 (C.S.) 642, PLD 1986 Karachi 437, PLD 1984 Karachi 519, 2001 S.C.M.R. 1062, 1990 MLD 563, 1999 S.C.M.R. 799 and PLD 1974 Supreme Court 678. Section 80 of the new Ordinance is as follows:

"80. Repeal and savings.-(I) The Industrial Relations Ordinance, 1969 (XXIII of 1969), is hereby repealed.

(2) Notwithstanding the repeal of the Industrial Relations Ordinance, 1969 (XXIII of 1969), hereinafter to be called the repealed Ordinance, and without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act, 1897 (X of 1897)--

(a) every trade union existing immediately before the commencement of this Ordinance, which was registered under the repealed Ordinance shall be deemed to be registered under this Ordinance and its Constitution shall continue in force until

altered or rescinded;

(b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given commenced or taken, as the case may be, under the corresponding provision of this Ordinance; and

(c) any document referring to the repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Ordinance;

(d) the appeals pending in the Labour Appellate Tribunals shall stand transferred to the respective High Courts from the date of commencement of this Ordinance and it shall not be necessary for the High Court to recall any witness or to record any evidence that may have been recorded."

The reading of this provision shows that though the Industrial Relations Ordinance 1969 (XXIII of 1969) has been repealed, but inter alia, provides that anything done, rules made, or order issued, officers appointed, Court constituted, notice given, proceeding commenced or other action taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken as the case may be under the corresponding provision of this Ordinance. Clause (d) of this Section provides that appeals pending in the Labour Appellate Tribunals shall stand transferred to the respective High Court from the date of commencement of the Ordinance and it shall not be necessary to the High Court to recall any witness or to record any evidence that may have been recorded.

Section 33(3-A) of the late Ordinance conferred revisional jurisdiction to the Tribunal. Section 48(3) of the new Ordinance confers revisional jurisdiction to the High Court. Except for change of forums both provisions of Section 38(3-A) of late Ordinance and Section 48(3) of new Ordinance are identical. In the case of Ranjha (supra) the Hon'ble Supreme Court of Pakistan at page 736 has made the following observation:

"We are unable to agree inasmuch as it is well settled that if during pendency of proceedings, the law is changed the higher forum can take notice of the changed legal position and decide the rights of the parties. In this case, the relevant provision of the M.L.R. 115/Land Reforms Act, 1977 were declared against the injunctions of Quran and Sunnah in the year 1990 when the writ petition in this case was pending in the Lahore High Court. The High Court, therefore, was entitled to notice the fresh legal position and to give effect to the same."

In the case ofSarfraz (supra) the Hon'ble Supreme Court of Pakistan at page 1071 has made the following observations:

"Even otherwise it is settled principle of law that action started by a person has to be completed under the new law even if it has been repealed during pendency of the action unless the new law has saved the pending proceedings."

Section 80(2) (b) of the new Ordinance makes deeming provision that proceedings commenced under the repealed Ordinance to have commenced under the corresponding provision of this Ordinance and thus saved the proceedings. The word 'proceedings' has not been defined either in the late Ordinance or in the new Ordinance. Such word will have to be given liberal meaning and in my view will include the proceedings commenced under

Section 38(3-A) of the late Ordinance to be the proceedings under Section 48(3) of the new Ordinance. The question in this case is whether the present revision application while earlier revision application is pending could be maintained. In this regard the observation made in the case of Ranjha by the Hon'ble Supreme Court of Pakistan is relevant and it lays down that when the law is changed higher forum can take notice to the changed legal position and decide the rights of the parties. Obviously the High Court is the higher forum and is the forum who will have jurisdiction to decide the rights of the parties in view of the changed legal position. By filing this revision application, the applicant has brought the matter to the right forum. It is not stated by the respondent counsel that the applicant has made out some new case. So far the question of delay is concerned, it may be noted that earlier revision application was fixed before a Judge of High Court of Sindh at Karachi on 2.4.2003 whereafter through an administrative order of the Hon'ble Chief Justice it was returned back. This revision application was filed on 12.6.2003 which is within 90 days which is generally taken to the period of limitation in civil cases for invoking the revisional jurisdiction. Such period has been reckoned not from the date of the impugned order because there was no dispute that the earlier revision application was in time. Further this revision application has to be considered as continuation of the applicants earlier revision application. In view of the above discussion, I find that the present revision application is maintainable.

The counsel for the applicant while arguing legal objections to the maintainability of the grievance petition has urged that the grievance notice served by the respondent was not in accordance with law as the same was not addressed to his appointing authority and in this connection has relied upon the case of Khushhal Khan v. Muslim Commercial Bank Limited (2002 S.C.M.R. 943). On the other hand learned counsel for the respondent has contended that no objection was taken by the applicant in their reply to the grievance petition that the grievance notice was not served on the appointing authority. He has stated that grievance notice was in accordance with the law. It may be noted that after the respondent was dismissed from employment vide order dated 31.7.1997, the appellant filed a departmental appeal dated 22.8.1997 addressed to the President of the Bank. This appeal was dismissed vide letter dated 22.9.1997. The respondent then submitted grievance notice under Section 25-A (I) of the late Ordinance which was addressed to the President and Senior Executive Vice-President of the Bank. This grievance notice was replied vide letter dated 29.10.1997 whereby the respondent was informed that disciplinary action Committee of Senior Executive of the Bank has approved the order of dismissal and such order was in accordance with law and relief claimed in the grievance notice was denied. It may be noted that the letter of the Bank dated 29.10.1997 has advised the respondent that the dismissal order has been passed by the Senior Executive of the Bank. The respondent has addressed grievance notice to the President as well as Senior executive Executive Vice-President of the Bank. No objection in the written reply was taken that the grievance

notice was not addressed to the employer of the respondent. No objection was also taken that grievance notice addressed to the President as well as to the Senior Executive Vice-President was not received by them respectively. It is not stated in the reply of the applicant that the President or Senior Executive Vice-President were not employer of the respondent. The cited case related to the Cashier and it was found that the employee has filed departmental appeal to the President of the Bank and that the departmental appeal sc filed by the employee was not considered as a grievance notice. In the present case the respondent has given grievance notice and therefore cited case is of no help to the applicant.

The second contention on merit of the learned counsel for the applicant is that the grievance petition of the respondent was not maintainable as he was not a workman. He has stated that the Respondent was an officer Grade-Ill and was drawing salary of Rs. 8000/- per month and that no evidence is produced by the respondent to prove the fact that he was performing work of manual and clerical nature. In support of his submission he has relied upon an unreported judgment in Appeal No. 1/2004 (Muslim Commercial Bank Ltd. v. Mahmood Hussain Larik) passed by Hon'ble Muhammad Mujeebullah Siddiqui, J. sitting at Hyderabad Circuit of this Court and the case of National Bank of Pakistan v. Punjab Labour Court No. V (PLJ 1993 SC 221). On the other hand learned counsel for the respondent vehemently contested this objection of the applicant counsel and has contended that the respondent was a workman. In this respect, he has relied upon SBLR 2003 Sindh 1842, 1988 S.C.M.R. 1664, PLD 1975 Karachi 342, PLD 1976 Karachi 73, PLD 1986 SC 103 & 1992 S.C.M.R 1891.

The record shows that the applicant from the very beginning has taken objection that the respondent being officer Grade III was not a workman. Such objection was taken in reply to the grievance notice and so also in the objections filed to the grievance petition. Learned Labour Court relied on the evidence of Regional Manager at Larkana of the applicant and concluded that as there was a Manager of the Branch in which the respondent was employed who was assigning duties to the respondent, the respondent was not performing any independent supervisory duties but was • doing clerical work assigned by the Manager. To prove the fact that he was workman, the respondent in Para 10 of his affidavit-in-evidence at page 6 has made the following allegation:

"It is further submitted that though Hon'ble Supreme Court in its judgment inv various Civil Appeals which was decided on 10.4.1997 has held that the Officer Grade-II & Grade III of Muslim Commercial Bank are workman but the respondents deliberately disrespecting the judgment of Hon'ble Supreme Court has disputed my statues, of their such act also amount to Contempt of Court."

Beside this respondent has alleged that he was President of Officers Unions of Muslim Commercial Bank which was registered with NIRC and

was also determined as CBA of OG-II and OG-III. In the case of National Bank of Pakistan (supra) the Hon'ble Supreme Court has made the following observation:

"It is a well settled proposition of law that a person who approaches a Court on the basis of averment that he is a workman within the definition of clause (xxviii) of Section 2 of the I.R.O, the burden of proof lies on him and not on the employer."

"11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."

In the unreported judgment in Labour Appeal No. 1/2004 re. Muslim Commercial Bank v. Mahmood Hussain Larik which was also the case relating to Officer Grade III of Muslim Commercial Bank, the learned Judge has made following observation:

"I have carefully considered the facts obtaining on record and the contentions raised by the learned advocates for the parties. It is admitted position that the Respondent was appointed as Officer in Grade III and he was working as Accountant. Thus in these circumstances, the burden was on the respondent to prove that notwithstanding the fact that his designation was of Officer Grade-Ill and he was drawing a salary of Rs. 15,000/- p.m. but actually he was performing duties which were clerical and manual in nature and were not supervisory, as held by the Hon'ble Supreme Court in the judgment referred to above. Admittedly the Respondent has failed to discharge the burden and I am constrained to observe that the observation of learned Labour Court that it has come on record through evidence that respondent Muhammad Hussain Larik was not working in any supervisory position but was doing the clerical work and was not having supervisory duty over the staff is figment of imagination and is not based on the evidence on record. The learned counsel for the respondent has frankly conceded that no documentary or oral evidence was produced by the respondent in

^

support of his contention and there was sole wrord of the respondent on the record.

I am fully satisfied that the finding of the learned Labour Court that the respondent was a workman is not substantiated with evidence on record consequently the application under Section 25A of the IRO 1969 was liable to be dismissed. The impugned judgment of the learned Labour Court No. VI, Hyderabad is hereby set aside. The appeal is allowed accordingly.1'

In the present case I find that respondent in his evidence has not uttered a single word as to the nature of his duties which he was performing as Officer Grade III and has merely relied upon judgment of the Hon'ble Supreme Court where Officer Grade-II & III have been held to be workman. It may be noted that in the first place judgment referred by the applicant in his evidence has not been produced. Secondly as his established law that the status whether the person is workman or not is not determined on the basis of designation but on nature of duties. As laid down by the Hon'ble Supreme Court of Pakistan in the cited case of National Bank of Pakistan that initial burden of proof to prove the fact that the employee is a workman rest upon him and after he has discharged his burden by leading evidence to this effect then the burden shifts on the employer. In the present case not a iota of evidence has been produced by the Respondent to show as to what nature of duties he has performing as an Officer Grade-Ill. The applicant in their evidence have stated that respondent as officer Grade III was performing duties primarily of supervision and control and not of manual or clerical nature. Learned counsel for respondent has argued that the evidence cannot be appreciated at the revisional stage. It may be noted that once the Court is seized of the matter, it has to decide it, in accordance with the record available before it and more particularly when specific question is raised which is based on record has to-be decided in accordance with law. Learned counsel for the respondent has not been able to show from the record as to what duties were being performed, by the respondent as Officer Grade-III. The finding of the Labour Court in this regard is merely based on assumption for which there is no evidence on record which is liable to be corrected under the provision of Section 48(3) of the new Ordinance.

On the basis of above discussion, I am of the considered view that on the record available which also includes the evidence of the parties, the respondent has failed to make out a case that he was a workman performing manual or clerical duties and in terms of the judgment of the Hon'ble Supreme Court of Pakistan in the case of National Bank of Pakistan referred to above has failed to discharge his burden. The grievance petition could have been filed only by a workman. Respondent has failed to establish fact that he was a workman and, therefore, his grievance petition was not maintainable. Having come to this conclusion, there is no need to discuss any further points as matter rest on the issue of determination of the question as

to whether respondent was a workman or not which has been found in the negative. Consequently the revision application is allowed and the grievance petition of the respondent is dismissed.

(N.T.) Revision allowed.

PLJ 2004 Karachi 15

Presen t: SYED ALI ASLAM JAFRI, J. SYED EJAZ HASSAN-Plaintiff

versus

MUHAMMAD IRFAN-Defendant Suit No, 1616 of 1998, decided on 1.4.2002. Civil Procedure Code, 1908 (V of 1908)--

—-O. XXXVII, Rr. 1,2-Negotiable Instruments Act, 1881-Ss. 79(2), 80- Jurisdiction-Suit for recovery on based of Promissory note-Question of mark-up-Jurisdiction of trial Court-Promissory note or bill of exchange was silent as regards interest or did not specify rate of interest, inspite of any collateral agreement relating to interest between parties-Notice demanding such amount was sent to defendant which remained un- responded-Amount of interest as claimed by plaintiff or permissible under law on a higher rate or rate as specified by law-Value of suit would become more as such-Held: High Court has jurisdiction to entertain that suit-Order accordingly. [P. 16] A

Mr. Abdul Waheed Kanjoo, Advocate for Plaintiff. Mr. Nazar Akber, Advocate for Defendant. Date of hearing : 1.4.2002.

order

This suit under Order XXXVII, Rules 1 & 2 CPC for recovery of Rs. 5,50,000/- (Rupees Five Lacs & Fifty Thousand) has been filed by the plaintiff against the defendant. The claim of the plaintiff is based on a Demand Promissory Note allegedly executed by defendant in favour of the plaintiff for Rs. 500,000/- (Rupees Five Lacs). He has also claimed Rs. 50,000/- Rupees Fifty Thousand) as interest at the rate of 13% per annum as due from the date of the execution of the promissory note till filing of the suit. He has also claimed interest/mark-up from the date of the filing of the suit till realization of the amount as shown in the plaint.

A preliminary objection has been taken by the learned counsel for the defendant that this Court has no pecuniary jurisdiction as amount shown in the demand promissory note is only for Rs. 500,0007- and that too

without showing any interest payable on the said amount. It is therefore argued that the suit should have been filed before District Court which has pecuniary jurisdiction up to Rs. 500,000 (Rupees Five Lacs) and the plaint is liable to be dismissed or returned under Order VII, Rule 10 CPC. In rebuttal, the learned counsel for the plaintiff has argued that in fact the suit is for recovery of Rs. 550,000/- (Rupees Five Lacs & Fifty Thousand) i.e. the principal and the interest hence the District Court has no jurisdiction to entertain a suit beyond the pecuniary limit of Rs. 500,000/- (Rupees Five Lacs) as such this Suit has been rightly filed before this Court.

I have considered the arguments of the learned counsel for the parties. Indeed, a District Court has the jurisdiction in respect of a suit value whereof is up to Rs. 500,OOO/-. A suit having valuation above Rs. 500,000/- is to be filed in the High Court. No doubt the promissory note is only for Rs. 500,000/- and it does not contain the rate of interest or the liability of the borrower to pay any interest upon the same to the lender but in view of Sections 79(2) & 80 of the Negotiable Instruments Act, 1881, if a promissory note or bill of exchange is silent as regards interest or does not specify the rate of interest, notwithstanding any collateral agreement relating to interest between the parties, interest at the rate of 6% per annum on the principal money is admissible from the date on which amount becomes payable and until tender or its realization. According to the plaint, the promissory note was executed on 26.6.1998 and in view of the non-payment, a legal notice demanding the said amount was sent to the defendant on 6th November, 1998 which remained un-responded. Thus it will be seen that whatever amount of the interest as claimed by the plaintiff or permissible under the law on a higher rate or the rate as specified by law, if added to the principal, the value of the suit shall become more than Rs. 500,000/- and as such this Court has jurisdiction to entertain this suit. Objection raised by the learned counsel for the respondent has no force hence over-ruled.

Put up for further proceedings. (R.A.) Order accordingly

PLJ 2004 Karachi 16 (DB)

Present: SHABBIR AHMED & KfflLJI ARIF HUSSAIN, JJ. AHMED CONSTRUCTION COMPANY through ATTORNEY-Petitioner

versus HABIB BANK LTD. KARACHI and 2 others-Respondents

C.P. No. 629 of 2003, decided on 12.5.2004. Civil Procedure Code, 1908 (V of 1908)--

—-S. 12(2) jurisdiciton-Adjournment-Court had discretion to grant adjournment conditional or unconditional—Adjournment was conditional subject to costs for reason-Witness had come from out of city the to meet

travelling expenses were awarded-Discretibn exercised was proper and cannot be disturbed under Constitutional jurisdictidn--Held : Petitioner has also made' a feeble attempt to challenge jurisdiction of Banking Court to entertain application under Section 12(2) CPC-Application u/S. 12(2) CPC is maintainable in proceedings. ' [P. 17] A & B

Ch. Muhammad Iqbal,Advocate for Petitioner. Mr. KB. Bhutto, Advocate for Respondents. Mr. Zia Kiyani, Advocate for Respondents. Mr. Ismail Merchant, Advocate for Respondents. Date of hearing : 12.5.2004.

order

In the instant Petition the grievance of the petition is that the while granting adjournment the Presiding Officer Banking Court impost cost of Rs. 6,382/- to the witness, who had come to depose on behalf of the opposite party in support of an application under Section 12(2) CPC.

The Court has discretion to grant adjournment conditional or unconditional. Here the adjournment was conditional subject to costs for the reason that, the witness had come from Rawalpindi to meet the travelling expenses were awarded. We are, therefore, of the view that the discretion exercised, was proper and cannot be, disturbed under Constitutional jurisdiction.

The petitioner has also made a feeble attempt to challenge the jurisdiction of the Banking Court to entertain application under Section 12(2) CPC. It is now well settled that application under Section 12(2) CPC is maintainable in proceedings emanating from the Financial Institutions (Recovery of Finance) Ordinance, 2001.

With the above observation, the petition is dismissed in limine with cost.

(R.A.) Petition dismissed.

PLJ 2004 Karachi 17

Present: S.A. RABBANI, J. M/s. CHAPAL BUILDER-Applicant

versus

Mrs. MASOODA YASMIN-Respondent

Civil Revision Application No. 19 of 2002, decided on 15.5.2002. Interpretation of Law-

—-Basic difference between an appeal and a revision is that appeal is a right of party but a revision is a power of Court and not a right of party-Claim

of respondent is apparently proved and there is nothing in matter calling interference with judgment passed by Court-Revision dismissed.

[P. 18 & 19] A

Miss Mehr-un-Nisa, Advocate for Applicant. Mr. M.Z. Khan, Advocate for Respondent No. 1. Date of hearing: 15.5.2002.

order

The applicant is a builder and the respondent booked a flat in a project of the applicant and paid Rs. 34,800/- as part payment towards the cost. The booking of the flat was, however, cancelled by the applicant and the respondent demanded refund of this amount, which was refused. The respondent, therefore, filed Suit No. 146 of 1999 in the Small Causes Court,, Karachi. The suit was decreed by the Small Causes Court on 30.11.200L Through the present Revision application, this judgment and decree of the Small Causes Court has been called in question.

Miss Mehrunnisa, learned counsel for the applicant, submitted that according to Clause 8 of the agreement between the parties, 10% of the total cost of the apartment is to be deducted from the amount paid by the allottee, and this amount, in this case, would be more than the claim of the present respondent in the suit. She submitted that in view of this condition in the agreement, the applicant is not liable to pay any amount to the respondent.

Mr. M. Z. Khan, learned counsel for the respondent, submitted that the applicant themselves made a statement before Income Tax Authorities whereby they showed a refund of Rs. 34,800/- to the present respondent. He has produced certified copies of letters from Assistant Commissioner Income Tax seeking verification of this fact from the present respondent.

It has come on record that the applicant, after cancelling the allotment of the present respondent, have sold the apartment to some other person/According to Clause 8, in case of cancellation 10% of the total cost of the apartment may be deducted as service charges. In view of the fact that after cancellation of the allotment of the respondent, the applicant have sold the apartment to some other person for gain, there is nothing to infer that any service has been provided to the respondent by the applicant, for which such charges could be deducted. In view of this position, coupled with the fact that the applicant themselves have made a statement before the Income Tax Authorities about refund of this amount to the respondent, the applicant cannot deny this liability.

This is not an appeal and the basic difference between an appeal and a revision is that appeal is a right of the party, but a revision is a power of the Court and not a right of the party. In the present case the claim of the respondent is apparently proved and there is.nothing in the matter calling

2004 punjabi sodagar town v. Govr. or «indh

interference witty the judgment passed by the Small Causes Court. Revision, being without any substance, is dismissed with costs.

(R.A.) Revision dismissed.

PLJ 2004 Karachi 19 (DB)

Present: SABIHUDDIN AHMED AND S. ALIASLAM JAFRI, JJ.

PUNJABI SODAGAR TOWN CORPORATION LIMITED, KARACHI through its CHAIRMAN-Petitioner

versus

GOVERNMENT OF SINDH through SECRETARY, MINISTRY OF

HOUSING & TOWN PLANNING SINDH SECRETARIAT KARACHI

and 2 others-Respondents

C.P. No. D-1502 of 1999, decided on IG^.2003. The Constitution of Pakistan, 1973--

—-Art. 199-Allotment of land-Scheme of-Admittedly-Amount deposited as "earnest money" but scheme not finalized, allotment not effected-Matter of-Petition against-Land be allotted within specified time-Prayer for-Refund be made-Direction of-After several adjournment, non-compliance of-Held : Despite several orders of High Court, respondent keep on refusing payment of acknowledged liability occurred more than sixteen years ago-In the circumstances Court have no option but to attach immovable properties of KDA unless a cheque is deposited in Court within thirty days-In default order of attachment shall become effective and respondent would be further liable to pay compensation at rate of 14% per annum for any delayed payment-Petition disposed of.

[P. 20] A

Mr. Muhammad Riaz Abbasi, Advocate for Petitioner.

Dr. Kazi Khalid Alt,. Additional Advocate General Sindh, for Respondent No. 1.

Mr. S. Jamil Ahmad, Advocate for Respondent No. 2. Date of hearing: 16.9.2003.

order

Sabihuddin Ahmed, J.--The petitioners had approached this Court contending that they had deposited an amount of Rs. 2.00 million for allotment of 100 acres of land way back in 1987 but the planning of the scheme and other formalities,for allotment were not being finalized. Having

waited in vain for several years they approached this Court seeking directions that the land be allotted. Subsequently, however, it appeared that the Respondent No. 2 had transferred the land to Respondent No. 3 and consequently the petitioners amended the petition inipleading Respondent No. 3 and seeking a direction regarding finalization of the scheme within a specified time. The Respondent No. 2 in their parawise comments have admitted receipt of the amount stated to have been deposited as "earnest money" but claimed that the petitioners were not entitled to lease of the land.

It appears that in the circumstances the-petitioners indicated that they would be contained with refund of the amount deposited but a question" arose whether the refund was to be made by the Respondent No. 2 or Respondent No. 3. The liability to refund having been acknowledged this Court vide order dated 28.3.2000 directed the learned AAG appearing for Respondent No. 1 to contact both the agencies and get the matter settled.

On 27.3.2001 the Additional Advocate General informed the Court that the matter had been decided by the Secretary Housing and Town Planning Department of the Respondent No. 1 and it was found that the Respondent No. 2 was liable to refund the amount. This Court expressed anguish at the fact that despite eight months no refund has been made and even no appearance had been made in Court on that date.

Thereafter the matter was adjourned from time to time but by an order dated 2.9.2003 passed in presence of Dr. Kazi Khalid Ali and Syed Jamil Ahmad we granted a final opportunity to the Respondents Nos. 1 and 2 to settle the petitioners claim and fix the matter for hearing today.

Mr. S. Jamil Ahmad attempted to request for adjournment for even today but Mr. Muhammad Riaz Abbasi, learned counsel for the petitioners, strongly resisted the same contending that further adjournment might amount to abuse of process of law. In the circumstances of the case we have no option but to agree with him. It is ridiculous on the part of Respondent No. 2 to say the least to usurp the money of citizens kept in trust and keep on refusing payment of acknowledged liability occurred more than sixteen years ago and despite several orders of this Court. In the circumstances we ha no option but to direct the Official Assignee of this Court to attach the immovable properties of the KDA Wing of the City District Government . Karachi unless a cheque is deposited in Court within thirty (30) days from " today. In case the deposit is not made within the said period of thirty (30) days the order of attachment shall become effective immediately and the Respondent No. 2 would also be further liable to pay compensation at the rate of 14% per annum for any delayed payment.

The petition stands disposed of. (F.M.) Petition disposed

PLJ 2004 Karachi 21

Present: ATTA-UR-REHMAN, J. RAZA ENTERPRISES, KARACHI through its ATTORNEY-Plaintiff

versus

ASSISTANT COMMISSIONER, KARACHI and 5 others-Defendants Suit No. 1201 of 1998, decided on 19.11.2003.

—-O. 3, R. (2)-Sindh Chief Court Rules, Rr. 49, 50-Pakistan Degal Practioners and Bar Counsels Rules, 1976, R. 139-Application- Discharge of Vakalat Nama & Recovery of Professional Fees-That he has already made separate claim in respect of fees, which was pending with NLC, and same was not being acknowledge-Such controversy between Counsel and NLC has been coming on in number of cases of NLC and it would be appreciated if the NLC settles the matter as early as possible- Be that as it may, the application is allowed and Valakat-nama is discharged-However Mr. Rauf Khan is at liberty to take appropriate action for recovery of his alleged dues/fees, etc. [P. 23] A

PLD 1996 SC 800 and 1996 CLC 1998 and PLD 1990 S.C. 800 ref.

Mr. Farogh Naseem, Advocate for Plaintiff.

Major (Retd.) Abdul Rauf Khan, Advocate for Respondent.

Mr. Anwar Mansoor Khan, Advocate holding brief for Mr. Abbas Ali, A.A.G.

Mr. Saalim Salam Ansar, Advocate for NLC. Date of hearing : 19.11.2003.

order CMA 5707 of 2003

This is an application U/0 3, Rule 4(2) read with Rule 49/50 of Sindh Chief Court Rules, contents whereof are reproduced hereunder:

Respectfully submitted :

1. That the applicant is practicing advocate of High Court of Sindh.

2. The applicant was engaged as advocate by National Logistic Cell on the basis of signed "Yakalatnama filed in the Court.

3. The NLC Authorities did not adopt the proper procedure to get the Vakalat Nama discharged from the Court, instead wrote Highly offensive letter which is orbit of law. NLC Authorities has expressed desire to return the case files, which according to

order dated 3.3.2003 High Court Sindh 8 letters were written to NLC HQ Field Comd Kemari Karachi, to collect the case file, get my Vakalat Nama discharged and pay my dues. NLC Authority did not regard the letters nor reply any of the letter. Copy of the High Court is attached Anx-A, NLC letter at Anx-B, Anx-C to K.

1. Without prejudices to the right of recovery of my professional fee Rs. 2.51.15.000.00 Plus Gratuity Rs. 4.86.000.00. The Honourable Court may be pleasefi to order discharged of my

» Vakalat Nama from High Courts/Federal tribunal/Lower

Court at Karachi and direct NLC Authority to clear my admissible dues.

1. The NLC authority had disengaged my legal advisor services with effect from 30.9.2002 and did not get my Vakalat Nama discharged from the Court as required under law.

2. On the basis of Vakalat Nama I am attending/defending all cases of NLC in the Courts from 1st October 2002 till today without any financial help from NLC.

3. On 3.10.2003 Director NLC at HQ Field Comd Karachi offered me Rs. 0.7 Millions against Professional. Fee 2,51,15,000.00 and Gratuity Rs. 0.3 Million against 4,86,000.00 which very meager amount. I decline to accept.

4. On 26th May 2003 Brigadier Waqar Gul was summoned by High Court Sindh for resolving the Professional Fee and state counsel Mr. Mahmud Alam Rizvi was also directed to assist the party during summer vacation but the Brigadier Waqar Gul disregarded the High Court order and state counsel order. Anx- L&M.

5. It is respectfully prayed that the Honorable Court may be graciously pleased to order discharged of my Vakalat Nama on the basis of letter 7th Oct 2003 written by HQ NLC GHQ Rawalpindi and direct them to pay my Professional fee Rs. 2,51,15,000.00 and gratuity 4,86,000.00.

Mr. Salim Salam Ansari appeared for NLC and gave no objection to the grant of this application. He submitted that process negotiations for settling the fees of the counsel are under way. He further submitted that in case settlement fell then the counsel would be at liberty to approach the proper forum for recovery of the dues as claimed.

Mr. Abdul Rauf Khan submitted that at number of times undertakings have been given by NLC to settle the dues but so far no action has been taken by them and he has not been paid the fees. He further submitted that inspite of this since 1st October 2002, till date of his

disengagement by the NLC, he is regularly appearing in Courts in the matters of NLC without any payment, on his own expenses.

Mr. Rauf further added that he has already made separate claim in respect of fees, which is pending with the NLC, and the same is not being acknowledged. He relied upon Pakistan through General Manager, Pakistan Railways vs. Messrs. Q.M.R. Expert Consultants (PLD 1990 S.C. 800) and Muhammad Hafiz Azmat Shaikh vs. Messrs National General Insurance Co. Ltd. (1996 CLC 1998) in support of his submissions.

Such controversy between the counsel and NLC has been coming on in number of cases of NLC and it would be appreciated if the NLC settles the matter as early as possible.

Be that as it may, the application is allowed and Vakalatnama is discharged. However, Mr. Rauf Khan is at liberty to take appropriate action for recovery of his alleged dues/fees etc.

On 8.10.2003, Mr. Abbas Ali AAG undertook to make statement on the next date as to the proposition made by learned counsel for plaintiff as incorporated in the order. Today he is called absent. However, Mr. Anwar Mansoor Khan A.G. has requested for adjournment on his behalf. The matter is adjourned to 4.12.03, when Mr. Abbas Ali AAG will appear and address the Court in view of the order dated 8.10.2003.

(R.A.)

Application allowed

PLJ 2004 Karachi 23

Present maqbool baqar, J.

ALLIED BANK OF PAKISTAN LTD. CENTRAL OFFICE BATH ISLAND CLIFTON, KARACHI through its Attorneys-Applicant

versus

RAFIQ AHMAD SOOMRO-Respondent L.R.A. No. 32 of 2003, decided on 27.10.2003. Industrial Relations Ordinance, 1969 (XXIII of 1969)--

— -S. 25-A(4)-Proceedings under S. 25-A, Industrial Relations Ordinance, 1969 whether proceedings relating to Industrial dispute-Wehre any matter is to be considered by a domestic forum, representation by worker would be through in house agencies viz., himself, shop steward or Collective Bargaining Agent- Where, however, dispute was placed before outside forum like a Court, then parties were not deprived of professional legal assistance-Omission of the word "himself1 from sub-section (4) of

S. 25-A of Industrial Relations Ordinance, 1969 would indicate such position-Dispute between an individual workman and employer cannot be an industrial dispute-No permission was required by a party to proceedings under S. 25-A of Industrial Relations Ordinance to be represented by an Advocate-Impugned order of Labour Court requiring a party to such dispute to obtain permission from the Court to be represented through an advocate and dismissing applicants application under S. 49(3) of Industrial Relations Ordinance, 1969 was thus, set aside and case was remanded to Labour Court for decision afresh in accordance with law. . [Pp. 26 & 27] A & B

1984 PLC.771 and 1968 PLC 137 ref.

Mr.. Shahid Anwar Bajwa, Advocate for Applicant. Mr. Ubed Ullah Mano, Advocate for Respondent. Date of hearing : 29.9.2003.

order

Through this revision application U/S. 48(3) of the I.R.O. 2002 the applicant, Allied Bank of Pakistan Ltd. has assailed the order dated 24.5.2003 passed by the Sindh Labour Court No. VII, at Sukkur, dismissing the application U/S. 49(3) of I.R.O. 1969.

The relevant facts of the case, in brief, are that the respondent, who was employed as a O.G-II Accountant with respondent-Bank, filed a grievance application U/S. 25-A (4) of I.R.O. 1969, before the Labour Court No. VII at Sukkur against his dismissal from service by the applicant-bank.

On 21.9.2002 M. Azizullah Bhambhro, Incharge Regional Office Sukkur, alongwith Mr. A.M. Mobeen Khan advocate appeared before the Labour Court and filed an application u/S. 49(3) of IRO 1969, alongwith an application for adjournment. The said applications were accompanied by two vakalatnamas, one of which was signed by the said Mr. Azizullah Bhambhro and the other was signed by Secretary Disciplinary Action Committee of the applicant Bank, who was impleaded as Respondent No. 3, before the Labour Court, the Vakalatnamas were accompanied by a power of attorney. The case was however adjourned to 20.10.2002, for Mr. Bhambhro to satisfy the Court regarding his competence to represent the applicant bank and to seek permission for the applicant bank to be represented through a counsel. Subsequently Mr. Mobeen Khan advocate filed an application for rejection of the respondent's main application filed u/S. 25-A of IRO 1969, supported by an affidavit of Mr. Azizullah Bhambhro the learned counsel also filed a Vakalatnama signed by Mr. Aftab Alam, the Regional Manager of the applicant Bank. Together with a letter of authority and a power of attorney in favour of Mr. Bhambhro. Another application for enlargement of time for filing reply statement was also filed by Mr. Mobeen Khan advocate, on behalf of the applicant Bank.

On 20.10.2002 the learned Labour Court dismissed the application filed by Mr. Mobeen Khan, for rejection of the main petition, on the ground that the earlier application filed by Mr. Bhambro under Section 49(3) of IRO 1969 was pending for hearing, was filed by an incompetent person and thus the application for rejection of the main petition was also filed by an incompetent person. The Labour Court however allowed time to the applicant Bank to file its reply statement by 15.10.2002.

On 15.10.2002 Mr. Azizullah Bhambhro appeared before the Labour Court alongwith a Pupil of Mr. Shahid Aziz Bajwa Advocate and filed a Vakalatnama of M/s Shahid Aziz Bajwa & Company advocates. The learned Labour Court however struck of the defence of the applicant Bank on the ground that the neither any proper application u/S. 49(3) of IRO 1969 was filed nor was any application for enlargement of time for filing reply statement was filed by the applicant bank.

On 22.10.2002 Mr. Azizullah Bhambhro appeared before the Court alongwith the counsel for the applicant Bank, who filed an application for re­calling the order dated 15.10.2002 and to allow the applicant Bank to file its reply statement and also filed an application for recalling the order dated 2.10.2002.

By order dated 24.5.2002, the learned Labour Court, whilst observing that a petition u/S. 25-A of IRO 1969 is to be treated as an industrial dispute and that in terms of Section 49(3) of IRO 1969, a party to such dispute can only be represented through an advocate, after the said party has itself obtained permission from the Court in that regard, dismissed the applicants application u/S. 49(3) of IRO 2002. (The impugned order).

The learned counsel for the applicant Bank submitted that proceeding under Section 25-A of IRO are not proceedings relating to an industrial dispute as defined by Section 49 of IRO 1969 and thus no permission is required by an employer to be represented through an advocate. In support of his contention the learned counsel relied upon a judgment of a Division Bench of this Court in the case of Ghulam Hussain ffidayatullah Textile Mills Limited v. Muhammad Jamal (1984 PLC 771).

On the other hand the learned counsel for the respondent submitted that proceeding under Section 25-A of IRO 1969 (corresponding Section 46 of the IRO 2002) are proceeding relating to an "industrial dispute" and that a party to such proceedings is essentially required to obtain permission, as envisaged under Section 49 of IRO 1969.

Heard the learned counsel and perused the record of the case.

Industrial dispute as defined by sub-clause (xiii) of Section 2 of IRO 1969, (Corresponding Section 2 (xvi) of IRO 2002) means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which relates to the employment or non-employment, or the terms of employment or the conditions of work of any person and not in respect of the enforcement of any

right guaranteed or secured to him by or under any law other than the IRO, or any award or settlement for the time being in force. Whereas proceedings u/S. 25-A of the IRO 1969 (Corresponding Section 46 of IRO 2002) pending before the Labour Court, are not the proceedings relating to an "industrial dispute. The question about enforcement of any right guaranteed or secured by or under any law other than IRO, or any award or settlement, have been differentiated from dispute concerning the employment or non employment or the terms of employment or the conditions of work of any person. It is in fact, such matter which do not fall within the ambit of sub-section (xiii) of Section 2 of the IRO 1969, which are dealt under Section 25 and Section 34 of the IRO 1969.

In terms of Section 25-A of the IRO where a matter is to be considered by a domestic forum the representation by the worker will be through in house agencies viz. himself, shop steward or the Collective Bargaining Agent however in case the dispute is placed before an outside forum like a Court, then the parties are not deprived of the professional legal .^assistance. It is with such intent only, that the word "himself has been " omitted from sub-section (4) of Section 25-A, although sub-section (1) of Section 25-A which deals with in house resolution/settlement of a grievance, requires a Worker to bring his grievance to his employer, either himself or through his shop steward or collective bargaining agent.

In the case of Ghulam Hussain Hidayatullah Textile Mills Ltd., v. Muhammad Jamal (1984 PLC 771), supra,a Division Bench of this Court whilst deciding the question whether proceedings under Section 25-A of IRO 1969 are proceedings relating to "industrial dispute" as envisaged under Section 49 of the IRO 1969 (Corresponding Section 43(a) of IRO 2002) and whether permission is required by a party to be represented through an advocate in such matter, held that the definition of "industrial dispute" as given in Section (xiii) of IRO 1969 expressly excludes from its purview individual grievance under Section 25-A of the IRO 1969 which are limited to enforcement of rights of individual workmen guaranteed or secured by law, and award or settlement. Their lordships further observed that the proceedings under Section 25-A of the IRO 1969 pending before the Labour Court, are not proceedings relating to an "industrial dispute" which can be raised only in a prescribed manner under Section 34 of IRO 1969 (Corresponding Section 33 of IRO 2002) by Collective Bargaining Agent or an employer. Their lordships, in the above case relied upon the judgment in Jalaluddin v. Orient Watch Company (1968 PLC 137), wherein a Division Bench of the erstwhile High Court of West Pakistan had observed that a dispute between an individual workman and employer cannot be an "industrial dispute"

In the case of Messrs Ramzan Ali & Co., Cotton Ginning and pressing Factory, Mirpur Khas v. General Secretary, Employees Union and another (1996 PLC 311), a Division Bench of this Court, dealing with the

question whether in the proceeding u/S. 34 of IRO 1969 a party can be represented by an advocate, without such a party seeking a prior permission from the Court, whilst relying on the above cited judgments, has held that the words "any right guaranteed or secured"; used in Section 25-A and Section 34 of IRO 1969 cannot be substituted for the words "industrial Dispute" and vice versa. A grievance application moved under Section 25-A of IRO 1969 shall be treated as an industrial dispute only for the purpose of deciding it within seven days, as appears from last line of sub-section (4) of Section 25-A of the IRO. Through the above cited judgment the Division Bench up held the decision of the Labour Court whereby it had allowed the respondents in proceedings u/S. 34 of IRO 1969, to be represented by an advocate without the respondent's seeking any permission in that regard.

From the above discussion it is now absolutely clear that no permission is required by a party to the proceedings u/S. 25-A of the IRO 1969 (Corresponding Section 46 of IRO 2002). Consequently the impugned order is set aside. The applicant bank shall file a reply statement in the aforesaid proceedings, before the Labour Court within fifteen days from today and shall be allowed by the Labour Court to be represented by a counsel duly appointed by them.

(A.A.) • Case remanded

PLJ 2004 Karachi 27 (DB)

Present: SABIHUDDIN AHMED & S. ALI ASLAM JAFRI, JJ.

M/s. SUBHAN ALLAH AND COMPANY, KARACHI and 8 others-Petitioners

versus CITY GOVT. through CITY NAZIM KARACHI and another-Respondents

Const. Petition No. D-740 of 2002, decided on 30.9.2003. Constitution of Pakistan, 1973--

—-Art. 199-Constitutional Petition- Jurisdiction-A plot of land was allotted to Petitioner No. 9--Price was subsequently reduced by Chief Minister-Allotment was cancelled-Undue favour was accorded-Allotment was restored due to deposit amount to cover difference between market price and price paid-No challan for payment was received and no possession was given-Held: Matter was under consideration of competent authority in respondents-High Court would have left it open to concerned authorities to take a decision in exercise of lawful powers-Nothing require independent application of mind is to be decided-No reason to

prolong agony of petitioners in leaving them at mercy of officers of respondents who were to have scant regards for public duty to be performed within a reasonable time-Respondents was directioned to allot plot to petitioner within two month-Petition allowed. • [P. 29] A

Mr. Mansoor-ul-Arfin, Advocate for Petitioners. Mr. Manzoor Ahmad, Advocate for Respondents. Dr. Kazi KhalidAli, Addl. Advocate General Sindh. Date of hearing : 30.9.2003.

order

Sabihuddin Ahmed, J.--Since the parties had presented their respective cases we decided to admit this petition and dispose it of finally.

The Petitioner No. 9 is the original allottee of a plot of land and the Petitioners Nos. 1 to 8 are subsequent transferees. It appeared that the plot was initially allotted to the Petitioner No. 9 at the price of Rs. 15,000/- pejr Sq. Yd. which was subsequently reduced to Rs. 2,500/- per Sq.' Yd. by the then Chief Minister. However, upon the dissolution of the Government led by the said Chief Minister allotment was cancelled videletter dated 11.1.1997. Subsequently, a reference was filed against the said Chief Minister Sindh and one Akhtar Javed Pirzada, Managing Director of the Petitioner No. 9, and it was alleged that undue favour was accorded to the Petitioner No. 9 to sell of plot at the rate of Rs. 2,500/- per Sq. Yd. as against the market price of Rs. 15,000/- per Sq. Yd. Eventually, the proceedings against Akhtar Javed Pirzada were droped upon his agreeing to pay the sale consideration at the rate of Rs. 15,000/- per Sq. Yd. and allotment was restored on 10.8.1999.

The petitioners admittedly made payment of the amount of Rs. 66,494,250.00 to cover the difference between the market price (Rs. 15,000/-) and the price paid (Rs. 2,500/-) and the allotment was restored on 10.8.1999. In the meantime, the petitioners have apparently entered into several agreements for transfer of the parts of the plot (which had been sub­divided) but when formal allotment/transfer was requested for, the respondents froze any further transaction relating to plot in question. No challan for payment was received and no possession was given till the petitioners moved this Court on 12.4.2002. For the first time challan for payment was delivered to the petitioners on 8.4.2003 wherein certain amount including Rs. 31,623,337.00 were, inter alia, demanded by way of non-utilization fee.

Mr. Mansoor-ul-Arfin, learned counsel for the petitioners, has urged that non-utilization fee in terms of the allotment order only becomes leviable in case the lessee fails to raise construction within two years from delivery of possession to him. Indeed, this is evident from the terms of the allotment order. Indeed this is not disputed and it is evident from the facts narrated above that the plot never remained in the lawful possession of the petitioners for a period exceeding two years.

Indeed, Mr. Manzoor Ahmad was not able to dispute the above position. Nevertheless, he contended that the matter was under consideration of the competent authority in the respondents. While normally we would have left it open to the concerned authorities to take a decision in the exercise of their lawful powers but when it is self evident that nothing requiring independent application of mind is to be decided, we see no reason to prolong the agony of the petitioners in leaving them at the mercy of officers of the respondents who were to have scant regards for their public duty to be performed within a reasonable time. We would accordingly allow this petition and direct the respondents to allot the plot to the petitioners within two month from the date when all charges except non-utilization fee is deposited by the petitioners. A copy of this order will be furnished to the Legal Advisor, City District Government Karachi, at the earliest who will ensure that a new challan is delivered to the petitioners or their counsel within one week from today.

The petition stands disposed of alongwith the listed applications. (R.A.) . Petition disposed of

PLJ 2004 Karachi 29

Present: sarmad jalal osmany, J.

CITY SCHOOL EDUCATIONAL SOCIETY, KARACHI through its AUTHORIZED OFFICER and another-Petitioners

versus

Mrs. TALAT YAZADANI-Respondent Revision Application No. 241 of 2002, decided on 25.6.2004. Service Matter--

—-Master and servant-Dismissal of servant from Service-Extent of his claim-Held-In case of dismissal from service, the servant can only claim what is due to him by way of wages etc. If such dismissal was held to be unfair, he can also claim damages but cannot claim his re-instatement in service-High Court upheld remand order of Appellate Court regarding determination of respondent's claim for damages on the basis of his mental agony, loss of reputation and personal humiliation etc.

[Pp. 31 & 33] A & B

PLD 1961 SC 53; 1909 AC 488; PLD 1962 K. 899 & 1849 11 HLC 579, (1928)

One K.B. 269 (C.A.); 1930 AC 209; (1933) 2 KB 536 (CA); 1936 2 AER 1625;

1999 CLC 192 and PLD .1996 SC 737 ref.

Mr. Shahid Anwar Bajwa, Advocate for Applicant.

J

Mr. Khaleeq Ahrriad, Advocate for Respondent No. 1. ', Dates of hearing: 28.3.2003 & 21.6.2004. - f

order

The brief facts of the matter are that the Respondent/Plaintiff was employed by the Applicant No. 1 school as a teacher through an appointment letter dated 14.9.1992 and thereafter continued in that capacity until served with a letter of termination dated 19.3.1999 whereby her services were dispensed with effect from 4.6.1999 on the ground of misconduct. According to the Respondent such termination was malaflde and not sustainable on any ground whatsoever as she had a spotless record and the same was the result of enmity on the part of Applicant No. 2, the Headmistress of the School. Accordingly, the Respondent had filed Suit No. 291/2001 against the Applicants before the Learned Vlth Sr. Civil Judge, Karachi Central, for Declaration and Injunction etc., praying that the termination of the Respondent from the Applicants' school was unlawful and that she be reinstated alongwith up to date arrears of salary and benefits amounting to Rs. 210792/-. So also damages in the amount of Rs. 210792/- was claimed on account of mental torture, shock, and agony suffered by the Respondent. The said suit was dismissed by the Learned Senior Civil Judge under Order VII Rule 11 CPC on the basis that it was not maintainable since per the law of Master and Servant, a dismissed servant cannot ask for reinstatement in the employment of the Master. The Respondent filed an appeal before the Learned District Judge, Karachi, Central being Civil Appeal No. 67/2002, who vide order dated 27.2.2002 allowed the same on the basis that though part of the claim relating to the declaration and injunction is not maintainable, however, the rest of the claim pertaining to damages was not barred under any law and hence required to be adjudicated by the Learned Senior Civil Judge. Consequently, the matter was remanded back to the said Judge for disposal according to law. Being aggrieved by said judgment the Applicants have filed the present Revision Application.

1. Mr. Shahid Anwar Bajwa, Learned Counsel for the Applicants, has submitted that in the facts and circumstances of the case where admittedly the Parties are governed by the law of Master and Servant there cannot be any question of reinstatement of the Respondent. Secondly, there also cannot be any question of recovery of damages on account of such dismissal due to mental distress, shock etc., as in such a situation, all that the Respondent was entitled to was notice pay or wages in lieu thereof per the contractual arrangements between the parties and per settled law. In support of his contentions, learned Counsel has relied upon: Lindsav vs. Queen's Hotel Company Ltd. (1919(1) KB 212, Law of Damages by Frank Gahan 1936 Edition Page 522 Para 608, Mayne and McGregor on Damages 12th Edition Page 522 Para 608, Contract of Employment by M.R. Freedland, Gulf Steamship Co. V/s. Dilwash Balouch (PLD 1962 Karachi, 899) Addis V/s. Gramophone Co., Ltd (1909 AC. 488) andABN-AMRO Bank v/s Wasim Dar (2004 PLC 69). Learned Counsel has therefore prayed that the impugned judgment be set aside and that of the Learned Senior Civil Judge be upheld.

2004 city school educational society v. Mst. talat yazadani Kar. 31

(Sarmad Jalal Osmany, J.)

1. On the other hand, Mr. Khaleeq Ahmed for the respondent has submitted that although the suit for Declaration and Injunction may not be maintainable, however damages could certainly be claimed for wrongful dismissal. In support of this proposition he has relied upon DivisionalEngineer Phones v/s. Muhammad Shahid (1999 SCMR 1526), AnisaRahman v/s. PIAC, (1994 SCMR 2232), Malik & Haq v/s. MuhammadShamsul Islam (PLD 1961 SC 531), Gulf Steamship Co. V/s. DilwashBalouch (PLD 1962 W.P. Kar. 899), Muhammad Aslam v/s. PNSC(PLD 1979 Karachi 246) and Irshad Jehan v/s. PNSC (1999 CLC 192).

2. I have heard both the Learned Counsel and my conclusions are as follows:-

3. It would be seen that the law with regard to the Master and Servant relationship is very well settled viz. in case of a dismissal from service by the Master, the servant can only claim what is due to him by way of wages etc. and if such dismissal be held to be unfair, damages could also be awarded by a Court of law. Consequently, in such a relationship there cannot be any question of reinstatement of a servant in the employment of the Master. For this proposition reference may be made to M/s Malik and Haq v. Muhammad Shamsul Islam Choudhry (PLD 1961 SC 53) wherein it has been held that the Servant cannot be foisted upon an unwilling Master and hence a suit for damages was the only remedy left open for the servant. In the instant case it was also held that since no period of service was provided in the agreement between the parties therefore the termination of service on payment of one month's salary was proper and accordingly the matter was not remanded for a decision as to the servant's claim for damages. Similarly, in the case of Gulf Steamsphip Co. vs. Dilwash Baluch(PLD 1962 Kar. 899) it was held that where the agreement between the parties provided for one month's notice or pay in lieu thereof, and the

. servant had been dismissed in violation thereof, all he was entitled to was one month's pay plus damages for the period which might reasonably elapse •before he could obtain other employment. In coming to this conclusion Waheeduddin Ahmed, J., as (his Lordship then was) relied upon the case of Addis v. Gramophone Co. Ltd. (1909 AC 488) and Bcckham vs. Drake (1849 II HLC 579). Consequently, I am of the opinion,fthat in any event the suit filed by the Respondent to the extent of reinstatement in service is not maintainable.

1. Coming now to the issue of damages, it would firstly be seen that per the contract of employment between the parties dated 14.9.1992, the Respondent was employed with effect from 16.9.1992 as a teacher in the Applicant's school for an indefinite period, however the same could be determined by either side on one month's notice in writing without assigning any reason whatsoever. Additionally, the Applicant could also terminate the Respondent's employment by giving one months pay in lieu of notice to her. It was also agreed between the parties that where termination of the Respondent's services was due to misconduct no notice/notice pay

would be given to her. According to the termination notice served upon her on 19.3.1999 the Respondent was to hand over her charge on 4.6.1999. Hence, in my opinion, such termination was in accordance with the terms and conditions of the agreement between the parties since the necessary notice was given to the Respondent. Now the only question to determine is whether the Respondent can claim damages for shock and mental torture due to the wrongful nature of the termination since it is the Respondent's case all along that the allegations of misconduct against her are false and frivolous and have only been levelled due to the malafides of Applicant No. 2 who is the Principal of the School.

1. In this connection it would be seen that as per the rule laid down by the House of Lords in Addis u. Gramaphone Co. (supra), where a servant is wrongfully dismissed from his employment, damages for dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment. The aforementioned case was relied upon in Gulf Steamsphip Co., Ltd., vs.Dilwash Balouch (supra) and it was held that in a Master and Servant relationship there could not be any question of reinstatement of a servant upon his dismissal. All that could be granted to him would be in the nature of unpaid wages etc. Similarly, in the case of Malik and Hague v. M.Shamsul Islam (supra) again the Hon'ble Supreme Court has reiterated the principle that the servant can only sue the master for damages following his dismissal which would be confined to unpaid wages or as in that case one month's wages in lieu of termination. However, it may be observed that in both the aforementioned cases from our jurisdiction no claim was made on account of damages suffered due to mental shock/agony/loss of reputation etc., upon termination of the servant's employment. The Servant/Plaintiff had only sued for reinstatement as well as the dues of his salary and other benefits.

2. As far as the case of Addis vs. Gramaphone Co., (supra) isconcerned, in my view, much water has flown down the bridge since that case was decided in 1909. In fact even in the English Jurisdiction there is a recognition of the principal that depending upon the particular trade/profession of the servant a summary dismissal would entitle him/her to some measure of damages. Hence, in Marbe vs. .George Edwards (1928) One KB. 269 (CA), it was held that where the servant was in the employee of a Master (in this case the owner of a theatre) which obligated the former to appear in public as an actor, then the dismissal of the servant would entitle him to some damages for the loss" of opportunity to maintain his reputation. This principle was also recognized by the House of Lords in Clayton vs. Oliver (1930 A.C. 209) and in Withers vs. General theatreCorporation (1933) 2 KB. 536 C.A.). Similarly, such measure of damages has been extended to authors as well as held in Tolnay vs. Criterion Films (1936 2 AER 1625). In this case it was held that all persons who have to make a

living by attracting the public to their works, be they painters or literary men or pianists and musicians, must live by getting known to the public. Hence loss of publicity would give rise to a claim for damages. In my opinion, a teacher alongwith other professionals viz. a lawyer, doctor, architect, accountant and engineer etc. all interact intimately with the public at large and depend for their livelihood upon the reputation which they earn in their respective professions. Hence summary dismissal of such professionals' employment without reason or where the reason cannot be justified would certainly entitle them to claim damages for loss of reputation, mental agony as a result thereof and personal humilitation etc. As observed above, in the cases of Gulf Steamsphip Co., Ltd., vs. Dilwash Baluch and Malik and Haque v. M. Shamsul Islam (supra), the claims of the servants/Plaintiffs were only limited to their reinstatement in service as well as pay and allowances etc. Both of these were disallowed on the basis that reinstatement was not possible as a matter of law and as regards the other claim, sufficient notice pay had been given to the servants. In the present case, it would be seen that the Respondent has been terminated on the ground of misconduct for which she has claimed reinstatement in service as well as damages suffered due to mental agony etc. As observed above, their cannot be any question of reinstatement per settled law. However, she could certainly claim for mental agony, loss of reputation and personal humilitation etc, if the termination was unjustified. In the recent case of Irshad Jehan V/s. PNSC (1999 CLC 192) a Learned Single Judge also came to the same conclusion viz-a-viz. such claim and the suit was accordingly decreed in favour of the dismissed servant. Similarly, in the case of Sufi Muhammad Ishaque v/s The Metropolitan Corporation Lahore (PLD 1996 SC 737) the Hon'ble Supreme Court was also of the view that an action can be brought in Tort for mental torture and nervous shock suffered due to the wrongful act of the Defendant. In so far as the case of ABN-AMRO Bank v/s Wasim Dar (supra) is concerned, with respect, for the foregoing reasons, I cannot persuade myself to agree with a Learned Single Judge of the Lahore High Court, who came to the conclusion that under any circumstances, in a master and servant situation, damages could never be awarded for loss of reputation, mental torture and agony, the only legitimate claim would be for salary and other benefits accumulated by the servant in his tenure of service upon dismissal.

1. The upshot of the above discussion is that this Revision is dismissed. The order passed by the learned Appellate Court is upheld. The matter is remanded back to the learned Civil Court to be adjudicated on merits in so far as the Respondent's claim for mental shock etc. is concerned. The plaint shall accordingly be amended to reflect only such claim.

2. Revision Application stands disposed of.

(J.R.) . Revision dismissed

PLJ 2004 Karachi 34

[Circuit Court Larkana]

Present: GULZAR AHMED, J. MUSLIM COMMERCIAL BANK LTD. through its ATTORNEY-Appellant

versus

IQBAL ALI--Respondent

Labour Appeal No. 1 of 2003, decided on 4.6.2004. (i) Criminal Procedure Code, 1898 (V of1898)--

—-S. 249-A--Service Matter—Held : There was no impediment in taking of disciplinary action by appellant/banking company against respondent/ employee even though he may have been acquitted from Criminal charge U/s. 249-A. [P. 41] D

(ii) Industrial Relations Ordinance, 1969--

-—Ss. 37(3) & 25-A-Respondent earlier in appellant/bank was charged of misconduct and misappropriation of huge amount of Us. 2 million from bank-Dismissal from service after conclusion of enquiry report-­Departmental appeal was also dismissed-His grievance petition was accepted by Labour Court ordering his reinstatement-Challenge to-Appreciation of evidence-Held : Admittedly respondent was sent for collection of cash amount of Rs. 35 million from bank at Sukkur-He had signed debt vouchers and also cash movement register—Afterwards instead of handing over cash to the Chief cashier-He himself took cash to the strong room—Thereafter cash had been found short upto Rs. 2 millions-Record showed that respondent had been inconsistent in his explanation to different forums, which made his stand doubtful. These factors proved his charge, as cash in his custody could not be accepted to have vanished without reason-Held : Labour Court misread record so impugned judgment was not sustainable under law-High Court set aside impugned order by restoring his dismissal order.

[Pp. 39 & 40] B & C

(iii) Industrial Relations Ordinance, 1969-

—S. 25-A—Grievance notice—Respondent had given grievance notice-Respondent had given grievance notice addressing not only the President of Bank but also to its Regional Manager, General Manager and H.R.D. Head Office Karachi-Held: It was a proper notice under S. 25-A. [P. 37] A

(iv) Master and Serviint-

—Held : Record of enquiry is not supplied to accused employee by employer as there is no such provision existing in law. [P. 41] E

Mr Shahid 'Anwar Bajwa, Advocate for Appellant. Mr. Abdul Hameed Khan, Advocate for Respondent. Dates of hearing : 21.4.2004, 19.5.2004 and 28.5.2004. judgment

This is a labour appeal under Section 37(3) of the Industrial Relations Ordinance, 1969 filed by the appellant against the judgment dated 26.6.2000 passed by the learned Presiding Officer of Sindh Labour Court No. VIII, Larkana by which the order of dismissal of respondent has been set aside and he has been directed to be reinstated in service with all back benefits from the date.of his dismissal.

The facts in brief are that the appellant is a Banking Company which interalia h'as a Branch by the name of Anaj Mandi Branch^ Larkana. Respondent was employed as Cashier in the said branch. A charge sheet dated 5.2.1999 was issued to him in respect of certain misconduct. The charge sheet was replied by the respondent vide his letter dated 3.3.1999. The appellant did not find the reply of the respondent satisfactory and constituted a domestic enquiry and appointed Mr. Muhammad Usman Mallah, AVP/Manager B/0, Dadu as enquiry officer. The inquiry was conducted in which the respondent participated. At the conclusion of the inquiry, the inquiry officer submitted his report dated 14.4.1999 finding the respondent guilty of the charges. On the basis of inquiry report, the appellant vide letter dated 17.4.1999 dismissed the respondent from its service. Against his dismissal, the respondent filed departmental appeal which was dismissed by the appellant vide letter dated 28,7.1999. The respondent then served a grievance notice dated 5.9 1999 and receiving no reply filed grievance petition under Section 25-A of the I.R.O. in the Labour Court No. VIII, at Larkana with a prayer for reinstatement with full back benefits. The appellant contested the grievance petition and filed its legal objections and reply statement. The respondent filed his affidavit-in-evidence, on which he was cross examined by the appellant's counsel. Thereafter the appellant filed affidavit-in-evidence of its three witnesses one of Muhammad Usman Mallah, enquiry officer second of Akhtar Hussain Khichi and third of Ghulam Akbar Memon Officer/attorney. All t-he appellant's witnesses were cross examined by the respondent counsel. After hearing arguments of the advocate of the parties, the Labour Court passed the judgment, which is impugned in this appeal. It may be noted that against the impugned judgment, the appeal was filed in the Sindh Labour Appellate Tribunal who gave decision dated 12.4.2002 which was challenged by the respondent vide C.P.D-203/2002, in which order dated 3.4.2003 was passed by which the decision of the Tribunal was set aside by consent and the appeal in terms of Section 80(2) of IRQ 2002 was transferred to the High Court.

!t is contended by the lourr.sd counsel for the appellant that the case against the respondent was that he was sent for the collection of cash from

Marich Bazar, Branch, Sukkur from where the respondent admittedly collected Rs. 35 million. He has further contended that while the respondent brought the cash to the Anaj Mandi Branch, Larkana but instead of handing over the cash to the Chief Cashier, he himself took the cash to the strong room and himself started disbursing the amount from it and subsequently announced that there was shortage of Rs. 2 million from the cash brought by him from Sukkur. He states that the fact of shortage is admitted except that the respondent in the first instance gave explanation that while disbursing the amount of Rs. 15 million to Shahdadkot Branch he may have paid excess amount or he may have been paid short amount by Marich Bazar Branch, Sukkur. He stated that in his letter dated 3.3.1999 which was in reply to the Charge sheet, respondent has made a categorical statement that staff of Marich Bazar Branch has played fraud with him in not paying the missing amount and in his statement in domestic enquiry he has specifically stated that Chief Cashier of Marich Bazar Branch Sukkur has paid him Rs. 20,00,000/- short but after dismissal respondent changed his stand and implicated Akhtar Hussain Khichi of taking away of Rs. 20,00,000/- from strong room while respondent was counting the cash. He states that the respondent after bringing the cash of Rs. 35 million from Sukkur did not hand over the same to the Chief Cashier as he was required to do and announced the shortage of Rs. 2 million from the cash brought by him from Sukkur while the cash was still in his custody. Thus, the case of embezzlement of Rs. 2 million was made out against the respondent as he also signed fraud and forgery voucher of Rs. 2 million dated 8.2.1999 and the learned Labour Court has all together based its finding on misreading of evidence and on mere presumptions. He has also taken a preliminary objection to the maintainability of the grievance notice that it was not sent to the appointing authority of the respondent and in this respect relied upon the case ofKhushhal Khan v. M.C.B. Ltd. (2002 SCMR 943). He has further contended that though the respondent was acquitted of the criminal charge under Section 249-A, Cr.P.C. by the Special Court (Offences in Bank), Karachi, but such order of acquittal does not per se apply to the disciplinary proceedings. In support of this submission, he relied upon the case of MCB Ltd. v. Abdul Jabbar (2001 PLC 721). He further contended that in the domestic enquiry, the appellant produced as many as 7 witnesses who were cross examined by the respondent except one Aftab Ahmed Mahessar to whom the respondent on his own volition did «ot cross examine. On the question of the competency of this appeal, he has cited the case of H.M. Shami & Company, Karachi v. Wazir Alt Industries, Karachi (P.L.D. 1969 S.C. 65).

On the other hand Mr. Abdul Hameed Khan, learned counsel appearing for the respondent has contended that the appeal is incompetently filed and has relied upon the case of Khalid Saeed v. Shamim Rizwan (2003 SCMR 1505). He has further contended that grievance notice was validly given by the respondent and there is no illegality in it. In support, he has relied upon the case ofMazharAli v. Federation of Pakistan (1992 PLC 415).

He further contended that the cash of Rs. 35 million brought by the respondent from Sukkur was handed over by him to the Bank, which is supported by documents and so far the question of disbursing the amount by the respondent is concerned, he stated that he disbursed the amount of Rs. 15 million on feeding voucher received from Shahdadkot Branch and the amount of Rs. 2 million which he had kept aside for Lalu Ranwak Branch was taken away by Akhtar Hussain Khichi. He stated that no embezzlement was committed by the respondent who was also acquitted from such charge by the Special Court (Offences in Bank), Karachi. With regard to signing of fraud and forgeiy voucher of Rs. 20,00,000/- dated 8.2.1999, the learned counsel stated that the respondent in his evidence in Labour Court has said that he signed this voucher considering it to be TA/DA voucher. He has further stated that written statement of the witnesses was filed by the appellant before the enquiry officer and the enquiry officer did not supply copies of such written statement to the respondent, but only read over these statements to the respondent which was against the rules of enquiry. In support of his submission, he has relied upon the cases of Muhammad Zaman v. Muhammad Farooq Textiles Mills Ltd. 1987 PLC 581, Nazir Ahmed and another v. Muslim Commercial Bank Ltd. & others SBLR 2003 Sindh 1482, National Bank of Pakistan Punjab Labour Appellate Tribunal 1992 PLC 415 and Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal Lahore 1973 SCMR 455. He has stated that there is no illegality in the impugned judgment and the appeal may be dismissed.

I have considered the argument of the learned counsel and • have gone through the record.

So far the legal objection about the maintainability of the appeal taken by the learned counsel for the respondent, the same may be disposed of by observing that the appeal has been filed by attorney of the Bank. The photo stat copy of power of attorney has been filed which shows that the attorney was competent to commence all actions suit or legal proceedings for the Bank. The appeal is therefore found to be maintainable. So far objection of the learned counsel for the appellant that the grievance notice was not in accordance with Section 25-A of the Industrial Relation Ordinance, 1969 and reliance on Khushkhal Khan case (supra), it may be noted that the respondent has given grievance notice dated 5.9.1999 which he has addressed not only to the President of the appellant Bank but also to Muhammad Rafique Dosani Regional Manager, Khalil Ahmed Baloch General Manager Sukkur and Ghulam Rasool Khan, HRD, Head Office Karachi. No illegality in the grievance notice is therefore found and even otherwise the cited judgment has no application to the case.

Now it is admitted position that respondent was sent to Marich Bazar Branch. Sukkur for Collection of cash and from there he collected cash amount of Rs. 35.00 million for bringing it to the Anaj Mandi Branch, Larkana. While collecting cash from Sukkur, the respondent signed debt

vouchers and also cash movement register for the amount of Rs. 35.00 million this fact is admitted. The respondent brought the cash to the Anaj Mandi Branch, Larkana and instead of handing over it to the Chief Cashier, the respondent look the cash himself to the strong room of the Anaj Mandi, Branch, Larkana From there the respondent himself disbursed from the said cash an amount of Rs 15.00 million to Aftab Mahesar for remitting it to the Shahdadkot Branch of the Bank and also paid an amount of Rs. 1.00 million to the Chief Cashier this fact is also admitted. Subsequently while the cash was still in the hands of the respondent, he announced that there was shortage of Rs. 2.00 million in the cash brought by him from Sukkur. The respondent then speculated was that he may have paid excess amount foi renntr'.'••£ to the Sbahdodkot Branch or he may have received short payment from Sukkur. However the respondent on 8.2.1999 signed a fraud and forgery voucher of Rs. 2.00 million in respect of cash brought by him from Sukkur. The signing of voucher is not disputed except that the respondent in his cross examination before the Labour Court stated that he has signed such voucher considering it to be T.A./D.A. voucher. In his reply dated 3.3.1999 to the charge sheet, the respondent has alleged as follows:--'

"The true fact is that the Marich Bazar Branch Staff has played fraud and concealed the missing amount and that was why they did not allow me to count it properly and themselves put it in bags and tied the same and got it put in the Van".

After the receipt of the above letter of the respondent domestic enquiry was conducted in which from the side of the appellant besides management representative six more witnesses were produced and among them, the respondent cross examined all except Aftab Ahmed Mahesar. The last name witness was not cross-examined by the respondent at his own choice. Among the witnesses produced by the appellant in enquiiy was also Akhtar Hussain Khichi. The respondent thereafter recordent his own statement in enquiiy and he was cross examined by the management representative. During the whole proceeding of the enquiry the respondent did not utter a word that the amount of Rs. 2.00 million was taken away by Akhtai Hussain Khichi nor any such question was put by him to Akhtar Hussain Khichi who was cross examined by him in the enquiiy. The enquiiy officer in his report found the respondent guilty of the misconduct on which the respondent was dismissed from Bank service vide letter dated 17.4.1999. Against his dismissal, respondent filed departmental appeal in which he gave up the plea that fraud has been committed against him by the staff of Marich Bazar Branch, Sukkur but instead referring to the rough cash book maintained by the Chief Cashier dated 6.2.1999 showing non payment of Rs. 2,00 million stated that the said Chief Cashier namely Akhtar Hussain Khichi has misappropriated the amount of Rs. 2.00 million of feeding cash. He also referred to the cash book closed on 8.2.1999 by the Chief Cashier showing closing balance of the day of Rs. 36.400 million while in the rough cash book it is mentioned as Rs. 38.400 million and thus stated that Chief

Cashier, Akhtar Hussain Khichi has embezzled the amount of Rs. 2.00 million. In his grievance notice dated 5.9.1999 he came up with new plea which is as follows :

"That during the FIA proceedings, I requested them to obtain the rough cash book of Chief Cashier for 8.2.1999 and they were pleased to obtain it with great difficulty alongwith other documents, and provided me photo copies thereof. On receipt of these documents I came to know that Rs. 20,00,000.00 (In 1000 rupees notes) kept aside for Lalu Ranwak Branch were also taken away by Chief Cashier alongwith Rs. 10,00,000.00 obtained by him for payment in Branch while I was thinking that this amount for Lalu Ranwak Branch was there while I counted the remaining cash."

The respondent then filed grievance petition which was contested by the appellants. The respondent in his evidence before the Labour Court maintained what he has stated in the grievance notice. Incidentally the appellant has also produced Akhtar Hussain Khichi in evidence before the Labour Court. He stated in his affidavit in evidence that he was paid by the Respondent Rs. 1.00 million only and that the respondent has signed a voucher of fraud and forgery of Rs. 2.00 million. In his cross examination he was not suggested that he took away from the strong room the amount of Rs. 2.00 million. Respondents counsel cross examined this witness on matters pertaining to the maintenance of rough cash book by him and the dealings conducted by him on the counter on that day. No suggestion was made to this witness that the entries in the rough cash book or his dealing on the counter had any thing to alongwith the cash brought by the respondent from Sukkur. In the face of the above evidence on the record, where it is admitted fact that the respondent has not delivered the cash to the Chief Cashier on bringing it from Sukkur and instead the respondent himself having taken the cash to the strong room and made disbursements them it one of Rs. 15.00 million for Shahdadkot Branch and the other of Rs. 1.00 million to the Chief Cashier and thereafter having announced shortage of Rs. 2.00 million, and then having signed voucher of fraud and forgery of Rs. 2.00 million and thereafter taking four different stand to explain the shortage of Rs. 2.00 million i.e. of excess payment to Shahdadkot Branch of having received short payment of Rs. 2.00 million from Marich Bazar Branch, Sukkur and thereafter categorically implicating the staff of Marich Bazar Branch Sukkur and then in his appeal against dismissal implicating Akthar Hussain Khichi on the basis of rough cash book of 6.2.1999 and 8.2.1999 and thereafter in his grievance notice alleging that the said Akhtar Hussain might have taken away from the strong room Rs. 2.00 million which he has kept for feeding to Lalu Ranwak Branch apparently

shows that the respondent has altogether been inconsistent in his explanation and changing grounds at his convenience from time to time rendering his versions open to serious doubts. The fact that the respondent has made no suggestion to the said Akhtar Hussain Khichi in his cross examination that he has taken away from the strong room the amount of Rs. 2.00 million further strengthen the doubts about the correctness of his version. Further, the respondent in his cross examination before the Labour Court has stated that he has signed fraud and forgery voucher of Rs. 2.00 million on 8.2.1999 considering it to be T.A./D.A. voucher is a false statement as the respondent in his statement in domestic enquiry has admitted having signed cash shortage voucher. The respondent in his evidence before the enquiry officer has admitted that he was promoted as Cashier on 1.1.1995 and since then he has done the job of bringing cash to the Anaj Mandi Branch Larkana many times. All these factors inescapably leads to the conclusion that the respondent did misappropriate the amount of Rs. 2.00 million from the cash of Rs. 35.00 million brought by him from - Marich Bazar Branch Sukkur on 8.2.1999 as he admittedly did not give to the Bank the amount of Rs. 2.00 million nor did he give any satisfactory reason for not doing so. The amount of Rs. 2.00 million in the hands of the 'respondent cannot be accepted to have vanished without reason which could not be other then the respondent has kept the said money with himself.

The learned Labour Court in its judgment has believed the version of the respondent that Akhtar Hussain Khichi has taken away from the respondent amount of Rs. 2.00 million kept by him for feeding to Lalu Ranwak Branch and thus decided the matter in favour of respondent. It may be stated that the Labour Court has failed to examine the evidence on record that respondent has been shifting grounds and that the said Akhtar Hussain Khichi appeared before the Labour Court for his evidence but no suggestion was made to him that he has taken away the amount of Rs. 2.00 million from the respondent. Further respondent has made false statement in his cross examination that he has sigaed fraud and forgery voucher considering it to be T.A./D.A. voucher. All the material evidence on the record seems to have been over looked or misread by the Labour Court. The finding thus recorded by the Labour Court in this regard is therefore not supported by any evidence on the record.

In the case of Mi:dim Commercial Bank Limited v. Abdul Jabbar, the llon'ble Supreme Court o!'Pakistan at, page 727 has made the following observation :

"The Labour Court has observed that the competent authority may proceed against the respondent afresh if grounds are available by

initiating fresh disciplinary proceedings against which exception has been taken by the learned counsel for the respondent. He relied upon two judgments reported as the The Vice-President (Admn.), National Bank of Pakistan and others v. Basharat Ali and others (1996 SCMR 201) and Attaullah Sheikh v. WAPDA and others (2001 SCMR 69) to argue that in a case where an employee was acquitted in a criminal case, no useful purpose would be served to proceed against him departmentally. Each case is to be decided on its own merits. In the present case, respondent might have been acquitted from the criminal charges of actually sharing the mens rea i.e. criminal act of defalcation and sharing the money subject matter of the criminal case but being Cashier, he might be found to be negligent or not vigilant otherwise in discharge of his duties on account of which the happening of the said incident could be prevented or avoided for which he may be proceeded against through disciplinary proceedings, therefore, the observations made by the Labour Court that the petitioner may proceed if sufficient material is available against the respondent departmentally does not suffer from any illegality."

Thus there was no impediment in taking of disciplinary action by the appellant against the respondent even though the respondent may have been acquitted from the criminal charge under Section 249-A, Cr.P.C. The objection of the learned counsel for the respondent that the respondent was not given copies of the statement of witnesses produced during the enquiry or that he was not supplied copy of enquiry record is devoid of any substance. In the first place the record of enquiry so also the evidence of enquiry officer before the Labour Court shows that the statement of witnesses who appeared from the appellant side were duly read over to the respondent and thereafter he cross examined the witness and that he did not ask for supplying of copies of statement nur he raised any objection in this regard. Respondent has admitted in his evidence that he has signed each page of the enquiry proceeding. It is established law that record of enquiry is not supplied by the employer to the accused employee as there is no provision in law obliging the employer to do so.

In view of the above discussion, the appeal is allowed and the judgment dated 26.6.2000 of the learned Labour Court is set aside and the grievance petition of the respondent is dismissed and order dismissing the respondent from service is maintained, (J.R.) Appeal accepted

PLJ 2004 Karachi 42

Present: MUHAMMAD MUJEEBULLAH SlDDIQUI, J. MUSLIM COMMERCIAL BANK LTD.-Appellant

versus

MEHMOOD HUSSAIN LARIK-Respondent Labour Appeal No. 1 of 2004, decided on 30.3.2004. Industrial Relations Ordinance, 2002--

-—Ss. 47(3), 48-Industrial Relation Ordinance, 1969, S. 25-A-Labour appeal allowed-Admittedly-Respondent was appointed as officer in Grade III and was working as accountant-Question of-Burden of proof that he was a workman, was or respondent—Failed to discharge the burden—According to the evidence on record, respondent was not working in supervisory position but was doing the clerical work-No documentary or oral evidence was produced by respondent in support of this contention-Finding of the Labour Court that the respondent was a workman, not sustained with the evidence on record-Impugned judgment of Labour Court set aside—Appeal allowed. [P. 46] A & B

2000 PLC 585; PLJ 1993 SC 221; 1993 SCMR 488 and 1979 SCMR 304.

Mr. Mehmood Abdul Ghani, Advocate for Appellant. Mr. Manzoor Ahmad Sheikh, Advocate for Respondent. Date of hearing : 30.3.2004.

judgment

This appeal under Section 47(3) read with Section 48 of the Industrial Relation Ordinance, 2002, has been filed against the order dated 24th December 2003, passed by learned Presiding Officer Labour Court No. VI Hyderabad, on an application under Section 25-A I.R.O. 1949, whereby the application has been allowed and the respondent has been directed to be reinstated in service with back benefits.

The relevant facts are that the respondent was appointed as Officer Grade III on 12.3.1989, in Muslim Commercial Bank Ltd. While he was working as Accountant at the Muslim Commercial Bank Kotri Branch, he was charge-sheeted on 18.9.1997 with the allegation of mis-appropriation of different amounts. The respondent replied the charge sheet which was not found satisfactory and Enquiry Officer was appointed to hold the enquiry. An enquiry was duly held and the Enquiry Officer held that the charges were proved, hence the respondent was dismissed from service. The respondent preferred to appeal with General Manager of Muslim Commercial Bank and served a grievance notice on the Regional Manager of Muslim Commercial Bank on 18.4.1998. Thereafter, the respondent approached the Labour Court with the application under Section 25-A I.R.O.

1. The appellant raised several objections to the maintainability of the application. It was contended, inter-alia, that the respondent was not a workman but was an officer grade III and therefore the application under Section 25-A of I.R.O.1969, was not maintainable.

The respondent examined himself only in evidence. No other witness was examined by him and no record was called. He then closed his side.

Appellant Bank examined Muhammad Naeem Abro Enquiry Officer and Assistant Vice President of the appellant Bank filed his affidavit in evidence. Mr. Zafar Alam Baig Senior Vice President and General Manager of the appellant Bank also filed his affidavit in evidence. He produced copy of Muster Roll and Pay Roll showing that the respondent was working as Accountant. He further produced copy of revised scale of pay and allowances to show that respondent was an officer and was working in supervisory capacity and was not a workman.

The learned Labour Court framed the following points for consideration:-

1. Whether the petition is not maintainable under the law?

2. Whether the petitioner is entitled to the relief claimed?

3. What should the order be?

While considering the status of the respondent, the learned Labour Court observed that it is an admitted fact that respondent Muhammad Hussain Larik was Garde III officer of the Bank. The learned Labour Court further observed as follows :

9...... Now it is well settled law that the test of determination of

question whether an employee is a workman within the meaning of various statute in the field of labour legislation only the nature of the work done by the employee would be essential and fundamental consideration for determining the question regarding his status as a workman and his designation has no any effect and cannot be treated as conclusion for that purpose. The Honable Supreme Court further held that neither the designation nor the amount of salary was factor for determining the employee to be a workman or not, but exactly the criteria was the work which the employee is doing at the time of termination of his service. Thus the actual nature of work is a deciding factor to determine the status of employee regardless of designation given by the employer to him. As some time even the designation is a decorative and does not enhance the status of the employee. For the above views the reliance is placed on a case reported as 2000 P.L.C. 585. From the above it is clear that mere the fact that petitioner was Officer Grade-Ill will not debar him from

filing petition, if he was doing the manual or clerical work at the time of termination of his service.....

After making the above observation the learned Labour Court examined the factual position and held that there was evidence on record that respondent Muhammad Hussain Larik was not working in any supervisory position but was doing the clerical work and was not having supervisory duty over the staff, therefore, he was a workman. He placed reliance on several judgment in which it was held that where an officer in Grade-Ill in the Bank was performing duties of clerical nature and not of supervisory nature he was a workman. The learned Labour Court further held that the respondent Muhammad Hussain Larik an Officer in Grade-Ill was performing the clerical duties and some other Managers were holding the charge of the branches, therefore, he was doing clerical nature of work assigned to him by respective Managers and he was a workman. He, therefore, held that the Labour Court had jurisdiction to entertain the petition. The learned Labour Court thereafter discussed the merits and held that the dismissal of the respondent was not sustainable. The order of dismissal was, therefore, set-aside and the respondent was ordered to be reinstated, in service with all the back benefits.

With the consent of learned advocates for the parties the entire appeal was heard at the Katcha Pashi stage and was finally disposed of.

Mr. Mehmood Abdul Ghani, learned counsel for the appellant has submitted that there can be no cavil to the proposition contained in the observation of learned Labour Court that the test of determination of question whether an employee or a workman is the nature of work done by the employee and a mere designation is not the determining factor. He has however, vehemently argued that the learned Labour Court has conveniently ignored the suggestions made by the respondent in the cross-examination of the respondent. He has taken me through the cross-examination of the respondent in which he has admitted that his duty was to maintain Ledger Book, Pay Order and Cheque Book. He has further conceded that the Accounts Section comes under the charge of Accountant. The respondent has further conceded in the cross-examination that in the Branches of Muslim Commercial Bank managerial and supervisory work is being done by the Manager of Officer Grade-I, II and III. Mr. Mehmood Abdul Ghani has submitted that in view of admitted fact that the respondent was appointed as Officer in Grade-Ill and was working as Accountant the burden was on respondent to establish by documentary or oral evidence that he was not performing supervisory duties and was in fact performing the clerical and manual duties. Respondent has neither called any record in this behalf nor has produced any oral evidence and, therefore, has failed to discharge the burden. In support of his contention Mr. Mehmood Abdul Ghani has placed reliance on the Judgment of Honourable Supreme Court in the case of National Bank of Pakistan v. Punjab Labour Court No. V (PLJ

1993 SC 221) wherein after referring the earlier decisions of the Supreme Court it was held as follows:

"11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted.

In this Judgment Honourable Supreme Court has held that the employee was an Officer in Grade-II and it is well settled proposition of law that a person who approaches a Court on the basis of averment that he is a workman within the definition of clause (xxviii) of Section 2 of l.R.O., the burden of proof lies on him and not on the employer. It was further held by the Honourable Supreme Court that the employee failed to discharge the burden of proof that he was workman and therefore, his petition under Section 25-A of the l.R.O. was liable to be dismissed. Some view was taken by another Bench of Honourable Supreme Court in the case of Managing Director Shahi bottlers v. Punjab Labour Appellate Tribunal (1993 S.C.M.R. 488). In this case the Honourable Supreme Court has held that the burden was on employee to prove that he was workman and performed purely clerical and manual duties as was claimed by him. The Honourable Supreme Court further observed that it was incumbent upon the employee to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention. The Honourable Supreme Court held that the employee failed to discharge the burden and consequently the application under Section 25-A was dismissed for the reason that the employee was not a workman.

On the other hand Mr. Manzoor Ahmed Shaikh, learned counsel for respondent submitted that admittedly the respondent was working as an Accountant and it has been held by the Honourable Supreme Court that even a Chief Accountant having no supervisory functions to perform, was a workman. He placed reliance on the case of Dost Muhammad Cotton Mills v. Muhammad Abdul Gham (1979 S.C,M.R. 304). The learned counsel was asked whether any documentary or oral evidence was produced by the respondent in1 support of his contention that although he was appointed as

Officer in Grade-Ill but he was not performing the supervisory duties and was performing the duties which were clerical and manual in nature. The learned counsel has candidly stated that the respondent examined himself only and produced no other documentary or oral evidence.

Exercising the right of rebuttal Mr. Mehmood Abdul Ghani has submitted that the Honourable Supreme Court in the case of National Bank of Pakistan v. Punjab Labour Court No. V (supra) considered its judgment in the case of Dost Muhammad Cotton Mills delivered in the year 1975, and held that the status of an employee was to be determined on the basis of his actual duties performed and the burden was on the workman to prove this question of fact. In the absence of any evidence it was not for the employer to disprove the fact.

I have carefully considered the facts obtaining on record and the contentions raised by the learned advocates for the parties. It is admitted position that the respondent was appointed as Officer in Grade-Ill and he was working as Accountant. Thus in these circumstances, the burden was on the respondent to prove that notwithstanding the fact that his designation was of Officer Grade-Ill and he was drawing a salary of Rs. 15.000/- p.m. but actually he was performing duties which were clerical and manual in nature and were not supervisory, as held by the Honourable Supreme Court in the Judgments referred to above. Admittedly the respondent has failed to discharge the burden and I am constrained to observe that the observation of learned Labour Court that it has come on record through evidence that respondent Muhammad Hussain Larik was not working in any supervisory position, but was doing the clerical work and was not having supervisory duty over the staff, is a figment of imagination and is not based on the evidence on record. The learned counsel for the respondent has frankly conceded that no documentary or oral evidence was produced by the respondent in support of his contention and there was sole word of the respondent on the record.

I am fully satisfied that the finding of the learned Labour Court that the respondent was a workman is not substantiated with the evidence on record consequently the application under Section 25-A of the I.R.O. 1969 s was liable to be dismissed. The impugned judgment of the learned Labour Court No. VI Hyderabad, is hereby set-aside. The appeal is allowed • accordingly.

After hearing learned advocates for the parties on 30.3.2004, the appeal was allowed by a short order. These are the detailed reasons in support thereof.

(A.A.) Appeal allowed

PLJ 2004 Karachi 47

Present:ZAHID KURBAN ALAVI, J.

AL-SAJID & CO., DISTT. GHOTKI through its PROPRIETOR and another-Applicant

versus

ABDUL JABBAR and 11 others-Respondents R.As. Nos. 1 & 2 of 2003, decided on 21.1.2004. Industrial Relation Ordinance, 2002

—S. 25-A--Grievance petition-Maintainability-Grievance petition filed earli£r by respondents through union, was dismissed-Respondents would be stopped from re-agitating the same issue by filing fresh grievance application-out of 13 respondents only 5 have not complied with direction of petitioners—Rest having already complied with direction of petitioners have no grievance-Grievance petition was also barred by limitation-Respondents having not shown that their dismissal was in respect of any Industrial dispute, grievance petition filed by them was not maintainable-Respondents have failed to show delay of each day- Condonation of delay was thus, not warranted-Order of Presiding Officer to effect that grievance petition was maintainable was set aside and the same was dismissed. [P. 51] A

NLE1993 TD (Labour) 26; 1996 PLC 26; 1983 PLC 210; 1973 PLC 297; 1993 PLC 106; PLD 1963 SC 322; 2001 SCMR 1928; 2001 SCMR 1935; 1992 \ SCMR 42; PLD 1995 SC 399; PLD 1991 SC 400; PLD 1991 SC 407; 1986 SCMR 1257; 1982 SCMR 286; 1975 SCMR 304; 1975 SCMR 305 and

1998 PLC 331 ref.

Mr. Mehmood Ghani Iqbal, Advocate for Applicant. Mr. Shabeer Qureshi, Advocate for Respondents. Date of hearing : 21.1.2004.

judgment

This revision application has been filed against the order dated 16.8.2000 passed by the Presiding Officer. As per this impugned order, the Presiding Officer has held that the Application No. 1 of 2000 under Section 25-A (1) of I.R.O. is maintainable.

According to the counsel for the applicant the brief facts of the case are that the applicant is a sole proprietorship Company engaged in the business of contracting, loading and handling of products in certain specified area of Angro Chemical Pakistan Limited at their Fertilizer Plant located at Deharki. To that extent a agreement was entered into between the applicant and Angro Chemical Pakistan Limited. The agreement expired on 30.4.1998 whereafter it was extended for a period of two months to the 30.6.1998.

(Zahid Kurban Alvi, J.)

In order to execute the contract so awarded, 99 workers were employed whose salary was being paid and were under the control and supervision of the applicant. The applicant decided to terminate the contract and a letter was issued by the applicant to the Angro Chemical Pakistan Limited. They also decided to close down the business with effect from

20.6.1998. The Angro Chemical Pakistan Limited accepted the termination and agreed that the services shall not he provided effective 21.6.1998. Each of the workers were issued letters of termination and reason was specified. The salary in lieu of one month's notice was also given. .Since the workers refused to accept the letter therefore, they were sent c/o. Union and also by a registered A/D. Copies were also sent to the Directive of the Labour. Since it was decided to close down the business, therefore a Application No. 1 of 1998 Standing Order 11-A of the West Pakistan Industrial and Commercial Employment Standing Orders, Ordinance 1968 was also instituted before the Vllth Labour Court on 27.6.1998. From 99 workers, 86 workers accepted the dis-continuation of the service. Remaining 13 persons filed Case No. 3 of 1J998 under Section 34 of the I.R.O. before the Vth Sindh Labour Court, Sukkur. Thereafter this case was dismissed and a case was also preferred under Section 25-A (10), which was also dismissed. A appeal was preferred, which was dismissed by the Sindh Labour Appellate Tribunal by order dated

10.9.1998. Thereafter 7 person cleared the dues.

Then with malafideintention, 13 persons (including 7 who had cleared the dues) started litigation again and issued afresh notice of grievance dated 15.3.2000. The reply was given and it was pointed out that twice the issue had been resolved by the Sindh Labour Court and Sindh Appellate Tribunal. Thereafter Case No. 1 of 2000 was filed under Section 25-A (10) once again before the Sindh Labour Court (VII), Sukkur. The grievous petition was also filed vvhere the applicant was made a party alongwith Angro Chemical Pakistan and Qadir & Company. Preliminary objections were filed and the matter was fixed for arguments. However, the Vth Labour Court, Sukkur observed that the Respondent No. 3 justifying an embargo in the third round of litigation and without recording of evidence gave finding on facts. He also dismissed the application filed by the applicant. However^-the legality and propriety of the impugned order was challenged before the Sindh Labour Appellate Tribunal, who granted the stay. Thereafter, the IRQ, 1969 was repealed and IRQ 2002 was promulgated. A Appellate powers were given to the High Court in terms of Section 48 IRO 2002 and the Revisional Powers were given under Section 48(3) in IRO 2002 that is the reasons why this matter is fixed before this Court.

The respondents being members of Angro Chemical bargaining Contractors Mazdoor Union entered into a settlement when wherein it was agreed that the case pertaining to grant of permission in II-A of the Standing Order be disposed of in terms of settlement. The Sindh Labour Appellate Tribunal passed a order disposing of the matter pending before it. This order up-till date has not been challenged and therefore, it has attained finality.

The applicants have also pointed out that under Section 48(3) of 2002 the High Court has rovisional powers to examine correctness, legality, propriety of any order passed by the Labour Court Hence through this Revision Application, the applicant is seeking this Courts indulgence in getting a finding on the impugned order as to whether it is correct, legal and proper order, , The applicant along with the Revision Application has filed several documents, which narrate the entire story.

Before this, the matter could be heard, several orders were passed and notices were issued to the Respondents. The respondents were served to the respondents. The respondents were served through Mr. Shabeer Qureshi, advocate but it was objected that the notice should be sent directly to the labour through the Union Accordingly Office was directed to issue notice to the respondents at the address given. Notices where issued and duly served. This is evident from the tile. They were also served through the Civil Judge, Daharki, who has also placed on record a letter that the notices have been duly served upon the respondents.

Mr. Mahmood Abdul Ghani, learned counsel appearing for the applicant pointed out that the dues of the respondents, which were not cleared shall be deposited with the Additional Registrar, of this Court, who shall issue a notice and shall hand-over the same after due verification. According to him, once the dues are cleared it is a settled law that no grievance can be entertained under the law against the management.

The learned counsel has relied on several case laws in support of his arguments. In the case of Gulzar Khan vs. PTC etc., reported in NCR, 1993 TD (Labour) 26, it has been observed that the allegations of un-fair labour practice on part of employer without justifying the acts and circumstances would not amount to a case of un-fair labour practice under Section 22 A'(8)(g) of the IRO. According to the senior member who had passed his order the allegations is to be specified. Furthermore it was also held that after the first petition was dismissed as withdrawn then second petition between the same parties on the same cause of action was barred.

In the case of Natural Gas Fertilizer Factory, W.P.I.D.C. Multan Vs. Natural-Gas Fertilizer Factory Labour, Union. 1996 PLC 26, in this case it was observed that the policy of law has always been to confine the parties to one litigation and law has always been to continue the parties to one litigation and to discourage simultaneous entertaining and adjudicating upon two parallel litigation. In respect of the same cause of action, the same subject matter and the same relief. This is to obviate the possibility of two contradictory verdicts.

In the matter of Rehman vs. Sindh Labour Appellate Tribunal Karachi and two others 1983 PLC 210, the Division Bench of this Court it

B

was held that in grievous petition against the termination of service once the salaries and wages have been en-cashed by the Labour the right to invoke jurisdiction of Labour Court transfer the extinguishs. Similar point has been taken by a Division Bench in the case ofMqjeed Baig vs. Fatehy All Chemical Mills 1973 PLC 297.

In the case of Khizar Hayat vs. Pakistan Railways Karachi, 1993, PLC 106, whilst discussing application under Section 25-A it was held that jurisdiction of Labour Court can only be invoked by a worker who has to first bring his grievance to the notice of his employer in writing within three months from the cause of grievance, and unless this procedure is observed, the workmen cannot straightaway approach the Labour Court.

In the case of Nagina Silk Mill vs. The Income Tax Officer A Ward Lyallpur and another reported in PLD 1963 SC 322, the full bench of this Hon"ble Supreme Court of Pakistan Whilst discussing Income Tax matters and the relevant for assessment of income held that time once beginning to run never stops and is not extended unless legislature intervenes.

In the case of Board of Governors Aitchison College Lahore vs. Punjab Labour Appellate Tribunal and others, 2001 SCMR 1928, Division Bench of the Hon'ble Supreme Court has held that to invoke the jurisdiction of Presiding Officer, Labour Court an employer has to satisfy that he has worked as workmen either under West Pakistan Industrial and Commercial Employment Standing Orders Ordinance or IRO 1969. In the case of Abdul Sattar and another vs. Sui Northern Gas Pipelines Limited and others, reported in 2001 SGMR 1935, SC. In the case of Trustee of the Port of Karachi vs. Muhammad Saleem, reported in 1994 SCMR 2213, in the case of Karachi Pipe Mills Employees Union Karachi vs. Karachi Pipe Mills Ltd, Karachi reported in 1992 SCMR 36, in the case of Hakim Ali v. Muhammad Salim and another reported in 1992 SCMR 46, in the case of Abid Hussain and others vs. Aziz Fatima and others, reported in PLD 1995 SC 399, in the case of Cantonment Board Kharian Cantt through Executive Officer vs. Muhammad Shaft, reported in PLD 1991 SC 400, in the case of Mst. Iqbal Begum and another vs. Maqboolur Rehman, reported in PLD 1991 SC 407, in the case of Income Tax Officer, Company Circle XII Karachi vs. M/S. Shaikh Miran Bux Karam Bux of Mir Ajab Khan and another Vs. Ramzan and others reported in 1986 SCMR 1257, in the case of Muhammad Saeed and another vs. ShaukatAli, reported in 1982 SCMR 285, in the case ofAkbarAli Shah and 3 others vs. Muhammad Shah and 3 others, reported in 1982 SCMR 286, in the case of Muhammad Hussain & others vs. Settlement and Rehabilitation Commissioner and others, reported in 1975 SCMR 304, in the case of Yaqeen-uddin and others vs. Abdul Majid and others, reported in 1975 SCMR 305, in the case of Afghan National Bank vs. Haji Akhtar Ali Qazilbash and others, reported in 1998 PLC 331, and in the case of Municipal Corporation, Sialkot through the Administrator vs. Younis Masih and others reported in 1988 PLC 336.

The above facts and the case laws relied upon by the counsel for the applicant clearly establishes certain basic facts. It is clear that the 13 respondents having once filed the case through the Union and once the case having been dismissed are now stopped from re-agitating the same issue by filing a fresh grievance petition. It is also clear that out of the 13 persons only 5 have not cleared the dues. The rest have cleared the dues and therefore, have no grievance. It is also clear that the grievance petition is barred by limitation. The mandatory period had lapsed. It is settled that if the petition does not show that the dismissal was in respect of any industrial disputes then petition Under Section 25-A of the (10) IRO is not maintainable. It is also established from the record and based upon the case laws that the 13 persons who filed the petition before the Labour Court Under Section 25-A of IRO is could not do so as the said section is for enforcement of pre­determining and pre-existing right and not for determining right. It is, therefore, clear that the rights have to first exist and then alone can there be an application for enforcement. It is also settled that once the application is time barred then each day's delay has to be accounted for. The respondents have failed to do so. It is repeatedly observed by the High Court and the Hon'ble Supreme Court that not only the delay has to be explained but it is also mandatory that wherever the limitation is prescribed then that limitation has to be followed. The only ground on which the limitation can be excused is if the delay is explained.'In the instant case no ground have been shown for the delay in filing the original petition before the Labour Court. Based upon the facts and circumstances mentioned above and the plethora of case laws available on the subject by a short order the Revision Application; were allowed and the above are the reasons.

(A.A.) Revision allowed.

PLJ 2004 Karachi 51 (DB)

Present: shabbir ahmed and khilji arif hussain, JJ. MUHAMMAD AYUB KHAN and 3 others-Petitioners

versus MUHAMMAD FAROOQ TEXTILE MILLS LTD. and 2 others-Respondents

C.P. No. 404 of 1997, decided on 24.3.2004. Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—-S. 25-A~Constitution of Pakistan (1973), Art. 199-Dismissal of grievance petition by Labour Court and Labour Appellate Tribunal, assailed— Labour Court in post-remand proceedings, after discussing evidence on record had come to conclusion that dismissal of petitions was not only

legal and justifiable but also the same had been accepted by petitioners who had received their dues in full and final settlement of their claim- Such finding of fact having been affirmed by Labour Appellate Tribunal on basis of evidence on record could not be disturbed in exercise of writ jurisdiction. [P. 53] A

Raja Shamsuzaman, Advocate for Petitioners.

Mr. Mehmood Abdul Cham, Advocate for Respondent No. 1.

Date of hearing : 24.3.2004.

order

Petitioners by this Petition impugned Order dated 8.2.1996 passed by the IVth Sindh Labour Court at Karachi dismissing the Application of the Petitioners and Order dated 13.5.1996 dismissing the Appeal filed before the Sindh Labour Appellate Tribunal (hereinafter referred to as 'SLAT') at Karachi.

Brief facts for the purpose of disposing of the Petition are that the Petitioners were the permanent employees of the Respondent No. 1 Establishment and on 158.1986 Respondent No. 1 Charge Sheeted the Petitioners due to their unlawful trade activities and after holding an ex-pane inquiry dismissed them from service on 2.10,1985. The Petitioner after serving grievance notice filed grievance petition before Labour Court who allowed the Petition on 11.8.1987 and directed the Respondent No. 1 to pass fresh order after giving personal hearing to petitioners. Against the said order, petitioner preferred appeal which was dismissed in limine. The petitioners preferred Constitutional Petition No. D-692 of 1987 and this Court allowed the Petition and remanded the case to Tribunal to decide the appeal on merits after hearing the parties. The Appellate Tribunal set aside the Order passed by the Labour Court vide his order dated 19th November 1995 and remanded the case for fresh trial de novo to Labour Court. After remand of the matter to Labour Court the petitioners did not produce any further evidence and requested that the case may be decided on the basis of available evidence on record. The learned Labour Court by his order dated 8.2.1996 dismissed the grievance petition on the ground that the petitioners were dismissed from the service on 15.8.1987 in terms of Order dated 11.8.1987 and further that the petitioners have received their all dues after passing of the dismissal order and that there exist no relationship between the parties after the date of their dismissal. The Petitioners filed Appeal against the said Order which too was dismissed. On 13.5.1996.

Heard Mr. Raja Shamsuzaman, learned Advocate for the petitioners and Mr. Mahmood Abdul Ghani, learned Advocate for Respondent No. 1.

The learned Advocate for the petitioners mainly argued that both iht- Courts have committed error of law and facts in failing to take into consideration that the amount received by the petitioners pertain to their earned wages and not pertain to their dues which Petitioners were entitled received under law

On the other hand Mr. Mahmood Abdul Ghani, learned Advocate for Respondent No. argued that\ both Courts have recorded concurrent findings of facts that the petitioners had accepted the amount in satisfaction of their claims after the dismissal order passed on 15.8.1987 and such findings of facts cannot be disturbed in exercise of writ jurisdiction.

We have taken into consideration the arguments advanced by the learned Advocate for the parties and also gone through the records. From the record it appears that the petitioners have filed their grievance petition before the IVth Sindh Labour Court who vide his order dated 11.8.1987 reinstated the petitioner in the service however at the same time allowed the Respondent No. 1 to proceed with the domestic inquiry against the Petitioners. The petitioners aggrieved from the said Order filed Appeal before the SLAT and the learned Tribunal dismissed the Appeal and hold that the Order of re-instatement of the petitioners in service was erroneous. The petitioners filed Constitutional Petition No. D-962/1987 against the order passed.by Tribunal which was allowed by this Court on 1.4.1992 and matter was remanded to Tribunal for a fresh decision in accordance with law. The learned Labour Appellate Tribunal also remanded the matter to Labour Court for fresh de novo trial by his Order dated 19.11.1995. The learned Labour Court after discussing the evidence on record come to the conclusion that the dismissal of the petitioners on 15.8.1987 was not only legal and justifiable but also that the same has been accepted by the Petitioners as they have received their legal dues as full and final settlement of their claim. This finding of fact has been affirmed by the Labour Appellate Tribunal. We have carefully gone through the record but could not find anything that the amount which petitioners have received not pertain their claim but pertain to their 'earned wages as alleged by the petitioners before us. This finding of fact which has been recorded on the basis of evidence cannot be disturbed in exercise of writ jurisdiction.

For the foregoing reasons petition was dismissed in limine however with no order as to cost.

These are the reasons of our short order dated 24.3.2004. (A.A.) Petition dismissed

PLJ 2004 Karachi 54

Present: sabihuddin ahmed, J. MUHAMMAD SHAMIM ANSARI-Petitioner

versus

DR. MUHAMMAD QAMAR KHAN and another-Respondents C.P. No. 669 of 2002, decided on 8.12.2003.

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

—S. 18-Constitution of Pakistan (1973), Art. 199-Sale of property during subsistence of tenancy-Obligation of tenant to attorn to vendee in terms of S. 18 of the Ordinance of 1979--Extent of-When ownership of premises was transferred to another person, only then new owner could upon service of notice to tenant require him to attorn to him~Where vendee had acquired right to demand rent on account of his agreement with previous owners, obligation of tenant under S. 18 of the Ordinance of 1979 could only arise if actual ownership had been transferred through registered instrument-Sale-deed having been executed between previous and subsequent owner, status of latter had changed--Subsequent owner (petitioner) would have option to seek relief against tenant on any ground available to him under law, however, his constitutional petition was not maintainable. [Pp. 55 & 56] A & B

Mr. Aijaz Ahmad Khan, Advocate for Petitioner. Mr. Abdul Waheed Kanjo, Advocate for Respondents. Dates of hearing: 17.11.2003 and 8.12.2003.

judgment

The admitted facts appear to be that the Respondent No. 1 was the tenant in respect of a shop owned by one Noor Jehan Begum alongwith her son Rizwanullah and daughter Farhat Jehan Begum (collectly referred to as the previous owners). On 11.8.1994 the previous owners entered into an agreement of sale of the building where the premises was located with the petitioner. However, some how a registered sale-deed in favour of the petitioner was only executed on 3.5.2003 as is evident from the copy of said instrument placed on record today.

1. According to the petitioner soon after the agreement of sale he issued notice dated 22.8.1994 calling upon the Respondent No. 1 to pay rent to him. Another letter was addressed by the previous owner but 23.8.1994, requiring the aforesaid respondent to pay rent to the petitioner as the property had been soled to him.

2. Nevertheless it is admitted that rent for September and October, 1994 was deposited by the Respondent No. 1 in the Court of Rent Controller in the name of previous landlord from November 1994 onwards and started depositing rent in the joint names of the previous, landlords and the petitioner.

3. The petitioner filed an application, seeking ejectment of the Respondent No. 1 on various grounds i.e. default, bona fide personal need, subletting etc. in 1995. The learned Rent Controller granted the ejectment application, but all his findings were reversed by the learned District Judge vide impugned order dated 1&.5.2002.

4. The petitioner, has basically assailed the findings of the learned District Judge on the ground of default which also affects the maintainability of the ejectment application. It was held that since the ownership of the property did not come to be vested in the petitioner, therefore, he could not claim the benefit of Section 18 of the Sindh Rented Premises Ordinance, 1979 and could not urge default in payment of rent.

5. Indeed admittedly the petitioner at that time had only premised his right to seeking ejectment on the basis of an agreement of sale in his favour. It is well settled as has been held by the learned District Judge that transfer of ownership of immovable property of the value above Rs. 100/- can only be effected through a registered instrument. The registered sale- deed in favour of the petitioner admittedly, came to be executed in May 2003. Mr. Aijaz Ahmad Khan argued that even if the petitioner had not become the owner of the property he had acquired the status of a landlord which was acknowledged in evidence by the respondent. In the above context however, the provisions of Section 18 of the Sindh Rented Premises Ordinance, 1979 need to be carefully looked at. The plain language of the statute stipulates that only when the ownership of the premises is transferred to another person the new owner can upon service of notice to the tenant, require the latter to attorn to him. The distinct meaning of the expression "ownership" needs to be kept in view as against the broad definition of the expression 'landlord" occurring in the statute. Therefore, Mr. Kanjoo appears to be right in contending that even if the petitioner had acquired the right to demand rent on account of his agreement with the previous owners, the obligation of the Respondent No. 1 under Section 18 of the Sindh Rented Premises Ordinance could only arise if actual ownership had been transferred which was only possible through a registered instrument. Learned counsel placed reliance upon a judgment of this Court in Muhammad Ashraf Magsi vs.Mubarak All (1990 C.L.C. 588) and I see no reason for taking a different view. In any event if a default was found it could at best be treated as a

technical default as admittedly the Respondent No. 1 has been depositing rent in the Court.

1. As regards the remaining grounds it may be observed that after the execution jof the sale-deed in his favour the petitioner's status has altogether changed. Therefore, I would dismiss this petition, but at the same time leave it open to the petitioner to move the appropriate Rent Controller for ejectment on any ground available under the law and any finding or observation made in the impugned order will have no bearing upon the decision of the Controller premised on law and evidence.

(A.A.) Petition dismissed

PLJ 2004 Karachi 56 (DB)

Present: SHABBIR AHMED AND KHILJIARIF Hussain'. JJ. M/s. SUI SOUTHERN GAS COMPANY LTD. KARACHI-Petitiener

versus

COMMISSIONER, SINDH EMPLOYEES SOCIAL SECURITY

INSTITUTION/WORKERS EDUCATION CESS, KARACHI

and 2 others-Respondents

C.P. No. D-88 of 1999, decided on 3.6.2004. (i) Interpretation of Statute-

—Function of-a proviso-Proper function of a proviso is to accept and deal with a case which would otherwise fall within general language of main section, effect whereof is confined to that rule or section in which proviso has been added—Proper v.'ay to regard proviso is as a limitation upon effect of .principal section or rule-Proviso, which is in fact and in substance, a proviso, can only operate to deal with a case which, but for it would have fallen within ambit of section to which proviso is added--Before proviso can have any application, section itself must apply. [P. 61] A

(ii) Interpretation of Statute—

—Every statute is deemed to be prospective unless by express provisions or necessaiy implication it is given retrospective effect--Acid test for ascertaining whether a statute or an amendment operates prospectively or retrospectively is legislative intent-Language of amending Ordinance and Act and their terms neither make it manifest that legislature

intended amendment in question, to operate retrospectively nor intention can be gathered by necessary implication. [P. 62] B

(iii) Interpretation of Statute-

—Definition of declaratory statute leads to irresistible conclusion that declaratory provisions do not • purport to change law itself-- Notwithstnading their placement amendments in question, cannot be termed as declaratory for simple reason that they have created new obligations and changed existing law considerably [Pp. 62 & 63] C

(iv) Interpretation of Statute-

—Amendments cannot be deemed to be retrospective in operation even if the same were presumed to be remedial in as much as the same tend to affect vested rights. [P. 63] D

(v) Sindh Workers Education Cess (Collection) Rules, 1994--

—-Rr. 12 & 30-Constitution of Pakistan (1973), Art. 199-Provisional demand notices for payment of education cess for children of workers sent to petitioner by rcspondents-Legality-Petitioner was directed to submit list of workers getting wages not less than Rs. 3,000/- on specified • date and respondents would be at liberty to call for any record-in terms of R. 30 of the Rules of 1994, for determination of number of workers for cess and once workers fall within the net, they -would remain under that net, even if their wages exceed Rs. 3000/- or number' of workers was reduced to less than ten-Petitioner would submit return as required under the law for subsequent period as well. [P. 64] E

NLR 2001 Labour 32; 2001 PLC 245; 2002 SCMR 39; Halsbury, Laws of England Vol. 44, 4th Ed. ref.

Mr. Shahid Anwar Bajwa, Advocate for Petitioner.

Mr. Nazar Akbar, Advocate and Mr. Muhammad Sarwar Khan, Addl. A.G., Sindh for Respondents.

Date of hearing: 20.5.2004.

order

Shabbir Ahmed, J.--The petitioner with a corporate identity is engaged in purification, transmission and distribution of gas in Province of Sindh and Balochistan and also engaged in marketing of L.P.G. (Liquefied Petroleum Gas) in Pakistan, has invoked the Constitutional jurisdiction of this Court with the prayer in the following terms:—

(a) That the orders of the Respondents Nos. 2 and 3 dated 4.3.1999, 20.6.1995 and 22.6.1995 respectively, alongvvith their.

consequent acts are liable to be quashed and declared illegal, void, "without lawful authority and ultra vires.

(b) Costs of this petition may also be awarded to the petitioner.

(c) Any other relief which this Hon'ble Court deem appropriate, in the circumstances of this case, may be granted.

The petition emanates in the following circumstances.

The petitioner an establishment having worker as defined in Workers' Children Education Ordinance, 1972 (for short-the Ordinance) and was in the net of Education Cess which was being collected under Sindh Workers' Children (Education) Cess Rules, 1974 by Excise and Taxation Department. The said Rule was repelled by Sindh Workers' Children Education Cess (Collection) Rules, 1994 whereby the responsibility for the collection of Cess was assigned to Sindh Employees Social Security Institution. On 30.10.1994, the petitioner was intimated by the Respondent No. 1 that the task of collection of education cess in the Province of Sindh has been assigned to them and Education Cess is not longer payable to Excise Department. The petitioners were advised to file the requisite return on Form EC-1 and to make payment of the cess at the Directorate to the Director Education Cess. The petitioner intimated that after the settlement with CBA dated 11.5.1995 no worker is in the employment with wage upto Rs. 3000/-. The respondents were not satisfied and they raised the provisional demand in the sum of Rs. 1,80,000/- for (Unit-A) for the year 1994-95 and second provisional demand in the sum of Rs. 1,20,000/- for (Unit-C) for the same year .by provisional demand notices dated 5.5.1995. The petitioner replied the demand notices with the plea that since no worker in the establishment of the company has drawn wage less than Rs. 3000/-during the period, therefore, the demand be withdrawn/dropped. The respondents made the objection in the following terms:

"As per our authentic information, you have the following Departments in your company in which more than 02 thousand (Temporary/regular) employees are working:--

1. C.S.S. Department.

2. U.D. Department.

3. Distribution Department.

4. Metie Plant.

5. Workshop.

6. Dop Yard Section.

7. Sales Department.

8. K.T. URD. KCY

Similar was the contention with regard to the second demand. Final demand was raised on 20.6.1995 through demand notices of even date for Rs. 1,80,000/- and Rs. 1,20,000/-. The petitioners aggrieved by the above demands filed appeal under Rule 12 of the Sindh Workers Education Cess (Collection) Rules, 1994 (hereinafter referred to Rules). The appeal was also dismissed by the impugned order dated 4.3.1999. Hence the present petition.

On notice, the Respondent No. 2 filed the comments with the plea that in view of the amendment by Labour Laws (Amendment) Ordinance, 1993, there is no bar on payment of Education Cess if the wages of an employee exceeds of Rs. 3000/- per month. The petitioner is liable for payment of Education Cess for all his Employees as well as engaged through contractor orron contract by the company. It was also their case that the petitioner was asked for the inspection of the record as to ascertain the actual amount of Education Cess payable by the petitioner. The petitioner instead of producing the record only, produced the bills for Unit-A and no record in respect of Unit-C was produced. The Audit Team further pointed out that over 4000 temporary employees were engaged during the period 1994-95 and afterwards their service were terminated and after production of record during the hearing, the Audit Team noticed 801 workers in respect of whom Education Cess was payable, were appointed on wages less then Rs. 3000/- per month. The petitioners were required to pay the Education Cess for the years 1995-96,1996-97,1997-98 and 1998-99.

We have heard the learned counsel for the parties for disposal of the petition at Katcha peshi stage.

Before addressing the respective contentions, it would be advantageous to reproduce the relevant provisions of the Ordinance and the Rules.

Section 2(b) and (c) define the terms "Establishment" and "Worker". Clause (b) thereof defines "Establishment" which means any office, firm, industrial unit, under taking, shop or premises in which workers are employed for the purpose of carrying on any business, trade, manufacture, calling, service, employment or occupation Whereas clause (c) thereof defines "Worker" which .means any person employed,- whether directly or through any other person, in any establishment to do any skilled, or unskilled, manual or clerical work for hire or reward whose monthly wages do not exceed (three thousand) rupees, but does not include--

• (i) ...... -----........... »--.-....

(n) --------- ........ ----------

(iii) .......... •..................... :

[Provided that a worker shall not cease to be a worker for the reason that his monthly wages exceed three thousand rupees or the number of persons employed in the establishment, at any time is reduced to less than ten ]

Section 3 thereof pertains to the Levy of Eduction Cess (1) Every •employer of an establishment in which the number of workers employed at any time during a year is [ten] or more shall pay to the Provincial Government an education cess at the rate of one hundred, rupees per worker per annum. (2) Every employer shall, within three months beginning from the first day of the calendar month following the commencement of Workers' Children (Amendment) Act, 1973. prepare and deliver, or cause to be prepared and delivered, in the form and to the officer prescribed by the Provincial Government, a return showing the number workers employed in the establishment during the preceding quarter and shall subscribe a declaration of the truth of the return at the foot thereof. (3) The levy of education cess shall be on the basis of the number of workers shown in the return referred to in sub-section (2). Section 5A thereof prescribed the collection and administration of cess-The collection of cess referred to in Section 3 and its administration may be entrusted to the Social Security Institution or to such other agency as the Provincial Government may nominate. Section 6 thereof gives the Provincial Government rule making power for carrying out the purposes of the Ordinance.

It is pertinent to note that through Labour Laws (Amendment) Ordinance, 1993 w.e.f.25.y.i99o, a large number of amendments were brought in various statutes relating to the Workers and Section 2(c) was also amended in many respects. In the first instance, the limitation of wages less than Rs. 1500/- was substituted with Rs. 3000/-. Secondly the proviso to the following effect was inserted in clause (c):

Provided that a Worker shall not cease to be a worker for the reason that his monthly wages exceed three thousand rupees or the number of

persons employed in the establishment, at any time is reduced to less than ten.

It may also be noted -that cess was being collected under the Sindh Children Worker Rules, 1974 by the Excise and Taxation Department, Government of Sindh, whereas under the Sindh Workers' Education Cess (Collection) Rules, 1994, (for short-the Rules 1994) the collection of cess was assigned to the Sindh Employees Social Security Institution. The effect of the amendment was that the workers whose salary was not exceeding Rs. 3000/-were brought in the net for the purpose of collection of cess wage sealing from Rs. 1500/- ws enhanced to Rs. 3000/- and once such worker came in the net, they would remain in the net. Secondly, the cess was payable by the employer of an Establishment which having ten or more at any time during a year. If the number of Workers is reduced to less than ten even then the employer would be subject to the cess.

Mr. .Shahid Aziz Bajwa, learned counsel for the petitioner contention was that when the amendment was made, the petitioner Establishment had no worker of wage at Rs. 3000/-, as such, the petitioner would not be subjected to the Education Cess. ' .

Whereas, learned counsel for the respondents plea was that the Cess is payable by an Establishment having worker with wage not less than Rs. 3000/- and therefore, the petitioner is subject to the liable to pay the Cess even if the Workers get-out the net by increase of salary or reduction of such worker less than ten.

Mr. Nazar Akbar also referred the case of Ibrar Hussain and others v. Government of N.W.F.P. (2001 SCMR 914), wherein the apex Court pointed out three functions to a proviso, as follows:--

(1) To exempt something from the enacting clause;

(2) to qualify or restrain its generality;

(3) and to exclude some possible misinterpretation of it an extending to cases not intended by the Legislature.

It is well settled that proper function of a proviso is to accept and deal with a case which would otherwise fall within the general language of the main section, and its effect is confined to the rule or Section to which a proviso has been added. The proper way to regard the proviso is as a limitation upon the effect of principal section or rule. A proviso, which is in

fact and in substance a proviso, can only operate to deal with a case which, but for it, would have fallen within the ambit of the section to which the proviso is a proviso. To put it in another way the section deals with a particular field while proviso excepts or takes or carries out from the field a particular portion and therefore, it is perfectly true that before a proviso can have any application the section itself must apply. If any reference is needed, the case of Jagdatt Singh and others v. State of Uttar Pradesh and another (AIR 1962 Allahabad 606) can be referred.

During the hearing, cases of (1) M/s. Agfa Gevaert Pakistan Ltd. v. Sindh (Provincial) Employees Social Security Institution (NLR 2001 Labour 32) and (2) Reckitt & Colman of Pakistan Limited, Karachi and others v. The Commissioner, Sindh Employees' Social Security Institution and others (2001 PLC 245) were referred.

In the first case, similar provision of Section 2(8) of Social Security Ordinance amended by Ordinance, 1993, was interpreted and it was held that it is remedial legislation, it cannot be given retrospective effect as the legislature itself has not given retrospective effect. Whereas, in later case, the amendment was being declaratory in nature was taken to be retrospective.

The above two decisions came under scrutiny by apex Court in Commissioner, Sindh Employees' Social Securities Institution and another v. Messrs EM. Oil Mills and Industries Ltd. and 2 others (2002 SCMR 39). The view expressed was that scope of the un-amended Sections 2(8)(f) and 20(4)(a) of the Ordinance is comparatively limited and cannot be enlarged by giving retrospective effect to the amendments made therein on the grounds that the same are remedial, the proviso added to Section 2(8)(f) being a part of definition section is declaratory and the Ordinance being a beneficial statute its provisions must be construed liberally. As a general rule every statute is deemed to be prospective unless by express provisions or necessary implication it is given retrospective effect. The acid test for ascertaining whether a statute or an amendment operates prospectively or retrospectively is the legislative intent. The language of the amending Ordinance and the Act and their terms neither make it manifest that the Legislature intended the amendments to operate retrospectively nor the intention can be gathered by necessary implication. The rationale is obvious inasmuch as the amendments have affected vested rights and created new obligations. It was further observed that according to Halsbury's Laws of England: Volume 44 (4th Edition), a declaratory statute is c. statute which either resolves doubts on a particular point or restates the law on a particular subject. This definition of a declaratory statute leads to the irresistible conclusion that a declaratory provisions does not purport to change the law. Notwithstanding their placement the amendments in question cannot be termed a declaratory

| | | --- | | |

| | | --- | | Kar. 63 |

for the simple reason that they have created new obligations and changed the existing law considerably. It is true that the statutory increase in the wages was not incorporated in the Ordinance but the existing law did not suffer from any legal defect in view of the law laid down in the case of Dawood Cotton Mills (supra), therefore, the amendments are not purely remedial. Be that as it may, the amendments cannot be held to be retroactive in operation even if the same are presumed to be remedial because they tend to affect vested rights. In any event giving retrospective effect to the amendments would tantamount to nullifying the binding effect of the dictum laid down in Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. (PLD 1988 SC 1), which squarely applies to the facts and circumstances of the present cases.

The perusal of Rules 8 and 9 of the Rules, 1994 reveals that where an employee liable to pay the cess controls in a Province more branches than one of an establishment, he shall nominate one such branch as the "head office" for the purposes of these rules. If the head office of an establishment is situated anywhere in the Province such return shall be filed by the head office and sub-rule (5) thereof requires the number of workers for the purpose of the cess shall be the aggregate workers of all branches (in a Province). Rule 9 thereof mandates that where a Social Security Officer has reasons to believe that an employer is likely to be liable to pay the cess, he may require him to produce books of accounts or other documents necessary for inspection and determination of the number of workers employed by him or furnish any other information in connection therewith and for that purpose such officer may enter any establishment during its working hours.

It is evident from the above rules that for the purpose of collection only one return is to be filed by the head office. In case, branches are in other Provinces, one of its branches shall be nominated as "head office" for the purpose of return.

On examination, the following are reflection of the impugned order:—

(a) that the petitioner inspite of directions failed to produce the following information/documents.

(i) Personal file of 340 workers in respect of whom Education Cess was paid to the Excise Department.

(ii) The number of workers out of 340 alongwith name whose services have been terminated/resigned.

D

(iii) The list of workers who have been appointed on contract basis on the salary upto Rs. 3000/-.

(iv) Payment of salary/Attendance register for the year 1994-95 in order to ascertain salaries/wages have been paid to the .workers.

(b) The plea of appellants for treating employees of Karachi and Balochistan as a separate unit has been repelled by stating that the plea is contrary to sub-rule (5) of Rule 8. The reading of Rule 8 would reveal that where branches of an establishment are in more than one Province then the Head Office will submit the return in respect of all branches in the said Province and one of the branches in Province where there is no Head Office , then one of the branches is to be nominated as Head Office for the purpose of filing of the return. Therefore, the view taken by the appellate authority is based on incorrect interpretation of sub-rule (5) of Rule 8, that the petitioner was required to submit the return pertaining to Balochistan Province to Respondent No. 2.

(c) that amendment made in Section 2(c) of the Act is declaratory and clarificatory in nature thus was retrospective effect. Such view is contrary to the view expressed by the apex Court in Commissioner Sindh Employees Social Security Institutionscase (supra).

(d) the appellate authority, the Respondent No. 2 has modified the demand confining it for 801 employees.

(e) That by impugned order, the demands have been reduced partially.

In view of the above discussions, the impugned order and the 1 demands are not sustainable in law. We set aside the same with following directions.

That the petitioner will submit the list of workers getting wages not less than Rs» 3000/- as on 25.9.1983 and the respondent would be at liberty to call for any record in terms of Rule 30 for determination of the number of F workers for cess and once workers fall within the net, they will remain in the net, even if their wages exceed Rs. 3000/- or the number of workers is reduced to less than ten. The petitioner will submit the return as required under Section 3 of the Act for subsequent period as well.

With the above observations, the petition is disposed of. (A.A.) Order accordingly

PLJ 2004 Lahore 1

Present: sated zahid hussain, J.

Hafiz ABDUL AZIZ-Petitioner

versus

MEMBER (JUDICIAL-IV), BOARD OF REVENUE, PUNJAB and 10 others-Respondents

W.P. No. 2638 of 2003, heard on 6.11.2003. (i) Concurrent findings--

—Thery is no scope left in constitutional petition for Interference in concurrent findings of all Courts below. [P. 4j D

(ii) Pre-emption--

—In law if the time far deposit of money granted by trial Court, expires same c^n be extended by Appellate Court if appeal is pending. [P. 3] B

(iii) Pre-emption--

—If the pre-emptor has challenged the price at which the property had been

sold he is entitled to have a decision on the merits of his claim. [P. 3] C

.

(iv) Pre-emption--

—Pre-emptor decree holder who was in possession of the land and having

failed to deposit decretal amount cannot be allowed to deposit jame

amount after a lapse of about 18 years being unjust unfair and

unreasonable. [P. 4] & & F

(V) Pre-emption Act, 1913—

—Pre-emption suit challenged before High in Constitutional petition on the

grounds that appeal before lower forum was time barred and that time

for deposit of decretal amount could not be extended and that after expiry

of 30 days suit stood dismissed, therefore no appeal was competent on

limited question of sale price only and that the forums below have

allowed pre-emptor to deposit same amount after about 19 years which

was unjust particularly when land was being utilized by pre-emptor-

Held: In law if the time granted by the trial Court expires ^ ^rmg.

pendency of appeal the same can be extended by appellate Courts d that

if the pre-emptor has challenged the price he is entitled to have a Decision

on merits and that in view of concurrent findings of Courts below there is

no scope for interference consequently decrees were maintained however, High Court while taking serious note of the fact that pre-emptor decreholder was in possession of the suit land and was required by forums

below to deposit same amount which was to be deposited in the 1984 held

that indeed inequity has occurred in this matter and the authorities

. below have not adverted to this essential aspect which renders the orders

to be judicially reviewed being unjust, unfair and unreasonable-The

matter was consequently remitted to the Executive District Officer to

determine the equivalent worth of the decretal amount and the difference

whatever found shall be directed to be deposited-Case remanded.

[Pp. 3 & 4] A, B, C, D, E, F & G

PLD 1966 SC 983; PLD 1982 Lah. 197; NLR 1983 Civil 647; 1974 SCMR 24 and 1987 SCMR 1704

Mr. Pervaiz Inayat Malik, Advocate for Appellant.

Mr. Fazal Miran Chohan, Advocate for Respondents Nos. 1 and 2.

Mr. Saleem Akram Ch.,Advocate for Respondents Nos. 4 to 10.

NemoforRespondentNo.il.

Date of hearing: 6.11.2003.

judgment

A suit to pre-empt the land subject-matter of the litigation instituted by the late Ch. Dewan Bakhsh was decreed by the Assistant Commissioner/Collector Shakar Garh on 21.6.1984 with the direction "to pay the decretal amount after deducting amount of zar~e-panjum already deposited by him within one month of this order and decree otherwise the decree shall void." Both sides filed .appeals there against which were dismissed by the learned Additional Commissioner (Revenue) Gujranwala Division Gujranwala on 9.4.1985, observing that "the appeal of Dewan Bakhshplaintiff/pre-emptor/decree-holder will not surviue and is dismissed. hereby as his suit stood dismissed." That order was assailed by Ch. Dewan Bakhsh only in revision before the Board of Revenue which was dismissed on 26.6.1985. W.P. No. 4286/1985 was then filed by him which was allowed on 19.10.2000. The operative part thereof reads as under: .

"After hearing the learned counsel for the parties and gone through the law on the subject I am of the view that this question has to be answered in favour of the petitioner-pre-emptor. In law if the time granted by the trial Court expires during the pendency of an appeal the same can be extended by the appellate Court if the matter is pending adjudication. If the pre-emptor has challenged the price at which the property had been sold he is entitled to have a decision on the merits of his claim. This rule stands settled by the Supreme Court of Pakistan in its judgment reported as Shah Wali v. Ghulam Din alias Gaman & another (PLD 1966 S.C. 983), and was followed by a Division Bench of this Court in Muhammad Ismail u. Muhammad Ashraf(PLD 1982 Lahore 197). The Additional Commissioner while dismissing the suit had referred to a decision of a Division Bench of this Court in Muhammad Siddiq u. Mst. Shakeela Jamil (NLR 1983 Civil 647) but that ease is distinguishable on facts inasmuch as the appellate Court had specifically refused to stay the opefation of direction to deposit the pre-emption money. Unfortunately the attention of the learned Judges was not drawn to Shah Wall's case supraas also the judgment of the Supreme Court in Muhammad Shabbir v. Bashir Ahmad (1974 SCMR 24).'

In view of what has been stated above, this petition is allowed, the impugned judgments and decrees are set aside and the case is remanded back to the Commissioner for decision of the matter afresh."

1. Pursuant thereto the matter was taken up by the Executive District Office/; (Revenue) Narowal who videorder dated 3.10.2001 accepted the appeal of "ewan Bakhsh to the extent that "he has a superior right of

pre-emption over the defendants regarding the-suit land. The original suit

filedby the appellant stands accepted and is decreed in proportionate sum of

Rs. 31,350/-. The appellant/plaintiff is directed to pay deposited amount after

deducting Zare-Panjum within 15 days from the date of this judgment". This

order was assailed by the petitioner before the Board of Revenue which

revision petition has been dismissed vide order dated 31.10.2002. The

present petition under Article 199 of the Constitution thus has been filed

before this Court.

1. The case was still at the motion stage but as the.parties are

represented, their learned counsel have been at length and I propose to dispose of the petition accordingly.

1. Insofar as the decree in favour of the pre-emptor is concerned, in

view of concurrent findings by all the Courts, there is no scope left for interference. As to the power of the Court in regard to the extension of time to deposit the pre-emption money suffice it to observe that the Court can P keeping in view the facts and circumstances of a case allow extension in making deposit of the pre-emption money. Judgment in the above writ petition was not assailed by anyone and has thus become final. It is thus that the appellate Court has extended the time. Reference in this context may be made besides Shah Wall case (PLD 1966 S.C. 983) to Nazir Ahmad vs. a Ghulama and another (1987 SCMR 1704). No illegality has been committed nor there is any jurisdictional error in the order to that extent which could warrant interference by this Court. There is, however, an important aspect of the matter which cannot be overlooked or ignored by the Court that the pre-emptor had remained in possession of the land and had also not deposited the pre-emption money which was required to be deposited in the year 1984. The contention of the learned counsel for the petitioner that j without realizing the appreciation in the value of the land and the worth of imoney i.e. Rs. 31.350/- in 1984 the Executive District Officer Narowal, has allowed the deposit of the same money in 2001, is not without substance. Thus inequity has indeed occurred in this matter of which the Court cannot be oblivious. The authorities below have not adverted to this essential aspect of the matter, which renders their orders to be judicially reviewed, being unjust, unfair and unreasonable. Thus maintaining the original decree and order of the Executive District Officer, insofar as the pre-emptor has been given extension in making deposit of the pre-emption money, the matter is remitted to the. Executive District Officer Narowal to determine the equivalent worth of Rs. 31,350/- with reference to the date it vas required to

be deposited. Statedly the sum of Rs. 31.500/- has been deported by the pre-emptor soon after the order of Executive District Officer, wh' 'jver difference

is found by him, will be ordered to be deposited within reasonable time. The petition is disposed of accordingly. Let die parties cause their presence before the Executive District Officer, Narowal on 1.12.2003.

(T.A.F.) Case remanded.

PLJ 2004 Lahore 5

Present:.Cn. ijaz ahmad, J.

Mst. RIFFAT YASMEEN-Petitioner

versus

SECRETARY etc.-Respondents W.P. No. 11995 of 2003, decided on 9.9.2003.

Constitution of Pakistan, (1973)--

—-Arts. 199 & 4-Petitioners Civil Servants Employees of Education Department awarded increments on account of attaining higher qualification served with notices by departmental authorities on the grounds that same have been allowed illegally/inadvertantly with a direction to refund payments already received by them-Assailed in constitutional petition on the grounds that 'in view of principle of locus poenitentiae same cannot be recovered-Held: High Court is vested with

ample powers to issue directions to public functionaries to act in accordance with law-Consequently respondents directed to decide representation of petitioner--Impugned notices also held in abeyance- Petition disposed of accordingly. [Pp. 5 & 6] A, B, C, D & E

PLD 1969 SC 407; PLD 1992 SC 207 and PLD 1981 SC 612.

Mr. Pervaiz Inayat Malik, Advocate for Petitioners.

Mr. Muhammad Hanif Khatana, Addl. A.G. on Court's call.

Date of hearing: 9.9.2003.

order

The learned counsel of the petitioner submits that respondents had granted increments to the petitioner in view of additional qualification, but a subsequently, the respondents had withdrawn the same vide order dated j 9.7.2003 as is evident from Annexures B-l to B-5 attested with the writ' petition.

1. The learned counsel of the petitioners submits that the impugned j notices are not in accordance with law on the well known principle of locus j B poenitentiae.In support of his contention, he relied upon following j judgments:-

"Pakistan through Secretary vs. M, Himayatullah" (PLD 1969 S.C. 407);

Jalal-ud-Din's case (PLD 1992 S.C. 207).

1. The learned law officer entered appearance on Court's call, he submits that the writ petition is not maintainable.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

3. This Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law by virtue of Article 4 of the Constitution while exercising powers under Article 199 of the

Constitution, as per principle laid down by the Honourable Supreme Court in "H.M. Rizvi's case (PLD 1981 S.C. 612). In this view of the matter, let a copy of writ petition be sent to the District Account Officer, who is directed jto decide the representation of the petitioner strictly in accordance with law preferably within 2 months after receiving the order of this Court, "either himself or send the same to the competent authority for its decision, who is also directed to decide the representation of the petitioner in the terms of

aforesaid direction of this Court. In the meanwhile, the impugned notices i.e. 01 Annexures B-1 to B-5 are held in abeyance till the decision of representation iof the petitioner. The learned counsel of the petitioner is directed to hand I over copy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, A.A.G. who is directed to send the same to the aforesaid

District Account Officer concerned for necessary action & compliance.

(T.A.F.) Order accordingly.

PL J 2004 Lahore 6

[Rawalpindi Bench Rawalpindi]

Present :MAULVI ANWAR-UL-HAQ, J.

Mst. YASMIN BIBI-Petitioner

versus MEHMOOD AKHTAR and 2 others-Respondents

W.P. No. 1471 of 2003, heard on 11.7.2003.

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

— -S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Respondent (father) claimed custody of minor on the ground that petitioner (wife) had remarried, therefore, he was entitled to custody minor-Trial Court

dismissed respondent's suit on the ground that he having failed to pay maintenance as per agreement was not entitled to her custody—Appellate Court, however, decreed respondent's, suit for custody of minor-Decree for maintenance having been passed against respondent same had got to be executed-Respondent thus, did not comply with terms of agreement in question-Appellate Court did not keep in mind welfare of minor inasmuch as, there was no allegation that mother was not being looked after properly or that she was not keeping good health due to negligence of petitioner or that she was not being educated-Welfare of minor would be best served if she remained in the custody of her mother where her maternal grand mother would also look after her-Appellate Court's order of handing over custody of minor to respondent was set aside. [P. 8] A

2000 SCMR 838 ref.

Malik Shahzad Ahmad, Advocate and Sh. Ahsan-ud-Din, Advocate for Petitioner.

Sh. Kamran Shahzad Siddiqui, Advocate for Respondent No. 1. Date of hearing : 11.7.2003.

judgment

Notice was issued to the respondent in this writ petition pursuant to the contention of Sh. Ahsan ud Din, Advocate, noted on 4.6.2003. Learned counsel for the Respondent No. 1 has put in appearance.

1. On 28.10.2002, Respondent No. 1 filed a petition against the petitioner under Section 25 of Guardian and Wards Act, 1890. According to this petition, the parties were married on 2.8.1991 and were blessed with a daughter, namely, Shaista, who is in custody of the petitioner. The marriage was dissolved by means of a Court decree dated 18.12.1995. At the time of said decree a compromise was entered into between the parties. This agreement has been reproduced in para-3 of the said petition. The gist is that in consideration for the divorce, the petitioner foregoes her dower, a house, maintenance and other rights. Regarding child, it was stated that she will remain with the petitioner and the Respondent No. 1 will pay maintenance at the rate of Rs. 600/- per month. In case she contracts second marriage, she will be liable to return the child to the Respondent No. 1. However, in case maintenance is not paid regularly she will not be so liable. According to the said petition, the petitioner had remarried on 28.2.2002. Accordingly he claimed the custody of the said minor. The petitioner in her .written reply stated that the child is with her since she was three months old and it will not be in her welfare to separate her from her mother and maternal grand­mother. With reference to said agreement it was stated that Respondent No. 1 is in breach inasmuch as he failed to pay the maintenance and the minor had to file a suit and even the amount of decree for maintenance was not paid and execution proceedings had to be resorted to. Issues were framed. Evidence of the parties was recorded. Learned trial Court vide order dated

12.4.2003 dismissed the petition. Respondent No. 1 filed first appeal which was heard by learned District Judge, Attock. Vide judgment dated 7.5.2003, learned District Judge, Attock after observing that since the decretal amount has been paid, in terms of the said agreement, Respondent No. 1 is entitled to custody and allowed the appeal.

1. Learned counsel present for the petitioner reiterates the contentions noted in the admission order that the order is violative of principles settled by the Hon'ble superior judiciary, that primary considei\ation in the matter of custody of minor is welfare of the minor. Learned counsel for the respondent, on the other hand, states that since the decree has been satisfied, his client is entitled to the custody of the minor under Islamic Law. Further refers to the statement made by the present husband of the petitioner to the effect that he is of the opinion that it will be in the welfare of the minor in case she lives with her real father.

2. I have gone through the records. I have already reproduced above the respective pleadings of the parties as also the material contents of the said agreement Ex. P.5. relied upon by-the Respondent No.

3. Now so far as the said agreement is concerned, it stands established on record that the minor had to file a suit for recovery of maintenance allowance which was contested tooth and nail by Respondent No. 1 but was ultimately decreed by the learned Judge Family Court, Jand, Distt. Attock on 29.3.2000 (Ex. P.3). The decree states that Respondent No. 1 is liable to pay the maintenance allowance to the child w.e.f. August, 1996 at the rate of Rs. 600/- per month.

Admittedly, the decree was not, challenged any further. Ex. P. 5 is dated ; 1.5.1996. This means that in terms of the said agreement (Ex. P.5) since - maintenance was not paid as stipulated, the petitioner was not liable to I return the child to Respondent No. 1. Be that as it may, nothing has been brought on record that the minor is not being properly brought up by the petitioner particularly when Respondent No. 1 had not even been paying any maintenance for the child. It has been brought on record that she is studying in a school. There is no allegation and no evidence on record that she is not keeping good health. Now mere fact of remarriage of the petitioner would not ipso facto result in the handing over of custody of the child to the father when it is not otherwise in her welfare Needless to state that Respondent No. 1 has also got remarried after the said dissolution of marriage between the parties. It is also on record that the maternal grand mother is also there to look after the child. Thus from what ever angle seen the impugned judgment of the learned District Judge cannot be sustained, particularly in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Firdaus Iqbal versus Shafaat Ali and others (2000 SCMR 838), that the rules.of personal law would be subservient to the welfare of the minor. The impugned judgment dated 7.3.2003 of the learned District Judge.

Attock therefore, cannot be sustained. This Writ petition is allowed. The impugned judgment of the learned District Judge, Attock is declared without lawful authority and as such void; and is accordingly set aside.

No orders as to costs.

(.A.F.) Petition allowed.

PLJ 2004 Lahore 9

Present: MRS. FAKHAR-UN-NlSA KHOKHAR, J. ABDULLAH-Petitioner

versus JAWARIA ASLAM and 2 others-Respondents

W.P. No. 9916 of 2003, decided on 14.7.2003. Family Courts Act, 1964 (XXXV of 1964)--

—-S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Maintenance allowance granted by Court below to minor daughter assailed by petitioner-Petitioner however, miserably failed to bring on record any documentary or strong evidence to show that minors were in easy circumstances and not fit to be maintained by grand-father while evidence on record would show that he was financially fit person as grand-father of minors and can easily maintain his grand children as he is bound to maintain minor grand children of his deceased son, who are also legal heirs in property owned by him—Appellate Court having rightly ordered maintenance allowance of minors, no interference was warranted. [P. 11] A

Qazi Khurshid Alam, Advocate for Petitioner. Date of hearing : 14.7.2003.

order

Precise-facts in the instant writ petition are that suit for recovery of maintenance allowance was filed against the paternal grand-father present petitioner by Respondents Nos. 1 and' 2-Jawaria Aslam and Nadia Aslam minor daughters and for maintenance allowance of widow. This suit was resisted and the learned Judge Family Court after recording evidence vide judgment and decree dated 3.12.2002 dismissed the claim of Mst. Shehnaz Bibi and Respondents Nos. 1 and 2. All the respondents being aggrieved filed an appeal against the impugned judgment and decree, which was disposed of

vide judgment and decree dated 22.5.2003, claim of maintenance allowance in respect of Mst.Shehnaz Bibi was disallowed and the Respondents Nos. 1 and 2 were allowed maintenance allowance at the rate of Rs. 2,000/- per month w.e.f. the date of institution of the suit. T'~:: Judgment and decree is impugned in the instant writ petition.

' 2. Arguments advanced by learned counsel for the petitioner are that the learned appellate Court has not taken into consideration the material evidence on record, which clearly shows that the petitioner was bound to maintain Respondents Nos. 1 and 2 as she was in easy circumstances being in possession of all property left by her husband at the time of his death and an amount of Rs. 50,000/- was given by the petitioner to her to deposit in the bank on behalf of Respondents Nos. 1 and 2.

1. I have heard the learned counsel for the petitioner and perused the record. It is an admitted fact that the petitioner is a man of means as he is owner of 100 kanals of land vide jamabandi for the year 1996-97. Now the argument advanced by learned counsel for the petitioner is that children are in easy circumstances and the grand-father is not bound to maintain them. Section 370 of Mahomedan Law is re-produced below :--

"Maintenance of children and grand-children:~-(l) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property:--

(2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the. father would be.

(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grand-father provided he is in easy circumstances."

According to the provisions of Section 370 of Mahomedan Law father or grand-father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. In disregard to this fact that they are in custody of their mother.

1. PW-1 Mst. Shehnaz Bibi stated in her examination-in-chief that after the death of her husband she started living with her father-in-law and 8/10 months prior to the filing of suit he took hold of all the animals and her dowry articles and c^cll^cl her alongwith children from his house and all these dowry articles are with him and she is living in her parents house and her parents are poor and cannot maintain the children while the petitioner is a well off person and his annual income is Rs. 3,00,000/- 4,00,000/-. He can easily maintain the children. In her cross-examination she stated that her husband had animals and she had her articles of dowry wheat and moongi but she denied that amount of stock is still payable by the agents and she also denied that she has taken all the "TARKA" of her husband and brought to her parents house. She also denied that she received Rs. 50,000/- from the petitioner/defendant. DW-1 the petitioner appeared and stated in his examination-in-chief that he gave Rs. 50.000/- to the minors for deposit in bank, which was not deposited but in his cross-examination he admitted that he is owner of 21 Acres of land, which is on lease and there is no property in the name of plaintiff or her daughters and he also admitted that he had not maintained the plaintiffs for 8/9/10 months. His second witness is DW-2, who is the daughter-in-law of the present petitioner and sister of the plaintiff married on the same day. She supported DW-1 but she admitted in her cross-examination that no receipt was taken for payment of Rs. 50,000/- and defendant's annual income is Rs. 2,00,000/ 3,00,000/-.

2. The petitioner has miserably failed to bring on record any documentary or strong evidence to show that the respondents/plaintiffs are in easy circumstances and not fit to be maintained by the grand-father while vice versa the evidence available on record shows that the petitioner is financially fit person as grand-father of the minors and he can easily maintain the minor grand-daughters as he is bound by law to maintain the minors of his deceased son, who are also legal heirs in the property owned by him. Law does not leave the minors unprotected and left to be swayed in cruel circumstances when the grand-father is alive and possesses means to maintain the children of deceased son and no substantial evidence is on record to prove that orphan minors have means for their survival in present circumstances, therefore, the learned appellate Court has rightly reversed the judgment and decree passed by the learned Judge Family Court. Learned counsel for the petitioner has failed to show legal infirmity in the judgment and decree passed by the learned appellate Court, therefore, the instant writ petition is dismissed in limine.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 12 (FB)

Present: SYED JAMSHED ALI; M. JAVED BUTTAR AND CH. IJAZ AHMAD, JJ. TANVIR ASHRAF-Appfciituxi

versus

CH. RIASAT ALI and 5 others-Respondents I.C.A. No. 828 of 2002, decided on 9.7.2003. (i)

Constitution of Pakistan (1973)--

—-Art. 199-Remedy of writ of quo-warranto would be available to an elector after completion of process of election against a returned candidate- Election process cannot be interrupted by putting obstructional spoke at pre-election stage-Mere acceptance of nomination papers of a candidate does not furnish justifiable grievance to an elector because contesting candidate whose eligibility was contested/questioned would or would not succeed in election while as a result of interference at pre-election stage election process might be confined to casualty ward. [P. 24 & 25] C

(ii) Constitution of Pakistan (1973)--

—-Art. 199-Civil Procedure Code (V of 1908), 0. VII, R. 7-In changed circumstances, on account of subsequent events, Court could mould relief, in terms of O. VII, R. 7 of C.P.C. principles of which apply to proceedings in writ jurisdiction. [P. 25] D

(iii) Constitution of Pakistan (1973)--

—Art. 199-Findings of domestic Tribunal should be based on some tangible material and if adverse conclusion is to be-drawn against a person, he would be entitled to clear himself by opportunity of hearing-Inadequacy of material to arrive at adverse conclusion against a person would warrant interference in Constitutional jurisdiction. [P. 25] E

(iv) Constitution of Pakistan (1973)--

—Art. 199-Election dispute could not be treated as a Us inter-parties as the same involves entire constituency-Will of majority in favour of returned candidate could not be over-ruled on suspicion and conjectures. [P. 25] F

(v) Qanun-e-Shahadat Order, 1984 (10 of 1984)--

—Art. 129 (e)-Official documents duly found to exist on original record-­ Presumption of regularity was attached to such documents-Very strong evidence at least, tangible reliable evidence was required to condemn official documents in question. [P. 20] A

(vi) Representation of the People Act (LXXXV of 1976)--

—S. 99(l)(cc)-Genuineness of award list, notification and result card cannot be determined in summary Constitutional jurisdiction. [P. 23] B

(vii) Representation of People Act (LXXXV of 1976)--

—-S. 99(l)(cc)-Constitution of Pakistan (1P73) Art. 199--Election of petitioners as a returned candidate was set aside on the ground of his lack of educational qualifications—Judgment of Single Judge, de-seating petitioner for lack of requisite qualifications was set aside with observation that if as a result of detailed inquiry, conclusion arrived at was adverse to appellant regarding his qualifications nothing in present judgment would stand in the way of any proceedings which might be competently taken in view of the fact that present judgment in appeal

was based on existing material on record. [P. 26] G

2000 CLC 1068; PLD 2003 Quetta 42; PLD 1973 SC 160; PLD 1992 Lahore 322- 2001 CLC 1631; PLD 1989 SC 315; AIR 1952 SC 64; AIR 1983 Cal. 436

ref.

Mr. Azmat Saeed, Advocate for Appellant.

Dr. Khalid Ranjha, Advocate for Respondent No. 1.

Dr. A. Basit, Advocate for University of the Punjab with Admn. Officer.

Mr. Aitzaz Ahsan, Advocate and Syed Faisal 'iussain Naqvi, Advocate for Respondent No. 6.

Date of hearing : 9.7.2003.

judgment

Syed Jamshed Ali, J.--This appeal is directed against the judgment dated 4.11.2002 of the learned Single Judge, allowing Writ Petition No. 17699/2002 filed by Respondent No. 1. This appeal was dismissed vide judgment dated 25.2.2003, on the ground that it was hit by the bar of the proviso to Section 3(2) of the Law Reforms Ordinance, 1972, and was thus, not maintainable.

1. The said judgment of this Court was assailed before the Hon'ble Supreme Court in C.P. No. 432/03 by the appellant, which was allowed videvrder dated 15.4.2003, with a direction to this Court to decide the question involved afresh on merits in accordance with law. The relevant facts are noted hereunder.

2. The appellant herein was a candidate from Punjab Provincial Assembly Constituency No. 112, Gujrat-V. In the absence of any objection, his nomination papers were accepted by the Returning Officer. On 25 9.2002 Respondent No. 1 filed the aforesaid writ petition with the grievance that the

appellant was not a Graduate, hence disqualified to contest the election and his B.A. result card was forged and fabricated document. The prayers made therein were,--

"(i) a direction to the Station House Officer, Police Station, Muslim

Town, Lahore for registering a case, to recover the forged and

fabricated documents, arrest Tanvir Ashraf (appellant)

alongwith his accomplices and whereafter the culprits may be

. brought to book.

(ii) the University Authorities may be directed to report the forged and fabricated nature of detail marks Certificate attached by the appellant reflecting that he had passed his B.A. First Annual Examination 1980 from the University of the Punjab against Roll No. 26154, to the Election Commission of Pakistan which may be directed to revoke the candidature of the appellant and to prevent him from contesting the Provincial Assembly Election from the said constituency.

(iii) Any other writ, relief or direction expedient in the interest of justice may also be issued in vindication of the grievances afore referred."

1. During pendency of the said petition, the Election was held on 10.10.2002 and the appellant was declared as a returned candidate. The writ petition came up for final hearing before the learned Single Judge on 28.10.2002. On the basis of the comments of University of the Punjab and examination of the original record relating to the roll number of the appellant (register No. 28), the learned Single Judge found that the B.A. result card of the appellant was procured in a fraudulent manner to pose himself as a graduate to contest the election. Accordingly, it was held that the appellant was disqualified to file the nomination papers and the same shall be deemed to have been rejected, as he lacked the requisite qualification in terms of Section 99 (1) (cc) of the Representation of the People Act. 1976. Resultantly, the notification declaring the appellant as a returned candidate was also declared as of no legal effect.

2. As far as the prayer of the writ petitioner/Respondent No. 1 for registration of a criminal case against the appellant is concerned, it was observed that the petitioner may approach the Controller of Examinations, University of the Punjab, Lahore in whose office the offence of fraud and forgery etc. had been committed.

3. Learned counsel for the appellant contends that the learned Single Judge based the impugned conclusion solely on the parawise comments of the University of the Punjab, which were mala fide, factually incorrect and grossly inadequate to establish any fraud or forgery in relation to the result card of the appellant. According to him vide order dated

7.10.2002, University of the Punjab was directed to file written statement while it had earlier filed comments on 5.10.2002 although the learned Single Judge had not so directed. He submits that in fact on 26.9.2002 a notice was issued to the appellant and on the same date a learned Assistant Advocate General asked the University of the Punjab to file parawise comments. He further submits that the appellant appeared in the first Annual B.A. Examination in 1980, he failed in the subject of Political Science, applied for rechecking of the said paper, and, meanwhile, appeared in the second annual B.A, Examination of 1980, in which he failed. However, as a result of rechecking, the petitioner was found to have passed in Political Science paper in first B.A. Annual Examination of 1980 on the basis of which a notification signed by the Controller of Examinations and five other functionaries of the University of the Punjab was issued on 13.1.1993 while the result card was issued on 6.5.1999. He further submits that the position taken by University of the Punjab in parawise comments that the award list was bogus or that the Political Science paper of the appellant was never rechecked, was not based on any material and these conclusions were reached ex-parte.He contended that the assertion of the University of the Punjab in the comments that on rechecking of the university record it was found that Political Science paper of the appellant wfis never rechecked, is a bald assertion. He submitted that on an application made by the appellant on 18.10.2002 before the Controller of Examination of the Punjab University, for inspection of the rechecking record, it was reported that no such record exists. This application, alongwith the report was filed by the appellant with the rejoinder to the parawise comments. He further submits that vide order dated 11.12.2002, this Court permitted inspection of the rechecking record but when the appellant went to the concerned office for the purpose he was informed that rechecking record prior to 1990 was not available. It is being contended that even T according to the parawise comments submitted by University of the Punjab the existence of the award list and notification dated 13.1.1993 was not disputed. He maintains that it was not the case of University of the Punjab that the signatures of the functionaries on the said notification (including that of the Controller of Examination) or on the result card were forged. It is next contended that in the parawise comments the position taken was that on examination of the rechecking record it was found that the Political Science paper of the appellant was never rechecked while at the time of hearing of this Intra Court Appeal there was a shift from this stand with the assertion that no order of the Controller of Examinations of University of the Punjab, in support of the notification dated 13.1.1993, was available on the record. Therefore, the result card was bogus. This stance is borne out by the admitting order of this Court dated 6.1.2003 and is not disputed. The learned counsel for University of the Punjab had also conceded (as noted in the order dated 6.1.2003) that no formal inquiry was conducted before holding the said notification as bogus, therefore, the appellant was condemned unheard.

1. It is next contended that the questions whether the award list, notification dated 13.1.1993 and the result card dated 6.5.1999 were spurious documents, were disputed questions of fact requiring a detailed inquiry, which could not be undertaken in exercise of constitutional jurisdiction. He further contended that the learned Single Judge misread the record and drew wrong conclusions. Reliance was placed on Najaf Abbas Sial v. Kh,Hassan Wali Khan, Additional District Judge/Returning Officer PP-83, Jhang (2003 CLC 1068) to contend that Respondent No. 1 had no locusstandiin the matter.

2. It is further contended that the learned Single Judge granted two reliefs to the Respondent No. 1 i.e., that the appellant was disqualified and the notification declaring the appellant as a returned candidate was of no legal effect, were not even prayed for and, therefore, these could not have been granted, while relief for a direction for registration of a criminal case was declined.

3. Mr. Aitzaz Ahsan, Advocate represents Respondent No. 6, who is. in fact, supporting the appellant. He submits that the nomination of the appellant was not questioned either by any contesting candidate or by an elector. As an elector Respondent No. 1 had the remedy to file objections before the Returning Officer under Section 14(1). of the Representation of People Act (LXXXV) 1976, he-had another remedy under Section 14 (5-A) of the said Act to move the learned Election Tribunal which he did not avail and chose to collaterally impeach the nomination of the appellant which could not be done through a constitutional petition. He further contended that, at the pre-election stage, as an elector, Respondent No. 1 had no locusstandiin the matter and in support thereof relied on the judgment of this Bench of this Court in Najaf Abbas Sail (supra). He further maintains that in Writ Petition No. 18373 of 2002 decided on 28.10.2002 the learned Single Judge, in another case, had declined interference on the petition of an elector, on the ground that disputed questions of fact were involved. Judgment in the case ofNawabzada Mir Balach Khan Marri v. Mir Mohabat Khan Marri and 4 others (PLD 2003 Quetta 42). which involved the question whether the degree of the contesting candidate was genuine or not was also relied upon. The said writ petition was grounded on certain documents supplied by University of the Punjab but the said learned Court declined to interfere on the ground that disputed question of fact was involved. He submits that election of the appellant was not challenged by any contesting candidate, and the writ petition filed by Respondent No. 1 was a surrogate petition. According to him, it lacked bona fides. He contended that there was an allegation of forgeiy against the appellant which was required to be proved by positive evidence which involved examination of the witnesses in presence of the appellant, their cross-examination, evidence in defence and before a proper forum which could not be done in Constitutional jurisdiction.

4. The next limb of his submission was that the decision even of an Administrative Tribunal must be based on positive evidence and not on surmises, conjectures or suspicion alone. Reliance was placed on KhanMuhammad YuusafKhan Khattak v. S.M. Ayub and 2 others (PLD 1973 S.C. 160). to contend that strict proof of disqualification of a returned candidate was required which was lacking in this case. His further submission is that presumption of regularity is attached to all official acts. Notification dated 13.1.1993 was duly pasted in Register No. 28 and very strong evidence was required to displace it. He was also critical of reliance of the learned Single Judge on Muhammad Ramzan v. Deputy Commissioner, Attack and another(PLD 1992 Lahore 322). According to him, the observations recorded in the said case were based on certain admitted facts and, therefore, it was not applicable. On the question whether the learned Single Judge could mould the relief granted to Respondent No. 1, his contention was that although it was within the competence of the learned Single Judge, yet if he intended to grant relief not prayed for by Respondent No. 1 in his.petition, the appellant ought to have been put to notice.

5. Dr. Khalid Ranjha, Advocate, represents Respondent No. 1, the writ petitioner. He submits that Respondent No. 1 had approached this Court on 25.9.2002. The elections had not been held, during the pendency of the said petition, the appellant was declared as a returned candidate and, therefore, the Court could take notice of the subsequent events and mould relief for which no notice was required to be given to the appellant. He submits that for maintaining such a petition i.e. prayer for registration of a case or a direction to University of the Punjab to report the matter to Election Commission to take action against the appellant Respondent No. 1 had locus standi and.as far as the question of qualification or disqualification of the appellant is concerned his position was that of a relater for which it was not necessary that Respondent No. 1 should have been an aggrieved person.

6. It is next contended that the repository of the knowledge, based on the record, in respect of a certificate or a degree of a candidate is the University of the. Punjab and in view of their categorical stand that the Award List was manipulated and the notification dated 13.1.1993 had no basis was rightly accepted by the learned Single Judge who had also examined the original register and was satisfied with the conclusion reached by the Punjab University. He maintains that this Court, hearing this appeal, was exercising the same equitable jurisdiction and, therefore, findings of the learned Single Judge are not liable to interference as the question whether the conclusion of the learned Single Judge was supported by adequate material will be beyond the scope of this appeal. He further contended that in the written statement filed by the appellant he claimed that he had failed in B.A. Annual Examination 1980, on his request his Political Science paper was rechecked and he was found to have passed the B.A. Annual Examination, 1980. However, the appellant suppressed that he had appeared

in B.A. Supplemental' Examination. 1980 and had failed. It is next

maintained that the conclusion of University of the Punjab as regards

genuineness of the notification dated 13.1.1993 was not challenged by the

appellant before any appropriate forum and, therefore no collateral attack

was permissible. On the question of notice and hearing of the appellant, reliance was placed on Mushtaq Ahmed v. University of the Punjab (2001 CLC 1631) to contend that it was not necessary' it could not be said to be an inflexible rule because the question involved related to matter of record and the impugned conclusion of University of the Punjab was based on adequate material. He submits that it depends on the facts and circumstances of each

case whether a detailed inquiry, by associating .a person concerned, was

required to be held and it was a case in which no such detailed inquiry was

necessary. He further submits that even till date the degree has not been

awarded to the appellant and the result card was of no consequence. He

submits that if the degree had already been issued and it was sought to be

withdrawn only then a notice to the appellant and a detailed inquiry was

necessary. He also relied on the reasoning of the learned Single Judge

contained in paras 16 and 17 of the impugned judgment.

1. On the question whether relief could be granted by the learned Single Judge, although'not specifically prayed for in the writ petition, he relied on prayer No. (iii) of the writ, petition to submit that it was fully

covered by the said prayer.

1. Dr. A. Basit, Advocate, represents the University of the Punjab.

He submits that the appellant had been approaching the concerned office of

the University. He was called upon to produce the original result card but it

was not produced. He submits that the appellant will not be in a position to

produce the original result card even before this Court. The learned counsel'

for the appellant, in response to the said challenge, not only produced a cyclostyled copy of the notification dated 13.1.1993 (as the one pasted on the register) but also produced the original result card dated 6.5.1999. Copies thereof were retained on the record while the originals were returned to the appellant. He further submits that a domestic inquiry was held in the matter and there is a report of the inquiry officer (which was conducted by the Controller of Examinations'), fie made over to us a file.but in the later part, during hearing, clarified that the inquiry file was the other file which could not be brought, today but it is available in the office with Secrecy Branch. He further contends that as far as University of the Punjab is concerned, its view regarding the result card and notification dated 13.1.1993 was not tentative, it was absolute and final. He further submits that in fact the result card is of no value unless 15.A. degree was issued. He, however, conceded that on the basis of result card, the appellant could be considered to be a graduate.

1. So far as notice to the appellant and affording him an

opportunity of hearing is concerned, his submission was that it was not

practicable in all cases because a number of complaints are being received daily in University of the Punjab against genuineness of the degrees. The procedure, he explained, was that a preliminary inquiry is held in the first instance in which the concerned party is not required to be heard. It is a fact finding inquiry and if on the basis of the said inquiry it is decided to take further action in the matter then it is referred to the Disciplinary Committee for holding a detailed inquiry by associating the party concerned. According to him, since the award list was forged, no further inquiry in the matter was considered necessary and in this case it was considered sufficient to correct the record of University of the Punjab. He also explained as to when a criminal case is registered by University of the Punjab or disciplinary proceedings are taken. He further submits that the result card, unless followed by the degree was of no legal efficacy and since it was a forged document, it was not even required to be formally cancelled.

1. We have heard the learned counsel for the parties and have perused the record including original register No. 28.

2. The two important questions required to be considered and decided are whether the adverse conclusion reached by University of the Punjab, as affirmed by the learned Single Judge, was backed by tangible material and whether an ex-parte report or finding could be a basis to de-seat, the appellant. The other questions arising in this case are whether the writ jurisdiction could be competently invoked, the locus standiof the vrit petitioner and the relief granted which was not specifically prayed by Respondent Xo. 1. We will like to enter a caveat. We are not determining or called upon to determine whether the award list, the notification dated 13.1.1993 and the result card are genuine documents. The controversy involved is whether there was sufficient tangible material before the university Authorities to declare that the documents relied upon by the appellant were forged. Therefore, any observation made by us in this judgment is to be understood in the context of the said controversy.

3. Register No. 28 relates to B.A. Annual Examination, 1980. This register contains original award list with 40 marks in the paper of Political Science. It refers to B.A./B.Sc. Examination, 1980, Roll No. 26154 and also contains entry dated 20.3.1981 "Award prepared from the scripts" The identity of the person recording this note is riot discernable-. However, below the aforesaid entry there are signatures in red-ink of an official. In the bottom of this document it is shown that Roll No. 26154 had passed. It is signed by another functionary and it is dated 20.3.1981. This document. prinui facie, establishes that the appellant had applied for rechecking of his Political Science paper. The second document pasted on this register is a cyclostyled copy of'notification dated 13.1.1993-in which name of the appellant and his Roll number i.e. 26154 has been mentioned and he has been shown to have passed the B.A. Annual Examination. 1980. This notification was in supersession of the earlier notification dated 29.1.1981.

The date below the signatures of Controller of Examinations, University of

the Punjab, is not clearly legible but the date typed on this notification is 13th January, 1993. Apart from Controller of Examination, this notification was also signed by the Deputy Controller of Examinations-I, Assistant Controller (Exams-II) and the Admin Officer (Exams-ID. We have noted that on this notification apart from the signatures of four responsible officials, there is also an endorsement signed by two officials, one who had prepared it and the other who had checked it. This notification is, prima facie, supported by the award list. The original detailed Marks Certificate produced before us today also shows that it relates to Roll No. 26154. The award list and the I notification dated 13.1.1993 are official documents duly found to exist on the n, J original record. The presumption of regularity was attached to these documents and as rightly contended by the learned counsel (for the

i appellant) very strong evidence, or at least tangible reliable material, was i required to/ondemn the aforesaid documents. It may also be noted that the third documer.1 pasted on.the register is a copy of the report and parawise comments submitted in Writ Petition No. 17699 of 2002 on behalf of the University of the Punjab. It has so been pasted that Roll No. in the notification dated 13.1.1993 has almost been fully covered.

1. It is not the case of the University of the Punjab that the award

list pasted on the register or the notification dated 13.1.1993 bear forged

signatures of thje concerned officials. The case of University of the Punjab

was that the entiy of marks in Political Science were changed on the result

sheet on the register in relation to B.A. Annual Examination, 1980. It is also

not their case that during the inquiiy, statedly conducted by he Controller of

Examinations, any of the functionaries of University of the Punjab, whose

signatures appear on the aforesaid two documents was examined and he had

disowned his signatures. This rechecking record was not produced before

this Court although it was so claimed in the parawise comments. Another

reason to say that the award list or the notification were bogus was that had the appellant passed in- B.A. Annual Examination, he would not have appeared in the B.A. supplementary examination. This is not acceptable because the award list pasted on this register shows that the first note was recorded on 20.3.1981 after the 1980 supplementary examination, which was held after three months of the Annual Examination as held by the learned Single Judge. The notification dated 13.1.1993 was issued after about 12 years of the examination. The learned counsel for the appellant, invited our

attention to the similar notifications of alteration of results of B.A. Examinations, (Annex-R-2 to R-ll with the rejoinder submitted by the

appellant to the parawise comments of the University of the Punjab). Perusal of these notifications presents interesting and intriguing picture. One document relates to Annual Examination held in 1969, while notification altering the result, was issued on 27.8.2002 i.e. 33 years after the examinatipn. Likewise other notifications show, that results were altered after a period ranging between 8 to 32 years. Therefore, the delay in issuing notification after 12 years of the examination could hardly establish the

allegation of forgery. The award list pasted on the register shows that the official concerned had recorded first note thereon on 20.3.1981. It was signed by other functionaries on the same day, nevertheless the University of the Punjab took more than\"l2 years to issue the revised notification dated 13.1.1993. For this delay neither the appellant could be blamed nor any adverse conclusion drawn against him.

1. It may also be noted that during hearing of this appeal, as noted in the admitting order dated 6.1.2003, the learned counsel for University of the Punjab had contended that the notification did not have the backing of an order passed by the Controller of Examinations. We may observe that in fact the notification dated 13.1.1993 was signed by the Controller of Examinations, which amounted to his approval. Further, on this register, we found that in a few cases similar was the situation that the notification of alteration of the result was not backed by any separate order of the Controller of Examinations.

2. Undoubtedly while holding award list and notification dated 13.1.1993 as bogus, no formal inquiry in the matter was conducted and this was conceded by the learned counsel for University of the Punjab and also that whatever exercise was done by University of the Punjab, the appellant was not associated with it. If according to the learned counsel for the University of the Punjab there is no practice of hearing the concerned candidate in a preliminary inquiiy, which is fact finding inquiry, the conclusions arrived at, cannot be said to be "absolute" and "final" as contended by the learned counsel for the University of the Punjab. The file on which statedly preliminary inquiry was conducted, was not produced. Instead, the file produced before us relates to disciplinary action against M/s Mohsin Abbas and Javed Mushtaq. While the former was dismissed, a penalty of stoppage of three increments was imposed upon the other official. This order is dated llth October, 2002 but it does not give the details of the misconduct of the aforesaid officials for which they were punished. On this file there is no other document regarding the inquiiy referred to by the learned counsel for the appellant.

3. The fact that the appellant appeared in the supplementary examination, notification dated 13.1.1993 was n'ot supported by order of the Controller, delay in issuing the revised notification, or even non issuance of the B.A. degree to the appellant could at worst raise, a suspicion biit could not be said to be proof of the fact of forgery as alleged by the learned counsel for University of the Punjab. Reference may be made to Samar Pervaiz v. Board of Intermediate & Secondary Education, Lahore and another (PLD 1971 SC 838). The appellant in the said case was admitted to King Edward Medical College on the basis of detailed marks certificate which the Board Authorities reported had been tampered with. Disciplinary proceedings were taken against him and the result of the appellant was quashed on the ground that the marks were increased from 533 to 643 and the appellant was the

beneficiary thereof. The Hon'ble Supreme Court interfered in the order of the Board quashing the result with the following observations :

"It is true that domestic Tribunals like a University or a Secondary

Board of Education are free from the fetters and the formalities of a

judicial trial, and while these can, consistently with the demands of

justice, be ignored, it does not, by any means, follow that such

domestic forums, while dealing with valuable rights and privileges of

an individual, can snatch them away on conjectural grounds, even

though such grounds may ostensibly appear to be very plausible but

without any valid proof of their tangibility. However, morally

convinced a Judge may fell as to the truth of a particular fact, unless

there is legal proof of its existence, he cannot take it as proved

conjectures and suspicion cannot take the place of proof. A

Tribunal's decision must rest not on suspicion but upon legal

grounds established by legal evidence."

Reference may also be made to Sammddin v. Collector of

Customs (PLD 1989 SC 335). In the said case disciplinary action was taken against a civil servant. In appeal the Honourable Supreme Court interfered

with the observation that

"Conjectures or suspicion cannot take place of proof of a fact"

In the absence of any tangible material, the stance of the University of the Punjab that the award list and the notification relied upon by the appellant

were bogus, to our mind, is not sustainable.

1. Undoubtedly whatever exercise was undertaken by the

University of the Punjab to reach the adverse conclusion, the appellant was not heard. An cx-parte inquiry and conclusion drawn even by a domestic

Tribunal like the University of the Punjab could not be pressed to the

detriment of the appellant. To arrive at a finding adverse to-some person, not only cogent evidence is required but also that the affected person has to be confronted with the material sought to be used against him to fulfill the duty of "adequate disclosure" and the said person is also entitled to an opportunity of defence to rebut that material to satisfy the requirement, of the principles of natural justice and fairness to obey the command of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. The domestic Tribunals like University of the Punjab are not absolved of this duty at least in those cases in which a factual dispute is involved. The learned counsel for the University of the Punjab, today, took up the position that there is no practice of associating a candidate with the preliminary inquiry and if as a result of preliminary inquiry a prima fade case is made out to proceed further, the matter is referred t.o the Disciplinary Committee. Thus, according to him, the fact finding inquiry is not conclusive and further proceedings are required to be taken. In contradiction of this position, he asserted that adverse conclusion drawn at by the University of the Punjab was "absolute"

and "final". This position is not acceptable as it is inconsistent with the stand taken by the University of the Punjab.

1. There is merit in the contention of the learned counsel for the appellant that disputed questions of fact i.e. genuineness of the award list, the notification and the result card were involved and in the summary constitutional jurisdiction it could not have been determined upon the basis of the parawise comments of the University of the Punjab or even examination of the relevant register. In fact, for adjudication of such a controversy, initially the proper forum was the Returning Officer, but before him no such objection was filed and then in an election petition at the instance of an aggrieved person where parties are allowed to lead evidence and thereafter findings are recorded.

2. The learned Single Judge observed that the appellant had not produced any original record to substantiate his claim of having passed in the process of rechecking of his paper. Simultaneously, it was observed that no rechecking record was available in the university. The appellant not being the custodian of record could not have been condemned for not producing the original record, which was in possession of University of the Punjab particularly in view of the position taken in the parawise comments that rechecking record was examined. An other factor relied upon by the learned Single Judge was that according to the result sheet (available on the original register No. 28) of B.A. Annual Examination the appellant got 20 marks which figure was erased of and figure "40" was written and result was interpolated from "Fail" to "Pass". We have examined these entries. The figure "20" was scored of and not erased, and above "20" figure of "40" was written. The entry of 'Pass" is in red ink while the entry of "40" has been initialed. .The figure "40" is duly supported by the original award list pasted on the register. The learned-Single Judge observed that these interpolations, amounted to fraudulent act, although these entries only reflected the result of rechecking, like a number of other entries based on rechecking in the same register. The record was, thus, not, properly appreciated. Other considerations which weighed with the learned Single Judge was that rechecking could only be done within 30 clays of the announcement of result and the notification of revised result was issued in 1993 or that there was no need for the appellant to reappear in the paper of Political Science. This has adequately been explained inasmuch as that even the rechecking was carried out after the supplementary examination. Likewise in view of the fact that in some cases the University of the Punjab took even 33 years to notify the revised result, we are of the view that nothing turned on the fact that the notification of revised result was issued after a delay of 12 years when the original record shows that proceedings of rechecking had been completed on 20.3.1981.

3. The other consideration on which the impugned order is based is that no degree was issued in favour of the appellant. Again, it was the

responsibility of the Punjab University. Further, that learned counsel for the University of the Punjab had frankly stated that the University of the Punjab recognizes the result card as the substitute for the degree because awarding of degrees, specially in past, took a long time.

1. We may also observe here that the result card was based on the

notification dated 13.1.1993. There is no finding in the impugned judgment

that the said notification was a forged document. In fact, no determination, decision or formal order of the Punjab University was shown to us whereby

the award list, the notification dated 13.1.1993 or the result card were.

declared as forged documents.

1. The constitutional petition as filed by Respondent No. 1 did not

contain any specific prayer for the rejection of nomination papers of the appellant. However, the controversy raised and the prayers made in the writ petition were ground on the alleged disqualification of the appellant and, therefore, in substance, the dispute raised by Respondent No. 1 related toi election. In the case of Najaf Abbas Sial (supra),this Bench had taken the

view that an elector is not an "aggrieved person" to maintain a constitutional

I petition against acceptance of nomination papers. We reiterate the said view with a clarification that a remedy of writ of quo warranto may be available to an elector after the completion of the process of election against a returned candidate. The learned Single Judge himself observed that writ of "quo warranto was not maintainable at"this stage". The election process is not to be interrupted by putting an obstructional spoke at the pre-election stageand mere, acceptance of nomination papers of a candidate does not furnish a

justifiable grievance to an elector because the contesting candidate, whose

eligibility is questioned, may or may not succeed in the election while as a result of interference at the pre-election stage the election process may be

confined to casuality ward. As pointed out by Mr. Aitzaz Ahsan, Advocate, Section 14(1) was amended by Ordinance No. XXXVI of 2002 on 31.7.2002

whereby even an elector was permitted to object to the nomination of a

candidate and yet another remedy was provided by Section 14 (5-A) inserted

in Act No. XXXV of 1976 by Ordinance No. XXXVI aforesaid, whereby an

elector could bring to the notice of the Election Tribunal that the appellant

was disqualified to contest the election. These remedies were provided to an

elector which strengthens our view that at the pre-election stage the process

of election should not be interfered with at the instance of an elector except

as provided in Act No. XXXV of 1976 and, therefore, constitutional petition

against acceptance of nomination papers of a candidate by an elector is not

maintainable. We may add here that pre-election challenge to the

nomination of a candidate by an elector is neither a civil right nor a right

founded on the Constitution. It is the creature of the statute and its exercise

is to be regulated by the statute, which created it. This is yet another reason for us to be persuaded to hold that at the pre-election stage, an elector cannot be permitted to interrupt the process of election by way of a constitutional petition. In this view we are fortified by the judgment in the case of N.P. Ponnuswanyi v. The Returning Officer, Namakhal Constituency (A.I.R. 1952 Supreme Court 64). The rule laid down in the above case was followed in the matter of Sri Subrata Chatterjee (AIR 1983 Calcutta 436). In the case of N.P. Ponnuswami (supra) Supreme Court of India made the following observations:

"The right to vote or stand as a candidate for election is not a civil right but is creature of statute or special law and must be subject to the limitation imposed by it."

1. As far as the contention of the learned counsel for the appellant that the learned Single Judge could not have granted the relief which was not even prayed for is concerned, Mr. Aitzaz Ahsan, who is supporting the appellant, has, however, submitted that in the changed circumstances on account of subsequent events, the Court could mould relief and this is permissible by virtue of the provisions contained in Order VII Rule 7 of the C.P.C., the principles of which apply to the proceedings in writ jurisdiction. However, in view of the findings recorded by us in the preceding paragraphs, we do not consider it necessaiy to further dilate on the issue and leave it for decision in any other appropriate case.

2. No doubt .while hearing this appeal we are exercising the same jurisdiction which vested in the learned Single Judge and that this jurisdiction is discretionary in nature. Nevertheless as i'ound by us, the findings of a domestic Tribunal should be based on some tangible material and if an adverse conclusion is to be drawn against a person, he is entitled to clear himself by an opportunity of hearing. We are mindful that if interference in writ jurisdiction results in an unjust consequence, judicial restraint is warranted. Likewise, if non-interference results in an unjust consequence, discretionary jurisdiction could not be withheld. It is not a case in which we are substituting the opinion or finding of a domestic Tribunal like University of the Punjab, it is a case in which adequacy of the material to arrive at the adverse conclusion against the appellant has been under our examination.

3. We may observe that an election dispute is not necessarily to be treated as a lis inter-parties because it involves the entire" constituency. While the electorate is entitled to insist that they are represented only by a duly qualified person, the will of the majority in favour of a returned candidate is to be respected, could not be over-ruled on suspicion and conjectures. As observed by the Honourable Supreme Court, in the case of Aslam-Khattak (supra), the disqualification of a candidate requires strict proof. 33. As far as the contention of the learned counsel for Respondent No. 1 that the proceedings taken by University of the Punjab should have been challenged by the appellant in appropriate proceedings, is concerned, we are not impressed in the facts and circumstances of the case because undoubtedly a formal order cancelling the notification dated 13.1.1993 or the result was never passed or conveyed to the appellant to be challenged. It was stated by the learned counsel of the University of the Punjab that except correction of their record, no other action was considered necessary.

4. As far as the contention of the learned counsel for Respondent

No. 1 based on the case of Mushtaq Ahmad (supra) that in accordance with the rule laid down therein, no notice was required to be given to the appellant is concerned, it has no merit. The said case proceeded on its own peculiar facts. It was found therein that "evidence of unfair means is perfectly plain and transparent" (underlining is ours). With the material placed before the Court, it was satisfied that the petitioner in the said case had not appeared in the examination. It was also noted that the petitioner had not approached the Court with clean hands and no case was made out for interference in exercise of discretionary jurisdiction.

1. In view of the above, the appeal is allowed, the impugned judgment of the learned Single Judge is set-aside. We may, however, observe that this judgment is not to be construed as preventing the University of the Punjab to hold a regular inquiry in regard to the genuineness of the disputed documents after affording an opportunity of hearing and defence to the appellant. If as a result of detailed proper inquiry a conclusion adverse to the appellant is arrived at, nothing in this judgment shall stand in the way of any proceedings, which may be competently taken because the findings we have recorded are based on existing material. No order as to costs.

(A.A.) Appeal accepted.

PLJ 2004 Lahore 26

Present: mrs. fakhar-un-nisa khokhar, J.

Mst. MUMTAZ BIBI alias TAJ KHATOON-Petitioner

versus

SAIFULLAH and 3 others-Respondents W.P. No. 7094 of 2003, heard on 24.7.2003.

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

—-S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Suit for jactitation of marriage-Witnesses of Nikah had admitted their signatures on Nikahnama, which being sacred document carries evidentiary value-­Courts below were influenced by criminal case pending against petitioner and her husband-Criminal prosecution cannot affect adjudication of civil matter-Courts below have not applied their judicial mind rather discussed registered case against petitioner and they have failed to read evidence on record which was cogent and trustworthy-Judgment and decree of Court below was set aside and petitioner's suit for jactitation of marriage was decreed. [P. 29] A

Ms. Shaista Kaisar, Advocate for Petitioner.

Mr. Rab Nawaz Khan Niazi, Advocate for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 24.7.2003.

judgment

This be considered as an admitted case. The brief facts in the instant writ petition are that a suit for jactitation of marriage was filed by the Petitioner that she is the legally wedded wife of Respondent No, 2 as she has performed her Nikah Exh. P.I which is registered in the relevant record of Ward No. 4 of the concerned Union Council and the claim of the Respondent No. 1 Saifullah is fabricated and unlawful one. This suit was resisted. The'Respondent No. 1 Saifullah also brought a suit for jactitation of marriage against Mst. Taj Khatun and alleged that Mst. Taj Khatoon was his legally wedded wife, both suits were consolidated. The consolidated issues were formulated and the evidence was recorded and the learned Family Court Judge vide consolidated judgment and decree dated 18.7.2002 dismissed both the suits. On appeal vide consolidated judgment and decree dated 24.4.2003 the appeal was dismissed. Now, the judgments and decrees passed by both the learned Courts below are under challenge in the instant writ petition. 2. The argument advanced by the learned counsel for the Petitioner is that the Nikah of the petitioner is registered with the concerned Nikah Registrar with Ghulam Qasim and a presumption of truth is attached to the document which is on record. This Nikah Exh. P. 1 was performed by the Petitioner who is sui juris with her free consent. The Respondent Saifullah lodged the criminal complaint under Sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 claiming a Sharai Nikah with the petitioner. Both the learned Courts below, have misread the evidence produced on record and gave a contradictory judgment.

1. Learned counsel for the respondents, from the very outset, acceded to the arguments advanced by the learned counsel for the petitioner that in fact the learned Courts below have wrongly dismissed the suit for jactitation of marriage and they decided Issue No. 2 against Saifullah Respondent No. 1, which is reproduced below:

"Whether the Defendant No. 1 is previous husband of the Plaintiff through an oral Nikah solemnized in accordance with Shariah ? OPD-1.

1. In this way the learned Family Court Judge has decreed the suit but has inadvertently written the same as dismissed.

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

3. A suit for jactitation of marriage was filed by the petitioner claiming that she is the legally wedded wife of one Ghulam Qasim with whom she has solemnized registered Nikah Exh. P. 1 and she sought a declaration to restrain the Defendant. No. 1 Saifullah to claim her as his wife.

4. Mst. Mumtaz Bibi, the Plaintiff herself appeared as PW-1 in support of her version and she stated that her angry father get registered a case against her while she was living with Ghulam Qasim from the date of Nikah while prior to Nikah she was living with her father who wanted to sell her and she left the house one week before the Nikah. She was supported by Muhammad Akram Khan, the witness to Exh. P.I and then Muhammad Ramzan who is also _a witness to Exh. P. 1 and both of them have unanimously supported the Petitioner/Plaintiff that she married of her own accord and she thumb-marked the Nikah Nama. Muhammad Ramzan PW-3 is also the Nikahkhawan.

5. DW-1 is Suleman, the father of the Petitioner. He stated on oath that he solemnized Sharai Nikah of the petitioner on 23.3.2002 with his nephew. In cross examination he admitted that Saifullah Defendant resides in Union Council Shahbaz Khel while his Mauza is Ahmad Khan Wala and Union Council is Shahbaz Khel. He stated in cross-examination that he does not know that Ghulam Qasim has solemnized Nikah with his daughter. It as a fabricated Nikah and he has get registered a case. He also admitted that his daughter has filed a suit for jactitation of marriage prior to the suit filed by Saifullah, the Respondent No. 1. DW-2 is Saifullah. He stated that the petitioner is his paternal cousin, and his Nikah was solemnized prior to the petitioner's Nikah with Ghulam Qasim. He also admitted that the elder sister of the Petitioner is still unmarried and she is of his age and the Plaintiff is three years younger than the elder sister. He was supported by DW-3 Ahmad Nawaz who admitted in cross-examination that the Petitioner/Plaintiff is 27/28 years old and he is not a witness to Nikah. DW-4 is Hafiz Ghulam Hussain. In cross-examination he stated i;hat he has never seen the Plaintiff. The Nikah was Sharai and the consent of the plaintiff was not taken. DW-5 is a Nikah Registrar. He stated on oath that he is the Nikah Registrar of Mujahid Town, Mianwali. Maulvi Muhammad Ramzan came to his house in his absence. He took the Nikah Register and after three days he returned the Nikah Register. When he checked the same the Nikah of the petitioner was found with Ghulam Qasim and he cancelled the same being fictitious. In cross-examination he admitted that Muhammad Ramzan is Nikah Khawan of Mujahid Town and he was the Nikah Registrar. He also admitted that in the Nikahnama Exh. P. 1 his stamp is affixed and he also admitted that it carries his signatures but he does not remember who got this Nikah signed by him and voluntarily sought that Ramzan must have got his signatures through fraud.

6. After perusing the evidence on record this Court has found out that the findings of the learned Family Court Judge on Issue No. 1 are entirely the result of misreading of evidence on record. Even on Issue No. 2 there is positive speaking judgment of the learned Family Court Judge that the Nikah with the Respondent Saifullah does not stand proved. The petitioner had appeared as her own witness. She has produced the witnesses of Nikah. The DWs have admitted their signatures on Exh. P. 1 which is sacred document and carries an evidentiary value and the learned Appellate Court has not even bothered to read the evidence. It seems that both the learned Courts below are influenced by a criminal case pending against the petitioner and her husband. The criminal prosecution cannot affect the adjudication of a civil matter. A Family Court being a Civil Court has to decide the case on material issues, in accordance with the evidence on record. This Court is of the view that both the learned Courts below have not applied their judicial mind rather discussed the registered case against the petitioner and they have not read the evidence on record which was trust worthy and material witnesses to the Nikah were produced and cross examined by the learned counsel for the Defendant and nothing exists on record not to believe them. They have also misread the evidence in respect of the DWs. Nikah Registrar has admitted that he had signed Exh. P. 1 The petitioner successfully has proved her case that she is the legally wedded wife of Ghulam Qasim as she was sui juris and she had given her free consent and the Nikah was a registered Nikah.

7. Under above circumstances instead of decreeing the suit of the jplaintiff the learned Courts below dismissed the same under sheer influence of criminal prosecution without applying their mind judiciously to the evidence on record. In this way the learned Courts below failed to decide the case within their lawful jurisdiction. Therefore, I accept this writ petition and set aside both the judgments and decrees passed in the suit for jactitation of marriage in favour of the Petitioner and decree the suit for jactitation of marriage and dismiss the suit of the Defendant/ Respondent-1.

(A.A.) Petition accepted.

PLJ 2004 Lahore 30

Present: saved zahid hussain, J. KHAAVIR SAEED RAZA-Petitioner

versus

WAJAHAT IQBAL-Respondent C.R. No. 83 of 2003, heard on 6.3.2003. Civil Procedure Code, 1908 (V of 1908)--

—Ss. 36 & 115--Disposal of suit in terms of compromise of parties-No decree was drawn by Court-Terms of compromise recorded by Court-Execution-Competency-Provisions of C.P.C. relating to execution of decree are applicable to order disposing of suit in terms of compromise as per provisions of S. 36 of C.P.C.-Execution proceedings against order in question, were thus, maintainable-Even disputed issues can be raised before Executing Court which would resolve the same in accordance with law after affording due opportunity to both parties. [P. 31 & 32] A & B

1991 SCMR 425; AIR 1935 P.C. 119; AIR 1957 All 820; 1995 SCMR 766; 1997 SCMR 117; 1998 SCMR 380; AIR 1934 Bom. 452; PLD 1961 Dacca

842 re/1.

Mr. Muhammad Shahzad Shaukat: Advocate for Petitioner. Mr. Muhammad Javed Hafeez, Advocate for Respondent. Date of hearing : 6.3.2003.

judgment

In a suit, for rendition of account instituted by the respondent against the petitioner, a compromise was arrived at between the parties out of the Court, which was produced in Court on 30.3.2002 Mark-C/1 and the suit was disposed of in terms thereof. For the execution of the said .order execution proceedings were taken out by the respondent, which petition was. however, dismissed by the executing Court on 5.6.2002 taking the view that since there existed no decree execution proceedings were incompetent. That order was assailed by the respondent, by-instituting a revision petition which was later converted into appeal and decided by the learned Additional District Judge, Lahore on 2.12.2002 who took the view that such an order was executable and the execution proceedings were competent. Setting aside order of the executing Court the matter was remanded by him "to proceed with the execution proceedings in accordance with law". This order has now been assailed through this revision petition by the defendant in the suit.

1. It is contended by the learned counsel that since no decree was prepared by the trial Court while dismissing the suit in terms of the compromise, no executable decree was in existence nor any execution khaavir

proceedings were maintainable under the law. It is contended that the appellate Court has acted erroneously and illegally in reversing the order passed by the executing Court. Reliance in this context has been placed upon Sindh Road Transport Corporation vs. Major (Rtd.) S.M. All Zaheer Khan (1991 SCMR 425), (Babu) Sheonandan Prasad Singh and others us. Hakim Abdul Fateh Muhammad Raza and another (AIR 1935 Privy Council 119) and Laraiti Devi vs. Sia Ram (AIR 1957 Allahabad 820). Contrarily, the learned counsel for the respondent in his endeavour to support the order of the learned appellate Court has contended. that even such an order which is in the nature of an undertaking can be enforced by the executing Court and dismissal of the execution petition by the executing Court was unwarranted by law. Hassan Masud Malik us. Dr. Muhammad Iqbal and others (1995 SCMR 766), Mehar ZulfiqarAU Babu and 3 others vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others (1997 SCMR 1.17), West. Pakistan Paint Mills iPvt.) Ltd. vs. Muhammad Ashraf Shaguft-a, Additional District Judge, Lahore and others Q998 SCMR 380} and an unreported judgment of the Hon'ble Supreme Court in Muhammad Ibrahim os. Muhammad Munir Bhutta (CPLA No. 1985/96) have been relied upon by him to support his contention.

1. The material on the record has been perused with the assistance of the learned counsel for the parties and considered.

2. There is no denial of the fact that compromise Mark-C/1 was arrived at between the parties which was produced before the Court and the suit was disposed of in terms thereof dismissing the same on 30.3.2002. The terms of the'compromise are clearly stated in Mark-C/1. Whereas certain payment had to be made by the petitioner according to the time schedule mentioned therein, the respondent /plaintiff had to perform his part. Whether any decree was drawn by the trial Court in terms of the compromise Mark-C/1 is not the point. Compromise is admitted which became part of the order, which stipulated the withdrawal of the suit by the respondent. Under Section 36 of Civil Procedure Code, 1908, the provisions of the Code relating to the execution of decree are also applicable to orders. Even if there was no decree in existence an order disposing of the suit in terms of the compromise is very much there, binding upon and operative qua the parties. In Kilchand Devchand & Co. vs. Ajodhyarasad Sukhanandand others (AIR 1934 Bombay 452), it was observed that if the Court had jurisdiction to make the order it had necessarily the power and jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect. Likewise in Ran]it Singh Hazari and others vs. Juman Meah'and another (PLD 1961 Dacca 842) Section 36 of the Civil Procedure Code was considered -by the learned Division Bench of the then High Court of Dacca (East Pakistan) and it was observed that the provisions regarding execution of decree were applicable to orders as well. Thus, besides the reasonings advanced by the learned Additional District Judge on the strength of the precedents referred to by him in his order, the above

mentioned precedents also support the view of the appellate Court. Reliance of the learned counsel upon Sindh Road Transport case (Supra) is not apt inasmuch as decree passed in the precedent case was admittedly beyond the scope of the suit and was held to be inexecutable, whereas in the instant case it is not so, rather the terms of compromise Mark-C/1 are admitted and even some suit has also been filed by the petitioner on that basis. There are, however, allegations and counter allegations by the parties attributing breach of the terms of the compromise to the other. According to the learned counsel for the petitioner a sum of Rs. 4,00,000/- had already been paid by the petitioner and despite that the respondent failed to honour his part of the agreement and commitment. On the other hand the learned counsel for the respondent vehemently controverts such an assertion and states that not a single penny has so far been paid by the petitioner in pursuance of the compromise. Even this disputed issue can be raised before the executing Court which shall resolve the same in accordance with law after affording due opportunity to both of them.

As a result of the above the judgment of the learned Additional

(District Judge, Lahore does not call for any interference by this Court. The

revision petition is accordingly dismissed. Let the parties cause their

representation before the executing Court on 18.3.2003, who will then

i proceed in the matter in accordance with law.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 32

Present: MUHAMMAD SAI-R ali, J. MUHAMMAD IBRAHIM and another-Appellants

versus

MUHAMMAD ISMAIL and 4 others-Respondents

F.A.O. No. 375 of 2002, decided on 8.4.2003.

Partition Act, 1893--

—S. 8-Order of sale of property in partition suit, would be deemed to be a decree where against Regular First Appeal would be competent rather than F.A.O.--Office was directed to convert petitioner's F.A.O. into Regular First Appeal upon completion of necessary formalities and payment of requisite Court fee and the same be placed before Division Bench. [P. 34] A & B

PLD 1977 SC 634; PLD 1975 SC 9; 1981 CLC 1039 and . PLD 1990 Lahore 390 ref.

Mr. Riaz Alt Abbasi, Advocate for Appellants.

Mr. Nazir Ahmad Kamboh, Advocate for Respondent No. 3.

Mr. Muhammad Mazhar Hussdin, Advocate for Respondent No. 4.

Mr. Khurshid Iqbal, Advocate for Respondent No. 1.

Date of hearing: 8.4.2003.

order

Appellants have filed this First Appeal (FAO No. 375/2002) against judgment/o"der dated 14.5.2002 passed by learned Civil Judge, 1st Class, Lahore, observing in relief para-7 that "plaintiffs suit is finally decreed and

Mr. Mohsin Abbas, Advocate..... is appointed as Court Auctioneer who shall

hold the auction of the properties mentioned at Serial Nos. 1 to 7 in the preliminary decree...... " In para-8 it was observed as under :--

"The decree sheet shall be drawn after the auction of the properties according to the valuation and the report of the auctioneer wherein subsequently the plaintiff shall be directed to file stamp duty for preparation of the decree sheet... "

1. Learned counsellor the appellants states that since decree was to be drawn up subsequent to the judgment dated 14.5.2002, therefore, he has filed FAO against the above said judgment/order, directing sale of the properties. And relying upon judgment of the Hon'ble Supreme Court of Pakistan in the case of "Mst. Elahi Noor and 4 others vs. Muhammad Din"(PLD 1977 SC 634), it is contended that Hon'ble Supreme Court of Pakistan has held that "An order for the sale of property in a partition suit is a decree within the meaning of the Civil Procedure Code." And the learned counsel, thus, states that appeal against order (F.A.O.) was maintainable.

2(a). Serious objections have been raised by the learned counsel for the respondents to the maintainability of the present appeal against order on the ground that appellants have to file an R.F.A.

1. I have considered the submissions of the learned counsel for the parties as well as the provisions of law. Section 8 of the Partition Act 1893 meets the present situation by providing as under:

"Any order for sale made by the Court under Section 2, 3 or 4 shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure, 1908."

3(a). The Hon'ble Supreme Court of Pakistan in the cases of "Mirza Adam Khan vs. Muhammad Sultan" (PLD 1975 SC 9) and "Mst. Elahi Noor and 4 others vs. Muhammad Din (PLD 1977 SC 634), was pleased to settle the question as herein raised by observing that an order for the sale of property in a partition suit is a decree within the meaning of Section 2 of the Civil Procedure Code.

3(b). The Hon'ble Karachi High Court in the case of "Muhammad Saleheen and 9 others vs. Muhammad Siddique Mazhar and 12 others" (1981 CLC 1039), after discussing the provisions contained in Sections 3 and 8 of the Partition Act, adjudged that an order for sale made by the Court under Section 3 was deemed to be a decree and Regular First Appeal was competent there-against.

,3(c). The above reproduced provisions of the Partition Act and judgments of the Hon'ble Courts clearly provide that an order for sale made by the Court was to be deemed to be a decree within meaning of Section 2 of Civil Procedure Code, 1908.

4.Natural and logical consequence thereof is that since order of sale i of property in a partition suit is deemed to be a decree, therefore, an appeal !to challenge the said order shall be a regular appeal as against a decree. I am i fortified by the provisions of Rule 11, Order VII read with Section 2(2) of the

Civil Procedure Code, which provide that an order of rejection of plaint shall be deemed to be a decree under Section 2(2) of the Civil Procedure Code, as definition of the decree given therein "shall be deemed to include the rejection of plaint." In the case of "Manzoor Ahmad vs. Syed Mushtaq Ahmad and 1 other" (PLD 1990 Lahore 390), this Court went to the extent of holding that "In a case of rejection of plaint, it is not necessary to file certified copy of the decree alongwith memorandum of appeal directed against such rejection."

1. The effect of provisions of Section 8 is that an order of sale made by the Court in a suit for partition is deemed to be a decree within the meaning of Section 2 of the Civil Procedure Code, wherefore, I am of the opinion that in the present case Regular First Appeal shall lie from judgment/order dated 14.5.2002 passed by learned Civil Judge, Lahore, directing sale of the property and finally decreeing suit of the petitioner in terms of the said judgment, through postponing the framing of the decree to finalization of the auction proceedings. Judgment/order dated 14.5.2002 is to be deemed to be decree as per provisions of Section 8 of the Partition Act read with Section 2(2) of the Civil Procedure Code.

2. Office is, thus, directed to convert petitioners' F.A.O. into a Regular First Appeal upon completion of necessaiy formalities and payment

i of requisite Court-fee. After proper conversion of this F.A.O. into a Regular | First Appeal, the same shall be placed for hearing before an Hon'ble Division Bench of this Court as per law and procedure.

1. In view of what has been discussed above, interim order dated 1.8.2002 is recalled.

(A. A.) Order accordingly.

PLJ 2004 Lahore 35

[Rawalpindi Bench Rawalpindi]

Present: M. AKHTAR SHABBIR, J. DOST MUHAMMAD-Petitioner

versus

MUHAMMAD RAFIQ-Respondent C.R. No. 26 of 2003, decided on 31.3.2003.

Limitation Act, 1908 (IX of 1908)--

—-Art. 181-Civil Procedure Code, 1908 (V of 1908), O. XX, R. 14 & S. 115- Execution of pre-emption decree-Limitation--No period of limitation after omission of Art. 182 of Limitation Act 1908, having been provided for execution of decree, residuary Article 181 of Limitation Act would be attracted-Execution application having been filed after three years from dismissal of application for leave to appeal, the same was barred by three months-Trial Court had rightly dismissed execution application as being barred by limitation-Appellate Court had thus, wrongly remanded case to trial Court for disposal of same in accordance with law-However, pre- emptor after depositing purchase money in Court in compliance with pre­ emption decree becomes vested with property and even if execution petition was barred by limitation, revenue functionaries were bound to implement such decree in record. [P. 37] A & B

1992 SCMR 241 and PLD 1973 Lahore 207 ref.

Mr. Mujeeb-ur-Rehman Kiani, Advocate for Petitioner. Mr. Zahoor Ahmad Bokhari, Advocate for Respondent. Date of hearing : 31.3.2003.

judgment

A decree for possession through pre-emption had been passed in favour of Muhammad Rafiq respondent and against Dost Muhammad petitioner/defendant, in Civil Suit No. 376 of 1983, vide judgment decree dated 31.3.1986. The appeal filed by the defendant/vendee/petitioner had also been dismissed. The petitioner also remained unsuccessful in the revision petition and Civil Petition for Leave to Appeal No. 972/1988 which was dismissed on 14.1.1999.

1. The decree-holder/respondent has filed an execution petition on 4.2.2002 which was objected by the judgment-debtor that the decree for pre-

emption passed in favour of the.plaintiff/decree-holder cannot be enforced through an execution petition as the same was barred by three months. The Executing Court dismissed the objection petition vide his order dated 15.11.2002 observing that the same was barred by limitation. The appeal filed by the plaintiff/respondent has met with success vide, judgment dated 21.12.2002 passed by the learned Additional District Judge, Attock, who while allowing the appeal remanded the case to the Executing Court with the direction to proceed in accordance with law. The above said order of the learned appellate Court has been called in question through the instant revision petition.

1. Learned counsel for the petitioner has contended that the decree passed by the learned trial Court had lost the merge into the decree of the Supreme Court after dismissing the Civil Petition for Leave to Appeal No. 972 of 1988 filed by the petitioner on 14.1.1999 whereas the execution

petition had been filed on 8.4.2002 which is barred by limitation about three

months. In support of his contention, reliance has been placed on Maulvi Abdul Qayyum vs. Syed Ali Asghar Shah and 5 others (1992 S.C.M.R. 241).

1. On the other hand, learned counsel for the respondent has vehemently opposed the arguments of the learned counsel for the petitioner contending that the execution petition was filed quite within time and Article 183 of the Limitation Act, 1908, is attracted to the facts of the present case which has provided the period of limitation for enforcement of judgment -and decree as six years. He has also contended that the revenue functionaries are bound to implement the decree for pre-emption even if the time for filing of the decree has expired. In this context, he relies on AliAhmad and an other vs. Muhammad Fazal and another (P.L.D. 1973 Lahore 207).

2. I have heard the learned counsel for the parties and perused the record. Article 182 of the Limitation Act, 1908, has been omitted by amendment in the Law Reforms Ordinance, 1972, whereas Article 183 of the Limitation Act deals with the enforcement of judgment, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction or an Order of the Supreme Court. No limitation has been provided for execution of a decree of the trial Court which even merged into the decree of the final appellate Court and where no period of limitation is provided elsewhere in the Schedule or by Section 48 of the Code of Civil Procedure, the provisions of Article 181 of the Limitation Act would be attracted to that case which has provided the period of limitation for three years.

3. The decree of the trial Court has been merged into the decree of the Supreme Court under the Rule of merger Article 181 of the Limitation Act does not refer either to decree of appellate Court or revisional Court but anchors commencement of limitation period on accrual of right to apply and such right legitimately arises when the appeal is finally disposed of by the Supreme Court by one way or the other. In the above said case of Maulvi Abdul Qayyum, the Hon'ble Supreme Court has observed that a petition for execution of the decree has to be made within three years of the date of accrual right to apply and as to when such right arises.

4. The decree in a pre-emption suit is of a peculiar nature and according to the provisions of Rule 14 of Order 20 CPC, the title of the property accrues to the decree-holder on payment of purchase money in Court together with costs. Since no period of limitation for execution of a decree has been provided in the Limitation Act after the omission of Article 182, therefore, the residuary Article 181 of the Limited Act is attracted in such circumstances and no other Article governing the period of limitation of execution of decree of the Civil Court is available. The instant execution petition has been filed after the expiry of three years with effect from the dismissal of Civil Petition for Leave to Appeal No. 972 of 1988 of the petitioner dated 14.1.1999. The execution petition has been filed on 8.4.2002 which was barred by about three months. The learned trial Court has rightly dismissed the execution petition observing the same as barred by limitation. Therefore the judgment of the learned appellate Court is in conflict with the dictum laid down in the case of Maulvi Abdul Qayyum cited supra, as such the same is not sustainable in law, hence it is set aside. Resultantly, for the foregoing reasons, this civil revision is accepted with no order as to costs.

5. However, the pre-emptor after depositing the purchase money in the Court in compliance of the pre-emption decree becomes vested with the property and even if the execution petition is barred by limitation, the revenue functionaries are bound to implement the decree in the record as the right and title of the decree-holder to the property which he had acquired by virtue of decree for pre-emption is not extinguished. The decree- holder/respondent may approach the revenue functionaries for redressal of his grievance in the shape of incorporating the decree for pre-emption in the revenue record as laid down in the case of All Ahmad and another vs.Muhammad Fazal and another (P.L.D. 1973 Lahore 207).

(A.A.) . Revision accepted.

PLJ 2004 Lahore 38

Present: CH. IJAZ AHMAD, J.

PROFESSOR YAMEEN-UD-DIN, DVOCATE-Petitioner

versus

LAHORE GRAVEYARD COMMITTEE and another-Respondents W.P.No. 18706 of 1998, decided on 29.5.2003.

General Clauses Act, 1897 (X of 1897)--

—-S. 24-A--Duty and obligation of public functionaries stated-Public functionaries are obliged to act justly and fairly in accordance with law without any element of discrimination and squarely within parameters of law-Official respondent was directed to process case of petitioner in accordance with law and to initiate proceedings against encroacher, in accordance with law-Official respondent was also directed to forward

application of petitioner to respondent committee so that respondent should proceed against encroachers in accordance with law-Copy of order was directed to be sent to the Chief Secretary and Inspector General of Police to act in the matter in accordance with law.

[P. 39 & 40] A

PLD 1973 SC 49; PLD 1993 SC 473 and PLD 1973 SC 342 ref.

Dr. Hameed Ahmad Ayaz, Advocate for Appellant.

Mr. M. Hanif Khatana,A.A.G. Kh. M. Afzal, Legal Advisor Corporation Respondents.

Date of hearing: 29.5.2003.

judgment

The petitioner submits that he has moved various applications before Respondent No. 1 but it did not take action against the encroachers. He further submits that it is obligation of the public functionaries to perform duties in accordance with law. Learned counsel for Respondent No. 1 submits that this writ may be treated as public interest litigation as the land of grave yard has already been encroached by various people without any justification. She has relied upon an unreported judgment of the Hon'ble Supreme Court in civil petition for leave to Appeal No. 305 of 2002 dated 17.12.2002 wherein the Committee has initiated proceedings against the Ex.

Chairman of the Committee and the action of the Respondent No, 1 was upheld. Kh. Muhammad Afzal, Legal Advisor of Respondent No. 2 submits that in case Respondent No. 1 forwards the case of the petitioner to Respondent No. 2 then respondent No. 2 shall take action against the encroachers in accordance with law. Learned Additional Advocate General submits that Lahore Graveyard Committee has been constituted under the provisions of Miani Sahib Graveyard Ordinance, 1962. The Committee is duty bound to initiate proceedings against the encroachers and also secure help from Respondent No. 2.

1. I have given anxious consideration to the contentions of the learned counsel for the parties and have perused the record minutely.

2. Learned counsel of Respondent No. 1 has prayer to convert this writ petition into public interest litigation which has no force. It is duty and obligation of the public functionaries to act in accordance with law as envisaged by Article 4 of the Constitution. Our Constitution is a social binding between the following parties i.e. legislature, executive judiciary, citizens. Our Constitution is based on trichotomy of power. Court has only jurisdiction to interprete the law and has no jurisdiction to take the role of legislature or policy maker as per law laid down by the Supreme Court in the following judgment :--

3. PLD 1973 SC 49 (Zia-ur-Rehman and others case).

2.PLD 1993 SC 473 (Mian Muhammad Nawaz Sharif case).

1. Supreme Court has prescribed the duties of the public functionaries in Shaukat Ali's case (PLD 1997 SC 342). The relevant observation is reproduced as under:

"We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring' about an egalitarian society based on Islamic Concept of fairplay and social justice. The State functionaries like Railways are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences by the Railways, will be treated fairly."

1. Subsequently the Hon'ble Supreme Court after interpreting Section 24(A) of General Clatises Act laid down principal that public functionaries are also obliged to act justly and fairly in accordance with law without any element of discrimination and squarely within the parameters

of law in M/S Airport Support Services Case (SCMR 1998 SC 2268). In this view of the matter Respondent No. 1 is directed to process the case of the petitioner in accordance with law and shall initiate proceedings against the encroachers in accordance with law. Respondent No. 1 is further directed to forward the application of the petitioner to Respondent No. 2 so that the Respondent No. 2 shall proceed against the encroachers and take action in j accordance with law. In view of the circumstances copy of the order | alongwith writ petition and report and parawise comments be sent to the j Chief Secretary, Government of Punjab and Inspector General Police who are also directed to give directions to the concerned quarters to perform their | duties in accordance with law, keeping in view the provisions of Punjab I Local Government Ordinance, 2001 and Miani Sahib Graveyard Ordinance, j 1962 so that the competent authorities shall observe the provisions of the I aforesaid laws and initiate proceedings against the encroachers, civil as well | as criminal, in accordance with law. The learned Law Officer is directed to ! notify the order to the Chief Secretary and Inspector General of Police for j necessary action and information. With this observation this writ petition is j disposed of.

(A.A.) Order accordingly.

PLJ 2004 Lahore 40

[Rawalpindi Bench Rawalpindi]

Present: maulvi ANWAR-UL-HAQ, J.

CH. NAZAKAT ALI and another-Petitioners

versus

Mr. MANZOOR HUSSAIN MALIK, DISTT. & SESSIONS JUDGE, ATTOCK ELECTION TRIBUNAL, RAWALPINDI and 10 others-Respondents

W.P. No. 1817 of 2003, decided on 3.7.2003. Constitution of Pakistan (1973)--

—-Ait. 199-Nazim's election as returned candidate of concerned union council was declared to be null and void on the proof of disqualifications attached to him-Election of Naib Nazim against whom no allegations of disqualification were stressed or proved cannot be set aside only upon finding that his co-respondent (elected nazim) suffered from disqualification alleged and proved against him. [P. 42] A

PLD 1003 Lah. 103 and PLD 1976 SC 6 ref.

Syed M. Zafar Ullah Salari, Advocate for Petitioners. Date of hearing: 3.7.2003.

order

Petitioners and, inter alia. Respondents Nos. 4 and 5 contested election to the seat of Nazim and Naib Nazim in Union Council No. 12 Rawalpindi. Respondents Nos. 4 and 5 were declared returned. The petitioners challenged their election by filing an election petition on 6.8.2001. A reading of election petition shows that it was alleged only against Respondent No. 4 that he is smuggler, habitual offender and history-sheeter. Several other allegations on the same line were made against him. Respondents Nos. 3 and 4 filed a written statement on 23.11.2001 wherein the said allegations were denied. Issues were framed and evidence was recorded. Vide judgment dated 4.9.2002 learned Election Tribunal allowed the said application and set aside the election of both the Respondents Nos. 3 and 4 and at the same time declared the petitioners as returned to the said seats. Against t his judgment W.P. No. 2622/02 was filed by Shabbir Hussain Respondent No. 3 while Writ Petition No. 2637/02 was filed by Ilyas Khan Respondent No. 5. Both the writ petitions were heard together. Vide judgment dated 17.9.2002. Writ Petition No. 2622/02 filed by Shabbir Hussain Respondent No. 4 was dismissed and Writ Petition No. 2637/02 filed by Ilyas Khan Respondent No. 4 was allowed. Now against judgment passed in Writ Petition No. 2622/02, Shabbir Hussain Respondent No. 4 filed a CP, No. 1644/02. I am told that no appeal was filed against the judgment wh- reby Writ Petition No. 2637/02 filed by Ilyas Khan (Naib Nazim) was allowed. Be that as it may, CPLA No. 1644/02 was converted into an appeal and allowed vide judgment dated 16.10.02 of the Hon'ble Supreme Court the matter was remanded back to the learned Election Tribunal for decision a fresh of the election petition after affording an opportunity to the respondents (present petitioners) to produce independent evidence to prove that it was the petitioner (present Respondent No. 4) to whom the documents Exh. Al to A18 on record pertained.

1. After remand the learned Tribunal commenced proceedings in compliance with the order of Hon'ble Supreme Court. Further evidence was recorded. Vide judgment dated 21.4.2003 the election of Respondent No. 4 has been declared to be null and void and set aside. Petition against Ilyas Khan Respondent No. 4 has been dismissed. Learned Tribunal has directed fresh election to the seat of Nazim U.C. 12.

2. Learned counsel for the petitioners contends that the learned Tribunal has acted without lawful authority inasmuch as he ought to have declared Petitioner No. 1 as returned to the seat of Nazim after setting aside election of Respondent No. 4. Further contends that the election of Respondent No. 5 was also liable to be set aside, notwithstanding the fact that no allegation whatsoever was made against him in the election petition.

3. I have examined the records. Starting from the judgment in the case of Syed Saeed Hassan u. Pyar All and 7 others (P.L.D. 1976 S.C. 6), it has been the consistently view of the superior judiciary that upon setting aside of election of a returned candidate, the election petitioner can be declared elected only if it is alleged and proved that disqualification attributed to the returned candidate was so notorious that the entire electorate was fully aware and only upon establishment of the said fact could the votes cast by the majority could be said to be thrown away votes.

4. I called upon the learned counsel for the petitioners to demonstrate as to where is allegation and where is the evidence that the electorate was aware of the said mis-deeds attributed to Respondent No. 4. He is unable to do so. I, therefore, reject the said contention.

5. So far as the second contention is concerned, I have narrated the history of the case in brief above. Now to my mind, that part of the judgment dated 17.9.2000 whereby Writ Petition No. 2637/02 filed by Ilyas Khan Respondent No. 5 was allowed was not questioned before the Hon'ble Supreme Court. Copy of the judgment dated 16.10.02 discloses that CPLA. No. 1644/02 was filed only be Shabbir Hussain Respondent No. 4 against the judgment inasmuch as Writ Petition No. 2622/02 'filed by him was dismissed. Only one respondent i.e. Respondent No. 10 is stated to be represented by learned A.S.C. and A.O.R. In the copy of the judgment as well no contentions were raised and of course noted regarding the acceptance of the writ petition filed by Ilyas Khan Respondent No. 5. Be that as it may, since vide operative part of the judgment of the Hon'ble Apex Court the judgment dated 17.9.2002 of this Court was set aside, I have examined the said contention as well. Now the learned Election Tribunal has decided the petition with reference to a judgment of this Court in the case of Ch.Maqbool Ahmad and others, v. Malik Falak Sher Farooq etc. (PLD 2003 Lahore 138) that the election of Respondent No. 5 Naib Nazim is not to be set aside only upon finding that Respondent No. 4 suffers from disqualification alleged and proved against him. I am in respectful agreement with the said judgment. This has been consistent view of this Court for reasons stated in several judgments including judgment dated 17.9.2002 and

not questioned before the Hon'ble Supreme Court. The writ petition is dismissed in limine.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 43

[Multan Bench Multan]

Present: farrukh lateef, J.

KHALID SAEED etc.--Petitioners

versus

NADEEM AHMAD KHAN etc.-Respondents W.P. No. 323 of 2003, decided on 11.6.2003.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 13(6)-Constitution of Pakistan (1973), Art. 199--Petitioner had not admitted relationship of landlord and tenant and in miscellaneous application they had claimed co-ownership in property in dispute- Petitioners admittedly had not yet filed written reply-Order of Rent Controller directing petitioners to deposit rent being without jurisdiction can be assailed in writ jurisdiction-Case was remanded to Rent Controller to decide the same in accordance with law. [P. 44] A

Ch. Abdul Ghani, Advocate for Petitioner.

Mr. Saghir Ahmad Bhatti, Advocate for Respondent No. 1.

Date Tfhearing: 4.6.2003.

judgment

Brief facts necessary for the disposal of this Constitutional petition are that Respondent No. 1 had filed an application under Section 13 of the Urban Rent Restriction Ordinance, 1959 for the ejectment of petitioners claiming that they were tenants at the rate of Rs. 2,000/- per month vide agreement deed dated 3.5,1999 and had defaulted in payment of rent since April, 2000.

1. The petitioners filed an application for rejecting the rent petition on the ground that they are co-owners of the property in question and a civil suit for declaration and partition in respect of the said property is pending in Civil Court at Burewala.

3 The said application was opposed by Respondent No. 1 and it was ultimately dismissed by the Rent Controller vide order dated 8.1.2003. On the same day an order under Section 13(6) of the Rent Restriction Ordinance was passed by him directing the petitioners to deposit arrears of past rent since April, 2000 at the rate of Rs. 2,000/- per month within fifteen days and to deposit future rent due at the same rate before 15th day of each month.

1. The aforesaid order of Rent Controller is called in question in this Constitutional petition on the ground that Rent Controller had exceeded his jurisdiction inasmuch as the petitioner had not so far submitted reply to the rent petition and that in the application submitted by the petitioners for rejecting the rent petition, they had claimed joint ownership in the disputed property and had never admitted the relationship of landlord and tenant.

2. Writ petition is strongly opposed by the learned counsel for Respondent No. 1 on the ground that order under Section 13(6) of the Rent Restriction Ordinance is an interim order against which writ does not lie.

3. Arguments heard. Petition and its annexures perused.

4. There is no cavil to the proposition that an order passed by Rent Controller under Section 13(6) ibid is not amenable to writ jurisdiction but such order can be passed by the Rent Controller only when relationship of landlord and tenant is shown to be existing or is admitted to be existing.

5. In the present case such relationship was not admitted by the petitioners and in a miscellaneous application filed by them for rejecting the rent petition they had claimed as co-owner in the said property. They have admittedly not yet filed reply to the rent petition, hence order to deposit rent prior to determining such relationship was manifestly without jurisdiction and a nullity in the eye of law and an order without jurisdiction can be assailed in writ jurisdiction.

6. The impugned order is, therefore, declared to have been passed without jurisdiction and without lawful authority and is of no legal effect.

7. Rent Controller is directed to obtain reply from the petitioners and if they deny the relationship, to frame a preliminary issue about existence of relationship of landlord and tenant between the parties and to decide the same in accordance with law after affording an opportunity to the

I parties to produce evidence on the said issue.

Writ petition accepted. Case remanded.

PLJ 2004 Lahore 45

Present: ch. ijaz ahmad, J.

MUHAMMAD SHAFI (deceased) through Legal epresentatives-Petitioners

versus

PROVINCE OF PUNJAB through DISTT. OFFICER REVENUE/COLLECTOR FAISALABAD and 5 others-Respondents

C.R. No. 723 of 2003, heard on 12.6.2003.

Canal and Drainage Act, 1868-

—Ss. 20 & SB-Sanctioning of wara bandi by Divisional Canal Officer, assailed-Orders of canal functionaries being without reason and application of mind were thus, not sustainable in the eyes of law-Canal functionaries had not considered application of respondents in terms of S. 20 of Canal and Drainage Act, 1868-Petitioners were directed to file proper application under Section 20, Canal and Drainage Act within 10 days-Competent Authority must decide such application within IMmonths. [P. 50] A & B

1996 SCMR 536; 1995 SCMR 891; 1991 MLD 243; PLD 1992 Lahore 370; 1970 SCMR 139; PLD 1971 Lahore 220; 50 Indian Cases 299; PLD 1970 SC 173; 1998 SCMR 2268; PLD 1969 SC 278; PLD 1982 Lahore land PLD 1958 SC 104 ref.

Rana M. Arshad, Advocate for Appellant.

Kh. Saeed-uz-Zafar, Advocate for Respondents Nos. 4 to 6.

Date of hearing : 12.6.2003.

judgment

The brief facts out of which the present revision petition arises are that the petitioners submitted an application before S.D.C.O. for change of wara bandi which was dismissed vide order dated 14.12.1996. The petitioners being aggrieved filed appeal before the D.C.O. who accepted the same vide order dated 14.4.1997. The respondents being aggrieved filed a suit for declaration before the Civil Judge 1st Class, Faisalabad on 15.4.1997. The contents of the plaint reveal that respondents are owners of square No. 16 and petitioners are twners of landed property in Square No. 9 Killa No. 11, 20 and 21 which are being irrigated from Mogha No. 16722/L Rajbah Jaswana. The contents of the plaint further reveal that the petitioners submitted an application before SDCO for sanctioning Nakka at Killa No. 11 in Square No. 9 instead of Killa No. 5, Square No. 9 which was dismissed by the SDCO vide order dated 14.12.1996. The contents of the plaint further

reveal that petitioners preferred an appeal against the said order before DCO who accepted the same vide order dated 14.4.1997 and sanctioned a Nakka at Killa No. 11 Square No. 9 which is against law and facts, void illegal and ineffective upon the rights of the respondents/plaintiffs. The contents of the plaint further reveal that the landed property of the respondents/plaintiffs was situated in Square No. 16 and spot level of the property is very high and the petitioners' property is low line. If the order of DCO sanctioning of Nakka at Killa No. 11 Square No. 9 remains in tact then the respondents/plaintiffs would be suffering irreparable loss. The petitioners/defendants filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues :--

1. Whether the disputed orders dated 14.12.1996 and 14.4.1997 are against the facts and law, without authority, and liable to be set aside ? OPP.

2. Whether the plaintiffs are entitled to declaratory decree as prayed for ? OPP

3. Whether the plaintiffs have no cause of action ? OPD

4. Whether the suit is liable to be dismissed under Order 7 Rule 1.1 CPC ? OPD

5. Whether the respondents have violated the orders of this Court? If so, its effect ? OPP.

6. Relief.

7. The trial Court dismissed the suit vide judgment and decree dated 30.7.2002. The respondents being aggrieved filed appeal before the Additional District Judge, Faisalabad on 26.8.2002 who accepted the same vide judgment and decree dated 22.4.2003. Hence the present revision petition.

8. Learned counsel of the petitioner submits that judgments of both the Courts below are at variance. He further submits that First Appellate Court did not advert to the reasoning of the trial Court. He further submits that D.C.O. was the competent authority qua the sanctioning of Wara-bandi between the land owners in view of the provisions of the Canal and Drainage Act. Therefore, suit of the respondents was not maintainable and the suit was rightly dismissed by the trial Court whereas the First Appellate Court erred in law to accept the appeal of the respondents. The judgment of the First Appellate Court is not in accordance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments :—

9. Bashir Ahmad versus Abdul Razzaq, (1996 SCMR 536).

10. Bashir Ahmad versus Muhammad Khan, (1995 SCMR 891).

He further submits that respondents have no cause of action and.filed the suit without fulfilling the mandatory requirements of Order 1, Rule 8 CPC. Therefore, First Appellate Court erred in law to accept the appeal of the respondents. He further submits that judgment of the First Appellate Court is result of mis-reading and non-reading of the record. Therefore, the same is not sustainable in the eyes of law. In support of his contention he relied upon Col. (Retd.) Fakhr Hussain Shah versus Raja Muhammad Aslam (1991 MLD 243). He further submits that respondents did not sustain any loss for change of Nakka of the petitioners as the land of the petitioners falls before the land of the respondents. Therefore, respondents cannot sustain any loss of water and in fact they would be benefited by this arrangement. He further submits that impugned judgment is not sustainable in the eyes of law as the same was passed by the First Appellate Court without adverting to the mandatory provisions of Canal and Drainage Act.

1. Learned counsel of private respondents submits that petitioners filed application before SDCO under Section 68 which relates to Wara bandi. The SDCO was not competent to entertain the application for change of Nakka under Section 68. He further submits that SDCO decided the application under Section 68 as is evident from order dated 14.12.1996. The DCO also decided the appeal of the petitioners keeping in view Section 68. He further submits that petitioners should have filed application under Section 20 of the Canal and Drainage Act. He further submits that procedure prescribed qua both the aforesaid Sections is entirely different. He further submits that procedure under Section 20 was not followed by the authorities under the Canal and Drainage Act. He further submits that First Appellate Court decided the case after proper appreciation of evidence whereas the trial Court decided the case without proper appreciation of evidence on record.

2. Learned Addl. A.G. submits that impugned judgment is in accordance with the provisions of the Canal & Drainage Act. He further submits that petitioners are enjoying the benefit from the present Nakka since 7 years ago without any interruption from any side except the private respondents. Therefore, it is not in the interest of any of the parties to disturb the arrangement at this stage.

3. Learned counsel of the petitioner in rebuttal submits that impugned judgment is not in accordance with law.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

5. It is better and appropriate to reproduce the relevant provisions of law to resolve the controversy between the parties:

"Section 20. Supply of water through intervening water-course or change of source of water supply.-- Whenever application is made to a Divisional Canal Officer for a supply of water from a canal through an existing water-course or change of source of water supply of any land and he considers it expedient, shall give notice to all persons interested including the land owners through whose land any link water-course is to pass, to show-cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed, or the source of supply be changed, and after making enquiry on such day, the Divisional Canal Officer shall determine, whether and on what conditions the said supply shall be conveyed through such water-course or that the source of water supply shall be changed or the link water-course shall be aligned and constructed. After the expiry of thirty days of the announcement of the decision of the Divisional Canal Officer, if no objection is received and after giving the opportunity of hearing, if any objections is received, the Superintending Canal Officer may confirm or modify that decision. The decision of the Superintending Canal Officer shall be binding on the applicant, the persons responsible for the maintenance of the said water-course, all the persons affected by the change of source of water supply, and the land owners through those land the link water-course shall pass.

Such applicant shall not be entitled to use the said water-course until he has paid the -expenses of alteration of such water-course necessary in order to his being supplied through it, and also such share of the first cost of such water-course as the Divisional or Superintending Canal Officer may determine.

The applicant shall not be entitled to use the link-water-course, if any, until (a) he has paid to the land-owner the compensation for the land occupied by such link water-course in whatever shape if it is determined through mutual agreement (b) possession of land for the said link water.-course has been acquired under the provisions of this Act.

Such applicant shall also be liable for his share of cost of maintenance of the water-course as long as he uses it."

"Section 68—(1) 'Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.--Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from the outlet, or deposit of soil from water course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub-Divisional Canal Officer stating the

| | | --- | | |

matter in dispute. The Sub Divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter.

(2) Such officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice he will proceed to enquire into the said matter and after such inquiry, he. shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector,, who shall thereupon enquire into and pass his order on the said matter.

(3) Any person aggrieved by an order made by such Officer under Sub-section (2) may within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.

(4) Where an appeal has been preferred under Sub-sec. (3), the Divisional Canal Officer-

(a) shall decide the appeal as expeditiously as possible, and

(b) may pending the disposal of the appeal stay the operation of the order appealed against; provided the stay order does not adversely effect any standing crops.

(5) The applicant shall not be entitled to use the water-course that may be sanctioned under Sub-sees. (2) or (3) above for conveyance of water to his land or the land required' for the deposit of soil from water-course clearances, until—

(a) he has paid to the land-owner the compensation for the land occupied for any of the aforesaid purposes in whatever shape it is determined through mutual agreement; or

(b) possession of the land has been acquired under the provisions of this Act.

(6) Any order passed under Sub-sec. (2) if there be no appeal preferred against it and an order passed in appeal under sub-sec. (3) shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and shall thereafter remain in force until it is set aside by a decree of a Civil Court."

In case the aforesaid provisions of law are put in a juxta-position then the case of the petitioners does not fall under Section 68. It is pertinent to mention here that all the functionaries under the Cana3 and Drainage Act and Courts below did not advert to Section 20 of the Canal and Drainage Act. Therefore, public functionaries as well as the Courts passed the orders, judgment and decrees without applying their mind and without adopting the proper procedure prescribed in Section 20 aforesaid, therefore, orders are

without lawful-authority. In arriving to this conclusion I am fortified by the followingjudgments :--

Shamas-ud-Din v. Province of Punjab(PLD 1992 Lahore 370). Ghazanfar Khan and others vs. Taj Muhammad (1970 SCMR 139). Nawab Din vs. Abdullah and another (PLD 1977 Lahore 220).

Kania Lai & others vs. Narain Singh and others (50 Indian Cases 299).

It is settled principle of law that Courts are bound to decide the controversy between the parties in accordance with law with reasons as per principle laid down by the Hon'ble Supreme Court in Mollah Ejahar Ali vs. Govt. of East Pakistan(PLD 1970 S.C. 173). After addition of Section 24-A in the General Clauses Act it is the duty and obligation of the public functionaries to decide the controversy between the parties with reasons. The orders of the SDCO and DCO do not contain any reasons and proper application of mind. Therefore, same are not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in M/s. Airport Support Services case(1998 SCMR 2268). It is settled principle of law that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not proper excuse in the matter as per principle jlaid down by the Honourable Supreme Court in Muhammad Sarwar's case (PLD 1969 S.C. 278). Respondents Nos. 2 and 3 had considered the application of the petitioners under Section 68 which is not in accordance with the parameters prescribed under the law in Section 20. It is settled principle of law that when the basic order is without lawful authority then the superstructure would have to fall on the ground automatically as per principle laid down by the superior Courts in the followingjudgments :--

Crescent Sugar Mills'case (PLD 1982 Lahore 1). Yousaf Ali's case (PLD 1958 S.C. 104).

1. In view of what has been discussed above, the orders of Respondents Nos. 2 and 3 and judgments of both the Courts below are set aside. As the petitioners are availing the facility from the present Nakka for the last 7 years in the interest of justice and fair play the parties are directed to maintain the same arrangement for two months. The petitioners are directed to file proper application under Section 20 before the competent authority within 10 days from today. The competent authority shall decide the same positively within 1-1/2 months after completing all legal formalities even at the cost of day to day proceedings.

With these observations this revision petition is disposed of. (A.A.) Order accordingly.

PLJ 2004 Lahore 51 [Multan Bench Multan]

Present: FARRUKH LATEEF, J. 'MUHAMMAD NAWAZ etc. -Petitioners

versus

MUHAMMAD RAMZAN etc.-Respondents C.R. No. 87--D of 2003, decided on 12.6.2003.

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

—S. 42-Dismissal of suit for declaration claiming ownership of land in question, on the basis of unregistered sale agreement—Property in question, being immovable property worth more than Rs. 100/- could only be transferred by registered instrument of transfer-Mere agreement in writing did not create any right, title or interest in property irrespective of the fact that instalment of the same might have been paid by petitioners-No illegality was committed by Appellate Court in rejecting application seeking amendment of plaint for including additional plea of adverse possession-Revisional jurisdiction US I 15 CPC was not warranted against the same. - [P. 52 & 53, ,\ £- J5

Kh. Noor Mustafa, Advocate for Petitioners.

Syed Hamid All Shah Mir, Advocate for Respondents.

Date of hearing: 5.6.2003.

judgment

Civil Revision No. 88-D of 2003 involving the same questions of law and fact will also be disposed of through this judgment.

1. Brief facts necessary for the disposal of these revisions are that the petitioners had filed two suits, one for declaration that they are owners of 1/2 shares^ in Plot No. 330 (disputed plot) by virtue of an agreement deed executed by the late father of respondents who was its allottee and the other suit was for declaration that Muhammad Nawaz Petitioner No. 1 is in possession of the disputed plot where he is running business of saw machine with consequential reliefs of prohibitory and mandatory injunctions respectively restraining the respondents from interfering with the said business of Respondent No. 1 and directing them to remove the obstruction whereby they had blocked the petitioners access to the disputed plot.

2. Both the suits were consolidated and after framing issues and recording evidence they were dismissed by the learned trial Court through consolidated judgment dated 19.6.2001.

4.Petitioners filed appeals against the aforesaid decrees passed in the two suits but they were also dismissed on 2.12.2002 vide consolidated judgment by ADJ, Multan.

1. In these civil revisions the petitioners have assailed the aforesaid concurrent judgments and decrees of the two Courts below.

2. The civil revisions were opposed by learned counsel for the respondents.

3. It was argued by the learned counsel for the petitioners that both the Courts below had misread and overlooked evidence, agreement deeds Ex. PI arid P2 were sufficient to prove title of the petitioner; it was borne out from evidence produced by the petitioners that instalments regarding that plot were paid by them to the MDA; petitioners' application for seeking permission to produce additional evidence for proving execution of the agreement deeds was illegally turned down; that observation of the learned. appellate Court that plaintiffs should have filed suit for specific performance is erroneous because agreement deeds Ex. PI and P2 per se confer title on the petitioners; that petitioners' application for seeking amendment in their plaints so as to include the plea of adverse possession was illegally rejected and that respondents had produced in their evidence photo-copies of documents which could not have been legally considered.

4. Both the revision petitions were opposed by the learned counsel for the respondents.

5. Arguments heard. Civil revisions and annexures appended therewith perused.

6. Learned counsel for the petitioners could not draw my attention to any material piece of evidence which was allegedly overlooked or misread by the Courts below. His contention that agreement deeds Ex. PI and P2 were sufficient to prove title is misconceived because .transfer of immovable property worth Rs. 100/- or more could only be transacted by a registered instrument of transfer. Mere agreement in writing did not create any right, title or interest in the property irrespective of the fact that instalments of the disputed plot may have been paid to the MDA by the petitioners. Learned appellate Court had rightly observed that even if the execution of the agreements was proved, it would have been of no legal significance because the agreements per se do not operate to create title in favour of the petitioners. It was, therefore, useless to allow the application permitting the petitioners to prove the execution of the aforesaid agreements.

7. No illegality was committed by the learned appellate Court in rejecting the application for seeking amendment in the plaint for including additional plea of adverse possession as it was no more available under the law of the land.

12.Adverting to the last submission of the petitioners' counsel it may be observed that the suits were dismissed because the petitioners could not prove their claim. They were not dismissed on account of defendants/ respondents' evidence. Hence the petitioners were not prejudiced by the photo-copies of documents produced in evidence by the respondents.

1. Revisional jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction.

2. Findings of both the Courts below are based on evidence and are supported by sound and plausible reasoning, against such finding interference is not called for in revisional jurisdiction.

Both the civil revisions are accordingly dismissed. (A.A.) Revision dismissed.

PLJ 2004 Lahore 53 (DB)

Present : CH. IJAZ AHMAD AND ABDUL SHAKOOR PARACHA, JJ.

PROVINCE OF PUNJAB through SECRETARY TO GOVENRMENT OF

THE PUNJAB, IRRIGATION & POWER DEPARTMENT, LAHORE

and another-Appellants

versus

CH. FAZAL ELAHI-Respondent R.F.A. No. 519 of 2000, heard on 28.4.2003.

Civil Procedure Code, 1908 (V of 1908)-

—O. XXVII, Rr. 1 to 4—Non-service of summons upon appellants in accordance with provisions of O.XXVII, Rr. 1 to 4 C.P.C.-Effect-Service of appellants having not been properly effected in terms of O.XXVII, Rr. 1 to 4 C.P.C. ex-parte order against them was without lawful authority-£x-parte order being not warranted was set aside and was remanded to Trial Court for decision afresh in accordance with law. [Pp. 55 & 56] A & B

PLD 1982 Lahore 1; PLD 1958 SC 104; NLR 1989 Civil 559 and

1993 CLC 660.

Mr. M. Riaz Lone, Advocate for Appellants.

Mr. Riaz Karim Qureshi, Advocate for Respondent.

Date of hearing : 28.4.2003.

judgment

Ch. Ijaz Ahmad, J.--The brief facts out of which the present appeal arises are that the work in question was awarded to the respondent contractor in the year 1996 through letter of acceptance dated 1.7.1996. The work in dispute has been transferred to the Appellant/Defendant No, 2 with all rights and liabilities. The respondent had completed the work allegedly to the entire satisfaction of the Appellant No. 2 The respondent submitted bill to Appellant No. 2. Appellant No. 2 failed to pay the bill to the respondent contractor. The respondent contractor sent a legal notice to the appellants on 2.10.1998. The appellant failed to pay the outstanding dues of the respondent. The respondent being aggrieved filed suit for recovery of Rs. 262,53,15/- before the Civil Judge 1st Class, Lahore. Summons were issued by the learned trial Court to the applicants. Appellants' representative entered appearance before the trial Court on various dates. The appellants failed to file written statement and the trial Court had struck off the defence of the appellants vide order dated 6.11.1999. Thereafter the ex-parte evidence was recorded by the trial Court and the trial Court decreed the suit vide judgment and decree dated 9.10.2000. Hence the present appeal.

1. Learned counsel of the appellants submits that the respondent was allowed work "Flood fighting of 'J' Head Spur at Mulla Hamza during flood season, 1996. The work in dispute was transferred to XEN Flood Bund Division, Narowal. Subsequently, Flood Division was only for Narowal not elsewhere although the work in dispute was executed in Sahiwal. The work in question was still disputed whereas it had been completed as alleged by the respondent. The concerned SDO had expired in December, 1998 and all the relevant record was kept by him. He further submits that learned trial Court erred in law to struck off right of defence of the appellants as the service of the appellants was not effected in accordance with law. He further submits that respondents secured impugned decree with the connivance of the staff of the appellants. He further submits that documents produced by the respondent are photo-copies and are not in accordance with record of the appellants.

2. Learned counsel of the respondent submits that trial Court decreed the suit after completing all the legal formalities. He further submits that appellants did not file written statement well in time. After providing various opportunities to the appellants the learned trial Court struck off the defence of the appellants vide order dated 6.11.1999. The appellant's representative entered appearance on various dates subsequently but did not cross-examine the witnesses of the respondent. He further submits that bill submitted by the respondent was not denied by PW. 2. He further submits that documents relied by the respondent are public documents, therefore, trial Court was justified to decree the suit of the respondent. He further submits that Assistant District Attorney entered appearance on behalf of the appellants before the trial Court.

3. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.

4. The report of process server on the summons issued to the appellants reveals that summons were not served upon the appellants which were received by the official of the appellants and name of the official who had received the summons is also not mentioned in the report of process serve. The trial Court also did not make any effort to get the service of the appellants be effected under Order 27, Rules 1 to 4 of C.P.C. Therefore, service of the appellants was not properly effected and is in violation of mandatory provisions of Order 27 CPC. As such ex-parte order is without lawful authority. In arriving to this conclusion we are fortified by the law laid down in Shah Alam's case (NLR 1989 Civil 559). The impugned ex-parteorder is not in accordance with the law laid down by this Court in Chaudhry Parvez Ahmad's case (1993 CLC 660). The order sheet also does not contain the name of the representative of the appellants who appeared on various dates before the trial Court. The trial Court did not issue a single notice to the appellants for their appearance. The record of the trial Court does not contain authorization letter of the representative of the appellants to appear before the Court. Therefore, the same is in violation of mandatory provisions of Order 27(2) CPC. The argument of the learned counsel of the respondent that Assistant District Attorney entered appearance on behalf of the appellants before the trail Court is not in consonance with the record of the trial Court. The A.D.A. has not filed any power of attorney and has not appeared on any date as is evident from the order sheet of the trial Court. In this view of the matter, we find that the impugned judgment of the trial Court is not in accordance with the mandatory provisions of CPC on the ground that service of the appellants was not properly effected. When the basic lacuna of such a nature exists then the superstructure shall have to fall on the ground automatically. We are fortified by the law laid down by the superior Courts in the following judgments :--

5. Crescent Sugar Mills case (PLD 1982 Lahore 1).

6. Yousaf Ali's case (PLD 1958 S.C. 104).

In view of what has been discussed above, this appeal is accepted with no order as to costs, the impugned judgment and decree is set aside and the case is remanded to the trial Court for decision afresh in accordance with law. The parties are directed to appear before the trial Court on 29.5.2003. The appellants are directed to file written statement-on the said date. The appellants are also directed to initiate inquiry in the administrative side as to who had appeared before the trial Court without authorization of the appellants. In case any officer/official is responsible who had entered appearance before the trial Court without authorization of the appellants then the appellants are directed to proceed against him under Efficiency and Discipline Rules and criminal prof-vdings shall also be initiated against him. The appellants are directed to cr-npicie us process in the administrative side within three months. They are also directed to submit report to the 'Deputy Registrar (Judl.) of this Court within the stipulated period.

(A.A.) Appeal accepted.

PLJ 2004 Lahore 56

Present: CH. IJAZ AHMAD, J.

TARIQ EHSAN-Petitioner

versus

DIRECTOR, .CIVIL AVIATION AUTHORITY, REGIONAL OFFICE ALLAMA IQBAL INTERNATIONAL AIRPORT, LAHORE

and another-Respondents

W.P. No. 3193 of 2003, decided on 19.3.2003.

(i) General Clauses Act, 1897 (X of 1897)--

—-S. 21-A--With the addition of Section 21-A in General Clauses Act 1897 public functionaries are bounden with duty and obligation to decide representations/appeals of their subordinates with reason and within reasonable time. [P. 58] B

(ii) Service Tribunals. Act, 1973 (LXXof 1973)--

—-Ss. 2-A. to 4-Constitution of Pakistan (1973), Arts. 212, 199 & 4-High Court has ample power to give direction to public functionaries to act in accordance with law in view of Art. 4 of the Constitution inspite of the bar contained in Art. 212 of the Constitution coupled with Section 4 of Service Tribunals Act and newly added Section 2-A of Service Tribunals Act 1974, while exercising jurisdiction under Art. 199 of the Constitution- -Earlier order of High Court having not been challenged before Supreme Court same has attained finality whereby respondents were directed to allow petitioners to appear in examination in question, provisionally subject to final decision of appeal of petitioners-Impugned order of Authority having been passed by respondents without issuing notice to petitioner, same was hit by the principle of natural justice and therefore, without lawful authority. [P. 58] A & C

PLD 1987 SC 304; PLD 1965 SC 90, 1983 SCMR 1208 and 1998 SCMR 2268 ref.

Mr. Muhammad Nazir Khan, Advocate for Petitioners.

Mr. Sher Zaman Khan, D.A.G for Pakistan for Respondents, on Court's call.

Date of hearing : 19.3.2003.

order

I intend to decide the following writ petitions by one consolidated order having similar facts and law :--

(i) W.P. No. 3193-2003. (ii) W.P. No. 3263-2003.

1. Brief facts out of which present writ petitions arise are that the respondents issued call letter dated 20.2.2003 to the petitioners to appear in the examination hut subsequently, the respondents had withdrawn the said letter through the impugned letter dated 6.3.2003. The petitioners being aggrieved filed these writ petitions.

2. The learned counsel of the petitioners submits that the petitioners filed Writ Petition No. 19097/2002 qua the same controversy which was disposed of by this Court videorder dated 28.10.2002, wherein the respondent concerned was directed to allow the petitioners to appear in the examination in-question provisionally subject to the final decision of the appeal of the petitioners and shall not announce his result till decision of the appeal. He further submits that the respondents did not decide the appeal of the petitioners till date. The association of the petitioners filed representation before respondent concerned against the action of the respondents on 8.1.2003 but the respondents did not decide the same till date. He further submits that action of the respondents is without lawful authority.

3. The learned D.A.G. entered appearance on Court's call, he submits that these writ petitions are not maintainable in view of bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act and newly added Section 2-A in Service Tribunal Act. He further submits that the letter was issued to the petitioners on 24.2.2003 inadvertently, therefore, the respondents are justified to withdraw the same vide the impugned letter dated 10.3.2003. He further submits that principle of locus poenitentiae is not attracted in the present case, as the petitioners did not appear in the examination commenced by the respondents till 21.3.2003. He further submits that the impugned order is valid in the eyes of law. He s"mmed-up his arguments that the learned counsel of the petitioners failed to point out any rule and regulation violated by the respondents, therefore, the writ petitions are not maintainable.

4. The learned counsel of the petitioners in rebuttal submits that the petitioners accrued vested rights on the basis of letter dated 20-2-2003 and order dated 28.10.2002 passed in Writ Petition No. 1907/2002. He further submits that the impugned order was passed by the respondents without providing hearing to the petitioners.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. In spite of the bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act and newly added Section 2-A, this Court has ample power to give direction to the public functionaries to act in accordance with law in view of Article 4 of the Constitution while

exercising jurisdiction under Article 199 of the Constitution, as per principle laid down by the Hon'ble Supreme Court in "S.H.M. Rizvi and 5 others vs. MaqsoodAhmad, etc." (PLD 1981 S.C. 612). It is alleged by the petitioners' counsel that the order passed by this Court in Writ Petition No. 1907/2002 dated 28.10.2002 was not challenged by the respondents before any higher forum, therefore, order dated 28.10.2002 is final order between the parties, therefore, the respondents have no lawful authority to withdraw the letter dated 24.2.2003 through the impugned letter dated 6-3-2003 till the decision of appeal of the petitioners. It is settled principle of law that the judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. It is also settled principle of law that no body should be penalized by inaction of the public functionaries, as per principle laid down by this Court in "Ahmad Latif Qureshi. vs. Controller of Examination, etc." (PLD 1994 Lahore 3). It is admitted fact that the impugned order was passed by the respondents without providing proper hearing to the petitioners and without issuance of notices to the petitioners, therefore, the impugned order is without lawful authority as the same is hit by the orinciple of natural justice. In arriving to this conclusion, I am fortified by ;he following judgments :—

"Pakistan and others vs. Public-at-large, etc." (PLD 1987 S.C. 304). "University ofDhakka vs. Zakir Ahmad." (PLD 1965 S.C. 90).

"Pakistan Chrome Mines, vs. Inquiry Officer, etc. "-(1983 S.C.M.R. 1208).

After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to decide the representations/appeals of their subordinates with reasons & within reasonable time as per principle laid down by the Hon'ble Supreme Court in "M/s. Airport Support Service vs. The Airport Manager, Karachi" (1998 S. C.M.R. 2268).

1. In view of what has been discussed above, the respondent concerned is directed to allow the petitioners to appear in the examination in question provisionally subject to final decision of the appeal of the petitioners and shall not announce their result till decision of the appeal of the petitioners. In case, the petitioners shall attain the position in the merit list, then the respondents shall not fill two posts till the decision of the appeal of the petitioners. The learned counsel of the petitioners is directed to hand over copies of writ petitions alongwith all the annexes to Mr. Sher Zaman Khan, D.A.G. for Pakistan, who is directed to notify the order to respondent concerned for necessary action and compliance.

With these observations, these writ petitions are disposed of. Copy "dasti" on payment of usual charges.

(A.A.)

Petition accepted.

PLJ 2004 Lahore 59

Present: CH. IJAZ AHMAD, J. AKHTAR MEHMOOD and another-Petitioners

versus DEPUTY COMMISSIONER, GUJRAT and another-Respondents

W.P. Nos. 10888 and 17096 of 1996, heard on 4.3.2003. Punjab Civil Servants Act, 1974 (VIII of 1974)--

—-S. 5~Constitution of Pakistan (1973), Art. 199-Private respondent admittedly secured appointment letter under political influence on the direction of the then Chief Minister-Chief Minister under provisions of Punjab Civil Servants Act 1974, has no authority to give direction to official respondent to appoint a person of his own choice-Principle of locus poenitentiae was not attracted in as much as, order in question, was not issued by Competent Authority after applying its independent mind in terms of advertisement issued by official respondent in newspapers-Appointment of private respondent was thus, not warranted-Merit list having not been prepared by official respondent, petitioner was also not entitled to be appointed in place of private respondent-It was directed that appointment be made strictly in accordance with law. [P. 60 & 61] A

PLD 1964 SC 829 and PLD 1992 SC 207 ref.Mr. Shaukat Rafique Bajwa, Advocate for Petitioners. Mian Hame,ed-ud-Din Kasuri, D.A.G. for Respondent No. 2. Date of hearing : 4.3.2003.

judgment

I intend to decide the following writ petitions by one consolidated order having similar facts and law :—

1. W.P. No. 10888/96.

2. W.P. No. 17096/96.

3. The brief facts out of which the aforesaid writ petitions arise are that Respondent No. 1 issued public notice inviting applications for appointment for the post of Assistant BPS-11 with the following qualifications :--

B.A. age : 18 to 25 resident of Gujrat Domicile and NIC from District Gujrat.

The petitioners submitted their applications in obedience of the advertisement, The petitioners were allegedly called for interview and test by the recruitment committee. The respondents issued appointment letter in favour of Respondent No. 2 on 11.6.1995. The petitioners being aggrieved filed aforesaid writ petitions.

1. Learned counsel of the petitioners submit that Respondent No. 1 had issued appointment letter in favour of Respondent No. 2 under the direction of Chief Minister as is evident from the report and parawise comments filed by Respondent No. 1 in reply of para-6. They further submit

that petitioner secured vested right after appearing in the interview and test. Respondent No. 2 is not resident of Gujrat and he did not appear in the interview and test before the recruitment committee. . Therefore, appointment letter of Respondent No. 2 is without lawful authority. They further submit that operation of'appointment letter of the respondent was suspended by this Court on 15.9.1996.

1. Learned counsel of Respondent No. 2 submits that Respondent No. 2 appeared in the interview and test as is evident from the appointment letter issued by Respondent No. 1 in favour of the petitioner. He further submits that Respondent No. 2 served the department for one year. Therefore, Respondent No. 2 had accrued vested right on the well known principle of locus poenitentiae. He further urges that Respondent No. 1 issued appointment letter in favour of Respondent No. 2 on 11.6.1995 whereas the petitioners filed writ petitions before this Court on 25.6.1996. Therefore, writ petitions are liable to be dismissed on the well known principle of laches. The petitioners are estopped to file the aforesaid writ petitions on the well known principle of waiver and estopple.

2. Learned Addl. A.G. submits that appointment letter of Respondent No. 2 is not sustainable in the eyes of law.

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 better and appropriate to reproduce reply of paras-6 and 10 of report and parawise comments filed by Respondent No. 1 to resolve the controversy between the parties :--

"6. Incorrect, to the extent that the Revenue Minister Govt. of the Punjab did riot interfere instead the appointment was made under the order of the then Chief Minister Punjab and clarification was also sought from the highups. (copy enclosed)"

10. Incorrect. He did not qualify to be appointed as Assistant. The appointment was not made under the orders of the Revenue Minister Punjab."

The aforesaid stand of the Respondent Ncr. 1 clearly reveals that Respondent No. 2 secured appointment letter under political influence or in connection with the then Chief Minister. It is admitted fact tint Chief Minister under the provisions of Punjab Civil Servants Act, 1974 has no authority to give direction to Respondent No. 1 to appoint a person of his own choice. The appointment letter was issued by Respondent No. 1 in favour of Respondent No. 2 under the direction of the then Chief Minister therefore, the same is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 S.C. 829). The principle of locus poenitentiae is not attracted as the order was not issued by the competent authority after applying its independent mind in terms of the advertisement issued by Respondent No. 1 in the newspapers. There were no recommendations of the recruitment committee in favour of Respondent No. 2 in view of stand taken by Respondent No. 1 in report and parawise comments therefore, principle of locus poenitentiae is not attracted as per principle laid down by the Hon'ble Supreme Court in Jalal Din's case (PLD 1992 S.C. 207). It is also admitted fact that Respondent No. 1 did not prepare the merit list on the recommendations of the recruitment committee therefore, the petitioners have also no right to be appointed in place of Respondent No. 2.

In view of what has been discussed above, these writ petitions are accepted to the extent that appointment of Respondent No. 2 is not in accordance with law, therefore, the same is -set aside. The incumbent of Respondent No. 1 is directed to appoint any person in accordance with law, policy of the Government, Rules and Regulations after advertising the same in the daily newspapers, in case the post is still vacant.

CT.A.F.) Petition accepted.

PLJ 2004 Lahore 61

Present: SAYED ZAHID HUSSAIN, J.

AMIR SHEIKH-Petitioner

versus Mst. RIFFAT ARA and 2 others-Respondents

W.P. No. 410 of 2003, heard on 2.4.2003. West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

—S. 15-Appellate Forum fell in error in holding that dismissal of objection petition being interlocutory in nature, appeal against the same was not competent-Mere fact that execution application was not disposed of while dismissing objection application would not detract from finality of order qua rights of petitioner nor could the same be considered interim or interlocutory in nature-Order of dismissal of appeal being not maintainable was thus, not sustainable-Appeal filed by petitioner before Appellate Forum would be deemed to be pending to be disposed of in accordance with law. [Pp. 62 & 63] A & B

PLJ 1993 Lah. 429 and PLD 1997 Lahore 451 ref. Ch. Muhammad Bakhsh,Advocate for Petitioner. Mr. Gulsher Mir, Advocate for Respondents. Date of hearing : 2.4.2003.

judgment

By order dated 20.9.2002 the objection petition filed by the petitioner was dismissed by the learned Rent Controller, Lahore against which appeal preferred by him was dismissed by the learned Additional District Judge, Lahore on 14.12.2002 that the same was "not an appealable order before this forum". This is writ petition thereagainst.

1. The learned counsel contends that the appeal was indeed competent against such an order of the Rent Controller and the appellate Court has declined to exercise jurisdiction in' the matter which error of jurisdiction can be corrected by this Court in writ jurisdiction. Reliance has been placed upon Meraj Din and 3 others v. Additional District Judge, Gujranwala and 2 others (PLJ 1993 Lahore 429). Contrarily the learned counsel for Respondent No. 1 supports the view taken by the learned Additional District Judge on the strength of judgment reported in Haji

Muhammad Ramzan and another v. Abdur Rashid and another (PLD 1997 Lahore 451). The case was at the limine stage, however, in view of the controversy being of a limited nature i.e. the competency of the appeal before the lower forum and that the same has been argued by the learned counsel for the parties at length, it is being disposed of as regular matter finally.

1. Such a controversy had arisen earlier as well in Meraj Din and 3 others (Supra) when Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 as amended was interpreted and it was held that "A plain reading of this provision shows that a right vests in an aggrieved party to challenge any order of the Rent Controller by way of an appeal before the District Judge. This is, however, subject to certain conditions, firstly, that the order should be such which has finally disposed of an application made to the Rent Controller under the Ordinance, secondly, that the order should not be interlocutory in nature and thirdly, that it should not be an order for deposit of rent under Section 13(6) of the Ordinance". In the precedent case also an objection petition had been dismissed by the Rent Controller during the course of execution proceedings. The appeal was dismissed by the learned Additional District Judge as being not maintainable. It was held that the learned Additional District Judge fell in error in holding that the order before him was interlocutory and not final in nature. It was further observed that "the mere fact that the execution application was not disposed of whiledismissing the objection petition would not detract from the finality of the order qua the rights of the petitioners nor could the same be considered interim or interlocutory in nature." The reason for such a view is understandable and quite obvious that with the dismissal of the objection petition, an order of final nature was passed quathe petitioner. Such a disposition of the matter could not be construed as of interim or of interlocutory nature. Reliance of the learned counsel for the respondents upon Haji Muhammad Ramzan and another (Supra) is inapt inasmuch as besides that the said case is distinguishable on facts, unamended Section 15 of the Ordinance appear to have been cited before the learned Judge. The observation that "So far as appeals under Section 15 of the Ordinance are concerned, the same are limited to orders passed under Sections 4, 10, 12 and 13 of the Ordinance. Section 17 of the Ordinance is conspicuously absent from the provisions of Section 15 which clearly means that an order passed under Section 17 of the Ordinance during the course of execution proceedings is not open to appeal even under Section 15 of the Ordinance" would show that the amended provisions of Section 15 of the Ordinance escaped the notice of the learned Judge while taking the said view. Even the case of Meraj Din and 3 others (Supra) was not brought to the notice of the learned Judge. In this view of the matter, the correct legal position as to the competency of the appeal qua such an order is that which is stated in Meraj Din and 3 others (Supra), which I respectfully follow. The view thus taken by I the learned Additional District Judge in this case in dismissing the appeal of

the petitioner as not maintainable, is not sustainable and his order is thus, declared so.

In view of the above, the petition is allowed. The judgment of the learned Additional District Judge, Lahore dated 14.12.2002 is declared as of no legal effect. Result whereof would be that the appeal filed by the petitioner shall be deemed pending before him which shall be heard and decided afresh in accordance with law. The parties to cause their representation made before him on 14.4.2003. It is hoped that the appellate Court will hear and decide the matter expeditiously. No order as to costs.

(A.A.) Petition accepted.

PLJ 2004 Lahore 63

Present: CH. IJAZ AHMAD, J.

BADAR ZAMAN-Petitioner

versus

GOVERNMENT OF PAKISTAN through SECRETARY ESTABLISHMENT GOVT. OF PAKISTAN, ISLAMABAD

and another-Respondents W.P. No. 5338 of 2003, decided on 28.4.2003.

Service Tribunals Act, 1973 (LXX of 1973)-

-—S. 2-A-Removal from Service (Special Powers) Ordinance 2000, S. 10-- Constitution of Pakistan (1973), Art. 1,99-Petitioner has challenged vires of Ordinance viz; Removal from Service (Special Powers) Ordinance 2000, therefore, writ petition was not maintainable in view of law laid down by Supreme Court in PLD 1980 S.C. 153-Petitioner's contention that action was firstly taken by incompetent Authority has no force as per law laid down by Supreme Court in PLD 1980 SC 22-Petitioner's grievance pertained to terms and conditions of service, therefore, writ petition was not maintainable after addition of S. 2-A in Service Tribunals Act, 1973- Petitioner has also remedy to file appeal before competent Tribunal in terms of S. 10 of Removal from Service (Special Power) Ordinance 2000- Writ petition was also not competent quaintermediate stage, therefore, the same was dismissed. [Pp. 64 & 65] A

PLD 1999 SC 990; PLC 2000 (C.S.) 442; PLD 1980 SC 153; PLD 1980 SC 22

& PLD 1989 SC 508 ref.

Ch. Naseer Ahmad Bhutta, Advocate for Petitioner.

Mr. Sher Zaman Khan, D.A.G. for Pakistan on Court's Call.

Date of hearing: 28.4.2003.

order

The petitioner has challenged the vires of the order dated 15.4.2003 through this Constitutional petition and also challenged the vires of the Pakistan Postal Services "Management Board Ordinance, 2002.

2.The learned counsel of the petitioner submits that the petitioner was inducted in service after passing the examination held by the Federal Public Service Commission. The petitioner was sent on deputation to the Provincial Government. The respondents transferred the petitioner at Karachi but the Provincial Government did not allow the petitioner to relieve the charge. He further submits that the competent authority to pass the impugned order is the Secretary concerned whereas the impugned order was passed by the Chairman who is not appointing authority of the petitioner. He further submits that the competent authority under the provisions of the Removal from Service (Special Powers) Ordinance, 2000, is the concerned Secretaiy in view of Section 2(aa). He further submits that the Chairman has initiated proceedings against the petitioner, who is admittedly not competent authority in terms of the aforesaid definition prescribed in the Ordinance. He further urges that the action of the respondent is also in violation of Section 12 of the Removal from Service (Special Powers) Ordinance, 2000. He further submits that action of the respondents is not in consonance with the notification issued by the respondents on 17.6.2000 according to which the competent authority is the Secretaiy concerned whereas the impugned order is passed by the Chairman who has been appointed by the respondents on contract, who is in Grade 21 as is evident from Section 4 of the Pakistan Postal Services Management Board Ordinance, 2002. He further submits that action of the respondents is hit by Articles 4 and 25 of the Constitution.

1. Mr. Sehr Zaman Khan. Deputy Attorney General for Pakistan, entered appearance on Court's call, he submits that writ petition is not maintainable.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

3. The matter pertains to the terms and conditions of the petitioner, therefore, writ petition is not maintainable after addition of Section 2-A in the Service Tribunal Act, 1973 as per principle laid down by the Honourable Supreme Court in United Bank Ltd. vs. Islamic Republic of Pakistan (PLD 1999 S.C. 990). The petitioner has alternative remedy to file an appeal before the competent Tribunal in view of Section 10 of the Removal from Service (Special Powers) Ordinance, 2000. The question of law has been raised and finally decided by the Full Bench of this Court and rejected all the contentions raised by the petitioners by the Full Bench in the reported case. Muzaffar Hussain vs. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442). The petitioner has challenged the vires of the Ordinance, therefore, writ petition is not maintainable in view of the law laid down by the Honourable Supreme Court in Iqan Ahmed Khurram us. Government ofPakistan and others- (PLD 1980 S.C. 153). Similarly the contention that action was finally taken by the incompetent authority, has also no force in

view of the law laid down by the Honourable Supreme Court in M. Yameen Qureshi's case (PLD 1980 S.C. 22). It is also settled principle of law that writ petition.is not maintainable qua the intermediate stages as per principle laid down by the Honourable Supreme Court in Abdul Wahab's case (PLD 1989 S.C. 508).

In view of what has been discussed above, this writ petition has no merits and the same is dismissed.

A.A.) Petition dismissed.

PLJ 2004 Lahore 65 (DB)

Present: maulvi anwar-ul-haq and mian hamid farooq, JJ. DELTA WEAVERS (PVT.) LIMITED and 3 others-Appellants

versus

ALLIED BANK OF PAKISTAN LIMITED, LIBERTY MARKET BRANCH, GULBERG, LAHORE-Respondent

F.A.O. No. 405 of 2002, heard on 21.7.2003. " Civil Procedure Code, 1908 (V of 1908)--

—-O. XIII, R. 2& O. XXXVII, R. 3-Application to produce additional documents-Neither suit nor application for leave to defend, was fixed for hearing on that date-Order and judgment of trial Court dismissing

application to defend on the ground of non-appearance of defendant on that date when the same was not listed for hearing and decreeing suit itself were thus, without jurisdiction-Impugned order as well as judgment and decree passed by trial Court on date in question, were set

aside and case was remanded to trial Court for decision afresh in accordance with law. [P. 66 & 67] A & B

1993 SCMR 1949 ref.

Mr. Tariq Masood, Advocate for Appellants. Mr. Mazhar Hakeem,Advocate for Respondent. Date of hearing : 21.7.2003.

judgment

Maulvi Anwarul Haq, J.--The respondent-Bank filed a suit against

the appellants for recovery of money. Notices were issued in the manner prescribed. An application was filed seeking leave to defend the suit. A reply

was filed. The case was adjourned for various reasons for arguments on the

said application, from time to time. On 15.10.2001 the respondent-Bank filed

an application under Order XIII Rule 2 CPC seeking permission to produce some additional documents. The case was adjourned to 30.10.2001 for arguments on the said application. On the said date the appellants were absent. The learned Judge, Banking Court, proceeded to dismiss the application for leave to defend and to decree the suit on the sole ground that the appellants were absent. On 19.2.2002 an application was filed purportedly under Section 12(2) CPC for setting aside of the said judgment and decree dated 30.10.2001. It was, inter alia, specifically stated therein that on 30.10.2001 only the application under Order XHI Rule 2 CPC was listed for hearing whereas the application for leave to defend was dismissed for the absence of the appellants and the suit was decre.ed. A written reply was filed. Vide order dated 8.7.2002 the application was dismissed.

1. Learned counsel for the appellants contends that since the suit or the said application for leave to defend were not fixed for hearing on 30.10.2001, the learned trial Court has acted without lawful authority in dismissing the application and decreeing the suit for the absence of the appellants. Learned counsel for the respondent-Bank, on the other hand, contends that although the application was dismissed being incompetent yet the merits of the case was discussed and the learned trial Court recorded findings that the appellants had failed to make out a plausible defence in the said PLA.

2. We have gone through the copies of the relevant records. It is but apparent on the face of the record, and not otherwise denied that on 30.10.2001 only the application of the respondent-Bank seeking permission ito produce additional documents was to be taken up for hearing. Neither the isuit nor the application for leave to defend was called for hearing on J30.10.2001. This being so, the order and judgment dated 30.10.2001 'dismissing the said application on the ground that the appellants were iabsent and further decreeing the suit itself are wholly without jurisdiction. We may refer here to the following observations of the Hon'ble Supreme Court of Pakistan in the case of Qazi Muhammad Tariq v. Hasin Jahan and3 others (1993 SCMR 1949) appearing at page 1951 of the report :--

"It seems difficult to support the order dated 27.3.1986 of the trial Court and the orders of the Additional District Judge and the High Court. A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application for temporaiy injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for temporaiy injunction. It could not proceed beyond that and dismiss the suit as well. Quite clearly its order in this regard was without jurisdiction and void."

1. We do find that the learned trial Court after holding that the application is not competent under Section 12(2) CPC, proceeded to record findings qua the contents of the said application for leave to defend the suit. However, the impugned order dated 8.7.2002 itself speaks that the matter has been approached in a manner as if only a formality is being completed. This is not the spirit of the law. Mere mentioning of a wrong provision of law would not make any lis incompetent. This was a matter to be dealt with under Section 151 CPC and we find that incidentally this latter provision of law was mentioned in the title of the said application. The learned trial Court had acted without lawful authority while passing the said decree dated 30.10.2001 and it was to be set aside as such. Be that as it may, we have been told by learned counsel for both the parties that the matter is under active consideration in terms of the relevant State Bank's circular. This FAO accordingly is allowed. The impugned order as well as judgment and decree dated 30.10.2001 passed by the learned trial Court are set aside. The result would be that the said application under Order XIII Rule 2 CPC filed by the Respondent-Bank (which was never decided although it was specifically fixed for hearing on 30.10.2001 and the only proceeding to be taken up on the said date) as well as the said application for leave to defend the suit filed by the appellants shall be deemed to be pending alongwith the suit of the respondent-Bank before the learned trial Court. The parties have been directed to put in appearance before the learned Judge, Banking Court No. IV, Lahore, on 30.7.2003, whereafter the learned Judge shall proceed further accordingly. No orders as to costs.

( A.A.) Case remanded.

PLJ 2004 Lahore 67 (DB)

Present: ch. ijaz AHMAD AND BASHIR A. MUJAHID, JJ.

MUHAMMAD SIDDIQUE-Appellant

versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through its BRANCH MANAGER-Respondent

R.F.A. No. 465 of 1998, heard on 14.10.2003. (i) Administration of Justice-

—-High Court noted that officials of bank sanction loan in favour of citizens after mortgaging property of less value-Banking Authorities and loanees being beneficiaries of such fake transaction, High Court was constrained to send the case to Chairman National Accountability for necessary action and compliance. [P. 71] B

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

—-O. XXXVII, R. 3 & S. 96-Suit for recovery of loan amount-Application for leave to defend having not been filed within prescribed period, Banking Court was justified to decree suit of plaintiff. [P. 70] A

PLD 1990 SC 497 and 1987 CLC 1002 ref.

M/s Rana Muhammad Nawaz, Muhammad Siddique Mughal and Malik Shamim Ahmad, Advocates for Appellant.

Malik Karamat Ali Awan, Advocate for Respondent, Date of hearing : 14.10.2003.

judgment

Ch. Ijaz Ahmad, J.--The brief facts out of which the present appeal arises are that the appellant secured loan from the respondent-bank amounting to Rs. 29,000/- vide Loan Case No. 098959 which was sanctioned by the respondent-bank on the application of the appellant on 5.8.1991 whereas loan secured by the appellant amounting to Rs. 2,08,0307- vide Loan Case No. 091378 which was allegedly sanctioned by the respondent-bank in favour of the appellant on 26.11.1990. The respondent-bank sanctioned aforesaid loans in favour of the appellant after mortgaging the land of the appellant. Agreements were also executed between the appellant and the respondent-bank. The appellant failed to discharge his liabilities in terms of the agreement. The respondent-bank being aggrieved filed suit for recovery of Rs. 3,36,618/- before the Banking Court. The appellant filed application for leave to defend before the Banking Court by raising legal and factual objections which was dismissed by the Banking Court as' the appellant did not file an application for leave to defend within the prescribed period as time barred. The suit of the respondent-bank was decreed by the Banking Court vide judgment and decree dated 5.10.1998. The appellant being aggrieved filed this appeal.

Learned counsel of the appellant submits that the appellant secured only one loan amounting to Rs. 29.000/- from the respondent-bank which was sanctioned by the respondent-bank on the application of the appellant on 5.8.1991 vide Loan Case No. 098959 whereas the second loan allegedly sanctioned in favour of the appellant by the respondent-bank on 26.11.1990 amounting to Rs. 2,08,030/- vide Loan Case No. 091378 is fictitious. The appellant has not applied for the said loan and did not receive the said amount. He further submits that the respondent-bank sanctioned the first loan in favour of the appellant after securing signatures on blank papers from the appellant which were filled by the respondent-bank subsequently. The respondent-bank/Banking Court sent notice to the appellant on the address where the land of the appellant was situated but subsequently served the appellant at his temporary address mentioned in the application at Sialkot on'21.4.1996. He further urges that month of April is harvesting season, therefore, the appellant has to go to his land for the said purpose.

The appellant came back at his temporary residence and found the notice dated 21.4.1996. There were holidays from 28th to 30th April, 1996 and 1st May, 1996 and the appellant immediately filed an application for leave to defend before the Banking Court on 8.5.1996 but this fact was not considered by the learned Banking Court in its true perspective. lie further submits that it is the duty and obligation of the Banking Court as well as of the respondent-bank to send notice to the appellant on two addresses mentioned in the application for securing loan. He further submits that the appellant denied the loan sanctioned allegedly in favour of the appellant on 26.11.1990, therefore, Banking Court erred in law not to grant leave to defend the case of the appellant without applying its judicial mind. He further urges that service of-the appellant was not effected, therefore, judgment and decree passed by the Banking Court against the appellant is not sustainable in the eyes of law. He further submits that the appellant has arguable case in view of the ground taken by the appellant, in the application for leave to defend. He further submits that the appellant got a case registered against officials/officers of the respondent-bank vide FIR No. 67/1998, registered at P.S. CBC Lahore on 22.10.1998. The respondent-bank allegedly prepared the documents qua the loan secured by the appellant on 26.11.1990 from the respondent-bank malafidely, but this fact was not considered by the Banking Court in its true prospect.

Learned counsel of the respondent-bank submits that the appellant has not mentioned correct address where the land of the appellant is situated in the application filed by the appellant for the purpose to secure loan from the respondent-bank. The appellant is resident of Sialkot which address has been supplied by the appellant himself at the time of filing an application for securing the said loan. He further submits that the appellant is not serving anywhere in any Government or Semi Government Department, therefore, the appellant could not take benefit of the holidays. Even otherwise the appellant has not filed the application immediately after 1st May, 1996. so Banking Court was justified to dismiss the application of the appellant as time barred. He further submits that the criminal case has been closed by the FIA Authorities as is evident from letter dated 12.12.2000 written by the Deputy Director (Banking) to the Deputy Director FIA CBC. Lahore under the heading "Case FIR No. 67/1998 of FIA, CBC, Lahore".

Learned counsel of the appellant in rebuttal submits that address mentioned in the documents clearly reveals that the appellant is temporarily residing at Sialkot. The respondent-bank has sent notice to the appellant at the address of his native town as is evident from page 44 of the appeal which is attached as Annex-G.

We have considered the contentions of learned counsel of the parties and perused the record ourselves.

It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties.

The office sent summons to the appellant in view of the order of Banking Court dated 14.4.1996. The appellant/defendant filed reply to show cause notice on 8.5.1996. Notice was also published in the daily "Frontier Post" on 21.4.1996 and in daily "Pakistan" on 20.4.1996. For our own satisfaction we direct learned counsel of the respondent-hank to produce the original record vide order dated 30.10.2002. Learned counsel of the respondent-bank has produced photo copy of the original record as the original record has already been secured by the FIA Authorities after securing order dated 28.10.1998 from the Sessions Judge, Sialkot. The respondent-bank requested the Deputy Director FIA to return the original record to the respondent-bank. The last letter was sent by the Manager of the Bank to the Deputy Director FIA on 10.10.2003. The FIA did not return the original record to the respondent-bank. Photo copy of the original record which was produced by learned counsel of the respondent-bank reveals the following addresses of the appellant :

The aforesaid addresses were mentioned by the appellant at the time of securing the loan in his application. The aforesaid addresses clearly reveal that the first address is incomplete. It is also admitted fact that the appellant did not deny the notice received on his second address on 21.4.1996. As mentioned above, a public notice was also published in the daily "Frontier Post" on 21.4.1996 and in the daily "Pakistan" on 20.4.1996. Under the Banking Laws, three modes of service have been mentioned which are accepted by the Courts as the law laid down by the Hon'ble Supreme Court in PLD 1990 SC 497 M/s Ahmad Autos vs. Allied Bank of Pakistan Limited. It is also settled principle of law that the appellant has to file an application for leave to defend within the prescribed period under the Banking Laws which admittedly was not filed by the appellant, therefore, Banking Court Wis justified to decree the suit of the respondent-bank in view of the law laid down by the Hon'ble Supreme Court in M/s Ahmed Auto's case supra. The contention of learned counsel of the appellant that respondent-bank has secured signatures on blank paper from the appellant at the time of sanctioning loan, has no force in view of the law laid down by the Karachi High Court in Habib Bank Limited vs. Cargo Despatch Company Ltd. and 4 others,1987 CLG 1002. The learned Banking Court also found in para-4 that the appellant has no case on merits. Learned counsel of the appellant did not raise any objection qua finding of the Banking Court in para-4 on merits before us.

In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment. The appeal stands dismissed having no force.

However, it is also admitted fact that the appellant lodged a case against the respondenUmnk vide FIR No. 67/1998 on 22.10.1988 at P.S. CBC, Lahore in which Deputy Director (Banking) has written a letter to the Deputy Director CBC, Lahore on 12.12.2000 which is to the following effect:

"I am directed to refer to your letter No. C-67/98/135/DD/CBC/L dated 29.1.1999 on the subject and to say that the competent authority has accorded approval for closure of the subject case as was recommended by you."

Learned counsel of the parties did not place on record any order passed by the competent Court keeping in view the allegations levelled by the appellant. In the interest of justice and fair-play, let a copy of this order be sent to Chairman, National Accountability Bureau, who is directed to proceed in the matter qua the case FIR No. 67/98 (mentioned above) and complete the process within a period of three months after receiving the order of this Court. It is pertinent to mention here that the officials/officers of the bank sanction the loan in favour of the citizens after mortgaging the property of less value. In case the bank authorities shall mortgage the land or property of the citizens equal to the loan amount secured by the bank authorities at the time of sanctioning the loan then banking institutions should not be ruined through this modus operandi. The Banking Authorities and the loanee are beneficiaries of such fake transactions on account of this, we are constrained on the circumstances to send the case to the Chairman, NAB for necessary action and compliance.

(A.A.) Order accordingly.

PLJ 2004 Lahore 71

Present: MUHAMMAD MUZAMMAL KHAN, J.

RAZIA-SULTANA-Petitioner

versus MUHAMMAD SIDDIQUE etc.-Respondents

C.R. No. 471 of 2003, heard on 13.10.2003.

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

—O. 1, R.8 & S. 115-Non-impleading of necessary party-In suit for possession through partition, one co-sharer was not impleaded as a party- Judgment and decree passed by Courts below in absence of.non- impleaded co-sharer was defective and such defect being apparent on the face of record, decree and judgment set aside and case was remanded for decision afresh after impleading co-sharer in suit and to decide the same within specified period. [P. 73] A

PLD 1965 SC 690; PLJ 1986 Lahore 309 and 1993 CLC 31 ref.

Sheikh Umar Draz, Advocate for Petitioner.

Ch. Muhammad Tufail, Advocate for Respondents Nos. 1-3.

Date of hearing : 13.10.2003.

judgment

This revision petition arises out of a partition suit filed by the respondents, seeking partition of joint holding measuring one kanal 2 marlas wherein, the respondents claimed 7/11 share. The suit of the respondent was contested by the petitioner and the learned trial Court on 13.9.2001 passed a preliminary decree in favour of the respondents determining share of the parties in the joint holding.

The petitioner aggrieved of the preliminary decree dated 13.9.2001 filed an appeal before the learned Additional District Judge Shakar Garh but remained unsuccessful, as the same was dismissed on 2.1.2003.

1. A short factual background of the case is that the petitioner (Razia Sultana) and Salma Begum, predecessor in interest of Respondents Nos. 1 to 4 were the real sisters. The petitioner purchased land measuring 7 marlasout of a joint holding from one Siraj-ul-Haq vide registered sale-deed dated 5.10.1991. Salma Begum (predecessor in interest of the respondents) also purchased 7 marlas from the same vendor through a separate sale-deed. Ex. P. 4 dated 5.10.1991. The total area of this joint holding was one kanal, and two marlas. The remaining 8 marlais owned by one Sana Ullah, who was not impleaded as a party to the suit, filed by the respondents, 4. The learned counsel for the petitioner contends that a suit for partition of joint holding could not proceed unless and until all the co-owners were impleaded as party thereto. He further submits that although parties are in possession of the portions of the joint holding according to their entitlement and there is also assertion that there had been some private partition, yet all the co-owners should have been impleaded in the suit by the respondents. He in this behalf relied on the cases of Haji Abdullah Khan andothers versus Nisar Muhammad and others (PLD 1965 SC 690), Mst. Mehr Nishan Versus Mst. Gulzar Begum and 2 others (PLJ 1986 Lahore 309) and Syed Mohsan Raza Bukhan and 4 others Versus Syed Azra Zenab Bukhari(1993 CLC 31).

4A. The learned counsel for the respondents argues that there was a private partition between the parties whereunder they are in possession of parts of the joint property according to their entitlement and as such, impleadment of all the co-sharers was not necessary.

1. 1 have considered the arguments of the learned counsel for the parties and have examined the record appended with this petition Ex. P. 2 is the copy of register Haqdaran Zamin for the year 1992-93, which shows that Sana Ullah as a co-sharer has 4/11 share, whereas Salma Begum and Razia Sultana Begum daughters of Ali Ahmad are co-owners to the extent of 7/11 share. This document coupled with copy of mutation Ex. P. 1 attested in favour of Mst. Salma Begum, predecessor in interest of the respondents, clearly shows that Sana Ullah is a co-owner with the parties to this litigation and has a subsisting interest in the joint property who undeniably was not impleaded as a party to the suit. A similar question fell for determination of this Court in the case of Syed Mohsan Raza Bokhari (supra) and it was held

that in suit for partition each co-proprietor is allocated share in the property by dividing it and thus is a necessary party. It otherwise sounds unreasonable that out of three co-owners, two may have partitioned of their choice, at the back of third co-sharer, thus I hold that Sana Qllah co-sharer was a necessary and property party to the suit in hand but has incorrectly not been impleaded by the respondents as a party 'to the suit and the decrees passed in his absence, by both the Courts below are not sustainable.

1. The learned counsel for the respondents objects that no such objection was either taken in the written statement or was urged before the Courts below and thus cannot be allowed to be raised in the revisional jurisdiction. I cannot see along him an eye to eye because, it is a defect apparent on the face of the record and if was the duty of the Courts below to advert to it, of their own. Even otherwise, it is a law point whether a person who is admittedly a co-owner, is a necessary party to the proceedings or not and thus it can be raised at any stage of the proceedings. My this view is supported by the judgment given by the Hon'ble Supreme Court of Pakistan in the case of Haji Abdullah Khan and others, noted above.

2. For what has been discussed above, I am constrained to hold that Sana Ullah being a co-owner in the property in question was a necessaiy and proper party and preliminary decrees passed by the two Cojirts below, in his absence; are unlawful, and thus, are liable to be set-aside. I accordingly accept this revision petition, set aside the impugned decrees and remand back the case to the learned trial Court for its fresh trial, after impleading Sana Ullah co-sharer as a defendant to the suit.

3. Since, the dispute between the parties regarding partition of joint holding hinges since 1997, I direct the learned trial Court to conclude the proceedings expeditiously, preferably within a period of 6 months from the date of receipt of this judgment. Compliance shall be reported to the Deputy Registrar (Judicial) of this Court. No order as to cost.

(A.P.) Case remanded.

PLJ 2004 Lahore 73

Present: CH. IJAZ AHMAD, J. JAVED NISAR SYED-Petitioner

versus

GOVERNMENT OF PAKISTAN through SECRETARY

ESTABLISHMENT DIVISION CABINET SECRETARIAT, ISALAMABAD and another-Respondents

W.P. No. 638 of 2002, decided on 3.7.2003. Constitution of Pakistan (1973)--

—Arts. '199 & 212(3)--Prayer clause of petitioner's writ petition clearly indicated that he wanted proforma promotion through writ petition—Writ

petition qua proforma promotion was not maintainable-Besides, petitioner had admittedly filed appeal before Service Tribunal, which was pending adjudication, therefore, writ petition was not maintainable.

[P. 75] A

2000 SCMR 1504; 2001 SCMR 1446; PLD 1997 SC 382; PLD 1994 SC 539; PLD 1991 SC 1118 and PLD 1968 SC 185 ref.

Mr. M.A. Ghani, Advocate for Petitioner.

Mr. Sher Zaman Khan, D.A.G. for Respondents.

Date of hearing : 3.7.2003.

order

The petitioner has filed this writ petition with the prayer that the direction be issued to the respondents to the extent that the petitioner be promoted for the post in question from the date when his juniors were promoted.

1. The learned counsel of the petitioner submits that action of the respondent is hit by Article 25 of the Constitution as the respondents promoted Capton Jehanzeb Khan and Fawad Hassan Fawad, whose cases were exactly similar to the case of the petitioner. He further submits that the petitioner is elegible in the terms of rules and regulations of the respondents to be promoted qua the post in-question in view of Annexes attached with writ petition. The petitioner has filed this Constitutional petition as the respondents did not consider the case of the petitioner as the petitioner was not found suitable to be promoted quathe post in-question, therefore, the writ petition is maintainable. In support of his contention, he relied upon "Abdul Wahab Khan vs. Government of the Punjab and 3 others" (PLD 1989 S.C. 508) and Muhammad Raees vs. Government of Balochistan (1995 PLC (C.S.) 151). He further submits that the respondents deferred the case of the petitioner in violation of the instructions and guideline issued by the competent authority. He relied upon the instructions dated 13.8.1998, 20.9.2000, 19.2.2001 and 3-7-2001 respectively.

2. The learned law officer submits that the petitioner has filed an appeal before the Serviced Tribunal qua the same subject, matter and relief, therefore, the writ petition is not maintainable. He further submits that the question of eligibility of the petitioner is involved in ,the present case as is evident from the contents of the writ petition and report and parawise comments, therefore, the writ petition is not maintainable in view of bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act. In support of his contention, he relied upon the following judgments :--

Government of the Punjab etc. vs. Capt(R) Muhammad Mushtaq (2000 S.C.M.R. 1504).

Shaft. Muhammad Mughal vs. Secretary Estab. Division etc.(2001 SCMR 1446).

Dr. Muhammad Salman Waris vs. Naeem Akhtar, etc. (PLD 1997 S.C. 382).

Muhammad Anees vs. Abdul Haseeb (PLD 1994 S.C. 539).

He further submits that even the petitioner has not a good case on merit as the petitioner did not perform the duties against active assignment. The petitioner is still on leave for higher education. The petitioner was deferred on account of absence of his performance. The petitioner was successively considered for promotion qua the post in-question in the meetings held by the Board on 22.3.1999, 26.8.2000 and 14.7.2001 and deferred his case with cogent reasons.

1. .The learned counsel of the petitioner in rebuttal submits that the question of eligibility of thg petitioner is not involved in this case as the respondents considered the petitioner as eligibility and considered the case of the petitioner that the petitioner was not promoted on account of non- suitability, therefore, the petitioner has no other alternative remedy to file an appeal before the Service Tribunal.

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

3. It is better and appropriate to reproduce the prayer clause to resolve the controversy between the parties :—

"It is most respectfully prayed that the respondents may be directed to implement the promotion policy, duly approved by President of Pakistan, with a consequential relief of promotion of petitioner to B.S. 19 with effect from 31.5.1999, i.e. the date on which Mr. Ijaz Ali Khan, six places junior to the petitioner was promoted to such grade.

It is further prayed that pending disposal of the writ petition, the officers junior to the petitioner in D.M.G. Group especially those who were approved for promotion to. BS 19 in meeting held in December, 2001 to clear deferred cases of promotion, may not be promoted and status-quo in this respect may be granted."

Mere reading of the prayer clause clearly reveals that the petitioner wants to proforma promotion through this Constitutional petition. The writ petition qua proforma promotion is not maintainable in view of law laid down by the Honourable Supreme Court in\ Mrs. Aqeela Asghar Ali and others vs. Miss Khalida Khatoon Malik and others" (PLD 1991 S.C. 1118). It is also admitted fact that the petitioner has already filed an appeal before the Service Tribunal, which is pending adjudication. In this view of the matter, the Constitutional petition is not maintainable in view of law laid down by the Honourable Supreme Court in Ch. Tanbir Ahmad Siddiky vs. Province of the East Pakistan and others" (PLD 1968 SC 185). The judgment cited by

the learned counsel of the petitioner is distinguished on facts and law, wherein the question of proforma promotion was not involved; whereas in the present case, the petitioner has mentioned above the claim of petitioner in this petition pertains to proforma promotion through this Constitutional petition which is evident from the prayer clause.

In view of what has been discussed above, this writ petition has no merit and the same is dismissed. (A.A.) Petition dismissed.

PLJ 2004 Lahore 76

Present.: sayed zahid hussain, J. MUHAMMAD KALEEM AKHTAR-Appellant

versus

NOOR HUSSAIN and 2 others-Respondents S.A.O. No. 59 of 2000, heard on 27.3.2003.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 13(6)-Order passed by Rent Controller under S. 13(6) of West Pakistan Rent Restriction Ordinance, 1-959 being in force had to be complied with by tenant unless reversed or modified in appropriate proceedings—Rent controller had no power to review the same—Assertion of tenant that he had no knowledge of order for deposit of rent was belied by record wherein presence of his counsel was recorded when order in question, was passed-Order of Rent Controller for ejectment of tenant for non-compliance of order of Rent Controller was thus, rightly passed by Rent controller warranting no interference. [Pp. 77 & 78] A & B

Mr. Muhammad Akbar Cheerna, Advocate for Appellant. Malik Abdul Wahid, Advocate for Respondents. Date of hearing : 27.3.2003.

judgment

In the ejectment proceedings taken out, by Noor Hussain Respondent No. 1 against the appellant order under Section 13(6) of the Rent Restriction Ordinance, 1959 was passed on 20.9.1999 directing him to make deposit of rent for the month of January to May 1999 (Rs. 7500/-) and to continue depositing future rent before 15th of each month. For the non-compliance of that order the defence of the appellant/tenant was struck off on 1.11.1999 and was ordered to vacate the shop within one month. An appeal was preferred by the appellant against the same which was dismissed by the learned Additional District Judge, Gujranwala on 3.3.2000. This is second appeal by him.

2.The learned counsel contends that the appellant had not committed any default, therefore, order dated 20.9.1999 could not be passed, and for the recalling of which order even the application of the appellant was illegally dismissed. It is contended that the affidavit sworn by the learned counsel for the appellant has not been kept in view by the Courts below and ejectment order has been passed against the appellant illegally. It is also contended that application filed by the appellant for decision on oath has remained undisposed of by the learned Rent Controller, which had to be disposed of before passing of any final order in the matter. The learned counsel for the respondent/landlord on the other hand supports the concurrent ejectment orders passed by the learned Rent Controller as also the learned appellate Court and has also referred to a counter affidavit sworn by Mr. Muhammad Abid Khokhar, Advocate, Gujranwala who had been conducting the rent case in the Court of Rent Controller, Gujranwala.

1. Material placed on the record has been perused with the assistance of the learned counsel for the parties. The copy of the order-sheet placed on the record shows that order dated 20.9.1999 was passed by the Rent Controller in presence of the counsel for the parties, directing the appellant to make deposit of the rent for the month of January to May, 1999 by 30.9.1999. On the said date an application was filed by the appellant for oath about his assertion as to payment of rent. The case was then adjourned to 30.9.1999 for reply to the said application, which was filed by the respondent on the said date stating that the object of the said application was to prolong the proceedings. The matter was then adjourned to 8.10.1999, on which date the application of the appellant for oath was disposed of as having become infructuous, in view of the reply and refusal of the respondent. The contention of the learned counsel for the appellant that the application made by the appellant had remained undisposed of, thus stand controverted from the record.

It was on 15.10.1999 that application for recalling of order dated 20.9.1999 was filed by the appellant which was contested by the respondent. It may be mentioned here that on 18.10.1999 the respondent had moved an application for striking off the defence of the appellant for non-compliance of order dated 20.9.1999. It was on 1.11.1999 that the learned Rent Controller passed the order in view of the admitted position that the rent for the month of January to May 1999 i.e. Rs. 7500/- had not been deposited and that the Rent Controller had no power to review his order passed under Section 13(6) of the Rent Restriction Ordinance, 1959 on 20.9.1999. There is not doubt; whatsoever that the Rent Controller had no such power to review that order and order passed by him under Section 13(6) of Rent Restriction Ordinance, 1959 was in force and had to be complied with unless reversed or modified in the appropriate proceedings. Besides the presumption of regularity and correctness attached to the proceedings of the learned Rent Controller, suffice it to state that assertion of the appellant stand belied by the record. It is borne out for the order-sheet that the learned counsel for the appellant was present when order under Section 13(6) of the Rent Restriction Ordinance, 1959 was passed by him. He was again present on 30.9.1999 as also on 8.10.1999. Application for recalling of order dated 20.9.1999 was made on 15.10.1999. It is thus not difficult to infer that such a belated move was an after-thought by which time default had already been committed due to non-compliance of order dated 20.9.1999. Thus a feeble attempt was made by the appellant to overcome the consequences of non-compliance of the said order. As against the affidavit of Sh. Muzafar Ali, Advocate Gujranwala there is a counter affidavit sworn by Mr. Muhammad Abid Khokhar, Advocate Gujranwala. Thus no safe reliance can be placed upon the same. During the course of hearing of the appeal the learned counsel for the appellant has stated repeatedly that the rent for the month of January to May 1999 had been paid by the appellant to the son and an employee of the respondent. Respondent No. 1 who was present in Court has quite emphatically refuted the assertion of the appellant. Safe Course for the appellant was to comply the order dated 20.9.1999 and then to plead the payment of rent and produce evidence to that effect. He however, took a risk effacing consequences of non-compliance. Since the appellant has failed to comply with order dated 20.9.1999, no illegality has been committed by either of the Courts below in saddling him with consequences of the same and has been rightly ordered to vacate the rented premises.

In view of the above, the appeal is dismissed. At this juncture the learned counsel for the respondent, who is accompanied by his client, was asked whether the respondent was prepared to give reasonable time to the appellant so that he could shift his business from the rented premises, on which he has agreed to give him time up to 30th September, 2003. This '. period the appellant will be entitled to avail subject to his continuous (depositing rent in terms of interim order dated 14.12.2000. No order as to costs.

(A:P.) Appeal dismissed.

PLJ 2004 Lahore 78 (DB)

Present: maulvi ANWAR-UL-HAQ & nasim sikandar, JJ.

KHALID SHAHBAZ CHAUDHRY and 4 others-Appellants

versus

PRIME COMMERCIAL BANK LTD. LAHORE through its ATTORNEY and another—Respondents

I.C.A. Nos. 653, 654 and 655 of 2000, heard on 29.7.2003.

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

—-Ss. 47 & 104-Constitution of Pakistan (1973), Art. 199-Law Reforms Ordinance (XII of 1972), S. 3(2)-Dismissal of applications, filed by appellants under S. 47 C.P.C.--Appeal against dismissal of objection applications being competent was not filed—Constitutional petition was dismissed against dismissal of objection applications under S. 47 of C.P.C.-Appellants case squarely falls within mischief of proviso to S. 3(2) of Law Reforms Ordinance 1972, therefore Intra Court appeals would not be competent and the same were dismissed. [Pp. 80, 81 & 82] A & B

AIR 1943 Lahore 140; PLD 1985 SC 107 & PLD 1984 SC 344 ref.

Mian Nisar Ahmad, Advocate for Appellants. Mr. Jawad Hassan,Advocate for Respondents. Dates of hearing : 25 and 29.7.2003.

judgment

Maulvi Anwarul Haq, J.--This judgment shall decide ICA No. 653/2000, ICA No. 654/2000 and ICA No. 655/2000 as these proceed against a common judgment dated 1.9.2000 of a learned Single Judge, in Chamber, of this Court, whereby W.P. No. 17222/2000, W.P.No. 17223/2000 and W.P. No. 17224/2000, filed by the appellants were dismissed.

1. These ICAs came up before the Court on 2.10.2000 when learned counsel for the appellants was called upon to address as to the maintainability of the ICAs. The matter was heard at some length on 12.3.2001 but further hearing was deemed necessary. Ultimately, these cases have been re-heard.

2. The facts necessary to be stated for the purposes of this judgment are that in suits filed by the respondent-Bank for recovery of money against the appellants in these cases decrees were passed by a learned Judge. Banking Court-II at Lahore, on 22.1.1999. Some litigation ensued, the details whereof are not required to be stated here. The decrees were put into execution on 22.10.1999. Vide order dated 16.2.2000 the mortgaged properties were ordered to be sold. The decree holder-Bank was granted permission in terms of Order XXI, Rule 72 CPC to participate in the sale through auction. The properties were knocked down to the decree holder- Bank in the said auction held on 13.4.2000. In the first instance the appellants filed applications under Order XXI, Rule 90 CPC for the setting aside of the sale. On 28.6.2000, the Executing Court directed the appellants to deposit 20% of the sale price in Court before 17.7.2000. The appellants filed applications that they be permitted to furnish security instead of cash deposit. These applications were dismissed on 20.7.2000. Thereafter the appellants filed applications under Section 47 CPC for setting aside of the sale. These applications were dismissed on 5.8.2000, the said writ petitions were filed for setting aside of the said order dated 5.8.2000, which have been dismissed, vide the impugn'ed judgments.

3. Mian Nisar Ahmad, learned counsel for the appellants, contends that the said order dated 5.8.2000 dismissing the applications of the

appellants under Section 47 CPC would not be appealable. The contention is that the applications have not been decided on their merits and as such no appeal would lie against the said order. The relies on the case of Barkat Ram, General Manager, Bharat National Bank Ltd. v. Sardar Bhagwan Singh (AIR 1943 Lahore 140), a Full Bench judgment of this Court. Mr. Jawad Hassan, learned counsel for the respondent-Bank, on the other hand, says that by means of the said orders the applications filed under Section 47 CPC were dismissed and this order would be appealable under Section 104(ff) CPC. Also points out that the said earlier order under Order XXI Rule 90 CPC is also appealable under Order XLIII, Rule 1 (i) CPC. He relies upon the cases of M. Abdullah v. Deputy Settlement Commissioner (PLD 1985 SC 107) and Karim Bibi v. Hussain Baksh (PLD 1984 SC 344).

1. We have given some thought to the respective contentions of the learned counsel and have examined the files of the writ petitions with their assistance. Now the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 reads as follows :--

"Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order."

There is no manner of doubt in our mind that the original order in these cases is the said order dated 5.8.2000 passed by the learned Executing Court dismissing the applications filed by the appellants under Section 47 CPC praying that the auction dated 13.4.2000 be set aside for the reasons stated therein. Now the learned counsel for the respondent has very rightly pointed out that this is an order, which is appealable under Section 104(ff) CPC. Now coming to the said contention of Mian Nisar Ahmad, based on the said Full Bench judgment of this Court, we deem it necessary to state here the facts of the said case. A money decree passed by a learned Senior Subordinate Judge, Ambala, was sought to be executed. The file was, however, consigned with the,decree remaining unsatisfied. The decree was then assigned and the assignee filed an application before the said learned Judge of Ambala for transfer of the decree to Dehli. A transfer certificate was issued and it was addressed to the Senior Subordinate Judge at Dehli. Their Lordships pointed out that, this was wrong as the Certificate had to be addressed to the District Judge, Dehli. Be that as it may, the said judge at Dehli commenced the execution proceedings and the property of the petitioner before their Lordships was attached and then sold. The petitioner filed objections, which were dismissed by the Executing Court. The case was, however, remanded and inquiry was conducted. We may note here that these objections were relatable to the manner of publishing and conduct of the sale. After the completion of the inquiry and hearing of arguments, the said petitioner presented an application under Section 47 CPC raising two

new objections. First to the jurisdiction of the Dehli Court to execute the decree because of the defect in the Transfer Certificate and second that the execution application was time barred. The learned Executing Court refused to entertain the said two objections on the ground that these are belated and over ruled earlier filed objections to the proclamation and conduct of sale. The sale was confirmed. The said petitioner then filed an appeal in the High Court. A learned Single Judge held that because of the said defect in the Transfer Certificate all the proceedings in the Dehli Court were null and void. The plea of limitation was rejected. On merits, it was found that the proclamation was defective.. The execution application was accordingly dismissed. An LPA was filed by the decree holder. Now the said learned LPA Bench remitted back the case to the Executing Court for issuance of a fresh proclamation of sale and taking further proceedings in accordance with law. Following findings were recorded :--

(i) The proceedings of Dehli Court did not suffer from any inherent lack of jurisdiction but merely an irregularity ;

(ii) The plea of limitation could not have been allowed to be raised; and

(iii) The proclamation for the sale was materially defective.

The said judgment debtor filed an application for leave to appeal to the Privy Council, which was heard by the Full Bench of this Court. According to the majority (Tek Chand and Bhide JJ.) an appeal against the said order was not competent. All the three Hon'ble Judges held that all orders under Section 47 CPC are not appealable. The reasons recorded by the majority for holding that appeal was not competent were that the sale had been set aside. The proceedings were found to be with jurisdiction and the result was that the process of execution commenced and as such continued and this would be an order not falling in the category of either a final adjudication with reference to a decree or a final order appealable in terms of Section 96 or Sections 109/110 CPC respectively.

1. An examination of the said judgment being relied by learned counsel for the appellants would, thus, show, that nothing turns in favour of the appellants with reference to the said judgment. In the present case, the effect of the dismissal of the applications under Section 47 CPC is that the objections against the sale having been set aside and nothing remains to be done by the Executing Court after having confirmed the said sale. Thus, the process of execution stands terminated so far as the said properties of the appellants are concerned, as also of course, their rights, title or interest therein are concerned. It is true that the order dated 5.8.2000 does not decide the merits but still it dismisses the applications under Section 47 for the reasons stated therein i.e. that it was incompetent or was not maintainable. Now this decision of the learned Executing Judge has been made subject to an appeal under Section 104(ff) CPC. This being so, the case squarely falls within the mischief of said proviso to Section 3(2) of the Law Reforms Ordinance, 1972 and these present ICAs would not be competent.

2. We, therefore, do find that the ICAs are not competent and accordingly dismissed all the three ICAs. No orders as to costs.

(A.A.) Appeals dismissed.

PLJ 2004 Lahore 82

Present: SYED SAKHIHUSSAIN BUKHARI, J.

ZULFIQAR etc.-Petitioner

versus Mst. SHAMSHAD BEGUM etc.-Respondents

C.R. No. 220 of 1999, heard on 10.6.2003. (i) Natural Justice-

—Settlement Authorities had transferred property in question, in favour of deceased predecessor of plaintiffs through open auction and he had paid its total sale pi-ice, therefore, it was necessary to issue notice to deceased transferee or his legal heirs and to hear them before deciding appeal, however, Settlement Commissioner passed order in their absence- Likewise Deputy Settlement Commissioner passed order against plaintiffs without hearing them-Such proceedings and decision/order based thereon, was thus, against principles of natural justice and same were therefore, set aside. . [Pp. 84 & 85] A

(ii) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-

—S. 2(2)-Allotment of land in question, in favour of defendant's predecessor who failed to pay price of the same despite notice-Land was resumed and plaintiffs predecessor purchased the same in open auction- Settlement Authorities, thereafter, cancelled order of resumption of land without serving notice on predecessor of plaintiffs or to plaintiffs-­ Proceedings taken against plaintiffs without issuing them notice or without giving them opportunity of being heard and orders of allotment based thereon were thus, illegal and ineffective qua rights of plaintiffs-­ First Appellate Court had thus, rightly decreed plaintiffs suit which does not suffer from misreading, non-reading or jurisdictional defect, therefore, the same was maintained. [P. 85] E

1994 SCMR 2232Tc.f.

Mian Sarfraz-ul-Hassan, Advocate for Petitioner. Mr. Waseem Mumtaz Malik,Advocate for Respondents Nos. 1 to 7. Mr. Najam-ul-Hassan Gill, A.A.G for Respondents Nos. 8 & 9. Date of hearing: 10.6.2003.

judgment

This revision petition is directed against the judgment dated 26.6.1998, passed by learned Addl. District Judge, Gujranwala, whereby, appeal brought by respondents against the judgment and decree dated 17.1.1994. passed by learned Civil Judge, Gujranwala, was accepted and suit brought by them was decreed in their favour.

1. The relevant facts for the disposal of this revision petition are that Mst. Shamshad Begum etc. filed a suit for declaz-ation etc. against the petitioners to the effect that they were entitled to get disputed plot (No. B- XXIII-81) being legal heirs of Muhammad Musharaf and that orders dated 24.6.1976 and 25.10.1976 and Transfer Order No. 69566 dated 3.11.1976 were based on fraud, collusive, ineffective qua their rights and were liable to be set aside. The respondents/plaintiffs stated that Muhammad Musharaf son of Abdul Ghani (predecessor-in-interest of Plaintiffs/Respondents No. 1 to 7. purchased disputed plot (No. B-XXIII-81 measuring 5 Marias 125 ft.) on 23.10.1970 from Defendants Nos. 1 and 2 through open auction for Rs. 1700/-. They further stated that Defendant No. 3, Ghulam Hussain

i predecessor-in-interest of petitioner) was in possession of disputed plot but he failed to pay its price (Rs. 1326), therefore, he was declared defaulter vide order dated 8.4.1969 and plot was resumed under Scheme No. 8 and he (Ghulam Hussain) was accordingly informed about the same. The plaintiffs mentioned that later on disputed plot was placed in auction pool and the same was purchased by Muhammad Musharaf and the sale was confirmed in his favour. He paid the remaining sale price (Rs. 1275) and disputed plot was confirmed in his favour. Muhammad Musharaf submitted application before defendants for grant of proprietary rights and Defendant No. 2 cancelled B.S. Form No. 462 of Defendant No. 3 on 3.6.1971. The plaintiffs stated that Muhammad Musharaf died on 15.4.1974. Also that on 24.6.1976 Defendants No. 1 and 2 set aside resumption order and area of said plot was reduced to 4% marlas. He paid Rs. 1247/- and defendants illegally allotted disputed plot to Defendant No. 3 vide Transfer Order No. 69566 dated 3.11.1976, therefore, they were constrained to file suit against the defendants. Ghulam Hussain, defendant mentioned in his written statement that proceedings regarding resumption were illegal, therefore, he filed appeal and resumption order was set aside. He further mentioned that proprietary rights had been given to him and that plaintiffs had not challenged order passed by Addl. Settlement Commissioner and Deputy Settlement Commissioner, therefore, the same had attained finality. Also that he had constructed a house over disputed plot and he was in possession of the same. Learned trial Court framed issues, recorded evidence of the parties and suit brought by plaintiffs/respondents was dismissed vide judgment dated 17.1.1994. The respondents filed appeal against the said judgment and decree which was accepted by learned Addl. District Judge vide judgment dated 26.6.1998. Hence, this revision petition.

1. I have heard the arguments and perused the record.

2. The case of petitioners is that they are owners of disputed plot as legal heirs of Ghulam Hussain (predecessor-in-interest of petitioner) but defendant (Settlement Department) resumed the same illegally. Also that appeal brought by Ghulam Hussain was accepted by Addl. Settlement Commissioner and thereafter Deputy Settlement Commissioner allotted disputed plot to him vide order dated 25.10.1976 and transfer order was also issued in his favour.

3. On the other hand, case of the respondents/plaintiffs is that Ghulam Hussain failed to pay price of the disputed plot whereupon Settlement department resumed the plot and it was placed in auction pool. Also that Muhammad Musharaf (predecessor-in-interest of respondents/ plaintiffs) purchased the same in open auction and paid its total price and sale was confirmed in his favour but Settlement Authorities illegally set aside resumption order passed against Ghulam Hussain and again transferred disputed plot in his favour. The record shows that disputed plot was allotted to Ghulam Hussain on 15.11.1965 for Rs. 1326/-. However, he did not pay sale price (Rs. 1326/-) despite notice, therefore, plot was resumed on 8.4.1969. He was informed about said order on 23.4.1969. Later on suit property was placed in auction pool and Muhammad Musharaf son of Abdul Ghani purchased the same in open auction on 23.10.1970 and he paid its price. However, Ghulam Hussain filed appeal before Addl. Commissioner (Settlement) Lahore on 11.2.1971 against the resumption order and the same was accepted vide order dated 24.6.1976 (Ex. P. 12). The memo of appeal is Ex. P. 11. The perusal of order dated 24.6J.976 shows that Settlement Commissioner remanded the case to Deputy Settlement Commissioner with the direction that he should re-examine the case and take fresh decision in accordance with law and on merits. Thereafter, Deputy Settlement Commissioner, Gujranwala directed Ghulam Hussain to make payment of land measuring 4% marlas. The perusal of memo of appeal (Ex. Pll) shows that Ghulam Hussain had mentioned the name of Muhammad Musharaf son of Abdul Ghani but he had not given his address. Likewise, perusal of order dated 24.6.1976, passed by Settlement Commissioner (Ex. P. 12) shows that the same was passed without hearing Muhammad Musharaf or his legal heirs (plaintiffs). It is pertinent to- note that on the said dated (24.6.1976) Muhammad Musharaf was not alive but Ghulam Hussain did not bother to implead his legal heirs as respondents. As noticed earlier, he had not given even address of Muhammad Musharaf in memo of appeal. The Deputy Settlement Commissioner passed order on 25.10.1976 but there is nothing on record to show that before decision the plaintiffs were also served with a notice. It has been mentioned in order dated 25.10.1976 (Ex. P13) that widow of the respondent through her counsel were present but petitioners/defendants have failed to produce any evidence in support of the same. As such, it becomes crystal clear that plaintiffs were condemned unheard. As mentioned above, Settlement Commissioner passed order on 24.6.1976 but before said order Ghulam Hussain had not brought on record

the legal heirs of Muhammad Musharaf. Admittedly, Settlement Authorities

had transferred suit property in favour of Muhammad Musharaf through open auction and he had paid its total sale price, therefore, it was necessary to issue notice to Muhammad Musharaf or his legal heirs and to hear them before deciding appeal but Settlement Commissioner passed order in their absence. Likewise, Deputy Settlement Commissioner passed order without hearing the legal heirs of Muhammad Musharaf. It is against the principles of natural justice. Reliance can be placed upon Mrs. Anisa Rehman vs. P.I.A.C. and another (1994 SCMR 2232). So orders passed by Settlement Commissioner and Deputy Settlement Commissioner are liable to be set aside.

1. The most important aspect of the case is that Ghulam Hussain failed to pay price of disputed plot despite notice, therefore, Settlement Authorities resumed the same. Thereafter Muhammad Musharaf (predecessor-in-interest of plaintiffs/respondents) purchased said plot in open auction. In the circumstances of the case, there was no justification to set aside resumption order and thereafter allot the plot in favour of a defaulter (Ghulam Hussain). As such it is clear from the record that proceedings regarding allotment of plot in favour of Ghulam Hussain after resumption order are illegal, and ineffective qua the rights of plaintiffs. So learned Addl. District Judge has rightly accepted their appeal and decreed the suit.

2. The perusal of judgment dated 26.6.1998 shows that learned Addl. District Judge decided the appeal brought by respondents after appraisal of entire material available on record. There is no illegality or infirmity in the impugned judgment. Likewise there is no misreading or non-reading of evidence and jurisdictional defect, therefore there is no justification to set aside the same.

3. The upshot of the above discussion is that this revision petition has no force and the same is accordingly dismissed. No order as to costs.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 85

[Multan Bench Multan]

Present: FARRUKH LATEEF, J. MUHAMMAD YAQOOB-Petitioner

versus

PROVINCE OF PUNJAB, etc.-Respondents C.R. No. 163-D of 2003, decided on 31.7.2003. (i)

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

—-S. 115-Words, "illegality or with material irregularity as used in S. 115(l)(c) C.P.C. have reference to material defects of procedure and not

to errors of law or fact, after formalities prescribed have been complied wit)T"No commission of any error of procedure by courts below having been pointed out, revisional jurisdiction was not warranted. [P. 90] B

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

—Ss. 16 & US-Petitioner had himself invoked jurisdiction of Civil Court against orders of revenue hierarchy with the prayer for setting aside said orders, therefore, after unfavourable decision, petitioner could not be allowed to claim that Civil Court had no jurisdiction to decide his case-­ Court's below had jurisdiction to decide civil suits and appeals arising therefrom-Concurrent findings on question of fact or law rendered by Courts of competent jurisdiction, though erroneous, cannot be interfered with in exercise of revisional jurisdiction unless such findings were based on no evidence were arbitrary or perverse. [Pp. 90 & 91] C

(iii) Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--

—.-S. 10-Civil Procedure Code, 1908 (V of 1908), S. 115-Petitioner's claim that his case being at par with respondent, he should have been allotted half of impugned 7/zato-Concurrent findings of two Courts below to the extent of declaring orders of Revenue hierarchy as illegal was not assailed in revision by petitioner-Petitioner had also not disputed that A.C/Collector was not competent to make allotment of disputed 'Ihata'--Petitioner's claim that his case was at par with respondents and that he was entitled to half of disputed 'Ihata' was thus, repelled. [P. 90] A

Mr. Ahmad Nadecm Khan Chandia, Advocate for Petitioner.

Syed Hashmat Hussain Naqvi, Advocate on behalf of A.A.G. for Respondent No. 1.

Mr. Athar Rehman Khan, Advocate for Respondents Nos. 2 and 3. Date of hearing : 28.7.2003.

judgment

Vide this judgment Civil Revision No. 333-D/2003 involving same questions of law and fact would also be disposed of.

1. With the concurrence of the learned counsel for the parties the civil revisions are being treated as admitted cases.

2. Facts necessary for the disposal of the revision petitions are that Respondents Nos. 2 and 3 had filed a suit against the petitioner and the Province of Punjab (Respondent No. 1), for declaration that they are allottees and in possession of Ihata No. 58 measuring 17 marlas 1 sarsahis situated in Chak No. 215/E.B. Tehsil Burewala vide order of A.C/Collector, Burewala dated 13.9.1994 and Mutation No. 325 sanctioned on 29.9.1994 and that orders of Additional Commissioner (C), Multan and MBR

respectively passed on 12.1.1995 and 18.4.1996 are illegal and ineffective on their rights.

1. Their case was that they are permanent residents of the said village, were landless and did not own any Ihata, they were in possession of the said Ihata which was reserved for 'Mueens', on their application its classification was changed by the District Collector videorder dated

22.8.1994 whereafter it was allotted by the A.C/Collector, Burewala to them on 13.9.1994 subject to payment of price in accordance with the instructions of the Board of Revenue in pursuance whereof the sale consideration was also deposited by them in the Govt. treasury. Thereafter mutation of its transfer in their favour was also attested on 29.9.1994. However, on appeal by the petitioner the aforesaid allotment was illegally cancelled by the Additional Commissioner(C) on the ground that the Ihata was reserved for 'Mueens' and could not be allotted to either of the parties. Against that order revisions filed by them as well as by the petitioner were also allegedly illegally dismissed by the MBR. It was asserted that both the aforesaid Courts also did not consider that in pursuance of the allotment order not only sale price of the Ihata was deposited but residential construction was also made thereon by Respondents Nos. 2 and 3 by incurring huge expenses.

1. The petitioner had also filed a suit against the Province of Punjab and Respondents Nos. 2 and 3 for declaration that he is in possession of one half of the aforesaid Ihata and is entitled for its proprietary rights and that order dated 13.9.1994 passed by A.C/Collector alloting the entire Ihata to Respondents Xos. 2 and 3 and Mutation No. 325 attested on the basis of that order on 29.9.1994. are illegal and orders passed on his appeal by Additional Commissioner (Consolidation) against the aforesaid order'of Collector on

12.1.1995 and the order passed on revision against the aforesaid order by MBR on 18.4.1996 are also illegal and void.

1. His case was that on his application classification of the disputed Ihata was changed by the District Collector on 13.10.1994 whereby it was also directed that the said Ihata be disposed of in accordance with the latest instructions of the Board of Revenue but the A.C/Collector, Burewala, without notice to him had illegally allotted the entire Ihata on 13.9.1994 to Respondents Nos. 2 and 3.

2. Both the aforesaid suits were contested by the other side, they were consolidated by the trial Court and after framing consolidated issues and recording evidence, they were disposed of vide consolidated judgment dated 1.6.2002 whereby the suit of Respondents Nos. 2. and 3 was decreed and that of the petitioner was dismissed.

3. Appeal filed by the petitioner against the said consolidated judgment and the two decrees were also dismissed by ADJ, Vehari videconsolidated judgment dated 22.1.2003.

4. The aforesaid concurrent consolidated judgments and the decrees of the two Courts below are assailed by the petitioner in these civil revisions.

5. It is argued by the petitioner's counsel that-

both the Courts below did not consider an important aspect that while alloting the disputed Ihata to Respondents Nos. 2 and 3, the A.C/Collector did not issue notice to the petitioner, whose application for allotment of the said Ihata was also pending before him;

case of the petitioner was at par with that of Respondents Nos. 2 and 3, hence he was entitled to the allotment of half of the Ihata;

both the Courts below had acted in the exercise of their jurisdiction illegally and with material irregularity; and

the Civil Court had no jurisdiction to decide the case which was finally decided by the competent Revenue Authorities; it was prayed that the civil revisions be accepted impugned judgments and decrees be set aside and suit of the petitioner be decreed to the extent of half of the Ihata.

1. Both the Civil revisions are opposed by the learned counsel for the respondents.

2. Arguments heard. Civil revisions and the annexures appended therewith perused.

3. Nothing was produced on record by the petitioner in support of his contention that on 13.9.1994 when the disputed Ihata was allotted by A.C/Collector, Burewala to Respondents Nos. 2 and 3, petitioner's application for allotment of the Ihata was also pending before the .said Collector. From the documents Ex. D15 and Ex. D16 produced by the petitioner it was rather established that application of the petitioner for changing classification of Ihata and its allotment to him was filed earlier by the A.C./Collector on 6.7.1994 for the restoration whereof the petitioner had moved review applications Ex. D15 and Ex. D 16 to the District Collector Vehari. Although the District Collector did hot restore the petitioner's aforesaid application yet vide order dated 3.10.1994 (Ex. Dl) he had allowed the change of classification of the Ihata and had directed the A.C/Collector, Burewala to make allotment of the same under latest instructions of the Board of Revenue, after inviting applications from the eligible applicants.

While passing the said order the District Collector, Vehari was urfmindful of the fact that classification of that Ihata was already changed by him earlier vide his order dated 22.8.1994 (Ex.' PI) and the said Ihata also stood allotted by the A.C/Collector, Burewala to Respondents Nos. 2 and 3 on 13.9.1994.

1. The order of District Collector dated 3.10.1994 for allotment of Ihata was obviously not in existence on 13.9.1994 when that Ihata was allotted by the Collector, Burewala to Respondents Nos. 2 and 3, therefore, Collector, Burewala was not required to issue notice to the petitioner before making order of allotment in favour of Respondents Nos. 2 and 3. It has been observed earlier that on the said date- any application of the petitioner for allotment of the Ihata was also not pending before the Collector.

2. It is clearly stated in the allotment order that before making the allotment, proclamation by beat of drum was made in the village for inviting applications for the allotment of the disputed Ihata.

There is, therefore, no force in the argument of the petitioner's counsel that petitioner's application for allotment was also pending before Collector, Burewala on 13.9.1994 when he allotted the Ihata to Respondents Nos. 2 and 3, hence he was bound to issue notice to the petitioner before alloting the Ihata to Respondents Nos. 2 and 3 and that the aforesaid aspect was not considered by the two Courts below.

1. Next submission of the petitioner's counsel that case of the petitioner was at par with that of Respondents Nos. 2 and 3 as it was proved on record that the said respondents Were also owners of land and Ihatas is without force because nothing was produced on record to show that Respondents Nos. 2 and 3 were land owners. Petitioner's own witness DW. 2 Muhammad Hussain who is chowkidar of the same village had admitted during his statement that Ihatas of 5 marlas each which were allotted to Respondents Nos. 2 and 3 in Bhutto Scheme were disposed of by the said respondents soon after allotment. DW. 1 Muhammad Ayyub, Special Attorney of the petitioner, while appearing as DW. 1 had admitted that petitioner was owner of 25 acres of agricultural land and is also allottee of an Ihata measuring 18 marlas in the village.

There was no order of allotment in favour of the petitioner whereas the disputed Ihata was allotted to Respondents Nos. 2 and 3 who had also deposited its sale price. Hence the case of the petitioner was not at par with that of Respondents Nos. 2 and 3 for thy purpose of allotment of the Ihata.

1. Order of allotment in favour of Respondents Nos. 2 and 3 was set aside in appeal by the Additional Commissioner (Consolidation) on 12.1.1995 and the said order was maintained in revision by the MBR vide his order dated 18.4.1996. Concurrent findings of the two Courts below to the extent of declaring the aforesaid orders of Additional Commissioner (Consolidation) and MBR as illegal are not assailed in the civil revisions by the petitioner. It is also not disputed by the learned counsel for the petitioner that A.C/Collector, Burewala was competent to make allotment of the disputed Ihata. Muhammad Ayyub, General Attorney of the petitioner, while appearing as DW. 1 stated in his Examination-in-Chief that order of A.C/Collector, Burewala regarding allotment of Ihata to Respondents Nos. 2 and 3 is not correct only to the extent of half portion of the Ihata as the petitioner was entitled to the allotment of half of the Ihata.

2. It has been held hereinbefore that neither case of the petitioner for allotment of Ihata was at par with that of Respondents Nos. 2 and 3 nor there was any application of the petitioner before the Collector for allotment of the said Ihata. For the reasons stated above, contention of the petitioner's counsel that case of the petitioner was at par with that of Respondents Nos. 2 and 3 and he was entitled to allotment of half of the disputed Ihata is, therefore, repelled.

3. Adverting to the third argument of the petitioner's counsel it may be observed that in Section 115(l)(c) CPC the words "illegally or with material irregularity" have reference to material defects of procedure and not

to errors of law or fact, after the formalities prescribed have been complied with. My attention could not be drawn to the commission of any error of procedure by the Courts below.

1. Next contention of the petitioner's counsel that Civil Court had no jurisdiction to decide the case is ridiculous in view of the prayer made by him in the civil revisions that his civil suit be decreed. The petitioner had himself invoked jurisdiction of the Civil Court against the orders of revenue hierarchy with the prayer for setting aside the said orders, hence after unfavourable decision it does not lie in the mouth of the petitioner to say that Civil Court had no jurisdiction to decide the case.

2. Both the Courts below respectively had the jurisdiction to decide civil suits and the appeals arising therefrom. Findings on question of fact or law rendered by Courts of competent jurisdiction, though erroneous, cannot be interfered with in the exercise of revisional jurisdiction unless such , findings are based on no evidence, are arbitrary or perverse.

22.Aperusal of impugned judgments coupled with evidence shows that the concurrent findings both on fact and law recorded by the Courts below are based on evidence, supported by sound and plausible reasoning and do not suffer from any jurisdictional infirmity.

1. Both the civil revisions, being devoid of any merits, are hereby dismissed.

(A.A.) Revision dismissed.

PL J 2004 Lahore 91

[Multan Bench Multan]

Present: farrukh lateef, J. MUHAMMAD AZAM and another-Petitioners

versus THE EVACUEE TRUST PROPERTY BOARD through its CHAIRMAN and another—Respondents W.P. No.8840 of 1999, decided on 11.3.2003. (i)

Constitution of Pakistan (1973)--

—-Art. 199-Petitioner's claim that respondents were not entitled to receive rent from him on the ground that property in question, was not evacuee trust property-Annexures produced by petitioners, showed that predecessor-in-interest of petitioner, had not only acknowledged that Evacuee Trust Property Board was owner of property in question, but also that they were tenants in possession of such property which was under management and control of respondents-Petitioner, had not come to Court with clean hands and their object was to enjoy property in question, without paying rent thereof-Constitutional petition being devoid of force was not maintainable. [P. 95] A

(ii) Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957)--

—-S. 3-Evacuee Trust Property (Management and Control) Act (1973), S. 3- Petitioner's claim that property in question, was evacuee property and not evacuee trust property—Property in question had not been declared evacuee property under S. 3 of the Act XII of 1957-Revenue record indicated that such property was place of worship of Hindus, therefore, management and control of the same was validly taken over by respondents, and they had the jurisdiction and were entitled to claim rent of the same. [P. 96] B

PLD 1964 SC 74 and 1987 CLC 2378 ref.

Mr. Kanwar Akhtar Ali, Advocate for Petitioners. Malik J offer Kamboh, Advocate for Respondents. Date of hearing : 20.2.2003.

judgment

Petitioners have filed this constitutional petition alleging therein that their predecessor-in-interest Fazal Muhammad was allotted House No. 305 Ward No. 8-H Haram Gate, Multan in 1952, by Rehabilitation Authority on rent; it was regularly paid by him for many years whereafter Evacuee Trust Property Board had been realizing rent of the'said house without any jurisdiction as the said property was evacuee property which had formed part of compensation pool and was not an Evacuee Trust Property.

1. A notice for deposit of arrears of rent in respect of the said house has been issued by Respondent No. 2, which is illegal, without jurisdiction and is liable to be declared to have been issued without lawful authority because the property in question has already been declared and treated as evacuee property by Rehabilitation Authority, therefore, subsequently it could not be treated as Evacuee Trust Property and the demand of respondents in respect thereof is without jurisdiction. Reliance was placed on the case of Chahat v. Border Allotment Committee (1987 CLC 2378 Lahore), wherein it is held that where proceedings are initiated without jurisdiction though no final order was passed therein aggrieved party could maintain constitutional petition challenging issuance of notice as being without jurisdiction.

2. Referring to the case of Abdul Khaliq, Abdul Razzaq v. Kishan Chand and others (PLD 1964 SC 74), it was contended that renting out the disputed house by Rehabilitation Authority amounted to its treating as evacuee property by the said authority, hence later on the said property could not have been considered by any authority as Evacuee Trust Property merely on the basis of an entry in revenue record showing that property as E.T.P.

3. In the light of the above submissions it was prayed that notice Annex-E, issued by Respondent No. 2, demanding rent in respect of the said property be declared to have been issued without lawful authority and of no legal effect.

4. The petition was opposed by the learned counsel for the respondents, who argued that disputed house in evacuee trust property which was initially given on rent through PTO for a period of three years to Fazal Muhammad (predecessor-in-interest of the petitioners), who continued to pay the rent even after the expiry of the aforesaid period, after his death his son Abdul Hameed had been paying rent who is succeeded by the petitioners and they too had been paying rent of the said property to the respondents. Moreover, no PTD in respect of the said property was ever issued either in favour of the predecessor-in-interest of the petitioners nor in favour of the petitioners. The Government had notified the department as Evacuee Trust Property Board in the year 1960 whereafter evacuee trust properties came into lawful management and control of the aforesaid

department, therefore, respondents had been legally realizing the rent and the petitioners and their predecessors had been lawfully paying the same to the respondents.

1. Referring to Annex-U, a letter dated 11.4.1997 from Personal Staff Officer to Chief Minister of Punjab to the Chairman Evacuee Trust Property Board, Lahore it was contended that the petitioners had also acknowledged that the property belongs to the respondents and is also under their control. This letter shows that a request was made by sons of Abdul Hameed (predecessors-in-interest of the petitioners) to the Chief Minister for transfer of proprietaiy rights in the disputed house to them and the said request was conveyed by the Chief Minister to the Chairman Evacuee Trust Property Board Lahore, with the desire to give due consideration to the said request.

2. Summing-up his arguments, learned counsel for the respondents contended that petitioners' predecessors Fazal Muhammad and Abdul Hameed and thereafter petitioners are tenants in the disputed house under the control and management of the respondents; the said property belongs to Evacuee Trust Property Board; since petitioners were rent defaulters hence bill for payment of outstanding rent was issued to them but instead of paying the same they have filed the writ petition which is liable to be dismissed.

3. Arguments heard. Writ petition, its annexures and comments submitted by Respondent No. 2, alongwith its Annexures-A to Z-7, perused.

4. A perusal of the material available on record shows that initially the disputed house was allotted by Rehabilitation Authority on rent to Fazal Muhammad on 22.3.1952 vide allotment order Annex-B, on the following specific conditions :

(i) The assessed monthly rent will be paid regularly after it falls due failing which the allottee will be liable to be ejected, and

(ii) the allotment will be valid for a period of three years.

1. It is evident that after the said period of three years the tenancy continued without there being any formal extension. Admittedly no PTD was issued in respect of the said property either in favour of the predecessor- in-interest of the petitioners nor in favour of the petitioners. It is also not denied that in the revenue record the said property is stated as property of 'Mandir' (place of worship of Hindus).

2. Receipts of payment of rent Annexures-D/1 to D/14, produced by the petitioners show that rent of the said house was paid by Fazal Muhammad to the Deputy Rehabilitation Commissioner since February, 1952 to 1958 and according to receipt Annex-Z/3 produced by the respondents, rent of the said house was paid by said Fazal Muhammad to

Evacuee Trust Property Board from 1.7.1969 to 30.6.1970. Receipts produced by respondents Annexures-0, P, Q, V, W, X, Y, Z, Z/l, Z/2 and Z/4 reveal that thereafter till 9.10.1984 Abdul Hameed son of said Fazal Muhammad had been paying rent of the disputed house to the respondents. Ex. Z/l, is a copy of Evacuee Trust Property Board's Master File, it shows that the said department had taken over management and control of Evacuee Trust Properties including the disputed house on 1.4.1960. Thereafter not only Fazal Muhammad but subsequently his son Abdul Hameed and been paying rent to the said Board through Respondent No. 2, vide receipts stated herein-before.

12.Annexures-A, C, F & J (produced by respondents) are notices issued by Evacuee Trust Property Board to the predecessors-in-interest of the petitioners from time to time for increase of rent of the disputed house and Annexures-B, G and M (produced by respondents) are various applications submitted by Abdul Hameed (predecessor-in-interest of the petitioners) requesting for reduction of rent of the said house. Annexure-I (produced by the respondents) is an order of Respondent No. 2, whereby on the application of said Abdul Hameed, rent of that house was reduced. Annexure-E (produced by respondents) is an application moved by Abdul Hameed to Respondent No. 2, for seeking permission to repair the disputed house which was accepted by Respondent No. 2, vide order Annex-D and H (produced by the respondents). Annexure-K (produced by the respondents) is an application by Ghulam Jillani son of Abdul Hameed (predecessor-in- interest of the petitioners) submitted to the Ombudsman requesting for the grant of proprietary rights in the said house stating that it was owned and managed by the Evacuee Trust Property Board. Annexure-T (produced by Respondents) is letter from Personal Staff Officer of Chief Minister Punjab

'to the Chairman Evacuee Trust Property Board, Lahore requesting for considering the request of the successors-in-interest of Abdul Hameed for transfer of proprietary rights in the disputed house to them.

1. All the aforesaid annexures produced by the petitioners as well as by the respondents, clearly indicate that the predecessors-in-interest of the petitioners had not only acknowledged that Evacuee Trust Property Board was owner of the disputed house but also that they were in possession thereof as its tenants and the said property was under the management and control of the respondents.

2. ft is, therefore, too late in the day for the petitioners to say that the disputed house is not Evacuee Trust Property and the respondents have no right to claim its rent from them.

3. Case of Abdul Khaliq v. Kishan Chand and others (PLD 1964 SC 74) is not applicable to the facts of this case. The said authority explains the meaning and interpretation of the word "treated", used in Section 3 of Act XII of 1957 with respect to the nature of property as Evacuee or non-evacuee with reference to a specific date viz.1st January, 1957.

4. According to Section 3, of the said Act, property not treated as evacuee, immediately before 1st January, 1957 could net be treated as such on or after the said date except any property in respect of which action was commenced or proceedings were pending before the said date or any property occupied, supervised or managed by a person whose authority or right to-do-so after 20.2.1947 had not been accepted on approved by the Custodian.

5. Crucial date viz 1st January, 1957 occurring in Section 3 of Act XII of 1957 is neither relevant nor applicable for determining the nature of the property as evacuee or evacuee trust property on the basis as to how such property was treated earlier.

6. Moreover, it is held in the said authority that the word "treated" occurring in Section 3, means that such treating must be made by a competent authority i.e. it must relate to a declaration by the Custodian about the nature of the property or its user, for the purpose of the Act, by him or by the Rehabilitation Authorities so as to indicate a consciousness of the actual or the assumed nature of the property.

7. In the present case there was no such declaration about the nature of the disputed property either by the Custodian or by the Rehabilitation Authority that it was an evacuee property and not Evacuee Trust Property. Mere act of the Rehabilitation Authority of renting out the said property and receiving rent in routine could not be deemed as treating that property as evacuee and not Evacuee Trust Property, according to the meaning and interpretation of the word "treated" as explained in the authority relied upon by the learned counsel for the petitioners.

8. According to record it is admittedly an evacuee trust property but as the Evacuee Trust Property Board was not in existence in 1952, the same was rented out by the Rehabilitation Authority to the predecessors-in- interest of the petitioners. Since coming into existence, in the year 1960, the Evacuee Trust Property Board is controlling and managing the Evacuee Trust Properties including the disputed house.

9. In view of the facts and circumstances stated above, it was well within the jurisdiction of the respondents to obtain rent from the tenants of the Evacuee Trust Properties including the disputed property hence their demand for rent which is nothing else but a bill for the payment of rent which has been alleged as notice by the petitioners, was valid and legal and the respondents had the jurisdiction to issue the said bill for payment of arrears of rent.

10. The authority referred by the petitioners' counsel viz. Chahat v. Border Allotment Committee (1987 CLC 2378 Lahore), is distinguishable and does not apply to the facts and circumstances of this case. In the said reported case an order of allotment made in favour of appellant of the said

case was confirmed by the respondent of that case in exercise of powers under Martial Law Regulation No. 9, orders passed during Martial Law before commencement of 1962 were final and immune from examination by any Court or Authority; it was held in a previous writ petition that orders of allotment in favour of appellant had attained finality and respondent was held to be in possession of no power to review those orders; despite that respondent committee had issued a notice to the appellant for appearing before it in connection with scrutiny of his allotment. In the said circumstances it was held that where proceedings were initiated without jurisdiction, by issuance of notice, though no final order was passed, aggrieved party could maintain constitutional petition challenging issuance of notice as being without jurisdiction.

1. Needless to repeat that the above authority is not at all applicable in the present case inasmuch as in this case disputed property is owned, managed and controlled by the respondents; petitioners are either tenants who are rent defaulters and to whom simply a bill for payment of the outstanding rent was issued.

2. The petitioners did not approach this Court with clean hands and it appears that they had filed this writ petition to enjoy the property for a maximum period without payment of any rent as since 24.9.1999 they have not paid a single penny by way of rent on the basis of a status quo order issued in this writ petition.

3. For the reasons stated above, the writ petition is devoid of any merit, it is accordingly dismissed with costs.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 96

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J. Mst.SULTANA BEGUM-Petitioner

versus

Mst. SADIQA BEGUM-Respondent C.R. No. 148 of 2002, heard on 16.5.2003.

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

—-S. 12-Civil Procedure Code (V of 1908), S. 148-Application for extension of time was granted by merely referring to "certain difficulties", details of which were neither available in application for extension of time nor in the impugned order of CoMit-Sine-qua-non for grant of discretionary relief of specific performance is that party must always be ready and willing to perform its part of contract-Part to be performed by plaintiff

was payment of balance amount-Prayer made in application seeking extension of time was negation of condition precedent for grant of such relief-Impugned orders of Courts below in extending time for deposit of balance amount was set aside and plaintiffs suit was dismissed.

[P. 100 & 101] A

PLD 1967 Dacca 557; 1999 MLD 1466; PLD 1994 Lahore 280; 1984 Law Notes (Lah.) 1339, 1987 CLC 1682; 1992 MLD 31 and PLD 1997 Lahore 177 ref, Raja Imran Aziz, Advocate for Petitioner.

Mr. Sanaullah Zahid, Advocate for Respondent.

Date of hearing : 16.5.2003.

judgment

On 22.10.1997 the respondent filed a suit for specific performance of an agreement to sell the suit house executed in her favour by the petitioner on 14.4.1996. The consideration amount was Rs. 6,40,000/-. A sum of Rs. 50,000/- was paid as earnest money while balance amount of Rs. 5,90,000/- was to be paid within six months. It was also stated that on 14.10.1996 a further sum of Rs. 50.000/- was paid, leaving balance of Rs. 5,40,000/-. The petitioner took plea that she was always ready and willing to perform her part of contract but the respondent did not pay her balance of consideration amount. The parties went to trial and issues were framed. The suit was decreed vide judgment and decree dated 15.9.2001, in the following terms :--

"The suit of the plaintiff is decreed. The plaintiff is under obligation to deposit rest of consideration of amount i.e. Rs. 5,40,000/- within 30 days, failing which her suit will be dismissed automatically."

On 13.10.2001 the respondent filed an application before the learned trial Court seeking extention of time for deposit of balance amount for 3 months on following grounds :--

"Due to certain difficulties she is not in position to deposit the said amount as per order dated 15.9.2001."

The petitioner resisted the said. application and filed a written reply. Vide order dated 9.2.2002 "the learned trial Court proceeded to extend time upto 16.2.2002 for the said deposit.

1. , Learned counsel for the petitioner contends that the learned trial Court after passing the said decree had become functus officioand as such could not have extended time. Further contends that the time has been extended without any reason stated either by the respondent or by the learned trial Court. He refers to some judgments which pertain to pre­emption decree. Learned counsel for the respondent, on the other hand, with

98 Lah. Mst.sultana begum v. mst. sadiqa begum PLJ

(Maulvi Anwar-ul-Haq, J.)

reference to the cases of Asraf All alias Asrafuddin Mondal and another u. Bayla Hasda and others (PLD 1967 Dacca 557), Asim Hussain Qadri u. Muhammad Umar (1999 MLD 1466), Nasir Ahmad v. Muhammad Yousaf (PLD 1994 Lahore 280), Muhammad Riaz Qamar u. Umar Din etc. (1984 Law Notes (Lah.) 1339) and Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed (1987 CLC 1682) contends that a decree in a specific performance suit notwithstanding the default clause still remains a preliminary decree and Court passing it does not lose seizen over the matter and can extend time.

1. I have given some thoughts to the respective contentions of the learned counsel for the parties. No douht ratio of the said judgments being relied upon by the learned counsel for the respondent is that a Court passing the specific decree with condition that the suit shall be dismissed in case the amount is not deposited within stipulated time, remains seized of the matter and can extend time. I may further note here that in the said case of "Asim Hussain Qadri" the case was remanded back by this Court for of the decision of application on merits. In the said case of "Nazim-ud-Din & 13 others" the said direction contained in the decree was suspended on the application of the defendant himself while applying for setting aside of the said decree and while dismissing the application the time was extended which was upheld by this Court. In the said case of "Muhammad Riaz Qamar" a writ petition was filed in the circumstances that initially the time for deposit was not stated in the decree. An application was filed by the defendant that the plaintiff had not deposited price. It was noted by the Court a date for deposit has not been given and thereafter by consent a date was fixed. Against this order a review was filed which was dismissed. A revision was dismissed by the learned District Judge. Thereafter the learned Civil Judge recorded a formal order of dismissing the suit for non-compliance of the said condition. The writ petition was dismissed by this Court on the ground that an appeal is competent and let an appeal be filed. In the said Dacca ca^e the facts of the fiase are not available. However, the proposition affirmed was that the time can be extended.

2. Now coming to the said case of "Nasir Ahmad" (PLD 1994 Lahore 280). It may be noted that this is the case that has been relied upon by the learned trial Court while passing the impugned order. In this case a decree was passed subject to deposit of the balance consideration by or before 20.7.1993 failing which the suit was to stand dismissed. The application filed by the decree-holder on 29.7.1993 (i.e. when the date for deposit had gone by) for extension or time was dismissed by the learned trial Court holding that it has become functus officio. A revision petition then ultimately came up before this Court. His lordship allowed the revision petition following the said proposition of law stated by me above and extended the time.

3. Now I have been able to dig out two judgments. The case of Amjad Malik v. Muhammad Saleem and 5 others (1992 MLD 31) was decided by this Court on 16.1.1991. Now Mr. Justice vr 'al Karim (as his

lordship then was) while agreeing that in case of decree for specific performance, a Court passing the same does not become functus officio and retain control over the action even after the decree, proceeded to observe as follows in para-10 of the judgment appearing at pages 26 and 37 of the report:--

"10. Here, the Court had, while passing the decree, made a formal order that the suit would stand dismissed in case the condition of the payment of the purchase money by the appointed date was not performed. That order in the decree was also a formal rescission of the contract effective from the date specified in the decree. It seems to be inexorable logic, therefore, that the order in the decree that the suit shall stand dismissed produced the result that after the appointed date, the Court had become functus officio and also that after that date, the contract was no more in existence. It is equally plain that the power under Section 35 of the Specific Relief Act, 1877, being the power to rescind the contract,, the contract must be in existence for that power to operate upon. To rescind means to annul, to abrogate, to put an end to. The power to rescind, therefore, presupposes the existence of what is to be rescinded; for just as you cannot build anything on nothing, you cannot rescind something that does not exist."

Now the said judgment was also considered by Mr. Justice Gul Zarin Kiani (as his lordship then was) in the said case of "Nasir Ahmad". However, while observing that .the controversy may not arise for examination and deeper appreciation in said case it was held that the contract in the said case remained alive.

1. Now both the said judgments i.e. in the case of "Amjad Malik" and "Nasir Ahmad" came to be considered by Mr. Justice Mian Allah Nawaz (as his lordship then was) in the case of Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others (PLD 1997 Lahore 177). This case was decided on 13.11.1996. The facts of the said case as narrated in para-2 of the judgment are that a suit for specific performance was decreed on 23.6.1986. The learned Court of appeal while allowing the prayer for withdrawal of appeal enlarged the time specified in the decree and directed the decree-holder to deposit the balance purchase price upto 2.8.1986. In application was filed for extention of time and was rejected by the learned trial Court on 2.9.1986. I may note here that learned trial Court found that the .reasons forwarded by the said decree-holder for extention of time have not been substantiated. However, it was also observed that the Court had become functus officio. It was a revision against the said order which was decided by his lordship. The said earlier judgments were examined by his lordship and the ratio deduced upon the said examination was stated in para-7 of the judgment appearing at page 183 and 184 of the report as follows :--

"7. The ratio, deducible from the preceding examination, is: Firstly, that decree passed by Court, in an action for specific performance of agreement of sale, is in the nature of preliminary decree. It actually partakes the character of a contract; vendee has to deposit the purchase price, cost of purchase of necessary stamps for the execution of conveyance deed and so on so forth; while the seller had to appear in the Court, sign the conveyance deed and receive purchase price. In these state of affairs, it clearly follows that decree, passed in such an action, is not final but preliminary in nature and the Court passing the decree retain seisin over the Us and has power to enlarge/extend the time for payment of purchase price fixed therein. The Court, however, had to pass such orders after objectively assessing the merits of such applications. Secondly, Specific Relief Act is an adjective law and substantive law is to be looked for elsewhere. It presents a codification of principles derived from long series of precedents and practices of English Courts of Equity. Specific Relief Act so is based upon principles of equity, reason and good conscience. The most leading principle is that 'who comes to get the equity, must do equity to others'. Thirdly, Section 35 of the Specific Relief Act lays down a procedure for rescission of the written contract. It applies to both vendor and vendee. Any one of such party may move the Court by motion in the action for an order for putting an end to contract. This mechanism is, however, subject to following limitations/namely where the trial Court has decreed the suit for specific performance of contract subject to condition that purchase price shall be deoosited in Court within a specific time and also ordered that if that money is not put in within that time, the suit shall stand dismissed, the Court has no power to extend the time as in such a case; that the decree by the Court is final and self-operative and in case of default of payment of purchase price; the mandate of Court tantamouhts to rescission- of the contract. In such a case recourse to Section 148 of C.P.C. or Section 151, CPC will not be permissible. Fourthly, the Court will not allow the plea for extention of time if it finds that it will occasion a wrong to the other side. Furthermore, in order to succeed in an action for specific performance, the plaintiff had to show that he had been willing and ready to perform his part of contract." 7. In respectful agreement with the said observations of his lordship particularly the one mandating that the Court has to pass an order for enlargement of time after objectively assessing merits of the application. I have already stated above that not a single reason was stated in the said application for extention of time except reference to "certain difficulties". I find that no particulars or details of such difficulties are available in the application and the impugned order is also without any reason whatsoever. I may further add here that sine qua non for grant of discretionary relief of. specific performance is that the party must always be ready and willing to perform its part of the contract. In the present case the part to be performed by a respondent was the payment of balance price. To my mind, the said prayer made in the application was the negation of the condition precedent for grant of said relief.

1. I, therefore, do find that the learned trial Court has acted without jurisdiction in proceeding to allow the application when no grounds were either stated or otherwise made out for the said extention. This civil revision is accordingly allowed and the impugned order dated 9.2.2002 of the learned trial Court is set aside and consequently the application for extention of time stands dismissed.

(A.A.) Revision accepted.

PLJ 2004 Lahore 101

Present: mrs. fakhar-un-nisa khokhar, J.

Dr. NOOR MUHAMMAD RAJA-Petitioner

versus

DIRECTOR GENERAL, AGRICULTURE (RESEARCH) AYUB AGRICULTURAL RESEARCH INSTITUTE, FAISALABAD and 5 others—Respondents

W.P. No. 1654 of 2003, heard on 21.7.2003. Constitution of Pakistan (1973) --

—Arts. 4, 8, 25 & 199-Discrimination in electricity tariff rate to staff colony of Ayub Agricultural Research Institute which was being charged domestic rate for electricity used by occupants were directed to pay commercial rate-Employees/occupants of staff colony being residents of that colony should be treated at par with other residential colonies, residents whereof were being charged domestic rate for electricity- Respondents were restrained from charging commercial rates from residents of Ayub Agricultural Research Institute. [P. 105] A

PLD 1969 SC 14; PLD 1990 SC 513; PLD 1989 SC 66 and AIR 1992 SC 473 ref.

Ch. M. Arshad Virk, Advocate for Petitioner.

Mr. Mishab-ul-Islam, A.A.G. with Respondent No. 1 for Respondents Nos. 1 to 4.

Mrs. Tayyiba Ramzan Ch. Advocate with Saeed Mushtaq, DM Baqir Zaidi, Deputy Manager FESCO for Respondent 5 & 6.

Mr. Ishfaq Ahmad, Legal Assistant Allied Hospital, Faisalabad. Date of hearing: 21.7.2003.

judgment

The brief facts in the instant Writ Petition are that the Petitioner is an employee of Ayub Agricultural Research Institute, Faisalabad, under the management of Respondent No. 1; that the Institute has a Colony where the Staff has been given residence through allotment and one of the residence is allotted to the Petitioner. The Colony is named as Staff Colony. WAPDA has been supplying electricity at C-2 Tariff at bulk rate to the aforesaid Institute. The Institute was charging domestic rate for the electricity used by the employees/occupants of Staff Colony. The Respondent No. 1 took a sudden turn when audit took place in their Institute and they informed all the occupants of the Staff Colony that w.e.f. June, 2001 they would be charged at the rate of Rs. 6/- per unit (the commercial rate at which the Institute is getting electricity from Wapda). In this respect a letter No. SOA (Audit) (258)96/97 (CEP)R-C-I-D dated 26.6.2001 was issued to the Petitioner and all the occupants of the Staff Colony. They also issued demand notices of huge amounts from all of them for the past arrears alleged to have accumulated against them by calculations on the basis of new demands. Being aggrieved the occupants of Staff Colony (286 in number including the Petitioner) filed a suit in the Civil Court, Faisalabad for a declaration that the said action is illegal and without lawful authority. They filed an application under Order 39 Rules 1 & 2 CPC praying that pending disposal of the suit the Defendant be restrained from charging the impugned commercial rate from the plaintiffs. The learned Civil Judge, Faisalabad rejected the application for interim injunctions vide order dated 30.7.2002. An appeal preferred which too was dismissed by the learned District Judge, Faisalabad vide his order dated 10.10.2002. Both the impugned orders of the learned lower Courts are challenged through the instant Writ Petition.

1. The arguments advanced by the learned counsel for the Petitioner are that it is a well settled and recognized procedure all over the world that the person who makes use of any facility for his domestic purpose cannot be charged differently than the one, who uses the same for commercial purposes and that even in Pakistan all the departments such as WAPDA, Wasa and Sui Gas Company have separate Tariff for domestic and commercial consumers and it is the vested right of every citizen that they would be charged at domestic rate electricity for their domestic purpose and they cannot be deprived of their right as all citizens of Pakistan have equal rights and if the Petitioner and other residents of the Staff Colony are charged commercial rates as against other citizens of this country, who get electric supply on domestic rate, it will clearly amount to discrimination which has been condemned by the Constitution. Even otherwise is not plausible and convincing excuse that since the Institute is getting electricity from WAPDA on commercial rates the supply to residents of Staff Colony on domestic rates will cause loss to Government as it is a big task for the Government-or Institute to obtain a separate line from WAPDA for its Staff Colony to resolve the issue for ever. The learned Courts below have not appreciated the real points and rejected the plea for interim injunction mechanically.

2. Since WAPDA was a necessary party to be heard, therefore, they were summoned through the learned A.A.G. and the Respondent No. 1. The representative of WAPDA strongly resisted and submitted that the domestic Tariff will cause a heavy loss to the WAPDA as other Departments will also come and demand the same facility. He brought to the notice of the Court the definition of industrial supply in the Schedule of Electricity Tariff for WAPDA Companies and submitted that for the purpose of this tariff the supply given in bulk at one point to the consumers having their own distribution facilities, i.e. own H.T. Lines and distribution transformers etc. for further domestic consumers. The Punjab Government would be willing to pay for the charge-over.

The Respondent No. 1 also placed a document on record to show the bulk supply to the Allied Hospital facility which Wapda had taken over in the recent past. There WAPDA agreed that bulk metering connection should be installed, at Medical College and Allied Hospital, separately i.e. one for the Medical College and the other for the Hospital at C-2 Tariff and further explanation was given as regards electrification of residential Colony, separate individual meters, on domestic tariff, should be installed on cost deposit basis in each bungalow and quarter situated in the separate residential Colony and this is necessary to resolve the conflict of disconnection of individual meters in case of non-payment. These separate meter connections will be provided at cost deposit basis chargeable from Punjab Government.

1. I have heard the learned counsel for the parties and their representative at length and have perused the record.

2. The learned Courts below have to keep in mind three factors, i.e. prima facie good case, balance of convenience or inconvenience and irreparable loss. Both the learned Courts below have not even applied their minds judiciously to all the above aspects of the case and held that the policy letter prima facie seems to be justified as the electricity is supplied to the Research Center from a bulk feeder and the billing cannot be made under Tariff C and rejected the interim injunction to the Petitioner. The Civil Court being a Court of general jurisdiction enjoys the judicial power to strike down the actions of an authority or department which comes in conflict with the vested rights or the fundamental rights of the citizens or existing law. The constitutionally granted fundamental rights are positive commitment towards the citizens which should be made real and meaningful by the Courts to enforce these vested rights. A perusal of Article 25 of the Constitution when interpreted would mean equality amongst different class and section of society. All the person - similarly situated must be treated alike and under Article 4 of the Constitution everybody is to be treated in accordance with the law and when the State functionaries should act otherwise it is always the Court who redresses the grievance of an aggrieved person and provides remedies to the citizens and positively enforce fundamental rights of the ordinary citizens to lead a comfortable life. The supply of electricity is also a vested right of an individual. Under Article 184(3) and Article 199 (1) (c) Clause (a) and (c) of the Constitution of Islamic Republic of Pakistan, 1973 the Constitution has given a power to the superior judiciary to enforce fundamental rights and can give a direction to the State functionaries in respect of any act in violation of the fundamental rights of a citizen. Government of West Pakistan and another vs. Begum Agha Karim Shorish Kashmiri (PLD 1969 S.C. 14), Darshan Masih alias Rehmatey and others vs. The State (PLD 1990 S.C. 513) Mrs. Benazir Bhutto and another vs. Federation of Pakistan and another (PLD 1989 S.C. 66) and State of Punjab and others vs. Mohinder Singh Randhawa and another (AIR 1992 S.C. 473). The collective affect of all the aforesaid judgments of the-Apex Court is that if the Plaintiffs claim rests upon Constitutionally granted fundamental rights the superior Court enjoys two fold jurisdiction if the Petitioner is aggrieved by an act of the State functionaries invading his fundamental rights and such action has no backing of law or taken under the law which is void in term of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 can strike down that action and direct the State functionaries to redress the grievance of the person and also direct under Article 4 of the Constitution of Pakistan if the law is inconsistent with the fundamental rights. The law is to be treated void.

Wapda has also made concession to recently taken over Allied Hospital and has agreed to give bulk metering connection to the Hospital separately and one for the Medical College and the other for Hospital, residential Colony at C-2 Tariff residential rate and it is surprising why the discrimination is made to the Staff Colony of Ayub Agricultural Research Institute where the present Petitioner resides. It seems highly unjustified that the commercial rate of supply of electricity be obtained from the residents of Colony within the Research Center. The Research Center has projects, laboratories, offices, green houses, grown chambers, work-shops, tube-well, roads, street lights. They also generate from the bulk supply but the plaintiffs in suit being residents of a Staff Colony do not generate income. They are the domestic residents and according to law they should be treated at par with the other residential Colonies. Even the Governor Punjab has agreed that the expenses will be borne by the Government for installation of separate meters in the residential colonies. This showsprima facie good case and balance of convenience leaning towards the Plaintiffs. The instant Writ Petition is accepted and the impugned orders dated 12.7.2002 and 30.10.2002 passed respectively by the learned trial Court and the learned lower Appellate Court are hereby set aside. The Respondents are restrained from charging rates and recovering from the Petitioner the arrears calculated on the basis of new commercial rates. As far as the installation of independent meter at domestic rate under C-2 Tariff are concerned those are to be decided by the learned Courts below after the evidence is produced by the parties.

(A.A.) der accordingly.

PLJ 2004 Lahore 105 (DB)

Present: TASSADUQ HUSSAIN JILANI AND M. naeem ullah khan sherwani, JJ.

COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE-Appellant

versus

ZAMAN PAPER AND BOARD MILLS (PVT.) LTD. and another—Respondents

Customs Appeal No. 188 of 2001, decided on 14.4.2003.

Customs Act, 1969 (IV of 1969)--

—-Ss. 30, 111 & 156(1) Cl. 57 & 196-Goods unlawfully removed from warehouses—Effect—Consignment in question, having been stored in a bonded warehouse, custom duties would be payable at the rate prevailing on the date of actual removal of goods from the warehouse for consumption—Goods bonded in warehouse had been removed therefrom without payment of custom duties and replaced with goods which had no nexus with description given in relevant Bills of Entry-Goods in question, having been removed from public warehouse respondent's were liable to pay penalty both under Sections 111 & 156 (1) (57)-Custom Authorities would determine penal liability (amount) strictly in terms of S. 156 (57) which envisages penalty equal to five time the duty chargeable on goods so deficient-Relevant date of custom duty would be the date of detection of removal of goods from the bonded warehouse as the date of ex-bonding. [Pp. 108 & 109] A & B

PLJ 1989 Karachi 137 ref. Mr. Khan Muhammad Virk, Advocate for Appellant.

M/s. Irfan Qadir, and Ziaullah Khawaja, Advocates for Respondents.

Date of hearing: 20.2.2003.

judgment

Tassaduq Hussain Jillani, J.--This judgment shall dispose of Custom Appeals Nos. 188/01, 189/01, 190/01, 191/01, 192/01, 193/01, 194/01, 195/01, 213/01, 214/01, 215/01, 216/01, 217/01, 218/01, 219/01 and 220/01 as they are directed against the same impugned judgment passed by the learned Custom, Central Excise and Sales Tax Appellate Tribunal Lahore dated 10.4.2001 vide which he -allowed the appeals of private respondents (appellants in Custom Appeals Nos. 213/01 to 220/01). The afore-referred appellants are manufacturers of paper products. They imported raw materials, stored them in their respective bonded warehouses but removed those items without payment of Government dues amounting to millions. The Director of Intelligence and Investigation (Customs) Lahore prepared a contravention report got registered criminal cases registered referred the matter for adjudication and in terms of the orders passed by the Collector of Customs (Appraisement) they were directed to pay custom duties and taxes leviable on the goods unlawfully removed from the warehouses at their value prevalent on the dates of their filing inbonding bills of entry. They were also burdened with heavy penalties. The appeals filed by the respondents were partly allowed by the Appellate Tribunal it was directed as under-

(i) in terms of Section 35 of the Customs Act, 1969 the relevant date for assessing the custom duty and tax was the date of filing the exbonding bills of entry and not date of their inbonding and not even the date of detection of the removal of those goods from the warehouses;

(ii) the appellants/importers shall deposit the amount of custom duty and taxes on the valuation of goods removed which was prevalent on the date of filing their exbond bills of entry for

home consumption and if they have already deposited more than this amount, they shall .be entitled to the refund of the amount deposited in excess, but on those consignments where less amount had been deposited they shall make up the deficiency within a month of the announcement of the judgment;

(iii) for removing the goods clandestinely and illegally the appellants/importers were burdened with a personal penalty at the rate of 10% of the principal amount to be deposited in terms of the afore-referred directions.

1. While impugning the judgment of the Appellate Tribunal learned counsel for the Custom Department in support of these appeals made following submissions-

(i) that the impugned judgment has been passed in utter violation of .Chapter XI of the Customs Act and the penal provisions of Section 156(1) Clause 57 of the Customs Act have also been ignored;

(ii) that the act of the imports of removing the goods from the warehouse without filing exbonding bills of entry was a serious criminal act and it warranted a deterrent penalty.

In support of the submissions made learned counsel relied on NationalConstruction Company vs. Government of Pakistan (PL J 1989 Karachi 137).

1. Learned counsel for the respondents/importers (Customs Appeal No. 213 to 220 of 2001) contended as under-

(i) that no evidence was led to indicate that the goods were secretly removed and in absence of which the penalty was not justified;

(ii) that there is no provision of penalty under the Custom Act and the learned Tribunal has not referred to any penal section under which he imposed the penalty. He added tliat in any case the quantum of penalty imposed was not proportionate to the alleged gravity of the act;

(iii) that the penalty provided under Section 156(1) Clause 57 is against the private warehouses whereas the goods were inbonded in a public warehouse, therefore, the appellants cannot be penalized under the said provision.

1. We have heard learned counsel for the parties and have given anxious consideration to th3 submissions made as also the precedent case law on which reliance has bsen placed.

2. For purposes of assessing custom duty on imported consignment the relevant provision of Custom Act is Section 30 which reads as under :

"Date of determination of rate of import duty.—The rate of duty applicable to any imported goods shall be the rate of duty in force-

(a) in the case of goods cleared for home consumption under Section 79, on the date on which a bill of entry is manifested under that section; and

(b) in the case of goods cleared from a warehouse under Section 104, on the date on which a bill of entry for clearance of such goods is manifested under that section:

Provided that, where a bill of entry has been manifested in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered:

Provided further that, in respect of goods for the clearance of which a bill of entry for clearance has been manifested under Section 104, and the duty is not paid within seven days, of the bill of entry being manifested, the rate of duty applicable shall be the rate of duty on the date on which the duty is actually paid:

Provided further that the Federal Government may, by notification in the official gazette, for any goods or class of goods, specify any other date for the determination of rate of duty".

A bare reading of Sub-Clause (a) of the afore-referred section would show that if the consignment is being cleared on the day when the bill of entry is filed and is not being kept in a bonded warehouse the custom duty would be payable at the rate chargeable on the said date. On the other hand if the consignment is stored in a bonded warehouse the custom duties would be payable at the rate prevailing on the date of actual removal of goods from the warehouse, for consumption. In the cases in hand the admitted position is that goods subject matter of this appeal were removed from the bonded warehouse-without payment of custom duties and same goods were replaced with goods which had no nexus with the description given in the relevant bills of entry. There is nothing in evidence to show on which date the goods were removed from the bonded warehouse. The only dates available with the custom authorities were the dates on which inbonding bills of entries were delivered to the custom officer and the date of detection. The appellants in a clandestine manner removed the goods without payment of custom duties

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which besides being violative of law was contravention of the terms and conditions under which they were allowed to inbond the goods in the warehouse. They cannot be permitted to take advantage of their own illegal act which resulted in huge loss to the public exchequer. In the afore-referred circumstances it would be appropriate to take the date of detection of removal of goods from the bonded warehouse as the date of exbonding, compare the rate prevalent on that date with the one prevalent on the day of its inbonding and which ever rate is higher should be taken as the rate of exbonding and the custom duties be assessed accordingly. This is in line with an earlier D.B judgment of this Court (Custom Appeal No. 166/99).

1. Coming to the question of penalty the argument of learned counsel for the respondent importer that since the goods were removed from a public warehouse and not from a private warehouse therefore he could not burdened with penalty in terms of Section 156(1) Clause 57 we note that there is no distinction between the removal of goods without payment of custom duties from a private or a public warehouse so for as the application of law is concerned. The appellant was Jiaule to pay the penalty both under Sections 111 of the Customs Act as also Section 156 of Sub-para 57. The Custom authorities shall determine the penal amount strictly in terms of Section 156(57) i.e. "an amount be liable to a penalty equal to five times the duty chargeable on the goods so deficient".

The appeals are partly allowed and disposed of in terms noted above.

(M.Y.)

Appeals partly allowed.

PL J 2004 Lahore 118

Present: MUHAMMAD SAYEED AKHTAR, J.

MUNICIPAL CORPORATION FAISALABAD through its MAYOR, etc.-Petitioner

versus Messrs FAISALABAD OIL REFINERY (PVT.) LIMITED through its CH&F

EXECUTIVE etc.-Respqndent C.R. No. 1860 of 1990, decided on 5.6.2003. (i)

Punjab Local Government Ordinance, 1979 (VI of 1979)--

—-S.6-Punjab Local Councils (Taxation) Rules 1980, R. 4-Without adopting procedure prescribed by Punjab Local Councils (Taxation) Rules

1980, newly included areas would not ipso facto become rating areas- Without providing opportunity of inviting objections to proposed levy, imposition of octroi tax by rating authority would be contrary to law-Tax payer would, thus, be deprived of their valuable right to object to imposition of tax. [P. 124] A

(ii) Punjab Local Government Ordinance, 1979 (VI of 1979)--

—S. 6(5) Alterations of limits of Local Council-Government under S. 6(5) of Punjab Local Government Ordinance 1979, is empowered to alter limits of a local council-There is no legal requirement in Punjab Local Government Ordinance 1979, for inviting objections before issuing notification for alteration of boundaries of a local council-Impugned notification cannot be quashed on that ground-Constitutional petition to that extent was dismissed. [P. 125] B

Mr. AamerRaza A. Khan, Advocate for Petitioner.

M/s. Abid Hassan- Minto & Mr. Fiza Ullah, Advocates for Respondent No. 1.

Ch. Muhammad Bashir, A.A.G., for Respondent No. 2. Ch. Muhammad Khurshid, Advocate for Respondent No. 3. Dates of hearing : 20.5.2003 & 22.5.2003.

judgment

Common question of law and fact is involved in C.R. No. 1860/1990, C.R. No.1427/1990 and W.P. No. 63/1988,1 propose to dispose of these three petitions by a common judgment.

1. The facts culminating into these petitions are that the Government of Punjab/respondent vide notification dated 19.7.1987 published in the Punjab Gazette under Section 6 of the Punjab Local Government Ordinance, 1979, on July 22, 1987 extended the territorial limits of Municipal Corporation, Faisalabad "for the purposes of next elections to the Local Councils in the Punjab and thereafter." By this notification the boundaries of the Municipal Corporation, Faisalabad were altered and amongst others Square Nos. 1 to 6 of Chak No. 119/J.B. were included in the Municipal Limits. The petitioners (in C.R. No. 1427/1990 and W.P. No. 63/1988) are the manufacturers of Banaspati Ghee and Vegetable Oils. Their factories were situated outside the limits of the Municipal Corporation, Faisalabad before issuance of the aforementioned notification dated July 22, 1987. The petitioner Companies imported Edible Oils e.g. Cotton Seed Oil, Palm Oil, Soyabean Oil etc. from different parts of Pakistan and some times from foreign countries. Municipal Corporation leased out the octroi collection rights to Defendant No. 3/the Contractor. After issuance of the aforementioned notification dated July 22, 1987 they started demanding the Octroi duty from writ petitioner and plaintiff in Civil Suit out of which revision petitions have arisen. Writ petition and civil suit was filed assailing the notification issued by the Government of Punjab under Section 6 of the Punjab Local Government Ordinance, 1979 and the demand and charging of the Octroi duty from the petitioners on the ground that the said notification was for only election purposes and that no objections were invited from the petitioners for alteration of the boundries of the Faisalabad Municipal Corporation. The suits and the writ petition were defended by filing the written statements alleging that the notification was not only for election purpose but it was to remain in force after the election as well. The factoiy areas of the petitioners have been validly included in the limits of the Municipal Corporation and that the Octroi duty is being demanded in accordance with law. The writ petition was kept pending, however, in the suit following issues were framed :--

2. Whether the alteration and extension of local limits of Municipal Corporation Faisalabad by notification No. DS (R) 5-2/87 dated 19.7.1987 was only for the purpose of elections of local bodies but not for the purpose of charging of octroi duty and so the charging of octroi duty by defendants from plaintiffs goods such as edible oils etc. on the basis of said notification is illegal, without jurisdiction and void ? OPP.

3. Whether this Court has no jurisdiction to tiy the suit ? OPD-3.

4. Whether the Defendant No. 3 is entitled to special costs under Section 35-A CPC ? If so, then to what extent? OPD-3.

5. Whether the plaintiff has not served a notice to Defendant No. 2 under Section 173 of Punjab Local Government Ordinance, 1979 before the presentation of the suit, if so then its effect ? OPD-2.

The learned trial Court vide its judgment dated 11.4.1990 decreed the suit of the plaintiff/petitioner in C.R. No. 1427/1990 holding that "Municipal Corporation admittedly did not comply with the provisions of Local Government Ordinance, 1979 and Punjab Local Councils (Taxation) Rules, 1980 by prior notification, publication and by inviting objections etc." Municipal Corporation was, however, directed to invite objections from the disputing parties and dispose of the same at the earliest. An appeal was preferred by the Municipal Corporation, Faisalabad before the District Judge, Faisalabad which came up for hearing before Mr. Abdul Ghaffar Khan, Additional District Judge, Faisalabad who videhis judgment dated 3.6.1990 set aside the judgment of the learned trial Court and dismissed the suit filed by' the plaintiff/petitioner. However, the Municipal Corporation was allowed to charge duty from 25.6.1988, the date of the publication of the Octroi Schedule in the Official Gazette. The judgment of the learned

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Additional District Judge, Faisalabad, dated 3.6.1990 has been challenged by both the plaintiff and the defendant by filing these two revision petitions.

1. Learned counsel for Municipal Corporation/petitioner in C.R. No. 1860/1990 and respondent in C.R. No. 1427/1990 and W.P. No. 63/1988 contended that with the extension of the limits of the local council, the tax laws in force automatically became applicable to the newly added areas. Taxes prior to 25.6.1988, were not challenged. The learned Additional District Judge fell ia error in holding that the tax could be imposed w.e.f. 25.6.1988 i.e., the date of passing of the resolution by the Municipal Corporation. He submitted that a public notice was issued on 14.5.1988 in the daily "Mashriq" inviting the objections on the tax proposals and after considering the same the corporation in its meeting held on 25.6.1988 passed a resolution imposing the taxes. Official acts are presumed to have been performed validly and in accordance with law. He submitted that the corporation has the jurisdiction to levy taxes under Section 137 and item 1 of Part III of Second Schedule to the Punjab Local Government Ordinance, 1979. The provisions of the Punjab Local Councils (Taxation) Rules, 1980 have been duly complied with. Lastly, he submitted that under Section 6(5) of the Punjab Local Government Ordinance, 1979, the Government of the Punjab is only competent authority to extend the limits of a Local Council and the same cannot be called in question. Reliance was placed on Pakistan Tobacco Co. Ltd. vs. Karachi Municipal Corporation (PLD 1967 S.C. 241), The Chittaranjan Cotton Mills Ltd. us. The Commissioner Naraynganj Municipality and The Province of East Pakistan (PLD 1958 S.C. (Pak.) 430), Messrs Dawood Yamaha Ltd. us. Government of Baluchistan and 3 others (PLD 1986 Quetta 148), Sind Fine Textile Mills Ltd., Karachi vs. Peoples Municipality, Shikarpur and 2 others (PLD 1978 Karachi 449), MessersKhayal Muhammad & Sons vs. Chairman, Municipal Committee, Jhelum and 3 others (PLD 1985 Lahore 545) and Sunshine Cotton Mills Ltd. Sheikhupura us. Administrator Municipal Committee, Sheikhupura and 3 others(PLD 1978 Lahore 263) Ch. Muhammad Khurshid Ahmad, Advocate appearing for the Contractor adopted the arguments of Mr. Aamer Raza Khan, Advocate for Municipal Corporation. Ch. Muhammad Abdul Saleem, Advocate repeated the arguments of Mr. Aamer Raza Khan, Advocate^Ch. M. Bashir, A.A.G. defended the impugned notification.

Conversly Mr. Abid Hassan Minto, Advocate learned counsel for respondent Company submitted that the extension of the territorial limits of a local council do not make the existing taxation laws automatically applicable to the newly added areas. The objections should have been invited for imposition of the taxes to the newly included areas. Learned counsel urged that public notice relates to the increase in the taxes and it does not mention the imposition of the taxes to the extended areas. He has referred to the items mentioned in the public notice showing the old Octroi rates and the proposed rates. He further submitted that the resolution of the

Municipal Corporation only approved the increase in the taxes and not the levy of new taxes. Even the new taxes have not been made applicable to the 'extended areas. Learned counsel further argued that the Corporation had made an application under Order XLI Rule 27 C.P.C. before the Appellate Court for production of additional evidence i.e. the public notice dated 14.5.1988 and the resolution dated 25th June, 1988 of the Municipal Corporation, Faisalabad. The said application was allowed without any notice to him and the same could not be read in evidence. Mr. Jari Ullah Khan, Advocate in W.P. No. 63/1988 adopted the arguments raised by Mr. Abid Hassan Minto, Advocate. Ch. Fiza Ullah, Advocate also made his submissions to the same effect.

1. I have gone through the judgments of the Courts below and perused the record. The resolution passed by the Municipal Corporation Faisalabad on 7.5.1988, the public notice published on 14.5.1988 in daily "Mashriq" and the resolution of the Municipal Corporation dated 25.6.1988 approving the draft notification i.e. the Octroi Schedule which was subsequently notified in the official gazette dated 29.6.1988 were assailed in the case Rauf Trading Company Limited vs. Faisalabad Municipal Corporation through Mayor and another (1990 CLC 1732). The learned Single Judge after considering plethora of case law and the relevant provisions of the Ordinance and the rules framed thereunder observed as under :--

"The Respondent No. 1 has clearly defeated the purpose of Rule 4 while enhancing the rates of itmes in dispute.

Now for instance the objections were invited as to the enhancement of the rate to Re. 0.13. Neither any public notice in respect of enhancement ot Re, 0.15 was issued nor objections invited nor considered by Sub-Committee, therefore, at least two material stages are missing in the link. The proposition can be looked at from another angle that enhancement beyond Re. 0.13 will be considered as a fresh proposal and respondent was under legal obligation to comply with the whole procedure. This way even there was no proposal to start process.

1. The Respondent No. 1 while enhancing octroi rate beyond Re. O. 13 in fact frustrated, defeated and set at naught the provisions of Rules 4 and.5. It is clear from Rule 3(3) and Rule 4(b) and (c) that not only the class of the persons or category of property likely to be affected has to be indicated but the rate is also to be specified. Clause (c) of Rule 4 further clarifies that not only the rate but it is also to be notified whether it is being increased, reduced or modified. Therefore, the Respondent No. 1 had no jurisdiction or authority to fix a higher rate than notified in the public notice. Of course the

| | | --- | | |

respondent is competent to pass it as a fresh tax after observing all the formalities."

The enhancement of the rate of octroi duty over and above the proposed duty was declared to be illegal and violative of the tax rules. It was further held that the preceding schedule of 1984 would automatically stand restored. The said judgment is still in the field and has not been set aside by any higher forum. Since it has been held that the octroi duty can be charged only in accordance with 1984 Octroi Schedule, by no stretch of imagination it can be said that 1984 Octroi Schedule would apply to the areas which are not yet part of the body of the Municipality and about which objections are not invited from its inhabitants.

The case M/s Chaudhri Wire Rope Industries (Private) Limited, Muridke through its General Manager vs. Secretary To the Government of the Punjab and Rural Development Department, Lahore and 3 others (1994 CLC 1060) is on all fours of the present case. The learned Single Judge after going through the relevant provisions of law observed as under :--

"It is difficult to agree with the learned counsel that the effect of the inclusion of the area is that all existing taxes ipso facto became applicable to the extended areas. No such consequence is provided either by Section 6 or Section 7 of the Punjab Local Government Ordinance, 1979. It is to be noticed that Section 6(5) of the Punjab Local Government Ordinance, 1979 spells out in detail the consequences flowing from extension/alteration of limits of a Local Council. But there is nothing contained therein from which it could even be remotely inferred that one of the consequences was that the taxes in force in the existing areas become applicable to the extended areas without further proceedings merely on account of inclusion or extension of the local limits. So far as the newly added areas are concerned, the taxes in question are levied for the first time and, therefore, it is necessary that the procedure prescribed by the Punjab Local Councils (Taxation) Rules, 1980 should be followed. To hold otherwise would amount to depriving the residents of the extended areas of their right to object to the levy and consideration of their objections by the Sub-Committee and the House as contemplated by the Rules."

I am not inclined to take a different view. The rates in force in the existing rating areas do not become ipso facto applicable to the extended territorial limits thus making it area of charge. Sections 137, 138 and 139 of the Punjab Local Government Ordinance, 1979 are the charging sections and Punjab Local Councils (Taxation) Rules, 1980 are only machinery provisions. Without adopting the procedure prescribed by the Punjab Local Councils (Taxation) Rules, 1980, the newly included areas would not ipso facto become rating areas. In my view without providing an opportunity of

inviting objections to the proposed levy, the imposition of octroi tax by the rating authority would be contrary to law. The tax payers would be deprived of their valuable right to object to the imposition of tax. The cases relied upon by the learned counsel for the Municipal Corporation are not applicable to the facts of the instant case. In case Pakistan Tobacco Co. Ltd. vs. Karachi Municipal Corporation (supra) during the pendency of the proceedings in the High Court the Municipal limits of the Karachi Municipal Corporation were extended by a notification dated 20th of June, 1964 to take effect from 3.7.1964. The Hon'ble Supreme Court observed as under :--

"The tax, even through described as a terminal tax, may be upheld as taxes under the said items 4 and 5; either as an octroi on goods brought into the municipal limits of the Corporation or as a cess on goods exported outside these limits. The Municipal Corporation will, however, have to frame rules in that behalf under Section 41 of the Ordinance, to provide for the levy of such taxes and to notify the same as required under Section 34 of the Ordinance. It can also do so if the Provincial Government under Section 36 directs it to levy such a tax. But this cannot be done under the existing Terminal Tax Rules, framed under the Municipal Act of 1933. Fresh action will have to be taken if provision has not already been made in that behalf under the powers given by the Ordinance of 1960."

It is thus not clear whether there was any legal requirement for inviting the objections ot the tax proposals and whether the tax was levied after inviting objections and considering the same. It cannot be taken as a 'ratio' for the proposition that the existing tax laws would ipso facto apply to the newly added areas. On the contrary, it has been held that fresh action will have to be taken if the provision has not already been made by Ordinance of 1960. Similarly the case Sunshine Cotton Mills Ltd. Sheikhupura vs. Administrator Municipal Committee, Sheikhupura and 3 others (supra ) is completely silent on the same.

1. As regards the contention of the learned counsel for the Municipal Corporation that a presumption is attached to the official acts, suffice to say that the express provisions have not been complied with and the increase in the tax has already been declared to be violative of the aforementioned Rules in the case RaufTrading Company Limited, vs. Faisalabad Municipal Corporation through Mayor and another (supra). The judgment was passed by the learned Additional District Judge, Faisalabad on 3.6.1990 when the judgment passed by this Court was not in the field. The contention of Mr. Abid Hassan Minto, Advocate that no notice of the application under Order XLI Rule 27 CPC filed by Municipal Corporation was given to his party has force but since the entire case of both the parties is based on the said two documents, I am not inclined to hold that the same have been illegally admitted in evidence.

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1. For the reasons mentioned above the C.R. No. 1427/90 is allowed and judgment of the learned Additional.District Judge dated 3.6.1990 is set aside and that of the learned trial Court dated 11.4.1990 is restored. For the same reasons the Revision Petition No. 1860/1990 is dismissed.

In the W.P. No. 63/1988 the issuance of the notification dated 19.7.1988 altering the territorial limits of the Municipal Corporation has been assailed. In the case of M/s Chaudhri Wire Rope Industries (Private) Limited, Muridke through its General Manager vs. Secretary to the Government of the Punjab and Rural Development Department, Lahore and 3 others (supra) it was held as under :—

"So far as the inclusion of the area within the Municipal limits is concerned, the notification issued in this behalf on 25.1.1987 is not open to any valid exception. Section 6 of the Punjab Local Government Ordinance, 1979 unmistakably vests power in the Government to alter the limits of Local Councils. The decision is purely administrative in nature and rests with the Government alone. -This Court cannot in its Constitutional jurisdiction undertake an exercise to find out as to whether or not such a decision was justified on facts. Similarly, on its proper construction, notification dated 25.1.1987 shows that though it was issued keeping in view the elections being held to the Local Councils yet the alteration of limits was not only for that limited purpose nor was it transitional or temporary in nature. The use of word "thereafter" in the notification is clearly indicative of the intention that even after the elections, the altered limits would remain in force." .

The instant notification is to the same effect and the expression "thereafter" clearly indicates that it would remain in force even after the elections. Under Section 6(5) of the Punjab Local Government Ordinance, 1979 the Government is empowered to alter the limits of a local council. The Government for effective change appearing to it desirable in the interests of effective and convenient Local Government may review the boundaries of a local council. Unlike the Sindh Local Government Ordinance, 1979 there is no legal requirement in the Punjab Local Government Ordinance, 1979, for inviting objections before issuing notification for alteration of boundaries of a local council. The impugned notification cannot be quashed on this ground. To this extent constitutional petition is dismissed. However, for the reasons mentioned above the respondents are directed to refrain from imposing or recovering the octroi duty.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 126

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J. MUHAMMAD ALI BHUTTA-Petitioner

versus MUHAMMAD AZAM KHOKHAR and another-Respondents

C.R. No. 84 of 1997, heard on 3.7.2003. Civil Procedure Code, 1908 (V of 1908)--

—O. LX, R. 6 & S. 115-Ex-parte proceedings against defendant was passed on the date on which suit was not fixed for hearing-Court had no jurisdiction to proceed against defendant ex-parte on specified date when suit was not fixed for hearing-Defendant should have been allowed to participate in proceeding when he appeared in Court following ex-parteproceedings-Ex-parte decree on tje basis of ex-parte proceedings was itself void and liable to be set &side~Ex-partedecree was set aside and case was remanded to trial Court to commence trial afresh from the date when ex-parte proceedings were taken. [Pp. 129 & 130] A, B & C

1993 SCMR 1949 and PLD 1970 Lahore 428.

Mr. Muhammad Munir Paracha, Advocate for Petitioner. Sh. Zamir Hussain, Advocate for Respondent No. 1. Nemo for Respondent No. 2. Date of hearing : 3.7.2003.

judgment

On 12.12.1993 Respondent No. 1 filed a suit against the petitioner and Respondent No. 2. It was stated in the plaint that plot mentioned in Para-1 of the plaint was allotted by Respondent No. 2 to the petitioner and possession was delivered to him on 18.11.1980. Through an agreement the petitioner sold it to Respondent No. 1 for Rs. 1,50,000/- which amount was received by him. An agreement was executed acknowledging the receipt of consideration and an irrevocable general power of attorney was also executed. Respondent No. 2 was also informed accordingly. Thereafter Respondent No. 1 got a plan sanctioned and built a Bungalow. It was then stated that the petitioner has cancelled the power of attorney on 8.11.1993, that the cancellation was stated to be illegal and void. Further protection under Section 53-A of the Transfer of Property Act, 1882, was sought. The petitioner appeared and filed a written statement denying the allegation that he had sold the plot or had received the consideration. He asserted that Bungalow has been build by him. After filing of the written statement in Court on 28.2.1994 the case was adjourned to 5.3.1994 for arguments on the

application for grant of temporary injunction. It was then adjourned for the said purposes to 8.3.1994. On this date following order was passed :--

On 10.3.1994 following order was passed.

| | | --- | | |

Record shows that evidence was not available and the suit was being adjourned for recording of ex-parte evidence. Now it is not apparent as on what exact date but certainly within the same month i.e. March 1994, an application was filed for setting aside of the ex-parte proceedings. The learned trial Court started recording, orders in the said application in a separate order sheet. Some of these orders have been placed on the file. According to the copy of orders at page 45 of the paper book the suit used to be taken up simultaneously with the said application on 29.3.1994, 2.4.1994 and 7.4.1994. Whereas the petitioner was marked present in the orders passed in the said application, he was not being marked at all in corresponding orders passed in the suit. Be that as it may, the application was dismissed on 7.4.1994. On 11.4.1994 an application for review was filed stating that application for setting aside ex-parte proceedings has been dismissed on the sole ground that whereas the application has been filed through an attorney, power of attorney has not been placed. Prayer made was that copy of the power of attorney was filed on record on 2.4.1994 and -the original is being appended with said application. No order was passed on this application till 19.2.1995 when learned trial Court directed that the application be presented alongwith file on 22.2.1995.

1. Now the petitioner filed an appeal against the said order dated 7.4.1994 which was dismissed on 3.1.1995. On 22.2.1995 the presence of the counsel for the plaintiff/Respondent No. 1 was marked and it was noted that file has been received back from the Court of learned District Judge, the petitioner has already been proceeded against ex-parte and the application for setting aside ex-parte order has been dismissed on 7.4.1994. The said application for review filed on 11.4.1994 was dismissed for non -prosecution. Remaining ex-parte evidence was recorded and the suit was decreed ex-parte.

On 8,3.1995 the.petitioner filed an application for setting aside of the said ex-partedecree which was dismissed by learned trial Court on 28

26.6.1995. A first appeal filed by the petitioner was dismissed by learned) District Judge, Jhelum, on 6.12.1995.

1. Learned counsel for the petitioner contends that the entire edifice of orders and decrees and consequent dismissal of the applications is coramnonjudice and utterly without jurisdiction inasmuch as the initial order for ex-parte proceedings was passed on a date on which the suit was not fixed for hearing and only part heard matter of the application for grant of temporary injunction was fixed which of course was decided by learned trial Court. Further contends that even if the only reasoning given by the learned Courts below that application for setting aside of the ex-parte proceedings having been dismissed and dismissal affirmed in appeal, decree could not have been set aside, is taken on its face value, it is apparent on the face of record that the petitioner was not allowed to join the proceedings, when he was continuously present in Court.

2. Sh. Zamir Hussain, learned counsel for Respondent No. 1 has tried to support the impugned orders by stating that since the matter of setting aside of ex-parte proceedings stood finalized, on the same ground the ex-parte decree could not have been set aside.

3. I have examined the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. I have already narrated the entire history of this case above. I have reproduced the order dated 8.3.1994 on which the learned trial Court partly heard the stay application and adjourned the case to 10.3.1994 for hearing of the arguments of the petitioner's counsel and announcing order on the application. To my mind, by no stretch of imagination can it be said that 10.3.1994 was a date in the suit itself or for that matter that the suit was called for hearing on the said date. I may refer to the case of Qazi Muhammad Tariq u. Hasin Jahanand 3 others (1993 SCMK 1949). In the said case 27.3.1986 was fixed as date for hearing of arguments on the application for temporary injunction. The appellant before their lordships, who was plaintiff in case, did not appear. Learned Civil Judge dismissed the suit for non-prosecution. Three applications were filed successively for restoration of the suit and were dismissed. An appeal was dismissed by a learned Addl. District Judge. This Court dismissed the civil revision. Mr. Justice Saad Saood Jan (as his lordship then was) in his leading opinion thus observed :—

"A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application for temporary injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for temporary injunction. It could not proceed beyond that and dismiss the suit as well. Quite clearly its order in this regard was without jurisdiction and void."

The suit was restored and remanded back for trial on merits. Needless lo state that following are the opening words of two provisions relating to ex-parte proceedings and dismissal of the suit for non-prosecution :--

Order IX Rule, 6.

Where the plaintiff appears and defendant does not appear when suit is called on for hearing.....

Order IX Rule, 8.

Where the defendant appears and plaintiff does not appear when suit is called on for hearing......

I, therefore, do find that since the learned lower Court was not possessed of j jurisdiction to proceed against the petitioner ex-parte on 10.3.1994, the ex- j parte decree emanating from said void ex-parte proceedings is itself wholly void and without lawful authority and liable to be set aside.

1. The said second contention of the learned counsel also carries weight. Mr. Justice Karam Elahi Chauhan (as his lordship then was), in the case ofHabib Ismail Bajwa v. Kh. Ghulam Mohy-ud-Din (PLD 1970 Lahore 428) thus observed after recapitulating the case law from the superior Courts in the Subcontinent "a defendant by making default in appearance does not become a dead person for the purposes of the case and that he can join and participate in the proceedings onward from the stage at which the default took place."

2. Upon an examination of the available records I am satisfied that the petitioner had put in appearance in a matter of days after the said default in appearance and was continuously present before the learned trial Court. I may further note here that on 22.2.1995 when ex-parte decree itself was passed, the case was being adjourned in waiting for orders of the learned District Judge who had requisitioned the file. By all norms it was the duty of the learned trial Court to have issued notice to the petitioner, when he received back the file. However, not only the review, was dismissed for non- prosecution but the ex-parte decree was passed after recording further evidence of Respondent No. 1. I cannot restrain myself from observing that the entire proceedings in this case smack of malafideinherent therein. Learned Courts below dealing with this matter do seem to have been bent upon decreeing the suit ex-parte and to maintain said decree.

3. Having examined the entire record and in view of the fact apparent on the face of record that the ex-parte proceedings resulting in ex- partedecree are wholly without jurisdiction, I feel no hesitation in holding that the learned Courts below have acted without lawful authority while passing impugned orders. The civil revision is "accordingly allowed. All the impugned orders are set aside and ex-parte proceedings are quashed. Learned trial Court is directed to requisition file of the case and to commence proceedings from stage they were after passing said orders in the stay application. The parties to appear before the learned Senior Civil Judge, Jhelum, on 29.7.2003. The costs throughout shall be borne by Respondent

No. 1. .

A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Jhelum.

(A.A.) Order accordingly.

PLJ 2004 Lahore 130

[Rawalpinid Bench Rawalpindi]

Present: abdul shakoor paracha, J.

AMIR KHALID and 14 others-Petitioners

versus

THE CONTROLLER OF EXAMINATION, PUNJAB UNIVERSITY LAHORE and 5 others-Respondents

W.P, No. 1907 of 2002, decided on 31.7.2003. (i) Constitution of Pakistan (1973)--

—Art. 199-Petitioners seeking direction of High Court to respondents to allow them to take part in B.C.S. final examination 2002, by accepting petitioners' admission/registration form-High Court issued direction to respondents to issue Roll Number Slips to petitioners and allow them to participate in examination subject to decision of writ petition-High-Court, however, directed that result of petitioners for examination held in 2002 for B.C.S. be announced-High Court made it clear that no student in future, of concerned college would be allowed to appear in examination unless such institution was affiliated with the University.

[P. 133] B

(i) Educational Institutions-

—High Court, while deciding writ petition was constrained to observe that a culture had developed in the country to extract money from innocent students by establishing institutions for imparting education in software, hard ware, engineering, medical field etc.-\High Court hoped that there should be some end to such exploitation and illegal activities being carried by individuals and N.G.O's with connivance of University Staff.

[P. 133] A

Malik Muhammad Kabir, Advocate for Petitioners. Mr. Taufiq AsifAwan, Advocate for Respondents.

Raja Saeed Akram, A.A.G. alongwith Muhammad Ismail, Admn. Officer, Affilation Branch.

Date of hearing : 31.7.2003.

order

Through this writ petition the petitioners have prayed for the following reliefs :--

(a) for issuance of a direction to Respondent No. 1 to allow the petitioners to take part in the BCS final examination 2002, by accepting the petitioners' admission/registration form;

(b) a direction to Respondent No. 1 to make urgent arrangements and issue necessaiy authorizations by telegraphic, fax or other expeditious modes of communication to ensure the appearance of the petitioners in the final examination of BCS to be held from 6th of July, 2002.

1. Through the interim order dated 3.7.2002 the following direction was issued by this Court to the respondents :--

"The respondents will issue Roll .Number Slips to the petitioners and allow them to participate in the examination commencing on 6.7.2002, subject to the decision of the writ petition."

1. In pursuance of the order dated 3.7.2002 aforesaid, the petitioners participated in the examination. Through C.M. No. 517 of 2003, a direction was sought to the respondents to announce the result of the examination held in 2002 for BCS, 2002 in respect of the petitioners subject to the final disposal of the writ petition. The said application was dismissed. However, the main writ petition was ordered to be fixed for final hearing.

2. Vide letter No. SO(A-l)2-l/85-97 (Comp.) Government of the Punjab, Education Department, dated 4.2.1998', the Education Department allowed the introduction of Computer Classes in the Education Institutions of the Punjab in association with private parties on certain terms and conditions.

3. The University has filed parawise comments. It has been categorically stated in the comments that the University of the Punjab did not grant affiliation to the Government College, Asghar Mall, Rawalpindi, to teach BCS Class and no Institution could enrol the students for any discipline without having affiliation. It is further submitted in the comments

that the admissions of the students were illegal as the College had been granted no affiliation and they had no authority to admit the students.

6, Through letter No. 1275/P (AF) dated 2.0.6.2001, the Deputy Registrar (General) and Secretary, Affiliation Committee for Registrar in the University of the Punjab, communicated to the Principal, Government, College, Asghar Mall, Rawalpindi as follows :--

"I am directed to inform you that the University of the Punjab has decided not to grant Affiliation to Govt. College, Asghar Mall, Rawalpindi to teach the BCS Classes due to the following observations :--

1. An N.G.O. is running the Computer Centre in the premises of Govt. College, Asghar Mall, Rawalpindi.

2. Except the building, all the assets are the property of N.G.O.

3. The N.G.O. has donated only 4 Computers to College.

4. The books of the Library, which are not adequate with the requirements of the College, are also property of the N.G.O. However, if the College wants to start the B.C.S. Classes, it should establish its own Computer Lab. and Library etc. The grant of affiliation to Government College Asghar Mall, Rawalpindi will be considered thereafter".

5. The Government has not so far formulated any policy regarding imparting education through the private Institutions. A culture has developed in the country to extract money from innocent students/boys and girls by establishing Institutions for imparting education in Software, hardware engineering, medical field, homeopathy and business administration, _etc. The private persons or N.G.O's establish private Institution without any basic facilities of imparting education. This is a matter of great concern that these private individuals and N.G.O's publish the advertisements without getting any affiliation from any University for giving admissions in different disciplines to the students without having any proper building, libraries, computers, Labs. The malafides and the ulterior motive is floating on the surface of these individuals and N.G.O's that they submit applications for affiliation of their Institutions to different Universities in the country. The Institutions established in different provinces have applied for affiliations of the Universities in the other Provinces, which matters are pending decision for the last so may years. The applications are not being decided with ulterior motive with the connivance of the University officials and every year the students are given admissions and just prior to one week of examination they send the students to the Courts for getting a direction for their appearance in the examination, and

through interim orders they appear in examinations and thereafter through an order of the Court they would get their result announced, and on the next year they would again make the arrangement of giving admission by extorting huge money. There should be some end to this exploitation and illegal activities being carried by the individuals and N.G.O's with the connivance of the University Staff.

1. It is directed that the result of the petitioners for the examination held in 2002 for BCS 2002 be announced.

2. In view of the above position, I direct that the University shall decide the matter of affiliation of the Government College, Asghar Mall, Rawalpindi, within 15 days from today. The Government of the Punjab, and the Vice Chancellor, Punjab University are also directed to decide the cases of affiliation of different private Institutions so that inndcent poor people, who are spending for imparting education to their children, may not be subjected to looting by the Mafia of the individuals and N.G.O's. It is also made clear that no student in future of this institution shall be allowed to appear in examination unless the Institution is affiliated with the University.

3. A copy of this order shall be sent to the Government of the Punjab and to the Vice Chancellor, University of the Punjab, for immediate action.

With the above observations and directions this writ petition is disposed of. Copy dasti.

(A.A.) Order accordingly.

PLJ 2004 Lahore 133 [Rawalpindi Bench Rawalpindi]

Present: M. AKHTAR SHABBIR, J. MUHAMMAD ASLAM and 2 others-Petitioners versus

AMIR MUHAMMAD KHAN (deceased) through Legal Heirs and 13 others-Respondents

C.R. No. 178 of 1981, heard on 19.2.2003. (i)

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

—O. XXII, R. 4-Death of defendants during pendency of suit-Plaintiffs themselves failed to perform their legal duty and did not inform Court that two plaintiffs had died during pendency of suit-In absence of such intimation to Court concerned, such Court would proceed with the suit and any order made or judgment pronounced in such suit, would not ewithstanding death of such party, have the same force and effect as if the same had been made or prounced before death took place. [P. 139] A

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

—S. 115 & 0. XXII, R. 4-Revision petition claimed to have been filed against dead persons-Such objection would have no force and was repelled in as much as, respondents had failed to intimate to Court about death of deceased respondents-However, if respondents filed correct list of legal heirs of deceased respondents, they would be deemed to be party in revision petition for ends of justice. [Pp. 139 & 140] B

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

—0. XXXII, R. 1-Transfer of property-One of the owners being minor, transfer of property on her behalf to the extent of her share would be void. [P. 141] C

(iv) Co-sharer--

—Co-sharers would be entitled to transfer specific khasra numbers under their exclusive possession to petitioners and they would continue in possession till partition of joint khata in as much as, petitioners (vendees) stepped into shows of vendors as co-sharers. [P. 142] D

AIR 1933 Lahore 243; 1990 MLD 2404; 1979 CLC 230; PLD 1967 Karachi

158; PLD 1959 S.C. 9; PLD 2000 SC 303; 2000 SCMR 533; 2000 SCMR

1845; 1991 SCMR 2300; 1997 MLD 2013; 2000 CLC 90; 2001 MLD 1169;

AIR 1935 Lahore 561; PLD 1976 SC 258; 1991 CLC 640; 2000 MLD 251;

2001 MLD 159; 2001 MLD 448; 2001 CLC 551; 1990 CLC 1387; PLD 1992

Lahore 228; PLD 1967 Karachi 158; 2001 SCMR 1700; 1990 MLD 2406

and 2000 CLC 419 ref.

Mr. Mishab-ul-Hassan Abidi, Advocate for Petitioners. Ch. Afrasiab Khan, Advocate for Respondents. Date of hearing: 19.2.2003.

judgment

This revision petition under Section 115 CPC has been filed to call in question the judgment and decree dated 4.4.1981 passed by the learned District Judge, Jhelum, whereby he maintained the decree of the trial Court dated 30.1.1980, decreeing the declaratory suit of the plaintiff/respondents herein.

1. The brief facts of the case are that Mst. Dardana Jehan daughter of Jehan Khan and eight others had filed a suit for declaration against the petitioners herein and others, who are respondents in this revision to the effect that they were joint owners of the suit property and the transfer of land through sale of mutation by Respondents Nos. 10 and 14 in favour of the petitioners through a consent judgment and decree dated 17.5.1973 was

illegal, void and ineffective qua their rights with the consequential relief that the petitioners be permanently restrained from interfering with their possession over the suit property. It was' asserted in the plaint that Respondents Nos. 1 to 4 were in possession of the suit property measuring 18 Kanals17 Marias in Khasra No. 17 and Respondents Nos. 10 of 14 on their own behalf and on behalf of plaintiff Mst. Dardana Jehan, Respondent No. 5, have sold out whole of the suit land in favour of the petitioners through the decree of the Court and a mutation under the decree as sanctioned in the revenue record. It was further alleged in the plaint that the decree dated 17.5.1973 was illegal on the ground that the suit land was in their joint possession since long and the vendors/Respondents Nos. 10 to 14 could not specifically sold out the land to the petitioners exclusively without getting it partitioned from the competent authority. It was specifically alleged in the plaint that Mst. Dardana Jehan was minor at the time of alleged decree. She did not appear before the Court nor was represented by her next friend and the alienation on her behalf was void abinitio. It was further alleged that the suit land was situated within the limits of Municipal Committee, Chakwal, and it could not be sold out orally as the immovable property situated within the urban area of Municipal Committee having the value of more than rupees one hundred or more is required compulsorily registration, thus the sale was illegal. It was further alleged that the decree was the result of fraud and collusion and against facts and law.

1. The suit had been contested by the defendants/petitioners herein denying the averments of the plaint with a specific stand that Mst. Dardana Jehan Plaintiff/Respondent No. 5 was not minor at the time of alleged sale dated 17.5.1973 and Respondents Nos. 10 to 14 alongwith Mst. Dardana Jehan had transferred the suit property through sale in their favour for a consideration of Rs. 15,000/- on the basis of consent decree and under the sale the possession was also delivered to them. Further asserted that they have constructed their house and sunk a Well. It was also objected that the suit was not maintainable.

It will not be out of place to mention here that the present petitioners had contested the suit and the other defendants/Respondents Nos. 10 to 14 did not contest the suit and filed their consenting written statement.

1. From the divergent pleadings of the parties, the learned trial Court led to frame the following issues :--

(1) Whether the plaintiffs are estopped by their conduct to file the suit? OPD 1 and 2.

(2) Whether the plaintiffs are in possession of the suit land and the suit is maintainable in the present form ? OPP

(3) Whether Plaintiff No. 1 was minor at the time of the impugned sale and as such the transaction is void ? OPP

(4) Whether the impugned transaction of sale was without authority, illegal, void and ineffective qua the rights of the plaintiffs for the reasons mentioned in Paragraph No. 2 of the Plaint? OPP

(5) If Issue No. 4 is proved, whether Defendants Nos. 1 to 3 can be restrained from causing interference with the possession and title of the plaintiffs regarding the suit land ? OPP

(6) Whether Defendants Nos. 1 to 3 have since entered into possession of the suit land as co-owner and they were competent to construct a house and to dig a Well as co-owners? OPP

(7) If Issue No. 6 is proved, whether Defendants Nos. 1 to 3 have since constructed a house and a sunk a Well and they have incurred a sum of Rs. 10,0'OQ/- and Rs. 8880/- respectively towards the said purpose, if so, with what legal consequences ? OPP

(8) Whether Mst. Fehmida Jehan Defendant No. 6 and filed a suit for pre-emption as the next friend of one Mst. Saira Jehan regarding the sale in question, if so with what result and legal consequences ? OPD

(9) Whether the suit is vexatious and Defendants Nos. 1 to 3 are entitled to get special costs from the plaintiffs, if so, to what extent? OPD

(10) Relief. "

1. After recording and appreciating the evidence of the parties, pro and contra, the learned trial Court decreed the suit in favour of the plaintiffs on 30.1.1980.

2. Feeling aggrieved, the present petitioners preferred an appeal which came up for hearing before the learned District Judge, Jhelum, who vide the impugned judgment and decree dated 4-4-1981 while maintaining the findings of the learned trial Court dismissed the appeal of the petitioners.

3. Earlier this revision petition was dismissed by this Court videjudgment dated 20.11.2000 merely on the technical ground that the petitioners have not complied with the provisions of Section 115(1) CPC and had not properly documented the same. This order was assailed through Civil Petition No. 205 of 2001 Jbefore the Supreme Court, which xvas accepted vide order dated 28.11.2001 whereby the judgment of this Court was set aside and remanded the revision for decision afresh with the direction to allowing the defendants an opportunity of raising an objection on the maintainability of the revision petition.

4. Learned counsel for the petitioners has contended that the suit in the present form was not maintainable as the suit land was situated in joint Khata and possession and the plaintiffs should have filed a suit for partition. He has further contended that in the plaint, the plaintiffs have taken the plea that Mst. Dardana Jehan was minor at the time of alleged sale but she did not appear in the Court to substantiate the plea of her minority and the plaintiff was not afforded an opportunity to cross-examine the witnesses. He has further contended that Jehan Khan, father of Mst. Dardana Jehan, who has appeared as PW-1 did not mention in his application for putting the suit for compromise before the Court to the effect that Mst. Dardana Jehan was minor. In this context, the learned counsel has placed reliance on Muhammad Ahtramullah Khan vs. Delhi Motor & Furniture Works, Ltd.(A.I.R. 1933 Lahore 243). Learned counsel submits that the decree passed on the basis of compromise is exempted from compulsory registration under Section 13(2) of Registration Act 1908. Relies on Haji Arsala Khan us. Dr.Abdus Sattar Khan (1990 M.L.D. (Peshawar) 2404). Further submits that the plaintiff has not claimed any consequential relief in the suit as admittedly the possession of the suit property was not delivered to the petitioners. Reliance has been placed on Muhammad Shafi and 2 others vs. Munshi and 3 others (1979 C.L.C. (Lahore) 230). He further submits that if at all it is proved on record that Mst.Dardana Jehan was minor at the relevant time, the sale or compromise decree to her extent could be set aside and the petitioners could not be non-suited with regard to the whole transferred property. In this context, reliance has been placed on Sakinabaiand others vs. Kurnool Muhammad Bashir (PLD 1967 Karachi 158). Further contended that the vendee of co-sharer, who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less and that if the vendor of a co-joint Khata was in exclusive possession of certain portion of the joint land and transferred the possession to his vendee, so long as there is not partition between the co-sharer, the vendee must be regarded as stepping into the shoes of his transferor. Relies on Muhammad Muzaffar Khan vs. MuhammadYusufKhan (PLD 1959 Supreme Court (Pak.) 9).

5. The arguments of the learned counsel for the petitioners have vehemently been opposed by the learned counsel for the respondents contending that two respondents namely Amir Muhammad Khan and Mst.Saadat Sultana had died before the institution of the present revision petition and the revision would not lie against the dead persons and their legal heirs were not impleaded in the revision petition. Thus, on this score alone, the revision petition was not maintainable and liable to be dismissed. Further contended that Khasra No. 1700 measuring 18 Kanals, 17 Marias,belonged to fourteen persons, whose names were mentioned in the column

of ownership of record of rights pertaining to the year 1975-76 Ex. P. 2 and the vendors had no authority to transfer the share of all the co-sharers and rights of co-owners are always protected. Further contended that it was an invalid sale and the plea of right of bona fide purchaser is also not available to the petitioners. In this respect, reliance has been placed on Muhammad Sabir Khan vs. Rahim Bakhsh and 16 others (PLD 2002 Supreme Court 303). Further contended that the witnesses were not cross-examined on the minority of Mst. Dardana Jehan and it is established that the witnesses did not examine on a particular point of fact and the examination-in-chief of the witnesses shall be deemed to be admitted to that extent. Further contended that the revision petition was filed without proper documentation as required under Section 115 CPC. Further contended that there are concurrent findings of fact and the High Court in exercise of its revisional jurisdiction cannot interfere with the same. Learned counsel argued that the rights of all other joint co-owners' rights would not be adversely affected if one or more out of the same deals with the property. Reliance has been placed on Muhammad Siddique vs. Muhammad Akram (2000 SCMR 533). Further contended that the possession of one co-sharer in law is possession of all co-sharers. Relies on Mst. Roshan Akhtar vs. Muhammad Boota and 4 others(2000 SCMR 1845). Learned counsel has lastly argued that the sale made by a co-sharer beyond his land would be bad in law and invalid and the sale and the sale in dispute was not an invalid sale.

1. I have heard the learned counsel for the parties anxiously and perused the record. Firstly, I will deal with the technical and procedural objection raised by the learned counsel for the respondents that two respondents namely Amir Muhammad Khan and Saadat Sultana had died before the institution of the suit and that all legal heirs of the deceased have not been impleaded as respondents, therefore, the revision petition is liable to be dismissed for non-joinder of necessary parties. From the perusal of the plaint, it reveals that Saadat Sultana and Amir Muhammad Khan were impleaded as Plaintiffs Nos. 5 and 9 in the plaint. None of the plaintiffs has objected or pointed out to the Court that they had died. The suit had been decreed in favour of the plaintiffs on 30.1.1980 and till the final judgment by the learned trial Court, this fact was not brought to the notice of the trial Court and then an appeal was filed before the lower appellate Court. During the pendency of the appeal, this fact too was not brought to the knowledge of the Court or to the defendants/petitioners. So much so this revision petition, which had been filed in this Court in the year 1991, and Mr. Bashir Ahmad Ansari, learned counsel for the respondents, appeared in Court on 3.5.1993 till the final disposal of this revision petition on 20.11.2000, the Court was not informed that the said plaintiffs/respondents had died. The respondents agitated the matter for the first time before the Supreme Court. The death of Amir Muhammad Khan and Mst. Saadat Sultana, Respondents Nos. 5 and 9, came in the knowledge of the petitioners in the Supreme Court and after the remand of the case, the petitioners have filed ;>n application bearing C.M.

No. 677-C/2002 to bring on record the legal heirs of the deceased respondents, which was allowed on 3.3.2Q02 by this Court subject to all just legal objections, wherein the petitioners have mentioned the names of the legal heirs to bring on record as respondents. The petitioners while filing the application under Order 22, Rule 4 CPC for impleadment of the legal heirs of the deceased respondents as party in the Court had prayed that beyond the list, if any of the legal heirs applied to the Court for his impleadment, the petitioners will not agitate to make them as respondents because the names of all the legal heirs was not in the knowledge of the petitioners. Reply to the said application was filed by the respondents, but in the application it has no where been stated that the list of the legal heirs filed by the petitioners in the Court was not correct but during the arguments, learned counsel for the respondents has pointed out that some of the legal heirs of the deceased respondents have not been impleaded. The respondents themselves have failed to perform their legal duty and did not inform the Court that some of the defendants had died during the pendency of the suit. Sub-rule (2) of Rule 3 of Order XXII CPC emerges that where no intimation is given under sub-rule (1), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had made or pronounced before the death took place. Sub-rule (3) of Rule 4 of Order XXII CPC also provides that where no intimation is given under sub-rule (1) of Rule 4, the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place.

1. Further, the plaintiffs while filing the suit has supplied the list of legal heirs of the deceased plaintiffs, now the respondents herein, have to come forward and applied to the Court to be impleaded as party. Before the arguments, learned counsel for the respondents has not made any efforts to supply any information about the total legal heirs of the deceased respondents to the petitioners as well as to the Court. Therefore, the most important significant view of the case is that the interest of all the plaintiffs, now the respondents, is common in the suit and if any of the legal heirs has not been impleaded as respondents, the other respondents would protect and safeguard the interest of all other LRs of the deceased respondents, who have not been impleaded as party. In the suit, the interest of one respondents is the interest of all other respondents in the property in dispute, as eveiy co-sharer is a sharer of eveiy inch of land. The objection of the learned counsel for the respondents that the revision petition has been filed against the dead persons having no force is repelled as they have failed to intimate the Court as well as to the respondents about, the death of the deceased respondents. However, the legal heirs who were in the knowledge of the petitioners have been impleaded as respondents. However, if the respondents filed the correct list of the legal heirs of the deceased

("respondents, they shall be deemed to be party in the present revision petition for the ends of justice.

1. The stand of the plaintiff is that at the time of the aforesaid sale, Mst. Dardana Jehan one of the plaintiffs, was minor and to support their

plea, the plaintiffs have produced a certified copy of birth register of Chakwal

Town wherein, the date of birth of a daughter of Jehan Khan has been

entered as 19.12.1956 and both Jehan Khan PW-1 and Brigadier

Muhammad Akram Khan PW-2 stated the date of birth of Mst. Dardana

Jehan the year of 1956 and specifically stated that at the time of .sale, she

was minor although in Ex. P.I, a copy of birth register, the name of Mst.

Dardana Jehan has not been entered. In Column No. 5 of this register, only

one daughter has been entered and this fact has been clarified by PW-1 at

the time of entry in the birth register, Mst.Dardana Jehan was not given

any name, therefore, no name could be entered in the birth register. The

PWs have not been cross-examined about the minority of Mst. Dardana

Jehan by the petitioners. It means that without cross-examination, the facts

stated in the examination-in-chief shall be deemed to have been admitted. In

this context, reliance can be placed on Mst. Nur Jehan Begum through legal

representatives us. Syed Mujtaba Alt Naqui (1991 S.C.M.R. 2300), Dr. Aziza

and 5 others vs.^Muhammad Sarwar and another (1997 M.L.D. 2013), Mst.

Zubeda us. M. Abdul Sattar and another (2000 C.L.C. (Karachi) 90), and

Nazakat Parueen us. Ikhlaq Ahmad (2001 MLD 1169). The petitioners to

rebut the contentions of the plaintiffs/respondents that at the time of sale, Mst. Dardana Jehan was a minor have also not produced any convincing oral

or documentary evidence. The mere statement that Mst. Dardana Jehan was

major at the time of sale is not sufficient. If at the time of filing of the

application by Jehan Khan PW-1 for making the consenting statement did

not point out the minority of Mst. Dardana Jehan plaintiff, but when this

fact came to the knowledge of the petitioners, it was their foremost duty to

bring on record the evidence showing her age of majority at the time of sale.

The petitioners were the beneficiaries of the transaction and the

compromised decree, therefore they were under legal obligation to establish

the majority of one of the vendors Mst. Dardana Jehan. Although Mst.

Dardana Jehan .did not appear in the Court to support the plaintiffs' version

but the statements of PW-1 and PW-2, the uncle of Mst. Dardana Jehan, with regard to her age remained un-controverted as both have categorically

stated that she was born in the year 1956. The entry of birth certificate Ex.

P.I has also not been confronted with her father Jehan Khan, who deposed

in his statement that he has four daughters and all of his children were alive.

Even if the application of compromise has been signed by Mst. Dardana

Jehan and at the time of making the compromise, she was minor, her

signatures on the application would not make the transaction as valid to her

extent. Ex. D. 7 a copy of birth certificate of one daughter of Jehan Khan has

been produced on record, but it has not been established on record that this

document pertained to which daughter Jehan Khan PW-1. No where it has

been stated that it was the birth entry of Mst. Dardana Jehan. If for the sake of argument, it was inferred that it was the birth entiy of Mst. Dardana Jehan, but this document has not been supported by any other evidence and the statement of father and uncle of Mst. Dardana Jehan cannot be brushed aside orally.

1. From the circumstances, it, is established that Mst.Dardana Jehan was minor at the time of transfer of the property in dispute and to her extent this transfer would be void abinitio. Reliance can be placed to the cases of Govind Ram vs. Piran Ditta and others (AIR 1935 Lahore 561). TheChairman, District Screening Committee, Lahore and another vs. Sharif Ahmad Hashmi (PLD 1976 Supreme Court 258), Manzoor Hussam andothers vs. Bhole Khan and others(1991 CLC (Lahore) 640), Noor Muhammad and another vs. Muhammad Ishaq and another (2000 MLD 251), Aamir Masood vs. Mst. Khurshid Begurn (2001 MLD (Lahore) 159), Muhammad Umar Khan .vs. Mst. Aziz Begum and another (2001 MLD (Lahore) 448) and Musaddaq All Khan and 6 others vs. Sharif RahatQureshi and 10 others (2001 CLC (Lahore) 551).

2. The transfer of 18 Kanals, 17 Marias of land situated in Khasra No. 1700 has been transferred by Jehan Khan. Mst. Zahida Jehan, Mst.Fahmida Jehan, Mst. Riffat Jehan and Mst. Dardana Jehan through a compromise decree of the Court, Learned counsel for the respondents has relied upon the document Ex. P. 2, the record of rights pertaining to the year 1975-76. Except the vendors, the names of other co-sharers are entered in the column of ownership. The defendants/petitioners have purchased the land situated in Khata No. 83/169 and Khasra No. 1700 and to support their case, they have placed on record copy of the record of rights for the year 1971-72 and Khata consisting of Khatoni Nos. 160, 161 and 164 and Khasra Nos. 1700, 1699 and 747, total measuring 37-Kanals, 6-Marlas, out of this whole Khata only 18 Kanals, 17 Marias of land has been transferred in favour of the petitioners vide judgment and decree dated 17.5.1973, on the basis of which a mutation of sale was sanctioned. Jehan Khan having the possession of IS-Kanals, 11-Marlasin Khasra No. 1700 as per Khasra Girdawri Nos. 72 to 75, 76 and 77 and out of the joint Khata, the said Jehan Khan had transferred the property under his possession belonging to the share of the vendors. It means that the vendors had transferred their own entitlement and the share of other co-sharers in Khasra No. 1699, 447 measuring 18-Kanals, 3-Marlas plus 6-Marlas had not been transferred through the sale in dispute'. The proposition that whether a co-sharer can sell a specific Khasra number out of the joint Khata, in a case of Muhammad Muzaffar Khan us. Muhammad Yusuf Khan PLD 1959 Supreme Court (Pak.) 9, the observation made by the Hon'ble Judges of the apex Court for further guidance is reproduced as under :--

"A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its.possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them. Till such time as an actual partition by meets and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata does not become a co-sharer in that Khata. It may be pointed out that the mutations in favour of the appellant, which are on the record, described the sale transactions in his favour as Hissadari sales of the joint Khata in suit."

This view has been further strengthen by the dictum laid down in Muhammad Sadiq and another vs. Abdul Aziz and another (1990 CLC (Lahore) 1387) and Rehmat All vs. Mst. Allah Wasai and another (PLD 1992 Lahore 228).

1. Keeping in view the principle laid down in the above referred dictum by the Hon'ble Supreme Court of Pakistan, where -it has been observed that the co-sharers were entitled to transfer a specific Khasra number under their exclusive possession to the petitioners and they would (Continue in possession till the partition of the joint Khata because the petitioners-vendees stepped into the shoes of the vendors as co-sharers. The record of rights Ex. P. 25 pertaining to the year 1971-72, Ex. D. 24 Jamabandis for the year 1967-68, Ex. D. 23 for the year 1963-64 and Khasra Girdawris Ex. D. 18 and Ex. D. 19 substantiated that Jehan Khan was in actual possession over Khasra No. 1700 which he had transferred and this documentary evidence produced by the petitioners neither has been controverted by the plaintiff nor the Courts below have taken into consideration. The sale made by the plaintiffs with regard to Khasra No. 1700 by the major vendors has been validly made as laid down in Sakinabai and others us. Kurnool Muhammad Bashir (PLD 1967 Karachi 158 (supra).

2. It has been admitted that the possession of the suit property pertaining to Khasra No. 1700 was delivered to the petitioners by the vendors which has been admitted by PW-1. It has also been admitted that the Well as well as the house constructed in the said land by the petitioners

after delivery of possession of the land at the time of passing of the decree dated 17.5.1973. Learned counsel for Jehan Khan, one of the vendors, has made a statement in the Court with regard to the delivery of possession and he admitted the construction of the house as well as installation of the Well in the land in dispute. The admission of the PWs with regard to the construction of the house and the Well was supported by the DWs as well and it is settled proposition of law that the admitted facts need not to be proved as enunciated in Daulat All through legal heirs and 2 others vs. Ahmad through legal heirs and 2 others (PLD 2000 Supreme Court 792) and Muhammad Akhtar vs. Mst. Manna and 3 others (2001 SCMR 1700).

1. As to the arguments of the learned counsel for the respondents that the sale in dispute being oral was hit by the provisions of Section 54 of the Transfer of Property Act and was not sustainable in law. The answer would be that the sale in dispute has been made by a consent decree dated 17.5.1973 on the application made by one of the vendor Jehan Khan, who has appeared as PW-1, for effecting compromise and disposal of the suit under the said agreement. A copy of the said Application has been placed on record as Ex. D. 6 and the Court recorded the statement of Jehan Khan PW-1 wherein he has stated that the present petitioners had purchased the suit land from them and the possession had been delivered to them. The decree was passed on the hasis of compromise and it was a consent decree and the sale through the compromise decree is exempted from compulsory registration. Sub-section (1) of Section 17 of the Registration Act enumerates the documents, which require compulsory registration and sub-section (2) thereof make exception thereto are somewhat relevant to the point in issue and they are being reproduced for convenience sake- CD any composition deed; or

(ii) any decree or order of a Court except a decree or order expressed to be made on a compromise and compromising immovable property other than that which is the subject matter of the suit or proceedings.

1. Obviously, the compromise in the case filed by the petitioners against the vendors exclusively pertained to the suit property (immovable property) and consequently did not necessitate compulsory registration as laid down in Qasim Khan us. Mirza AH Khan and others (1990 MLD (Peshawar) 2406).

2. The above legal aspect of the case has not been adverted to by the Courts below and in such like cases where the Courts have committed gross illegality and not attended to the legal proposition of law and passed judgments in violation of the principle laid down by the superior Courts, this Court in exercise of its revisional jurisdiction can set at naught the judgments and decrees by the concurrent findings of the Courts below. Reliance can be placed on the judgment of this Court in a case ManzoorAhmad vs. Haji HashmatAli through legal heirs (2000 C.L.C. (Lahore) 419).

3. In one of the preceding paragraph Mst.Dardana Jehan plaintiff/respondent has been observed as minor at the time of sale and the said sale to her extent would be invalid and liable to be set aside. So far as the sale made by the other co-sharers/vendors including Jehan Khan who had not challenged the sale and they have been impleaded as defendants in the suit and none of them had applied to the Court for their transposition as plaintiffs. It means that they had admitted their sale through the suit, therefore, the sale in favour of the petitioners on their behalf was quite valid. The judgment and decree with regard to the sale in question to their extent is set aside. Resultantly, the revision petition to their extent is partly accepted and the sale made in favour of the petitioners shall stand restored and except the share of land to the extent of Mst. Dardana Jehan, the judgment and decree passed by both the Courts below shall be modified accordingly. The suit filed by Plaintiffs Nos. 2 to 9 shall stand dismissed. There shall be no order as to costs.

(A.A.) Decree modified.

PLJ 2004 Lahore 144 (DB)

Present: mian saqib nisar and jawwad s.khawaja, JJ. MUHAMMAD HASSAN-Appellant

versus M/s. MUSLIM COMMERCIAL BANK LTD. etc.-Respondents

E.F.A. No. 200 of 2000, heard on 1.7.2003.

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

—O. XXI, Rr. 64 to 66-Proclamation of sale-Delegation of power to officer appointed by Court-Legality-Court has to settle proclamation of sale- Such Authority cannot be delegated to officer appointed by Court-Where Court had failed to perform its duty to settle or approve terms and conditions of sale, any publication of notice of sale by Court auctioneers, would be un-authorised act and of no legal consequence-No super stracture or legal rights can be based upon foundation, which was void in nature-Property mentioned in notice of sale was inadequate and inaccurate, for omission of exact khasra numbers of land and subject- matter of sale-Such omission being serious and material irregularity was hit by provisions of O. XXI, R. 90 of C-P-C. and sale was liable to be set aside on that ground as well. [Pp. 149 & 150] A, B, C & D

2001 CLC 2016; 2000 CLC 1425; PLD 2000 Karachi 186, 2000 CLC 1438; PLD 1987 SC 512; PLD 1984 SC 146; PLD 1993 Lahore 706 and AIR 1926 Madras 755 ref.

M/s, Ahmad Waheed Khan and Waqar M,ushtaq Ahmad, Advocates for Appellant.

Mr. Mushtaq Ahmad Khan, Advocate for Respondent No. 1. Mr. Shahid Ikram Siddiqui, Advocate for Auction Purchaser. Date of hearing : 1.7.2003.

judgment

Mian Saqib Nisar, J.--Through the impugned order dated 21.3.2002, the learned Judge Banking Court, Faisalabad, has dismissed the objections of the appellant, challenging the sale of the disputed property in favour of Respondent No. 4 through Court auction, and has confirmed the sale in favour of the said respondent.

1. Briefly stated the facts of the case are that, Respondent No. '1 instituted a suit for the recovery of Rs. 12,29,629.00 against the appellant and others in the Banking Court, Faisalabad. The suit was decreed on 26.3.2001. to the extent of Rs. 8,34,276.00 with mark-up and costs. The decree holder brought an execution application on 2.6.2001, seeking satisfaction of the decree through the sale by auction of the mortgaged property of the appellant, which request was allowed by the learned Executing Court, vide order dated 6.6.2001; Mr. Tariq Bashir, Advocate and Rana Nazir Ahmad, Advocate, were appointed the Court-auctioneers. The proceedings were adjourned for 27.7.2001 and the notice for the settlement of terms and conditions of sale was issued to the judgment debtor/appellant for the said date. On 27.7.2001, the appellant/one of the judgment debtor, filed objections to the sale and also sought the suspension of operation of the judgment and decree dated 26.3.2001, however, for three consecutive dates, the learned Presiding Officer was on leave; anyhow when the matter came up for hearing on 12.10,2001, the Court passed the following order :--

"An objection petition has been instituted by the judgment debtors alongwith application for suspension of operation of judgment and decree. Today, none has appeared on behalf of the objection petitioner, however, in the interest of justice, notice on the objection petition has been given to the decree holder bank for the next date of hearing. Copy of the objection petition be supplied to him. No ground exists to suspend the operation of judgment and decree in hand, hence, the application to this extent is hereby dismissed. To come up on 12.11.2001 for reply to the objection petition."

When the matter came up for hearing on 12.11.2001, the Court ordered as order:--'

"The mortgaged property has been auctioned on 13.10.2001 and report in this respect has also been filed by the Court auctioneers.

The auction purchaser Pervaiz Akhtar has filed an application for confirmation of sate. An objection petition is already pending on behalf of judgment debtor No. 3, whereas another objection petition has been instituted by Lala etc. Replies to all the applications are yet to be filed, copies of the applications be provided to the respective counsel. To come up on 29.11.2001 for the purpose of reply."

1. As per the record, the Court auctioneers auctioned the property on 13.10.2001 and Respondent No. 4 was th^ successful bidder for an amount of Rs. 37,00,000/-. The appellant filed further objections to the sale, whereas Respondent No. 4 applied for the confirmation thereof. The learned Banking Judge, through the impugned order, as mentioned earlier, has rejected the objections of the appellant and has confirmed the sale in favour of the said respondent. It may be pertinent to state here that as disclosed in the Court today, Respondent No. 4 has also been delivered the possession of the auctioned property.

2. Learned counsel for the appellant argued, that the Executing Court while passing the impugned order, has misconstrued the contentions of the appellant, inasmuch as, it is proved from the record that the appellant vide order dated 6.6.2001, was called upon through notice under Order 21 Rule 66 CPC for the settlement of the terms and conditions of sale, but the same were never settled, and the alleged sale of the property was un- authorizedly made by the Court auctioneers through auction on 13.10.2001. He submits that it is proved from the record that neither the terms and conditions of sale were tendered by the decree holder nor the Court auctioneers, and the Court also never caused the drawing and proclamation of the conditions, thus the sale conducted in violation of the provisions of Order 21, Rule 66 CPC, which are mandatpry in nature, is nullity in the eyes of law. It is also submitted that the Court auctioneers • vithout any authority and sanction of the Court, have issued the notice of sale, in which, the conditions of sale, as also the reserve price have been fixed by them, but this being without authority, resultantly, the sale, conducted by them, has no legal value and .sanctity. Mr. Ahmad Waheed Khan, Advocate has lastly submitted that the notice, issued by the Court auctioneers for the sale of the properly on 13.10.2001, does not contain the true and correct description of the property. No khasra number of the land, which is agricultural in nature, has been specified and only khata number is mentioned, which obviously is inadequate and inaccurate description; on this account also, the sale was liable to be set aside.

3. Confronted with the above, learned counsel for the respondent bank has conceded that the Court did not settle the terms and conditions of the sale under Order 21, Rule 66 CPC, or caused the proclamation in this behalf. He further has not been able to controvert that the sale made in violation of the above provisions is a nullity in the eyes of law, however, he

has argued that as the appellant was aware of the auction to be conducted on 13.10.2001, but did not make any effort or applied to the Court pointing out the said omission, resultantly, the appellant is estopped by his own conduct to challenge the sale on this ground.

1. Learned counsel for Respondent No. 4, who is the auction purchaser, has vehemently opposed this appeal by submitting that, technicalities of law should not be allowed to deprive the auction purchaser

'of the fruits of auction, in which, he has honestly participated and emerged as successful bidder. It is also submitted that according to Section 19 of the Ordinance XLVI of 2001, the Executing Court, has the discretion to execute the decree in the manner, it considers appropriate, without following the provisions of Civil Procedure Code, therefore, if in exercise of such power, the property has been put to auction without the drawing or issuance of the proclamation, it would not render the sale nullity in the eyes of law. He has further submitted that the failure of the Court to draw the proclamation in terms of Order 21, Rule 66 CPC, is a lapse on the part of the Court; and it is settled law that no one shall be prejudiced on account of an act of the Court, because Respondent No. 4, who is a bona fide purchaser, has participated in the caution on the basis of the public notice issued by the Court officer, under the genuine belief that the relevant provisions of law have been adhered to. Therefore, such a sale, which has been confirmed by the Court and the possession delivered to the said respondent, cannot be set aside on the principles of past and close transaction. It has been further argued that the appellant had the option to seek the setting aside of the sale in terms of Order 21, Rule 89 CPC on the deposit of 5% of the sale price, but he failed to avail such option; thus, the appellant cannot get the sale set aside on the

-grounds mentioned above. Lastly, it is argued that Vol. 1, Chapter 12-L, Clause-13 of the High Court Rules and Orders, provides that no sale can be set aside on any ground, which the objector could have taken before conducting the sale; but the appellant having failed to avail the appropriate remedy at the appropriate stage, is precluded to object afterwards. In support of his contentions, he has relied upon the following judgments :--

2001 CLC 2016; 2000 CLC 1425; PLD 2000 Karachi 186; 2000 CLC 1438; PLD 1987 SC 512;

PLD 1984 SC 146.

1. We have heard the learned counsel for the parties. Where a decree is to be executed and satisfied through the sale of an immovable property belonging to the judgment debtor, there are three mandatory steps, which the Court, in terms of Order 21, Rules 64 to 66, is required to take. Firstly, to pass a specific order for the saie of the property sought to be sold. Secondly, to appoint the officer, who shall conduct the sale and thirdly, to effect the conduct of sale in the manner prescribed, which manner undoubtedly is provided in Rule 66. In the order dated 6.6.2001, first two requisites i.e. the decision for the sale of the property and appointment of officer in that behalf, are duly met. But for the prescribed manner, such as the settlement of the terms and conditions of the sale and drawing of the proclamation in that behalf under Rule 66, there is no order available on the record. The provisions of Rule 66, are mandatory in nature and without settling and causing a proclamation of the intended sale in terms of said rule by the Court itself, no safe shall be considered to have been lawfully made. The word "cause" appearing in Rule 66, requires a specific order of the Court, which produces the effect of drawing the proclamation envisaging the terms and conditions of the sale. This includes the settlement of the conditions etc., by the Court itself or to approve those, filed by the parties, after hearing them. In the case in hand, as has been conceded by the learned counsel for the decree holder and also seen from the record that, though a notice was issued to the judgment debtor for 27.6.2001 for the causing of the proclamation, but as the Court was on leave on that date, no order in that behalf was passed. Same remains the position till the auction conducted by the officers. The record also reveals that the decree holder bank never filed the proposed terms and conditions of sale alongwith their execution application or subsequently. The power to draw the terms and conditions and issue a proclamation has not been delegated by the Court to the Court auctioneers. Therefore, the Court auctioneers could not on their own, issue the proclamation of sale.

2. Thus, the question, which arises for determination is, whether in the absence of an.order by the Court, according to Rule 66, any sale made, is valid or nullity in the eyes of law? the answer has been provided in the judgment reported as Brig (Retd). Mazhar-ul-Haq and another vs. M/s.Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), when the Division Bench of this Court, has ruled:

"So far as the issuance of proclamation under Order 21, Rule 66, is concerned, it appears to be mandatory. Resultantly due to contravention of this provision the sale is rendered as a nullity."

In Appu alias Subramania Patter vs. 0. Achuta Menon and others (AIR 1926 Madras 755), it has been held: .

"It is for the Court to settle thproclamation of sale and it cannot delegate the power to the Commissioner appointed by it. O. 21, R. 66 directs that when any property is ordered to be sold by public auction in execution of a decree the Court shall cause a proclamation of the intended sale to be made in the language of such Court and that such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale and specify as fairly as accurately as possible the property to be sold and number of other things."

From the ratio of the aforesaid judgments, it is undoubtedly clear that, it is the duty of the Court to settle the proclamation of sale and it cannot delegate the power to the officer appointed by it. Even if a party is aware of the public notice issued by the Court auctioneers, advertising the sale, that would not be a substitute for the proclamation envisaged by the said rule. Therefore, any sale made in violation thereof, would be nullity in the eyes of law.

1. In the instant case, not only that the Court itself has failed to perform its duty to settle or approve the terms and conditions of sale, there is even no order of the Court, through which, such power has been delegated to the Court auctioneer, which otherwise could at all be so delegated. Resultantly, any publication of notice of sale by the Court auctioneers, shall be an unauthorized act, and of no legal consequence. It is settled law that no super-structure or legal rights can be based upon the foundation, which is void in nature. Consequently, the sale conducted by the Court auctioneers on 13.10.2001 was void ab-initio and. therefore, on account of the principle of avoiding technicalities or that act of the Cdurt shall not prejudice any party, the impugned sale cannot be protected. The sale in favour of the Respondent No. 4, therefore, was liable to be set aside and could not have been confirmed

2. by the Court, which has been so erroneously and illegally done through the impugned order.

3. Moreover, we have seen from the notice of sale issued by the Court auctioneers that the description of the property mentioned therein, is inadequate and inaccurate, because the exact Khasra number of the land, subject-matter of the sale, have not been mentioned therein. This too is a serious and material irregularity in the sale of the property and thus, the case of the appellant was squarely covered by the provisions of Order 21, Rule 90 CPC, and the sale was liable to be set aside on this ground as well.

4. The argument of the learned counsel for the Respondent No. 4 that, the appellant, instead of seeking resort to the provisions of Order 21, Rule 66, should have applied to the Court for the setting aside of the sale by paying 5% of the auction price, suffice it to say that, the right available to the decree holder under Rule 89 is optional and can be exercised, where he does not have a case for seeking the sale set aside under Rule 90, that he should.

pay the 5% over and above to the auction purchaser as compensation to the auction purchaser and get the property released, however, where the case of the judgment debtor is duly covered by Order 21, Rule 90, he cannot be compelled to exercise the option under Rule 89. Resultantly, the argument has no force and is repelled.

1. As far as the submission that, under the provisions of Section 19 of the Ordinance XLVI of 2001, the Court had the power to execute the decree in any manner, as it considers fit, suffice it to say that, such power can only be exercised when there is request in this behalf made by the decree holder and the Court by application of conscious mind, comes to the conclusion that the decree cannot be executed by applying the general rules as provided in the Civil Procedure Code. We have perused the record and find an obvious omission in this behalf. The Court has never, by a speaking order on the request of the decree holder, exercised its discretion in terms of Section 9, rendering the provisions of the Civil Procedure Code inapplicable, rather from the record, particularly from the order dated 6.6.2001 and also on account of issuance of notice to the appellant under Order 21, Rule 66, it seems clear that the executing Court intended to execute the decree according to the provisions of the Civil Procedure Code, rather than under the special law.

2. The last submission of the learned counsel for the respondent that the appellant should have filed the objections prior to the conducting of sale in terms of the High Court Rules and Orders mentioned above, it may be stated that the appellant did file the objections before the Court on 27.6.2001, but on account of leave of the Court, these objections were not disposed of. Even otherwise, there is nothing on the record from where, it can be proved or verified that the appellant had any notice that the sale of the property is being conducted by the Court auctioneers on 13.10.2001, as no date and time in this behalf, has at all been fixed by the Court. It is also not shown to us, if the Court auctioneers had given any notice to the appellant for the sale intended to be conducted by them on 13.10.2001. Thus, the rule quoted by the learned counsel for the respondent in the facts and circumstances, has no application; resultantly, this objection too has no force.

In the light of what has been stated above, by allowing the objections I of the appellant and setting aside the impugned order, the sale in favour of ) | Respondent No. 4, is set aside with all the legal consequences to follow. This ' appeal is accordingly allowed.

(A.A.) Appeal accepted.

PLJ 2004 Lahore 151 [Rawalpindi Bench Rawalpindi]

Present: abdul SHAKOOR paracha, J. MUHAMMAD HUSSAIN and another-Petitioners

versus

FEDERATION OF PAKISTAN through SECRETARY LAW JUSTICE DIVISION GOVT, OF PAKISTAN, ISLAMABAD and another-Respondents

W.P. No. 2840 of 2001, heard on 29.5.2003.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983--

—-Art. 32-Constitution of Pakistan (1973), Art. 199-Order passed by President against recommendations of Wafaqi Mohtasib whereby relief granted to petitioners by Wafaqi Mohtasib was withdrawn-Such order of President being in violation of principles of natural justice i.e., not affording opportunity of being heard to petitioner, was excluded from consideration-As far sale agreement, time was not the essence of contract-Delivery of possession of plot in question, having not been delivered to petitioner, he could not be expected to have complied with terms of agreement relating to payment of remaining/balance amount-­ Amount of specified interest demanded from petitioner was, thus, not warranted and the same was declared to be without lawful authority and of no legal effect. [P. 155] A

1996 MLD 60; AIR 1958 Punj 289; 1998 CLC 1453 and 1999 SCMR 2744 ref. Ch. Muhammad Tariq, Advocate for Petitioners. Mr. Nau-Bahar Ali, Advocate on behalf of MalikM. Nawaz Khan, Advocate for Respondent No. 2.

Mr. Ahmad Naeem Qureshi, Federal counsel for Respondent No. 1. Date of hearing : 29.5.2003.

judgment

The facts of this case are brief and straightforward. The petitioners purchased one Agro Farm measuring 2.5 Acres, Bearing No. 8, situated at Poultry and Vegetable Scheme No. I (Extension), Tarlai Kalan, District Islamabad, for a total consideration of Rs. 17,50,000/-, in the year 1994, out of ten plots which were put to auction by the C.D.A. As per terms of the auction, the petitioners paid Rs.1005000/- including C.V.T. and income tax, which was acknowledged by the CDA on acceptance of the bid offered by the petitioners. The possession was not delivered to the petitioners by the CDA because the original owners whose lands were acquired were in possession of the same and litigations were pending between the owners and Respondent No. 2, CDA. On 9.7.1995, a legal notice was served to the respondent demanding possession of the plot by the petitioners. The Respondent No. 2

demanded balance amount along with interest within 15 days from the petitioners vide their notice/letter dated 9.7.1998. The petitioners lodged a complaint to the Hon'ble Wafaqi Mohtasib, Islamabad asserting their grievance that the possession of the plot has not been delivered, who directed the C.D.A. vide his order dated 11.2.1999 to deliver the possession of the plot. The petitioners were also directed to pay the balance amount within seven days after the delivery of possession to them. The physical possession of the plot was delivered to the petitioners on 8.6.1999 and the petitioners also paid the balance amount of Rs. 8,85,000/- to the CDA on 17.5.1999 before the delivery of possession of land to the petitioners. Meanwhile, the respondent filed a representation before the Worthy President of Pakistan seeking annulment of the order of Wafaqi Mohtasib dated 11.2.1999. Through letter dated 15.6.2001 of the Law, Justice and Human Rights Division, Government of Pakistan, Islamabad, the petitioners were informed, that representation of CDA has been accepted by the President and he has set aside the order of the Wafaqi Mohtasib dated 11.2.1999. Respondent No. 2 CDA vide letter dated 2.8.2001 also demanded Rs. 6,11,384/- as interest from the petitioners.

1. In pursuance of the order dated 16.11.2001 of this Court, Respondent No. 2 CDA has filed written statement, wherein it has been admitted that the plot in dispute was purchased by the petitioners through open auction held on 8.2.1994. They deposited 50% of the total premium of the plot amounting to Rs. 8,75,000/- after which formal allotment letter was issued to them on 4.9.1994 (Annexure-1); the balance 50% amount of Rs. 8.75000/- was payable in four equal six monthly instalments of Rs. 2,18,750 each by 30.9.1994, 31.3.1995, 30.9.1995 and 31.3.1996. It was further stated that the allottees neither paid any instalment nor even approached the Authority for delivery of possession of the plot. However, for the first time the legal notice dated 8.9.1998 was received from the allottees requesting for handing over of possession of the said plot. Since village Jaba Tali was existing in the above mentioned scheme area, including the site of the said plot, as an encroachment by local Abadi, the physical possession of plot could not be handed over to the allottees. It was admitted that the petitioners filed a complaint before the Wafaqi Mohtasib and being aggrieved of the findings/recommendation dated 16.2.1999 of the Wafaqi Mohtasib, the CDA made a representation to the Hon'ble President, who accepted the same and set aside the recommendations of the Wafaqi Mohtasib.

2. Purchasing of the plot by the petitioners through auction held on 8.2.1994 and the deposit of 50 percent Premium of the plot amounting to Rs. 8,75,000/- and issuance of allotment letter on 4.9.1994 (Annexure-I) by

the CDA, Respondent No. 2, in favour of the petitioners are admitted by both the sides. The controversy can be resolved by reading of the allotment letter dated 4.9.1994 (Annexure-I) in which schedule of payment of remaining four instalments by 30.9.1994, 31.3.1995, 30.9.1995 and 31.3.1996 has been mentioned. It is also provided under Condition No. 4 that the possession of the land shall be taken by the allottee within one month from the date of issuance of the letter, failing which possession shall be deemed to have been taken over. Conditions Nos. 4, 5 and -6 of the said allotment letter are relevant, which read as follows:-

"4. Possession of the land shall be taken by you within one month from the date of issue of this letter, failing which possession shall be deemed to have been taken over.

1. If any amount remains in arrears for more than two months, it shall be lawful for the Authority to cancel the allotment/lease and resume possession of the plot in accordance with the terms and conditions contained herein.

2. Charges on delayed payments will be levied at the rate of 16% per annum (or as may be revised from time to time) on all types of delayed payments."

3. It is respondent-CDA's own case that village Jaba Tali, which was existing in the above mentioned scheme area, including the site of the plot, as an encroachment by local Abadi, physical possession of the plot could not be handed over to the allottee concerned, meaning thereby that the CDA was not able to perform its part of the agreement. In this view of the matter, the Respondent No. 2 could not ask for payment of the remaining instalments within the stipulated period mentioned in the allotment letter. According to Section 51 of the Contract Act, when a contract consists of reciprocal promises to be simultaneously performed, no promisor needs perform his promise, unless the promisee is ready and willing to perform his reciprocal promise. In case reported asRasikv. Chandra (10 1C 525), it has been ruled that a purchaser is not bound to pay the balance of the purchaser money till the vendors have put the property in the condition in which it was to be conveyed to him." Similarly, Section 52 of the said Act says that, "Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires."

In the case of Said Muhammad vs. Abdur Rehman (1996 MLD 60) while interpreting the provisions of Section 51 of the Contract Act, 1872 (IX

of 1872) while relying on the case reported as DinaNath Dutt vs. Maha VirGupta(AIR 1958 Punj. 289) (V 45 C 77) (D.B.) it was held that:

"Plaintiff need not have offered to make balance amount to defendant on specified date for defendant's title was not perfect on said date and defendant was not ready on said date to perform his reciprocal promise of transfer of land in favour of plaintiff."

In the case of Dina Nath Dutta (Supra) it was held that even if time is the essence of contract of sale, where the vendor has not perfected his title to the goods by the date when the contract has to be completed, there is no breach of the contract on the part of the vendee.

1. The Wafaqi Mohtasib recommended that the agency should deliver possession of the plot as soon as possible to the petitioners and they shall pay the balance amount of premium' within seven days of the possession is delivered to them. Before the representation under Article 32 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983 could have been filed by the Respondent No. 2 CDA before the President, the order of the Wafaqi Mohtasib dated 11.2.1999 was implemented in letter and spirit as the petitioners had paid the balance amount on 17.5.1999 and performed their part of agreement and the Respondent No. 2 delivered the possession and thus it also performed its part of the agreement.

2. The plot allotted to the petitioners was admittedly subject-matter of litigation right from the date of auction. The respondents failed to deliver the possession of the said plot to the petitioners with clear title and free of encroachment which resulted in delay in payment of premium price. In such circumstances, non-compliance of the terms of the allotment order by respondent, ensuing from litigation and encroachment on the plots, legitimately gave a right to the petitioners to require the respondent to hand over physical possession to enable them to pay the balance price and proceed with the project in question. The petitioners, in these circumstances, could have not made suffer for the acts of others or action or inaction on the part of the respondent. Therefore, the respondent was not justified to impose the delayed payment charges.

3. A similar question came up for consideration before this Court in case reported as Messrs Essem Hotels (Pvt.) Ltd, through Director vs.Capital Development Authority, Islamabad through Chairman and 2 others(1998 CLC 1453) and it was observed that respondent could not impose delayed payment charges, and the impugned order to that extent was declared to be illegal and of no legal effect.

| | | --- | | |

1. The petitioners were not given any-notice or were heard before the worthy President while passing the impugned order communicated to the petitioners by Law, Justice and Human Rights Division, Government of Pakistan vide letter dated 14.5.2001. It has been held in the case reported as Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan Islamabad vs. Muhammad Tariq Pirzada and 2 others (1999 SCMR 2744) that:

"Even if it was assumed that institution of "Wafaqi Mohtasib" was an administrative body and President of Pakistan also acted in administrative capacity, while disposing of petition under Art. 32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, an aggrieved person in whose favour a recommendation had been made or finding recorded by Mohtasib had legal right to demand that adverse decision should not be taken against him in violation of principles of natural justice."

1. I am constrained to exclude from consideration the order passed by the President, whereby representation of the Authority against • the recommendations of Wafaqi Mohtasib was accepted on the ground that the order passed by the President is in violation of the principles of natural justice and that time was not the essence of the agreement under the Contract Act, 1872. There was no fault of the petitioners that the plot, which was under litigation and was in possession of the\ex-owners, could not have been handed over to the petitioners within the stipulated time of one month. In this view of the matter, the demand of the respondent of the amount of Rs. 6,11,384/- through the impugned letter of the respondent bearing No. CDA/EM-II/PVC-39/(8)/2001/708 dated 2.8.2001 is declared to be without lawful authority and of no legal effect.

Resultantly, the writ petition is allowed and disposed of. (A.A.) Petition accepted.

PLJ 2004 Lahore 159

Present: M. Javed Buttar, J.

QAISER MANSOOR MALIK—Petitioner

Versus

Mst. JHANDO (deceased) through her legal heirs and others—Respondents C.R. No. 346-D of 1991, heard on 4.7.2003.

Punjab Pre-emption Act, 1913 (I of 1913)—

---S. 7—Right of pre-emption in rrespect of Urban Immovable Property—Such right would only be available ot plaintiff when custom of pre-emption was proved to have been in existence at the time of commencement of Punjab Pre-emption Act 1913—Witnesses of plaintiff had not said a word about existence of custom of pre-emption in locality-Notification dated 16.6.1941, was merely an exercise of power under S. 8(2) of Punjab Pre­ emption Act, 1913, whereunder areas falling outside Circular Road, Lahore was exempted from exercise of right of pre-emption-Notification in question, was not evidence of existence of custom of pre-emption before 1913, in areas falling within Circular Road, Lahore-Right of pre­ emption' on basis of custom, having not been proved and property in question, being not pre-emptible, plaintiffs suit for pre-emption was dismissed, by setting aside decree, and judgments of Courts below, whereby plaintiffs suit had been decreed. [P. 163 & 164] A & B

1990 MLD 743; 1993 SCMR 1477; PLD 1992 SC 180 and 1982 SCMR 738.

Mr. Muhammad Ehsan Waine, Advocate for Petitioner. Sh. Khurshid Iqbal, Advocate for Respondents. Date of hearing : 4.7.2003.

judgment

The petitioner Qaisar Mansoor Malik/defendant, through this revision petition under Section 115 CPC, has assailed the judgment and decree dated 4.12.1990 passed by Additional District Judge, Lahore, whereby the petitioner's appeal against the judgment and decree dated 24.2.1986 passed by Civil Judge Lahore, decreeing respondents/plaintiffs pre-emption suit, under the Punjab Pre-emption Act, (No. I of 1913), was dismissed, leaving the parties to bear their own costs.

1. The relevant facts are that the petitioner/defendant purchased the house in dispute Bearing No. 1447-A, detailed in the plaint, situated in Kucha Sathan, inside Bhatigate Lahore, from proforma Respondents Nos. 9 to 14 and one Mst. Rubina, vide registered sale-deed dated 18.7.1982. The Respondents Nos. 1 to 8/plaintiffs, alleging to be owners of contiguous property Bearing No. 1446-A, claimed superior right of pre-emption in respect of the aforesaid urban property in question, alleging prevalence of custom of pre-emption in the locality where the property in question is situated and instituted the present suit for pre-emption, under Punjab Pre­ emption Act, 1913, claiming superior right of pre-emption on the basis of contiguity, as recognized in Section 16, Sixthly, of the aforesaid Act. The petitioner/defendant contested the suit.

2. The learned trial Court after framing the necessary issues and after recording the evidence produced by the parties, vide its judgment and decree dated 24.2.1986, decreed the suit in favour of respondents/plaintiffs and against the petitioner/defendant, by holding that respondents/plaintiffs had superior right of pre-emption, on the basis of contiguity and that the custom of pre-emption existed in the locality where the property in dispute is situated. The petitioner's/defendant's appeal, as mentioned above, was dismissed by Additional District Judge, Lahore, on 4.12.1990.

3. It is submitted by the learned counsel for the petitioner/defendant that the judgments and decrees of the Courts below suffer from mis-reading and non-reading of evidence, none of the witnesses of respondents/plaintiffs stated a word about the existence of custom, whereas all the witnesses of the petitioner/defendant specifically stated that no custom- existed in the locality for exercising the right of pre-emption, the respondents/plaintiffs merely relied on an order dated 30.10.1984 (Exh. P2) of the Hon'ble Supreme Court, whereby Civil Petitions Nos. 748 and 749 of 1984, relating to different properties of other persons, were dismissed, the aforesaid order of the Hon'ble Supreme Court of dismissal of petitions for leave to appeal is not a judgment and even otherwise it relates to properties situated in Kucha Kaghzian, Bazar Hakeeman, inside Bhatigate Lahore, and not to Kucha Sathan, a Distinct Sub-Division, where the house in dispute is situated, that PW-1 Habib Ahmed, a witness produced by the respondents/plaintiffs themselves, had stated that the house in dispute is a Katra and Section 5(a) of the Punjab Pre-emption Act, (No. I of 1913), provided that no right of pre-emption shall exist in respect of the sale of a Katra, therefore the property in dispute was not pre-emptible, that under Section 7 of the aforesaid Act, a right of pre-emption was recognized in respect of urban immovable property when a custom of pre-emption was proved to have been in existence in such Town or Sub-Division at the time of the commencement of the Act, i.e. 14.3.1913, whereas no such evidence was led by the respondents/plaintiffs to prove the existence of custom in the locality in 1913 and mere reliance on Notification No. 149-L.R. dated 16.6.1941 issued under Section 8(2) of the aforesaid Act (No. I of 1913), which provided that no right of pre-emption shall exist within the boundary of Municipality of Lahore except so much of the City of Lahore as lies within the Circular Road, is not relevant, that the learned Appellate Court in para-11 of the judgment has incorrectly observed that the witnesses examined by Respondents Nos. 1 to 8 have stated that respondent/plaintiffs house was contiguous to the property in question whereas PW-1 Habib Ahmed and PW-2 Riaz Hussain have not said a' single word to the said effect, and that the learned Appellate Court has incorrectly and illegally concluded in the same paragraph, that the title document (Exh. PI) relied upon by the respondents/plaintiffs shows that their property adjoined the property in question, whereas Exh. PI is copy of the PTD showing the transfer of House No. A/1446, situated in Said Mithan Bazar Lahore, in favour of Mst. Jhando Begum and others and it does not show that the property in dispute, which is situated in another sub-division namely Kucha Sathan, is contiguous to respondents/plaintiffs property. The learned counsel for the petitioner, in support of his contention has also placed his reliance on Manzoor Hussain

Allah Ditto (1990 MLD 743), Dr. Iqbal Ahmed Chaudhry vs. Muhammad Inayat Through Legal Heirs and another (1993 SCMR 1477) and Ch. Abdul Rashid vs. Ch. Muhammad Tufail and others (PLD 1992 SC 180).

1. The learned counsel for the respondents/plaintiffs while vehemently opposing the petition, has submitted that the plea that the property in dispute is a Katra is being raised for the first time before this Court and is beyond the pleadings of the petitioner/defendant and as such, this plea is liable to be rejected. Reliance, in this regard, is placed on FazalAkbar vs. Mst. Hussain Pari (1982 SCMR 738). The learned counsel has also placed his reliance on Mahant Kirpa Singh vs. Maya Ram, Mussammat JaiKaur and others (No. 22 Punjab Record 1910).

2. The mis-reading of evidence, by the Courts below in regard to the issue of contiguity pointed out by the learned counsel for the petitioner, referred above, is minor in nature and I am not inclined to upset the concurrent finding of facts recorded by the Courts below, in this regard, in the revisional jurisdiction. It is, therefore, held that the property owned by - the respondents is contiguous to the property in dispute.

. 7. However, it has been established on record, through the unrebutted evidence/statement of PW-1 Habib Ahmed that the property in dispute is a Katra. He was not declared hostile and his statement was recorded prior to the statements of rest of the three witnesses (PW-2 to PW-4) of the respondents/plaintiffs, including the statement of PW-4 Muhammad Saeed, one of the plaintiffs and PW-2 to PW-4 did not state that PW-1 Habib Ahmed had incorrectly stated that property in dispute was a Katra. It is thus apparent on the face of the record that property in dispute is a Katra and whether it was pre-emptible or not under the Punjab Pre-emption Act (No. I of 1913), is a legal plea because inference drawn on the basis of facts found is a question of law and the petitioner cannot be stopped from taking this plea before this Court, for the first time in the revision petition. Section 5(a) of the Punjab Pre-emption Act (No. I of 1913), provided that no right of pre­emption shall exist, in respect of the sale of Katra. .The sale in question was therefore not pre-emptible and the Courts below drew wrong and illegal conclusion on the basis of facts found and acted illegally in decreeing the respondents pre-emption suit in respect of sale of a Katra and the judgments and decrees of the Courts below are, therefore, liable to be set aside on this ground alone.

1. Further more, Section 7 of the Punjab Pre-emption Act (No. I of 1913), provided that "the right of pre-emption shall exist in respect of urban immovable property in any Town or Subdivision when a custom of pre-

emption is proved to have been in existence for such Town or Sub-Division at the time of commencement of this Act and not otherwise" It is thus clear that in order to successfully claim a superior right of pre-emption in respect of urban immovable property, under the said -Act, the respondents had to prove that the property was situated in a locality where custom of pre­emption was prevalent before 1913. Whereas, in the present case, the witnesses of the respondents have not said a single word about the existence of custom of pre-emption in the locality where the property in dispute is situated, before 14.3.1913, when the assent of Governor-General of India was first published in Punjab Gazette and the Punjab Pre-emption Act (No. I of 1913) came into force. In fact, the respondents witnesses did-not say anything about the existence of custom of pre-emption in the locality what to say of the existence of custom of pre-emption before 1913. The right of pre­emption is a weak right and has to be proved by clear, primary and direct evidence. In this case the respondents have failed to prove by clear evidence that the property in dispute is situated in an old locality and the custom of pre-emption was in existence prior to 14.3.1913. The learned counsel for the petitioner, in this regard, has correctly placed his reliance on Manzoor Hussain us. Allah Ditta (Supra) and Dr. Iqbal Ahmed Chaudhry us. Muhammad Inayat Through Legal Heirs and another (Supra). In the later mentioned judgment, it was held by the Hon'ble Supreme Court that existence of custom of pre-emption is to be proved by the plaintiff from the year 1905, in which the previous law i.e. The Punjab Pre-emption Act 1905, was promulgated, which was superseded by the Punjab Pre-emption Act (No. I of 1913), because the custom which was not in existence during the currency of the Punjab Pre-emption Act 1905, could not be conceivably be held to have existed at the time of commencement of the Punjab Pre­emption Act (No. I of 1913). In regard to the effect of Notification No. 149/L.R. dated 16.6.1941, issued by the Board of Revenue under Section 8(2) of the Punjab Pre-emption Act (No. I of 1913), which has been heavily relied upon by the Courts below in holding that the custom of pre-emption existed in the locality, suffice it to say that the exercise of power under Section 8(2) of the aforesaid Act was not a proof of the existence of custom of pre-emption in the area. In Ch. Abdul Rashid us. Ch. Muhammad Tufail and others (PLD 1992 SC 180), the issue whether the Courts could rely solely, on a Notification of the Government under Section 8(2) of the aforesaid Act excluding a particular area at the time from the application of the Act, in taking the custom of pre-emption to be proved as in existence at the commencement of the Punjab Pre-emption Act .(No. I of 1913), was considered by the Hon'ble Supreme Court and it was held that -

"the exercise of power under sub-section (2) of Section 8 of the Pre­emption Act is not a proof of the existence of pre-emption right in the area. It shows the exercise of the right of exempting in an area ' the exercise of the right of pre-emption, not of its existence.

Secondly, even if it be assumed that it were to show or be a proof of

the existence of the right of pre-emption at the time of the notification that would be irrelevant for the purposes of Section 7, wherein the requirement of time is 'at the commencement of the Pre-emption Act'."

It is thus clear that Notification No. 149/L.R. dated 16.6.1941, was merely-an exercise of power under Section 8(2) of the Punjab Pre-emption Act, 1913, whereunder, the areas falling outside the Circular Road, Lahore, were exempted from the exercise of right of pre-emption. It was not evidence of

1 existence of custom of pre-emption, before 1913, in the areas falling within

I the Circular Road Lahore.

1. In view of the above mentioned, this revision petition is accepted, !the judgments and decrees passed by the Courts below are set aside and the suit of Respondents Nos. 1 to 8/plaintiffs, is dismissed. However, there is no i order as to costs.

(T.A.F.) Revision accepted.

PLJ 2004 Lahore 164

[Rawalpindi Bench Rawalpindi]

Present: abdul shakoor paracha, J.

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD-Petitioner

versus Sh. MUHAMMAD HANIF (deceased) through Legal heirs-Respondents

C.R. No. 599-D of 2001, heard on 9.6.2003. Civil Procedure Code, 1908 (V of 1908)--

—0. XIV, R. 1-Issue in question, however, depicted whole controversy between parties and was correctly framed keeping in view pleadings of parties-No prejudice was stated to have been caused to petitioner by framing of issue in question-No objection was taken before trial Court and also in appeal-Issue in question, was thus, correctly framed and decide by Court below-Appellate Court while deciding appeal was conscious of controversy between parties and had correctly decided appeal keeping in view provision of O.XLI, R. 31 C.P.C.-No interference was, thus warranted in the same. [Pp. 168 & 171] A, B & C

1996 SCMR 669, 1992 CLC 1022; 1985 SCMR 1; 1996 CLC 1987 and PLD 1969 SC 136 ref.

Malik Muhammad Nawaz, Advocate for Petitioner (C.D.A.). Syed Najam-ul-Hassan Kazmi, Advocate for Respondents. Date of hearing. 9.6.2003.

judgment

The dispute relates to the allotment of Plot No. 1-B by the Capital Development Authority, petitioner herein, in favour of Sh. Muhammad Hanif, respondent.

1. Plot No. 8-B, in Fruit and Vegetable Market, Sector 1-11/4 was allotted to respondent Sh. Muhammad Hanif by the C.D.A. in the year, 1983. The same was not available having already been allotted to some-one else. The mistake was realized by the C.D.A. when after depositing the amount of the plot by Sh. Muhammad Hanif the possession was going to be handed over to him, and it transpired that the plot had already been transferred in favour of somebody else. Since the respondent had already deposited the total amount for Plot No. 8-B, therefore, he was offered another Plot No. 13-B, which was not accepted. Some other alternative plots were considered on the request of the respondent but the same were not found actually available at the site. The respondent .requested for allotment of plot in dispute, i.e. No. 1-B but the CDA took the stand that the same is reserved for construction of a Post-Office. After some time, the same Plot No. 1-B was put to auction, which compelled the respondent to bring a suit for declaration and mandatory injunction to the effect that the order/act of the CDA to put the plot in dispute (Plot No. 1-B (Commercial) to open auction is incorrect, based on malafides and void ab-initio as the plaintiff-respondent is entitled to be allotted the plot in dispute (1-B)' in Sector 1-11/4, Vegetable Market, Islamabad as of right and for issuance of a direction to the CDA to allot the said plot to the respondent-plaintiff. A decree for permanent injunction was also sought restraining the petitioner-CDA not to put the plot in dispute to open auction.

2. The suit was resisted by the petitioner. It was contended in the written reply that the respondent-plaintiff had no cause of action, that he had not come to the Court with clean hands, that he was estopped to file the suit as in the year 1983 he was allotted Plot No. 8-B in Sector-1-11/4 and that he paid the amount for the above stated plot but in the year 1986 it transpired that Plot No. 8-B was already allotted to Abdul Rauf and Umar Farooq by the CDA and the allotment has been made erroneously in favour of the respondent; the respondent lodged a complaint with FIA, which took the record of the plot into its possession and that the respondent applied for allotment of Plot No. 1-B and it was agreed by the CDA but the allotment could not be made due to non-availability of the file and pendency of the case. The respondent was offered Plot No. 300 measuring 45 x 20' (100 sqr yards).

3. From the divergent pleadings of the parties, following issues were framed by the learned Civil Judge, Islamabad :--

4. Whether the suit is not proceedable in view of preliminary Objection No. 1 of the written statement ? OPD.

5. Whether the suit is not proceedable in view of preliminary Objection No. 2 of the written statement ? OPD.

6. Whether the suit is not proceedable in view of preliminary Objection No. 3 of the written statement ? OPD.

7. Whether the suit is not proceedable in view of preliminary Objection No. 4 of the written statement ? OPD.

8. Whether the suit is not proceedable in view of preliminary Objection No. 5 of the written statement ? OPD.

9. Whether the suit is not proceedable in view of preliminary Objection No. 6 of the written statement ? OPD.

10. Whether the suit is not proceedable in view of preliminary Objection No. 7 of the written statement ? OPD.

11. Whether the suit is not proceedable in view of preliminary Objection No. 8 of the written statement ? OPD.

12. Whether the suit is not proceedable in view of preliminary Objection No. 9 of the written statement ? OPD.

13. Whether the suit is not proceedable in view of preliminary Objection No. 10 of the written statement ? OPD

14. Whether the suit is not proceedable in view of preliminary Objection No. 11 of the written statement ? OPD.

15. Whether the suit is not proceedable in view of preliminary Objection No, 12 of the written statement ? OPD.

16. Whether the plaintiff is entitled to allotment of Plot No. 1-B.in lieu of 8-B ? if so, on what consideration ? OPP

17. Relief. .

18. The parties led their evidence. Vide judgment dated 16.4.2001 learned Civil Judge, Islamabad decided Issues Nos. 1, 2, 3, 4 in the negative. Issues Nos. 5 and 13 were decided in favour of the respondent while Issues Nos. 6, 7, 8 to 12 were decided in the negative. The learned Judge proceeded to decree the suit of the respondent. The appeal filed by the petitioner was dismissed by the learned Additional District Judge, Islamabad on 11.7.2001 by endorsing the findings on all the issues recorded by the learned trial

Court. While deciding Issue No. 13, the learned Additional District Judge observed :--

"It is also established on record that on the application of the respondent, it was principally agreed that Plot No. 1-B be allotted to him. Gul Hussain PW-1 has admitted that the Legal Branch gave opinion that Plot No. 1-B be allotted to the respondent but this allotment could not be matured due to pendency of the present suit. He admitted contents of office noting on letter Exh. P. 12 as correct which shows that auction of Plot No. 1-B was postponed on the ground that this plot was kept available for allotment to respondent as alternative of Plot No. 8-B."

1. The learned counsel for the petitioner-defendant, inter alia,contends that the respondent-plaintiff was not entitled to the allotment of the Plot No. 1-B as alternative either under any provision of law or contract. Further that the respondent was estopped from, claiming the allotment of Plot No. 1-B as he had already accepted the allotment of Plot No. 13-B. Further it is contended that the appellate Court without adverting to documentary evidence on record decided the appeal in a slip-shod manner and further that the internal nothing of the C.D.A. did not create any right in favour of the respondent unless it was communicated to him in accordance with law. Finally, the learned counsel contends that both the Courts below have not grasped the real controversy between the parties therefore proper issues from the pleadings of the parties were not framed, resultantly the case has been decided by the Courts below by non-reading of evidence on the record. He contends that the judgment of the appellate Court is in violation of Order 41 Rule 31, CPC as it does not contain points for determination or decision thereon or the reasons for the decision. Reliance has been placed on the case reported as Iftikharuddin HaiderGardezi and 9 others vs. Central Bank of India Limited (1996 SCMR 669.) and Jumma Khan vs. Mst. Shamim and 3 others (1992 CLC 1022).

2. On the other hand, the learned counsel for the respondent has defended both the judgments of the trial Court as well as of the appellate Court and contends that the respondent was -entitled for allotment of Plot No. 1-B and allotment of Plot No. 13-B was never accepted by the respondent. Further contends that Plot No. 8-B was erroneously transferred to the respondent by the C.D.A. and the respondent had deposited the requisite amount, as such he was entitled for the transfer of the plot in lieu of Plot No. 8-B. He adds that the plot in dispute, i.e. No. 1-B, was never transferred for construction of the post office. He states that despite taking the stand that the plot in dispute (No. 1-B) was reserved for the post office was put to auction for which the CDA had no right under the law. Further argues that the learned trial Court has correctly framed the issues from the divergent pleadings of the parties keeping in view the pleadings of the parties

and that the petitioner was fully cognizant of the issues which arose out of their pleadings and they had adduced their evidence in respect thereof, and since no prejudice was caused to any of the parties by failure of the Court to frame a proper issue in the suit out of the pleadings of the parties, the judgments of both the Courts below are not liable to be set aside. He placed reliance on the case reported as Mehr Din vs. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1).

1. Before I proceed to decide the case on merits, I may advert to the point taken by the learned counsel for the petitioner that the issues have not been correctly framed by the trial Court from the divergent pleadings of the parties. Respondent's case before the Court is that he is entitled for the allotment of Plot No. 1-B in Sector 1-11/4 (F&V), Islamabad as the same was principally agreed by the CDA, due to wrong allotment of Plot No. 8-B to the respondent by the CDA as the same was allotted to Abdul Rauf and Umar Farooq and due to non-availability of file and pendency of the case with the FIA Plot No. 1-B could not be allotted to the respondent and as such the entitlement of the respondent for the plot in dispute was denied. This controversy has resulted in framing of Issue No. 13 as follows :--

"13. Whether the plaintiff is entitled to allotment of Plot No. 1-B in lieu of Plot No. 8-B ? If so, on what consideration ? OPP "

1. To my mind, the above stated issue has depicted the whole I controversy between the parties and it cannot said that the issue was not

correctly worded or correctly farmed by the learned trial Court keeping in

view the pleadings1 of the parties. Even otherwise, both the parties

I throughout the trial were fully cognizant of the" issue which really arose out

1 of the pleadings of the parties and they had adduced their evidence in respect

" i thereof. The learned counsel has failed to indicate any prejudice which was

I caused to the petitioner/CDA on account of failure of the Court to frame a

i proper issue in the suit. No objection whatsoever was taken during the trial

1 regarding non-framing of the issue. Even this point has not been raised in

the memo of appeal. In ground 'c' of the appeal before the learned District

i Judge, the petitioner has asserted that :--

"(c)-That the learned lower Court has failed to decide the Issue No. 13 according to law and facts of the case."

In case of Mehr Din vs. Dr. Bashir Ahmad Khan and others (1985 SCMR 1), while interpreting Order XIV Rule 2, CPC the Hon'ble Supreme Court has ruled :--

"Issue not happily worded and correctly farmed by Court keeping in view pleadings of parties-Parties, throughout trial were fully cognizant of issue which really arose out of pleadings of parties and they had adduced their evidence in respect thereof-No' prejudice, held, was caused to any of parties by failure of Court to frame a proper issue in suit arising out of pleadings of parties."

This being so, I reject the contention of the learned counsel for the petitioner that correct issues have not been framed from the pleadings of the parties.

1. This brings me to decide whether Plot No. 13-B was allotted to the respondent and the respondent was bound to make payment having already accepted the allotment of said plot, or the respondent is entitled for the allotment of the plot in dispute i.e. Plot No. 1-B in lieu of Plot No, 8-B which was initially allotted to him erroneously. The CD A has authority to dispose of any land under Section 49 of the Capital Development Authority Ordinance, 1960. 'Authority' has been defined in Section 2(b) of the said Ordinance, which reads as under:--

"'Authority' means Capital Development Authority established under Section 4"

1. Sub-clause (2) of Section 4 of the Ordinance ibidreads as under:-

"(2) The Authority shall be a body corporate, having perpetual succession and a common seal, with power, subject to the provisions of this Ordinance, to acquire and hold property, both movable and immovable, and shall by the said name sue and be sued."

The management and affairs of the Authority vests in the Board under Section 5, and the constitution of the Board is made under Section 6 of the Ordinance. Statutory rules and regulations as regards transfer etc. of the State land in terms of Article 260 (c) and 268(7) of the Constitution of the Islamic Republic of Pakistan, 1973 have been declared to be the law for the purposes of Article 173(5) of the Constitution. Therefore, law exists for dealing with the State land within the limits of Capital Territory area' of Islamabad as held in the case reported as M.D. T'ahir, Advocate vs. Federal Government through Secretary, Cabinet Division, Islamabad and another (1996 CLC 1987). In para-7 of the plaint, the plaintiff-respondent asserted that in the Master-plan of the CDA, Plot No. 1-B is never reserved for the post office, but the same is an open plot for restaurant. The CDA Officials in their letter dated 4.10.1994 advised the respondent to give his consent for the Plot No. 13-B and if he has not given the consent, the offer shall stand withdrawn. In reply to the above para No. 7, the CDA in the written statement stated :-

"7. That the plaintiff applied for Plot No. 1-B, 1-11/4 which was principally agreed but due to non-availability of file and pendency of case .with the FIA, the request of the plaintiff was not acceded to."

From the above stated pleadings, it can be concluded that firstly the respondent has been deprived of the plot for the mistake of the CDA, and secondly for the non availability of the file and pendency of the case with the FIA with no fault of the respondent.

1. A reference has been made by the learned counsel for the petitioner to Exh. D/19, letter dated 23.1.1995 written by respondent Sh. Muhammad Hanif in which he accepted the offer of Plot No. 13-B under

protest and the words 'under protest' have been erased. In internal noting of the CDA Exh. P-12 dated 2.2.1991 it has been accepted that the Authority has agreed/approved the allotment of an alternative Plot No. 1-B in Sector I-11/4, in lieu of Plot No. 8-B, Sector 1-11/4 videpara-16, 17 and 24-N of the noting. The Section Officer, Cabinet Division was informed vide page 53 in response to his letter at page 34/Cor of the same noting. Exh. P. 19 is the note dated 28.8.2000 of Faiz Muhammad Chaudhry, Director (Law), in which he endorsed the proposal of the Director EM-II. Here it is advantageous to reproduce para-414 of the noting, which reads as under :--

"414. Reference pre-paras, it is also clarified that Chairman, CDA approved the allotment of Plot No. 1-B to Mr. Muhammad Hanif vide para-17/N. Therefore it is proposed that we allot Plot No. I.B to Mr. Muhammad Hanif and any suitable plot from the vacant plots may be allotted to Postal Authorities."

Para-445, of the same noting (Exh. P. 20) has clinched the issue, which para reads as follows:

"445. In view of the position explained above and to resolve this long outstanding issue, the case may be submitted to the competent authority for or that :--

(a) We may issue allotment letter of Plot No. 1-B to Haji Muhammad Hanif in lieu \of Plot No. 8-B, (having same dimensions) as the allottee has paid the entire Premium about 17 years age.

(b) We may issue allotment letter of Plot No. 421, measuring 20' x 70' to the Postal Authorities in lieu of Plot No. 1-B, as the department has agreed to accept the alternate plot and the entire payment of premium also stands paid."

1. An objection has been raised by the learned counsel for the petitioner that the above stated internal noting is not admissible in evidence and cannot be relied upon which objection is of no substance because I see that no objection whatsoever was raised at the time of production of the documents. It has been held in case reported as Malik Din and another vs. Muhammad Aslam (PLD 1969 SC 136) that if no objection regarding the formal proof of a document is raised at the time of producing the same, the document shall be read in evidence. Section 49-F of the C.D.A. Ordinance deals with the admissibility of the document or entering as evidence, according to which a copy of any receipt, application, plan, notice order or other document or of any entry in a register, in possession of the Authority shall, if duly certified by the legal keeper thereof or other person authorised by the Authority in this behalf be admissible in evidence of the existence of the document or entry, and shall be admitted as evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry would, if produced, have been admissible to prove such matters.

2. The finding on Issue No. 13 on the basis of evidence is correct and the respondent is entitled for the allotment of the plot in dispute, i.e. 1-B, 1-11/4, Islamabad. The C.D.A. is a statutory body and is expected to deal with the citizens fairly, honestly and its all actions should be transparent. The respondent cannot be deprived from the plot simply because erroneously a wrong Plot No. 8-B in Sector 1-11/4 has been allotted to him which was allotted to some other persons and thereafter he was refused the allotment on the ground that the file is with the FIA and is not traceable or that the plot has already been allotted for construction of post office, which has been proved factually incorrect.

3. It is true that under Order 41, Rules 30 and 31 CPC the Court should set out points for determination, record its decision thereon and give reasons for the decision, and the rule laid down in Order 41, Rule 31 CPC is mandatoiy and should be followed to enable the appellate Court to decide the matter in accordance with law. To my mind, the First Appellate Court was conscious of the real issue between the parties and was able to set out points for determination and has recorded the decision thereon and has given valid reasons on the basis of evidence. There is no violation of Order 41 Rule 31, CPC.

Concurrent finding of fact recorded by the competent Court of law on the basis of evidence cannot be interfered with by this Court in exercise of revisional jurisdiction of this Court. Resultantly, this petition fails and is dismissed.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 183

Present: mian muhammad jahangier, J. ZULFIQAR ALI-Petitioner

versus

JUDGE FAMILY COURT-Respondent W.P. No. 11625 of 2002, decided on 5.6.2003. (i)

Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--

—S. 2(v)(c)-Physical weakness of husband as a ground for dissolution of marriage taken by wife is not provided anywhere as a ground—Physical weakness does not reflect impotency, therefore, ground of impotency as given in S. 2(v)(c) of the Dissolution of Muslim Marriages Act 1939, was not available to wife and marriage of spouses could not dissolved on such ground. [P. 186] B

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

—S. 5 & Sched.--Dissolution of marriage on the ground of &/iM/a-Plaintiff in her plaint had although alleged cruelty and gave evidence to support such claim but she could not mention any specific habit of husband, or any incident in which he gave her physical or mental torture—Mere fact that wife stated that she was not prepared at all to live with her husband would not be sufficient to dissolve marriage on the ground of khula therefore, in such case she is bound to bring on record some reasons for hatred developed in her mind-Reason for hatred can however, be collected from pleadings of parties, evidence on record and attentive hearing of parties by the Court itself during reconciliation proceedings.

[P. 186] A

1985 CLC 2539; NLR 1986 Civil.87 ref.

Mr. M.D. Tahir, Advocate for Petitioner. Date of hearing : 5.6.2003.

order

By this order, this Writ Petition Bearing No. 11625-2002 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by Zulfiqar Ali son of Bashir Ahmad, Caste Ansari, resident of Kot Doaba, Tehsil Shakar Garh, District Narowal, petitioner, against the Judgment passed by the Judge Family Court, Shakkargarh, District Narowal dated 3.4.2002, is being disposed of, whereby the marriage of the petitioner with Respondent No. 2 was dissolved on the basis of Khula and the suit filed by the said respondent was decreed.

Respondent No. 2 did not appear despite efforts therefore, she was proceeded against exparte vide order dated 26.5.2003 passed by this Court.

1. Some relevant facts for the disposal of this petition are that Zulfiqar Ahmad petitioner was married with Mst. Nasim Akhtar respondent on 15.4.1999. Mst. Nasim Akhtar filed the suit for dissolution of marriage before the learned Judge Family Court at Sheik'hupura alleging therein that the conduct of the defendant (present petitioner) was never cordial towards her but despite this she remained in the house of the defendant for two years; that the defendant was physically weak and this fact was not told to her earlier which amounts to fraud played with her and since the defendant (present petitioner) is a vagabond, therefore, she has developed hatred against him and not prepared to live with him. She further alleged that about two or three months earlier the defendant himself turned her out from the house and now she is entitled for divorce on the basis of Khula and that no maintenance was paid to her, therefore she has abhorrence against the petitioner. This suit was filed on 31.7.2001 before the learned Judge Family Court.

2. The allegations as mentioned above were denied by Zulfiqar Ali petitioner/defendant in his written statement. He offered that the learned Family Court might get him medically examined and alleged that the mother of the plaintiff did not allow her to live with him. He had also filed a suit for restitution of conjugal rights.

3. Mst. Nasim Akhtar also filed a suit for recovery of dowry articles. Therefore, the consolidated issues were framed which were as under :--

4. Whether a decree of dissolution of marriage could be passed in favour of the plaintiff under the facts and circumstances mentioned in the plaint including the ground of Khula ? If so on what terms ? OPP.

5. Whether the plaintiff is entitled for the recovery of her dowry items or in alternative its price of sum of Rs. 50,000/~? OPP.

6. Whether defendant Zulfiqar Ahmed (plaintiff) of family case No. 111/2001 is entitled to get a decree or restitution of conjugal rights as prayed for by him ? OPD.

7. Whether the parties have no cause of action and locus standiagainst each other ? OPD parties.

8. Whether parties are estopped by their words and conduct to file their respective suits ? OP Parties Relief.

9. Evidence of the parties was recorded. Mst. Nasim Akhtar (PW-1) Abdul Ghafoor (PW-2) had appeared for Nasim Akhtar, plaintiff. Zulfiqar Ali (DW-1) Nazir Ahmad (DW-2) and Muhammad Nasar (DW-3) appeared for Zulfiqar Ali (defendant).

10. While disposing of Issue No. 1, the evidence of the parties was examined and it was observed that it was noticeable that although the plaintiff had come to seek Khula from the defendant on the ground of hatred, etc. but she and her witnesses had not stated any reason for such a hatred against the defendant and when the plaintiff alleged that she was tortured by the defendant her witness had not supported her on this point and even no other documentary evidence was produced to prove this fact.

11. Anyhow, right of separation however, has been recognized in Islam, though it has considered not to be a good thing. Therefore, when the plaintiff is adamant in claiming divorce on the basis of Khula^ their peaceful living in harmony is out of question. As a consequence of it, the issue was decided against the petitioner/defendant and the marriage was dissolved on the basis of Khula subject to payment of an amount of Rs. 10,000/- as Zar-i-'Khula vide Judgment dated 3.4.2002.

12. Learned Counsel for the petitioner/defendant argued that the suit for dissolution of marriage had been decreed on the ground of Khula,when the respondent/plaintiff had failed to prove all the grounds, whereas the solemn duty of the Court is to collect facts and circumstances to arrive at judicious satisfaction to ascertain the entitlement of the wife to Khula, but no such exercise was under taken by the learned Family Court, even no reason was advanced by the learned Family Court in the Judgment that as to why it was not possible for the parties to live together as husband and wife. He further argued that so far as the responsibility of the petitioner was concerned, he performed all his duties, therefore, no ground was existed to grant Khula to the respondent as the wife cannot make her own conduct, the ground of dissolution of marriage on the basis of Khula. He referred to the case titled as Dr. Akhlaq versus Kishwar Sultana, reported in PLD 1983 S.C. 169 in support of his arguments.

8A. There is no representation on behalf of Mst, Nasim Akhtar, respondent who was proceeded against ex-parte vide order of this Court dated 26.5.2003. Anyhow, the point for examination is as to whether the learned Judge Family Court has dissolved the marriage-tie on the basis of

Khula with any sound reason and that as to whether the availability of some sound material/facts and circumstances on the record is essential for satisfaction of judicious conscience of the Court or that without justification the Family Court is authorised to exercise its discretion without bringing on record any plausible reason. Before examining the above mentioned propositions it may be mentioned here that the facts and circumstances of each case differ from the other one, but mere fact that a wife states that she is not prepared at all to live with her husband will not be sufficient to dissolve the marriage on ground of Khula, therefore, in each case she is bound to bring on record some reasons .for hatred developed in her mind. The reason for hatred may be collected from the pleadings of the parties, i evidence and attentive hearing of the parties by the Judge himself during

I reconciliation proceedings.

1. Now here in the instant case Mst. Nasim Akhtar respondent alleged in the plaint and also in the evidence that the conduct of her husband was cruel towards her but she could not mention any specific habit of her [husband, or any incident in which he gave her physical or mental torture. The next reason which she advanced was that her husband was physically weak and this fact was not told to her earlier a's such fraud was committed with her.

The grounds for dissolution of marriage have been expressly provided in Sec. 2 of Dissolution of Muslim Marriages Act, 1939, out of which the ground in Clause-'V of the above mentioned section is as under :--

(v) that the husband was impotent at the time of marriage and continues to be so.

While proviso 'C' to Section-2 of the Act ibid is as under :--

(a) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground."

It is obvious that the ground for dissolution of marriage under this head is the impotency of the husband. The physical weakness is not provided anywhere as a ground. Impotency means that the husband is not in a position to perform the sexual intercourse while the physical weakness does not reflect on impotency. In this way the ground of impotency as given in Clause-'c' was not available to Mst. Nasim Akhtar respondent, despite this the petitioner offered in his written statement and also in evidence that he may be medically examined, but despite this no offer was made by the Court.

Even otherwise it was no ground. Then the question arises as to why such a ground was taken by the wife of the petitioner. Certainly it is due to defective drafting of the pleadings on the part of the counsel who prepared the plaint or any such ground may reflect on the character of the woman, because how she can claim that before performance of marriage her parents or some body else or any family member should ensure that her husband is physically strong.

The contents of Para No. 2 of the plaint are not a tradition in our Muslim Culture and Society, what to speak of physical weakness, it has been seen in our society that a woman does not declare even after marriage for many years that her husband is an impotent person and the woman lives in the house of her husband like nobel lady and for this reason it has been observed above that the learned Family Court must collect the reasons for satisfaction of the Judicious Conscience of the Court that there are grounds for dissolving the marriage on the basis of Khula otherwise if the discretion is exercised with the close eyes, this practice on the part of the Family Courts shall encourage the stereotype pleadings written by the experts and tutored dislogue to express the hatred against the husband, at least such like a lady reflects on her character indirectly and also because of her negative conduct she should not be entitled for dissolution of marriage on the basis of Khula.

The exercise of discretion would require to see the welfare of the minors and many other things and last of all only one thing which is essentially required is the satisfaction of the judicious Conscience of the Court. My views are supported by the cases reported in, Jindan versus Rahim Bakhsh, 1985 CLC 2539 (Lahore) and Aali versus Addl. District Judge-I, Quetta, etc. NLR 1986 Civil 87.

1. Keeping in view the circumstances prevailing in the Family Courts i.e. on the basis of my experience as a Judge for the last twenty three years I am inclined to write here that the disposal of the family matters as given in schedule attached to Family Courts Act, 1964 such as :--

SCHEDULE PART-I

(1) Dissolution of marriage, including Khula,(2) Dower, (3) Maintenance, (4) Restitution of Conjugal Rights, (5) Custody of Children "and the visitation right of parents to meet them, (6) Guardianship, (7) Jactitation of Marriage, (8) Dowry, and (9) Personal Property and belongings of a wife, is such exercise which is unnecessarily attached with the Civil Courts, involving in­convenience and discomfort process faced by the litigants of both sides, otherwise, such like matters can be easily disposed of by suitable and

selected Imam of the Mosque of a Union Council who performs the nikah. If he is competent to solemnize the marriage then he is equally competent to dissolve the same and also to dispose of the other connected matters even including the custody of the minors. He may be paid honorarium for his services which in other words would provide financial assistance to the poor fellow. Even otherwise this exercise would involve the religious scholars in performing duties and their completion while sitting in the Mosque of the Union Councils. This exercise would eliminate the evils, moral corruption and difficulties which are faced by the ladies during their appearance in the Courts. Moreover, in this way there would be no need of any lengthy legal work and research on family laws as the Imam of the Mosque would decide the family cases in the light of the principles of Holy Quran, Sunnah and Fiqah. Anyhow this concept may be deeply examined by the law making authorities, therefore, copy of this order shall be sent to Federal Ministry of Law and Parliamentary Affairs Department, through proper channel.

1. Since the observation of the learned trial Court in the instant case that the respondent is not willing to live with the petitioner/defendant at any cost and that peaceful living in harmony is out of question between the parties, therefore, the Judgment passed by the.Judge Family Court dated 3.4.2002 is maintained, however, with this direction that in stead of Rs. 10,000/- the amount of Zar-i-Khula to be paid-by the respondent to the petitioner/defendant, would be Rs. 40,000/- and in future the principles as discussed above shall be followed for judicious satisfaction of conscience of the Court.

This petition stands disposed of. (T.A.F.) Order accordingly.

PLJ 2004 Lahore 188

[Rawalpindi Bench Rawalpindi]

Present: tanvir bashir ansari, J. Mst. ZUBEDA BEGUM-Appellant

versus Mst. SAT BHARAI (deceased) through Legal Representatives-Respondents

R.S.A. No. 38 of 1982, heard on 20.5.2003. Specific Relief Act, 1877 (I of 1877)--

—S. 39-Civil Procedure Code (V of 1908), O.VI, R. 17 & S. 100-Suit for cancellation of sale deed-Plaintiff herself claimed that she had purchased property in question through sale-deed but Trial Court found that seller had no title to sell the same and dismissed suit-Defendant's plea of title was also not accepted by trial Court-Plaintiffs in First Appellate Court took plea that vendor being legal heir of original owner was entitled to execute such sale-deed-Appellate Court did not consider such plea-High Court during second appeal on the basis of application filed by plaintiffs for amendment of plaint to include their plea of competency of vendor to execute sale-deed, accepted such plea and, remanded case to First Appellate Court to decide plea of plaintiffs in respect of right of vendor as the only heir of original owner and to decide the matter on consideration of such plea in accordance with law within specified period. [P. 192] A & B

Sh. Zamir Hussain, Advocate for Appellant.

Mr. Muhammad Munir Peracha and Mrs. Zahida Ameen, Advocates for Respondents.

Date of hearing : 20.5.2003.

judgment

The appellant Mst.Zubeda Begum filed a suit under Section 39 Specific Relief Act for cancellation of a sale-deed in favour of the respondent with consequential relief for possession of the shop in dispute on 1.9.1973. It was contended that the respondent was initially inducted as a tenant. However during the proceedings before the Rent Controller which were initiated by the appellant/plaintiff, the respondent claimed ownership on the basis of a sale-deed in consideration of Rs. 99/- allegedly executed in 1944. JThe plaintiff alleged that the said sale-deed was a forged document and was liable to be delivered up and cancelled. The plaintiff herself claimed title through a registered sale-deed executed on 6.1.1956 by one Sheikh Muhammad Ismail in her favour. The respondent contested the suit on the plea that she had purchased the shop in question from Mst Rahiman wife of Muhammad Ibrahim for a consideration of Rs. 99/- in 1944. It was submitted that the plaintiff was not an owner of the suit shop.

1. From the divergent pleadings of the parties the learned trial Court framed the following issues :--

ISSUES

1. Whether the plaintiff is the owner of the property in dispute ?

2. Whether the defendant is in possession of the disputed shop since 1944, as owner ?

3. Whether the suit is time-barred ?

4. Whether the defendant is in adverse possession of the disputed shop?

5. Whether the suit is not maintainable in its present form ?

6. Whether the suit is counter-blast to save the plaintiff from the proceedings under Section 476 Cr.P.C.

7. Whether the plaintiff is entitled to the decree prayed for ?

8. Relief.

9. After perusing the record and appreciating the evidence, the learned trial Court dismissed the suit of "the appellant vide judgment and decree dated 22.1.1978. The learned trial Court decided Issue No. 1 against the plaintiff and found that she has not been able to prove her lawful ownership as claimed by her under the registered sale-deed dated 6.1.1956. While coming to this conclusion, the learned trial Court found that the original owner of the shop in question was one Sheikh Muhammad Ibrahim who had two wives namely Mst. Rasoolan and Mst. Rahiman. Mst.Rasoolan was the mother of Muhammad Ismail. After the death of Mst. Rasoolan, Muhammad Ibrahim alienated the shop in question alongwith four other shops in favour of Mst. Rahiman vide Ex. D.2. Relying upon this alienation, the learned trial Court found that Muhammad Ismail, after the death of his father Muhammad Ibrahim had no title or right to transfer the suit shop in favour of the plaintiff through the registered sale-deed dated 6.1.1956. Although the suit of the appellant/plaintiff was dismissed the claim of the defendant/respondent that she was the owner of the suit shop through the sale-deed Ex. D. 1, was also not proved. According to finding of the trial Court, Ex. D. 1. showing the sale in favour of the respondent from Mst.Rahiman was held to be a forged document.

10. The cumulative effect of the judgment and decree dated 22.1.1978 of the trial Court is that title of neither party to the suit was found established.

11. While the appellant preferred an appeal against the said judgment and decree, Mst. Satbharai respondent neither filed an appeal nor filed any cross-objection against the adverse findings recorded against her by the trial Court. The learned appellate Court re-appraised the entire evidence on the record its concurred with the findings of the trial Court that as Muhammad Ibrahim had alienated all his five shops in favour of Mst.Rahiman through Ex. D.2 (registered sale-deed dated 5.5.1937) his son Muhammad Ismail was not left with any right or title in the suit property which he could alienate in favour of the appellant/plaintiff through the sale- deed dated 6.1.1956. The appeal was dismissed vide judgment and decree dated 6.10.1981.

12. It may be mentioned here that the appellant for the first time raised a plea before the learned appellate Court that Muhammad Ismail who had sold the suit shop in favour of the appellant was entitled to do so as he fell within the class of distant kindred of Mst. Rahiman being the sister's son

of the said Mst. Rahiman. He claimed ownership as the only surviving heir of the said Mst. Rahiman. This plea did not find favour with the learned First Appellate Court for the reason that such a ground was not taken in the plaint, no issue was struck in this behalf and obviously no evidence was led to this effect. It was further observed that in the judgments Ex. D. 3 and Ex. D. 4, reference has been made to one Mst. Ferozan Bibi as sister of 'Mst.Rahiman. This Ferozan Bibi is also alleged to have appeared as a witness DW.l in the ejectment proceedings commencing with the filing of Suit No. 262/1958 titled Mst. Zubeda Begum vs. Mst. Satbharai. The learned appellate Court presumed that Muhammad Ismail could be the son from Mst. Ferozan.

1. It was in this view of the matter, that the learned First Appellate Court did not consider it appropriate to consider this version of the appellant that Muhammad Ismail was a legal heir of Mst. Rahiman.

2. The present Regular Second Appeal was admitted to regular hearing on 12.11.1989 mainly on the ground that Muhammad Ismail the predecessor-in-interest of the appellant was in any event the legal heir of Mst. Rahiman, being the real sister's son and was thus, entitled to alienate the suit property in favour of the appellant.

3. Sheikh Zamir Hussain, Advocate appearing for appellant has contended that it was incumbent upon the learned First Appellate Court to have considered this plea of ownership of Muhammad Ismail in order to completely adjudicate the controversy between the parties. According to him even if this plea was not taken in the plaint, nothing prevented the appellant to urge this point before the appellate Court which could allow the suitable amendment in the plaint and take further necessary proceedings in the matter to do complete justice between the parties. In fact, the appellant states to have filed an application before this Court being C.M. No. 973-C-82 which is to this effect. It is further contended that there was nothing on the record to suggest that Muhammad Ismail was not the son of Mst. Rasoolan. The learned First Appellate Court fell in error in presuming that there was some confusion relating to the identity of mother of Muhammad Ismail. The mention of Mst. Ferozan in Ex. D. 3 and Ex. D.4 as a sister of Mst. Rahiman could not take away from the fact that Mst. Rasoolan was another sister of Mst. Rahiman or that Muhammad Ismail was a son from Mst.Rasoolan.

4. On the other hand, the learned counsel for respondent submitted that the appellant was the plaintiff in the suit who could only succeed upon the strength of her own case. According to the learned counsel, once Ex. D. 2 was proved whereby Muhammad Ibrahim sold five shops to Mst. Rahiman in 1937, nothing was left for Muhammad Ismail to inherit from Muhammad Ibrahim. It is further contended that the appellant could not be allowed to take the plea that Muhammad Ismail was a legal heir of Mst. Rahiman as no such plea was taken at any time before the trial Court.

5. Arguments have been heard and record perused.

6. The trial Court had answered Issue No. 1 against the appellant/ plaintiff mainly on the ground that her predecessor-in-interest namely Muhammad Ismail had no transferable title in the suit property which he could alienate in favour of the appellant through the registered sale-deed dated 6.1.1956. According to the trial Court, Muhammad Ibrahim had alienated the suit shop alongwith other shops through a registered sale-deed dated 5.5.1937 in favour of his wife Mst. Rahiman. While non-suiting the appellant the learned trial Court also found Issue No. 2 against the respondent where the sale-deed Ex. D. 1 was found to be a forged document.

7. Although it is correct that the appellant/plaintiff did not take [the plea of entitlement of Muhammad Ismail as an heir of Mst. Rahiman in the plaint, yet this plea was taken during the course of the appeal before the learned First Appellate Court. In all fairness the learned appellate Court

iought to have viewed this plea more seriously as non-consideration of this splea would not adequately conclude the controversy between the parties. It is not on the record if any application for amendment was made before the learned First Appellate Court. However, such an application has been filed during the course of instant Regular Second Appeal on 7.11.1992 which is present on the record as C.M. No. 973/C/92.

1. It also goes without saying that the respondent did not prefer any appeal against the adverse findings recorded by the trial Court whereby her claim to the suit property through Ex. D.I. was negated. She did not even file cross-objections when the appellant preferred her appeal. It shall be against the principle of administration of justice and also against public policy to leave a property without a lawful owner by not deciding a plea available to a party although raised at a belated stage.

2. In view of what has been discussed above, this Regular Second Appeal is accepted and the judgment and decree dated 6.10.1981 passed by the appellate Court is set aside and the case is remanded to the learned First Appellate Court to decide the plea of the appellant in respect of the right claimed by Muhammad Ismail as the only surviving heir of 'Mst. Rahiman. In this context it shall be in the interest of justice to allow the application under Order 6 Rule 17 CPC filed by the appellant in this Court (C.M. 973-C-1992) to enable to the appellant to incorporate the proposed amendment in the plaint. The learned appellate Court shall confine itself to this plea of the appellant and its possible effect upon the sale-deed executed by Muhammad ilsmail in favour of the appellant. As this is an old matter, the learned appellate Court shall decide the appeal afresh in terms of the observations herein before contained and to the extent specified herein within 6 months. Parties to bear their own costs.

(A.A.) Case remanded.

PLJ 2004 Lahore 193

Present: CH. IJAZ AHMAD, J.­MUHAMMAD ANWAR-Petitioner

versus

MUHAMMAD RAMZAN-Respondent C.R. No. 1959 of 1999, heard on 24.6.2003. (i)

Transfer of Property Act, 1882 (IV of 1882)--

—S. 54-Payment of sale consideration-Petitioners did not mention single word qua payment/consideration in examination-in-chief or in cross- examination-Judgments and decrees of both courts below, non-suiting petitioner were, thus, in accordance with law—Petitioner had to succeed on basis of evidence produced by him and could not take benefit of weaknesses in evidence of respondent-Re-appraisal of evidence does not justify remand of case—Petitioner having failed to prove with cogent evidence that sale in question, was executed between original owner and petitioner Courts below had correctly given concurrent findings of fact against him which do not warrant interference by High Court in revisional jurisdiction. [P. 200] D & E

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 42--Mutation proceedings are intended primarily for fiscal purposes for collection of land revenue and they are by no means judicial proceedings in which right and title of property is to be determined-Mutation proceedings are summary in nature and entries thereof, are admissible under Ait. 49 of Qanun-e-Shahadat Order, 1984. [P. 199] A

(iii) West Pakistan Land Revenue Act, 1967 (XVII ol 1967)--

—S. 42-Transaction embodied in mutation-Onus of proof of a transaction embodied in mutation is upon beneficiary of such mutation—Rebuttable presumption in favour of party in whose favour mutation was effected coupled with the fact that burden of proof lies on the-beneficiary, in whose favour entiy exists and, not on a party challenging correctness of such entries-Mere mutation does neither create any right or extinguish existing right unless transaction/facts on basis if which the same had been sanctioned of denied were independently proved to have existed.

[P. 1991 B & C

PLD 1979 SC 890; PLD 1977 Revenue 25; 1995 CLC 695; 1981 SCMR 1181;

1988 SCMR 74; 1996 SCMR 1380: PLD 1994 Karachi 106: 1991 MLD

2707; 2003 SCMR 41; PLD 1995 SC 351; 53 LA. 220; AIR 1920 P.C. 46;

AIR 1930 P.C. 93; AIR 1948 P.C. 210; PLD 1965 Lahore 472: 1992 SCMR

1832; PLD 1964 Peshawar 159; NLR 1995 Revenue 26; NLR 1992 CLJ

405; 1993 SCMR 216; 1997 SCMR 1849 and PLD 2001 Lahore 9 ref.

Mr. S. M. Masud, Advocate for Petitioner.

M/s. A.R. Shaukat & Mr. Mehdi Khan Chohan, Advocates for Respondents.

Date of hearing : 24.6.2003.

judgment

I intend to decide the following revision petitions by one consolidated judgment having similar facts and law arising out of common judgments of both the Courts below :--

1. C.R. No. 1959/1999

2. C.R. No. 1960/1999

3. The brief facts out of which the aforesaid revision petitions arise are that Ibrahim predecessor-in-interest of the parties owned land measuring 78 Kanals16 Marias. After the death of the original owner the land in question was inherited by his three sons namely Muhammad Yousaf, Muhammad Ramzan and Muhammad Siddiq in equal shares measuring 26 Kanals 5 Marias. Subsequently, Muhammad Yousaf died and his land was inherited by his legal heirs namely Muhammad Anwar, Muhammad Kamil, Bashiran (widow) and Rehana (daughter). Muhammad Siddiq died issueless on 13.9.1993. Mutation of inheritance was sanctioned in favour of Muhammad Ramzan his real brother vide Mutation No. 5802 which was sanctioned by the Revenue Officer on 26.9.1993. Muhammad Ramzan had sold 24 Kanals out of 26 Kanals 5 Marias inherited by him from his late father to Muhammad Kamil younger brother of the petitioner. Muhammad Siddiq allegedly sold the land to Muhammad Anwar petitioner for consideration of Rs. 185,OOO/- vide Mutation No. 5317 which was sanctioned by the Revenue Officer on 1.4.1992 Muhammad Anwar filed suit for declaration with consequential relief before the Civil Judge Toba Tek Singh on 9.1.1994 against the present respondent. The contents of the plaint reveal that sale had already been effected in favour of Muhammad Anwar qua the land of Muhammad Siddiq, therefore, inheritance Mutation No. 5802 sanctioned in favour of the respondent on 26.9.1993 be declared illegal, based on fraud and is liable to be cancelled. Muhammad Ramzan respondent also filed suit for declaration .with consequential, relief against Muhammad Anwar before the Civil Judge 1st Class, Toba Tek Singh. The contents of the plaint reveal that Mutation No. 5317 was secured by Muhammad Anwar by fraud and misrepresentation, without consideration. Therefore, the same is liable to be cancelled. Both the suits were consolidated. Both the petitioner and respondent filed written statements in the aforesaid suits and controverted the allegations levelled in the plaints. Out of the pleadings of the parties the trial Court framed the following issues :--

4. Whether plaintiff is owner in possession of the disputed land vide Mutation No. 5317 dated 1.4.1992 and Mutation No. 5802

dated 26.9.1993 is wrong, illegal, based on fraud and is liable to be cancelled ? OPP

1. Whether plaintiff has got no cause of action and locus standi to institute the suit? OPD

2. Whether plaintiff is estopped by his words and conduct to institute this suit ? OPD

3. Whether this Court has no jurisdiction to entertain this suit ? OPD

4. Whether suit has been instituted only to harass the defendant, if so, then whether defendant is entitled to special costs ? OPD

5. Whether inheritance Mutation No. 5802 dated 26.9.1993 regarding the inheritance of Muhammad Siddiq was rightly sanctioned in favour of Muhammad Ramzan, if so, then whether Mutation No. 5318 dated .1.4.1992 of 26 Kanals 5 Marias,land mentioned in rival suit is wrong, illegal, based on fraud, void and is inoperative qua the rights of the plaintiff and is liable to be cancelled ? OPD

6. If Issue No. 6 is proved, then whether Muhammad Ramzan is entitled to decree for declaration as prayed for by him in his counter suit? OPD

S. Whether Muhammad Ramzan has got no cause of action and locus standi to institute this rival suit ? OPP

1. Whether rival suit has not been properly valued for the purposes of Court fee and jurisdiction, if so, then what is its proper valuation for both purposes and its effect ? OPP

2. Whether rival suit is not maintainable in its present form? OPP

3. Whether rival suit has been instituted only to harass the plaintiff Muhammad Anwar, if so, then whether Muhammad Anwar is entitled to the grant of special costs ? OPD

4. Relief.

The learned trial Court decreed the suit of the respondent and dismissed the suit of the petitioner vide consolidated judgment and decree dated 17.5.1995. ^The petitioner being aggrieved filed two appeals before the Additional District Judge Toba Tek Singh who decided the appeals by one consolidated judgment and decree dated 18.11.1999 and dismissed both the appeals of the petitioner. Hence the aforesaid revision petitions.

1. Learned counsel of the petitioner submits that one of the grounds for non-suiting the petitioner is that the petitioner did not appear in witness box which is not in accordance with record as the petitioner appeared before the trial Court and the trial Court recorded the better statement of the petitioner. He further submits that it is the duty and obligation of the First Appellate Court to remand the case to trial Court to provide opportunity to the petitioner to appear in the witness box as per principle laid down by the Honourable Supreme Court in judgment dated 11.1.1994 in Civil Appeal No. 431 of 1992. He further submits that mutation of sale was sanctioned by the Revenue Officer in favour of the petitioner in Jalsa-e-Aam. Therefore, presumption of truth is attached to the mutation of sale in question and both the Courts below erred in law to decide the case against the petitioner" without adverting to this aspect of the case in its true perspective. He further submits that both the Courts below decided the case against the petitioner in violation of law laid down by the superior Courts in the following judgments:- '

Abdul Ahad and others vs. Roshan Din and others (PLD 1979 S.C. 890).

The State versus All Ahmad (PLD 1977 Revenue 25).

He further submits that petitioner is in possession of the land in question but this fact was not considered by both the Courts below. He further submits that the petitioner is living at Lahore. Therefore, he appointed Muhammad Tariq as special attorney to appear before the trial Court. Muhammad Tariq appeared before the trial Court and proved the contents of the aforesaid mutation of sale. He further submits that both the Courts below decided the case against the petitioner by misreading and non-reading of the record. He further submits that original owner remained with the petitioner, therefore, sale mutation could be considered as gift made by original owner in favour of the petitioner. He further submits that Muhammad Siddiq did not challenge the vires of the sale mutation in his life time. He survived after the sanction of mutation for one year and four months, 4. Learned counsel of the respondent submit that mutation of sale was not sanctioned by the Revenue Officer within the prescribed period under the provisions of the Punjab Land Revenue Act, 1967. Therefore, it was rightly held by both the Courts below that sale mutation was not genuine. In support of their contention they relied upon the following judgments :--

Arbab Jamshed Ahmad vs. Ghazan Khan and others (1995 CLC 695).

Muhammad Raft etc. us. Additional Commissioner Revenue. 'Sargodha etc. (1981 SCMR 1181).

Ashfaq Khalid and others vs. Muhammad Hanif (1988 SCMR 74).

They further submit that it is the duty and obligation of the petitioner to prove the mutation of sale that the mutation was genuine. As the petitioner relied upon the mutation of sale, therefore, the burden to prove the mutation is on the petitioner but the petitioner filed to prove bona fide or otherwise genuineness of the sale mutation. Therefore, judgments of both the Courts below are in accordance with the law laid duwn in Muhammad Subhan and others us. Mst. Biiqees Begum through legal heirs (PLD 1994 Karachi 106). They further submit that petitioner failed to produce Revenue Officer and revenue official to prove the contents of the sale mutation. Therefore, both the Courts below were justified to decide the case against the petitioner. They further submit that mutation alone could not create right in favour of the petitioner unless and until the petitioner has proved that sale price was paid by the petitioner to the original owner. In support of their contention they relied upon the following judgments :--

Arbab Jarnshcd Ahmad us. Ghazan Khan and others (1995 CLC 695?.

Tooti Gul and others us. Irfanuddin (1996 SCMR L'586).

On the basis of the judgments of the superior Courts learned counsel of the respondent submit that it is the duty of the petitioner to prove on record that the petitioner had paid the consideration of sale to the original owner but the petitioner failed to prove the consideration. Therefore, sale was not completed in terms of the provisions of law and the principles laid down by the superior Courts in the aforesaid judgments. They further submit that Muhammad Ramzan P.W. specifically mentioned in cross-examination that Tfo such consideration was paid to Muhammad Siddiq in his presence. Similarly PW.2 admitted in cross-examination that no sale price was paid or bargain was struck in his presence. PW.3 also did not state in his examination-in-chief that sale consideration was paid in his presence. Therefore, petitioners failed to prove on record that sale consideration was paid by the petitioner to the original owner. They further submit that sale Mutation No. 5317 was sanctioned in favour of the petitioner in view of Rapt No. 166. The petitioner failed to bring on record said Rapt No. 166 and also failed to produce revenue officer/official to prove the contents of the rapt and mutation. Therefore, both the Courts below were justified to decide the case against the petitioner. They further submit that sale mutation was procured by the petitioner to debar the respondent from their share in inheritance of original owner Muhammad Siddiq. In support of their contention they relied upon the followingjudgments :--

BarkatAli vs. Mst. Barkat Bibi and another (1991 MLD-2707). Muhammad Yaqub vs. Feroze Khan (2003 SCMR 41).

They further submit that it is the duty and obligation of the petitioner to prove his case on the basis of his evidence in terms of the pleadings and not on the basis of weaknesses of the respondent. In support of their contention they relied upon Mian Iqbal Mahmood Banday vs. Muhammad Sadiq (PLD 1995 S.C. 351). They further urge that in case the observation of the First Appellate Court to the extent of non-appearance of the petitioner be excluded from consideration even then there is sufficient material on the record to justify the findings of the Courts below. Both the Courts below have given concurrent findings of fact against the petitioner after proper appreciation of evidence. Learned counsel of the petitioner failed to point out any piece of evidence which was mis-read or non-read by the Courts below. The trial Court has given finding of fact against the petitioner that mutation of sale was not sanctioned in Jalsa-e-Aam. The same was not disturbed by the First Appellate Court.

1. Learned counsel of the petitioner in rebuttal submits that mutation was sanctioned in Jalsa-e-Aam as is evident from the back side of the mutation which is at page-85 of the file. He further submits that mutation was entered by the Revenue Officer at the instance of the original owner. Thereafter the mutation was not sanction by the Revenue Officer. As such the petitioner could not be penalized by the inaction of the public functionaries. He further submits that suit of the respondent was not maintainable as the respondent did not claim possession in the prayer clause of the plaint. ........

2. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

3. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties :--

"In support of his contention the appellant has examined two witnesses. He himself failed to appear in the wiiness-box for the reasons best known to him instead he has examined his special attorney. The non-appearance of the appellant/plaintiff in the witness-box would be strongest possible circumstances going to discredit the truth of case. Perhaps he has no courage to face the cross-examination. In these circumstances an adverse inference could be drawn against the appellant. The appellant/plaintiff is not strong and sufficient to prove the sale transaction in dispute.(Underlining is mine).

The First Appellate Court after the above portion decided the appeal against the petitioner after appreciation of evidence on record and approved the findings of the trial Court. The question for determination is that in case the

underlined finding/observation of the first appellate Court is ignored or not admissible in evidence and not in accordance with law laid down by the Honourable Supreme Court in the aforesaid judgment, whether the other reasoning to uphold the judgment of First Appellate Court is sustainable in the eyes of law or not. It is settled principle of law that the mutation proceedings are intended primarily for fiscal purposes for the collection of land revenues and they are by no means a'judicial proceedings in which the right and title in the property is determined. In arriving to this conclusion I am fortified,by the law laid down in Nurnan Singh and others's case (53 IA 220). Meaning thereby the nature of mutation proceedings are summary in nature and intended to keep record of collection of land revenue. These are made under Section 42 of the Land Revenue Act and are admissible under Section 35 of Evidence Act/Article 49 of Qanun-e-Shahadat Order, 1984. The nature and evidentiary value of these entries had engaged the attention of superior Judiciary as back as in 1920 when the Privy Council held so in Vagheshar Bakhsh Singh's case (AIR 1920 Privy Council 46). The aforesaid view was approved by the superior Courts in the following judgments

1. G.N. Gabai's case (AIR 1930Privy Council 93).

2. Gurunathar's case (AIR 1948 Privy Council 2.10).

3. Muhammad and others vs. Sardal (PLD 1965 Lahore 472).

4. Hakim Khan's case (1992 SCMR 1832).

The ratio of the aforesaid judgments is that it is for the party who relies upon these entries to prove the admission in consonance with the principles of Evidence Act which are applicable to prove admissions. The onus of proof of a transaction embodied in mutation is essentially upon the beneficiary of the mutation. It is also settled principle of law that rebuttable presumption in favour of the party in whose favour mutation effected coupled with the fact that burden of proof lies on the party as mentioned above, in whose favour entry exists and not a party challenging correctness of such entries as per law laid down in Abdul Jalil's case (PLD 1964 Peshawar 159). The aforesaid proposition of law is also supported by the law laid down in Nabi Sarwar's case (NLR 1995'Revenue 26). It is also settled principle of law that mere mutation does neither create any right or extinguish existing right unless the transactions/facts on the basis of which the same has been sanctioned if denied are independently proved to have existed. I am also fortified by the law down by this Court in Ghulam Muhammad's case (NLR 1992 CLJ 405). The word sale is defined by this Court in M. Malik vs. Mst. Razia (PLD 1988 Lahore 45) in the following terms :--

"Sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported to Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would , be effected and completed on that day and not when mutation in respect thereof was sanctioned.

The salient features of the sale are defined by the Honourable Supreme Court in Ali Muhammad's case (1984 SCMR 94) which are as follows :--

"Sale is defined as being a transfer of ownership for sale price is an absolute transfer of rights in property sold and no rights are left in transferor. Essential elements of sale are (i) the parties; (ii) subject matter; (iii) transfer or conveyance and (iv) price or consideration."

According to Section 54 of Transfer of Property Act it is to be proved on record that the price/consideration has been paid to the owner. In case consideration/price is not proved on record then sale is not completed in terms of Section 54 of Transfer of Property Act. In the present case petitioner failed to prove" element of consideration/price on record as is evident from the statement of Muhammad Ramzan PW.l who did not mention a single word qua the consideration/payment in examination in chief as well as in cross-examination. Similarly, PW. 2 did not mention a single word qua the payment of consideration/price of the land in question by the petitioner to the original owner. PW.3 Muhammad Tariq simply mentioned that mutation of sale was\ sanctioned for consideration of Rs. 150,000/- but this witness did not mention a single word that consideration was passed on to the original owner in this presence. Therefore, judgments of both the Courts below are in accordance with the law laid down by the Honourable Supreme Court in Muhammad Shafi vs. Allah Dad Khan (PLD 1986 S.C. 519). I am also fortified by the law laid down by the Honourable Supreme Court in Irfanuddin's case (1996 SCMR

,1386). It is also settled principle of law that petitioner has to succeed on the basis of evidence produced by the petitioner and cannot take benefit of weaknesses in the evidence of the respondent as per principle laid down by the Honourable Supreme Court in Muhammad Sadiq's case (PLD 1995 S.C. 351). In case the aforesaid underlined observation of the First Appellate Court is excluded from consideration even then the findings of the Courts

I below are in accordance with the record available before the Courts below. After re-appraisal of evidence I uphold the same and I am not inclined to remand the case in view of sufficiency of evidence on record as per principle laid down by the superior Courts in the following judgments:—

Arshad Ameen's case (1993 SCMR 216). Roazi Khan's case(1997 SCMR 1849). Muhammad Qasim's case (PLD 2001 Lahore 9).

As mentioned above, both the Courts below have given concurrent finding of fact against the petitioner as the petitioner failed to prove with cogent evidence that sale was executed between the original owner and the petitioner and the petitioner had paid the price/consideration of the land in question to the original owner.

In view of what has been discussed above, the revision petitions have no merit and the same are dismissed.

(M.Y.) Revision dismissed.

PLJ 2004 Lahore 201

[Multan Bench Multah]

Present: FARRUKH LATEEF, J. MUHAMMAD HABIB SUBHANI-Appellant

versus

MUHAMMAD AMEEN-Respondent S.A.O. No. 26 of 2001, decided on 20.6.2003.

(i) West Pakistan Urban Rent Restriction Ordinance, 1959 {VI of 1959)--

—-S. 13-Payment of rent for specified period denied by landlord-Mode to prove such payment-Payment of rent for the period in question, having been specifically denied on oath by special Attorney of landlord, there was no occasion for landlord to have produced counter-foils of receipts of rent for period in question-No adverse inference could therefore, be presumed against landlord that rent must have been paid by tenant.

[P. 204] A

(ii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 5-A-Automatic increase of rent in terms of S. 5-A of the Ordinance VI of 1959, whether dependent upon service of notice to that effect by landlord-Service of notice under S. 5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 by landlord to tenant for statutory increase of rent was not a condition prescribed to invoke jurisdiction of Rent Controller—Such increase would become due on expiry of three years and would be deemed to be a rent due. [P. 204] B

2001 SCMR 31 and 2000 SCMR 207 ref.

Mian Shamsul Haq Ansari, Advocate for Appellant. Respondent ex-parte already. Date of hearing : 13.6.2003.

judgment

On 4.1.1997 Muhammad Habib Subhani filed an application against the respondent under Section 13 of the Urban Rent Restriction Ordinance alleging therein that the respondent is his tenant in Shop No. 2131, Ward No. 8-H, Circular Road, Multan under a rent deed, since January 1995 at the

rate of Rs. 1250/- P.M payable in advance on the first day of each month; that he had defaulted in payment of rent since October 1997, and that he was called upon to pay the outstanding rent in the month of November 1996 and again in January 1997 but he had declined to pay the same.

1. In reply to the said petition the respondent admitted that he is tenant of the appellant in the shop in question but asserted that he is tenant therein since the last 20 years; the tenancy was oral, that he had paid the rent due upto January 1997; that the appellant had declined to accept rent for the month of February 1997 and on the order of the Court he is depositing rent in the Court and that his application with regard to depositing rent in Court is also pending in the same Court.

2. The following issue was framed by the learned Rent Controller:--

3. Whether the respondent is liable to be evicted on the ground of non-payment of rent as alleged in the petition '.'

4. After recording evidence the learned Rent Controller came to the conclusion that appellant could not prove rent deed Ex.A-2, that respondent was tenant since prior to 1995 and that only one witness.was produced by' the appellant whose statement was not supported by any jother evidence, hence allegation of default in payment of rent was not proved by the said statement in view of the fact that the respondent and his witness had denied about the alleged default in payment of rent. Rent petition was accordingly dismissed by the learned Rent Controller on 27.5.2000.

5. Appellant's appeal against the aforesaid order was also dismissed by learned ADJ Multan on 18.10.2000.

6. In this SAO the appellant (landlord) has assailed the aforesaid order of the learned Rent Controller and the appellate Court on the grounds that default in payment of rent from October 1996 to January 1997 was proved on record; that Section 5(A) of the Ordinance provides automatic increase of 25l,c rent of non-residential buildings at the expiry of every three years. Respondent was also defaulter in payment of increased rent and the findings of the learned Courts below are the result of non-reading and misreading of evidence and are based on erroneous assumptions of fact and law.

7. Learned counsel for the appellant has been heard. Records of the lower Courts have also been perused.

8. Relationship' of landlord and tenant was admitted by the respondent in his reply to the rent petition as well as while appearing in the witness box as RW-1. In his statement before the learned Rent Controller, respondent also admitted that rate of rent since 1995 was Rs. 1250/- P.M. In view of the aforesaid admission regarding relationship and rate of rent it was of inconsequential import if the rent deed Ex. A-2 was not formally proved by producing the scribe and the marginal witnesses especially when the said document was admitted in evidence without objection from the respondent. Ghias-ud-Din AW-4 Special Attorney of the appellant (landlord) while appearing in the witness box had produced special power of attorney Ex. A-3 and besides supporting the contents of rent petition had specifically deposed that in spite of demand, respondent had not paid the rent for the period from October 1996 to January 1997 and had also not paid enhanced rent at the rate of 25% after three years since January 1997. He was not cross-examined on the point that he was not Special Attorney of the landlord. After the said statement on oath by the Special Attorney of the appellant (landlord) the onus shifted on the respondent (tenant) to prove that he had paid rent due for the aforesaid period.

9. Muhammad Ameen respondent while appearing in witness-box as RW-1 had said that the appellant had refused to accept the rent whereupon he had sent the same through money order but he also refused to accept the money order which was returned. Nothing was produced on record in support of the said assertion. The respondent further made a vague statement that rent for the aforesaid period stands paid by him but nothing was produced on record as to how the rent stood paid. His witness Abdul Sattar RW-2 admitted during cross-examination that rent was not paid by the respondent (tenant) in his presence.

10. A perusal of the record of Rent Controller shows that respondent could not produce any evidence regarding payment of rent for the period from October 1996 to January 1997 on account of which an order under Section 13(6) of the Rent Restriction Ordinance was passed on 8.11.1998 directing the respondent to pay the rent due for the said period within 30 days and to deposit the future rent due in the Court by 15th of each month.

11. It was in compliance of the aforesaid order that rent was deposited by the respondent at the rate of Rs. 1250/- P.M and he had also been depositing future rent at the same rate. By the aforesaid deposit thej respondent could not be absolved of alleged default in the payment of rent; for the period from October 1996 to January 1997.

12. The default in payment of rent for four months viz. October 1996 to January 1997 was therefore, proved on record. Reasoning of the learned appellate Court given in the impugned judgment in support of its (finding that default was not proved is that the appellant could not prove the rent deed Ex. A-2 and had failed to produce counter-foils of receipts of payment of rent. Therefore, denial by the landlord about receipt of rent for the said period was not sufficient to shift the burden to prove payment of rent on the tenant and that withholding of the counter-foils of the receipts for the period in question by the landlord was sufficient to belie his assertion that rent was not paid.

13. The said reasoning of the learned appellant Court is neither plausible nor logical and is based on erroneous assumption of law and fact inasmuch as the fact of relationship of landlord and tenant and the rate of rent since January 1995 was admitted by the respondent and was therefore not required to be proved under Article 113 of the Qanoon-e-Shahadat Order, 1984. Payment of rent for the period in question was specifically denied on oath by the Special Attorney of the landlord, hence there was no occasion for the landlord to have produced counter-foils of the receipts of payment of rent for the aforesaid period as according to him rent was not paid. Therefore, question of issuing the receipts did not arise.

14. In the said situation where the question of issuance of any receipt did not arise, adverse inference for not producing counter-foils of the receipts which were not issued could not have been logically drawn against the landlord and it could not be presumed that since the counter-foils were

not produced, rent must have been paid by the tenant.

1. Relying on 2001 SCMR page 31, the learned appellate Court had held that since no notice in respect of demand for automatic increase in rent as envisaged in Section 5-A of the Rent Restriction Ordinance was given by the landlord, non-payment of rent at enhanced rate could not be deemed as wilful default. Judgment of the aforesaid citation was delivered on 21.10.1998 whereas in the case of Muhammad Irfan vs. Muhammad ZahidHussain Anjum reported in 2000 SCMR page 207 which was decided subsequently on 22.9.1999 but was reported later in time, it is laid down that service of notice under Section 5-A of the Rent Restriction Ordinance by landlord to a tenant for statutory increase of rent at the rate of 25% was not a condition prescribed to invoke the jurisdiction of Rent Controller. Said increase would become due on expiry of three years and would be deemed to be a rent due. Duty was enjoined upon Rent Controller to examine each case

whether default in payment of statutory increase was wilful or otherwise.

1. In this case wilfulness was proved inasmuch as institution of the ejectment petition with copy of rent deed Ex. A-2 which was admitted in evidence without objection, containing stipulation of increase of rent at the rate of 25% after every three years was itself notice and knowledge of the same by the respondent constituted due notice and was to be treated as substantial compliance of the notice.

2. Special Attorney of the landlord while appearing as AW-4 had deposed that after expiiy of three years the respondent was called upon to pay rent at the enhanced statutory rate but he declined. He was not cross- examined on the said point. While appearing as RW-1 respondent had admitted that rent since January 1995 was Rs. 1250/- P.M and that he had not increased the same after three years at the rate of 25%. Wilful default in payment of statutory increase of rent after expiry of three years was, therefore, also proved on record.

3. For the reasons stated above the impugned orders passed by the learned Rent Controller and the learned Appellate Court on 27.5.2000 and 18.10.2001 respectively whereby the appellant's rent petition and the appeal were dismissed are not sustainable the same are set aside and the rent petition filed by the appellant is accepted. Respondent is given a period of 15 days to handover the vacant possession of the disputed shop of the appellant failing which the appellant would be entitled to get the possession of the shop through execution proceedings from the concerned Court. Appe.il accepted.

(M.Y.) Appeal accepted.

PLJ 2004 Lahore 205

Present: MUHAMMAD AKHTAR SHABBIR, J. MUHAMMAD IQBAL-Petitioner

versus Mst. BILQEES FAIZ and 2 others-Respondents

C.R. No. 127-D of 1999, heard on 4.6.2003. (i) Muhammadan Law-

—Gift—Proof-Essentials-Thre'e requirements of a valid gift are declaration by donor; acceptance of gift by donee and; delivery of possession by donor-Where any of such essentials was missing, gift would not be deemed to be valid-No proof was established on record that donor had delivered possession to donee under alleged gift-Defendant admittedly, was not cultivating land in question, but the same was being cultivated by tenants and no tenant appeared in Court to attorn defendant's plea that possession was in fact that of defendant under alleged gift-Plaintiff had

himself admitted that no physical possession was delivered to him under the gift in question-Concurrent findings of two Courts below that there was no valid gift in favour of defendant-Such finding of fact could not be disturbed by High Court in exercise of its revisional jurisdiction-High Court can only interfere with orders of subordinate Courts on the ground that Courts below had assumed jurisdiction which did not vest in them or had failed to exercise jurisdiction vested in them by law or that Courts below with material irregularity affecting its jurisdiction in the case.

[Pp. 209 & 210] A, B & C

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

—S. 42-Limitation Act, 1908 (IX of 1908), Art. 120-Right of inheritence-. Claim of-Limitation-Right of plaintiff in inheritence of her father being continuous right, filing suit for declaration under Art. 120 of Limitation Act 1908, to claim inheritance would start when right to sue accrued to plaintiff-Every entry in record of rights after every four years was denial of right of plaintiff and every denial would furnish plaintiff fresh cause of action, therefore, suit filed by plaintiff would be deemed to have been filed within limitation. [P. 210] D

NLR 1985 Rev. 133; PLD 1988 AJK 1; 2000 CLC 623; PLD 1994 SC 291; 2002 SCMR 1938; 2000 CLC 399; 1994 CLC 475; 2000 CLC 1018; 1995 SCMR 284; PLD 1993 Peshawar 127 ref.

Mr. Taqi Ahmad Khan & Muhammad Saleem Cheema, Advocates for Petitioners.

Mr. Abdul Majeed Khan, Advocate for Respondent. Date of hearing : 4.6.2003.

judgment

Facts giving rise to the present revision petition are that Faiz Ahmad, father of Muhammad Iqbal the petitioner herein was owner of the agricultural and measuring 44 Kanals 3 Marias, which he had allegedly gifted to his son through a mutation of Gift No. 4950 attested on 31.7.1968. The said donor had died on 17.4.1983 and thereafter mutation of inheritance was attested in favour of legaheirs namely Mst.Nazir Begum widow, Muhammad Iqbal son and Mst. Balqees Bibi daughter. This gift was challenged by the plaintiff/respondent herein Mst. Balqees Faiz Daughter of the donor through a suit for declaration alleging therein that her father had not gifted away the suit property to the plaintiff in any manner and the possession under the gift was not delivered to the donee. The land was being cultivated .by the tenants and the defendant Muhammad Iqbal the petitioner herein had fraudulently got sanctioned the said mutation to deprive the plaintiff of the inheritance of her father. It was further alleged in the plaint that the'land in dispute is join^khaja and she is entitled for 7/8 share equal to 7/24 shares. The plaintiff further averred that she came to know about the said mutation two months prior to the institution of the suit.

1. The suit was contested by the plaintiff/petitioner who filed his written statement denying the averments of the plaint. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the following issues :--

2. Whether the plaintiff has no cause of action ? OPD.

3. Whether the suit is time barred ? OPD.

4. Whether the suit cannot be proceeded in its present form ? OPD.

5. Whether the suit lacks proper Court Fee, if so, its effect ? OPD.

6. Whether the plaintiff is estopped by his words and conduct to file his suit ? OPD.

7. Whether mutation of Hibba No. 4950 dated 31.7.1968 was based on fraud, illegal, fraudulent, without jurisdiction, ultravires, mala-fide and have no effect upon the rights of the plaintiff? OPP.

8. Whether the plaintiff is entitled to the decree as prayed for ? OPP.

9. Relief.

10. After recording and appreciating the evidence of the parties, pro and contra, the learned trial Court videits judgment and decree dated 20.10.1997, decreed the suit. Feeling aggrieved, the defendant-petitioner preferred an appeal which came up for hearing before the learned Addl. District Judge, Wazirabad who videhis judgment and decree dated 27.1.1999 dismissed the appeal maintaining the findings of the learned trial Court. Both the judgments and decrees passed by the Couits below have been assailed, through instant revision petition.

11. The learned counsel for the petitioner contended that the petitioner by producing sufficient evidence has established the sanctioning of the mutation of gift, in his favour by donor Faiz Ahmad. This mutation was not objected to by the donor during his life time who died 14/15 years after sanctioning of the said mutation. The gift in favour of the petitioner was in the knowledge of the plaintiff-respondent, she has also not objected to the same and the present suit was filed on 22.3.1993, which is barred by limitation. He further contended that the limitation in this case shall start functioning from the date of attestation of the mutation and the declaratory suit filed to challenge mutation was clearly barred by time. He relied on a case titled as Ghulam Haider vs. Hafiz Allah Bux (N.L.R. 1985 Revenue 133). Further contended that when the period of limitation once start

functioning it could not be suspended. In this context reliance has been made on the case of No'or Hussain Shah & another vs. Muhammad PJussain Shah & two others (PLD 1988 Azad J & K 1). Further argued that in the instant case the delivery of possession was not essential as that the subsequent, delivery of possession had cured the defects' of non-delivery. Reliance has been.placed on a case titled as Manzoor Hussain Shah and three Others vs. Muhammad Siddique (2000 CLC 623 Lahore).

1. On the other hand, the learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner contending that no reasons had been established for making of gift in his favour by the donee depriving the plaintiff-respondent his real daughter. Further contended that the delivery of the possession is essential requirement which has not been proved. Further contended that the onus to prove the valid gift was upon the petitioner-beneficiary of the gift and he miserably failed to established all the three requirements of law for a valid gift. Further contended that the suit filed by the plaintiff/respondent was within limitation. Right of the plaintiff in the inheritance of father was a continuous right and the time for filing suit for declaration was to start when the right to sue accrued to the plaintiff. Further contended that every such entiy was denial of right of plaintiff and the plaintiff had option to file suit on every denial of the right and every such denial would furnish a fresh cause of action. He has placed his reliance on the cases of Haji Muhammad Din vs.Malik Muhammad Abdullah (PLD 1994 SC 291) and Barkat All throughLegal Heirs and others vs. Muhammad Ismail through legal Heirs and others (2002 S.C.M.R. 1938).

2. I have heard the arguments of the learned counsel for the parties and perused the record.

3. The questions boils down for determination in this case are that "whether mutation of Hibba No. 4950 dated 31.7.1968 was based on fraud, illegal, fraudulent, without jurisdiction, ultra-vires, rnala-flde and have no effect upon the right of the plaintiff and "whether the suit was time-barred."

4. The onus to prove the Issue No. 6 was placed by the trial Court upon the plaintiff and in support of her assertion, the plaintiff has taken the stand that her father had not gifted the land in favour of the plaintiff. It was incumbent upon him in the first instance to discharge the proof showing reasons for making the gift in his favour by the donor. Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made" without reasons or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. Since at the time of institution of suit, the donor was not alive and in that case, the responsibility lies on the donee present petitioner to justify the making of gift of the land in

"ivour depriving her daughter Mst. Balqees Faiz and widow Mst.Nazir

Begum. At the most, it can import the love and affection of the son but the same seems to be un-reasonable.

1. To prove the validity of gift, the petitioner produced Ali Ahmad DW-1, Abdul Rashid, DW-2, Mst. Nazir Begum DW-3 and the defendant/petitioner himself appeared as DW-4. The assertion of the petitioner is that the donor has gifted the property in dispute in his favour while they were sitting in the Baramadaof his house in the presence of Ahmad Ali and Abdul Rashid 4JW-1 & DW-2. This deposition of the donee was denied by the DW-2 who had deposed that at the time of making the gift they were sitting in a room (Baithak) of the house of the donor. He stated that he came to his house by his own accord and he was not summoned or called by the donor while Ali Ahmad DW-1 deposed that Abdul Rashid and he were called by Faiz Ahmad, who went to him to bring to his house. Abdul Rashid contradicted the statement and stated that neither he was summoned nor Ali Ahmad DW-1 was called by the donor. DW-4/ defendant/petitioner had also stated that Faiz Ahmad his father has called Rashid Ahmad and Ali Ahmad. There are material discrepancies and contradictions in the statements of DWs and their statements are not worth reliance. The evidence when tested oh the touch stone so laid down by the apex Court, edifice erected by the respondent crumbled down and falls to the ground like the house of cards and in no way, would be taken to have been established by the date and material on record.

2. There are three requirements to establish a valid gift (i), declaration by the donor (ii), acceptance of Gift by the donee and (iii) delivery of possession by the donor and if any of the three is missing, the gift would not be deemed to be a valid. In this context reliance can be placed to the case of Ms?. Gul Bibi and another us. Mst. Sajida Bibi (2000 CLC 399). The defendant/petitioner setting up alleged gift-deed in his favour while plaintiff/respondent who claimed property in question, on basis of inheritance denied alleged gift as also its validity. Onus to prove voluntary execution of such gift rested heavily upon defendant who was beneficiary under the gift-deed. In this context reliance carl be placed to the case of Riasat Ali vs. Mst. Sardar Bibi and 7 others (1994 CLC 475). In order to confer title by way of gift on the donee, the same must be accompanied by delivery of possession of the property.

3. In the instant case, there is no proof of the fact that the donor had delivered the possession to the donee petitioner. It is an admitted position that the petitioner is not cultivating the land himself but the same was being cultivated by the tenant but no tenant appeared in the Court to establish that the donor has gifted away the property in favour of the petitioner. The petitioner has himself admitted that the land is being cultivated by the tenant and no physical possession was delivered to him under the gift.

4. Both the Courts below have concurrently passed the findings of fact that there was no valid gift in favour of the petitioner and when there is a concurrent findings of fact by the Courts below, the same cannot be

disturbed by the High Court either in second appeal or in revisional jurisdiction unless Courts below while recording findings of fact had either misread the evidence or had ignored any material piece of evidence on record or the same was perverse. The jurisdiction of High Court to interfere with concurrent finding of fact in revisional jurisdiction was narrower, it could only interfere with the orders of subordinate Court on the ground that Courts below had assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that Court below had acted with ,material irregularity affecting its jurisdiction in the case. In this context reference can be placed to the case of Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291).

1. Learned counsel for the petitioner has not been able to point out any illegality or infirmity in the findings of the Courts below on Issue No. 6 which are un-exceptionable and are maintained.

2. As to the arguments of the learned counsel for the petitioner that the suit was barred by limitation, the answer is that the plaintiff/respondent has claimed the share of the land out of the property left by her deceased father. The right of plaintiff in the inheritance of father was a continuous right and under Article 120 of the Limitation Act, 1908 time for filing suit for declaration was to start when the right to sue accrued to the plaintiff. No right to sue until there was an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by defendant against whom the suit was instituted. Reliance in this context can be placed to the cases of Kaura and others vs. Allah Ditta and others(2000 CLC 1018), Wali and 10 others vs. Akbar and others (1995 SCMR 284), Atta Muhammad vs. Nasiruddin (PLD 1993 Peshawar 127).

3. Every entry made in the record of rights after every four years was denial of right of plaintiff. Plaintiff had option to file suit on every denial of right and every denial would furnish to plaintiff a fresh cause of action, therefore, there is no option but to observe that the suit was validly instituted by the plaintiff/respondent within limitation. The observation of the Courts below on the question of limitation call for no interference, hence affirmed.

4. For the foregoing reasons and following the dictum laid down in the above referred precedents, this revision petition having no force is dismissed with no order as to costs.

(T.A.F. Revision dismissed.

PLJ 2004 Lahore 211

Present: mian saqib nisar, J.

MUHAMMAD ZAFARULLAH KHAN and 3 others-Petitioners

versus

HASAN MUHAMMAD and another-Respondents

C.R. No. 1267 of 1997, heard on 10.10.2003. (i) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S.3--Right of Pre-emption-Principal of sinker-Applicability-Where there are more than one pre-emptors and any of them had failed to prove talbs,but otherwise, has right of pre-emption, it is he who would be non-suited and case would proceed for remaining plaintiffs, as if the plaintiff failing to establish talbswas not a party to proceedings-Where, however, plaintiff has no right of pre-emption, irrespective he has made or proved talbs, principle of sinker would apply and other plaintiff would also suffer entailing dismissal of their suit, on account of joining alongwith them a stranger to the cause-Court having given finding in present case that all the four plaintiffs had proved their right of pre-emption and such finding having not been challenged such finding had attained finality-Principle of sinker would not apply even if two plaintiffs had given up their claim of pre-emption in favour of other plaintiffs. [P. 213] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 3--Statement relating to talb-i-muwathibatnot corroborated-Solitary statement of a witness had rightly not been believed by two Courts below-No misreading of evidence was. pointed out to warrant interference in revisional jurisdiction-Order of dismissal of suit was maintained. {P. 214] B

Ch. Mushtaq Ahmad, Advocate and Ch. Zafar Iqbal, Advocate for Petitioners.

Syed Muhammad Zain-ul-Abidin, Advocate for Respondents. Date of hearing : 10.10.2003.

judgment

Petitioners/plaintiffs who are four in numbers, filed a suit for pre­emption against the respondents, which was dismissed by the learned trial Court on the issue of talbs;appeal filed by the petitioners also failed.

1. Briefly stated the facts of the case are that the petitioners brought a suit for pre-emption on 14.5.1995, claiming that they have superior right of pre-emption being shaf-i-khalitand shaf-i-jar; the suit land in the case is measuring 151 Kanalsand 4 Marias, situated in Mauze Kalikey Tehsil Pasroor, District Sialkot, the sale of which, was made in favour of the

respondents/vendees on 21.3.1995 through .sale Mutation No. 308 of the even date, for a consideration of Rs. 30,00,000/- the petitioners claimed that they learnt ahout the sale on 26.3.1995 and made talb-i-muwathibat,the notice of talab-i-ishhadwas issued to the Respondent on 28.3.1995 and followed by the suit.

1. The matter was contested by the respondents, who inter-aliatook up the objection that the petitioners had not made valid talbs; accordingly the learned Civil Judge, was pleased to frame the issues and after recording of evidence, came to the conclusion that the petitioners have superior right of pre-emption but they have failed to prove the talbs, therefore, by giving findings on this issue (Issue No. 2), against the petitioners, the suit was dismissed vidfjudgment and decree dated 31.7.1996. Against the above, the petitioners preferred an appeal, but without success. Hence this civil revision.

2. Before proceeding with the merits of the case, it may be pertinent to mention that an application CM No. l/C/2002, has been moved by the Petitioners Nos. 2 and 3, who does not want to claim right of pre-emption and therefore, have sought the deletion of their names from the array of the parties and have asserted that they have no objection, if the suit is decreed in favour of remaining two petitioners. Another application C.M. No. 2/C/2002, was also filed by the Petitioner No. 4, who wanted to withdraw from the contest and expressed his no objection, if the decree of the entire suit land is passed in favour of Petitioner No. 1, but before any decision could be made on such applications. Ch. Mushtaq Ahmed counsel for the said applicant on 12.12.2002, made a statement withdrawing the application on behalf of Petitioner No. 4, meaning thereby that he is also one of the contestants in the matter, whereas for the other two petitioners, the request for withdrawing from the contest has been repeated, which is allowed.

3. In the above circumstances, particularly, withdrawal of the Petitioners Nos. 2 and 3, from their claim, learned counsel for the respondents has raised an objection that the present petition and the suit for the pre-emption, is liable to be dismissed on account of principle of sinker. He has argued that any pre-emptor, who joins with him a person having no right of pre-emption, would be non-suited on the aforementioned principle. However, meeting this objection, learned counsel for the petitioners has argued that because there is no specific provision about the sinker in the Pre-emption Act, 1991, therefore, in view of Section 3 of the Act, guidance must be taken from the Quran and Sunna. He has relied upon explanation No. IV of Section 236 of the Mohammadan Law, by Mulla to submit that where there are two or more persons claims right of pre-emption, each one of them is required to make the demands, unless one of them was authorized to do so. However, if the suit is brought by several persons for the pre­ emption and only one of them has proved the talbon his own behalf and not for the other, the suit shall proceed as regards him, but it should be dismissed for the other. Therefore, if the Petitioners Nos. 2 and 3 have not

been able to establish the talb-i-muwathibat, and wants to withdraw from the contest, the case of other petitioners cannot be prejudiced, who have proved talb-i-muwathibaton the record. Learned counsel has also relied upon Section 241 of Mohammedan Law by Mulla and argued that a co-plaintiff, who joins with him another plaintiff, who is a stranger having no right of pre-emption, would be .disentitled to the grant of decree, and would loose his right a well on the basis of sinker. But where the other co-plaintiff though has a right of pre-emption, however, has not been able to prove the making of necessary talbs, the first category of the plaintiff would not be non-suited. In the instant case, according to the finding of the learned trial Court on the issue of superior right (Issue No. 1), all the petitioners were found having superior right of pre-emption and such finding has neither been challenged by the respondents in appeal by filing cross appeal, etc. even verbally, therefore, the learne'd Appellate Court has not reversed the finding, which remains intact, resultantly, Petitioners Nos. 1 and 4, cannot be non suited on the ground that Petitioners Nos. 2 and 3, had failed to establish the talbs, though having superior right of pre-emption.

1. I have heard the learned counsel for the parties. For resolving the proposition, whether the doctrine of Sinker is attracted to the present case, suffice it to say that the provisions of Sections 236 and 241 of the Mohammedan Law are very much clear, which- should be resorted to in the light of Section 3 of the Punjab Pre-emption Act, 1991. From the collective reading of these two provisions, it emerges beyond free of contradiction that if there are more than one pre-emptors,and any one of them had failed to prove the talbs,but otherwise, has a right of pre-emption, it is he who shall be non-suited and the case shall proceed for the remaining plaintiffs, as if the pre-emptor failing to establish the talb'swas not a party to the proceedings. However, if a co-plaintiff has no right of pre-emption, irrespective he has made and proved the talbs, the principle of sinker shall apply and the other plaintiff shall also suffer entailing dismissal of their suit, on account of joining alongwith them a stranger to the cause.

2. In the instant case, as has been held above, the right of pre­ emption has been proved by all the four plaintiffs, and so declared by the learned trial Court, while giving findings on Issue No. 1, which finding has neither been challenged in appeal by the respondents nor reversed by the learned Appellate Court. Learned counsel for the respondents even today on the basis of the record, has failed to prove if Petitioners Nos. 2 and 3, had no superior right of pre-emption, therefore, I am constrained to repeal the objection of respondents' side that the present revision as also the suit filed by the petitioners, is liable to be dismissed on account of the doctrine of sinker.

3. Now coming to the merit of the case, learned counsel for the petitioners has conceded that Petitioners Nos. 2 and 3, who otherwise, have withdrawn from the contest, have failed to prove talb-i-mirvathibat,but it is argued that Petitioners Nos. 1 and 4. learnt -about the sale at their Dcraat

about "Asar" time, when an unknown person driving a tractor, at the suit land, apprised them of the sale and they immediately made the talb-i-muwathibat. The person who informed Petitioners Nos. 1 and 4, about the sale has not been examined on the reasoning that his identification is not known. It seems to be most improbable because the petitioners were aware of the importance of the first talbformaintaining a Pre-emption Act and for this reason, also allegedly made the talbs. They were supposed to enquire for the said person his identification, so as to examine him in support of their case. The number of the tractor could have been noted to subsequently locate the person. But no such effort is forthcoming on the record. No other independent witness has been examined to establish that the petitioners learnt about the sale at the venue and time and made talb-i-muwathibat.Only one out of the two petitioners, namely Zafar Ullah has appeared as PW-1 and the other co-plaintiff, who was accompanied him at the time when they allegedly learnt about the sale and asserted the talb, for no good reason, has been produced. There is no corroboration of the statement of PW-1, about the making of talb-i-muwathibat,thus his solitary statement has been rightly disbelieved by the two Courts below for valid reasons. No misreading or non reading has been shown, resultantly, I do not find this to be a fit case for interference in the revisional jurisdiction as far as the finding of the Courts below on the issue of talb-i-muwathibatis concerned. For talab-i-ishhad, suffice it to say that when the petitioners have failed to prove talb-i-fnuwathibat, making or otherwise of valid talab-i-ishhadis immaterial.

In the light of above, this petition thus has no force and the same is hereby dismissed.

(A.P.) Revision dismissed.

PLJ 2004 Lahore 214

Present: M. AKHTAR SHABBIR, J.

DAULAT ALI-Petitioner

versus

MEMBER, BOARD OF REVENUE (COLONIES), LAHORE and 2 others-Respondents

W.P. No. 2922 of 1976, heard on 21.10.2003.

(i) West Pakistan Consolidation of Holdings Ordinance, 1960 (VI of 1960)--

—S'. 13-Revisional jurisdiction of Commissioner relating to consolidation proceedings-Extent of-Only condition imposed on Commissioner while passing order in his revisional jurisdiction is that notice would be issued to affecting parties and order would be passed after affording them opportunity of hearing-Commissioner had issued notice to petitioner but

he had refused to accept the notice and he did not appear before Commissioner-However. on his appeal, his all objections were heard by Member Board of Revenue and he was afforded full opportunity to argue the case and there was no evidence on record that any point raised by petitioner before Member Board of Revenue had not given attention or had not been dealt with-Petitioner's objection that he was not given opportunity of being heard was, thus, repelled. [P. 217] A

(ii) West Pakistan Consolidation of Holdings Ordinance, 1960 (VI of I960)--

—S. 13-Suo-motu jurisdiction of revision-Connotation-Conversion of application into revision by Commissioner—Commissioner is empowered to exercise suo-motu revisional jurisdiction under S. 13 of West Pakistan Consolidation of Holdings Ordinance 1960, therefore, when he acquires any knowledge relating to consolidation proceedings through any application or otherwise, he can either convert the application into revision petition or take suo-motuaction relating thereto. [P. 218] B

(iii) West Pakistan Consolidation of Holdings Ordinance, 1960 (VI of I960)--

—S. 13-Constitution of Pakistan (1973), Art. 199-Order/judgment passed by a Court or Special Tribunal--Writ jurisdiction-Exercise of-Any order/ judgment passed by a Court or Special Tribunal which has jurisdiction to determine that question can be decided either way and such Court/Tribunal cannot be deemed to have acted illegally or with material irregularity-High Court would not interfere with such decision of Court merely because in its opinion that decision was wrong. [P. 218] C

(iv) West Pakistan Consolidation of Holdings Ordinance, 1960 (VI of I960)

—S. 13-Constitution of Pakistan (1973), Art. 199-Order/judgment passed by Tribunal of special jurisdiction on question of fact—Interference by High Court-Justification for-Board of Revenue while passing impugned order assigned sufficient reasons supporting the order passed by Additional Commissioner observing that he was justified to pass order in question—Board of Revenue having dismissed petitioner's revision on merit involving question of fact, no interference was warranted by High Court in its revisional jurisdiction. [P, 219] D

1979 SCMR 262; 2003 SCMR 1058; PLD 1973 SC 295; PLD 1983 SC 68; PLD 1991 SC 640; 1985 SCMR 987; 1985 SCMR 1962; PLD 1985 SC 274; 1986 SCMR 795; 1984 SCMR 440; PLD 1974 SC 139; 1970 SCMR 293; . 1993 SCMR 618; 1989 SCMR 918 & PLD 1991 SC 476 ref.

Mr. Muhammad Ashraf Wahla, Advocate for Petitioner. Mr. M.A. Zafar, Advocate for Respondent No. 3. Date of hearing 2.10.2003.

judgment

The petitioner has taken exception to the orders dated 11.3.1976 and 27.9.1972 passed by Respondents Nos. 1 & 2.

1. Facts giving rise to the present writ petition are to the effect that a consolidation scheme of village Ahuwala had been confirmed by the Collector under Section 10(4) of the Consolidation and Holdings Ordinance, 1960 on 30.3.1987 and in consolidation proceedings the petitioner was given land as under :--

Class!. 131K16M.

Class IV 33K-7M

Converted into Class-I. 16 K 14 M

Total: 148 K 10 M.

The petitioner filed an appeal in the Court of Addl. Commissioner Consolidation against the order of confirmation.

1. The Respondent No. 3 on 15.6.1972 had filed a Misc. application before the Addl. Commissioner (Consolidation) stating therein that he has been given 8 kanals of land less than his entitlement. The Addl. Commissioner (Consolidation) treating the application as revision, in his suo moto revisional jurisdiction, accepted the same and withdrawn the excess land measuring 8''kanalsand 7 marlas from the Wanda of Dolat Ali present writ petitioner. Feeling aggrieved, Dolat Ali petitioner preferred a revision petition under Section 13 of the Consolidation and Holdings Ordinance and Member Board of Revenue vide his order dated 11.3.1976 dismissed the same.

2. Learned counsel for the petitioner contended that the application was filed by Respondent No. 3 after expiry of period of limitation and the Commissioner was not competent to convert this petition into a revision; that the petitioner was condemned un-heard and the order in revision by the Addl. Commissioner was passed in absence of the petitioner; that the property which was not in ownership of the respondents prior to the consolidation proceedings has been given to him; that an order passed in absence of th-j parties is a corum-non-judiceand every super-structure based on such order will also fall to the ground and that the order of Addl. Commissioner has prejudiced the petitioner after the finality is attached to the confirmation of the consolidation scheme.

3. On the other hand, learned counsel for the Respondent No. 3 vehemently opposed the arguments of the learned counsel for the petitioner contending that the Addl. Commissioner has vast powers in exercise of its revisional jurisdiction; that the objection was not urged by the petitioner in

his memo of revision filed before the Member Board of Revenue; that the Member Board of Revenue had heard the petitioner and dealt with by the objection urged before him by the petitioner, that the objection raised by the petitioner was not raised in memo of the writ petition and the petitioner is estopped to raise objection which was not raised before the competent forum-the Member Board of Revenue.

1. I have heard the arguments of the learned counsel for the parties and perused the record.

2. Respondent No. 3 had not filed a revision petition before the Addl. Commissioner Consolidation. He gave an application to the supply of some information and pointed out some defects in the consolidation scheme. It was the Commissioner who himself exercised his revisional jurisdiction on the information received from the application of the petitioner. Section 13(2) the Consolidation of Holdings Ordinance, 1960 emerges that (2) A Commissioner or Collector may call for the record of any case under this Ordinance pending before, or disposed of by any Revenue Officer or Consolidation Officer under his control (3) If in any case in which Collector has called for the record under sub-section (2), he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner (4). The Board of Revenue may in any case called for under sub-section (1) and a Commissioner may in any case called for by him under sub-section (3), pass such order as it or it he thinks fit provided that no order shall be passed under this section reversing or modifying any proceedings or.order of a subordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard. The only condition imposed on the Commissioner while passing the order in his revisional jurisdiction is that a notice shall be issued to the affecting parties and order shall be passed after affording an opportunity of being heard. In the instant case, the Commissioner had issued the notice to the petitioner who refused to accept the service and thereupon a proclamation was issued in the village but despite this the petitioner did not appear before the Commissioner. However, on his appeal, his all objections were heard by the Member Board of Revenue and he was afforded full opportunity to argue the case and there is no evidence on the record that any point raised by the petitioner before the Member Board of Revenue have not given due attention or has not been dealt with. Reliance in his context can be placed to the case of Ch. Nasir Ahmad us. Haji Muhammad Ismail (1979 S.C.M.R. 262).

3. From the perusal of the order dated 27.9.1972 passed by Addl. Commission in suo moto revisional jurisdiction, it is evident that the petitioner refused to accept the service and thereupon a proclamation was issued in the village but the-petitioner on his own accord did not turn up. The Addl. Commissioner has performed the requirements of law by issuing notice to the petitioner.

4. As to the objection of the learned counsel for the petitioner that the Commissioner could not convert the application filed by respondent Sardar Khan into a revisional jurisdiction. The answer would be that exercise of revisional jurisdiction under Section 13 of the Consolidation of Holdings Act, 1960, suo moto is permissible and there is no need of any regular formal revision application before the Collector or the Board of Revenue by any interested party. The power really vests in the Commissioner and contrary to the provisions regarding exercise of appellate jurisdiction the Section does not confer any right on an aggrieved party to invoke revisional jurisdiction. A practice undoubtedly has sprung up that applications for this purpose are made and for the simple reason that unless a party gives information or states some facts before the revising authority, it is not easy for that authority to examine all the records or proceedings before the lower Courts and then proceed to exercise revisional powers in such cases as is considered necessary. The arguments of the petitioner that the Commissioner was not competent to convert the application into 'suo moto'

revisional jurisdiction being mis-conceived is repelled. This objection was neither raised by the petitioner before the Member Board of Revenue nor it was raised in this Court through the memo of writ petition and the plea which was not raised before the lower forum could not be raised before the

High Court during the hearing of the writ petition. Reliance in this context can be placed to the cases oiMunawar Hussain vs. The State (2003 S.C.M.R. 1658), Khairati and 4 others vs. Aleem-ud-Din and another (P.L.D. 1973 S.C. 295), Ghulam Muhammad and others vs. Malik Abdul Qadir Khan and others (P.L.D. 1983 S.C. 68), Mst. Neelam Nawaz vs. The State (P.L.D. 1991 S.C. 640), Messrs Mairaj Sons and others vs. United Bank Ltd. and others, (1985 S.C.M.R. 987), Muhammad Ahmad vs. Mst. Aziz Begum (1985 S.C.M.R. 1962), Mst. Sardaro and others vs. Mst. Nazran Begum and others (P.L.D. 1985 S.C. 274), Muhammad Idrees vs. Mst. Safia Begum and others (1986 S.C.M.R. 795) and Mad Ajab and others vs. Awai Badshah (1984 S.C.M.R. 440).

1. The most important feature of the case is that an

order/judgment passed by a Court or a Special Tribunal which has the

jurisdiction to determine that question can be decided either way 'and it

cannot be said that it acted illegally or with material irregularity and the

High Court would not interfere with the decision of the Court or Tribunal

merely because in its opinion the decision was wrong. Reliance in this

context can be placed to the case of Muhammad Hussain Munir and others

Sikandar and others (P.L.D. 1974 S.C. 139). The order has been passed

by the Consolidation Authorities and the High Court in writ jurisdiction

would not sit in judgment against the decision of the Revenue Authorities in

such matters. Reliance can be placed to the case of Malik Khadim Hussain

vs. Ch. Muhammad Siddique and another (1970 S.C.M.R. 293).

1. As to the objection of factual controversy raised by learned counsel for the petitioner, it is suffice to observe that at the time of preparation of register Haq Daran Zamin before the consolidation proceedings, the petitioner owned land measuring 145 kanals 9 marlas(Class-I, 132K-2M, Class-II. 13K-1M, Class-IV, 0-6 marlas only). After measuring and deduction of land measuring 2 kanal 145 marlas for Rafa-I-Ama, his land was reduced to 142 kanals 14 marlas(Class-1, 129K-7M, Class II, 13K-1M, Class IV, 0-6 marlas only). After consolidation proceedings, the entitlement of the petitioner prior and after consolidation is as under :--

Pre-Consolidation. After Consolidation.

Class-I 129K & 7M Class-I 131K & 16M.

Class-II 13K & 1M Class-IV 33K & 07M.

Class-IV 0.6 M. Class IV — Total: 142K & 14M. 165K & 03M.

By converting 140 kanals into 148 kanals 10 marlasinto Class-I and in this way, the petitioner got 7 kanals and 8 marlas of land more than his entitlement which was withdrawn from him and given to the Respondent No. 3.

1. The Member Board of Revenue while passing the impugned order assigned sufficient reasons supporting the order passed by Addl. Commissioner, Consolidation and observed that he was justified in withdrawing 7 Kanals 8 Marias of land from the allotment of Dolat Ali- petitioner. The Member Board of Revenue had dismissed the revision petition filed by the petitioner on merits which call for no interference. Learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect in the impugned orders.

2. There is a question of fact involved in the matter which requires recording of evidence and appreciation of record and the High Court in exercise of its Constitutional jurisdiction would not interfere as laid down in the cases of Muhammad Younas Khan and 12 others us. Government ofN.W.F.P. through Secretary and others (1993 S.C.M.R. 618), Benedict F.D.,Souza Vs. Karachi Building Control, Authority and 3 others (1989 S.C.M.R. 918) and Federation of Pakistan and two others vs. Major (Retd.) Muhammad Sabir Khan (P.L.D. 1991 S.C. 476).

3. For the foregoing reasons, this writ petition being devoid of force is dismissed.

(A.A.) . Petition dismissed.

PLJ 2004 Lahore 220 (DB)

Present: ch. ijaz ahmad and bashir A. mujahid, JJ. TARIQ SHAHBAZ CHAUDHRY and 5 others-Appellants

versus BANK OF PUNJAB and 4 others-Respondents

P.A.O. No. 245 of 1998, heard on 27.10.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—0. XXI, R. 58 & 0. XLIII, R. 1-Execution- of decree-Petitioner's application under O. XXI, R. 58 C.P.C. was dismissed-Legality- Executing Court cannot go behind the decree-Contentions raised by appellants before High Court were not taken by appellants in their application filed by them before executing Court as also in memo of appeal before High Court-Appellants were not allowed to take those pleas which were not taken by them before executing Court and in memo of appeal. [P. 223] A

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

—S. 22-Limitation Act (IX of 1908), S. 3-Loan amount on the basis of negotiable instrument-Limitation-Starting point of-Limitation in respect of guarantee would start from the date of cause of action when demand was made or suit was filed. [P. 224] B

PLD 1974 SC 322; PLD 1968 Karachi 464; PLD 1996 Lahore 672; AIR 1934 Allahabad 661; AIR 1932 Lahore 169; PLD 1985 SC 153; NLR 1998 Civil 18; AIR 1931 Lah. 691; PLD 1975 Karachi 61; PLD 1995 Lah. 295 and PLD 1964 SC 536 nf.

Mian Nisar Ahmad, Advocate for Appellants. Mr. Tang Saleem, Advocate for Respondents. Date of hearing : 27.10.2003.

judgment

Ch. Ijaz Ahmad, J.--The brief facts out of which the present appeal arises are that Respondent No. 2 secured financial facility from Respondent No. 1 amount to Rs. 61,96,250/-. An agreement was also executed between Respondent No. 2 and Respondent No. 1 on 19.8.1993. The respondent Bank sanctioned the loan facility in favour of Respondent No. 2 after completing legal formalities and execution of following documents :—

(i) Agreement dated 19.9.1993.

(ii) .Mortgage deed dated 14.6.1990 executed by Mst. Farhat

(iii) Mortgage deed dated 14.6.1990 executed by Mst.Riffat Shahbaz.

(iv) Guarantee dated 16.7.1990 furnished by Ijaz Rasool.

(v) Guarantee dated 16.7.1990 furnished by Farhat Shahbaz.

(vi) Guarantee dated 16.7.1990 furnished by Tariq. Shahbaz Chaudhiy.

(vii) Guarantee furnished by Rabat Shahbaz.

(viii) Guarantee furnished by Shahida Shahbaz and Riffat Shahbaz.

(ix) Guarantee furnished by Farhat Shahbaz and Riffat Shahbaz.

(x) Guarantee furnished by Riffat Shahbaz.

(xi) Guarantee furnished by Shahida Shahbaz.

Respondent No. 2, guarantors and mortgagors failed to honour their commitment. Respondent No. 1 being aggrieved filed a suit for recovery on 15.12.1996 before the Banking Tribunal established under Banking Tribunals Ordinance, 1984. The Banking Court passed the decree against the appellants and Respondents Nos. 2 to 5 amounting to Rs. 20,54,549/-. The respondent Bank filed execution petition before the executing Court. The appellants filed objection petitions/applications before the Banking Court under Order XXI, Rule 58 to 60 C.P.C. read with Sections 151 and 12(2) CPC which were dismissed by the Banking Court videorder dated 17.10.1998. Hence the present appeal.

1. Learned counsel of the appellants submits that decree is nullity in the eye of law as the appointments of Presiding Officers of the Banking Tribunals were declared unconstitutional, void and provisions of the Ordinance were also declared ultra vires qua the provisions of Constitution in M/s Chenab Cement Products (Pvt.) Ltd. vs. Banking Tribunal Lahore and others (PLD 1996 Lahore 672) videjudgment dated 21.7.1996. He further submits that this fact was not considered by the Banking Court in impugned order. He further urged that impugned order is not in accordance with law laid down by the Division Bench of this Court in Muhammad Ashraf vs. Chairman Banking Tribunal (NLR 1998 Civil 18). He further submits that when" the decree is nullity in the eye of law then executing Court has the power to go behind the decree under Section 47 of CPC. He further submits that financial facility was awarded to Respondent No. 2 by Respondent No. 1 in the year 1990 and the appellant has given guarantee qua the said facility whereas the agreement was executed between Respondent No. 1 and Respondent No. 2 subsequently on 198.1993. Therefore, suit filed by the respondent Bank before the Banking Court was time barred. In support of his contention he relied upon Diyalu Mai vs. Nandu Shah Dev. Raj and others (AIR 1931 Lahore 691) and "PLD 1975 Karachi 61" (There is no judgment at this page). He further submits that

guarantees furnished by the appellants are not witnessed by two witnesses. Therefore, guarantees could not be used against the appellants in the eye of law as the same were executed in violation of Article 17(2) of Qanun-e-Shahadat Order, 1984. In support of his contention he relied upon "PLD 1995 Lahore 295" (There is no judgment at this page). He further submits that time is prescribed under Section 22 of Act No. XV of. 1997. Therefore, Court has no jurisdiction to extend the time when the time has been prescribed under the Statute. In support of his contention he relied upon E.A. Evans vs. Muhammad Ashraf (PLD 1964 S.C. 536). He further urges that it is the duty and obligation of the Court to see whether the suit fited by the respondent Bank was within time or not in view of Section 3 of the Limitation Act. In support of his contention he relied upon Hakim Muhammad Buta vs. Habib Ahmad and others [PLD 1985 S.C. 153). Learned counsel of the appellants in support of his contentions also relied upon Nathu Mai-Ram Das Vs. B.D.Ram Sarup (A.I.R. 1932 Lahore 169) and Jawahar Lai vs. Mathura Prasad and another (AIR 1934 Allahabad 661).

3." Learned counsel of the respondent Bank submits that initially suit was filed by the respondent Bank before the Tribunal constituted under the Banking Tribunals Ordinance, 1984. The suit was pending before the Banking Tribunal till 21.7.1996 when the Full Bench of this Court declared the appointment of Presiding Officers of the Banking Tribunals to be nullity in the eye of law in M/s. Chenab Cement Products (Put.) Ltd. vs. Banking Tribunal Lahore and others (PLD 1996 Lahore 672) videjudgment dated 21.7.1996. He further submits that Full Bench of this Court observed that pending cases be transferred to the Banking Court concerned. Therefore, by operation of judgment of the Full Bench of this Court the suit of the Respondent Nos. 1 was transferred before the competent Court. The competent Court has passed the decree against. the appellants and Respondents Nos. 2 to 5 vide judgment and decree dated 2.12.1997. The appellants have not challenged the vires of the decree till date. Therefore, judgment and decree of the Banking Court has attained finality. As such the Banking Court was justified to dismiss the application of the appellants. He further submits that guarantees attached by the appellants with C.M. No. 2/C/98 contained the signatures of two witnesses. Therefore, guarantees were excused in accordance with law. Even otherwise the guarantees given by the appellants at the time of sanctioning first loan facility to Respondent No. 2 by Respondent No. 1 in the year 1990 would continue in view of Clauses 1 to 3. The suit of the respondent Bank was not time barred as the loan facility was extended by the respondent Bank in favour of Respondent No. 2 on the request of Respondent No. 2 and original guarantees would remain in the field in terms of the guarantees. He further submits that impugned order is valid and suit was within time.

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 better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties :--

(i) Finance facility was availed by Respondent No. 2 from Respondent No. 1 in the year 1990 as is evident from documents attached by the appellants alongwith C.M. No. 2/98.

(ii) Appellants have furnished guarantees at the time of sanctioning loan facility by Respondent No. 1 in favour of Respondent No. 2.

(iii) The contents of the guarantees reveal that same would remain in the field in view of clauses 1 to 3. .

(iv) Respondent No. 1 extended loan facility to Respondent No. 2 from time to time and last agreement executed between the parties on 19.8.1993.

(v) The guarantees furnished by the appellants were duly attested by the two attesting witnesses.

(vi) Respondent No.- 2 failed to repay the outstanding of the respondent Bank. Respondent Bank filed a suit before the Banking Tribunal constituted under Banking Tribunals Ordinance, 1984 on 15.12.1996.

(vii) Full Bench of this Court declared the appointment of the Presiding Officers of Banking Tribunals and certain provisions of the Banking Tribunals Ordinance as ultra vires in view of conflict with the provisions of the Constitution vide judgment dated 21.7.1996 (PLD 1996 Lahore 672).

(viii) The Full Bench observed that pending cases be transferred to the concerned Banking Courts as observed in para-13 of the judgment of the Full Bench of this Court.

(ix) The suit filed before the Banking Tribunal was transferred by operation of judgment of the Full Bench to the concerned Banking Court.

(x) The Banking Court passed the decree vide judgment\and decree dated 2.12.1997. It is pertinent to mention here that judgment and decree was passed on the statement of-counsel of the respondent as is evident from para-1 of memorandum of appeal before this Court.

In case the aforesaid facts are put in a juxta position then judgment and decree of the Banking Court is not nullity in the eye of law. Therefore, all the contentions raised by the learned counsel of the appellants have no force. It is settled principle of law that executing Court cannot go behind the decree. It is also settled principle of law that parties are bound by their pleadings. It is pertinent to mention here that the contentions raised by the learned

counsel of the appellants before us have not been taken by the appellants in

their application filed by the appellants before the executing Court as well as

in the memorandum of appeal before this Court. Learned counsel of the

appellants is not allowed to raise pleas which were not taken before the

executing Court as well as in the memorandum of appeal before this Court

which is not in accordance with law laid down by the Honourable Supreme

Court in Mst. Murid Begum vs. Muhammad Rafiq (PLD 1974 S.C. 322). It is

also settled principle of law that limitation in respect of guarantee would

start from the date of cause of action when demand is made or suit is filed as

the law laid down by the Karachi High Court in M/s. United Bank Limited's

case (PLD 1968 Karachi 464). Therefore, we do not find any infirmity or

I illegality in the impugned order of the Banking Court.

In view of What has been discussed above, this appeal has no merit and the same is dismissed.

(A.A.) Appeal dismissed.

PLJ 2004 Lahore 224

[Multan Bench Multan]

Present: farrukh lateef, J. ZAHEER AHMAD etc.-Petitioners

versus SENIOR MEMBER BOARD OF REVENUE etc. Respondents

W.P. No. 2045 of 2003, decided on 27.6.2003. (i) Constitution of Pakistan (1973)--

—Art. 199-Constitutional jurisdiction of High Court-Extent of- Constitutional power of judicial review vested .in High Court under Art. 199 of the Constitution is not inherent as distinct from judicial review but is subject to limitation provided in the Constitutional itself— While exercising such power, limitation imposed by the Constitution can neither be over looked nor dispensed with-When it appears or was brought to the notice of High Court that any particular order of Departmental authority lies within ambit of service tribunal, jurisdiction of High Court would be ipso facto ousted as a result of barring jurisdiction/provision of Art. 212 of the Constitution and it is not competent on any ground to examine validity of order which falls within jurisdiction of service tribunal. [P. 228] A

(ii) Constitution of Pakistan (1973)--

—Arts. 212 & 199-Order passed by respondent Authority was challenged by petitioners themselves and the same was quashed with direction to

Authority to reconsider the matter in post remand proceedings when the same view was again expressed by respondent Authority it does not lie in the mouth of petitioner to say that service tribunal had no jurisdiction to hear appeal against order of Authority-Impugned order also shows that dispute before respondent was not that of suitability and fitness otherwise of petitioners and respondents to a higher post but the matter was regarding alleged violation of rules and procedure in selection and that of not considering case of respondents for promotion when they were allegedly eligible for promotion and had a right to be considered for promotion. [P. 228 & 229] B

(iii) Constitution of Pakistan (1973)--

—Art. 212—Jurisdiction of service tribunal to consider question of eligibility not excluded from its purview-Civil Servant has a right to be considered for promotion of the possesses minimum qualifications as have been prescribed for eligibility if promotion, however, question as to whether he has been rightly selected or not selected on account of fitness to be promoted has been excluded from the jurisdiction of Service Tribunal.

[P. 229] C

(iv) Constitution of Pakistan (1973)--

—Art. 212—Service rights of civil servants—Such matter fell within exclusive jurisdiction of service tribunal which was competent to determine all questions arising therefrom, connecting or ancillary thereto, determination of which is necessary for decision of main dispute including vires of relevant rules and notifications-Question before High Court was to examine validity of impugned order which sqaurely falls within exclusive jurisdiction of Service Tribunal including the ground that impugned under was without jurisdiction and nullity because such question can be competently inquired into by the Tribunal. [P. 229] D

(v) Constitution of Pakistan (1973)--

—Arts. 212 & 199—Orders of promotion of petitioners were not only made but were alleged to have been acted upon, therefore, the same could not have been withdrawn as contended by petitioners—Such contention was misconceived inasmuch as, order of .promotion was not withdrawn by Departmental Promotion Committee but were quashed by higher authority-Principle of poenitentiae was thus, not applicable-Matter in question being within exclusive jurisdiction of Service Tribunal, writ petition filed before High Court under Art. 199 of the Constitution was not competent. [P. 230] E

PLD 1969 SC 407; 2000 PLC (C.S.) 1070; 1991 SCMR 1540; PLJ 1999 SC 64;

PLD 1994 SC 539; 1994 PLC (C.S.) 1331; 2001 SCMR 1446; 2001 SCMR 777;

PLD 2001 Karachi 344 and 1999 SCMR 1072 ref.

Mr. Muhammad Farooq Wattoo, Advocate for Petitioners.

Syed Hashmat Hussain Naqvi, Advocate on behalf of A.A.G. for Respondents Nos. 1 and 2.

Mr. Altaf Ibrahim Qureshi, Advocate for Respondents Nos. 3 to 6. Date of hearing : 13.6.2003.

judgment

Writ Petition No. 1640/2003 involving common question of law and facts would also be disposed of by this order.

1. With the concurrence of the learned counsel for the parties these are being treated as admitted cases.

2. Facts necessary for the disposal of the constitutional petitions are that petitioners were working as Qanungos in District Pakpattan Sharif. After perusal of their service record they were cleared and selected against reserved quota by the Departmental Promotion/Selection Committee Revenue Department, Pakpattan Sharif for promotion as Naib Tehsildars in the minutes of the meeting held on 16.5.2002. Letters of their promotion and appointments were also issued and they had taken charge of the posts of Naib Tehsildars.

3. Thereafter Respondents Nos. 3 to 5 filed representations before Respondent No. 1 against the aforesaid proceedings of Departmental Promotion Committee. Vide order dated 2.8.2002 Respondent No. 1 accepted the representations and quashed the proceedings of DPC. It was held that selection was made against the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990. Executive District Officer (Revenue), Pakpattan Sharif was directed to initiate proceedings afresh keeping in view all rules, regulations and law in force, after determination and allocation of the seats to all various occupational groups.

4. The aforesaid order of Respondent No. 1 was challenged by the petitioners in departmental representation which was rejected by the Chief Secretary, Government of the Punjab, Lahore vide order dated 16.9.2002.

5. The petitioners filed appeals before Punjab Service Tribunal against the orders dated 2.8.2002 and 16.9.2002 which were accepted by a consolidated judgment dated 9.1.2003. The aforesaid orders were set aside and Respondent No. 1 was directed to decide the representations afresh through a speaking order.

6. On remand Respondent No. 1, after hearing the petitioners, decided the matter afresh on 7.3.2003 and again came to the conclusion that proceedings of the District Selection/Promotion Committee were made in flagrant violation of the rules on the subject; cogent reason was not assigned for deferment of the case of Rauf Ahmad and Nazim Din (respondents in these writ petitions); ministerial staff of Revenue Department in the District, Board of Revenue, Punjab, Directorate of Land Record Punjab and Punjab

Revenue Academic was altogether ignored and inter se rights of different cadres, for promotion to the posts of Naib Tehsildars against reserved quota, were not determined. Proceedings of the DPC were again quashed and fresh proceedings were directed to be completed.

1. The aforesaid order of Respondent No. 1 is called in question in these Constitutional petitions as void, without jurisdiction and nullity interalia on the grounds that petitioners were promoted by the DPC in accordance with law and rules after observing prescribed procedure; that according to the rules promotion cannot be claimed as of right by any civil servant, hence representations before Respondent No. 1 were not competent neither any appeal was competent on matters relating to determination of fitness of promotion of a person to a particular post or to be promoted to a higher post. Therefore, order passed by Respondent No. 1 .on the representation of the respondents was without lawful authority and this Court in its Constitutional jurisdiction is competent to interfere in matter where the authority acts without jurisdiction.

2. Prayer in the writ petitions is to declare the order passed by Respondent No. 1 as without jurisdiction, without lawful authority and of no legal effect.

3. Constitutional petitions were strongly opposed by the respondents on the grounds that jurisdiction of the High Court is harred under Article 212(2) of the Constitution to entertain these Constitutional petitions as the matter fell within exclusive jurisdiction of Punjab Service Tribunal.

4. Arguments heard. Writ petitions and the annexures appended therewith perused.

5. Regarding the bar of jurisdiction of High Court, learned counsel for the petitioners urged that where an order passed by any authority is unlawful, without jurisdiction or void, there would be no bar to the filing of Constitutional petition in spite of alternate remedy being available; the rule that invoking Constitutional jurisdiction was possible only after exhausting all other remedies is a rule of convenience and discretion and not a rule of law affecting jurisdiction. Reference was made in this behalf to:-

(i) Chairman, Central Board of Revenue, Islamabad and 3 others versus Messrs Pak Saudi Fertilizer Ltd. and other (2001 SCMR 777);

(ii) Standard Chartered Bank versus Karachi Electric Supply Corporation Ltd. through Managing Director (PLD 2001 Karachi 344); and

(iii) Gatron (Industries) Limited versus Government of Pakistanand others. (1999 SCMR 1072).

1. I do not agree with the ahove argument because Article 175 of the Constitution provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

Article 199 of the Constitution qualifies the power conferred thereunder on High Court with the words "Subject to the Constitution".

Article 212 of the Constitution opens with the non obstante clause "Notwithstanding anything hereinbefore contained".

1. Constitutional power of judicial review vested in High Court under Article 199 is not inherent as distinct from the judicial power but is subject to limitation provided in the Constitution itself. Hence while

exercising said power, limitation imposed by the Constitution can neither be . overlooked nor dispensed with.

1. Therefore, when it appears or is brought to the notice of High Court that a particular order of departmental authority lies within the ambit of Service Tribunal, jurisdiction of High Court is ipso facto ousted as a result of barring provision of Article 212 of the Constitution and it is not competent

on any ground to examine the validity of an order which falls within the jurisdiction of the Tribunal.

1. Authorities referred by the learned counsel for the petitioners neither relate to service matters nor aforesaid aspect of bar of jurisdiction under Article 212(2) of the Constitution was considered in the same. Therefore, they do not apply to the facts and circumstances of this case.

2. It was next argued that the dispute was with regard to the suitability and fitness of the petitioners and Respondents Nos. 3 to 6, for promotion. Service Tribunal has no jurisdiction against an order or decision of the Departmental Authority determining the fitness or otherwise of a person for promotion to a higher post or grade. In support of the said argument reliance was placed on:—

(i) Rana Muhammad Asif vs. The Secretary to Government of the Punjab, Revenue Department, Punjab Lahore and 4 others (1994PLC(C.S.) 1331);

(ii) Shafi Mughal vs. Secretary Establishment Division and others (2001 SCMR 1446).

The above contention is repelled for the reason that the matter in dispute did not relate to the suitability or fitness for promotion and it was also considered as such by the petitioners on account of which order passed by Respondent No. 1 on 2.8.2002 whereby proceedings of DPC were quashed, was assailed by the petitioners themselves before the Service Tribunal wherefrom the matter was remanded to Respondent No. 1 for fresh decision. After the remand when the same view was again expressed by Respondent No. 1, it does not lie in the mouth of the petitioners to say that Service Tribunal has no jurisdiction to hear appeal against the order of Respondent No. 1.

1. Secondly the contention is also misconceived inasmuch a plain reading of the impugned order shows that, dispute before Respondent No. 1 was not that of suitability and fitness or otherwise of the petitioners and Respondents Nos. 3 to 6, to a higher post but the matter was regarding alleged violation of rules and procedure in the selection and that of not considering the case of Respondents Nos. 3 and 4 for promotion when they were allegedly eligible for promotion and had a right to be considered for promotion.

2. It was held in the case of Muhammad Anees and others versusAbdul Haseeb and others (PLD 1994 S.C. 539) that where question involved in the matter was consideration of various notifications, rules relating to the appointment or promotion of civil servants and interpretation of Section 23 of Civil Servants Act, such matters pre-eminently fell within the exclusive jurisdiction of Service Tribunal and High Court had wrongly assumed jurisdiction in the case under Article 199 of the Constitution, which did not vest in it.

It was further held that question of eligibility for promotion relates primarily to the terms and conditions of service and their applicability to the civil servant concerned and therefore, Service Tribunal has jurisdiction in the matter. Question of eligibility is not excluded from the purview of the jurisdiction of Service Tribunal. It confers a right on a civil servant to be considered for promotion if he possess minimum qualifications as may be prescribed for the eligibility of promotion but question whether he has been rightly selected or not selected on account of fitness to be promoted has been excluded from the jurisdiction of the Tribunal.

1. In this case it was agitated by Respondents Nos. 3 and 4 that in spite of being eligible for promotion they were not considered and their case for promotion was deferred by the DPC without any justification.

2. Dispute before Respondent No. 1, therefore, related to service rights of civil servants which are exclusive concern of Service Tribunal which, in respect of such matters, is competent to determine all questions arising therefrom, connecting or ancillary thereto, determination of which is necessary for decision of the main dispute including vires of relevant rules, regulations and notifications.

3. The question before Respondent No. 1 did not relate to the fitness of petitioners or Respondents Nos. 3 to 6 for promotion. No order was passed by Respondent No. 1 that any of the petitioners or Respondents Nos. 3 to 6 were fit or not fit for promotion. High Court is, therefore, not competent on any ground to examine the validity of the impugned order which falls within the exclusive jurisdiction of Punjab Service Tribunal including the ground that the impugned order is without jurisdiction and a nullity because said question can be competently inquired into by the Tribunal. Reference to be made in this behalf to Khalid Mehmood Wattoversus Government of the Punjab and others (PLJ 1999 S.C. 64) 230 Lah.

4. The authorities referred by the learned counsel for the petitioners which are mentioned hereinbefore, are, therefore, not relevant as dispute did not relate to suitability and fitness for promotion which matters are excluded from the purview of the jurisdiction of the Tribunal.

5. It was finally submitted by the learned counsel for the petitioners that the orders of promotion of the petitioners were not only made but were also acted upon as after issuance of letters of pi-omotions, the petitioners had joined as Naib Tehsildars. Hence, the said orders could not have been withdrawn. Reliance was placed in this behalf on the Chairman,Central Board of Revenue and others versus Muhammad Malook and 11others (1991 SCMR 1540), Pakistan through Secretary Ministry of Finance versus Muhammad Hamayat Ullah Farukhi(PLD 1969 S.C. 407) and Muhammad Mansif and others versus Government of the Punjab Department of Communication and works Lahore and others (2000 PLC (C.S.) 1070).

6. The above argument is entirely misconceived because it is not a case of withdrawal of order of promotion by the DPC. In the present case orders of promotion were quashed by the higher authority and not by the DPC. Hence principle of poenitentiae is, therefore, not applicable.

7. For the reasons stated above, the impugned order passed by Respondent No. 1 falls within the exclusive jurisdiction of Punjab Service Tribunal under Article 212(2) of the Constitution and no writ is competent

in this Court.

Writ petitions dismissed. (A.A.) Petition dismissed.

PLJ 2004 Lahore 230

Present: raja muhammad sabir, J.

SARDAR MUHAMMAD ASLAM-Petitioner

versus

ADDL. DISTRICT AND SESSIONS JUDGE, OKARA/ELECTION

TRIBUNAL FOR TEHSIL CHUNIAN, DISTT. KASUR

5 others-Respondents

W.P. No. 6959 of 2003, decided on 27.5.2003. (i) Constitution of Pakistan (1973)--

—-Ait. 199-Judgment of Election Tribunal assailed on the ground that the

same was without lawful authority and of no legal consequence-Election

Tribunal had declared election of petitioners as Union Nazim to be void

for lack of requisite qualifications-Petitioner firstly committed fraud by

producing fictitious and forged duplicate matric certificate allegedly issued by Board of Intermediate and Secondary Education Lahore and "attached with his nomination papers at the time of election and for the second time producing another forged duplicate certificate during trial of election petition-Evidence on record clearly indicated that petitioner was not a matriculate and through fraudulent means he posed himself to be so to contest election for -the office of Nazim for which he was not qualified at all-Findings of Election petition disqualifying petitioner being based on proper appreciation of evidence do not warrant interference. [P. 237] A

(ii) Constitution of Pakistan (1973)--

—Art. 199—Non-receipt of copy of election petition by petitioner—Effect- Petitioner suffered inherent disqualification to contest election and once such fact was brought into the notice of the tribunal it was its duty to remove him frOm the office in exercise of the power conferred on it-­ Preliminary objections being of technical nature do not affect decision of election petition on merit. [P. 237] B

(iii) Administration of Justice--

—-Tendency of people to play fraud with Courts and institutions without any fear of consequences has led to increase in commission of frauds, spoiled society and has increased negative effect on social set up--In order to nip such vices in the bud to save general public, matter was referred to S.P. of the area for inquiry and registration of criminal case against petitioner with direction that action taken by him in compliance of order of Court would be reported to Court through Deputy Registrar judicial.

[Pp. 237 & 238] C

Sardar Muhammad Latif Khan Khosa, Advocate for Petitioner. Date of hearing : 27.5.2003.

order

This petition under Article 199 of the Constitution is directed against the order of learned Additional District Judge, Okara/Election Tribunal for Tehsil Chunian District Kasur dated 9.5.2003 whereby election petition of Respondents Nos. 2 and 3 was accepted and the election of petitioner was declared void for lack of his requisite academic qualification.

1. Briefly the facts of the case are that Respondents Nos. 2 and 3 called in question the election of Union Council Kull in which Sardar Muhammad Aslam (petitioner) and Akbar Ali were declared returned candidates for the office of Nazim and Naib Nazim. Respondent No. 2 in his election petition stated that basic qualification for a candidate contesting said election was that he would be at least holding a certificate of secondary school. Petitioner alongwith his nomination " papers filed photo-copy of secondaiy school certificate according to which he, in the year 1972 appeared

in annual examination under Roll No. 7964 and was declared successful by the Board of Intermediate and Secondaiy Education, Lahore. However, when Respondent No. 2 made an inquiiy it revealed that petitioner has fabricated and forged certificate in his name, although according to the record of the Board, one S. Badar Ali appeared in the said year under aforesaid roll number who could not qualify the matriculation exam. Since Respondent No. 1 therein was not a matriculate, therefore, eould not contest for the post of Nazim in the election of local Government and his result as successful candidate is liable to be declared as void and illegal on the aforesaid ground.

3.In reply to the election petition petitioner apart from raising few preliminary objections claimed that he was holding a certificate of secondary school examination issued by the Board of Intermediate and Secondaiy Education, Multan from where he had appeared under Roll No. 25295. It was also contended by him that Respondent No. 2 might have tampered with the record of the Returning Officer as the record remained in un-safe hands of Secretary Union Council who had been receiving and scrutizing the nomination papers. According to him Respondent No. 2 in connivance with said Secretary Union Council might have taken away photo-copy of his original certificate- and replaced the same in collusion with some other element with forged document.

1. Election Tribunal on divergent pleadings of the parties framed issues, recorded evidence of the parties and after its evaluation accepted the election petition of Respondent No. 2 against the petitioner mainly on the ground that the petitioner is not a matriculate, produced fictitious and forged certificate with the nomination papers, he lacked the educational qualification prescribed for a candidate, therefore, his election was declared void.

2. Sardar Muhammad Latif Khan Khosa learned counsel for the petitioner contends that the Election Tribunal has not attended to the\ preliminary legal objections raised in the reply to the election petition. Copies of the petition were not delivered in advance to the petitioner by Respondent No. 2, therefore, the election petition was not competent. He further argued that the learned Tribunal .has not properly assessed the evidence of the parties on the record while declaring his .election void. He also argued that the petitioner matriculated from Multan Board and AW-4 produced by Respondent No. 1 was a fictitious person whose particulars are different from the petitioner. His evidence has wrongly been given weight while disqualifying the petitioner.

3. Heard. Record perused. The crucial issues involved in the election petition were Issues Nos. 1 and 10 which are reproduced hereunder :--

4. Whether the Respondent No. 1 produced a forged and fabricated certificate of matriculation against Roll No. 7964, issued from the Board of Intermediate & Secondaiy Education, Lahore, and if so, what is its effect? OPA

5. Whether the Respondent No. 1 has passed the matric examination against Roll No. 25295 from Multan Board and the same was produced by him with nomination form ? OPR

The findings of the Election Tribunal on Issues Nos. 1 and 10 are as under :— "Issue No. 1.

1. The onus of this issue was upon the petitioners who in order to discharge the same, have produced as many as 7 witnesses in the witness box. The witness relevant for disposal of this issue, who appeared as AW-2 is Zulfiqar Ali Copy Clerk/Record Keeper of the office of Returning Office, Chunian, District Kasur who verified that the matriculation certificates of Respondent No. 1 was available of the record of the Returning Officer at Page No. 21. The said document is, the secondaiy school certificate of Humanities Group with regard to annual examination of the year 1970. According to-said document, one Muhammad Aslam s/o Sardar Sharif appeared under Roll No. 7964 whose date of birth was mentioned in the said certificate as 1.10.1955 and who qualified the said examination in second division. A copy of said certificate has also been brought on record as Ex. A-l. In order to prove that it was a forged and fabricated certificate, Ikram-Ul-Haq Assistant of Board of Intermediate and Secondary Education Lahore, appeared in .the witness box as AW-1 who having brought the record of the board pertaining to the year 1972 which was a Gazette notification, deposed that under Roll No. 7964 one S. Badar Ali appeared in annual examination 1972, who failed in the exam. During cross examination it was got verified from him by the Respondent No. 1, through his counsel, that his record do not contain any form of admission to appear in examination by Sardar Muhammad Aslam. He was thereafter not cross-examined on behalf of Respondent No. 1. The statement of this witness thus proves through authentic record that matriculation certificate annexed with nomination paper of Respondent No. 1 and submitted at the time of presentation of the same before the Returning Officer, was a forged and fabricated document which, had no relevancy with the candidate (Respondent No. 1) who then wanted to contest the election for the slot of Nazim of Union Council Kull. When AW-2, the copy Clerk of Returning Officer was cross-examined on behalf of the respondents, a suggestion was put to him, that nomination papers were received by the Returning Officer himself who himself scrutinized the said papers, and the witness admitted-the said suggestion as correct. This suggestion was again repeated after few questions and the witness again admitted the said suggestion to be correct. Putting of this

suggestion twice on behalf of the respondents and admission of the said suggestion by the witness falsified the stance taken by the respondent that, the nomination paper alongwith relevant documents were received by Secretary Union Council and were scrutinized by him. In view of the statements of both AW-1 and AW-2 there remains no doubt to the fact that matriculation certificate annexed with the nomination paper of Respondent No. 1, was a forged and fabricated document.

1. Now comes the question as to what benefit if any, the petitioners were to draw, by re-placing such certificate on record as is the claimed by the Respondent No. 1 in his written reply. Had the petitioners done this act, they would have agitated this matter there and then, and would have produced the relevant .record of the Board of Intermediate & Secondary Education, Lahore to get disqualification of Respondent No. 1 at the initial stage. Admittedly, it did not happen so. Admittedly, no appeal was preferred by the petitioners after acceptance of said papers of the Respondent No. 1. These facts tend to show that the petitioners had, by then no idea that a forged and fabricated certificate has been placed on record. Obviously it were later efforts made by the plaintiffs, after the election was over and the Respondent No. 1 had been declared a returned candidate, that the petitioners came to know about this forgery which brought them with this objection/election petition. Therefore, this contention of the Respondent No. 1 has no force in it, that the petitioner got re-placed the certificate which was issued in his name from Multan Board under Roll No. 25295. The genuineness and authenticity of the said certificate of Roll No. 25295 is to be discussed in later part of this judgment while deciding Issue No. 10. Therefore, it is held that the Respondent No. 1 submitted a forged and fabricated document at the time of presentation of his nomination paper in order to draw benefit for which he was not entitled. The issue is accordingly answered in affirmative.

Issue No. 10.

1. Although it has been proved on record and has been held so, that, at the time of submission of nomination papers, the Respondent No. 1 had submitted fake, forged and fabricated matriculation certificate thus rendering him disqualified for the election of the post of Nazim, let's see and scrutinize the version of the Respondent No. 1 that he had the requisite qualification by remaining successful in passing secondary school examination under Roll No. 25295 from Multan Board and that said certificate was produced by him at the time of submission of his nomination form.

2. The onus of this issue was on the Respondent No. 1. He has produced in the witness box one Alamgir Record incharge of Multan

Board as RW-1 and has himself appeared as RW-2. RW-1 placed on record copy of admission form Exh. R. 1 & copy of result sheet containing Roll No. 25295 for the year annual 1969 as Exh. R. 2. He also deposed that a duplicate certificate Bearing No. 170897 was issued on 6.11.2001. In his cross-examination the witness admitted that certain additions/over writing was made in the. name/caste (Dogar) of the candidate in his admission form. It was also admitted by him that the name, Muhammad Aslam and other particulars regarding the subjects in which the candidate wanted to appear, were made with black ink whereas the word 'Dogar' was written with blue ink. The witness could not admit or deny that before subjects Math & Science, some letter was re-written as "G". The witness first of all denied that the said register was bound many • times, but then it was admitted by him that it was re-bound. All these things tend to show that tampering with record has been made. One fact which remains proved on record is, that whosoever. Muhammad Aslam or Muhammad Aslam Dogar was the real candidate was that who was issued original certificate bearing Sr. No. 34590, as is evident from result statement Ex. R-2. Admittedly, the Respondent No. 1 was not in possession of the original and he has produced a duplicate certificate as Ex. R-3. The original certificate bearing Sr. No. 34590 has come on record through one Muhammad Aslam Dogar who appeared as AW-4. While appearing in the witness box he stated that he had appeared from Multan Board under Roll No. 25295 and on the basis of said certificate he was recruited as a constable in police Department in the year 1973. Said original certificate was later brought on record though Muhammad Jameel record keeper of S.P. Office, Vehari. AW-4 was not suggested during cross-examination that his name was not Muhammad Aslam or that his father's name was not Muhammad Sharif. He was also not suggested that he had assumed the name of Muhammad Aslam s/o Muhammad Sharif having found matriculation certificate of the Respondent No. 1 to get service in police Department. It is needless to mention here that name of Respondent No. 1 is Sardar Muhammad Aslam and the certificate holder is Muhammad Aslam and not Sardar Muhammad Aslam. Had the original certificate come on record from the custody of Respondent No. 1 some advantage could have been given to him but when he was not found in possession of the original certificate, it could no be presumed that it was he, who appeared in the said exam as a candidate and qualified the said exam. It may be added here that since, with the production of AWT-4 in the witness box, the intention of the petitioner's side was clear to the Respondent No. 1, that even his certificate alleged to have been issued from Multan Board was being challenged, therefore, the Respondent No. 1 should have summoned and brought on record the Head-Master or record

keeper of his school at Pakpattan Sharif, through which he allegedly appeared in the exam of Multan Board. He has failed to summon the said witness in the witness box and has thus failed to proved the missing link with regard to his qualification. It may be noted here that according to said certificate Ex. R-3, the candidate's year of birth was 1953 whereas according to the National Identity Card of the Respondent No. 1, a copy of which is annexed with his nomination paper, shows that year of his birth as 1956. This fact also falsifies his claim that matriculation certificate of Roll No. 25295 was issued to him having appeared in matriculation examination. Therefore, it could not be said in view of the evidence available on record that he had passed a secondary school examination even, under Roll No. 25295 from Multan Board. Now comes the question as to whether he had produced with his nomination from a copy of the said duplicate certificate. Admittedly, the said duplicate certificate was issued to him on 6.11.2001 whereas the nomination paper was submitted by him on 29.5.2001, therefore, it could not be presumed that he was able to annex a photo-copy of the same alongwith his nomination form. Now comes the other question as to whether he had annexed with his nomination form a copy of original certificate, bearing Sr. No. 34590. Obviously the said certificate has come on record through another person who is serving police Department. Had the said document not come on record with the clear assertion that on the basis of said certificate the holder of said certificate got his recruitment in the year 1973, even then it could have been presumed that after submission of photocopy of the original certificate, the Respondent No. 1 might have lost the said certificate. Therefore, from which every angle seen, the Respondent No. 1 has absolutely failed to discharge the onus of this issue which is accordingly answered in negative."

1. The perusal of impugned order clearly shows that the petitioner had not appeared as a candidate under Roll No. 7964 which in fact belongs to S. Badar Ali per statement of Ikram-ul-Haq Assistant of Board of Intermediate & Secondary Education, Lahore produced as Ex. A/1. The said candidate failed in the annual examination 1972. During cross-examination it was got verified from him through counsel that his record does not contain any form of admission of Sardar Muhammad Aslam (petitioner). The contradictory plea taken by the petitioner in his written statement that he appeared from Multan Board under Roll No. 25295 is also false. Record Incharge of Multan Board was produced by the petitioner as RW-1 and he himself appeared as RW-2. Copy of admission form Ex. R-l copy of result sheet pertaining to Roll No. 25295 for annual 1969 as Ex. R-2. He deposed that duplicate certificate Bearing No. 170897 was issued on 6.11.2001. In his cross-examination witness admitted that certain additions/over writings were made in the name/cast (Dogar) of the candidate in his admission form.

He also admitted that the name Muhammad Aslam and other particulars regarding the subject in which the candidate wanted to appear were made with black ink whereas the word dogar was written with blue ink. The witness admitted that the register was rebound. The record pertaining to aforesaid roll number was tampered with. The forgery and fraud of the petitioner is further proved when Muhammad Aslam or Muhammad Aslam Dogar the real candidate who was issued the original certificate bearing Serial No. 34590 evident from the result statement Ex. R-2, admitted that the petitioner was not in possession of original and he has produced duplicate certificate as Ex. R-2. The original certificate Bearing No. 34590

has come on record through one Muhammad Aslam Dogar who appeared as AW-4. He deposed that he appeared under Roll No. 25295 and on the basis of said certificate he was recruited as constable in the police department in the year 1973. The original certificate was later on brought on record through Muhammad Jamil record keeper of S.P. Office Vehari. The petitioner firstly committed fraud by producing a fictitious and forged duplicate matric certificate allegedly issued by the F^rd of Intermediate and Secondary Education Lahore and attached with his nomination papers at the time of election and for the second time in producing another forged duplicate certificate of Muhammad Aslam Dogar AW-4 during trial of the election petition. It is proved by evidence on record that the petitioner is not ajnatriculate and through fraudulent means he posed himself to be so to

contest the election for the office of Nazim for which he was not qualified at all. He lacked requisite educational qualification, therefore, his election is void. The findings of Election Tribunal are based on proper appreciation of evidence and warrant no interference.

1. The preliminary objection of the petitioner that he did not receive copy of the election petition in advance is immaterial in the circumstances of the present case. Petitioner suffered inherent disqualification to contest the ejection and once this fact was brought into the notice of the Tribunal it was its duty to remove him from the office in exercise of the power conferred on

him. The preliminary objections are of technical nature which do not affect the decision of the election petition on merit. I find no merit in the contention of the petitioner on the basis of preliminary objection raised in his written statement before the Election Tribunal. The petition has no merit and is dismissed in limine.

1. Before parting with the judgment it has been noticed that the people play fraud with the Courts and institutions without any fear of consequences. Courts are over burdened with real litigation, therefore, have been avoiding to take stern penal action against the fraudulent persons. This tendency has led to increase in commission of frauds, spoiled the society and has created negative effect on social set up. These voices must be nipped in the bud to save the general public. Such people should be dealt with iron hands by giving them deterrent punishment to curb and control increasing tendency of such crimes. The boldness shown by the petitioner in producing

forged duplicate certificate's in Court of law in his defence has forced me to I refer the matter to S.P. Kasur for inquiry and registration of a criminal case lunder the relevant provisions of law against the petitioner. Copy of the

judgment of the Election Tribunal and this\order be forwarded to the S.P.

Kasur for compliance and necessaiy action. The action taken by the S.P.

shall be reported to this Court through the Deputy Registrar (Judicial) of this Court.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 238

[Rawalpindi Bench Rawalpindi]

Present: MANSOOR AHMAD, J.

CHIEF ADMINISTRATOR AUQAF, PUNJAB LAHORE and another-Petitioners

versus

BAQIR ALI SHAH-Respondent F.A.O. No. 98 of 1996, decided on 15.7.2003. (i)

Punjab Waqf Properties Ordinance, 1979 (IV of 1979)--

—-Ss. 7 & 12-Muslim Waqf Validating Act 1913, S. 3-Notification whereby administrations control, management and maintenance of property in question, was taken over by Chief Administrator Auqaf-Respondent's claim over land measuring four kanals within the boundry wall around the shrine on the basis of same-being waqf-ul-Aulad and exclusion of the same from notification-No supportive evidence of any kind was produced whereby four kanals area containing shrine, mosque and graveyard was proved to be a kind of waqf created by waqif in terms of S. 3 of Muslim waqf Validating Act 1913 and that such area was for the benefit, maintenance and support of the family, children and descendants of Waqif—Respondent and his witnesses on the contrary admitted that no • income accrued from the shrine-Property in question, was, thus, not waqf-ul--Aulad and the same was not meant to provide maintenance and support wholly or partially to successors of Waqif. [Pp. 242 & 243] A

(ii) Limitation Act, 1908 (IX of 1908)--

—-S. 5-Civil Procedure Code (V of 1908), 0. XLIII, R. 1-Delay of 17 days in filing appeal against order-Petitioner's application for condonation of delay was allowed against which respondent's appeal before Supreme Court did not succeed—Delay of 17 days, thus, stood condoned— Judgement of District Judge excluding area of 4 kanals from notification in question, was set aside. [P. 243]

PLD 1975 Lahore 1147 ref.

Sh. Iftikhar Ahmad, Advocate for Petitioners.

Malik Noor Muhammad Awan, Advocate for Respondent.

Date of hearing : 4.7.2003.

judgment

Chief Administrator Auqaf, Punjab, Lahore being aggrieved from the judgment and decree dated 26.6.1996 passed by the learned District Judge, Attock, filed the present appeal under Section 12 of the Punjab Waqaf Property Ordinance IV of 1979.

1. Vide notification dated 16.5.1988 issued under Section 7 of the Punjab Waqaf Properties Ordinance, 1979, administration, control, management and maintenance of Khanqah Sakhi Sultan Sardar-ud-Din situated in the revenue estate of Mauza Jabbar Tehsil & District Attock was taken over and the Waqaf Properties attached thereto were also taken over. The .description of the Waqaf Properties is given in the schedule of notification which is reproduced hereunder:—

Schedule

1.Shrine of Sakhi Sultan Sadar-ud-Din alongwith a mosq'ue, five rooms and a graveyard measuring an area of 252-Kanalsand 14 Marias Bearing No. 39 Khatooni No. 112 in the Revenue Estate

of Mauza Jabbar, Tehsil & District Attock according to the

Revenue Record for the year 1975-76.

1. Income from the Cash Boxes placed at the shrine.

2. Offering and subscription made to the said shrine."

3. Syed Baqir Ali Shah, the respondent, filed a petition under Section 11 of the Waqaf Property Ordinance, 1979 on 29th May, 1988 and prayed in the following terms :--

"In the circumstances it is prayed that Notification No. SOP-K674) Auqaf/70 dated 16.5.1988 for an area measuring 04-Kanalswhich is within the boundry wall and wherein are the graves of the family of the petitioner-respondent and which is being used from a time immemorial as a graveyard has assumed the character of Waqaf-ul-Aulad. The notification to the extent of this property be declared of no legal effect and this property be declared as the personal property of the petitioner '--

1. The appellant resisted the application and from the pleadings of the parties issues in the following terms were settled :--

2. Issues.

3. whether the land measuring four Kanals,within the boundaiy wall around the shrine is "Waqaf-ul-Aulad" and cannot be taken over by the Auqaf Department ? OPP

4. Whether the impugned notification issued by the Chief Administrator Auqaf is liable to be set aside as a whole or in part ? OPP

5. Whether the impugned act of the respondents is tainted with malafides? if so with what effect ? OPP

6. Relief.

7. The respondents adduced five witnesses namely Syed Matloob-ul- Hassan PW-1, Muhammad Rafique PW-2, Pir Bukhsh PW-3, Noor Ahmad PW-4, and Baqar AH Shah petitioner-respondent himself has appeared as PW-5. None appeared on behalf of respondent-defendant so they were proceeded against ex-parte and the application of the petitioner-respondent was accepted by the learned District Judge, Attock vide his judgment dated 21.3.1989. The F.A.O. No. 31 of 1989 against the said judgment was filed by the Auqaf Department which was accepted by the learned Single Judge in chamber of this Court vide his order dated 24.5.1994. The F.A.O. was allowed and the case was remanded to the learned District Judge, Attock that the direction that the respondent be allowed to produce evidence. After remand the petitioner-respondent has also examined Sher Alam PW-6 thereafter the respondent-appellant adduced RW-1 Muhammad Munawar Khan, District Manager, Auqaf and produced documents Ex. R-l to Ex. R-5. Vide impugned judgment dated 26th June, 1996 the learned District Judge, Attock accepted the petition to the extent of four- Kanals of land enclosed by the compound wall and notification dated 16th May, 1988 to the extent of 04- Kanal was declared to be null and void against the rights of the petitioner.

8. The learned counsels appearing for both the parties relied on the provision of Section 2 Sub-Clause (III) of Punjab Waqaf Property Ordinance, 1979 and also placed reliance on the provisions of Muslim Waqaf Validating Act, 1913. The judgment of Sheikh Mumtaz Ahmad v. Chief Administrator of Auqaf, West Pakistan, Lahore.(PLD 1975 Lahore 1147) was also relied from both the sides. The definition of Waqaf Property is given in Section 2 of the Punjab Waqaf Property Ordinance, 1979 which reads as follows :--

"Waqf Property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious and charitable, but does not include property of any Waqf such as described in Section 3 of Muslim Waqf Validating Act, 1913 (VI of 1913) under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants.

Explanatibn-I-If a property has been used from time immemorial for any purpose recognized by Islam as religion pious or charitable, then inspite of there being no evidence of express dedication, such property shall be deemed to be Waqf Property".

Explanation-2 to 6---------

1. The other provisions relevant for decision of this case are contained in Muslim Waqf Validating Act, 1913. Section 3 of the Muslim Validating Act, 1913 is relied by the learned counsel for the respondent. Section 3 is reproduced as under :--

Sec. 3. "Power of Mussalmans to create certain Wakfs. It shall be lawful for any person professing the Mussulman faith to create

a Wakf which in all other respects is in accordance with the

provisions of, Muslim Law. for the following among other purposes :—

(a) for the maintenance and support wholly or partially of his family, children or descendents, and

(b) where the person creating Wakf is Hanafi Mussulmans also for his own maintenance and support during his lifetime or for the payment of his debts of the rents and profits of the property

dedicated:

Provided that ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalmans Law as a religious, pious or charitable purpose of a permanent character."

1. The case set up by the petitioner-respondent is that the petitioner is the Sqjjaduh Nasheen of Shrine of Hazrat Sakhi Sultan Sadar-ud-Din and that he is living in adjoining room of the shrine alongwith his family. That there is no income from the shrine. That there is an area which is an area of shrine which is shown as ABCD in the attached plan and in this area is situated the shrine and the graves of the family of the petitioner and the said area is four kanals of land. It is further averred in the petition that from time immemorial this area is graveyard and it has assumed the character of Waqaf-ul-Aulad.

2. By virtue of Muslim Waqf Validating Act, 1913 it was provided that it would be lawful to a person professing the Muslim faith to create a Waqf which in all other aspect is in accordance with the provisions of Mussalmans Laws in the following among other purposes. For the maintenance and support wholly or partially of his family, children or descendants and where the persons creating Waqf is Hanfi Mussalmans also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated. Provided that ultimate benefit in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalmans Law as a religious, pious or charitable purpose of a permanent character.

3. A perusal of the notification shows that an area of 252-Kanals and 14-Marlas of land including shrine, a mosque, and five rooms, and graveyard was taken over alongwith income from the Cash Box. It is admitted in the petition by the respondent that there exist a shrine of Hazrat Sakhi Sultan Sadar-ud-Din and he also claimed to be Sajjadah Nasheen of

that shrine. It is also categorically stated that there is no income from the shrine. The area of four Kanal which is mentioned in the petition and deletion whereof a prayer has been made through the petition is four Kanals of area wherein it is clearly mentioned in the petition that this area contain the shrine, and graves of the encestors of the respondent-petitioner. The respondent-petitioner has further asserted that this area of four Kanals has assumed the character of Waqaf-ul-Aulad. In order to succeed the respondent was required to prove that the property comprising of four Kanals of land containing the shrine and graveyard of his encestors was a Waqf created by a person in favour of their family, children and descendents and ultimately for the benefit of poor or other relevant charitable special purposes as spelled out in Section 3 of Validating Act, 1913. Admittedly the nature of the property is a Waqf property and it falls within the definition of Waqf property as given in Section 2 sub-clause (e) of the Punjab Waqf Properties Ordinance, 1979 and only exclusion is the kind of Waqf which is described in Section 3 of the Validating Act, 1913. From his own showing it is admitted by the respondent-petitioner that the property has been used from time immemorial as a shrine and graveyard which is recognized in Islam as religious, pious and charitable purposes but no evidence has been produced on the record to-show that this property of four Kanals constituted a Waqf the maintenance and support wholly or partially of his family, children, or descendants by a person creating Waqf or in any manner was being used as such Waqf and that ultimately was reserved for poor or for any purpose recognized by the Mussalmans Law as a religious, pious or charitable purposes.

1. Conversely the evidence produced by the respondent-petitioner that the property comprising of shriee and graveyard has no income and that he is a Sajjada Nasheen of the shrine and that the graveyard is only meant for the graves of the ancestors of the respondent-petitioner. All the six witnesses produced by the respondent-petitioner merely stated that within the compound of four Kanals shrine, a mosque and a graveyard is located.

The petitioner-respondent while appearing as PW-5 has admitted that he is engaged in cultivation, that he has personally no land and Annual uts is held at the shrine of Hazrat Sakhi Sultan in August every year and general holiday on the occasion of the Urs is observed in the District Locality. He also admitted that many people come to shrine to pay homage to the shrine including people from North West Frontier Province and from other parts of the Punjab. It is also stated in the cross-examination by the respondent-petitioner that people do offer "Nazrana" to Bibi 'Sahiba and not to the shrine of Hazrat Sakhi Sultan. According to him Syeda Inam Bibi looks after the shrine and manage its affairs and she is his real "Khala".

1. From the evidence on the record I do'nt find any supportive evidence whereby four Kanals area containing shrine, a mosque and the graveyard is proved not to be a kind of a Waqf created by the Waqif in terms

Section 3 of the Muslim Waqf Validating Act, 1913. There is no evidence that

shrine, a mosque and graveyard in the area exist for the benefit, maintenance and support of the family, children or descendents of Hazrat j Sakhi Sultan. On the contrary it is admitted by the respondent-petitioner that the shrine has no income as is evident from the admission contained in the petition as well as in the statements of PW-1 to PW-6. There is a shrine, a mosque and graveyard which is being used from time immemorial, as such therefore, it is safely deduced that it is a Waqf property as is admitted by the respondent-petitioner and the other PWs. It is not a case of Waqf-ul-Aulad as this Waqf property is not meant to provide maintenance and support wholly or partially to the successors of Hazrat Sakhi Sultan. Accordingly it is held that it is not Waqf-ul-Aulad. The learned District Judge, Attock has not advanced any plausible reason to exclude the property from the notification dated 16.5.1988.

1. On the question of limitation neither of the parties has touched the question of limitation in filing the present F.A.O. There is an application for condonation of delay of 17 days in- filing the present F.A.O. The application was allowed by the order of this Court dated 18.2.1997 and the delay was condoned. Against the order passed by this Court on 18.2.1997, the respondent-petitioner filed a petition for leave to appeal before the Hon'ble Supreme Court. Leave was granted on 9.12.1997 but. while finally disposing of CivH Appeal No. 1461 of 1997 the leave granted was withdrawn. As the delay in filing 17 days in filing the F.A.O. has been condoned by this Court vide order dated 18.2.1997 was neither set aside nor modified by the Hon'ble Supreme Court of Pakistan. Keeping in view the ratio of the said order, the delay in filing the F.A.O. is condoned for the reasons already given in the said order.

2. Resultantly, the appeal succeeds and the judgment of the learned District Judge, Attock dated 26.6.1996 is set aside and the application filed by the respondent-petitioner is dismissed.

(A.A.) Appeal dismissed.

PLJ 2004 Lahore 243

[Rawalpindi Bench Rawalpindi]

Present: maulvi ANWAR-UL-HAQ, J.

Hoji MUHAMMAD IJAZ-Petitioner

versus

GOVERNMENT OF PAKISTAN through SECRETARY, MINISTRY OF DEFENCE PAK. SECTT. NO. II, RAWALPINDI

and 2 others-Respondents

W.P.No. 25 of 2003, heard on.30.6.2003.

Cantonments Act, 1924 (II of 1924)--

—-S. 14(l)(b)-Constitution of Pakistan (1973), Art. 199-Varied Cantonment Board constituted in place of existing Cantonment Board without assigning any reason, assailed-Satisfaction of Federal Government as to the reasons as to why it was desirable to vary the Board for the administration of cantonment being essential requisite, same was missing from the order whereby varied Cantonment Board was constituted-Reasons subsequently brought to the notice of Court during pendency of writ petition would hardly constitute a ground for variation in the Cantonment Board-Even if term of elected Members had expired, they would continue to function as Members until election or nomination of their successors was notified-Notification varying Cantonment Board and consequently extending terms thereof, were declared to be without lawful authority and of no effect and the same were quashed and set aside-All the decisions taken or orders made by Member of varied Board, except to the extent of salary, of staff of Cantonment Board and payment of utility bills would stand void unless ratified by the Cantonment Board consisting of elected Members. [Pp. 247, 249 & 250] A & B

1996 CLC 293 and 1997 SCMR 1.

Mr. Razzaq A. Mirza, Advocate for Petitioner.

Nemo for Respondent No. 1.

Mr. Waqar-ul-Haq Sheikh, Advocate for Respondents Nos. 2 & 3.

Date of hearing: 30.6.2003.

judgment

Rawalpindi is a Class I Cantonment within the meaning of Section 13(1) of the Cantonments Act, 1924. A Cantonment Board was constituted for the said Cantonment in terms of Section 13-A (1) of the Cantonments Act, 1924 (hereinafter to be referred as the said Act). The elections of the 12 members was held on 20.5.1998. The 12 persons mentioned in para-1 of the writ petition including Haji Muhammad Ijaz petitioner were elected and they were declared to be so elected vide notification dated 25.6.1998. Purporting to act under Section 14 of the said Act, the Federal Government issued Notification No. SRO 1145(I)/99 dated 5.11.1999 constituting a three members Board under Section 14(3) of the said Act vide notification dated 15.12.1999. This Varied Board was constituted for one year. Vide notification dated 19.11.2000 this period was extended for one year. This was followed by-notification dated 3.12.2001 again extending the period for one year. This notification expired on 5.11.2002.

1. On 3.1.2003 the present writ petition was filed by the petitioner. According to the writ petition upon the expiiy of the said notification the Board constituted under Section 13-A of the said Act stood automatically restored and the petitioner and the other elected members filed an application on 26.12.2002 before the Respondent No. 2 for requisition of

special Board meeting of the Cantonment Board, Rawalpindi. The Respondent No. 2 refused to requisition the meeting vide order dated 30.12.2002. According to the writ petition the said notifications were issued without any rhyme or reason and in any case.upon the expiry of the last notification, in terms of Section 14(5) of the said Act, the Board constituted under Section 13-A stood restored. Then there is a reference to an earlier judgment of this Court reported as 1996 CLC 293 which was upheld by the Hon'ble Supreme Court in the judgment reported as 1997 SCMR 1 and similarly issued notifications were quashed. It was prayed that the said order dated 30.12.2002 be declared to be without lawful authority and the respondents be directed to call the meeting in terms of Section 37(2) of the said Act.

1. The writ petition came up before the Court on 7.1.2003 when Mr. Waqar-ul-Haq Sheikh, Advocate, put in appearance for Respondents Nos. 2 and 3. It was directed that the parawise comments and report be filed within a fortnight. The case was then taken up on 21.1.2003 when the said learned counsel for the respondents sought further time to file the report and parawise comments. On 6.3.2003 a report and parawise comments were filed. In this report the position taken was that on 29.1.2003 yet another notification has been issued extending the period of the Varied Board for another six months. Regarding the petitioner and the other elected members it was stated that they were declared elected vide notification dated 25.6.1998 and the four years term has since expired. This report was considered on 19.3.2003 in the presence of the learned counsel for the parties. It was observed that the notification does not state any reason as to why the said action has been taken within the meaning of Section 14 of the said Act. Learned counsel for the respondents was directed to seek instructions and to file a statement containing reasons as to why the said extension has been made and as to why in the first instance the Varied Board was constituted. The needful was not done and the writ petition was admitted to hearing on

25.4.2003. Notice was accepted by learned counsel for the Respondents Nos. 2 and 3 while notice was ordered to be issued to Respondent No. I as also the learned Deputy Attorney General. On 14.5.2003 the case was taken up in the presence of the learned counsel for the petitioner, learned counsel for

Respondents Nos. 2 and 3 and the learned D.A.G. The latter two requested for adjournement and the case was accordingly adjourned to 23.5.2003. Thereafter the learned D.A.G. did not put in appearance. The case has been heard today in the presence of the learned counsel for the petitioner and the learned counsel for Respondents Nos. 2 and 3.

1. Learned counsel for the petitioner places reliance on the case of Ghulam Habib Rana and another u. Pakistan and others (1996 CLC 293) and the judgment of the Hon'ble Supreme Court of Pakistan whereby the appeal filed by the Cantonment Board, Rawalpindi, against the said judgment was decided (1997 SCMR 1) to urge that all the said notifications are illegal and void on the ground that nothing has been disclosed or brought

on record as to why the Board was Varied. Regarding the stance of the respondents that the terms of the petitioner and the other elected members expired, learned counsel relies upon Section 15-E of the said Act that till the election or the nomination of the successor the petitioner and the other elected members they are to continue to function as members and as such till the said eventuality they are entitled to continue and consequently the and as constituted as a result of the notification of election result dated 20.5.1998 stands restored and has to function. Learned Counsel for the Respondents Nos. 2 and 3 states that because of rapid increase in population the Authority was facing administrative problems which was getting severe day by day and it was decided to bifurcate Rawalpindi Cantonment into Rawalpindi Cantonment and Chaklala Cantonment some times back. According to him, this was the reason for constituting the Varied Board. This contention has been raised with reference to a statement filed in Court in response to the said query. I may note here that this statement has not been added by the office at the time the order dated 25.4.2003 was passed. Learned counsel further contends that the notifications in questions have been issued with lawful authority and in accordance with the said provisions of the said Act.

1. Now under Section 14(1) the Federal Government upon being satisfied-

(a) that, by reason of military operation it is necessary, or

(b) that for the administration of the cantonment, it is desirable, to vary the Constitution of the Board in any cantonment under this section, the Central Government may, by notification in the official Gazette, make a declaration to that effect.

It is further provided under sub-section (2) of the said Section 14 upon making the said declaration the Board in the cantonment shall consist of the following members, namely-

(a) the Officer Commanding the station;

(b) one military officer nominated by name by the Officer Commanding the station by order in writing;

(c) one member, not being a person in the service of the Government, nominated by the Officer Commanding the station.

Under, sub-section (4) the term of office of the Board so constituted shall not ordinarily extend beyond one year. This is subject to the proviso that the Central Government may from time to time, by a like declaration extend the term of office of such a Board by any period not exceeding one year at a time. The further proviso to sub-section (4) lays down that the Central Government shall forthwith direct that the term of office of such a Board shall cease if, in the opinion of the Central Government, the reasons stated

in the declaration whereby such Board was constituted, or its term of office was extended, ,have ceased to exist. Sub-section (5) of the said Section 14 is in the following terms:

(5) When the term of office of a Board constituted under this section has expired or ceased, the Board shall be replaced by'the former Board which, but for the declaration under Sub-section (1), would have continued to hold office, or, if the term of office of such former Board has expired, by a Board constituted under Section 13-A."

1. Now the notification in terms of Section 14(1) is Annex: 'C' which is reproduced hereunder :—

"S.R.O. 1145(l)/99.-Whereas the Federal Government is satisfied that, for the administration of the Rawalpindi Cantonment, it is desirable to vaiy the Constitution of the Cantonment Board in that Cantonment under Section 14 of Cantonment Act, 1924 (II of 1924).

Now, Therefore, in exercise of the powers conferred by sub-section (1) of the aforesaid Section, the Federal Government is pleased to declare that it is desirable to vary the Constitution of the aforesaid Board under the said section for one year with immediate effect.

No. 45/2/B&G/ML&C/91/3471-I/D-12/ML&C/99.

The latter notifications were similarly worded and first of such notifications is Annex: 'D' in the following terms:

"S.'R.O. 802(l)/2000.-In exercise of the powers conferred by the first proviso to sub-section (4) of Section 14 of the Cantonments Act, 1924 (II of 1924), the Federal Government is pleased to extend the term of office of the Cantonment Board, Rawalpindi, varied vide its Notification No. S.R.O. 1145(l)/99, dated the 4th November, 1999, for a further period of one year commencing from the 5th November, 2000."

Admittedly, the last of such notification was issued during the pendency of this writ petition after notice to the respondents.

1. I have examined the said case of Ghulam Habib Rana andanother as also the judgment in appeal by the Hon'ble Supreme Court of Pakistan being cited by the learned counsel for the petitioner. It is but obvious that the respondents have opted to act under Clause (b) of sub­ section (1) of the said Section 14. Now the said provision of law envisages satisfaction of the Central Government as to reasons as to why it is desirable to vary the Board for the administration of the Cantonment. There is nothing in the said notifications and nothing has been otherwise brought on record as to how the Central Government was satisfied that the said extraordinary measure is required to be taken. In the case of Syed SaeedHassan v. Pyar All and 7 othersCPLD 1976 SC 6), the Hon'ble Supreme Court observed as follows with reference to the term "satisfaction":

"Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental perusation much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well settled judicial principles and is a firm state of mind admitting of no doubt or in decision or oxcification. To be "satisfied" with a state of things is to be honestly convinced in, one's own mind. According to Black's Law Dictionary apart from the "legal satisfaction" which is a term of art and connects discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In. Corpus Juris Secundum "satisfy" has been held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."

In this case there is hardly a plea muchless some material on record to enable this Court to adjudge that the Central Government was satisfied on the touchstone of the criteria laid down by the Hon'ble Supreme Court.

1. Now in almost similar circumstances this Court observed as follows while dealing with the term "for administration of cantonment" at page 305 of the said judgment reported as 3996 CLC 293:

"There has to be a desperate situation regarding administration such as a complete or considerable breakdown of administrative machinery, unconscionable neglect of duties of the members of the Board, or conduct of the members in a manner which would paralyze the administrative machine. Minor deficiencies can be got remedied by the Federal Government by administrative directives as well and drastic step warranted under Section 14 is not called for."

1. The Hon'ble Supreme Court with reference to cases of Federationof Pakistan and others u. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166), Khawaja Ahmad Tanq Rahun u.- The Federation of Pakistanthrough Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1992 SC 646) and Mian Muhammad Nawaz Sharif v.President of Pakistan and others (PLD 1993 SC 473) observed as follows in para-11 of the judgment at page 13 of the report:

"11. The above three judgments of this Court support the view which found favour with the Courts below to have examined the

question, whether the satisfaction of the Central Government referred to in sub-section (1) of Section 14 of the Act was founded on the grounds having nexus with objects mentioned in the above-quoted clauses (a) and (b) of aforesaid sub-section (1) of Section 14. Admittedly Clause (a) is not attracted to the case in hand as it has not been contended by the petitioners that the impugned notifications were issued because they were necessary by reason of military operations. The question, therefore, arises, as to whether above Clause (b) of sub-section (1) of Section 14 of the Act could have been pressed into service which provides that "that for the administration of the cantonment it is desirable". The aforesaid clause can be invoked if it can be shown that the act of variation of the Constitution of the Board in terms thereof will eliminate the obstruction in the smooth functioning of the cantonment. In the present case, nothing has been brought on record to indicate that the conduct of the elected members was such which imperilled/hampered the smooth functioning of the Board. The only facts which have been brought on record are that a vote of no-confidence was successfully moved against the Vice-President, Hafiz Hussain Ahmed, and that the later had filed an application before the President of the Board against Respondent No. 7. Ch. Tanvir Khan, for getting him disqualified. This has also been stated that the elected members were grouped into two factions, namely, Muslim League (N) and Pakistan People's Party. Simpliciter the above facts, without having nexus with the - smooth working of the administration of the Board, in our view, are not sufficient to dislodge the elected members of the Board. At this juncture, it will not be out of context to point out that Article 7 of the Constitution gives the definition of the term 'State' by providing that "In this Part, unless the context otherwise requires, 'the state' means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess."

The above definition apparently would include local and -other authorities in Pakistan which are empowered by law to impose any tax or cess. Since admittedly the Board has power to levy tax, it is covered by the aforesaid definition of the term "state".

Now so far as the said reason stated by the learned counsel for Respondents Nos. 2 and 3 is concerned, suffice it to say that he admits that till date the other Cantonment i.e. Chaklala Cantonment Board has not been constituted and is the said Varied Board constituted in place of the Board constituted under Section 13-A of the said Act which is functioning. Even if the said reason is taken at its face value, it hardly constitutes a ground for variation in the Board as the process of de-limitation and thereafter the elections are duly laid down in the said Act itself. I, therefore, do not at all I agree with the learned counsel that the said reason was sufficient to vaiy the Board.

1. I, therefore? find this case to be at all fours with the said cases already decided by this Court and the Hon'ble Supreme Court in appeal.

2. So far as the matter of replacement of the said Varied Board is concerned, Section 15-E of the said Act clearly provides thai: notwithstanding the expiry of the term of members, they shall continue to function as members until the election or as the case may be nomination of their successor to be notified under sub-section (5) of Section 13-A of the said Act.

3. The writ petition accordingly is allowed. The notification Varying the Board and consequently extending the term thereof are declared to be without lawful authority and accordingly quashed and set aside. Consequently all the decisions taken or orders made by the members of the Varied Board, except to the extent of payment of salary to the staff of the Cantonment board and payment of utility bills shall stand void unless ratified by the Cantonment Board consisting of the elected as well as unelected members (as constituted under Section 13-A of the said Act by

130.7.2003. No orders as to costs.

(A.P.) Order accordingly.

PLJ 2004 Lahore 250

[Rawalpindi Bench Rawalpindi]

Present: maulvi ANWAR-UL HAQ, J.

ALI S. HABIB, MANAGING DIRECTOR, INDUS MOTOR COMPANY LIMITED, PORT QASIM, KARACHI and another-Petitioners

versus

S.H.O. MARGALLA POLICE STATION, ISLAMABAD and 3 others-Respondents

W.P. No. 3491 of 2002, heard on 25.3.2003. Pakistan Penal Code, 1860 (XLV of 1860)--

—-Ss. 321, 322, 415 & 420-Registration of criminal case against petitioners, sought to be quashed-Most important ingredient of "Qatl-bis-Sabab" as defined in S. 321 PPC is "doing of an unlawful act" for the death of another person-Petitioners being officials of Motor Company concerned, only act attributed to them that the company where they hold offices, had installed Airbag System which did not function as stated in the manual of company-Petitioners thus, cannot be deemed to have committed any unlawful act envisaged by S. 321 P.P.C.-As far as S. 420 P.P.C. was concerned mens-reais an important ingredient of such offence- Petitioners admittedly did not ever come into contact with respondent/complainant or his son who had purchased car in question manufactured/assembled by petitioners company-Facts stated in complaint do not constitute offence under S. 420 P.P.C.-Registration of F.I.R. on the part of S.H.O. concerned does not only constitute legal malafide but for all purposes, is mala-fide in fact-Respondent had already sought relief in -damages which was pending adjudication-Besides, matter of jurisdictional defect vis-a-vis police is sofar as it proceeded to amend F.I.R. was already there as upon facts no case was made out against petitioners-F.I.R. in question so far as the same related to petitioners was declared to be without lawful authority and was thus, quashed. [Pp. 253, 254 & 255] A, B & C

1996 SCMR 839; 1993 SCMR 1873; PLD 1967 SC 317; 1994 SCMR 2142; 1989 SCMR 922; PLD 1988 Lahore 49; PLD 1989 SC 26 and PLD 1971 Karachi 514 ref.

Syed Hassan Qadir Shah with Sh. Zamir Hussain, Advocates for Petitioners.,

Mr. M. Ikram Chaudhry, Advocate and Mr. Raja Saeed Akram, A.A.G. for Respondents.

Date of hearing : 25.3.2003.

judgment

Bahrain Khan, a young son of Dr. Sher Afgan Khan, Respondent No. 3, lost his life in a road accident in Islamabd. The unfortunate incident was reported at P.S. Margalla, on 22.10.2002 at 9.00 p.m. by Ajmal Khan Respondent No. 2 vide Report No. 38. According to FIR No. 331, the said complainant stated that while he was present on his Motorcycle at Karachi Company, Bahram son of Dr. Sher Afgan Khan who belonged to his area met him and he was asked to accompany the former to Blue Area where he had to go for an important piece of work. Bahram Khan proceeded in his' Car No. LXZ-53 and he followed him on his Motorcycle. While they were going towards Blue Area at about 7.15 p.m., opposite PIMS Hospital on Khayaban-e-Quaid-e-Azam, when they reached near U-turn, Wagon No. K-1985 (Peshawar) and driven by Sheraz took U-turn without stopping and struck the car of Bahram Khan on the front left portion as a result whereof the front portion of the car was completely destroyed while Bahram Khan was seriously injured and lost consciousness. Several passengers in the Wagon were also injured. He, with the help of the passers by who had gathered there took Bahram Khan to the Hospital on another car where the Doctor declared that Baharam Khan has died because of the injuries received in the accident. It was stated that the accident was the result of rash and negligent act of the Driver who took the U-turn at a fast speed. A case under Sections 324/337-G/279/427 PPC was registered, on the same day. On 12. 11. 2002 Dr. Sher Afghan addressed a complaint to the SHO, P.S., Margalla, Islamabad, stating that a Toyota Corolla Motor Car No. LXZ33 is owned by

his elder son Amjad Ali Khan, Naib Zila Nazim, Mianwali. It was asserted that the car was purchased a few months back for Rs. 9,40, OOO/-' and that it was a special model costing more than the other ordinary I1 oyota vehicles by Rs. 1,50,000/-. He referred to Toyota Manuals wherein it is mentioned that the car is equipped with an SRS Airbag System to provide complete protection to the person who is driving the vehicle. Then he refers to the said incident and the fact that during the. investigation the Driver of the Wagon was found to be at fault. He then states that the car was examined by a Motor Vehicle Examiner, Islamabad, who had reported that the said Airbag System had completely failed. He then stated that he is of the firm opinion that his son had died due to defective and sub-standard Airbag system which had failed to work as guaranteed in the said Manual. He requested that a case of murder and cheating be registered against the present petitioners and also the President, Toyota Motor Corporation of Japan.

1. A note was entered in the FIR vide Zimni No. 11 and Sections 322 and 420 PPC were added. Thus a case under the said provisions of law stands registered against the petitioners and Mr. Fujiocho, President, Toyota Motor Corporation of Japan. The present writ petition has been filed seeking quashment of the said FIR to the said latter extent. The petitioner was admitted to regular hearing on 3.12.2002 and notices were issued. In response learned AAG has put in appearance for the State while Mr. Muhammad Ikram Chaudhry, Advocate, appeared for the Respondent No. 3.

2. Learned counsel for the petitioners contends that on the face of it the FIR inasmuch as it involves the petitioners is mala fide, that upon its contents read with the said latter complaint of Respondent No. 3 a case under Sections 322 and 420 PPC is not made out against the petitioners. Further states that the Respondent No. 3 has already filed a suit for the recovery of damages against the petitioners and the said President of the said Corporation. According to the learned counsel the FIR has been got amended to put pressure upon the petitioners in the matter of the said civil suit for damages. Further contends that petitioners have never come into contact with Respondent No. 3 or his son who had purchased the car. According to the learned counsel no unlawful act has been committed by the petitioners within the meaning of Section 322 PPC and there is not even an allegation of commission of such an act while no case of fraud and cheating stands made out upon a reading of the contents of the said FIR and the said complaint. He, inter alia, cites judgments in the cases of Sheikh Mahmood Saeed andothers u. Amir Nawaz Khan and another (1996 SCMR 839), Malik SalmanKhalid u. Shabbir Ahmad, D & S. J. Karachi and another (1993 SCMR 1873) and Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317).

3. Learned AAG is of the opinion that com'mission of an unlawful act is the main ingredient of an offence as defined in Section 322 PPC which is missing in the present case.

4. Learned counsel for Respondent No. 3 has not much to say in the matter of the inclusion of Section 322 PPG in the FIR. He, however, vehemently urges with reference to the relevant contents of the said Toyota Manual that an "assurance was given of proper function of the said Airbag System which also involves payment of extra money apart from the cost of the vehicle and since the System had not worked when the car collided with the said Wagon, this constitutes, according to the learned counsel, constructive fraud and as such a case under Section 420 PPC has been rightly registered against the petitioners. He relies on the definition of constructive fraud as given in Black's Law Dictionary and also cites judgments in the cases of Brig. (Retd.J Imtidz Ahmad v. Government ofPakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142) and Malik Muhammad Tufail v. S.H.O. Police Station MithaDar, Karachi (South) and others (1989 SCMR 922).

5. I have gone through the file of this case as also the available records. Now before I proceed further I may state that I have examined the judgments cited by both the learned counsel for the contesting parties. All these judgments have been rendered by the Hon'ble Supreme Court of Pakistan in various facts and circumstances. To my mind the gist of the rule laid down by the Hon'ble Supreme Court on the subject of exercise of powers under Article 199 of the Constitution or Section 561-A Cr.P.C. by this Court is that the powers available to the Court in the matter are very wide but these have to be sparingly exercised only to prevent abuse of the process of law or Court as the ends of justice may require. In the said case of Brig.(Retd.)_ Imtiaz Ahmad, the Hon'ble Supreme Court has advised judicial restraint as it is so essential "to the continuance of rule of law" and that the review within the meaning of Article 199 of the Constitution is to remain strictly judicial and care has to be taken not to intrude upon the domain of the other branches of Government.

6. In the light of the said dictum, I have examined this case. Now Section 321 PPC which defines the offence of "Qatl-bis-sabab" may be reproduced here:

"321. Qatl-bis-sabab.-Whoever, without any intention to cause death if, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab."

Now it will be seen that mens-rea is not an ingredient of the said offence. However, as stated by the learned AAG the most important ingredient is "doing of any unlawful act" which becomes a cause for the death of another person. Now the Petitioner No. 1 is stated to be the Managing Director while Petitioner No. 2 is said to be the Chief Executive of the Indus Motor Company Limited. It is an admitted fact that the said Company assembles/manufactures the Toyota Cars in Pakistan. Now the only act attributed to the said petitioners is that the Company, where they hold the said offices, has installed an Airbag System in the said car of the son of the 'Respondent No. 3, which did not function as stated in the said Manual. To

my mind this cannot be termed as an unlawful act as envisaged by the said

Section 321 PPC on the part of petitioners.

1. So far as Section 420 PPC is concerned the offence is defined in Section 415 PPC. Now unlike Section 322 PPC, mens-rea is an important ingredient of this offence. Suffice it to say that it is not even an allegation that the petitioners ever came into contact with Respondent No. 3 or his son who had purchased the car. Upon a plain reading of Section 415 PPC, constructive fraud as defined in the said Dictionaiy does not fall within ts

I ambit.

1. Now reverting back to the said dictum of the Hon'ble Supreme Court of Pakistan, this is a case where upon reading of the first report as also the said latter complaint the case under the said two provisions does not stand made out. This is a stage where no other remedy is available to the petitioners and they have approached this Court invoking its jurisdiction under the said Article 199. Now so far as the said contention of the learned counsel for the petitioners as to mala fides is concerned, learned counsel for the Respondent No; 3 states that his client is an elected Member of the National Assembly and such a conduct cannot be attributed to him. Now no doubt that the said Dr. Sher Afgan is certainly a leader of our people. He has gone to hustings several times and has been returned to the Parliament by the people of his area. Of course, the grief of a father over the loss of a son in the prime of his youth is understandable. He has reported the said matter to the concerned SHO. Now borrowing the argument of learned counsel for Respondent No. 3 malafides may be mala fides, in fact and then these may be in law. It was for the said SHO to have read the contents of the said report and to have examined the said relevant provisions instead of proceeding in the matter and to blindly amend the FIR. This latter act does not only constitute a legal mala fide but for all purposes is a mala fide, in

fact. I may refer to a judgment by a Full Bench of this Court in the case of Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lahore 49) upheld by the Hon'ble Supreme Court in the judgment reported as PLD 1989 SC 26). Mr. Justice Muhammad Afzal Lone (as his Lordship then was) thus observed in para 53 of the said report appearing at pages 103 and 104:

"Malice in law is thus, different from the malice as known in the common parlance which is usually associated with evil motive influencing the mind of the person committing the malicious act"

The distinction between the two categories of malice is also evident from the following observation in the judgment of Division Bench of the Karachi High Court in the case of Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others (PLD 1971 Karachi 514) :--

"....An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the Authority passing the order...."

1. This may be a case in torts and the Respondent No. 3 has already sought relief in damages. His suit is stated to be pending before a learned Civil Judge at Islamabad. Further the matter of jurisdictional defect vis-a-vis the Police is there inasmuch as it has proceeded to amend the FIR when a case, cognizable or otherwise, is not made out upon the facts stated before the concerned Police Officer. The present, therefore, is a case where ends of justice require that a certiorai be issued in the matter of the said FIR.

2. For all that has been discussed above, the said FIR inasmuch as it has been amended and a case under Section 322/420 PPC has been registered against the petitioners is declared to be without; lawful authority and is accordingly quashed.

3. A copy of this judgment be .immediately remitted to the learned District Judge, Islamabad, who shall direct the learned Civil Judge in seizen of the civil suit filed by the Respondent No. 3 to proceed expeditiously and to decide the suit preferably before the year 2003 is out. No orders as to costs, (A.A.) Petition accepted.

PLJ 2004 Lahore 255

[Rawalpindi Bench Rawalpindi]

Present: TANVIR BASHIR ANSARI, J.

RAJA BASHARAT HUSSAIN and 3 others-Petitioners

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through its CHAIRMAN and 3 others-Respondents

W.P. No. 2524 of 2002, decided on 23.7.2003. (i) Capital Development Authority Ordinance, I960-

—S. 12(5) Obtaining of "No Objection Certificate" from C.D.A. for every piece of land which was proposed to be acquired through notification from time to time was not necessary obligation where aggregate of land was required for the same comprehensive scheme-Provision of S. 12(5) of Capital Development Authority Ordinance 1960, only ordains that no planning or development scheme would be prepared for any person by any Local Body or agency except with its concurrence-"No objection certificate" issued by Capital Development Authority would cover all or any acquisition of land which forms part and parcel of development scheme as a whole. [P. 260] B

(ii) Land Acquisition Act, 1894 (I of1894)--

-—S. 4-First notification under Section 4 of Land Acquisition Act 1894, lapsed and became ineffective-Subsequent notification-Effect-Un- explained and un-accounted delay alone would adversely affect acquisition proceedings-No premium can be placed upon default of Acquisition authority itself-No delay was discoverable in present case which could defect or demolish acquisition process itself. [P. 260] A

(iii) Land Acquisition Act, 1894 (I of 1894)--

—S. 4-Acquisition of land for public purpose-Petitioner's contention that original purpose was described in notification as "defence purpose" which was later altered into purpose for establishment of "Housing Scheme for Army Personnel", would not advance case of petitioners in that description of public purpose earlier is more comprehensive and general purpose which does not in any manner come in conflict with later described purpose-Both purposes aim at promotion of general welfare of defence personnel-Judicial notice of acute shortage of accommodation and rehabilitation facility for beneficiaries of Army Welfare Trust can be taken-Suitability is the essence of public purpose which is a matter within the exclusive domain of acquiring Agency. [Pp. 260 & 261] C

(iv) Land Acquisition Act, 1894 (I of 1894)--

—S. 4-Constitution of Pakistan (1973), Art. 199-Acquisition of land by Army Welfare Trust assailed-Army welfare Trust does fall within definition of a company and land can be acquired for a public purpose having nexus with such Trust-Constitutional petition being without merit was, thus, not maintainable. [P. 261] D

2002 CLC 985; PLD 1972 SC 279; PLD 2002 SC 706; PLD 1985 Lahore 355

and 1993 CLC 558 ref.

Mr. Ibad-ur-Rehman Lodhi, Advocate for Petitioners.

Ch. Mushtaq Ahmad Khan, Advocate and Mr. Raja Inam Ameen Minhas, Advocate for Respondents Nos. 2 to 4.

Malik NobaharAli, Advocate for Respondent No. 1. Date of hearing: 26.5.2003.

judgment

The brief facts are that the petitioners are land owners in villages Niazian Hummak, Sihala and Dhoke Kanial Tehsil & District Islamabad.

1. In the year 1992 the Army Welfare Trust (Respondent No. 3) acquired land in these villages through private negotiations. On 13.2.1995 notification under Section 4 of the Land Acquisition Act, 1894 was published whereby, it was notified that the land mentioned therein was required for acquisition for defence purposes/ No further proceedings were carried out in pursuance of this notification under Section 4 of the said Act and resultantly

on 1.1.1997 the District Collector, Islamabad informed the acquiring agency

that on account of lapse of time the notification under Section 4 had lost its efficacy and has been rendered null and void.

1. It further transpires from the record that at the instance of Respondent No. 3 a fresh notification under Section 4 of the Land Acquisition Act with regard to the lands in the aforementioned villages was published on 19.8.1998, wherein, land in villages Hummak and Niazian was proposed to be acquired for the purpose of the Army Welfare Trust to meet the Housing requirements of Army Personnel at the expense of the State.

2. It also appears from the record that C.D.A. (Respondent No. 1)

had accorded "No Objection" and allowed the development of the whole scheme for which the land was to be utilized through its letter dated

23.6.1994. This approval was granted as required under Section 12(5) of the CDA Ordinance, 1960.

1. A further notification under Section 4 was published on 31.12.1998 whereby the land in village Kurtana was sought to be acquired to

meet the scheme of Housing requirement of Army Personnel by Army Welfare Trust. This was followed by a notification under Section 17 dated 28.10.1999 which was issued with regard to village Hummak Niazian and Kurtana. After necessary proceedings the Land Acquisition Collector

announced its award dated 23.10.2001 and 28.2.2002 respectively whereby

the compensation regarding built up area and that regarding agricultural land was respectively paid. Possession was also taken over through the

revenue staff.

1. The instant writ petition has been filed by the petitioners who are

land owners in village Niazian and Hummak respectively. The proceedings carried out by the Land Acquisition Collector and the ensuing awards have

been called in question on the grounds that there was in-ordinate delay in

completion of the process of Acquisition and payment of compensation

whereby the entire Acquisition process was rendered null and void; that the

requisite NOC was not obtained from the CDA under Section 12(5) of CDA

Ordinance, 1960 in the absence of which the entire acquisition proceedings became illegal and that the only NOC dated 2.1.1994 was with regard to

village Hummak alone and that too for a limited purpose and that this NOC could not be used for the acquisition of land in other villages namely Niazian

Kurtana etc; that the land was not acquired for a public purpose as

recognized under law, in that in the earlier notification the purpose of acquisition was mentioned as defence purposes while in the subsequent

notifications the same was mentioned as establishment of housing society for

Army Personnel.

1. On the other hand, the claim of the petitioners was controverted

on various legal and factual grounds. It is contended that the petitioners had

no locus standi to invoke the jurisdiction under Article 199 as remedy

available under Land Acquisition Act has not been availed of; that the delay

by itself does not nullify the entire acquisition proceedings, unless the delay is contumacious unreasonable and a result of negligence on the part of acquiring authority; that the CDA had issued the necessary NOC which is relevant for the entire scheme and is not to be obtained on issuance of each separate notification in respect of the same scheme and that it is in the discretion of the acquisition authority to dispense with the requirements of Section 5 and 5-A of the Land Acquisition Act. Even otherwise it is submitted that the Acquisition process is complete compensation has been paid and the possession has been taken over through the revenue staff.

1. Mr. Ibad-ul-Rehman Lodhi, Advocate for petitioners has placed reliance upon the case cited as Divisional Engineer (Dev), N-II T&T. vs.Rana Muhammad Sharif 2002 CLC 985 in order to support his contention that the delay in Acquisition proceedings without a reasonable plausible and compelling explanation of the process of Acquisition and payment of compensation to affected persons would defeat the acquisition itself. He also referred to case of The Murree Brewery Co. Ltd. vs. Pakistan and 2 othersPLD 1972 SC 279 to contend that Acquisition of Land by advancing different reasons at different times was ample proof of malafides of the acquiring agency. The learned counsel also referred to the Islamabad Capital Territory (Zoning Regulation 1992) in order to emphasis that any acquisition in violation of the said Zoning Regulations would by void. According to him the land in question fell in Zone No. 5 which could not be utilized for the purpose which violated the said Zoning Regulations.

2. It is further submitted that acquisition is in gross violation of Section 12(5) of the CDA Ordinance which prohibits the acquisition of land without a requisite NOC from CDA. Section 12(5) is reproduced as under :--

"No planning or development scheme shall be prepared for any person or by any local body or agency except with the concurrence of the authority."

1. It is contended that NOC relied upon by the respondents as contained in the letter dated 2.1.1994 was with regard to village Hummak only and could not be extended to the other villages.

2. Chaudhary Mushtaq Ahmad Khan, Advocate relied upon Sub (Rtd.) Muhammad Ashrafvs. D.C. Jhelum and others PLD 2002 SC 706 to contend that the land in question has been acquired after completion of all the necessary formalities as envisage under the Land Acquisition Act, 1894 and no illegality whatsoever has been committed by the functionaries concerned. The purpose for which the land was acquired squarely fell within the purview of a public purpose and could not be challenged on this ground. He further relied upon the case of Raja Muhammad Amer and 14 others vs.Province of the Punjab and 2 others PLD 1985 Lahore 355 to contend that the purpose furthering general interest of community as opposed to particular, interest of an individual is to be construed as a public purpose. The learned counsel relied upon 1999 MLD 1186 (M/s U.CC Private Limited

us. D.C. Lahore) to contend that Army Welfare Trust was fully covered by definition of Company as given' in Section 3(c) Land Acquisition Act, 1894 and that the Acquisition of Land by a registered Trust for public purpose was valid.

1. The learned counsel further relied upon PLD 2002 SC 706 Subedar (Rtd.) Muhammad Ashraf vs. D. C. Jhe.lu.rn to contend that where a notification issued under the Land Acquisition Act was not challenged for almost 7 months, a constitution petition challenging the same thereafter would suffer from laches. To the same effect reference has been made to the case of Liaquat Rasheed and three others, vs. The Commissioner LahoreDivision 1993 CLC 558.

2. Arguments have been heard and record perused.

3. The parties are not at divergence as regards the basic facts of the case. It is admitted that the petitioners are owners in the villages, wherein, the land has been acquired under Act of 1894: It is also not disputed that earlier notification under Section 4 issued on 13.2.1995 was in respect of land situate in village Niazian Sihala and Hummak and were required to be acquisition for defence purpose. This notification had lapsed. Thereafter fresh notification under Section 4 was issued on 19.8.1998. A further notification was issued on 31.12.1998 whereby the land in village Kurtana was also sought to be acquired.

4. It is further not disputed that CDA had issued only one NOG on 2.1.1994, wherein only village Hummak was mentioned.

5. Deduced from the above, the following pointswould require determination in this constitution petition :—

(i) Whether there was such delay in the Acquisition proceedings which can be termed as unreasonable, unexplained and a result of gross negligence which would defeat the entire proceedings.

(ii) Whether the requisite NOC as contemplated by Section 12(5) of the C.D.A. Ordinance 1965 was not granted in respect of the entire acquired land and whether this deficiency shall vitiate the Acquisition proceedings.

(iii) Whether there was any material change in the purpose of acquisition as disclosed in the successive notifications issued under Section 4 of the Land Acquisition Act and if so whether the same would defeat the Acquisition proceedings.

(iv) Whether the Acquisition proceedings are malafide.

1. As noticed herein before the first notification under Section 4 of the Land Acquisition Act was issued on 13.2.1995. This notification had lapsed and had become ineffective. It is not denied that for the purpose of the scheme almost 60% land had been obtained from the land owners through private negotiations. The first notification having lapsed, Respondent No. 3 proposed that the land which was not privately purchased was to be acquired afresh. A fresh notification under Section 4 was thus issued on 19.8.1998. A notification under Section 4 was further issued in respect of land situate in village Kurtana on 31.12.1998. It is pertinent to note that there is absolute no delay in so far as the Acquisition proceedings commencing from the subsequent notification under Section 4 are concerned. To the contrary on account of urgency notification under Section 17 of Act was issued on 28.10.1999 and 8.3.2001 respectively regarding all the villages. Through both these notifications it was declared that provisions of Section 5 and 5-A of the Act would not apply to the instant case. The respective awards were announced on 23.10.2001 and 28.1.2002. The petitioners are complaining of delay with reference to the first notification dated 13.2.1995 which stood lapsed in the circumstances herein before mentioned. In this view of the matter, the petitioners' reliance upon the case of Divisional Engineer (DEV) N-II T&T. (Supra)is not apt. It is only such delay which is unexplained and unaccounted for which adversely effects the Acquisition proceedings. Indeed no premium can be placed upon the default of the Acquisition authority itself. In the present case, however, no such delay is discoverable which could defeat or demolish the Acquisition process itself. 18. The contention raised by the learned counsel for the petitioners that NOC dated 2.1.1994 did not cover the entire land sought to be acquired and was limited only to the area of village Hummak is devoid of force. Section 12(5) of the CD A Ordinance 1960 does not obligate the acquiring agency to obtain an NOC from CDA from every piece of land which is proposed to be acquired through a notification from time to time if the aggregate of land is required for the same comprehensive scheme. This provision of law ordains that no planning or development scheme shall be prepared for any person by any local body or agency except with the concurrence of the authority. The C.D.A. through its NOC dated 2.1.1994

decided as under :--

"CDA has no objection and Army is allowed to develop whole scheme including the land belonging to CDA."

1. It would make no difference if this NOC only mentioned the transfer of CDA land in area of Hummak only. The No Objection Certificate issued by CDA was in respect of the whole scheme as envisaged and this NOC would cover all or any Acquisition of land which forms part and parcel of the development scheme as a whole.

2. The contention of the learned counsel for the petitioner that the original purpose was described in the notification as "defence purposes" which was later altered into the purpose of establishment of Housing

Scheme for Army Personnel, does not advance the case of the petitioners. In the first place the description of public -purpose earlier is a more

comprehensive and general purpose ?.nd does not in any manner come in conflict with the later ascribed purpose. Both the purposes aim at promotion of general welfare of defence personnel. Judicial notice of acute shortage of accommodation and rehabilitation facility for the beneficiaries of the Army Welfare Trust can be taken. What suitably is the essence of a public purpose is a matter which is within the exclusive domain of the acquiring Agency. Nothing has been brought on the record to detract from the same.

1. The next submission that the Acquisition proceedings are tainted with malafides is not supported by any material available on the record.

2. On the other hand, it is found that Army Welfare Trust does fall within the definition of a company and land can be acquired for a public purpose having nexus with such Trust. D

3. The upshot of the above discussion is that this writ petition is found to be without merit which is hereby dismissed.

(A.P.) Petition dismissed.

PLJ 2004 Lahore 261

Present:abdul shakoor paracha, J.

NOOR ILAHI-Petitioner

versus

MUHAMMAD ISMAIL through Legal Representatives and others-Respondents

C.R. No. 144/D of 1997, heard on 7.5.2003.

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

—-O. XX, R. 14(l)(a) & S. 115-General Clauses Act, 1897 (X of 1897), S. 10- Deposit of pre-emption money-Plaintiff (decree holder) failed to deposit pre-emption money on the date fixed by Court-Effect-Modes of paying money under a decree has been described in O. XXI, R. 1 C.P.C:, requirements whereof, would be satisfied if proper tender of money was made in time—Where a Court or office was closed on the day when an act was to be performed therein, such act can be performed on the next opening day of the Court or the office-Working hours on target date being 9 a.m. to 12 noon, next day was holiday, therefore, plaintiff could have deposited amount in question, on 10.12.1983-Pre-emption money having not been deposited on that date, there was no tender of purchase money-Plaintiff was thus, disentitled to the benefit of S. 10 of General Clauses Act 1897 as there was no executable decree in his favour on the day when he deposited pre-emption money. [Pp. 263 & 265] A & B

1993 SCMR 535; 1973 SCMR 243; PLD 1986 Peshawar 109; AIR 1994 Lahore 740 and PLD 1957 Lahore 92 ref.

Ch. Mozammal Khan, Advocate for Petitioner. Mr. Ghulam Sabir, Advocate for Respondents. Date of hearing: 7.5.2003.

JUDGMENT

A. suit for possession through pre-emption filed by Noor Ilahi, petitioner, was dismissed by the trial Court, but was decreed by the First Appellate Court in appeal vide judgment dated 13.11.1983 with a direction to the petitioner to deposit the decretal amount by 8.12.1983 less already paid and in case of his failure the suit was to be dismissed. On the said date, i.e. 8.12.1983 when the petitioner-decree holder went to deposit the amount, the successor of the trial Judge was on leave, so an application was moved to the Duty Judge to allow the decree-holder to deposit the pre-emption money. The case of the petitioner was that he alongwith Ch. Ghulam Mustafa Chohan, Advocate, After obtaining permission to deposit the amount, with challan went to the Bank to deposit the money but the banking hours were off. The learned Duty Judge also refused to get the money. The learned Additional District Judge was on tour to Narowal. On 9th December, 1983 it was Friday and the Courts were closed due to holiday. The petitioner moved an application to the appellate Court for extension of time. This application for grant of extension of time was dismissed by the learned Additional District Judge vide his order dated 14.1.1984. Civil Revision filed there-against bearing C.R. No. 872 of 1984 was allowed by this Court videorder dated 24.6.1992 and the application allowing the deposit of pre-emption money was remanded with the following observation:-

"He was therefore, entitled to lead evidence to show that he was ready with the money , had approached the Cashier but he had declined to receive it because it was Thursday and that bank had already closed its banking business and that then the petitioner had approached the learned Duty Civil Judge then gone to Sialkot and then again approached the learned Civil Judge at Pasrur."

It was further observed that question before the learned Additional District Judge was not whether the time fixed in the decree should or should not be extended, it was 'whether or not the petitioner did all that lay in his power to do to deposit the money on 8.12.1983 and the decree dated 13.11.1983 was, therefore, complied with'.

1. The Civil Appeal No. 452 of 1992 filed by Muhammad Ismail, respondent, and others in the Hon'ble Supreme Court was dismissed on 27.4.1994. In the pursuance of the order dated 24.6.1992 passed by the High Court, referred to above, the learned Additional District Judge recorded the evidence of the parties. The learned Additional District Judge by referring the statement of Muhammad Nazir, Clerk of Ch. Ihsanullah,, Advocate, Pasroor,, PW-1 and Ch. Ghulam Mustafa Chohan, Advocate, PW-2, rejected the application vide the impugned order dated 31.7.1996, hence this civil revision.

2. The learned counsel for the petitioner contends that the remand order dated 24.6.1992 passed by the High Court has not been complied with by the learned Additional District Judge while passing the impugned order. He states that the evidence on the record, particularly the application Exh. P.I for permission to deposit the money and the challan Exh. P-l/B, Exh.P.l/C and Exh.P.l/D signed by the learned Duty Judge on the same day, i.e. 8.12.1983, would show that the petitioner made genuine efforts to pay the amount on the stipulated date but the deposit could not be made in the Bank owing to expiry of Banking hours and the Court itself was on leave on the day which was the last one for depositing the purchase money, and further the next day. was holiday, the petitioner obtained permission and deposited the purchase money in compliance with the decree.

3. Conversely, the learned counsel for the respondent submits that the petitioner did not deposit the money within the stipulated time therefore there was no decree in favour of the petitioner. Further contends that the evidence has been appreciated by the Court in pursuance of the remand order by the High Court.

4. I have considered the arguments of the learned counsel for the parties and perused their record with their assistance. In compliance with the provisions of Order XX Rule 14(l)(a), CPC, the Court directed the petitioner decree-holder to pay the purchase money by 8.12.1983. Modes of paying money under a decree have been described in Order XXI Rule 1 CPC. The requirements of this rule are satisfied if proper tender of money is made in time. Under Section 10 of the General Clauses Act if a Court or office is closed on the day when an act is to be performed therein, the act can be performed on the next opening day of the Court or the office. In case reported as Nijabat Khan us. Nur Ahmad and 7 others (PLD 1957 (W.P.) Lahore 92) it has been ruled:-

"The section would be applicable even if the Court or office is closed for a part of the day, for it was the party's right to perform the act in that part of the day for which the Court or office was closed, and therefore,, even when the Court or office is closed for some part of the usual working hours, the party concerned would get the benefit of Section 10. When a treasury or the bank refuses to accept a deposit on the ground that it transacts business only up to a certain time then the treasury or the bank should be deemed to be closed for that part of the day in which it refuses to transact such business and the party concerned should have the right to make the deposit on the next day." In the Nijabat Khan's case, mentioned above, B.Z. Kaikaus, J., as Mylord then was, differed with the view of the case of Mahbub Ali and another (AIR 1944 Lah. 740) by observing:-

"I must state that I find some difficulty in regarding the offer of the decretal amount as tender in the strict legal sense. If it were to be so regarded, the result would be that it would be tentamount to payment and after having once offered the money to the Imperial Bank, the person concerned would not be under any obligation to make any further effort for the payment- of the money."

His Lordship proceeded to express his own view in the following words:-

"My own view of the effect of refusal of treasury or the bank to accept a deposit at any time within Courts hours is that we should regard the treary or the bank as being closed on that day and should give the party concerned the same benefit as he would have if the treasury or the bank was closed. Under Section 10 of the General Clauses Act if a Court or office is closed on the day when an act is to be performed therein, the act can be performed on the next opening day of the Court or office."

1. In the case reported as Khan Muhammad and another v. Mir Zaman (PLD 1986 Peshawar 109) while interpreting the provisions of Order XX Rule 14 CPC it was held:-

"In case of inability'to deposit pre-emption money due to rush on bank on last day, pre-emptor would have to demonstrate due vigilance by immediately approaching Court to tender pre-emption money. In such case benefit of S. 10, General Clauses Act would be available to pre-emptor."

In the above referred case, the pre-emptor was non-suited on the ground that the transaction was not a sale but in fact exchange and that the pre-emptor did not deposit the amount in compliance with the time fixed by the Court.

1. In Khadim Hussain's case (1973 SCMR 243) delay of one day was deemed to be due to negligence of tenants and striking of their defence was considered to be justified. This case of Khadim Hussain (supra) was brought to the notice of the Hon'ble Supreme Court in the case reported as MalikShoaib Anwar vs. Bashir Hussain Shami and 2 others (1993 SCMR 535) and delay of one day in deposit of rent in compliance with Section 13(6) of Ordinance No. VI of 1959 was condoned by observing: -

"Question whether tenant was guilty of default and had committed violation of Court's order passed under S. 13(6) of the Ordinance No. VI of 1959, could only be answered by an examination of special facts and circumstances of each particular case and no hard and fast rules could be laid down in such matters."

1. On the touchstone of the above referred case law, the question for determination before this Court is whether the petitioner decree-holder has complied with the condition of deposit of purchase money within the stipulated time by 8.12.1983. The following facts are admitted on the record-

(i) the decree as required under Order XX Rule l(a), CPC, directing the petitioner to deposit the purchase money by 8.12.1983 was granted by the appellate Court on 13.11.1983;

(ii) Ch. Ghulam Rasul, Civil Judge, Pasrur was on leave on 8.12.1983;

(iii) an order was duly passed by the learned Duty Judge for deposit of the pre-emption money on 8.12.1983 as is evident from the application Exh.P.l and the challan form Exh.P.l/B, Exh.P.l/C and Exh.P.l/D coupled with the statement of Muhammad Nazir, Clerk of Ch. Ihsanullah, Advocate, PW-1 and Muhammad Khalid PW-4, the then Reader of Mr. Shabbir Hussain Chaudhry, Civil Judge, Pasrur.

1. If it was Thursday and the working hours of the Bank on 8.12.1983 were from 9 a.m. to 12 Noon as stated by Minca Manzoor Baig, Head Cashier of National Bank of Pakistan, PW-3, the next day, i.e. 9.12.1983 it was holiday due to Friday, the petitioner could have deposited the amount on 10.12.1983, which has not been done. On the contrary, an application Exh. P.2 was moved before the Additional District Judge, Sialkot and the amount was deposited on the next date, which is not in accordance with the mandate of the decree dated 13.11.1983.

2. On the basis of the above stated facts, it is concluded that the petitioner has not done that lay in his power to do to deposit the money on 8.12.1983, and the condition contained in the decree dated 13.11.1983 was therefore not complied with. The petitioner sought extension of time by applying to the Court, which was on the basis of misconceived legal position. As no person can be prejudiced by an act of the Court including an officer or agent of the Court; in this case there was not sufficient tender of the purchase money. Delay of one day in actual payment of the money, in the circumstances of each case, can be condemned by examining the conduct of the pre-emptor to deposit the money on following day, but the facts and circumstances of the case have made the petitioner disentitled to the benefit of the above rule as no executable decree in favour of the petitioner was existing on the day when he deposited the amount.

For what has been discussed above, this revision petition fails and the same is dismissed with costs.

(A.P.) Revision dismissed.

PLJ 2004 Lahore 266

Present: MAULVI ANWAR-UL-HAQ, J. MUHAMMAD IFTIKHAR ZAFAR-Petitioner

versus

MUHAMMAD AHMAD and others-Respondents W.P. No. 10633 of 2003, decided on 24.7.2003. . Family Courts Act, 1964 (XXXV of 1964)--

---Ss. 5 & 17-A (added hy Family Courts (Amendment) Ordinance (LV of 2002)--Minor children's entitlement to claim maintenance past and present from their father—Petitioner (father) in his written statement did not express a word that he was ever anxious or made bonafidedemand, for custody of his children whether son or daughter, therefore, primafacie, they could not be deemed to have remained with the mother against wishes of their father-Minors were thus, entitled to claim maintenance from their father-As far past maintenance, trial Court had passed order in terms of provisions of S. 17-A of the Family Courts Ordinance-Order for maintenance has been passed with effect from a point of time which is after the institution of suit by minors-Trial Court being authorized to pass such order, no interference was warranted in impugned order for maintenance of minors. [Pp. 268 & ] A & B

AIR 1941 Mad. 582; AIR 1945 Bombay 390; PLD 1958 SC 284 and 1943 Bom. L.R. 823 ref.

Mr. A.K. Dogar, Advocate for Petitioner. Date of hearing : 24.7.2003.

order

The Respondents Nos. 1 and 2 are the minor children of the petitioner, born, as a result of his wedlock with Mst, Sabahat Akhtar. The said parents were married on 6.1.1986 and unfortunately the marriage stood dissolved on 9.1.1991. According to the terms of the divorce recorded in writing the children were to remain in the custody of their mother and were to be maintained by Muhammad Rafiq the late father of the said lady. On 11.12.2002 the Respondents Nos. 1 and 2 filed a suit against the petitioner claiming maintenance at the rate of Rs. 5,000/- per month w.e.f. 1.12.1996 as also future maintenance at the same rate. The petitioner resisted the suit on the basis of the terms of the said divorce agreement. On 7.2.2003 the learned Judge, Family Court, passed an order directing the petitioner to pay maintenance to the Respondents Nos. 1 and 2 at the rate of Rs. 1,000/- per head w.e.f. the date of filing of the written statement, which according to the available copy is 10.1.2003.

1. Learned counsel for the petitioner contends that in view of the law laid down in the case of Mst. Ghulam Fatirna v. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore 596) his client is not liable to pay any maintenance to his children and as such the impugned order is without lawful authority.

2. The admitted facts are that the Respondents Nos. 1 and 2 are the children of the petitioner and are living with their mother. The allegations in the plaint are that the petitioner has not provided any maintenance to the said children. In response while denying the liability, the petitioner at the same time has averred that he had been providing some maintenance to the children. Now so far as the said judgment in the case of Mst. Ghulam Fatimais concerned, the facts of the said case are that she was married to Sh. Muhammad Bashir and bore him a daughter in the year 1940. She was divorced in 1946. The said daughter remained in the custody of Mst. Ghulam Fatima till 28.5.1953. Throughou+ this period maintenance was neither claimed nor paid by Sh. Muhammad Bashir. Msi. Ghulam Fatima contracted a second marriage in May, 1950 and on 11.10.1950 Sh. Muhammad Bashir filed an application for the custody of the minor daughter. The matter was decided by a learned Senior Civil Judge on 19.7.1952 in terms that the daughter will remain with the mother till she attains the age of 13 i.e. until 20.11.1953 whereafter she was to be handed over to Sh. Muhammad Bashir. He filed an appeal in this Court which was partly allowed inasmuch as Ghulam Fatima was directed to hand over the custody of daughter to Muhammad Bashir on 1.4.1953. The custody of the daughter was not taken over by Muhammad Bashir on 1.4.1953. On 13.5.1953 Ghulam Fatima filed a suit for recovery of Rs. 900/- against Muhammad Bashir stating that this is the amount she had spent on the maintenance of the minor for three years preceding the institution of the suit. According to his Lordship. "The sole question which fell to be decided was whether in the circumstances of this case the mother could claim from the father the amount she sponet on the maintenance of her minor daughter during the three years next preceding her suit." The learned Civil Judge granted the decree but the learned District Judge allowed the appeal and dismissed the suit on the ground that the mother was not during that period entitled to custody of the minor and had refused to hand her over to the father on demand by the latter. Thereafter his Lordship referred to the judgments in the cases of Kachi MuhaidiaTharaganar v. Sainambu Ammal and others (AIR 1941 Mad. 582) and Dinsab Kasimsab v. Muhammad Hussen Dinsab and another (AIR 1945 Bombay 390) and deduced that a father is not liable to maintain a child separately if the latter keeps away, or is kept away by someone not entitled to its custody, from his house without his consent. In other words, a father is bound to maintain an indigent child himself but not through another unless so directed by the Qazi or the Court. It was then observed that a child, who is being already voluntarily maintained by another and therefore does not stand in need of his food, clothing or loding, cannot require its father to pay maintenance. Similarly, a person maintaining the child of another

voluntarily without reference to its father would not be entitled to claim its maintenance from the father. Applying the said test to the facts of the case before his Lordship, his Lordship observed as follows at page 600 of the report :--

"Even if the plaintiff were entitled to recover undecreed maintenance I would hold that in the circumstances of this case she had not maintained the child on behalf of the father. It is an admitted fact that the plaintiff never claimed, and the defendant never paid, any maintenance ever since the plaintiff was divorced by the defendant in 1946. It was only when she had to hand over the custody of the child to the father in pursuance of the Court's order that she filed the present suit to recover maintenance for such period as was not, according to her, barred by the law of Limitation. Indeed in the previous case for the custody of the child it seems to have been contended on behalf of the mother that she was able to maintain the minor out of her own pocket".

1. I have no hesitation whatsoever in observing that the facts of the present case are not similar to those of the said case before his Lordship. A somewhat similar proposition came up before the Hon'ble Supreme Court of Pakistan in the case of Mst. Hamida Begum v. Syed Mashaf Hussain Shah(PLD 1958 SC 284). In this case the divorced couple were Shias.Application was filed for grant of maintenance and the Magistrate awarded maintenance to the son. The father filed a revision in the West Pakistan High Court and it was held that since under the Personal Law he is entitled to the custody of his minor son, he cannot be forced to pay maintenance for him if his ex-wife retains his custody against his wishes. Their Lordships held that this would be a relevant consideration in the matter of grant of maintenance and in case the father establishes that he had all along been anxious and made bonafidedemands for the custody of his minor child whose legal guardianship under the personal law\vested in him, he can well defeat application under Section 488 Cr.P.C.

2. Now the said proposition affirmed by the Hon'ble Supreme Court is somewhat in line with the opinion of Justice Kania in 1943 Bom. L.R. 823 reproduced by his Lordship with approval at page 599 of the said case of Mst.Ghulam Fatima. I do not find a word in the written statement that the

petitioner was ever anxious or made bona fide demands for the custody of his children whether son or daughter. It can certainly not be said, at least, prima facie,that the children remained with the mother against the wishes of the father.

1. I, therefore, do not prima facie find any force in the said contention of the learned counsel. This observation shall, however, be treated by the learned trial Court, who has to decide the case on its merits as tentative for purposes of the interim order that has been passed by it.

Now the other aspect of the case is that the ultimate impact of the said judgment in Mst. Ghulam Fatima's case is that the child would not be entitled to claim past maintenance in the circumstances as existed in the said case. Here in the present case the learned Judge, Family Court, has passed this order in terms of the provisions of Section 17-A added to the. Family Courts Act, 1964 vide Ordinance No. LV of 2002 w.e.f. 1.10.2002. I have already stated above that the order has been passed w.e.f. a point of time which is father the date of institution of the suit by the said children of the petitioner and by no stretch the said judgment even upon its interpretation by the learned counsel can be said to spell out a bar upon passing of an order by the Judge, Family Court, who by all means is a Qazi, for current maintenance which he is authorized by the said law to pass. The writ petition is dismissed in limine.

(A.A.) Petition dismissed.

PL J 2004 Lahore 269

Present: CH. IJAZ AHMAD, J. MUHAMMAD ZAHOOR CHAUHAN and others-Petitioners

versus SYED FARRUKH ALI SHAH and others-Respondents

W.P. No. 6224 of 2.003, decided on 14.5.2003.

Criminal Procedure Code, 1898 (V of 1898)--

—S. 540-Constitution. of Pakistan (1973), Art. 199-Summoning of witnesses in criminal complaint assailed on the ground that their names were neither mentioned in contents of complaint nor in the list attached therewith-Court in terms of S. 540 Cr.P.C. has discretionary power to summon any person or witness and it is obligatory for the Court to summon, examine and recall any such person if his evidence appears essential to just decision of case-Witnesses summoned by Court were not in existence at the time of filing of complaint-Evidence of such witnesses was necessary to resolve controversy between parties-Order of summoning witnesses was perfectly in accord with provision of S. 540 Cr.P.C.-Constitutional jurisdiction being discretionary in nature, High Court declined to exercise the same against impugned order.

[Pp. 270 & 271] A, B, C & D

1993 SCMR 550; 1992 PCr.L.J. 729; 1989 PCr.L.J. 1734; 1989 PCr.L.J. 1518

and PLD 1973 SC 236 ref.

Mr. M.N.A. Butt, Advocate for Petitioners.

Mr. Muhammad Hanif Khatana, A.A.G. on Court's call., Date of hearing: 14.5.2003.

order

The brief facts out of which present writ petition arises are that Respondent No. 1 filed a complaint under Section 19 of the Banking Companies (Recoveiy of Loans, Advances, Credits & Finances) Act, 1997 before the Judge Banking Court No. 1, Faisalabad. Respondents filed an application for summoning of witnesses before the Judge Banking Court-I, Faisalabad, who accepted the same videorder dated 17.4.2003. The petitioner being aggrieved filed this writ petition.

1. The learned counsel of the petitioner submits that the complaint did not mention the names of witnesses in the contents of the complaint or in the list attached by the complainant with the complaint before the Judge Banking Court. The learned Judge Banking Court erred in law to accept the application of respondents. He further submits that the complaint is frivolous having no basis, which should be dismissed by the Judge Banking Court on the first date of hearing. He further submits that the Judge Banking Court erred in law to exercise his discretion in favour of the respondents, which is not in accordance with the mandatory provisions of Sections 241-A (2) and 265-C (2) of Cr.P.C. He further submits that the respondents intended to produce the witnesses, who had been appointed as local commissioner in the execution proceedings.

2. The learned law officer, entered appearance .on Court's call, he submits that the writ petition is not maintainable.

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 better and appropriate to reproduce Section 540 Cr.P.C. to resolve the controversy between the parties :--

"Power to summon material witness or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, through not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person, if his evidence appears to it essential to the just decision of the case."

A bare reading of this section shows that it consists of two parts. First giving a discretionary power to summon any person or witness. Second part makes

it obligatory for the Court to summon, examine and recall tp any such person, if his evidence appears essential to just decision of the case. In the

present case, the following facts are admitted :--

(i) The respondents filed complaint on 11.5.2000.

(ii) Mian Haq Nawaz, Advocate was appointed as local commissioner for visiting the spot and preparing an inventory of the machinery on 29.6.2001.

(iii) Mr. Javed Iqbal Bhinder, Advocate was also appointed as Receiver on 20.6.2002.

(iv) Mr. Saeed Nawaz, Technical Manager, was to assist Receiver and was directed to assist the local commissioner.

(v) Mr. Saad Zulfiqar, Technical Engineer was appointed to assist the Receiver Mr. Javed Iqbal Bhinder, Advocate.

1. In case, the aforesaid facts are put in juxta position, then it is crystal clear then the aforesaid witnesses were not in'existence at the time of filing of complaint by the respondents. The evidence of the aforesaid witnesses is necessary to resolve the Controversy between the parties. It is pertinent to mention here that the Legislature has specifically mentioned the following words in Section 540 Cr.P.C.:--

(1) Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, through not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person, if his evidence appears to it essential to the just decision of the case."

1. The learned Banking Court passed the order keeping in view the contents of Section 540 Cr.P.C. and ingredients of Section 540 Cr.P.C. are fully applicable in the present case. The learned counsel of the petitioners failed to point out any infirmity or illegality in the impugned order, even otherwise, substantial justice has been done between the parties which is in accordance with dictum laid down by the Superior Courts in the following judgments:-

Syed Saeed Muhammad and another vs. The State, (1993 S.C.M.R. 550).

Muhammad Rauf Aware vs. The State and others (1992 P.Crl. L.J. 729).

Muhammad Yousafvs. Ghulam Rafiq and 2 others (1989 P.Crl. L.J. 1734)

Imam Hanif us. Tufail and 3 others, (1989 P.Crl.LJ. 1518).

It is settled principle of law that the constitutional jurisdiction is discretionary in a character. Keeping view the circumstances of this case, I am not inclined to exercise my discretion in favour of the petitioner, as per principle laid down by the Honourable Supreme Court in Nawab Syed' Raunaq All's case (PLD 1973 S.C. 236).

In view of what has been discussed above, this writ petition has no merit and the same is dismissed.

(A.P.) Petition dismissed.

PLJ 2004 Lahore 272 (DB)

Present: tassaduq hussain jilani and bashir A. mujahid, JJ, Mirza ABID HUSSAIN BAIG-Petitioner

versus

FEDERATION OF PAKISTAN, through CHAIRMAN NAB-Respondent

W.P. No. 44 of 2003, heard on 21.4.2003. Criminal Procedure Code, 1898 (V of 1898)--

—-S. 497-Constitution of Pakistan (1973), Art. 199-Allegation of misappropriation of Rs. 57,82,399 by accused and was arrested by NAB-- Entitlement to concession of bail-Petitioner was admittedly seventy five years of age and was suffering from heart disease, diabetes and other ailments-Report issued by Punjab Institute of Cardiology indicated that he needed coronary Artery Bypass grafting and that he cannot be treated in jail-Evidence against petitioner mostly was documentary in nature- No likelihood of petitioner's abscondence was apprehended—Petitioner was directed to be released on bail bonds in the sum of Rs. 50,00,000/- (Rupees fifty lacs only) with two sureties each in the like, amount to the satisfaction of trial Court. [P. 275] A

2000 SCMR 107; 2002 SCMR 282; 1998 SCMR 1065 and PLD 2001 SC 607 ref.

Mr. Ghazanfar Alt Syed, Advocate for Petitioner. Mr. M. Bilal Khan, Advocate for NAB. Date of hearing : 21.4.2003.

judgment

Tassaduq Hussain Jilani, J.-Petitioner, who is admittedly about 75 years of age, seeks bail on the medical ground in Reference No. 15/2002 wherein it is alleged as under:-

"That the Punjab Employees Social Security Institution (PESSD/Punjab Workers Welfare Board has invested an amount of Rs. 25,82,730/- in Defence Saving Certificates with National Savings Centre, Sahdman, Lahore. On maturity this amount swelled to Rs. 36,15,522/-. The Directorate of National Savings Centre, Lahore issued Cheque No. A-670374 dated 10.5.1993 for an amount of 2004 mirza abid hussain baig v. federation of pak. Lah. 273

(Tassaduq Hussain Jilani, J.)

Rs. 36,15,822/- in favour of Chairman and Secretary, Labour and Manpower. The Accused No. 1 opened a fictitious Account No. 1046-24 on 24.5.1993, in the name of Chairman/Secretary, Labour and Manpower with the Habib Bank Limited, Dharampura Branch, Lahore. This false account was opened with the active connivance of his son accused Zubair Baig Mirza, who worked in this Branch and he knowingly gave false introduction of his father as Secretary Labour and Manpower, Punjab to the then Manager. An amount of Rs. 36,14,000/- was withdrawn by accused M.A.H. Baig through cheques Numbers 441326 dated 29'.5.1993 and 551327 dated 22.6.19993. The amount of Rs. 36,14,000/- with mark up of Rs. 21,68,399/- (total Rs. 57,82,399/-) was misappropriated by Accused No. 1, in collusion with Accused No. 2".

1. Learned counsel for the petitioner submits that the petitioner is under arrest for the last more than one year and not a single witness has been examined; that he is above seventy five years of age; that the last ten years medical history of the petitioner showed deterioration of his health; that the report given by the Medical Superintendent of Punjab Institution of Cardiology Lahore endorses petitioner's condition that he needs proper treatment/operation which cannot be carried out in jail premises. In support of the submissions made, learned counsel relied on Mian Manzoor Ahmad Wattoo us. The State (2000 SCMR 107), Muhammad Saeed Mehdi vs. The State and 2 others (2002 SCMR 282), Zakhim Khan Masood vs. The State(1998 SCMR 1065), Khan Asfandyar Wall and others vs. Federation ofPakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607) and an un-reported order of this Court in Crl. Misc. No. 503-B/2002 (Major Retd. Mushtaq Ahmad vs. The State).

2. Mr. M. Bilal Khan, Advocate appearing for NAB opposed the prayer for bail by submitting that each case has its own facts; that the petitioner committed fraud and cheating and thereby misappropriated a huge amount; that the delay in trial was mainly on account of the petitioner or his co-accused and that the petitioner can be admitted in a hospital of his

-choice and treated accordingly. ,In this connection he relied on an un-reported order of the August Supreme Court in Haji Neh Muhammad vs. The State (Crl. Misc. No. 28-L.2001 in Criminal Petition for Leave to Appeal No. 214-L/2001).

1. We have heard learned counsel for the parties, have gone through the record and the precedent case cited at the bar. .

2. Petitioner has appended several documents to indicate that even prior to his detention in the afore-referred Reference he was heart patient, he had diabetes and various other ailments. The report issued by the Punjab Institute of Cardiology dated 12.11.2002 indicated that he needed Coronaiy Artery Bypass grafting. MRI report issued by the Board of doctors of the Children's Hospital dated 25.1.2003 is to the following effect:

"DISCUSSION:-

Multiecho multiplanar images through the Lumbo-sacral Spine were performed.

MODIC type II degenerative changes are noted at Ll, L4 vertebral bodies. Multilevel disc desiccation and sub-ligamentous disc bulge are also noted. No evidence of disco-vertebral osteomyelitis. Conus medullaris is at its normal location (Ll level).

Axial images demonstrate multilevel facet joint arthropathies alongwith ligamentum flavum hypertrophy. At L5-S1 there is central and left paracentral disc bulge, which is abutting the left SI nerve root.

IMPRESSION:--

\ MR features are suggestive of degenerative lumbar Spondylosis.

\ Central and left paracentral disc bulge abutting the left SI nerve root.

\ Multilevel disc desiccation and sub-ligamentous disc bulge alongwith degenerative facet joint arthopathies . and ligamentum flavum hypertrophy."

Yet another report was given by the Punjab Institute of Cardiology dated 1.3.2003 which is to the following effect:-

"Above patient has severe coronary artery disease and is advised to undergo heart surgery, which also invites high risk."

1. The petitioner is admittedly seventy five years of age and with this advanced age, the combination of afore-referred ailments are a pointer to the serious state of health. The two reports from the Punjab Institute of Cardiology indicate that he cannot be treated in jail. The August Supreme Court in several cases has allowed bail in similar circumstances. In Zakhim Khan Masood vs. The State (1998 SCMR 1065), the Hon'ble Supreme Court allowed bail purely on medical ground. Relevant portion of the order is as under :--

"It is further submitted that the contained detention of Mr. Zakhim Khan Masood a patient of Ischaemic Heart Disease is likely to have adverse hazardous effects on his life because stress and strain can aggravate his disease condition".

It has been observed by the doctor in the above report that the ailment with which the petitioner is suffering, is likely to have hazardous effects on his life because stress and strain may aggravate his disease".

In Mian Manzoor Ahmad Wattoo vs. The State(2000 SCMR 107), the petitioner was allowed on the ground that specialized treatment was not possible within the jail premises. In Muhammad Saeed Mehdi vs. The State and 2 others (2002 SCMR 282), the petitioner was allowed as his state of health required immediate hospitalization and close monitoring by medical specialists. In Ch. Zulfiqar All vs. The State (PLD 2002 Supreme Court 546), petitioner was allowed bail on the ground that "there is sufficient documentary evidence on record to show that the petitioner is suffering from different diseases as he remained under specialist's treatment in various hospitals from time to time. Heart disease coupled with unstable hypertension may endanger his life in jail and on medical ground, too, the petitioner is entitled to be released on bail." In an unreported order Major Retd, Mushtaq Ahmad vs. The State (Crl. Misc. No. 503-B/2002), the accused was allowed bail by a learned Division Bench of this Court who was suffering from Lumber Backache any Hypertension as learned Deputy Prosecutor General XAB himself candidly conceded that the afore-referred state of health was sufficient to justify release of the accused on bail. In an un­reported order of the August Supreme Court Haji Nek Muhammad'vs. The State (Crl. Misc. No. 28-L/2001 in Cr.P.L.A. No. 214-L/2001), a copy of which was pleased before this Court by the learned counsel for NAB, is distinguishable as it was a case where a huge quantity of heroin had been recovered from the accused, he was not an old man and the High Court had dismissed the petition observing that the accused could be treated in a hospital of his choice.

1. In the instant case the evidence against the-petitioner mostly is documentary in nature. It has not been argued that there is any likelihood of his absconsion. Resultantly, respectfully following the precedent case law of the August Supreme Court discussed above we are inclined to allow this petition and direct that the petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs. 50,00,000/- (rupees fifty lacs only) with two sureties each in the like amount to the satisfaction of the learned trial Court. He shall appear before the learned trial Court on each and every date which shall ensure that the trial is concluded within eight weeks from the next date of hearing.

(A.P.) Bail granted.

PLJ 2004 Lahore 275

[Rawalpindi Bench Rawalpindi]

Present:MAULVI ANWAR-UL-HAQ, J. SHAUQ-UR-REHMAN-Petitioner

versus TAIMOOR AHMAD KHAN and 2 others-Respondents

W.P. No. 2938 of 2001, heard on 14.10.2003. Civil Procedure Code, 1908 (V of 1908)--

—-O.XXIII, R. 3 & S. 12(2)-Constitution of Pakistan (1973), Ait. 199-Alleged gift challenged through suit-Withdrawal of suit on basis of compromiser-Petitioner's application under S. 12(2) C.P.C. for setting aside decree in question, was dismissed by Courts below-Legality-Trial Court while dismissing petitioner's application had simply stated that perusal of statement of petitioner would show that he appeared in Court and got his statement of compromise recorded—Record showed that petitioner had engaged counsel, however, when his statement was recorded his counsel was not present-Impugned order of Courts below were declared to be without lawful authority and of no legal effect-Case was remanded for decision of application in accordance with law on merits. [Pp. 277 & 278] A

2001 SCMR 46 and 2001 SCMR 1522 ref.

Mr. Sardar Tariq Anees, Advocate for Petitioner. Mr. Muhammad Amin Jan, Advocate for Respondent. Date of hearing: 14.10.2003.

judgment

On 2.11.1996 the petitioner filed a suit against Respondent No. 1, his brother. According to him he is a simple illiterate person and unmarried and as such heavily dependent upon his brother including the respondent. He complained that whereas he never made any gift of his property to-respondent, he managed to get gift-deeds executed and registered on 13.6.1995. For the reasons stated in the plaint he sought a decree that he is owner in possession of the suit property comprising l/3rd in a house as also two shops and said gift-deeds are illegal and void. Respondent No. 1 was served and he put in appearance and filed a written statement on 25.1.1997 in Court. He made a positive assertion that the petitioner had voluntarily made a valid gift of the suit property in his favour.

1. The case was adjourned to 3.3.1997. Before the said date, on~ 17.2.1997 the petitioner himself while Respondent No. 1 and his learned counsel appeared before the learned Duty Judge. The statement of the petitioner was recorded to the effect that a compromise has been arrived at and as a result of that he withdraws the suit and that he had gifted the property to his brother for'said relationship. The case was adjourned by the duty Judge to 19.2.1997 for orders. On this date following order was passed by the learned Civil Ju.dge:--

"Dated: 19.2.1997. Presence as before. In the light of statement of the plaintiff the suit is dismissed as withdrawn due to compromise. Parties would bear their own cost. File to sent to the record room."

1. On 3.3.1997 the petitioner filed an application stating that a fraud has been played upon him in the matter of recording of said statement and suit be restored. The learned Judge passed an order that let the petitioner produce medical evidence regarding his mental state. It is not apparent on the record as to what become of the said application.

2. On 25.2.1999 the petitioner filed an application under Section 12(2) CPC. He stated that his brother took him to the Court of Duty Judge on 17.2.1997 by representing that his property will be returned to him and his signatures were accordingly obtained. It was on 3.3.1997 that he came to know as to what had happened. He accordingly prayed for setting aside of said proceedings and order. In his reply Respondent No. 1 asserted that the petitioner out of his own free will had made the statement on 17.2.1997 as a result whereof the suit was dismissed a withdrawn on 19.2.1997. It was also stated that other brothers have instigated the petitioner to file this application. In was also stated that an application was earlier filed on 1.3.1997 which remained pending till 25.2.1999. It was further stated that the suit was adjourned to 3.3.1997 but a compromise was effected between the parties as a result whereof the petitioner came to Court on 17.2.1997 and made an application that his suit be dismissed by way of a compromise. Learned trial Court dismissed the application summarily on 14.12.1999. A revision filed by the petitioner was dismissed by a learned Addl. District Judge. Rawalpindi, on 17.2.2001.

3. Learned counsel for the petitioner contends that in the circumstances of this case it was incumbent upon the learned trial Court to hold an inquiry after framing an issue and giving the petitioner a chance to lead evidence.

4. Mr. M. Amin Jan, learned counsel for Respondent No. 1, on the other hand, cites the judgment in the case of Nazir Ahmad, v MuhammadSharif and others (2001 SCMR 46) to urge that the learned trial Court was not under obligation to frame an issue.

5. There can possibly be no cavil with the said contention of the learned counsel for Respondent No. 1. However, at the same time Hon'ble Supreme Court has expressed, in appropriate cases, need for an inquiry in application of instant nature. Reference ,be made to the case of Mrs. Esmeraida Concaicao Bertha Podrigues Da Costa through attorney, v, Sabir Hussain and another (2001 SCMR 1522).

6. Now I have already narrated above the history of this case. Admittedly the petitioner is an unmarried person. Respondent No. 1 is his brother. The suit was filed to challenge gift deeds whereby his property was got transferred in favour of Respondent No. 1. on the ground that he had not made such a gift. It is matter of record that he had engaged a counsel in the suit. The case was taken up on a date before a Duty Judge before the date fixed. He appeared without his counsel when statement was recorded. A bare look on the order passed by the learned trial Court on 19.2.1997 would show that in all probability it had not even cared to read the proceedings that had taken place in such a unusual manner on 17.2.1997. In the said circumstances the petitioner was entitled to an opportunity to lead evidence to show as to how his statement was got recorded in the said manner resulting in the dismissal of his suit. The learned trial Court has simply

stated that a perusal of the statement of the petitioner would show that he appeared in Court and got the statement recorded. The learned Addl. District Judge has followed suit. To my mind, this is rather a callous approach. The writ petition, accordingly, is allowed. The impugned orders are declared to be without lawful authority and are set aside. The result would be that the application filed by the petitioner shall be deemed to be pending before, the learned Senior Civil Judge, Rawalpindi, where the parties shall appear on 17.11.2003. The learned Senior Civil Judge shall requisition the record, frame issues arising out of the application and reply filed by Respondent No. 1 and after giving an opportunity to both the parties to lead evidence, to decide the application in accordance with law on its merit. No order as to costs.

A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Rawalpindi.

(A.A.) Case remanded.

PLJ 2004 Lahore 278

Present: saved zahid hussain, J.

MUHAMMAD KHALID MIRZA and 3 others-Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY and 12 others-Respondents W.P. No. 11831 of 2002, decided on 25.11.2003.

(i) Lahore Development Authority (Appointment and Conditions of Service) Regulation, 1978--

—Regulation No. 32(2) thereof read with S. 4 of the Punjab .Service Tribunals Act, 1974-Petitioners serving the LDA as staff officer allegedly ignored for promotion as Assistant Director (General Cadre) B.S. 17 against 50% quota meant for staff officers and promoting personal Assistants and Secretaries there against by reducing quota from 50% to 25% assailed through constitutional petition on grounds of mala fide,without jurisdiction and violative of Law and Rules objection by departmental authorities that adequate remedy of departmental representation available held that in view of provisions of Regulation 23(2) remedy of representation to next higher authority available which is adequate further held that authorities shall decide the same within a period of 90 days from the filing of the same. [P. 279] A

(ii) Lahore Development Authority (Appointment and Conditions of Service) Regulation, 1978--

—Regulation 23(2)-Limitation for deciding representation-Although there is no limit provided in the regulation for decision of representation yet it is considered just and proper that the departmental authority disposes of the same within 90 days as provided in the Punjab Service Tribunals Act, 1974-Petition disposed of. [Pp. 279 & 280] A, B, C, D, E, & F

Mr. Pervaiz Inayat Malik, Advocate for Petitioners. .

Mr. Asmat Kamal Khan,Advocate for Respondents Nos. 10 & 12.

M/s. Mian Muzaffar Hussain and Rehan Bashir, Advocates for LDA.

Date of hearing: 25.11.2003.

ORDER

At the very outset of the proceedings, the learned counsel for the respondents have with reference to Regulation No. 23 of the Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978, pointed out that in view of the remedy available to the petitioners in the nature of representation before the higher authority, the writ petition is not maintainable.

1. The learned counsel for the parties have been heard in this context. The petitioners considering themselves to be eligible for promotion as Assistant Director (General Cadre) BS-17 and aggrieved of recommendations qua Respondents Nos. 8 to 13 for their promotion to the said post had invoked the jurisdiction of this Court praying that "office orders (Annex. C to G), the acts of Respondents Nos. 3 to 7 of ignoring the petitioners for promotion as Assistant Director (General Cadre) BS-17 and on the contraiy, considering and recommending the cases of Respondents Nos. 8 to 13 for their promotion as Assistant Director (General Cadre) BS-17 may graciously be declared as illegal, unlawful, arbitrary, for ulterior motives, without jurisdiction and without lawful authority, consequently of no legal effect and it may further be declared that under the Regulation 1978 only staff officers BS-16 are eligible for promotion as Assistant Director (General Cadu) BS- 17. The Respondent No. 2 may be restrained from issuing promotion orders in respect of Respondents Nos. 8 to 13. The Respondents Nos. 1 to 7 may be directed to consider the cases of the petitioners and other eligible Staff Officers BS-16 for their promotion as Assistant Director (General Cadre) BS-17 against vacant posts to be filled by promotion from amongst Staff Officers to the extent of 50% quota.

2. This petition was filed on 3.7.2002 and was fixed hearing before the Court on 4.7.2003 when report and parawise comments were called from Respondent No. 1. Since there was no restraint order passed by the Court promotion order dated 13.8.2002 of Respondents Nos. 8, 9, 10 and 12 to 13 was issued. As is evident from the contents of the petition and the prayer made therein reproduced above, the Lahore Development Authority (Appointment and Conditions of Service) Regulation 1978, have been invoked by the petitioners, whereas Regulation No. 23 (2) has been pressed into service by the respondents which reads as under:- "23(2) Where no provision for appeal or review exists in respect of any order under these Regulations, or the rules mentioned in Regulation 22, an employee aggrieved by any such order may except where such order is made by the Chairman,"make a representation against it to the authority next above the authority which made the order."

3. Thus remedy of representation is available to the petitioners for the redressal of their grievance. The learned counsel foi\ the parties are atone that in the context of the controversy, such representation would lie before the Chairman. In view of the above, when there is an adequate departmental remedy available to the petitioners, petition before this Court is not maintainable. At this stage, the learned counsel for the petitioners has urged that such representations are not decided by the departmental Authorities for longtime, therefore, some period may be indicated for decision of the representation. Suffice it to observe that there is a limitation of 90 days for decision of representations of civil servnats provided by the relevant laws. Although there is no such limitation provided in the Regulations ibid of the Authority, yet it is considered just and proper that the departmental authority would in this context dispose of the representation of the petitioners within 90 days of the filing thereof.

The petition is disposed of with the above observation. (T.A.F.)

PLJ 2004 Lahore 280 [Rawalpindi Bench Rawalpindi]

Present: maulvi anwarul haq, J. Mst. BIBI SAID KHANNUM-Petitioner

versus MUHAMMAD SARWAR KHAN-Respondent

C.R. No. 211/D of 1997, heard on 23.9.2003. (i) DutyofCourt-

—Courts ought not to go by the form but substance of pleadings and further to read evidence properly based on the same-Mere fact that suit was in form of specific performance ought not to have caused any hurdle in the way of Courts to read plaint properly. [P. 282] A

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

—S. 12--Civil Procedure Code (V of 1908), S. 115-Evidentiary value of entries in 'Nikahnama'-'Nikahnama'is deemed to be a public document whereby in consideration of marriage respondent, had transferred land in question, to petitioner-Fault in stating said term against Column No. 20 instead of Column No. 16 would be attributed not to any of the parties but to official who under the law was enjoined to fill up said document-­ Even in Column 20, word "Mehr" is very much there-Averment that entry in 'Nikahnama' was fictitious stood negated in the very statement of respondent himself in witness box-Judgments and decrees of Courts below whereby plaintiffs suit was dismissed were set aside and plaintiffs suit was decreed. [Pp. 282 & 283] B

1994 SCMR1978 ref.

Mr. Muhammad HanifSatti, Advocate for Petitioner. Mr. Shah Rasool Hamidi, Advocate for Respondent. Date of hearing : 23.9.2003.

judgment

On 10.2.1993 the petitioner filed a suit against the respondent. In the plaint it was stated that she was married to the respondent on 19.11.1978 and at the time of marriage apart from a dower amount of Rs. 125/- in cash, land measuring 100 kanals mentioned in the plaint was transferred to the petitioner. The possession was delivered but a formal mutation was not got attested. It was then averred that the petitioner had been turned out of his house by the respondent who has contracted a second marriage and as also snatched the land. He was prosecuted by the petitioner and was convicted by a learned Magistrate for contracting a second marriage in violation of law and sentenced to payment of Rs. 3,000/- as fine. Regarding the land she was referred to the Civil Court. Accordingly a decree for specific performance and for possession of the land was prayed for. In his written statement the respondent admitted the factum of marriage. Regarding the entry pertaining to 100 kanals of land he stated that the entries are fictitious. Following issues were framed by the learned trial Court:-

1. Whether plaintiff is entitled to specific performance of impugned agreement dated 19.11.1978? OPP .

2. Whether this Court has got no jurisdiction? OPD

3. Whether suit is not maintainable in its present form? OPD

4. Whether suit is not properly valued for the purpose of Court fee, if so what is proper valuation? OPD

5. Whether defendant is entitled to receive any special costs, if so, how much? OPD

6. Whether impugned entry in nikahnama is result of forgery, effected at the instance of plaintiffs parents? OPD

7. Whether plaintiff has got no cause of action? OPD

8. Relief. Evidence of the parties was recorded. Vide judgment and decree dated 25.3.1996 the suit of the petitioner was dismissed by the learned trial Court.

A first appeal filed by the petitioner was dismissed by a learned ADJ, Attock, on 11.1.1997.

1. Learned counsel for the petitioner contends that the evidence on record as well as the pleadings have been mis-read by both the learned Courts below. According to the learned counsel, there was no evidence that any fraud has been committed in the matter of the said entry. However the learned Courts below proceeded to dismiss the suit on hyper technical grounds. Learned counsel for the respondent, on the other hand, has supported the impugned judgments and decrees with reference to the reasoning recorded by the learned Courts below in their respective judgments.

2. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Now the Nikahnamawas produced as Ex.P.l. It was proved by Nikah Registrar PW-4 with reference to his Register. Jang Bahadar PW-1 and Noor Muhammad PW-2 who are admittedly witnesses to the said Nikahnama. Now Muhammad Sarwar Khan petitioner appeared as DW-1 and respondent as follows in cross- examination :--

3. It is indeed shocking that in the said admitted state of affairs the learned trial Court has proceeded to hold Issue No. 6 in the affirmative and in favour of the petitioner observing that the entry is result of forgery and interpolation.

4. Now the learned ADJ has given his own findings. He has stated that the entry is against Column No. 20 which is meant for maintenance; that there is reference to sale and a sale has not been proved and that the description of the land is not available. To my mind the said reasonings are perverse. It is by now settled that the Courts in the country ought not to go by the form but substance of the pleadings and further to read the evidence properly based on the same. Merely the fact that the suit was in the form of specific performance ought not to have caused any hurdle in the way of learned ADJ to read the plaint properly. A bare reading of the plaint would show that the petitioner-lady had expressed that the land was transferred to her as a consideration for marriage and constituted a term of the

Nikahnama. Now this document has been held to be a public document by the Hon'ble Supreme Court of Pakistan in the case of Mst Zubaida Bibi and others v. Mst. Majidan and another (1994 SCMR 1978). The fault in stating the said term against Column No. 20 instead of Column No. 6 is attributable not to any of the parties but to the official who under the law was enjoined to fill up the said document. Be that as it may, even in Column No. 20 the word "Mehr" is very much there. The learned ADJ has thus committed and error of jurisdiction in getting himself mis-led by the said fact of entry against Column No. 20. Now so far as the description of land is concerned, it was very much there in the plaint. It was not the case of the respondent that he did not own the said land. The averment that the entry in the Nikahnama was fictitious stood negated in the very statement of the respondent himself in witness box. The learned ADJ further failed to read the statement of Jang Bahadar PW-1 who was confroii'ed in cross-examination and stated that the respondent owns 500/700 kanals of land in village Thatha and that he does not own land anywhere else. The document Ex.P.2, the Register Haqdaran Zamin for the year 1987-88 further confirms the description of the land. Now the learned trial Court has wondered as to why the petitioner did not file a suit while she was living with the respondent as his wife. A more perverse reasoning is yet come to my notice. It is but evident that the need to file the suit arose in the circumstances stated in the plaint affirmed in the witness box by the plaintiff and further confirmed in the statements of the DWs that.she was turned out and the respondent contracted a second marriage. Needless to state here the well known quote "Hellhathano fury than a woman scorned. "Having<been kicked out after 12 years of marriage, for a woman being married by the respondent again and then being deprived of the land she was given, she had no other remedy but to have recourse to the Civil Court for possession of the same which is the precise relief she claimed.

1. For all that has been stated above, this civil revision is allowed, the judgments and decree of both the learned Courts below are set aside and the suit of the petitioner is decreed for possession of the suit land against the respondent/defendant with costs throughout.

(A.A.)

PLJ 2004 Lahore 283 (DB)

Present: M. javed buttar and muhammad muzammal khan, JJ. . MUHAMMAD ABDUL HAQ and 4 others-Petitioners

versus

M. SULEMAN KHAN-Respondent

R.A. No. 41-C of 1996 in Civil Revision No. 879 of 1996, heard on 27.10.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—-O.XLVII, R..1 & S. 12(2)-Limitation Act (IX of 1908), Art. 173 & S. 5-Delay in filing review application-Condonation of delay-Only ground urged for condonation of delay in filing review application was exclusion of time spent for obtaining certified copies which were obtained for Supreme Court use-Review application can be filed without certified copies of judgment under review-Where however petitioners apply for certified copies for review, time spent in such exercise can be excluded from period of limitation-Copies in present case were not applied for filing review application-Review application filed beyond statutory period of 90 days was patently barred by limitation—Copies having not been obtained for review application, on basis of those petitioner's cannot be given any further grace period by condonation of delay-Time spent in obtaining certified copies for Supreme Court use cannot be excluded from period of limitation for filing review petition. [Pp. 286 & 287] A, B & D

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

—S. 12(2) & O.XLVII, R. 1-Composite application for setting aside decree under O. XLVII, R. 1 & S. 12(2) C.P.C. filed-Judgment and decree having been passed by Appellate Court, such part of application relating to initiation of proceedings under S. 12(2) C.P.C. was not maintainable before High Court in its review jurisdiction-Petitioners however, if so advised file directly any such application before Court concerned. [P. 286] C

1980 SCMR 959; 1985 CLC 1801; PLD 1983 Karachi 527; 1987 SCMR 1440; 2000 SCMR 296; 1990 SCMR 1377; PLD 1996 BJ 11 and PLD 1966 BJ 14 ref.

Rana Muhammad Sarwar, Advocate for Petitioners.

Mr. Ghulam Muhammad Mehr, Advocate for Respondent.

Date of hearing : 27.10.2003.

judgment

Muhammad Muzammal Khan, J.--Instant composite application under Order XLVII Rule 1 and Section 12(2) CPC, mainly seeks review of judgment/order dated 4.7.1996 passed in Civil Revision No. 879 of 1999 by our learned brother Munir A. Sheikh, J (as he then was), dismissing civil revision of the petitioners, in limine, affirming concurrent findings of fact recorded by the two Courts below, for the reasons detailed in the application.

1. Learned counsel appearing on behalf of the respondent raised two preliminary objections regarding maintainability of application in hand; first being that under Article 173 of the Limitation Act, 1908 limitation for filing a review application is 90 days whereas, this petition was filed beyond the prescribed limitation and the same is barred by 20 days; and secondly that averments regarding annulment of decree under Section 12(2) CPC relate to appellate judgment and thus petition under Section 12(2) CPC is not maintainable before this Court. Learned counsel for the respondent elaborating his arguments submitted that the petitioners have filed an application under Section 5 of the Limitation Act, 1908 seeking condonation of delay, wherein the ground urged is that they had applied for certified copies of the judgment under review, which were delivered to them on 16.9.1996 and thus the review petition after excluding time requisite for obtaining certified copies is maintainable but this ground is factually incorrect because those copies were obtained for Supreme Court use and on the basis thereof, limitation for filing this review petition, cannot be condoned. He in support of his submission, relied on the judgment given in the cases of Ahmad Din vs. Mst. Syran Bi etc (1980 SCMR 959) and A Ghafoor vs. Mst. Amina Fatima (1985 CLC 1801). Opposing maintainability of the composite application seeking review and initiation of proceedings under Section 12(2) CPC, learned counsel for the respondent emphasized that such an application is not maintainable under law and in this behalf he referred to judgment in the cases of Ali Muhammad Brohi vs. Haji Muhammad Hashim (PLD 1983 Karachi 527), Ghulam Sarwar vs. Muhammad Hussain and others (1987 SCMR 1440) and Mrs. Amina Bibi through General Attorney vs. Nasrullah and others (2000 SCMR 296).

2. Learned counsel appearing on behalf of the petitioners, refuting objections of the respondent, submitted that on doubt copies of the judgment passed in the civil revision, were obtained by the petitioners for Supreme Court use, but since a photostat copy of this copy was produced alongwith review petition and petitioners did not press their petition before the Honourable Supreme Court, for following their case before, this Court, as such, on the basis of those certified copies delay in filing the review petition is liable to be condoned. He further submits that the petitioners did file a civil petition before the Honorable Supreme Court but withdrew the same without adjudication with a view to follow instant review petition. Learned counsel for the petitioners while replying to the objection regarding maintainability of application under Section 12(2) CPC, urged that appellate judgment was earned by the respondent through fraud and thus this Court can proceed under this provision of law for annulling the judgment and decree passed by the Appellate Court. While concluding his arguments learned counsel requested that if this Court comes to the conclusion that his application under Section 12(2) CPC is not maintainable here, the same may be remitted to the learned District Judge for its adjudication. He referred to judgment in the case of Muhammad Iqbal and another vs. MuhammadAlamgir and others (1990 SCMR 1377).

3. We have anxiously considered the arguments' of the learned counsel for the parties and have examined the record. Civil revision was decided by the learned Single Judge in Chambers of this Court on 4.7.1996. In this manner, period of 90 days as provided by Article 173 of the Limitation Act, 1908 was to expire on 3.10.1996 before which petitioners could have filed the review petition, but filed it on 23.10.1996 with a delay of 20 days.

4. The only ground urged for condonation of delay in filing the review application, as noted above, is exclusion of time spent for obtaining certified copies which, undeniably, were obtained for Supreme Court use. Petitioners applied for certified copies for Supreme Court use on 30.7.1996

and those were supplied to them on 12.9.1996, Law is settled that review application can be filed without certified copies of the judgment under review but in case petitioners apply for certified copies for this purpose, time spent in this exercise can be excluded from the period of limitation. In the instant •case, copies were not applied for filing review application, thus it is patently barred by limitation. Now it is to be seen whether delay in filing review application can be condoned on the basis of certified copies obtained by the petitioners for Supreme Court use, we are of the considered view that on that score the delay cannot be condoned because petitioners after obtaining certified copies did use those copies by filing a civil petition before the 1 Honourable Supreme Court and it is immaterial whether they got any adjudication in this petition or not and withdrew the same to follow this review application. Since those copies were not obtained for filing review application on the basis of those, petitioners cannot be given any'further Igrace period by condonation of delay. A similar situation arose in the case of Ahmad Din vs. Mst. Syran Bi etc. (.supra) and this controversy was put to rest by holding that since certified copies' of the High Court's order passed in revision, were not filed in support of review application, thus the time taken in obtaining such copies, cannot be considered, time required within the meaning of Section 12 of the Limitation Act for filing a review application. A similar view was taken by a learned Division Bench of this Court in the cases of Ghulam Hussain Shah us. Ghulam Muhammad (PLD 1966 (W.P.) Baghdad-ul-Jadid 11) Abdul Karim vs. Sheikh Muhammad and others (PLD 1966 (W.P.) Baghdad-ul-Jadid 14) and A. Ghafoor vs. Mst. Amina Fatima (supra) that certified of the judgment and decree, under review, are not required to be filed with review application and if some body applies for certified copies for filing review, time spent for obtaining those copies can be excluded if those copies are produced with review petition but the Court will not consider for condonation of delay, copies obtained for any other use and not filed with the review petition.

1. We, accordingly, respectfully following the view taken by the Honourable Supreme Court in the case of Ahmad Din vs. Mst. Syran Bi etc.(supra), hold that review application filed by the petitioners is barred by limitation and delay in filing it, cannot be condoned under Section 12 of the Limitation Act, 1908, for obtaining certified copies of the judgment under

review which was neither needed for filing the review application nor were obtained for this purpose. We also hold that time spent in obtaining certified copies for Supreme Court use cannot be excluded from the period of limitation for filing the petition, in hand.

1. Taking up the objection regarding maintainability of a composite application, as noted above, wi must observe that Civil Revision No. 879 of 1996 was decided in limine in absence of the respondent, thus there is no question of any fraud by him qua this Court. We have also examined the petition and it's ground "h" at it's page 24 detailing fraudulent acts of the respondent, on the basis of which petitioners seek annulment of judgment and decree passed by the appellate Court. We are unable to understand how

under the provisions of Section 12(2) CPC we can set aside or annul judgment and decree passed by the Appellate Court, thus part of the application relating to initiation of proceedings under Section 12(2) CPC is not maintainable before this Court. Petitioners may, if so advised, file directly any such petition before the Court concerned and we are not ready to remit it to the Appellate Court. Judgment in the case of Muhammad Iqbal and another us. Muhammad Alamgir and others (supra) relied by the learned counsel for the petitioners, proceeds on altogether different facts and circumstances and has no applicability to the case in hand, thus we respectfully hold that this judgment is not of any help to the petitioners' case and they may seek their remedy available to them, under law.

1. For what has been discussed above, we hold that review application is barred by limitation and there is no sufficient cause for condonation of delay and thus dismiss it, as barred by limitation, the other part of the application relating to Section 12(2) CPC we hold that to this extent the petition is not maintainable before this Court and consequently dismiss it as observed above, leaving the parties to bear their own costs.

(A.A) Review Application dismissed.

PLJ 2004 Lahore 287 (DB)

[Rawalpindi Bench Rawalpindi]

Present: mansoor ahmad and sardar muhammad aslam, JJ.

MUHAMMAD JAVED-Appellant

versus

GOVERNMENT OF PAKISTAN through SECRETARY MINISTER OF HOUSING & WORKS, ISLAMABAD and 2 others-Respondents

I.C.A. No. 6 of 2003, heard on 7.10.2003. (i) Pakistan Allocation Rules, 1993--

—-Rr. 6 £ 8-Law Reforms Ordinance, 1972 (XII of 1972) S. 3-Allotment of quarter in favour of respondent by way of out of turn allotment-Order of Minister whereby allotment was made in favour of respondent was not passed in accordance with provisions of Pakistan Allocation Rules, 1993 in as much as, he had no jurisdiction to approve-allotment in case of respondent when her case Was not one of hardship in terms of R. 6 of Pakistan Allocation Rules 1993-Order of allotment passed by Minister in favour of respondent was, thus, without jurisdiction and of no legal effect for having not been made in accordance with the law. [P. 291] A

(ii) Pakistan Allocation Rules, 1993-

—Rr. 6 & 8-Out of turn allotment of quarter in question, by concerned Minister-Perusal of record showed that sufficient irregularities have been committed by Estate office as well as Ministry of Housing and

Works-Section officer and other concerned officers of concerned Ministry did not bother to find out respondent's number in seniority list and processed her application in a manner so as to procure an order from the Minister-Such action of concerned officer being malpractice and nepotism warrant inquiry. [P. 291] B

(Hi) Pakistan Allocation Rules, 1993-

—-Rr. 6 & 8-Law Reforms Ordinance, 1972 (XII of 1972),. S. 3-Appellant seeking relief in appeal was trespasser, therefore, he" was directed to hand over possession of quarter in question to Estate office on or" before specified date-Respondent being not entitled to allotment, order of allotment was declared to be without jurisdiction and of no legal effect- Allotment of quarter concerned would be made strictly in accordance with Pakistan Allocation Rules 1993, keeping in view seniority list of candidates for allotment. [P. 291] C

Mr. Muhammad Bashir Kiani, Advocate for Appellant. Raja Imran Aziz, Advocate for Respondent No. 3.

Mr. Sultan Mansoor, D.A.G. alongwith Muhammad Ashraf, Estate Officer, Islamabad with Record.

Date of hearing : 7.10.2003.

judgment

Mansoor Ahmad, J.--The appellant by filing the instant ICA assails the judgment dated 17.12.2002 passed by the learned Single Judge in Chamber in W.P. No. 3181-2002.

1. Facts giving rise to the present ICA are that Respondent No. 3 filed a Writ Petition (No. 3181-02) submitting that she being a civil servant was entitled to official residential accommodation in terms of Pakistan Allocation Rules, 1993 and in that she was allotted Quarter No. 211-E/Sector G-6/4/EIV/EO dated 7.8.2002 by the Estate Office, Islamabad. It was further stated that the house was in possession of the previous 'allotted who instead of restoring the possession to the Estate Office inducted Respondent No. 3 who is now appellant before us and that no right subsists in favour of Respondent No. 3, present appellant to retain the said house.

3.' Further the writ petition narrated that Respondent No. 3 moved an application before the Wafaqi Mohatsib which was rejected on 17.7.2001. He filed a representation before the Honourable President of Islamic Republic of Pakistan which was also rejected. Respondent No. 1 also rejected his application and he was directed to hand over the possession of quarter in question vide letter dated 23.9.2002. Instead of handing over the possession, a civil suit was filed by Respondent No. 3 on 21.4.2001. The petitioner (in the writ petition) sought relief of declaration to the effect that she was lawfully allotted Quarter No. 211-E, Sector G-6/4 Islamabad and eviction of Respondent No. 3 was also sought.

1. After necessary hearing the learned Single Judge in Chamber has accepted the writ petition and in that declaration was granted as prayed for and Respondent No. 3 was directed to hand over the possession of the said quarter to the petitioner. Respondent'No. 3 who is the present appellant assails the judgment of the learned Single Judge through the present ICA.

2. The learned counsel for the appellant argued that Respondent No. 3 (petitioner in W.P. No. 3181-2002) was not entitled to any allotment under the Pakistan Allocation Rules, 1993. It was contended that the allotment order was the result of manipulation, maneouvering and under­ hand techniques. It was submitted that the Wafaqi Mohitsib made recommendation that the application of the appellant should be considered for allotment but it was ignored.

3. During the hearing of the ICA we observed that the appellant was not allotted any quarter nor he was ever provided the possession of the same. On a query, learned counsel for the appellant candidly admitted that the appellant's application for seeking allotment of E-type quarter was pending as is also evident from the order of the Wafaqi Mohitsib but no formal allotment order was issued in his favour. Further it was admitted that finding the said quarter vacant the appellant occupied the same with the hope to get the allotment of the same as recommended by the Wafaqi Mohitsib.

4. The respondents have strongly reacted to this version of the appellant and contended that the appellant is a trespasser and that he is not entitled to any equitable relief. Observing that the record of the Estate Office was not reflecting transparency, we directed the Estate Office to file the copies of the relevant record including the application of Respondent No. 3 for seeking allotment of the quarter, office noting of the said application and order of allotment made in her favour by the competent authority. Also the Estate Office was directed to file seniority list of the candidate seeking the allotment of E-type quarter alongwith list of the departments which were on the pool of the Estate Office. Later copies of this record was filed by the Estate Office which are now available on the record of the ICA.

5. Perusal of the record shows that Respondent No. 3 (writ petitioner) was at No. 610 of the seniority list. She filed an application addressed to the Federal Minister for Housing and Works, Government of Pakistan, Islamabad and requested for allotment of E-Type quarter instead of D-type quarter. She stated in her application that she was serving as T.G.T, in BPS-16 in Federal Government Junior Model School, G-6/2 Islamabad since 3.9.1990 and that her husband is also a Government employee serving as Assistant in the Estate Office for more than 12 years and that her husband has been allotted House No. 3 Block No. 73-D, St. 36, F-6/1, Islamabad and that she was residing with her husband. She further stated that she has been residing in below category house, therefore, she requested for the allotment of the quarter according to her entitlement. Record shows that this was an undated application. In the Ministry of Housing and Works, the office has initiated a note on 5.4.2002 and passing through various official channels proposal for allotment was approved by the Minister on 6.7.2003 whereby a letter of allotment was issued.

6. Examining Pakistan Allocation Rules, 1993 we find that there is a provision for out of turn allotment in Rule 6. An amendment in Rule 6 which, inter alia,provides that a Federal Government servant may" on the ground of ill-health or on some other reasons apply for out of turn accommodation in the form given at Annex-D. The application for out of turn allotment was to be considered by the committee designated as Out of Turn Allotment Committee consisting of persons specified in Annex-G. The Committee may, after having considered the facts contained in the application of a Federal Government Servant medical certificate, if any or any other ground of hardship put forward by him order for allotment of Government accommodation of his entitlement against thirty per cent .quota reserved for the purpose of allotment out of the general pool.

7. Rule 6 of Pakistan Allocation Rules, 1993 was further amended vide SRO No. 303(l)/95 whereby Sub-rule 8 was inserted. Sub-rule 8 reads as under:--

"Notwithstanding anything contained in Sub-rules (1) to (6), the Federal Minister for Housing and Works may, in cases of hardship, allot ten per cent of the Government accommodation reserved for out of turn allotment under Rule 7."

1. Later in the year, 2002 quota of the Minister was done away with another amendment in the Pakistan Allocation Rules, 1993. The latest amendment may not be relevant in the circumstances of the present case as Respondent No. 3 (writ petitioner) is relying on Sub-rule 8 in support of the allotment made by the Minister in her our.

2. Rule 6 deals with the out of turn allotment, it specifies a form given in Annex-D for making such an application which was to be considered by Out of Turn Allotment Committee constituted according to Annex-G of under-clause 6.30% quota was reserved out of the general pool for out of turn allotment. Sub-rule 8 was inserted to vest powers with the Minister for Housing and Works to exercise jurisdiction out of turn allotment to the extent of 10% out of 30% quota alloted from the pool for out of turn allotment. The jurisdiction of the Federal Minister as well as of the Out of Turn Allotment Committee was available only in the hardship cases. Sub-£ rule find mentioned of a ground for hardships being ground of illhealth or I any other pressing reasons. It, therefore, follows that in the absence of a ground for hardship or any circumstance constituting hardship, the jurisdiction for out of turn allotment would neither be available to Out of Turn Allotment Committee or to the Minister concerned. In the case of Respondent No. 3, out of turn allotment of E-type quarter was sought in lieu of D-type quarter on the ground that the applicant's entitlement is of a better category house. Request of Respondent No. 3 was not based on the ground of hardship nor any circumstance was mentioned in the application to describe hardship. The noting of the office also reflected that the case made by the office was on the ground of better entitlement of Respondent No. 3 which was approved by the Minister. The order of the Minister dated 6.7.2002 was not passed in accordance with the provisions of Pakistan Allocation Rules, 1993 and he had no jurisdiction to approve the allotment in case of Respondent No. 3 when it was not a case of hardship in terms of Rule 6 Pakistan Allocation Rules, 1993. Thus we hold that the order passed by the Minister is without jurisdiction and of no legal effect and the allotment in favour of Respondent No. 3 was not made in accordance with the law.

12A. Going through the record of the Estate Office in this case we find sufficient irregularities committed by the Estate Office as well as Ministiy of Housing and Works. While dealing withe the application of Respondent No. 3 it was not brought on the record that her number in seniority list as a candidate seeking the allotment of E-type quarter was. The Section Officer and other concerned officers of the Ministry did not bother to find out her number in the seniority list and processed her application in a manner so as to procure an order from the Minister. It was the duty of the Section Officer^ Deputy Secretaiy and.the Joint Secretary concerned to place correct facts before the Minister which in the instant case was not done. This is a mal-practice and nepotism which warrants an inquiry.

1. As we have found that the appellant is a trespasser therefore, he is directed to handover the possession of Quarter No. 211-E/Sector G-6/4, Islamabad to the Estate Office on or before, 31.12.2003. Taking a lenient view, the appellant who is a trespasser and has school going children, we are providing him breething space to make alternate arrangements. We partly allow the ICA and set aside the order of the learned Single Judge in Chamber and hold that Respondent No. 3 was not entitled to allotment and allotment letter issued in her favour in respect of order dated 7.8.2002 was without jurisdiction and of no legal effect. The allotment of the quarter concerned would be made strictly in accordance with the Pakistan Allocation Rules, 1993 keeping in view the seniority list of the candidates for allotment.

(A.A) Petition accepted.

PLJ 2004 Lahore 291

Present: CH. IJAZ AHMAD, J.

WAJAHAT IQBAL-Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through its DIRECTOR

GENERAL LDA PLAZA, LAHORE and 3 others-Respondents

C.R. No. 656 of 1998, heard on 14.11.2003.

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

----- Ss. 96 & 115-Re-appraisal of evidence-First Appellate Court is well

within its right to re-appraise evidence on record and reverse findings of trial Court-High Court has very limited jurisdiction to reverse findings of First Appellate Court in revisional jurisdiction unless and until the same was result of mis-reading and non-reading of record or any violation of principle laid down by superior Courts-There being no infirmity or illegality in judgment of First Appellate Court, the same was maintained.

[P. 295] B,C

(ii) Land Acquisition Act, 1894 (I of 1894)--

—-S. 4-Punjab Housing Act 1973, S. 13-Effect of Notification under S. 4 of Land Acquisition Act 1894-Notification under S. 4 of Land Acquisition Act 1894/S. 13 of Punjab Housing Act, 1973 constitute implied warning to public at large that any transaction whatever with regard to land intended to be acquired would be made by transferees at their own risk- Once possession of land in question, was taken in pursuance of notification by respondent Department, then title of such land vested in that Department-Land in question, having been admitted by acquired in 1981, decree of trial Court on basis of oral gift made in 1983, was justifiably reversed by Appellate Court. [P. 294] A

PLD 1983 Lahore 413; NLR 1985 Civil 114; PLD 1949 P.C 26; IX I.C 341 &

AIR 1933 Oudh 100 ref.

Ch. Abdul Razzaq Kamboh, Advocate for Petitioner.

Ch. M. Rashid Ahmad, .Advocate/Legal Advisor L.D.A. for Respondents.

Date of hearing : 14.11.2003.

judgment

The brief facts out of which the present revision petition arises are that the petitioner filed a suit for declaration against the respondents in the Court of Civil Judge 1st Class, Lahore on 29.6.1992. The contents of the plaint reveal that Mst.Inayat Begum mother of Respondents Nos. 2 to 4/defendants was the owner of land measuring 2-kanals 6-marlas in the joint Khata, Khewat No. 380, Khatooni No. 500 to the extent of 1/8 share out of the total property measuring 18-kanals 10-mor/as bearing Khasra No. 1131/595, 596, 1238/597 Mauza Ajudhapur Lahore. Mst. Inayat Begum orally gifted her share in the aforesaid property measuring 2-kanals 6-marlas in favour of the petitioner-plaintiff in the year 1983 and accordingly the possession of the said property was also delivered to the petitioner-plaintiff. The contents of the plaint further reveal that the petitioner-plaintiff is the owner in possession of the land in question since 1983 and the petitioner-plaintiff is the grandson of the aforesaid Mst. Inayat Begum. The land in question alongwith the other land was taken over by the Lahore Development Authority, Respondent No. . 1, for a scheme known as Muhammad All Johar Town, Lahore. The petitioner-plaintiff approached Respondent No 1 for the compensation of the land inquestion acquired by the LDA and for the allotment of the exempted plot in lieu of the said area gifted to the petitioner-plaintiff by the said previous owner Ms?. Inayat Begum orally. Respondent No. 1 refused to listen to the petitioner-plaintiff unless the petitioner-plaintiff secures a decree of the Civil Court to the effect that the petitioner-plaintiff is the owner in place of the previous owner Mst. Inayat Begum. Mst. Inayat Begum original owner died on 31.12.1984 leaving behind Respondents Nos. 2 to 4 as sons and daughters. Respondents-Defendants Nos. 2 to 4 have left with no right or claim over the land inquestion after it was orally gifted to the petitioner-plaintiff. The petitioner filed the aforesaid suit with the prayer that a decree be passed in favour of the petitioner-plaintiff to the effect that he is the owner of the land inquestion in place of the previous owners, Mst.Inayat Begum. The LDA filed written statement, controverted the allegations levelled in the plaint and took a stand in the written statement that Mst.Inayat Begum is one of the owners of the joint Khata measuring 8-kanals IQ-marlas in Khasra No. 1131-595, 596, 1238/597 in the said mauza. The mutation of the said plot in the name of Ms?. Inayat Begum was made on 15.7.1985; therefore, it was not possible for her to orally gift her share in the year 1983. Respondents Nos. 2 to 4 accepted the claim of the petitioner in their written statement,, Out of the pleadings of the parties, the learned trial Court framed the following issues:-

1. Whether the suit is not maintainable in its present form? OPD

2. Whether the plaintiff has got no locus standi and cause of action for the suit? OPD

3. Whether this suit lacks jurisdiction to try the suit? OPD

4. Whether the plaintiff is entitled to the decree for declaration as prayed for? OPP

5. Relief.

6. The learned trial Court decreed the suit vide judgment and decree dated 13.3.1996. Respondent No. 1 being aggrieved preferred an appeal before the Addl. District Judge, Lahore, who accepted the same videJudgment and decree dated 14.11.1997, hence the present revision petition .

7. The learned counsel of the petitioner submits that the judgments of both the Courts below are at variance. He further submits that the First Appellate Court did not advert to the reasoning of the trial Court, therefore, judgment of the First Appellate Court is not sustainable in the eyes of law. He further submits that the judgment of the First Appellate Court is result of misreading and non-reading of the record. He further submits that the claim of the petitioner was accepted by Respondents Nos. 2 to 4. The land inquestion was admittedly acquired by the LDA in the year 1981. The possession of the land inquestion was also taken by the LDA. Award was also announced. The LDA did not exempt any plot in favour of the original owner Mst. Inayat Begum and also did not pay compensation of the land inquestion in the name of the original owner to any of the legal heir of the original owner, therefore, the First Appellate Court did not consider this aspect of the case, therefore, judgment of the First Appellate'Court is result of misreading and non-reading of the record.

8. The learned counsel for the respondents submits that the land inquestion was acquired along with the adjacent land by the LDA in the year 1981. Possession was also taken by the LDA on 16/17 June in pursuance of notification dated 5.1.1981 issued under Section 13 of the Punjab Acquisition of Land Act. The original owner Mst.Inayat Begum had gifted the land inquestion in favour of the petitioner in the year 1983 as is evident from para 2 of the plaint, therefore, judgment of the First Appellate Court is in accordance with law. After issuing the notification under Section 13 of the Punjab Acquisition of Land Act read with Section 4 of the Land Acquisition Act, the original owner has no lawful title quathe land inquestion. He further submits that the civil suit is not maintainable as the petitioner has alternative remedy under the provisions of the Punjab Housing Act, 1973 read with the provisions of the land Acquisition Act, 1984.

9. The learned counsel for the petitioner in rebuttal, submits that rights of the original owner qua the land inquestion remains in tact even after the acquisition of the land inquestion by the LDA therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record.

10. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

11. It is settled principle of law that notification under Section 4 of the Land Acquisition Act/ Section 13 of the Punjab Housing Act, 1973 is first step towards commencement of acquisition proceeding whereby the intention of the Provincial Government to acquire the land for public purpose is notified. Impliedly warning the public at large that any transaction whatever, with regard to the land intended to be acquired would be made by the transferees at their own risk. It is also settled principle of law that once the possession of the land inquestion was taken in pursuance of the notification by the LDA, then the title of the land inquestion automatically vested to the LDA, therefore, First Appellate Court was justified to reverse the finding of the trial Court as the land inquestion was acquired admittedly in the year 1981 whereas the oral gift was made by the original owner in favour of the petitioner-plaintiff in the year 1983. In arriving to this conclusion, I am fortified the law laid down in LDA us. The Land Acquisition Collector/LDA and three others (PLD 1983 Lahore 413). The question of law has already been settled by the Honorable Supreme Court in an unreported judgment dated 15.8.1988 passed in Civil Petition No. 913/83 Muhammad Khalid and another vs. The Land AcquisitionCollector. The relevant observation is as follows:-

"During the hearing learned counsel had to admit that the alleged purchase by the petitioners, which is the basis of their claim, was made in June, 1977, while the notification under Section 4 of the Land Acquisition Act was issued in January, 1977, Not only this, a subsequent notification under Section 13 was also issued prior to the alleged purchase in facts and merits of the case are concerned, the petitioners' claim regarding exemption, could not have been allowed. Learned counsel, however, strenuously argued that Lahore Development Authority Respondent No. 3 had no locus standi to file writ petition.

We do not agree with him. If the claim to the exemption made from the petitioners' side is allowed, it would seriously affect the rights and interests of the said«respondent.

Accordingly thi petition is dismissed and leave to appeal is refused."

The aforesaid proposition is also supported by the law laid down by the Honorable Supreme Court in Muhammad Haleem's case (1991 SCMR 1231). It is also settled principle of law that First Appellate Court is well within its right to reappraisal the evidence on the record and reverse the findings of the trial Court while exercising power under Section 96 of C.P.C. This Court has very limited jurisdiction to reverse the findings of the First Appellate Court while exercising power under Section 115 CPC unless and until the same is result of misreading and non-reading of the record or any violation of the principle laid down by the superior Courts. In arriving to this conclusion, I am fortified by the law laid down in Board of Intermediate and Secondary Eduction Lahore Vs. Syed Khalid Mehmood (NLR 1985 Civil 114) and N.S. Vangatagiri Ayyangar and another Vs. The Hindus Religious Endowments Board Madras(PLD 1949 P.C. 26). The petitioner has alternative remedy under the provisions of the Land Acquisition Act, 1894/Punjab Housing Act\ 1973 read with provisions of Lahore Development Act, 1975. The petitioner is well within his right to avail the proper remedy under the aforesaid law before the competent authority as the law laid down in the following judgments:--

The Deputy Collector, Calicut Division vs. Aiyavu Pillay (DC Indian Cases 341 (Madras High Court)

Chhedi Ram Vs. Ch. Ahmad Shaft and others (AIR 1933 Oudh 100).

In view of what has been discussed above, I do not find any infirmity or illegality in the judgment of the First Appellate Court. T.he petitioner as mentioned above, is well within his right to avail proper remedy before the competent authority under the provisions of the aforesaid law, of-cotfrse, the competent authority, shall decide the same in accordance with law.

With these observations, the revision petition is disposed of. (A.A) Revision dismissed.

PLJ 2004 Lahore 296

Present: SAYED zahid HUSSAIN, J.

Pir SHAUKAT HUSSAIN SHAH-Petitioner

versus TANVIR ASLAM MALIK and 2 others-Respondents

E.P. No. 39 of 2002, heard on 15.9.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—O.VI, R. ,15-Pleadings-Verification-Pleadings are to be verified on oath which is to be administered by a person who is duly authorized in that behalf. [P. 304] D

(ii) Practice and Procedure-

—Failure to do a thing in prescribed manner-Effect-Where law prescribes method of doing or thing in a particular manner the same has to be done in that manner, failure whereof, would ensue legal consequence. [P. 304] C

(iii) Representation of People Act, 1976 (LXXXV of 1976)-

-—Ss. 54, 55 & 63-Inconsistency between special law and general law-­Provisions of Representation of People Act 1976 insofar as those relate to Election disputes providing particular forum and procedure, being of special nature would have primacy and over-riding effect in case of any inconsistency and conflict with any other law of general nature.

[P. 303 & 304] A

(iv) Representation of People Act, 1976 (LXXXV of 1976)-

—Ss. 53(3) & 63~Election petition—Non-verification or defective verification-Effect-Provisions of S. 55(3) of Representation of People Act 1976, when read with S. 63 thereof, are of mandatory nature and non-verification or defective verification as contemplated by those provisions would entail consequence of dismissal of election petitioner. [P. 304] B

(v) Representation of People Act, 1976 (LXXXV of 1976)--

—-Ss. 54, 55 & 63-Scrutiny of election petition by Election Commission/Election Tribunal-Scrutiny of election petition by Election Commission and its reference to Election Tribunal does not denude Election Tribunal of power to dismiss the same for non-observance of S. 54 or 55 of Representation of People Act .1976, otherwise provisions of S. 63 thereof, would be rendered redundant and nugatory. [P. 304] E

(vi) Representation of People Act, 1976 (LXXXV of 1976)--

—Ss. 54, 55 & 63-Election Tribunal's powers of Civil Court-Procedure to be followed-Election Tribunal although has powers of Civil Court under C.P.C. yet for trial of election petitions, Election Tribunal is to follow procedure prescribed by Election Commission. [P. 304] F

(vii) Representation of People Act, 1976 (LXXXV of 1976)--

—Ss. 54, 55 & 63-Civil Procedure Code, 1908 (V of 1908)--O. VI, R. 15-- Verification of Election petition-Verification thereof not only does not meet requirements of S. 55, Representation of People Act 1976, the same was also not in accordance with O.VI, R. 15 of C.P.C. in as much as the same does not specify by reference to numbered paragraphs of petition what he verifies of his own knowledge and what he verifies upon information received and believed to be true. [P. 304] G

(viii) Representation of People Act, 1976 (LXXXV of 1976)--

—-Ss. 55 & 63-Civil Procedure Code, 1908 (V of 1908), O.VI, R. 15-Non- verification of Election petition-Petitioner's affidavit to that effect after filing of Election petition-Failure to verify election petition as mandated by law cannot be cured by filing affidavit nor non-compliance of law can be overlooked or condoned-Even such affidavit does not fulfil requirements of O.VI, R. 15 of C.P.C.-Election petition was dismissed for lack of verification. [Pp. 304 & 305] H

1996 SCMR 426; 1986 CLC 2066; 1987 MLD 2460; 1995 CLC 150; 1986 CLC 2050; 1995 CLC 394; 1997 CLC 1724; PLD 1974 C.C. 134; PLD 1984 Karachi 449; PLD 1978 SC (AJ&K) 118; PLD 1978 Karachi 926; 2000 . SCMR 250; 1997 CLC 1132; 1998 CLC 83 and 1998 CLC 272 ref.

Mr. Saqib Yasin, Advocate for Petitioner. Kh. Ijaz Feroze, Advocate for Respondents.

Dates of hearing: 18.4.2003; 21 and 30.5.2003; 6 and 11.6.2003; 7.7.2003, 21.7.2003 & 15.9.2003.

judgment

In the general election held on 10.10.2002 the petitioner and the respondents contested the election for the membership of the Provincial Assembly Punjab i.e. PP-21 Chakwal-II. Respondent No. 1 was declared as a returned candidate and was so notified in the official Gazette. Through this petition the petitioner has assailed the same on the grounds stated in the election petition.

By filing reply, the election petition has been contested. Jts maintainability has been objected for non-observance of provisions of Section 55 (3) of The Representation of People Act, 1976 that the same has not been verified in accordance therewith. C.M. No. 1/03 has also been filed under Section 63 of The Representation of People Act, 1976 for the dismissal of the petition. The petition was heard alongwith other connected petitions, such as Election Petitions No. 13/02, No. 40/02, No. 77/02, No. 88/02, No. 106/02 and No. 165/02. However, on 31.7.2003 C.M. No. 4/03 was filed by Respondent No. 1' pleading that the copy of the election petition supplied to him was different than the petition which is before the Tribunal inasmuch as the copy did not bear any verification whatsoever (Annex: 'A') whereas

page 10 of the petition before the Tribunal contains a verification, which reads as under:--

"Verified on oath at Rawalpindi, this the 20th day of November, 2002 that the contents of the above Election Petition are true and correct to the best of my knowledge and belief."

It is contended by the learned counsel for Respondent No. 1 that clause (b) of Section 54 of the Act makes it obligatory for the petitioner to "serve personally or by registered post on each such respondent a copy of the petition." It is contended that page 10 of the petition before the Tribunal is different than the one supplied to Respondent No. 1.

The photostat copy of the election petition, which was supplied to Respondent No. 1 and has been produced as Annexure 'A' runs into 10 pages, which is copy of a computer print. The election petition before the Tribunal also contains 10 pages but a discrepancy apparent from the record is that the first 9 pages of the election petition are of the same computer print, copy whereof was supplied to Respondent No. 1, but Page No. 10 is different, which is manual typing print. So far as the petition on the record of the Tribunal is concerned there cannot be denial that it contains the verification reproduced above, but the copy served upon Respondent No. 1 is not the same as is before the Tribunal. It is indeed anomalous and smacks of devious means.

Be that as it may insofar as the import and effect of Section 55 (3) of the Act is concerned I have dealt with that aspect in some detail in judgment dated 8.9.2003 rendered in the above mentioned election petitions. Part whereof has direct relevance of this case and is reiterated:-

"3. To appreciate the respective contentions of the learned counsel for the parties in the context of the controversy, the perusal and survey of the relevant provisions of law i.e. The Representation of People Act, 1976, which provides for the resolution of election disputes through an election petition will be of relevance and significance. Section 52 of the Act permits a candidate to call in question the election through an election petition,, which is to be presented before the Commissioner within 45 days of the publication in? the official Gazette of the name of the returned confidante. Such an election petition is to be accompanied by a receipt of a sum of Rs. 1,000/- as security for the costs of the petition. Section 53 deals with the presentation of the petition, which can be presented by the petitioner or a person authorized by him in writing or can be delivered through registered post to the Secretary of the Commission. Section 54 makes it incumbent for the petitioner to join all contesting candidates as respondents to the petition and to serve copy of the petition on each such respondent. Section 55 provides for the contents of the petition. Its sub-section (3) lays down that "every election petition and every schedule or annexes to that

petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act Vofl 908) for the verification of pleadings." Sub-section (1) of Section 56 empowers the Commission to dismiss the petition forthwith if provisions of Section 52, 53 or 54 have not been complied with. If it is not so dismissed it is to be referred for trial to a Tribunal. Appointment of Tribunal takes place under Section 57 of the Act. Section 62 lays down the procedure to be followed by the Tribunal. Sub-section (1) thereof enjoins upon the Tribunal that "subject to the provisions of this Act and the Rules every election petition shall be tried in accordance with procedure laid down by the Election Commission." Section 63 of the Act empowers the Tribunal to dismiss an election petition during the trial if:-

"(a) the provisions of Section 54 or Section 55 have not been complied with; or

(b) if the petitioner fails to make the further deposit required under sub-section (4) of Section 62."

By virtue of Section 64 of the Act the Tribunal has been vested with "all the powers of a Civil Court trying a suit under the Code of Civil Procedure."

1. The perusal of the above salient provisions of law would show that whereas the Tribunal while seized of an election petition is vested with the powers of Civil Court trying a suit under the Code of Civil Procedure and added emphasis has been laid down qua the procedure to be followed by it, videSection 62 import whereof cannot be overlooked. It needs no reiteration that The Representation of People Act, 1976 is a special Act which provides for the establishment of special Tribunals for resolving election disputes. A particular period of limitation for an election petition i.e. 45 days has been prescribed by the legislature. The Act is a complete and self contained Code. It is a special law dealing with the essential aspects of the election disputes and petitions and the procedure to be followed by the Tribunal. Though the Tribunal is vested with all the powers\ of a Civil Court available to the said Court under the Code of Civil Procedure, 1908 yet the provisions- of The Representation of People Act, 1976 have to be kept in view and wherever there be any inconsistency of overlapping the previsions of the later Special Act would prevail. Such a well established statement of law finds mention at page 307 of "Understanding Statutes" Canons of Construction, second edition by S. M. Zafar that "Where general Act is incorporated with a Special Actsubsequently passed relating to a particular subject matter, a provision in the Special Act prevails over an inconsistent provision in the general Act."

5.The precedents cited respectively by the learned counsel for the parties tend to show that the view expressed by the learned Tribunals from time to time was not wholly consistent and there had been a cleavage of opinion in their approach. There are however, instructive observations by the Hon'ble Supreme Court of Pakistan in Jam Mashooq Ali v. ShahnawazJundjo(1996 SCMR 426). It was argued before the apex Court that since the

Election Tribunals enjoyed all powers of Civil Court the Tribunal was required to follow the procedure of the trial of the suits. Dealing with such a contention and repelling it, the procedure laid down by the Election Commission under Section 62 of the Act on 17.3.1985 was reproduced in extenso and it was held that "The perusal of Section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election Petitions the legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Redding Section 62 as amended and Section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission." It was held that the framing of issues was not a mandatory requirement of law.

1. Contention that once the petition had been referred for trial to the Tribunal it could not be dismissed for non-observance of procedural requirements, has not impressed me inasmuch as although the Commissioner has been empowered under Section 56 of the Act to dismiss the petition forthwith in case provisions of Section 52, 53 or Section 54 had not been complied with yet the Tribunal was also vested with such power by virtue of Section 63 to dismiss an election petition during the trial if provisions of Section 54 or Section 55 has not been complied with or the petitioner had failed to make further deposit required under sub-section (4) of Section 62. In Mrs. Syeda Zahida Zaidi v. Hafiz Muhammad Taqi and others (1986 CLC 2066) it was held by the learned Tribunal (Sind) that "The power under Section 56 which authorize the Commissioner to dismiss the petition for non-compliance with the requirements of Sections 52 and 54 is of administrative and ministerial nature. The Commissioner cannot adjudicate or make inquiry into questions of fact or even such allegations which have been made in the petition. For that purpose similar powers have been given to the Tribunal under Section 63 to dismiss the petition if the provisions of

Section 54 and 55 have not been compiled with.. The power given under

Section 56 to the Commissioner to dismiss the petition for non-compliance with Sections 52, 53 and 54 does not take away the jurisdiction of the Tribunal to exercise its jurisdiction, where there is non-compliance with the provisions of Sections 54 and 55 of the Act. Therefore, even if, the Commissioner has after scrutiny forwarded the case for trial to the Tribunal, the Tribunal has jurisdiction to look into the matter, and give its own decision under Section 63 of the Act". In Maulvi Abdur Rahim v. Shahzada Mohayuddin (1987 MLD 2460) the learned Tribunal (Peshawar) expressed the view that "The mere fact that the election petition was forwarded to the Election Tribunal with no objection by the Election-Commission would not mean that the lapse on the part of the petitioner had been condoned. There is nothing in law to prevent the Election Tribunal from exercising such powers as were available to the Election Commission to refuse to entertain the

election petition." In Asadullah v. Asghar All and another (1995 CLC 150) a learned Tribunal (Balochistan) had taken a similar view observing "In Section 56 learned Commissioner has been given authority to dismiss forthwith the petition if he finds that any provision of Section 52, Section 53 or Section 54 has not been complied with. But Section 55 has not been mentioned meaning thereby that the legislature deliberately excluded Section 55 and in Section 63 this power has been given to the Tribunal to dismiss an election petition if the provisions of Section 54 or Section 55 have not been

complied with...... The question to see if the petition is not signed or

verified in accordance with the provisions of C.P.C is mentioned in Section 55 of the Act its non-compliance and power to dismiss a petition is laid down in Section 63 within exclusive jurisdiction of the Tribunal." There is thus no obscurity that the election Tribunal is fully vested with the power to examine the petition and to dismiss it vide Section 63 of the Act for non-compliance of Section 55 (3) of the Act.

1. The respondents in these petitions have urged for the dismissal of the election petitions mainly for non-compliance of Section 55 (3), which relate to the verification of the petition, its schedule and annuxures. Since the consequences for non-verification as contemplated by Section 55 (3) have been mentioned under Section 63 of the Act that the petition shall be dismissed for such defect, the question of curability of non-verification or that such a requirement is of directory nature hardly assumes any significance. The law itself having taken care of the situation i.e. dismissal of the petition for non-verification in terms of the law, the requirement has to be regarded as of mandatory nature. In Muhammad Ibrahim v. Muhammad Arif Sardar (1986 CLC 2050) an election Tribunal (Punjab) took the view that"I do not think in the context of election laws, verification of the petition or its annexures was merely a formality as could be supplied later by amendment. Section 63 of the Act leaves no option to the Tribunal to allow any such amendment as its absence shall result in dismissal of the petition. There can h? no two opinions about it." It was further observed that "Swearing a separate affidavit and also its verification is evidently not contemplated by the "manner" prescribed for verifying pleadings. It has to be "at the foot" of the petition itself which admittedly in this case is missing. The verification of the contents of the affidavit although reproduction of the petition will not suffice to meet the requirements of Order VI, Rule 15 C.P.C., which insists for the particular manner." In Peter John Sahotra v. Returning Officer and others (1995 CLC 394), it was observed by a learned Tribunal (Punjab) that "The compliance of the provisions of Section's 54 and 55 of the Act 1976 is mandatory. The tribunal has no choice but to dismiss the election petition." In Syed Iftikhar Hussain Gillani v. Anwar Kamal Khan and 3 others(1997 CLC 1724) a learned Tribunal (N.W.F.P) dismissed an election petition as the same had not been verified in accordance with Section 36 (3) of the Senate (Election) Act, 1975. The view taken by the learned Tribunal was that "Now the question for determination is whether the provisions of Section 36 (3) of the Act are mandatory or directory. Three exists no

universal rule or absolute test for determining whether a provision of law is mandatory or directory. The determination is made in view of the intention of the legislature and the language in which the provision -is couched but ordinarily where consequence of failure to comply with the provision are not stated the provision is directory and where the consequences are specifically mentioned the provision is mandatory. In Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 C.C. 134) it was held that as a general rule a statute is understood to be directory when it contains matter merely of direction, but it is mandatory when those directions are followed up by an express provision that in default of following them the facts shall be null and void. In Farid-un-Nisa v. Chairman Federal Land Commission, Rawalpindi (PLD 1984 Karachi 449) it was observed that a provision is mandatory if its disobedience entails a serious legal consequence. In Major Shjat Ali v. Mst. Surra Begum (PLD 1978 S.C. (AJ&K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. Another authority on the subject is reported as Muhammad Ismail v. Haji Muhammad and sons (PLD 1978 Karachi 926) wherein it was observed that the normal rule of construction is that when the statute does not provide for consequences of failure to comply with the directions contained in it, such direction is to be interpreted as directory and not mandatory. In the present case the penal provision is embodied in Section 44 (a) of the Act which expressly provides that the Tribunal shall dismiss an election petition if the provisions of Section 36 have not been complied with. Besides, the word "shall" stands out prominently in Section 36 (3) of the Act and the intention of legislature is made manifest by the stringent nature of the provisions of Section 44 of the Act. There is thus no difficulty in holding that the provisions of Section 36 (3) are mandatory and not directory." (It may be noted that the view so expressed by the learned Tribunal was approved and upheld by the Hon'ble Supreme Court of Pakistan in Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCMR 250).) Reference may also be made to Muhammad Azad Gul v. said Muneer Said and 11 others (1997, CLC 1132) by Election Tribunal (N.W.F.P). In Alam Zaib Khanu v. Muhammad Nawaz Khan and 2 others (1998 CLC 83) dealing with such a defect in the verification of the election petition it was observed by the learned Tribunal (N.W.F.P.) that "In the instant case though the verification has been made and affidavit in support of the petition has also been filed by the petitioner but both the verification as well as the affidavit lack in these basic ingredients necessary for a proper and legal verification/affidavit in addition to the other particulars required for verification and affidavits i.e. the date on which and the place at which it was signed. Moreover, the verification has not been made on oath or solemn affirmation at all and even not before an authority who can administer oath and the affidavit appended with the petition was also not on oath." It was thus held that "the petition filed by the petitioner is not in conformity with the requirements of Section 55 (3) of the Act and the non-compliance has been visited by Section 63 of the Act with the dismissal of the petition." In Khawaja Muhammad Awan v. Alirn Adil and 19 others (1998 CLC 272) again

the import and effect of Section 55 (3) of The Representation of People Act, 1976 came to be considered by the learned Tribunal (Sind) wherein the view expressed was that "Section 63 of the Act 1976 provides penal consequences i.e. dismissal of an election petition if provisions of Sections 54 and 55 have not been complied with, or if the petitioner fails to make further deposit as required under Section 62 (4) of the Act 1976. It is due to this provision that sirict compliance of Sections 54 and 55 are held to be mandatory. Although, it is provided under Section 55 (3) of the Act of 1976 that every election petition, Schedule and other Annexures attached to such petition shall be signed by the petitioner and are to be verified in a manner laid down in the Code of Civil Procedure Code, 1908 but no consequence is provided in CPC for non-compliance of provisions of Order VI but in the instant case there is a penal consequence as envisaged in Section 63 of the Act, 1976 which, in my considered view, is to be construed strictly. The language of Section 63 leaves no scope for the Tribunal to exercise its discretion in favour of such petitioner who has committed non-compliance of Sections 54 and 55 of the Act 1976." The petition was accordingly dismissed for non-compliance of Section 55(3) of the Act. In Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCMR 250) Section 36 of the Senate (Election) Act 1975, which is analogous to Section 55 of The Representation of People Act, 1976, (sub-section (3) of Section 36 of Senate (Election) Act 1975 and Section 55 (3) of the Representation of People Act, 1976 deal with the signing and verification of the election petition and schedule or annexes to that petition) received due consideration of the Supreme Court of Pakistan and it was held that "Sub-section (3) of Section 36 ibid clearly requires that every petition and every schedule or annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order 6 Rule 15 CPC which when read with Section 39 CPC, clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani thou'gh mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of Section 36 of the Act were complied with." It may be noted that the election petition in that case had been dismissed by the learned Election Tribunal N.W.F.P. vide (1997 CLC 1724) (Supra). Such a pronouncement by the Hon'ble Supreme Court should clinch and set at rest the controversy. I am, therefore, unable to adopt the contra view taken by the learned Tribunals, and respectfully follow the preponderant and prevalent view quoted above.

From the above preponderance of the view the principle unambiguously culled out is that:-

(a) The provisions of The Representation of People Act, 1976 insofar as these relate to the election disputes providing particular forum (Election Tribunal) and procedure are of

special nature and will have primacy and overriding effect in case of any inconsistency and conflict with any other law of general nature.

(b) Provisions of Section 55 (3) of the Act read with Section 63 thereof are of mandatory nature and non-verification or

defective verification as contemplated by it would entail the consequence of dismissal of election petition.

(c) It is equally an established principle of law that where the law prescribes the method of doing a thing in a particular mariner the same has to be done in that manner failure whereof may ensue the legal consequence.

(d) The pleadings are to be verified on oath and the oath is to be administered by a person who is duly authorized in that behalf (2000 SCMR 250) (294).

(e) The scrutiny of the election petition by the Election Commission and its reference to the Tribunal does not denude the Tribunal of the power to dismiss the same for non- observance of Section 54 or 55 of the Act, otherwise the provisions of Section 63 of the Act would be rendered redundant and nugatory.

(f) Although the election Tribunal has powers of a Civil Court under the Code of Civil Procedure yet for the Trial of election petitions the election Tribunal is to follow the procedure prescribed by the Election Commission. (1996 SCMR 426).

It is in the light of the above-mentioned principles that the maintainability of the election petition is to be examined and considered.

Such a verification reproduced in the opening part of the judgment was held by the Hon'ble Supreme Court in Engr. Iqbal Zafar Jhagra's case (Supra) as violative of Section 36 of the Senate (Election) Act, 1975 which is in parimateria with Section 55 of The Representation of People Act, 1976. The petition is thus liable to be dismissed for this reason as was ordered in Syed Iftikhar Hussain Gillani's case (1997 CLC 1724) (Supra), (upheld by the Hon'ble Supreme Court of Pakistan in Engr. Iqbal Zafar Jhagra case (2000 SCMR 250)).

Apart there-from the verification does not meet the requirements of Sub-rule (2) of Rule 15 of Order VI CPC inasmuch as it does not specify by reference to the numbered paragraphs of the petition what the verifies of his own knowledge and what he verifies upon information received and believed to be true.

There is an affidavit of the petitioner placed on the record but the failure to verify the petition as mandated by law cannot be cured by filing affidavit nor non-compliance of law can be overlooked or condoned. Even the

said affidavit does not fulfill the requirements of Rule 15 of Order VI CPC. It' does not specify by reference to the numbered paragraphs "what he verifies of his own knowledge and what he verifies upon information received and believed to be true." Since the controversy squarely stand covered by the Judgment in Engr. Iqbal Zafar Jhagra's case, there is thus no escape but to dismiss this petition.

As a consequence the preliminary objection prevails and the election is dismissed with no order as to costs.

(A.A.) Election petition dismissed.

PLJ 2004 Lahore 305

Present: CH. ijaz AHMAD, J.

IMRAN ULLAH SHEIKH-Petitioner

versus

PAKISTAN RAILWAY through its CHAIRMAN, CIVIL SECRETARIAT, ISLAMABAD and another-Respondents

W.P. No. 1559 of 2003, decided on 17.9.2003. Constitution of Pakistan (1973)--

—-Art. 199-Educational Institutions-Notice issued to petitioner by respondents culminating into disqualification of petitioner for one year assailed-Impugned order whereby petitioner was disqualified was passed by respondents after completing all legal formalities, therefore, same was valid in the eyes of law-Respondents were not required to call supervisory staff in witness box-High Court has no jurisdiction to submit its own findings in place of findings of Tribunal below-General allegations of malice, however, were not sustainable in the eyes of law-Writ petition being devoid of merit was not maintainable.

[P. 306 & 307] A & B

PLD 1973 Lahore 600; PLD 1965 SC 90; PLD 1981 SC 464; PLD 1974 SC 151 and PLD 1990 SC 1092 ref.

Mr. Ghulam Haider Al-Ghazali, Advocate for Petitioner. Mr. Irfan Masood Sheikh, Legal Advisor of Respondents. Date of hearing : 17.9.2003.

order

The petitioner has filed this writ petition with the following prayer:--

"It is therefore, respectfully prayed that the Show-Cause Notice dated 28.1.2003 and notice dated 31.1.2003 issued by Respondents Nos. 2 and 3 may kindly bed declared to be without lawful authority

without jurisdiction and mala fide.Consequently the enquiry proceedings may also please be ordered to be conducted by an independent and impartial authority instead of Respondents Nos. 2 and 3 The costs of the petitioner may also kindly be awarded."

1. The learned counsel for the petitioner submits that respondents had issued the aforesaid notices to the petitioner mala fide. He further submits that respondents have no lawful authority to issue the impugned notices to the petitioner. He further submits that during the pendency of this writ petition, respondents passed the order of disqualification of the petitioner for one year vide order dated 24.2.2003. He further submits that order dated 24.2.2003 is also not sustainable in the eyes of law in view of the order dated 31.1.2003.

2. The learned legal advisor of the respondents submits that respondents passed the order dated 24.2.2003 after completing all the legal formalities. He further submits that the material was recovered from the petitioner which was relevant to the paper in question, therefore, impugned order is in accordance with law.

3. The learned counsel of the petitioner, in rebuttal, submits that the material was not recovered from the petitioner in the examination hall, therefore, that material attached by the respondents with the report and parawise comments has no relevancy and the order has been passed by the respondents malafide.

4. I have given my anxious consideration to the contentions of the learned counsel for parties and perused the record.

5. The impugned order was passed by the respondents after completing all the legal formalities, therefore, same is valid in the eyes of law. It is not necessary for the respondents to call the supervisory staff in the witness box and this Court has no jurisdiction to substitute its own findings in place of the findings of the tribunals below as the law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:—

M. Musaddaq Naseem's case (PLD 1973 Lahore 600) Zakir Ahmad's case (PLD 1965 S.C. 90)

Ahmad and 3 others vs. Vice Chancellor, University of Engineering and Technology and another. (PLD 1981 S.C. 464)

It is also settled principle of law that general allegation of malice are not sustainable in the eyes of law as the law laid down by the Honourable Supreme Court in the following-judgments:-

Saeed Ahmad's case (PLD 1974 S.C. 151) Aman Ullah's case. (PLD 1990 S.C. 1092)

In view of what has been discussed above, this petition has no merits and the same is dismissed.

(A.A) Petition dismissed.

PLJ 2004 Lahore 307

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J.

MUHAMMAD ANWAR, DIRECTOR (COMPUTER), NATIONAL TARIFF COMMISSION, MINISTRY OF COMMERCE, ISLAMAB AD -Appellant

versus

FEDERAL PUBLIC SERVICE COMMISSION through its

CHAIRMAN/SECRETARY, AGHA KHAN ROAD, ISLAMABAD

and 2 others-Respondents

F.A.O. No. 78 of 2002, heard on 19.6.2003. (i) Federal Public Service Commission Ordinance, 1977--

-—S. 7(3)(a)--Publk' Service Commission's nomination for appointment to post in question, assailed by petitioner requiring annulment of the same-­ Stance of appellant himself was that he was not questioning nomination made by respondent Authority of respondent nominated by it-Appellant had thus, not at all questioned decision of respondent Authority refusing to recommend him (petitioner)-Appeal for annulment of nomination of respondent was thus, not competent in as much as no steps have been taken by appellant on which order could be passed under S. 7 (3)(b) of Federal Public Service Commission 1977, against which appeal in terms of S. 7(3) (d) of the Ordinance would lie. [P. 311] A

(ii) Federal Public Service Commission Ordinance, 1977-

—Qualifications of respondent selectee vis-a-vis appellant assailed by appellant-Respondent as per record has requisite qualifications on the date he applied for the post in question-Besides, he was interviewed by a penal comprising Chairman Federal Public Service Commission. Member of Commission and also an Expert and he was found fit for appointment to post in question-Respondent was awarded maximum marks by the Selection Board of Federal Public Service .Commission--Appeal "against, nomination of respondent to post in question, being nieritless was not maintainable. [P. 311 ]B

Mr. S.M. Abdul Wahab, Advocate for Appellant. Ch. Sultan Mansoor, D.A.G. for Respondents Nos. 1 and 2. Mian Abdul Rauf, Advocate for Respondent No. 3: Date of hearing: 19.6.2003.

judgment

This appeal has been filed purportedly under Section 7(3) (d) of the Federal Public Service Commission Ordinance, 1977. Vide Consolidated Advertisement dated 16.9.2001 (Annex: T), applications were invited, inter alia, for appointment to the post of Director, Law, Justice and Human Rights Division (BPS-20). Following qualifications were prescribed for the said appointment:--

(i) Second Class or Grade "C" Master's degree or equivalent qualification in Computer Science/Physics, OR Second Class or Grade "C" Bachelor's degree in Computer Engineering recognized by University Grants Commission.

(ii) Seventeen years experience in BPS-17 or equivalent in Programming, System Designing and Operations Research supported by project reports including Five years experience of supervising the system and programming staff at a major computer installation.

(iii) Experience in computerization of Government Rules, Regulations and Laws of Pakistan and their publication on WWW preferable.

(iv) Maximum Age: 45 years.

(v) The post was from merit quota.

1. According to the appellant the was possessed of the said qualifications and he filed an application which was rejected forthwith. He filed an appeal whereupon he was called for interview for pre-qualification purposes. He appeared before the Respondent No. 1 on 14.2.2002 for the said purpose. He was accordingly pre-qualified and was called for interview alongwith three others including Respondent No. 3. One of the said persons, namely, Qasim Ali did not appear. However, the other three including the appellant and Respondent No. 3 appeared. After the completion of the proceedings, Respondent No. 3 was placed at Serial No. 1 while the appellant was placed at Serial No. 2. It is then stated by the appellant that somehow he came to know that Respondent No. 3 has no merits and he is not equipped with the requisite qualifications and he filed a representation on 4.4.2002 requesting the Chairman of Respondent No. 1 to reconsider the case of "Respondent No. 3." He stated in the said representation that the initial induction of Respondent No. 3 was based on his domicile of Baluchistan. He was appointed as an Assistant Director (BPS-17). He had failed in the written test conducted by Pakistan Computer Bureau. Still he was recruited. He proved to be a failure but managed to get a job in Management Services Wing, Cabinet Division, Islamabad. He was found unsuitable in an inquiry held by the said Bureau. From the said Management Services Wing the Respondent No. 3 was sent to Ministry of Law, Justice and Human Rights on deputatioon in BPS-18. He was charged with corruption and was sent back to his parent Department. He was then transferred to Establishment Division where he committed theft of magnetic record of All Pakistan Unified Officers Groups datal and spoiled the same. He was again repatriated to his parent Department. The said representation was rejected by the Respondent No. 1 vide letter a dated 4.5.2002 (Annex:-VII). Yet another letter was sent to him on 6.5.2002 (Annex:-VIII) informing him that he cannot be recommended for appointment to the said post. Thereafter he filed an application on 17.5.2002' to the President of Pakistan and another application on 27.5.2002 to the Secretary, Law, Justice and' Human Rights Division but of no avail. He then filed yet another representation on 7.5.2002 on which no order was passed by Respondent No. 1 and as such no review had been filed. According to the appellant this appeal has beta filed against the order dated 6.5.2002 treating the same as a final order. The main contention of the appellant is that whereas he has the relevant experience, the Respondent No. 3 has not.

2. The Respondent No. 3, on the other hand, in his written statement has explained that he had applied for appointment to the post of Computer Programmer (BPS-18) in Pakistan Computer Bureau, Cabinet Division, in response to a Consolidated Advertisement No. 30 of 1982 by the Respondent No. 1. He was interviewed by Respondent No. 1 and was recommended for appointment. He was appointed by the Cabinet Division to the said post vide notification dated 19.4.1983 (Annex:'H' to the written statement). Thereafter in response to yet another Advertisement No. 48 of 1984 issued by Respondent No. 1 he applied for appointment to the post of Deputy Director (Computer) and was selected. Thereafter he was relieved by the Cabinet Division and recruited in the then O&M Division to the said post. His assignment was as a Deputy Director and Incharge of the Computer Centre in the O&M Division of the Cabinet Secretariat w.e.f. 31.7.1086. This was vide notifications (Annex: 'N' and Nl to the written statement). He has denied the said allegation of corruption charges or theft of the Government records. On the other hand, he has stated that he was appointed as Director in the Law and Justice Division on 3.9.1999 under Section 10 of the Civil Servants Act. Thereafter the Establishment Division required his services .urgently and he was repatriated and had assumed charge in the Establishment Division videnotification dated 9.3.2000 (Appendix: 'P') and that no charges were ever levelled against him. He stood reverted to the Establishment Division as Management Services Wing was merged with the said Division and Section 10 of the said Act ceased to apply. This was videnotification (Annex: 'T'). As to the said grounds, the Respondent No. 3 stated that he is holder of a Master's degree in Physics, it is the requisite qualification and that he also has the requisite experience.

3. Learned counsel for the appellant contends that his client being holder of a Master's degree in Computer Science stands on a higher footing than the Respondent No. 3 who holds a degree in Physics He has also tried to ague that the Respondent No. 3 does not have the requisite experience. Learned DAG states that the concerned Ministry i.e. Law, Justice and Human Rights Division has in its comments supported the appellant. However, at the same time, learned DAG informs that the proceedings were conducted by the learned Chairman of the Respondent No. 1, a learned Member, a Subject Specialist!Advisor) and an Additional Secretary of the said Department and the selection was unanimous. Learned Law Officer also states that the representation filed by the appellant was duly considered and the facts stated therein were got re-checked and re-verified and it was found that the facts stated therein are incorrect. Learned counsel for the Respondent No. 3 challenges the maintainability of the appeal. According to him, under the newly added provision in the Federal Public Service Commission Ordinance, 1977, a representation lies against rejection of candidature. In case the representation is rejected a review lies and the appeal has been provided against the decision of the Respondent No. 1 on the said review According to the learned counsel, neither any representation nor any review was admittedly filed against any rejection of candidature and there being no order on review, the appeal would not be competent. On merits he states that the Respondent No. 1 proceeded in accordance with the terms of the said Ordinance and the advertisement that was issued for inviting applications for the said appointment. He further adopts the contentions raised by the learned Deputy Attorney General.

4. I have gone through the file of this case and have given some thought to the respective contentions of the learned counsel and the learned Law Officer. Coming first to the said objection raised by the learned counsel for Respondent No. 3 I find that in terms of Section 7(3) (a) a representation has been provided to an aggrieved candidate, against any decision of the respondent-Commission. Learned counsel while referring to "rejection of candidature's probably has in mind the general instructions for candidates issued by the respondent-Commission. Be tljat as it may, there is no denial that a representation was filed. Now I find that videAnnex: 'VI-A' the appellant represented against the pre-qualification of Respondent No. 3 for the requisite interview. This is dated 4.4.2002. This was rejected vide letter dated 4.5.2002 (Annex:VII). The appellant then in response to said letter dated 4.5.2002 wrote Annex: VI-B on 7,5.2002. He insisted that he had not represented against the selection/nomination of Respondent No. 3 rather his pre-qualification for interview. The respondent-Commission informed him on 6.5.2002 vide Annex:VIII that he cannot be recommended for appointment. Admittedly no representation and consequently no review was filed against the said decision conveyed to the appellant on 6.5.2002. This obviously means that he has accepted the decision" of the respondent-Commission in refusing to recommend him for the said appointment. There is yet another aspect of this case, the appellant in the first instance on 1.6.2002 filed W.P. No. 1522/2002 in this Court and the prayer was that the recommendation of Respondent No. 3 by Respondent No. 1 be declared to be without lawful authority. This writ petition was withdrawn on 3.6.2002. Now in the present appeal as well the only prayer is that the nomination of Respondent No. 3 be annulled. The present appeal has been filed on 10.6.2002. Now it is the stance of the appellant himself in -document Annex:VI-B dated 7.5.2002 that he is not questioning the nomination made by the Respondent No. 1 of Respondent No. 3. Needless to state that the appellant has not at all questioned the decision of the Respondent No. 1 refusing to recommend him. In this view of the matter, I do agree with the learned counsel of Respondent No 3 that the present appeal praying for annulment of the nomination of Respondent No. 3 is not competent inasmuch as no steps have been taken by the appellant on which an order could be passed under Section 7(3)(b) of the Federal Public Service Commission Ordinance, 1977 against which an appeal in terms of Section 7(3) (d) of the said Ordinance would lie.

5. Now so far as the experience is concerned, vide notification dated 14.4.1983 (Annex: 'H' to the written statement) the Respondent No. 2 was appointed as a Programmer in the Pakistan Computer Bureau with effect from 26.3.1983. Thereafter he was appointed as a Deputy Director in the O and M Division. According to Annexure T to the comments filed by the respondent-Commission the said Wing has a major computer installation since 1985 used for system analysis, designing and programming of applications for client organizations. To my mind the Respondent No, 3 had the requisite experience on the date he applied for the said post. Besides he was interviewed by a panel comprising of the learned Chairman and Member of the respondent-Commission as also an Expert and was found to be fit for appointment to the said post.

6. Now coming to the comments filed by the Respondent No. 2, on which main reliance has been placed on behalf of the appellant. It has been stated therein that it is believed that the qualifications and experience of Respondent No. 3 were not relevant and that an inquiry of irregularities in purchase of computers worth at Rs. 2.6 Million was conducted against Respondent No. 3 and due to the involvement in the case he was repatriated to the Establishment Division. I am afraid no such order has been placed on record by the said respondent or by the learned Deputy Attorney General. Besides, as stated by me above, an officer of the rank of Additional Secretary of Respondent No. 2 was a Member of the panel who. interviewed the three candidates and awarded maximum marks to the Respondent No. 3. The said comments, therefore, would be of no avail to the appellant

7. For all that has been discussed above, this FAO is found to be without any force and is accordingly dismissed but the parties are left to bear their own costs.

(A.A) Appeal dismissed.

PLJ 2004 Lahore 312

Present: M. akhtar shabbir, J.

SAFIA BEGUM deceased through his legal heirs-Petitioners

versus MUHAMMAD ASLAM (deceased) through his legal heirs etc.--Respondents

C.R. No. 794 of 2000, heard on 11.11.2003. Muhammadan Law-

—Gift-Gift by donor in favour of sons and wife through registered gift deed-Presumption of correctness was attached to registered documents in as much as, endorsement had been made on the same by Sub-Registrar which would indicate that documents in question, were validly executed and presented by donor for registration before him-Gift-deed indicated that at the time of registration donor as well as done appeared before Sub-registrar and their thumb-impressions were reflected on such documents-Suit against such gift having been filed beyond period of limitation was rightly dismissed by Courts below which findings warrant no interference in as much as, no illegality was committed by Courts below in exercise of their jurisdiction which were concurrent on facts.

[P. 314] A&B

1994 MLD 2339; 1994 MLD.283: 1994 PSC 807; 1993 SCMR 462; 2000 MLD 1459; PLD 1968 Dacca 259; 1999 MLD 2160 & 1993 SCMR 2099 ref.

Sardar Abdul Majid Dogar, Advocate for Petitioners. Mr. Zahid Hussain Khan, Advocate for Respondents: Date of hearing : 11.11.2003.

judgment

This revision petition arises out of the facts of a suit for declaration with permanent injunction filed by Mst. Safia Bibi, deceased mother of Petitioners Nos. 1 to 5 against Muhammad Aslam and others defendants-respondents (herein) claiming to be legal heir (daughter of Muhammad Khan deceased) and entitled for inheritance of his property according to sharia, challenging the validity/legality of gift-deeds dated 22.1.1977 and 22.1.1980. The suit was contested by Defendants Nos. 1 to 3 and 6 to 8 who filed their written statement denying the averments of the plaint. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame various issues.

1. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide,judgment and decree dated 20.6.1992 dismissed the suit. Against the said judgment and decree, the appeal filed by the plaintiffs-petitioners also met with the same fate vide, judgment and decree dated 8.3.2000 by the Additional District Judge Gujrat/Appellate Court.

2. Learned counsel for the petitioners contended that Mst. Safia Bibibeing legal heir of deceased-Muhammad Khan had being deprived of her'shari' share of inheritance through impugned transaction of gift in favour of defendants-respondents and the gift made by the donor is in violation of principle of inheritance as provided in 'Muhammadan Jurisprudence' that a Muslim cannot be deprived of any of his Muslim heir while transferring his property through Tamleeq in favour of other legal heirs. He relied on cases of Mst. Khalida Bibi vs. Mst. Daryai Khartum (1994 MLD 2339) and Muhammad Shaft vs. Nasir Ali (1994 MLD 283).

3. On the other hand, learned counsel appearing on behalf of respondents has vehemently opposed the arguments "addressed by the learned counsel for the petitioners, contending that the judgments of the Courts below have been passed in accordance with law and that the Holy Quran does not prohibit a gift in favour of an heir excluding other heirs. He relied on case of Noor Muhammad Khan vs. Habibullah Khan (1994 PSC 807).

4. I have heard both sides at length and perused the record.

5. The question that boils down for determination in this case is tnat whether a gift made by any Muslim, holder of the property in favour of an heir excluding the other heir is prohibited by Holy Quran or not. Muhammad Khan son of Fazal Din deceased, predecessor-in-interest of the parties was in possession of the suit land measuring lOG.Kanals and 17 Marias, the detail of which is mentioned in the plaint. He transferred his property in favour of his three sons namely, Muhammad -Aslam, Muhammad Akbar and Fazal Karim, 3/4 share and Mst. Aiysha, his wife, 1/2 share, vide registered gift-deed dated 22.1.1977 and thereafter Mst.Aiysha, his wife, transferred her share in favour of Muhammad Akbar, her son his share of the property which she acquired through registered gift- deed. In this regard, the trial Court framed Issue No. 1 which is as under:-

"Whether gift-deeds registered on 22.1.1977 and 22.1.1980 are illegal void and in-operative upon the rights of plaintiff ? OPP."

In case of Muhammad Shafi (supra) an Hon'ble Judge of this Court had observed that gift to deprive lawful heirs from inheritance was not valid. The same principle was followed in Mst. Khalida Bibi's cased referred to above by the learned counsel for the petitioners.

1. This proposition was dealt with by the Hon'ble Supreme Court of Pakistan in Noor Muhammad Khan's case (supra) and relevant portion of the judgment is reproduced as under for further guidance:-

"After due consideration of all the authorities referred to above we are of the opinion that under Islamic Law a preferential gift is not

void. It may be described by some Jurists, sinful, but as it is not prohibited, it cannot be declared to be void."

In the case in hand as discussed in the precedings paragraphs, the gift by the donor Muhammad Khan was made in favour of donees, his three sons and his wife through registered gift-deeds mentioned above and further transfer of property in favour of Muhammad Akbar by his mother Mst. Ayesha on 22.1.1980. The presumption of correctness is attached to these registered documents as an endorsement is made on the same by the Sub-Registrar, the registering authority which means that the documents were validly executed and presented by the donor for registration before the Sub-Registrar. Reference in this respect can be made to the cases of Mirza Muhammad Sharif vs. Mst. Nawab Bibi (1993 SCMR 462), Muhammad Alam vs. Rahmat Ali (2000 MLD 1459) and Ajimuddin Parmanik and others vs. Najeemuddin Mondal (PLD 1966 Dacca 259).

1. From the perusal of gift-deeds executed by Muhammad Khan it is evident that the time of registration of the same the donor as well as one of the donees Muhammad Akbar appeared before the Registering authority and thumb impression of said Muhammad Khan and Muhammad Akbar are reflected on the said documents, which is sufficient proof, that requirements of offer and acceptance of gifts were completed. Learned counsel for the petitioners has not been able to point out any illegality in the gift-deeds nor has referred non-performance of any of three requirements for a valid gift.

2. Moreover, the gift-deed was executed in the year 1977 and second deed was completed in the year 1980, while present suit had been filed in 1999 and Safia Bibi has not been able to establish her assertion that she has been receiving any produce from the defendants. The Courts below have rightly given findings to the effect that the suit was filed beyond period of limitation i.e. six years as provided in Article 120 of the Limitation Act, therefore, the findings on Issue No. 4 call for no interference. The learned counsel for the petitioners could not point out any illegality or perversity in the findings of Courts below and no other point has been agitated by him before this Court.

3. There is also concurrent findings of fact against the petitioners and this Court in exercise of its revisional jurisdiction would not interfere with in the concurrent findings of fact recorded by the Courts below unless it is established that the Courts had exercised the jurisdiction so vested in them illegally or have failed to exercise the same legally as laid down in the cases of M. Rafique Vs. Ameer Shahzad (1999 YLR 610), Rab Nawaz vs. ShahHanif.(1999 MLD 2160) and Guldar Khan vs. Isa Khan and others (1993 SCMR 2099).

4. Resultantly, this revision petition being devoid of force is dismissed.

(A.A) Revision dismissed.

PLJ 2004 Lahore 315

Present:saved zahid hussain, J. Hqji GHULAM RASOOL-Appellant

versus MIAN JAVAID AHMAD ZIA and another-Respondents

F.A.O. No. 202 of 2003, heard on 30.10.2003. Specific Relief Act, 1877 (I of 1877)--

—-S. 12-Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1, 2 & O. XLIII, R. l--Suit for specific performance of agreement to sell-Plaintiff seeking injunctive order-Essentials-Normal practice and ordinary rule followed by Courts in suits for specific performance is to direct plaintiff to make deposit of balance consideration in case an injunctive order was sought from Court-Plaintiff is supposed to be ready with settled price and willing to perform his part-Order of trial Court was modified with direction that plaintiff would make deposit of balance consideration money in trial Court before 15th of December 2003 subject to which temporary injunction granted by trial Court would remain operative-Likewise defendant would make deposit amount of earnest money received by him within the same period with trial Court. [P. 317] A

1992 CLC 8; 1980 SCMR 588; 1997 MLD 1821; 1997 CLC 997; 1997 6CMR

1443; 1994 CLC 12; 1992 CLC 12; 1992 CLC 8; 1991 CLC 1507; PLD 1990

Lahore 82; 1989 MLD 21; 1987 MLD 2035; 1986 MLD 1914; 1981 CLC

453; 1981 CLC 276; PLD 1956 Karachi 521; 2003 SCMR 238; PLD 2003

Lahore 17; 1997 PSC 1442; 1994 SCMR 1764; 1998 MLD 601; 1997 MLD

1821; 1996 MLD 60; PLD 1996 Lahore 438 ref.

Mr. M.S. Baqir, Advocate for Appellant. Mr. Azmat Saeed, Advocate for Respondents. Dates of hearing: 24,27 & 30.10.2003.

judgment

For the performance of agreement dated 12.9.2002 a suit for specific performance has been instituted by the appellant, which is pending before the trial Court. Alongwith the suit an application under Order 39, Rules 1 & 2 read with Section 151 CPC was filed praying that "The respondent may be restrained from alienating, transferring and deposing off and also changing the character/nature and raising any sort of construction over the suit property in any manner whatsoever, till the pendency of the main suit." By filing written statement and reply to the above mentioned application, the defendants/respondents contested the same. On 3.9.2003 the learned trial Judge decided the application who observed that in view of the execution of the agreement having been admitted as also the sale price, the appellant/plaintiff had prima facie case in his favour and accepted the said application restraining the respondents/defendants from alienating/ transferring the property in dispute subject to deposit of balance sale consideration by the appellant/plaintiff in Court within two months. The plaintiff has assailed this order with the grievance that the direction to make deposit of the balance consideration was not warranted by the facts and circumstances of the case.

1. It is contended by the learned counsel for the appellant that while exercising its discretion the learned trial Court has ignored salient features of the case in as much as that out of the sale consideration of Rs. 2,65,00,000/- a sum of Rs. 75,00,000/- had been received by them, which was in their use as also the property as the possession thereof has also been retained by them. It is contended that the appellant/plaintiff had always been ready with the balance price and was willing for the performance of the agreement and the delay was attributable to the defendants who had to secure documents/clearance from Lahore Development Authority. It is further contended that whereas a sum of Rs. 75,00,000/- paid to the respondents/defendants is being made use by them the appellant has gained no benefit out of the transaction. According to him respondents should have been directed to deposit the said amount in Court. To support his contention that the facts and circumstances of each case are to be kept in view by the Court in making a restraint order or for direction to deposit the balance price, reference has been made by him to Khizar Hayat v. Mussarat Rabbani (PLD 1995 Lahore 438), Said Muhammad V. Abdul Rehman (1996 MLD 60), Dr. Akram Chaudhry v. Ch. Fazal Dad (1997 MLD 1821), Abrar Ahmad and others v. Munawwar Saeed (1998 MLD 601), Abrar Ahmad Khan Tareen v. Munawar Saeed (1994 SCMR 1764), Pandurang Ganpat, Tanawade v. Ganpat Phairu Kadam and others (1997 PSC 1442), Friends Associates (Regd.) through Managing Partner, Lahore and 3 others v. Messrs Bin Bak Industries (Put.) Limited through Chief Executive, Faisalabad and 9 others (PLD 2003 Lahore 17) and Messrs Bi Bak Industries (Pvt.j Ltd. and another v. Friends Associates (Regd.) and others (2003 SCMR 238). The learned counsel for the respondents has in his endeavour to support the order of the trial Court contended that the appellant/plaintiff failed to perform his part as per the agreement within the time specified, therefore, the direction to make deposit of the balance amount has rightly been given by the Court. , According to him the amount of Rs. 75,00,000/- stand forfeited by operation of Clause-9 of the agreement. In order to support his contention that in such like matters direction to make deposit of the balance amount for the grant of temporary injunction was justified, reliance has been placed upon Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 (W.P.) Karachi 521), Anjum Rehmat and another v. (Rtd.) Sqn/Ldr. Shaikh Ghulam Sadiq (1981 CLC 276), Sheikh Muhammad Rafiq Akhtar v. Sqn/Ur. (Rtd.) Shaikh Ghulam Sadiq (1981 CLC 453), Mirza Shah Nawaz Agha v. Iqbal Aziz Khan and 3 others (1986 MLD 1914), Ferozuddin and another v. Tien Ying Lee and others (1987 MLD 2035), Shama Enterprises (Private) Ltd. v. Malik

Ghulam Sarwar and others (1989 MLD 21), Fateh Muhammad v. Muhammad Hanif and another (PLD 1990 Lahore 82), Balquees Zaman Khan and others v. Tahir Mehmood Butt (1991 CLC 1507), Wiqar Avals v. Raja Muhammad Shaft Janjua and 4 others (1992 CLC 8), Muhammad Nazir v. Yaqoob Khan and others (1994 CLC 12), Manzoor Ahmad and 6 others v. Hamid 'Shah Gilani and another (1997 SCMR 1443), Muhammad Banaras Khakan u. Miss Rubina Chaudhary and others (1997 CLC 997), and Dr. Akram Chaudhry v. Ch. Fazal Dad (1997 MLD 1821).

1. The contentions so raised by the learned counsel for the parties have been considered in the light of the material that has been brought on record and the precedents cited by them. The execution of the agreement to sell dated 12.9.2002 is not in dispute nor the price settled and receipt of Rs. 75,00,000/- is disputed. The assertions and counter assertions as to the party responsible for non-performance within the stipulated period extension whereof is claimed by the appellant/plaintiff to have been made by the parties mutually, will be a matter of evidence, which may be produced by the parties in support of their respective pleas. Any finding/inference at this stage may prejudice the case of any of the parties, therefore, maximum restraint is being exercised. However in order to dispose of the matter of temporary injunction a tentative assessment of the matter is to be made by the Court. On such assessment the trial Court has prima facie found the appellant/plaintiff entitled to the grant of temporary injunction who, however, has subjected him to the condition of making deposit of Rs. 1,90,00,000/- i.e. the balance sale consideration, in Court. The respondents/ defendants have not assailed that order, it is the appellant/plaintiff who has felt aggrieved of this condition. From the perusal of the precedents cited by the learned counsel for the parties it is discernable that the preponderance of the approach adopted and view expressed is that while dealing with such a matter i.e. grant of temporary injunction, the Court is to keep in view the facts and circumstances of each case. It is the peculiarity of a matter, which assumes relevance and significance as to what type of order is to be passed by the Court and with what conditions. The normal approach and the ordinary rule followed by the Courts in suits for specific performance is to direct the plaintiff to make deposit of the balance consideration in case an injunctive order is sought from the Court. The reason is quite obvious that the plaintiff is supposed to be ready with settled price and willing to perform his part. In the latest pronouncement by the Hon'ble Supreme Court of Pakistan in Bin Bak Industries (Put.) Ltd. (Supra), it was observed that ;'no doubt in a suit of specific performance of contract an order of restraint in respect of the suit property is normally granted subject to the deposit of the balance of the sale consideration but the rule is not absolute and mandatory. The exercise of discretion in this context depends upon the nature of the agreement to sell and facts and circumstances of the case." In view of the peculiar nature of the agreement to sell and a "rare agreement to sell" in that case the judgment of the High Court whereby the order of the trial Court was modified, was maintained. The agreement to sell executed in the present case is usual and is neither extraordinary nor it contains unusual terms. Thus there is no scope or justification for deviation from the normal and ordinary rule in this matter. The contention of the learned counsel for the respondents to this extent thus is not without substance.

2. The Court, however, cannot be oblivious of the fact and the contention of the learned counsel for the appellant that despite parting with substantial amount the appellant has derived no benefit except the litigation to ensue under agreement dated 12.9.2002, whereas the respondents have and are making use of the advance money of Rs. 75,00,OOO/-. It has been pleaded in the memorandum of appeal also that the Court ought to have required the defendants/respondents to deposit the same. As mentioned above the possession of the suit property, which is situated in the prime part of the city of Lahore, is also with the respondents. Their claim as to forfeiture of the earnest money is yet to be adjudicated by the trial Court. The Court at this stage is to strive for the maintenance of equitable balance being fair to both sides. Suffice it to observe that in order to prevent the ends of justice from being defeated the Court has ample power to make such interlocutory order as may be considered just and proper. Section 94 of Code of Civil Procedure, 1908 recognizes such powers of the Court. To ascertain whether the ends of justice would be defeated unless an order of induction is passed, the facts and circumstances of each case have to be considered and kept in view. In Muhammad Aref Effendi v. Egypt Air (1980 SCMR 588) the High Court of Sindh while exercising original jurisdiction had declined the temporary injunction in a suit pending before it but on appeal the Hon'ble Supreme Court observed that temporary injunction could be granted on terms. It is deducible from the perusal of judgment of the Hon'ble Supreme Court that while dealing with a matter concerning the grant of temporary injunction the Court can regulate the conduct and dealings of the parties in order to secure their interests. Keeping all this in view, I have considered it just and proper to modify the order of the trial Court in order to secure the interest of both sides. It is ordered that the appellant/plaintiff would make deposit of the balance consideration money in the trial Court before 15th of December, 2003 subject to which the temporary injunction granted by the trial Court will remain operative. Likewise the respondents/defendants will make deposit of the above-mentioned amount of Rs. 75,00,000/- within the same period with the trial Court. A direction of similar nature was made by this Court in Wiqar Avals v. Raja Muhammad Shaft Janjua and 4 others (1992 CLC 8). The amount so deposited shall be invested by the trial Court in some Government approved profit bearing scheme, the disposal whereof will be subject to the final outcome of the litigation between the parties.

With the above modification and observations, the appeal is disposed of accordingly. No. order as to costs.

(A.A) Order accordingly.

PLJ 2004 Lahore 319

Present M. akhtar shabbir, J. MUHAMMAD MALIK and another-Petitioners

versus MUHAMMAD ISMAIL and another-Respondents

C.R. No. 2613-D of 1996, heard on 3.11.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—-S, 115--Concurrent finding of fact-Interference by. High Court-­Essentials-Concurrent finding of fact could be interfered with by the High Court only where such finding was based on "conjectural presumptions" erroneous assumptions, wrong proposition of law, insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where un-reasonable view of evidence had been taken due to non-reading and misreading of evidence. [P. 321] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—- S. 13(3)--Notice of talb-i-Ishhad not proved to have been sent-Effect- Provisions of S. 13(3) of Punjab Pre-emption Act 1991 being mandatory in nature, performance of talb-i-Ishhad was considered to be one of the most important conditions for enforcing right of pre-emption and if notice had not been sent as per requirement of law conclusion would be that talb-i-Ishhad had not been made, as a result whereof right of pre-emption would be deemed to have extinguished. [P. 322] B

(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—S. 13(3)-Civil Procedure Code, 1908 (V of 1908), S. 115-Suit for pre­ emption-Performance of talbs is pre-requisite-Original notice of talb-i-Ishhadwas not placed on record nor evidence of witnesses who had attested the same was trustworthy and reliable-Such witnesses admitted that they did not know the contents of talb-i-Ishhad-Si&tements of two witnesses of talb-i-Ishhad being contradictory was not worth reliance and had been rightly disbelieved by Courts below-No illegality, material irregularity, misreading or non-reading of evidence having been pointed out, interference in concurrent finding of Courts below was not warranted. [Pp. 322 & 323] C

NLR 2003 Civil 460; 1999 SCMR 717; PLD 2003 SC 315; 2001 SCMR 1651; 1995 SCMR 1510; 1999 SCMR 1060 and 1987 SCMR 1545 ref.

Mr. Kazim Khan, Advocate for Petitioners.

Mr. Muhammad Naeem Bhutto, Advocate for Respondents.

Date of hearing: 3.11.2003.

judgment

This revision petition arises out of the facts of a suit for possession through pre-emption filed by the petitioners on a sale of land measuring 16-Kanals, \2-Marlas bearing Khewat No. 92, situated in village Jandhala, against an ostensible sale price of Rs. 87,000/- purchased by Muhammad Ismail, vendee-defendant-respondent (herein) videsale-deed dated 7.1.1990. The plaintiffs in their plaint claimed their superior right of pre-emption qua the vendee-respondents alleging that in fact the land was purchased for a sum of Rs. 50,000/- and an amount of Rs. 87,000/- had been mentioned in sale-deed fictitiously to defeat the superior right of pre-emption of plaintiffs. The suit had been contested by the defendants on the ground that the plaintiffs had not fulfilled the requirement of "talabs" and that he was present at the time of bargain of sale of the disputed land and has waived his right of pre-emption. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame various issues.

1. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide, judgment and decree dated 12.7.1993 dismissed the suit. Feeling aggrieved thereby, the petitioners preferred an appeal which came up for hearing before the learned Addl. District Judge, Sialkotwho vide, impugned judgment and decree dated 18-9-1996 dismissed the same, affirming the findings of the trial Court. The trial Court had decided Issues Nos. 2, 3, 7 and 8 against plaintiffs-petitioners while the Appellate Court in appeal had reversed the findings on Issues Nos. 7 and 8 and maintained the findings on Issues Nos. 2 and 3 deciding against the petitioners.

2. The question that boils down for determination in this case is that whether the requirement of talabs have been fulfilled by the plaintiffs- petitioners.

3. Learned counsel for the petitioners contended that onus to prove the Issue No. 2 was on the defendants and they miserably failed, and petitioners by producing cogent and sufficient evidence has proved the performance of the same. Further argued that the petitioners cannot be non­ suited for non-performance of "Talab-e-Muwathibat" and "Talab-i-Ishhad"simply because his own witness of these talbs had joined hands with the vendees. He continued that the legislature in its wisdom has given importance and stress to the attestation by two truthful marginal witnesses of "talb-i-Ishhad"and it is not necessary that two witnesses should depose in Court. He placed reliance on case of Muhammad, Aslam vs. Ghulam Qadir(NLR 2003 Civil 460). Further submitted that the "Talab-i-ishhad" being procedural in nature same could not be considered as mandatory so as to result in non-suiting the pre-emptor on the ground of its non-compliance. He relied on case of Abdul Malik vs. Muhammad Loft/(1999 SCMR 717).

4. On the other hand, learned counsel appearing on behalf of contesting respondents has vehemently opposed the arguments of the

learned counsel for the petitioners contending that no pre-emptor can succeed if he fails to fulfil the requirement of talbs as per Section 13 of

Punjab Pre-emption Act.

1. I have heard the learned counsel for the parties and gone through the record.

2. As to the arguments of learned counsel for the "petitioners that onus to prove the Issues Nos. 2 and 3 was on the defendants-respondents, it is Suffice to say, that the trial Court in Paragraph No. 6 of the judgment had mentioned that onus to prove the issues was on the defendant but under the law it was the duty of the plaintiffs to prove the performance of 'talbs' for the

suit of pre-emption, therefore, with the mutual consent of learned counsel

for the parties, the onus to prove the issues was shifted to the plaintiffs and

they adduced oral as well as documentary evidence upon these issues.

Accordingly, this argument of the learned counsel for the petitioners is

belied from the record, hence, the same being misconceived is repelled.

1. To establish the performance of "Talab-i-ishhad"the plaintiffs produced Muhammad Din PW 2 who stated that after a lapse of 15-days of making "Talab-e-muwathibat"a notice was issued to the defendant of which he was an attesting witness. In cross-examination he showed his ignorance

about the contents of the notice. PW3 Abdul Ghani also deposed in line with PW2 and admitted that he did not know that what was written in the notice. The notice in original nor the copy of the same had been placed on record. The only evidence to substantiate this fact was of Javed Iqbal PW 4 who too, admitted that notice was not received by the defendant-respondent Muhammad Ismail.

C 9. Both the Courts below gave concurrent findings of fact observing

that the plaintiffs-petitioners failed to perform all the three requirements of talbs and in case of Haji Muhammad Saleem vs. Khuda Bux (PLD 2003 SC 315) it has been observed that where two Courts below have appreciated the evidence minutely and discussed the same in detail and thereafter had arrived at concurrent conclusion, the High Court should not have interfered with simply to substitute its own findings, 'notwithstanding', the mode of appreciation of evidence being subjective. The concurrent finding of fact could be interfered with by the High Court only where such findings were based on "conjectural presumptions", erroneous assumptions, wrong proposition of law, insufficient evidence, misreading of evidence, non- consideration of material evidence, erroneous assumption of facts, patent

errors of law, arbitrary exercise of power and where unreasonable view of

evidence had been taken due to non-reading and mis-reading of evidence."

1. In the case in hand, the pre-emptor through the evidence on

record had failed to perform the talbs and the Courts below have rightiy appreciate the same while passing the impugned judgments.

1. In another case, Abdul Qayyum vs. Muhammad Rafiq (2001 SCMR 1651), the Hon'ble Judges of Supreme Court have observed that as the provisions of S. 1.3(3) of Punjab Pre-emption Act, 1991 being mandatory in nature, performance of "Talab-i-ishhad"was considered to be one of the most important conditions for enforcing the right of pre-emption and if a 0 notice had not been sent as per the requirement of law, the conclusion would be that 'Talb-i-ishhad' had not been made, as a result whereof right of pre­emption would be deemed to have extinguished. It is further observed that both 'Talb-e-muwathibat' and 'Talb-i-ishhad'had to be proved simultaneously and right of pre-emption would stand extinguished for want of both the

2. In case of Muhammad Ramzan vs. Lai Khan (1995 SCMR 1510) the Hon'ble Judges of apex Court had observed that Section 13 of the Punjab Pre-emption Act, 1991 prescribes that the right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following or'der:--

(i) Talb-e-muwathibat; (ii) Talb-i-ishhad^ and (iii) Talb-i-Khasumet.

1. As to the case law referred to by the learned counsel for the petitioners i.e. Abdul Malik (supra) is concerned, in this case 'Talb-i-ishhad'was claimed to have been made in the presence of two witnesses whose names were disclosed in the said notice. Notice though did not contain the attestation of the said two witnesses but the contents of the notice and evidence of two witnesses showed that the provisions contained in S. 13(3), Punjab Pre-emption Act, 1991, were substantially complied with, but the facts of this case are not applicable on all the four of the present case as in the case in hand the notice was not produced in evidence. Only the petitioners are relying upon the oral statements of PW2 and 3 to depose that they were the attesting witnesses of the notice but they admitted that they did not know the contents of the notice. The statement of PW4 Muhammad Iqbal is not sufficient to establish that any notice was issued to the plaintiffs.

2. So far as the contention of the learned counsel for the petitioners that the legislature has given importance and stress to the attestation by two truthful marginal witnesses of 'talb-i-ishhad' and it is not necessary that two witnesses should depose in Court is concerned, the answer would be that it is the function of the Court to dig out the truth from the evidence produced by the parties but in the instant case the statements of PW2 and PW3 being contradictory and not worth reliance have been dis-believed by the Courts below and this appreciation of evidence cannot be interfered with by this Court while exercising its revisional jurisdiction as laid down in cases of Hqji Muhammad Saleem, (supra), Raham Dil vs. Province of Punjab (1999 SCMR 1060) and Khurshid Bibi vs. Muhammad Rafique (1987 SCMR 1545).

3. Learned counsel for the petitioners has not been able to point out any illegality, material irregularity, mis-reading or non-rea'ding of evidence in the decision rendered by the two Courts below.

4. Resultantly, this revision petition being devoid of merit is dismissed with no order as to costs.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 323

Present: sayed zahid hussain, J.

UNITED BANK LIMITED through its AUTHORIZED ATTORNEY AFTAB CENTRE, 30-DAVIS ROAD, LAHORE-Petitioner

versus

DEFENCE HOUSING AUTHORITY through its SECRETARY and another-Respondents

W.P. No. 12606 of 2003, heard on 7.11.2003. (i) Financial Institutions (Recovery of Finances) Ordinance, 2001--

—-Ss. 19 & 15-Sale of mortgaged property by petitioner without intervention of Court-Respondent Authority subjected, its approval to transfer of such property to fulfilment of formalities in terms of S. 15, Financial Institutions (Recovery of Finances) Ordinance, 2001-Legality- Provision of S. 19 of Financial Institutions (Recovery of Finances) Ordinance 2001, would show that upon pronouncement of Judgment and decree by Banking Court, suit itself would stand converted into execution proceedings and on expiry of period of 30 days, Court was expected to proceed with the execution of decree-Sale of mortgage property was yet to be completed and was still inchoate when respondent/Authority was pre-maturely approached for issuance of certificate of transfer-Neither execution and registration of sale-deed had yet taken place nor transaction was complete or its amounts were submitted before Court when petitioner and respondent (auction purchaser) approached respondent Authority for necessary certification and transfer-Authority in such case was justified to call upon petitioner to complete legal formalities-Constitutional petition against Authority was thus not competent. [Pp. 325, 326, 327 & 328] A, B & D

(ii) Interpretation of Statutes--

-—Construction which tends to advance, promote and serve cause of justice is to be preferred. [P. 327] C

2003 CLD 552; 2003 CLD 956; 2003 CLD 1178; 2003 SCMR 1174; 2003 CLD

914; 2003 SCMR 1547; 1989 MLD 4721; PLD 1976 Karachi 610; 1993 MLD

1031; 2001 MLD 69 & 1994 CLC 206 ref.

Mr. Rashdeen Nawaz, Advocate for Petitioner.

Mr. Khalid Mahmood Ansari, Advocate and Mr. Tariq Masood, Advocate for Respondents.

Mr. Azmat Saeed, Advocate on Court's call. Date of hearing: 7.11.2003.

judgment

A suit for recovery of Rs. 15,040,725.11 instituted by the petitioner Bank against Hakim Textile Mills Limited and others was decreed on 12.12.1999. Properly No. 274, Block-Z, Phase No. 3 measuring 2 kanals was statedly mortgaged with the petitioner bank which in pursuance of the above mentioned decree was sold by the Bank through auction in view of the highest bid of Respondent No. 2 in his favour. Such a sale according to the petitioner was permissible under Section 19(3) of the Financial Institutions (Recovery of Finances) Ordinances, 2001 without the intervention of the Court. The Defence Housing Authority who is Respondent No. 1 to this petition was then approached for No Demand Certificate by the Bank and Respondent No. 2 requested for transfer in his name. Two letters were issued by Respondent No. 1 in this regard to the petitioner, first dated 14.7.2003 asking the petitioner to "provide original certified copy of Court order and sale certificate issued by the Court in favour of auction purchaser" and second dated 2.9.2003 demanding from the petitioner:-

(a) Sale-deed executed by Bank in favour of the purchaser as per sub-section (7) of Section 15 which has been made applicable to Section 19 proceedings.

(b) Express order by the Court to transfer the property in favour of purchaser.

(c) Also submit affidavits (by Bank and purchaser) to the effect that:-

(1) No appeal against the judgment and decree is pending before any Court and no stay of any kind have been granted by appellate Court.

(2) And that no appeal/objection petition challenging the sale proceedings has been filed and there is no stay order granted with respect to subject plot".

This petition has been filed by the decree holder Bank "to declare the act of Respondent No. 1 in not issuing NDC and effecting transfer in the name of Respondent No. 2 on payment of sale consideration to be illegal, unlawful, bad in the eyes of law and of no legal effect."

1. The learned counsel for the parties have been heard whereas Mr. Azmat Saeed Advocate was called upon to assist the Court in view of intricacies of the controversy in the case.

2. The learned counsel for the petitioner has with reference to Section 19(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, contended that since it was a sale made by the petitioner Bank without intervention of Court, no certification from the bank or other formality was required to be completed and the stance of Respondent No. 1 in demanding Court certificate/other documents was unwarranted. Somewhat similar stance has been taken by the learned counsel for Respondent No. 2, (the auction purchaser), whose thrust of the argument is that there was no requirement of execution/registration of sale-deed under the rules, by-laws and regulation of the Authority. Reference has been made by him to Raja Riaz Ahmad Khan vs. United Bank Limited and 7 others (2003 CLD 552), Messrs Chawla International vs. Habib Bank Limited and others (2003 CLD 956), Messrs Ali Paper and Board Industries Ltd. and another vs. BankersEquity Ltd. and 12 others (2003 CLD 1178) and Board of Trustees throughChairman/Additional Secretary, Government of Pakistan, Islamabad and another vs. Jamila Akhtar and another (2003 SCMR 1174); whereas the learned counsel for the Defence Housing Authority Respondent No. 1 contends that the Authority can only proceed to allow transfers when the legal formalities are fulfilled. In essence the position taken by Mr. Azmat Saeed, Advocate, is that despite power having been conferred upon the Financial Institutions under Section 19(3) of the Ordinance, to sell the property without intervention of the Court provisions of sub-sections (5), (6), (7), (8), (9), (10), (11) & (12) of Section 15 of the Ordinance were made applicable to such sales by virtue of sub-section (5) of Section 19 of the Ordinance. According to him there had to be some check, constraint and supervision on the exercise of such a vast power in order to ward off any misuse of the same. His stance is that the Court which passed the decree continues to have seizin over the matter. The learned counsel has referred to Messrs Nizamuddin & Company and 4 others vs. The Bank ofKhyber (2003 CLD 914).

3. The respective contentions of the learned counsel have- been considered. The perusal of the precedents cited by them would show that none of those judgments has direct application to the controversy that has arisen in the present case. The perusal of provisions of sub-section (1) of Section 19 of the Ordinance, makes it clear that upon pronouncement of judgment and decree by the Banking Court, the suit itself stand converted into execution proceedings and on expiry of period of 30 days, the Court is expected to proceed with the execution of the decree. This period of 30 days obviously has been made available to the judgment debtor to avail the remedy of appeal under Section 22 of the Ordinance. Sub-section (2) of Section 19 of the Ordinance, lays down the procedure to be followed by the Banking Court to execute the decree i.e. "in accordance with the provisionsof Code of Civil Procedure or any other law for the time being inforce or any such manner as the Banking Court may at the request of the decree holder consider appropriate, including recovery as arrears of land revenue." The key

provision, however, in the context is sub-section (3) of Section 19 which reads as follows:-- Section 19(3).

"In cases of mortgaged, pledged or hypothecated property, the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction of the decree. The decree passed by a Banking Court shall constitute and confer Sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose."

5. Sub-section (5) of Section 19 by reference incorporates the provisions of sub-sections (5), (6), (7), (8), (9), (10), (11) & (12) of Section 15 and make them applicable to sales of mortgaged, pledged or hypothecated properties by a Financial Institution. Reference to provisions of sub-section (7) of Section 15 makes it abundantly clear that execution and registration of sale-deed is envisaged by the law whereas legal consequences of such execution and registration are mentioned in sub-section (8) and consequently all rights in such property vest in the purchaser free from all encumbrances. Needless to emphasize that the necessary result of adoption of a certain provision is to read the same into the adopting provision and consider as if the same has been written down or penned in the later provision. Keeping this principle in view, it may be observed that the steps and formalities mentioned in Section 15 had yet-not been completed when the petitioner and Respondent No. 2 approached Respondent No. 1 for issuance of certificate and urged for affecting transfer. Thus as the sale was yet to be perfect and was still inchoate, Respondent No. 1 was prematurely approached to perform his function. It may be observed that in the series of steps and formalities to be completed under Section 15, after the execution and registration of the sale-deed, the Financial Institution concerned was required to file accounts of the sale proceeds in the Banking Court within 30 days of sale of the mortgaged property in terms of sub-section (10) of Section 15. It was also visualized by the legislature that disputes relating to sale of mortgaged property may crop up for which purpose the forum specified was the Banking Court as per sub-section (11) of Section 15. It may be observed that in case of any possible conflict and repugnancy i.e. Section 19(3) and Section 15 as adopted by Section 19(5) the later in sequential order will

prevail. It shows that despite conferment of power upon the Financial Institution (under Section 19(3) of the Ordinance) the Court which passed the decree had continued seizin over the matter. This was not only necessary to obviate and ward off any misuse or arbitrary exercise of power but also to safeguard the interest of the judgment debtor/owner of the mortgaged property as possibility of sale of a mortgaged property at whimsical or throw away price could not be ruled out. It is well settled that construction which tends to advance, promote and serve the cause of justice is to be preferred. In such a context some pertinent observations made by the Apex Court in Agricultural Development Bank of Pakistan and another us. Abid Akhtar and others (2003 SCMR 1547) are of great significance. It was observed that:-

"6. There appears to be much substance in the submission of the learned counsel for the respondent that the petitioner-Bank cannot be equated with a proper judicial forum for determination of the amount due against a borrower notwithstanding the fact that summary power of recovery of amount due has-been conferred on it by law with a view to obviate cumbersome procedure of execution of decree as contained in Order XXI of the Code of Civil Procedure and the Banking Laws. The submission is not only supported by the earlier judgment of this Court but also by precedents reported as ARK Ocean Lines Ltd. v. Director of Industries and Mineral Development (PLD 1976 Karachi 610), Hussain AH v. Government of Pakistan (1989 MLD 4721), Grain System (Pvt.) Ltd. v. ADBP (1993 MLD 1031), Abdul Karim v. Province of Sindh (2001 MLD 69) and Raj Kumar v. National Bank of Pakistan (1994 CLC 206).

1. Ratio decidendi of the precedent cases clearly appears to be that inthe event of substantial dispute between the parties, the procedure ofrecovery of amount by way of land revenue arrears would be availableonly where the amount claimed was found due, ascertain anddetermined by a competent judicial forum. We are in no manner ofdoubt that this unbridled power cannot be said to be available with the petitioner-Bank in the peculiar facts and circumstances of the case, in which the original borrower has died while his successor-in- interest has seriously disputed the liability giving authenticated facts and figures of having made payment as stated above. In the absence of any proper judicial determination as to the amount due by a proper forum created under the law, we do not find any legal flaw with the view taken by the High Court."

Though that case arose in somewhat different context, yet the principle stated therein being based upon fairness, reasonableness and justice, is appropriately attracted. Even the legislature while conferring such vast power as is claimed by virtue of Section 19(3) of the Ordinance was not oblivious of such a situation that is why formalities provided by Section 15 were made applicable to such a sale. It was with a view to keep check on exercise of such unbridled and arbitrary power, that even after the sale, the Banking Court was empowered to examine the accounts of sale proceeds and to decide any dispute relating to sale (sub-section (11) of Section 15). Thus harmonious reading and construction of adopted provisions of Sections 15 land 19, of the Ordinance would lead to the conclusion that the role of the Banking Court in the matter was not wholly ruled out. The position in the instant case, however, is that neither the execution and registration of the sale-deed had yet taken place nor the transaction was complete or its accounts were submitted before the Court when the petitioner and Respondent No. 2 approached Respondent No. 1 for necessary certification and transfer. It was in this context and circumstances that the Authority was justified to call upon the petitioner to complete legal formalities. In such a context it cannot be held that the authority acted illegally.

In this view of the matter, writ as prayed for, cannot be granted which is dismissed accordingly. At this juncture, I would like to appreciate the valuable assistance rendered by Mr. Azmat Saeed, Advocate and the learned counsel for the parties. No order as to costs.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 328

Present: RAJA MUHAMMAD SABIR, J.

Mian ANSAR ABBAS BHATTI TEHSIL NAZIM, PINDIBHATIAN DISTRICT HAFIZABAD-Petitioner

versus

MUNEEB HAYAT BHATTI, NAIB NAZIM, TEHSIL COUNSEL PINDI BHATTIAN, DISTT. HAFIZABAD and 5 others-Respondents

W.P. No. 9911 of 2003, decided on 14.11.2003. (i) Punjab Local Government Ordinance, 2001--

—-S. 63(4)--Motion for recall of Tehsil Nazim moved through Naib Tehsil Nazim--Legality--Petitioner/Tehsil Nazim's contention that motion in question was carried out in his absence was belied by record-Minutes of meeting showed that petitioner addressed that meeting and high-lighted his performance, tried to persuade members to support him and condemn recall motion-Such proceedings bear signatures of officials of Tehsil in whose presence meeting was held-Minutes of meeting further show that house consists of 25 Members out of which 15 participated in voting, out of which 13 supported recall motion one opposed the motion while one vote was found blank-Motion was, thus, carried out by majority in the house presided over by Naib Tehsil Nazim.

[Pp. 331 $ 332] A

(i) Punjab Local Government Ordinance, 2001-

—S. 63(2)-Naib Tehsil Nazim's competence to preside over re-call motion, assailed-Naib Nazim being convenor of Tehsil Council was competent to preside over meeting for re-call motion against petitioner-Petitioner's objection that Naib Tehsil Nazim having not attended meetings of Council on many dates and therefore, ceased to be member of the Council had been turned down by Election Commission-Even otherwise no notification for disqualification of Naib Tehsil Nazim was ever published prior to date of meeting-No material has been placed on record to show any malafide on part of respondents-Petitioner has yet to face electoral college in terms of S. 63(4) of Punjab Local Government Ordinance 2001 and rules framed by Government-Petition against recall motion was thus found to be without merit and as such not maintainable. [P. 332] B

Ch. Fawad Hussain, Advocate for Petitioner. Mr. Sarfraz Nawaz Malik, Advocate for Respondents Nos. 1, 3 & 4. Mr. Tahir Mahmood Gondal, A.A.G. for Official Respondents. Date of hearing: 7.11.2003.

judgment

Brief facts of the case gathered from the record are that petitioner was elected Tehsil Nazim of Pindi Bhattian, Distt. Hafizabad and took oath of his office on 14.8.2001. Under Section 69(2) of the Punjab Local Government Ordinance, 2001, the meeting of Tehsil Council was to be held at least once in a month to be summoned by Naib Tehsil Nazim in his capacity as Speaker of Tehsil Council. According to petitioner Respondent No. 1 failed to perform his duty and Tehsil Administration forwarded the complaint to the Secretary Local Government and requested for taking action against him with further prayer that senior most member of the panel of Chairman elected in the first meeting of Tehsil Council be authorized to convene and preside over the meeting of Tehsil Council. Respondent No. 5 in exercise of his power under Section 197 (Removal of Difficulty) of the Punjab Local Government Ordinance, 2001, vide order dated 30.5.2003 authorized senior most member of the panel of presiding officers of Tehsil Council Pindi Bhattian to convene or preside over the meeting of Tehsil Council.

1. Petitioner also alleged that Respondent No. 1 failed to participate in any of the meetings of the Tehsil Council; therefore, under Section 152(p) ceased to be member of Tehsil Council and a complaint was made to Election Commission of Pakistan to disqualify him. On 4-7-2003 petitioner submitted an application for leave to competent authority as he wanted to attend to his domestic problems. Meantime Respondents Nos. 3 and 4 in connivance with local MPA & MNA with the active support of Respondent No. 1 moved resolution under Section 63 of the Ordinance. Respondent No. 1 was not competent to receive re-call motion or convene meeting in view of the order of Secretary Local Government referred above. No motion could be carried out against him in his absence, as he was on leave on the relevant date. It is further alleged that Respondent No. 1 convened illegal session of Tehsil Council on 9.7.2003 and manipulated fake, malafideand arbitrary proceedings against the petitioner. Session of Tehsil Council Pindi Bhattian, Distt. Hafizabad dated 9.7.2003 is illegal, coram nonjudice, malafide and has no legal effect.

3.\ Ch. Fawad Hussain learned cbunsel for petitioner contends that in absence of petitioner meeting was convened by unauthorized person and re-call carried in said meeting on 9.7.2003 by Council is mala fide and unlawful. He further contends that Naib Tehsil Nazim has not attended the meeting of Council on three consecutive dates; therefore, he ceased to be member and was disqualified to preside over the meeting of Tehsil Council. The meeting was to be presided over by the senior most member of panel of the presiding officers of Tehsil Council but in violation of notification dated 30.5.2003, it was presided over by Respondent No. 1, Naib Tehsil Nazim in illegal manner. He has further argued that two members who were shown to have voted against the petitioner have submitted C.M.No. 1755 of 2003 under Order 1 Rule 10 CPC for impleadment as party which shows that motion was not carried out by majority. They have submitted application that they have not polled votes but have been shown to be present and participated in re-call motion. On the strength of the aforesaid contention, he submitted that proceedings of recall motion carried against him on 9.7.2003 be declared without jurisdiction and nullity in the eyes of law.

1. The petition was admitted on 11.7.2003. Respondents Nos. 1, 3 and 4 have filed written statement. They have controverted the allegations of the petitioner and placed on record the minutes of meeting of Tehsil Council dated 9.7.2003 and other relevant documents including inspection report of affairs of Tehsil Council Pindi Bhattian. They assert that the petitioner has not approached appropriate forum, hence this petition is not maintainable. He lost majority in the house; therefore, he has no right to continue as Tehsil Nazim. Motion is yet to enter in second phase to be conducted by Punjab Election Authority. They prayed that petition is liable to be dismissed.

2. Heard. Record perused. Section 65 of the Punjab Local Government Ordinance, 2001 prescribes that there shall be a Tehsil Council in a Tehsil and a Town Council in a town in a City District and shall consist of Naib Nazims of all Union Councils in the Tehsil or town, as the case may be Sub-Section 3 provides that the Naib Tehsil Nazim or Naib Town Nazim shall be the Convenor of the Tehsil Council or, the Town Council, as the case may be. Under Sub-section 4 The Tehsil Council and Town Council shall have their offices under the Naib Tehsil Nazim or Naib Town Nazim, as the case may be, and shall have separate budget allocations. Internal re-call motion of Tehsil Nazim is provided under Section 63, which is reproduced as under:

3. Internal recall of a Tehsil Nazim.~(l) If in the opinion of a member of the Tehsil Council, there is reason to believe that the Tehsil Nazim is acting against the public policy or the interest of the

people or is negligent or is responsible for loss of opportunity to improve governance and the delivery of services, he may, seconded by another member of the Council, give a notice to move a motion in the Tehsil Council through Naib Tehsil Nazim for recall of Tehsil Nazim.

(2) On receipt of notice referred to in sub-section (1), the Naib Tehsil Nazim shall summon a session of the Tehsil Council not earlier than three days but not later than seven days, if the Tehsil Council is not already in sessions.

(3) Where the Tehsil Council is alrpady in session, the motion referred to in sub-section (1) shall be taken up for deliberations on the next day from its receipt by the Naib Tehsil Nazim;

(4) If the motion referred to in sub-section (1) is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil.

(5) Where the motion is approved by simple majority' of the members of Union Councils of the tehsil present and voting, the Tehsil Nazim shall cease to hold office from the date of notification to be issued in this behalf by the Election Authority.

(6) Where the motion fails in the Tehsil Council, the proposer and seconder of such motion shall lose their seats both as Union Nazims and members of Tehsil Council.

(7) The Tehsil Nazim shall have the right to appear before the Tehsil Council and address it in his defence.

(8) No motion for recall of Tehsil Nazim shall be moved during the first six months of assumption of office of Tehsil Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion.

1. Sub-section 4 of Section 69 of the Ordinance provides that all meeting of Tehsil Council shall be presided over by Naib Tehsil Nazim. In the instant case Naib Tehsil Nazim was bye passed through notification dated 30th of May-2003 issued by Respondent No. 5 which was subsequently withdrawn on 11.7.2003 by the government itself. Said notification was in violation of express provisions contained in Section 63 of the Ordinance itself. A meeting of recall motion against Nazim is to be presided over by Naib Tehsil Nazim under the law. Since notification has already been withdrawn; therefore, there is no need to further comment on this issue. The contention of the petitioner that motion was carried out in his absence is belied by the record. According to minutes of the meeting dated 9.7.2003, Ansar Abbas Bhatti addressed the house and highlighted his performance, tried to persuade the members to support him and condemned the recall motion. These proceedings bear the signatures of DDRO and AD.LG, officials of Tehsil in whose presence meeting was held. It is further apparent from the minutes of the meeting that house consists of 25 members, out of which 15 participated in the voting 13 supported recall motion, one opposed it and one vote was found blank. The motion was carried out by majority in the house presided over by Respondent No. 1. Naib Tehsil Nazim of Tehsil Council Pindi Bhattian.

2. The absence of Respondent No. 1 from Tehsil Council and objection of petitioner that he ceased to be member was reported to Election Commission under Section 152(2) of the Punjab Local Government Ordinance, 2001 .but same was turned down by Election Commission videorder dated 30.8.2003. Respondent No. 1 was authorized by law to preside over the meeting and was competent to convene it. Petitioner's claim that it was required to be presided over by senior member of panel is not justified by any legal provision in the ordinance. Petitioner does not command majority in the house. Thirteen members out of twenty five were against him. He cannot successfully run the business of the house. The motion was properly moved by Respondents Nos. 3 and 4 in a meeting convened by Respondent No. 1 attended by 15 members out of which 13 voted in favour of motion. Petitioner also addressed it and tried to persuade the members not to vote against him but his speech could not persuade them. In these circumstances, motion was fairly and properly carried out by the house.

3. Respondent No. 1 is Naib Tehsil Nazim/Convenor of Tehsil Council and as such was competent to preside over the meeting for re-call motion against the petitioner. Petitioner's objection that he has not attended meetings of Council on many dates, therefore, ceased to be member of Council has been turned down by Election Commission on 30.8.2003. Even otherwise, no notification for his disqualification was ever published prior to the date of meeting.

4. No material has been placed on the record to show any malafideon part of Respondents Nos. 1 to 4. Even otherwise, it is very difficult to prove malafide in these proceedings. Petitioner has yet to face Electoral College, as Punjab Election Authority is to cause votes of members of Union Councils of Tehsil in terms of Section 63(4), of the Ordinance and rules framed by the Government of Punjab under Section 191 of the Ordinance on 1.9.2003, and published in official gazette on 18.9.2003.

5. For the reasons stated above, this petition has no merit and is dismissed with no order as to costs.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 333

Present: raja muhammad sabir, J. MUHAMMAD ASIF KHAN-Petitioner

versus

SECRETARY LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, PUNJAB LAHORE

and 6 others-Respondents W.P. No. 14488 of 2003, decided on 16.10.2003.

Punjab Local Government Ordinance, 2001--

—-Ss. 156/7) & 162--Constitution of Pakistan (1973), Art. 199-Petitioner was initially elected as Nazim of union council wherefrom he resigned in order to contest election of Nazim of Tehsil Council-Petitioner after his defeat in election of Nazim of Tehsil Council claimed that he had submitted conditional resignation and that he was still Nazim of Union Council concerned-Petitioner having resigned on specified date ceased to be Nazim of Union Council concerned-If notification has not been issued by concerned quarter in pursuance of his resignation, such fact itself cannot bring him back to his old office-Petitioner's resignation on day of submission of the same becameeffective-Election of respondent as Nazim of union council was perfectly legal-Petitioner was not aggrieved person, thus, not entitled to seek relief in constitutional jurisdiction of High Court. [P. 335] A

Malik Waqar Salim, Advocate for Petitioner. Date of hearing : 16.10.2003.

order

Muhammad Asif Khan petitioner has challenged the notification dated 14.10.2003, whereby, Respondent No. 6 was notified as officiating Nazim of Union Council 153 (Ghuma) Tehsil Kamoki District Gujranwala.

1. Briefly the facts of the case are that the petitioner was elected Nazim of Union Council 153 (Ghuma) Tehsil Kamoki District Gujranwala during last local bodies elections. By election of Tehsil Nazim Kamoki was announced for 8.9.2003. Petitioner and one Sajjad Ahmad filed nomination papers before returning officer, later raised two objections against acceptance of nomination papers of petitioner namely that the has not resigned from the office of Nazim Union Council No. 153 (Ghuma) so he is disqualified to contest the election of Tehsil Nazim u/S. 158 of Punjab Local Government 'Ordinance, 2001 and he is willful defaulter of National Bank of Pakistan. Both the objections raised by Sajjad Ahmad Khan were over ruled on the ground that the petitioner has resigned from the office of Union Nazim before filing of nomination papers on 7.8.2003, therefore, disqualification u/S. 158 of Punjab Local Government Ordinance is not attracted. Similarly, he was not adjudged as bank defaulter, and said objection too was over ruled. The returning officer dealing with the resignation of the petitioner in Para-4 of his order dated 20.8.2003 observed that he has placed on record copy of his resignation dated 7.8.2003 (before filing of nomination papers) addressed to the Naib Zila Nazim Gujranwala which the objector could not rebut 'successfully. Similarly, District Returning Officer upholding the aforesaid judgment observed in para 5 of his order dated 23.8.2003 as under-

"In the given circumstances, I am satisfied to hold that the case of the Respondent No. 1 is not hit by the provisions of Section 158 of the Punjab Local Government Ordinance, 2001 and he has genuinely and voluntarily submitted the resignation before the concerned authority".

1. S'ajjad Ahmed dis-satisfied with the order of RO and District R.O. instituted W.P. No. 11482/03 which was dismissed by me on 5.9.2003. The operative part is re-produced hereunder:-

"The case of the respondent is that he has already resigned on 7.8.2P03 before filing of nomination papers addressed to Naib Zila Nazim. Gujranwala. His stand has not been rebutted by any cogent evidence. As stated earlier the resignation dated 7.8.2003 is of no consequence in view of Proviso of Section 158 referred above. The objection on this score is untenable".

1. Learned counsel for the petitioner on the strength of Section 158 and order dated 5.9.2003 passed in aforesaid petition of Sajjad Ahmed Khan submits that petitioner has not been de notified by the election commission so far, he holds the office of Nazim as he was not required to resign before filling of the nomination paper in terms of Proviso of Section 158 of the Punjab Local Government Ordinance 2001, as such election of Respondent No. 6 as officiating Nazim and his notification are illegal and without lawful authority.

2. I have heard learned counsel for the petitioner at length. Sent for the record of previous W.P. No. 11482/03 and perused the relevant record of both the files. The case of the petitioner prior to his election for the Nazim of Tehsil Council was that he has resigned on 7.8.2003 from the Office of Nazim Union Council .No. 153. Certified copy of his resignation and acceptance is on the record of the W.P. No. 11482/03. He himself has addressed in Urdu to Zila Naib Nazim Gujranwala as under:--

This document bears their signatures and seal of Naih Zila Nazim Gujranwala. Section 162 of the Ordinance provides that a member of the Council may resign from his office by writing under his hand addressed to Naib Nazim of the concerned council, whereupon, the resignation shall be deemed to be accepted and effective forthwith. The aforesaid provision is unambiguous. Petitioner having resigned on 7.8.2003 ceased to be Nazim of Union Council 153. If the notification has not been issued by the concerned quarter in pursuance to his resignation, this fact itself cannot bring him back to his old office. Plea of the petitioner that he submitted conditional resignation as per annex "A" on 7.8.2003 is an after thought excuse coined after his defeat in the election of Nazim of Tehsil Council. It is not a certified copy of any official record whereas Annexure "B" is the original resignation which does not contain any condition. His resignation on day of submission in terms of Section 162 has become effective forthwith, and he is no more Nazim of Union Council. The seat has fallen vacant and members of the council were entitled to elect any of their councilor as officiating Nazim. The election of Respondent No. 6 in these circumstances is perfectly legal and in accordance with Section 156 (7) of the Ordinance. The observation made by this Court on 5.9.2003 in previous writ petition is of no help to him. He could contest the election without submission of resignation but once he has submitted resignation, it is deemed to have been accepted forthwith and as such, he ceased to be the Nazim of Union council with effect from 7.8.2003. Notification of Respondent No. 6 as officiating Nazim is lawful and in accordance with the provisions contained in Section 156(7) of the Ordinance.

1. It is also pertinent to note that the petitioner is no more member of the Union Council No. 153, therefore, he is not an aggrieved person within the meaning of Article 199 of the Constitution to object to election of Respondent No. 6 as officiating Nazim. For the reasons stated above, this petition has no merit and is dismissed in limine.

(T.A.F.)

PLJ 2004 Lahore 335

Present: M. AKHTAR SHABBIR, J.

MUHAMMAD ISHAQ-Petitioner

versus

MEMBER (CONSOLIDATION) BOARD OF REVENUE, PUNJAB and 3 others-Respondents

W.P. No. 7525 of 2003, heard on 30.10.2003. (i) Constitution of Pakistan (1973)--

—-Art. 199-Punjab Pre-emption Act, 1913 (I of 1913), S. 3(1)--Constitutional jurisdiction-Extent of-High Court although cannot sit as Court of appeal and judgment passed by Special Tribunal is not amenable

for interference in exercise of its constitutional jurisdiction, yet in such like case where judgment was not based on evidence on record, High Court in exercise of its constitutional jurisdiction can set at naught proceedings of lower forums-Judgment of Board of Revenue was thus, set aside and decree passed in favour of plaintiff was reversed and suit for pre-emption was dismissed. [P. 344] E

(ii) Land Reforms Regulation, 1972 [M.L.R. 115]--

—-Para 25-Punjab Pre-emption Act, 1913 (I of 1913), S. 3(1)-Judgment of Board of Revenue was based on Inspection Report of Additional Commissioner and he failed to take into consideration evidence produced by parties-Judgment in a case was required to be announced after evaluating and appreciating evidence of parties and Judge would give his decision for which issue were framed, Court would state its findings or decision with reasons therefor, upon each separate issue, unless finding upon one or more issues was sufficient for decision of suit-No such exercise having been carried out by Board of Revenue its decision/Judgment was not sustainable in the eyes of law. [P. 344] D

(Hi) Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 3(l)--Suit for pre-emption-Property in question, whether agricultural land and pre-emptible-Admittedly, vide Notification of specific date, limits of Municipal Corporation were extended and land in question included in Urban Area-Most of the portion of Khasra No. wherein land in question, was situate was recorded as "Ghair Mumkin Abadi" and remaining land was divided by owners into number of plots and sold out for construction purposes-Contradictory observation of Additional Commissioners who conducted on spot examination of land in question, have to be excluded-No other sufficient and convincing evidence had been produced by pre-emptor to establish that land in question, was agricultural in nature-Evidence produced by defendant clearly indicated that property in question, had ceased to be agriculture property and had changed its status as Urban. [Pp. 341 & 342] A & B

(iv) Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 3(l)-Status of land in question-Suit for pre-emption-Maintainability-­ Property in question, having been incorporated in Municipal Corporation, have been supplied facilities by the Corporation and the same was included and became part of a Mo/iaWa-Councillor had been elected from that Mo/za/Za-Such evidence produced by defendants had not been controverted-Property in question, was thus, not agricultural in nature and had assumed character of Urban Property and thus, the same was not amenable to suit for pre-emption. [P. 343] C

1996 CLC 654; PLD 1982 SC 159; AIR 1937 Lahore 182; AIR 1947 Lahore

3860; 1994 SCMR 1238; PLD 1989 SC 568; NLR 1999 AC 153; 2001 CLC

1447; PLD 1975 Lahore 359 and PLD 1985 SC 260 ref.

Mr. Muhammad Zain-ul-Abidin, Advocate for Petitioner. Mr. Muhammad Sohail Dar, A.A.G. for Respondents Nos. 1 to 3. Ch. Muhammad Iqbal, Advocate for Respondent No. 4. Date of hearing: 30.10.2003.

judgment

This judgment will dispose of Writ Petitions Nos. 7525, 9063, 9064, 9065, 9066, 9067, 9068, 9069, 9Q70, 9071, 9072, 9073 & 9074 of 2003 as common identical questions of law and facts are involved in all these petitions.

1. Facts giving rise to the present writ petitions are to the effect that 2 kanals of land out of Khasra No. Ill measuring 8 kanals had been divided by the owners into 12 plots of different sizes and sold out to various vendees the present petitioners herein for building purpose through registered sale- deeds. Respondent No. 4 being tenant of the land claiming his superior right of pre-emption filed separate different suits for possession through pre­ emption, before the A.C/Collector, Sadar Gujranwala, Sub-Division.. All the suits were contested by the vendees/petitioners denying the averments of the plaint by taking a specific stand that the suit land is exempted from the law of pre-emption.

2. From the factual controversy appearing on the pleadings of the parties, the learned trial Court/A.C. Collector, Gujranwala framed the following issues:--

3. Whether the suit is time barred.

4. Whether the plaint is deficient in Court fee and its effect.

5. Whether the land was in possession of the defendant prior to sale and as such the suit is not maintainable.

6. Whether the plaintiff has not cause of action.

7. Whether the suit land is residential and therefore, exempted from the law of pre-emption.

8. Whether the plaintiff has superior right of pre-emption.

9. Whether ostensible sale price was fixed in good faith and actually paid.

10. In case the Issue No. 7 is not proved what is the market price of the suit land.

11. Relief.

12. After recording and appreciating the evidence of the parties, the learned trial Court/A.C. decreed all the suits, vide, his judgment and decree dated 28.6.1984. Aggrieved by the said orders, 12 different appeals were preferred before the-. All. Commissioner Revenue, Gujranwala Division, Gujranwala, who accepted the appeals and set-aside the order of the Collector vide his judgment dated 20.5.1985. Respondent' No. 1 filed 12 separate revision petitions .before the Member Board of Revenue Punjab, Lahore which were accepted vide judgment dated 27.2.1986 and the cases were remanded to the Addl. Commissioner (Revenue), Gujranwala Division with the direction to thrash out the question regarding the character of suit land, who instead of deciding the case further remanded it to the Court of A.C./Collector, Gujranwala for thrashing out the point involved by making thorough inquiiy as directed by the learned Member Board of Revenue, Punjab. The A.C./Collector again decreed the suits vide, judgments dated 3.3.1993. The present petitioners filed appeals before the learned Addl. Commissioner, Gujranwala, who also dismissed the appeals and aggrieved by the said order, the petitioners had filed 12 revisions petitions before Respondent No. 1 Member Board of Revenue, Punjab, Lahore, who vide, his impugned judgment and decree dated 12.3.2003 dismissed the same and maintained the judgment of the learned lower forums.

13. Learned counsel for the petitioners contended that the land is situated within the Municipal limits of Hafizabad and it was not an agricultural property at the time of disputed sale. Respondent No. 4 pre- emptor only got prepared khasra girdawari showing his cultivation of crop "Burseen" on some portion of the said property. Further contended that the finding of the Addl. Commissioner of inspecting the site has no evidentiary value and placed his reliance on the case of Dr. Syed Altaf Hussain Bukhari vs. Siddique Ahmad Chaudhry (1996 C.L.C. 654). Further contended that at the time of sale, the property in dispute was not cultiviable and its status was not of agriculture.

14. On the other hand, learned counsel for the contesting respondents vehemently opposed the arguments of the learned counsel for the petitioners contending that at the time of sale of the property, the pre- emptor Respondent No. 4 was cultivating the disputed land as tenant. He placed his arguments on the documents i.e. a copy of khasra Girdawari pertaining to Rabi 1977 to Kharif1978 as well as a copy of record of rights pertaining to the year, 1976-77.

15. I have heard the arguments of the learned counsel for the parties and perused the record.

16. The question that boils down for determination in these cases is whether the property is agricultural land and pre-emptable. In Section 3(1) of the Punjab Pre-emption Act, 1913, the agricultural land has been defined

as under:

"Agricultural land" shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but shall not include the right of mortgagee, whether usufructuary or not, in such land." .

Section 6 of the said Act, provide that a right of pre-emption exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained. It means that a pre-emptor has the right to pre-empt the property which is an agricultural land and village immovable property. According to sub-section (3) of Section 2 of the Punjab Alienation of Land Act, 1900, the expression "land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purpose or for purposes subservient to agriculture or for pasture, and includes :

(a) the sites of buildings or other structures on such land;

(b) a share in the profits of an estate or holding;

(c) any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner;

(a) a right to receive rent;

(e) any right to water enjoyed by the owner or occupier of land as

such; and

(f) any right of occupancy;

(g) all trees standing on such land.

The different sales through registered sale-deeds in favour of the vendees/petitioners have been affected in the year 1978-79. The sale in favour of Muhammad Ishaq writ petitioner in Writ Petition No. 7525/2003 had been completed through the sale-deed on 4.9.1978 and this Court has to determine that on the day of sale what was the status of the property in dispute.

1. While disposing of these cases vide, judgment dated 20.5.1985, the Addl. Commissioner (Revenue), Gujranwala Division Gujranwala had observed as under:-

I have given my careful thought to the arguments addressed by the learned counsel for both the parties and have gone through the impugned order and record of this case. I also visited the site on 25.4.1985 in the presence of the parties and the patwari. Patwari is also present today with the record. This is an admitted fact that the suit .land is situated within the municipal limits of Municipal Corporation, Gujranwala. It lies adjoining to the by-pass connecting G.T. Road to Hafiz Abad road. The entire Khasra No. Ill measuring 8 kanal, out of which 6 kanal are already under the Abadi. The

appellant purchased residential plot out of the remaining 2 kanals which has not been brought under cultivation after Rabi 1983. On the spot I noticed that there are streets on the east and west of Khasra No. 111. As far as suit land is concerned, it is enclosed by Abadi on the south and on the east as well. At this place a Mohallah known as Samanabad has developed having streets,-electricity and other amenities of an urban town. I found the suit land lying vacant on the spot. This area is a part of the town having all the characteristics of a town.

While passing the order on 22.2.1994, under remand order of the Member Board of the Revenue, the successor Addl. Commissioner (Revenue), had also visited the site. The relevant portion of his judgment is re-produced as under:-

"I myself visited and inspected the site on 14.2.1994 in the presence of the parties. Barseen, a fodder crop, was found standing on the suit land. The suit land was not the solitary plot of land over which fodder crop was standing. It was part of long stretched field over which Barseen was found standing. No street or road was demarcated on the suit land. The crop standing on the suit land was claimed by the respondent and this version of the Tespondent was not challenged no body came forward to say that Barseen was sown by him and not by the respondent.

1. There are contradictory findings by two Addl. Commissioner (Revenues) with regard to the question in dispute. A Division Bench of this Court in case of Dr. Syed Altaf Hussain Bukhari us. Siddique AhmadChaudhry and another (1996 C.L.C. 654) has observed that purpose for carrying out necessary inspection under Order 18 Rule 18 CPC was only to help Court in understanding controversy and appreciating the evidence on record but inspection carried out by Court was neither substitute evidence nor it could supersede the evidence on record-Court was required to decide the matter on the basis of evidence and not merely on the basis of inspection carried out by the Judge unless there was specific agreement by parties to be bound by the decision rendered on the basis of personal inspection carried out by the Judge. Therefore, keeping in view the dictum laid down in this case, the personal observation of both the Addl. Commissioners would not be the base for deciding the question of status of the property. The learned Member Board of Revenue while passing the impugned judgment has passed his findings on the basis of observation made by Addl. Commissioner Gujranwala Sub Division, Gujranwala vide,his order dated 22.2.1994. He while attaching the presumption of truth to such observations, has observed that nothing has been led to controvert such observation made by Addl. Commissioner (Revenue).

2. Kxcluding the observation made by Addl. Commissioner, this Conn is legally bound to examine/evaluate/assess the evidence produced by the parties. Admittedly the sale in dispute was affected on 4.9.1978 when Rabi Crop was standing in the field. Certified copy of record of rights pertaining to the land-in question Ex-D-3 shows that out of 8 kanals of land 6 kanals was "Ghair Mumkin Abadi" and 2 kanals as "null Chahi". Ex D-4 copy of khasra girdawari pertaining to the year 1978-79 also indicates that the land of Khasra No. Ill measuring 6 kanals was Ghair Mumkin Abadi. Copy of khasra Girdawari pertaining to the year 1981-1982 also depicts that 6 kanals of land as "Ghair Mumkin Abadi". Copies of khasra Girdawaries for the years 1985-86 to 88-89 also support the same position.

3. It is admitted position that the land was part of Mauza Loohi Wala District Gujranwala, and vide, Notification dated 31.7.1973, the limits of Municipal Corporation were extended and the suit land included in the Urban area. This fact has not been denied by learned counsel for the respondent. It was the consistent view of the Courts up to the second decade of 20th century that the agricultural land remains as such. Reliance can be placed to the case of Hafiz Hasan Muhammad and 2 others vs. AbdulHameed and two others (P.L.D. 1982 S.C. 159). However, keeping in view the decision in some latter cases such as Abdul Rehman vs. Haji Rashid(A.I.R. 1937 Lahore 182) and Ram Lai vs. Municipal Committee Bhera and another (A.I.R. 1947 Lahore 3860), it was observed that where some portion of land is "Ghair Mumkin Abadi" and remaining is divided in small pieces of land for construction purposes, the land had become urban immovable property.

4. As discussed in the preceding paragraph that most of the portion of the Khasra No. Ill is as Ghair Mimkin Abadi and the remaining land measuring 2 kanals of land was divided by the owners into 12 plots and sold out for construction purposes. It is mentioned in the sale-deeds that some portion of the land were sold for construction purposes. After excluding the observation made by learned Addl. Commissioner, in his judgment dated 22.2.1994, no other sufficient and convincing evidence has been produced by the pre-emptor to establish that it was an agricultural property and to support this stand of the petitioner, the assessment of land revenue to the land has also not been produced which is most important evidence to determine the status of the land as agricultural. From perusal of sale-deeds, it also reveals that the property though was originally part of estate of Loohiwala but after its inclusion within the Municipal limits, it become part of Muhallah Summon Abad, Gujranwala which is sufficient proof that the suit land is situated within the urban area, and surrounded by the buildings. The description of the property narrated in the sale-deed also makes it clear that Muhammad Sadiq Respondent No. 4 was also owner of the plots in this Abadi. Had Khasra No. Ill been'the agricultural then there would have been no mention of the plots vacant belonging to Muhammad Sadiq plaintiff/Respondent No. 4.

5. In Writ Petition No. 9064/2003 titled as Muhammad Latif vs.Member Consolidation B.O.R. etc., copies of khasra girdawari w.e.f. Kharif 1969-70 to Rabi, 1981 have been produced wherein the entry of 8 kanals of the area has been mentioned out of which 6 kanals has been shown as "Ghair Mumkin Abadi" and 2 kanals in some time it was vacant without cultivation and some time some crops was sown. It is evident from the copy of khasra girdawari for the year 1985-86 that there is entry of 6 kanals as "Ghair Mumkin Abadi" and 2 kanals vacant land. The mcst important feature of the case is that the suit was firstly decreed on 28.6.1984. From the date of institution of the suit till the decree of the suit, there was an entry as Ghair Mumkin Abadi on 6 kanals of land while the remaining two kanals of land, there was entry of some cultivation at intervals. On the record, the plaintiff/Respondent No. 4 -had produced copy of khasra girdawari Ex. P-l from Kharif 1977-78 to Rabi 1982 and copy of record of rights pertaining to the year 1976-77 in support of his case while on the other hapd, the petitioner/defendant had produced copy of khasra girdawari Ex. D-l, copy of Notification Ex. D-2 and register Haq Daran Zamin Ex. D-3. From the minute scrutiny of the record, it reveals that there is an entry of 6 kanals of land as Ghair Mumkin Abadi and 2 kanals as null Chahi in the record of rights for the year, 1980-81 Ex. D-3. From the evidence produced by the petitioner, it has been established that at the time of institution and at the time of decree of suit, the property has ceased to be a agricultural property and has changed its status as urban.

6. The mode for determining the character of the property at the time of sale has been discussed in the case of Abdul Haq and 4 others vs. Sardar Shah and others (1994 S.C.M.R. 1238). Relevant Paragraph No. 10 of the judgment is reproduced as under :--

"The learned Judge in Chamber has relied upon a recent judgment of this Court in the case of Nazir Abbas vs. Manzoor Haider Shah (PLD 1989 S.C 568), wherein this Court has considered the following factors for deciding the character of the suit property:-

(i) The locality has been provided with water supply from the Town Committee.

(ii) It situates at a distance of one furlong from the Court.

(iii) Many houses including the house of a Councilor are found in the same locality.

(iv) The Town Committee has provided street lights in that locality.

(v) The Town Committee treated the property as urban property and charged tax on its transfer to the appellants.

(vi) That the Committee had given a contract for the'construction of metalled lane in the Ward.

(vii) That the people of the locality got their ration quota from the urban quota.

In another case Abdul Aziz (deceased) through L.Rs us. Muhammad Hasan (1999 A.C. 153), the learned Judge of this Court observed that it is the status of the land and not the area in which it is situated, which would determine its status for purpose of pre-emption suit under Section 15. Definition of "Agricultural land" given in Section 2 (3), Punjab Alienation of Land Act (1900) which applies to Punjab Pre-emption Act, 1913", makes it clear that reference is to the land itself and not to the surroundings. Consideration like inclusion of area in municipal limits, application of all municipal taxes including property tax, connection of are'a with metalled road, installation of factories adjacent and around the land in question would be entirely irrelevant consideration when land is used for agricultural or allied purpose and is pre-emptable.

1. In case of Bashir Ahmad and 3 others vs. Mst. Naseem Fatimaand 5 others (2001 C.L.C. 1447), it was observed by a learned Single Judge of this Court that for the purpose of pre-emption land must be used for agricultural purposes or for pasture-land of the petitioner was not being cultivated since long nor same was assessed to land revenue and in spite of plaintiffs being co-sharer in khata or owner in estate he -did not possess superior right of pre-emption against the defendants. In case of AllahBukhsh vs. Ilahi Bakhsh and 3 others (P.L.D. 1975 Lahore 359), the learned Single Judge of this Court also observed that Khasra Girdawari describing portion of land as Ghair Mumkin Abadi and alienation of small pieces of land made for construction purpose-land held obviously urban property- property having acquired colour of urban property onus, held, lay on pre- emptor to show existence of custom for pre-emption of such property.

2. The criteria as laid down by the Hon'ble Supreme Court in Nazir Abbas (supra) and Abdul Haq and 4 others (supra) is applicable to the present case. The revenue Patwari appeared in the Court and stated that the locality/property in dispute has been supplied the facilities by the Municipal Corporation and it is the part of Mohallah Summon Abad, Gujranwala. Since it is include in the area, therefore a Councilor has also been elected and presently Muhammad Nazir is the Councilor of this Muhallah and also stated that Corporation has provided electricity to the inhabitants of the area and Corporation has considered the property as urban property. This evidence produced by the petitioners has not been controverted by the plaintiff/Respondent No. 4. The petitioners have been successful in establishing their cases from documentary as well as by oral evidence that the suit property at the time of sale and institution of the suit was not agricultural land.

3. Most important feature of the case is that according to inquiry report there was some crop of "Barseen" ovor the land in dispute but.neither the vendor/owner of the property in dispute appeared in the Court to prove

the tenancy of Respondent No. 4 nor any proof of lands revenue assessment is available on the record to show that the petitioner was a tenant under the owners of the land or paying land revenue. The evidence of plaintiff/Respondent No. 4 was not sufficient to infer that the property was agricultural property. There is no denial to the fact that the owners were not using it as agricultural land because they have divided the suit property into 12 plots and all these plots were sold in favour of the petitioners. The tenancy of the Respondent No. 4/plaintiff is also not proved on the record.

1. The learned Member Board of Revenue while passing the impugned order has only based his finding upon the inspection report of the Addl. Commissioner (Revenue) and he miserably failed to discuss or take into consideration the evidence produced by the parties. The judgment of the Member Board of Revenue is result of mis-reading/non-reading of important evidence which could effect the fate, of the case. As to the judgment of appellate Court/Addl. Commissioner dated 22.2.1994, it is also evident that he has also not discussed the evidence of parties and gave finding on the basis of his own inspection report. It will not be out of place to mention here that there was no consent of the parties on the record that the Presiding Officer was asked to inspect the site and his inspection will be binding on the parties.

2. The word "judgment" has been defined in sub-section (9) of Section 2 of CPC, which means the statement given by the Judge of the grounds of a decree or order. It is settled preposition of law that the Judge will announce the judgment after evaluating and appreciating the evidence of the parties and judge will give his decision for which issues have been framed, the Court shall state its findings or decision, with the reasons therefore, upon each separate issues, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

3. The Addl. Commissioner himself inspected the site and at his own inspection based his finding which would mean that he himself assumed the role of witness. If he is a witness then cannot be a judge and if he is a judge then he is not a witness. The inspection can only be made in the light of the dictum as laid down in the case of Dr. Syed Altaf Hussain Bukhari (supra). In the instant.case the Addl. Commissioner while passing the impugned judgment against the present petitioner; at his own observation gave the finding which is nullity in the eye of law. This legal aspect of the case has not been attended to by both the Addl. Commissioner as well as Member Board of revenue and the judgment passed by the Member Board of Revenue is not sustainable in law.

4. Though the High Court cannot sit as a Court of appeal and the judgment passed by Special Tribunal or Court is not amenable for interference by this Court in exercise of its constitutional jurisdiction but in such like cases as the case in hand, this Court in exercise of its constitutional jurisdiction can set at naught the proceedings of the lower forums. Reliance

in this context can be placed to the case of Mst. Amina Begum vs. SheikhMuhammad Nazir Ahmad and another (P.L.D. 1985 S.C. 260).

1. For the foregoing reasons, these writ petitions in following the dictum laid down in the cases of Nazir Abbas, Abdul Haq and Mst. Amina Begum (supra) are accepted and judgments and decrees passed by A.C., Addl. Commissioner as well as Member Board of Revenue are set-aside and the suits filed by the plaintiff/Respondent No. 4 are dismissed with costs throughout.

(A.A.) Petition accepted.

PLJ 2004 Lahore 345

Present: muhammad akhtar shabbir, J. DlLAWAR HUSSAIN and another-Petitioners

versus

D.C.O. and 2 others-Respondents W.P. No. 12508 of 2003, decided on 16.10.2003. (i)

Administration of Justice-

—Action of Tribunal beyond sphere allotted to it by law-Such action being nullity in the eyes of law, superior Courts would refuse to perpetuate which was patently unlawful and unjust. [P. 1351] E

(ii) Locus Poenitentiae-

—Principle of-Applicability-No public thoroughfare having been sanctioned by competent authority, if for some days or months place in question, was used as such, no vested right would be deemed to have accrued to petitioners under principle of locus poenitentiae-Feelmg its mistake respondent P.C.O. had withdrawn its cartier order-Petitioners in their writ petition having concealed that earlier their civil suit was dismissed, had approached High Court with unclean hands, therefore, discretionary relief could not be granted to them. [P. 350] C & D

(iii) Punjab Local Government Ordinance, 2001--

—S. 28-Constitution of Pakistan (1973), Art. 199-Demolishing of wall and installation of gate in boundary wall of colony owned by Provincial Government-Order issued by D.C.O. was subsequently withdrawn-Legality—Building and properly of complex in question, belong to Provincial Government, .therefore, any alteration, demolision or addition could only be made by respondents after prior approval of Government/competent authority i.e, Secretary of Health-Whole proceedings by allowing use of passage through colony owned by Government was illegal, without jurisdiction, malafide and just to benefit owners of private property lying adjacent to the same-D.C.O. was not competent to allow petitioners or other interested persons to demolish wall and installgate in boundary wall of colony in question.

[P. 348 & 349] A & B

(iv) Punjab Local Government Ordinance, 2001-

—-S. 28--Constitution of Pakistan (1973), Art. 199-Original order which had been recalled was without jurisdiction, malafide and corum-non-judiceand was passed just to accommodate owners of adjacent agricultural land—Petitioners assailing order of recall had no legal right which was enforceable before Courts—Petitioners were thus, not entitled to relief claimed. [P. 1351] F & G

PLD 1969 SC 407; 2001 MLD 573; 2001 YLR 1428; PLD 1981 SC 371; 2000 SCMR 907; 1999 SCMR 2089; PLD 1992 SC 207; 2001 CLC 1765; 1998 CLC 921; PLD 1973 SC 236; PLD 2000 Karachi 154; 1993 SCMR 618 and

PLD 1991 SC 476 ref.

Mr. Farooq Any ad Mir, Advocate for Petitioners.

Mr. Muhammad Sohail Dar, Assistant Advocate General on Court's call with Dr. Muhammad Hayat MS.

Date of hearing : 16.10.2003.

order

Facts giving rise to the present writ petition are to the effect that the petitioners, are residents of Ahmad Ghafoor Housing Society and' Sidra Ghafoor Town, Okara. Both the places are adjacent to the Medical Colony on the northern side while District Headquarters Hospital is situated on southern side of Medical Colony. The petitioners alongwith some other people of the area moved an application to Respondent No. 1 for installation of a gate on the northern side of main road of Medical Colony by demolishing wall intervening the Medical Colony and aforementioned Ahmad Ghafoor Housing Society.

1. Respondent No. 1 called comments from Respondent No. 2 who after obtaining report/comments from Respondent No. 3 remitted back to Respondent No. 1 with remarks that he has no objection for installation of a gate by demolishing the wall of medical colony and Respondent No. 1 vide order dated 3.5.2003 directed Respondent No. 2 to take further action in the matter. Consequently, the petitioners were1 allowed to demolish the wall of medical colony, where they installed a gate. This action of the respondents was reacted by residents of the colony as well as members of public press. Protest was launched to the respondents and to the public representative of the area and in consequence thereof the action taken for installation of gate in the medical colony was re-called, the gate was closed, and wall repaired which prompted the petitioners to knock the constitutional jurisdiction of this Court.

3.Learned counsel for the petitioners argued that the petitioners had been prejudiced by the act of the respondents in their absence. The gate installed by the petitioners was closed under the order of the respondent in their absence and this act of the respondents is void under the principle of audi-alteram partem. Further contended that a vested right has been accrued to the petitioners and the principle of locus-p-oenitentiaeis applicable to their case. He relied on case of Pakistan through the Secretary, Ministry ofFinance vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407).

1. On the other hand, learned Law Officer has vehemently opposed the arguments addressed by the learned counsel for the petitioners, contending that the respondents while sanctioning the gate by demolishing the boundry wall of the medical colony were not competent. The D.C.O. is only a co-ordination officer and cannot pass the order for demolision of boundry wall ; that the boundry wall had be^n constructed, by the Health Department for protection and safety of the employees of DHQ Hospital Okara and this was the property of Provincial Govt. but sanction was not accorded by the Government; that the passage was illegally opened through the medical colony, showing highhandedness of the developers of the private colony; that the passage and gate has been closed by repairing the wall and Haji Abdul Ghafoor one of the applicant on whose application the action was initiated by the DCO has filed a suit for permanent injunction in the Civil Court which was dismissed on 21.5.2003 for non-prosecution and this order had not been challenged anywhere therefore, it had attained finality and this fact was concealed by the writ petitioners; further that this writ petition is not maintainable as involving question of fact, hence liable to be dismissed.

2. I have heard the learned counsel for the parties and perused the record, parawise comments furnished by the Medical Supdtt. as well as E.D.O./Respondents Nos. 2 and 3.

3. In this case, the factual position is that on the northern side of medical colony, some agricultural land is owned by Fakhar' Hayat, Muhammad Aslam Hayat and other persons. Adjacent to this land some other parcels of land have also been converted into residential area much earlier by their owner's gradually buy passage of time. These colonies are named as "Amir Colony", Kausar Town' and 'Javed Town' etc. and said Fakhar Hayat and others have made up their mind to change the character of the land into residential through one Property Dealer, namely, Haji Abdul Ghafoor. They intend to name their proposed colonies as "Sidra Ghafoor Town & Ahmad Ghafoor Housing Society", but uptil now they could not get approval from the Board of Revenue nor any proof in this regard has been placed on the file of this Court.

4. An application was moved by Haji Abdul-Ghafoor and others to District Nazim Okara for the sanction of passage through medical colony to approach Ahmad Ghafoor Housing Society etc. and under the influence of one of the high ranking officer in the Health Deptt. Govt. of Punjab, the Respondents Nos. 2 and 3 recommended to demolish the wall of medical colony for installation of gate for these applicants including the present petitioners. This fact is strengthened from the letter of the Executive District Officer Health, Okara, to B.C.0., wherein, it has been stated as under:--

"It is further intimated that a high ranking officer in the Health Department, Govt. of Punjab, is also interested to extend this facility to the concerned public of the area."

and on his recommendation the DCO vide,his order dated 3.5.2003 directed them for further action and under his direction, Respondents Nos. 2 and 3 allowed the passage through medical colony. This order was obtained by the applicant/petitioners'without issuing notice to the residents of the medical colony of DHQ Hospital and that's why they protested, when the factual position came into their knowledge. When protest was launched by the inhabitants of the area and the public at large, the respondents were constrained to close the gate and passage.

1. -It is admitted fact that building and property of the Medical Complex belong to Provincial Government, any alteration, demolision or addition could only be made by the respondents after prior approval from the Government/competent authority and he is "Secretary Health". The whole proceedings by the respondents by allowing the use of passage through medical colony was illegal, without jurisdiction, mala-fide and just to benefit/accommodate the owners-petitioners etc. of the proposed colony. Learned counsel for the petitioners when confronted to produce the law or the authority exercised by the respondents, could not satisfy this Court.

2. The functions of DCO have been provided in Section 28 of Punjab Local Govt. Ordinance, 2001 read as unde'r:-

The District Coordination Officer shall be coordinating head of the District Administration and shall-

(a) ensure that the business of the District Coordination Group of Officers is carried out in accordance with the laws for the time being in force;

(b) co-ordinate the activities of the groups of offices for coherent planning, synergistic development, effective and efficient functioning of the District Administration;

(c) exerase general supervision over programmes, projects, services and activities of District Administration;

(d) coordinate flow of information required by Zila Council for performance of its functions under this Ordinance;

(e) act as Principal Accounting Officer of District Government and be responsible to the Public Accounts Committee of the Provincial Assembly;

(f) act and perform functions of Collector under Sections 54, 68, 70(2), 71, 72, 92, 93, Rule 18 of Order XXI Order XL and for similar other provisions of the code of Civil Procedure 1908 (Act V of 1908); .

(g) assist the Nazim in accomplishment of administrative and financial discipline and efficiency in the discharge of the functions assigned to District Administration;

(h) prepare a report on the implementation of development plans of the District Government for presentation to the Zila Council in its annual budget session; and

(i) initiate the performance evaluation reports of the Executive District Officers and shall be countersigning of such reports of the District Officers initiated by the Executive District Officers.

From the bare reading of the above provision of law, it is manifestly clear that Respondent No. 1 was not competent to allow the petitioners or other interested persons to demolish and install the gate in the boundary wall of the medical colony. Learned counsel for the petitioners when questioned to point out the violation of any law and rules made by the respondents by closing the passage, failed to satisfy the Court and a writ is only maintainable if the authority/Public functionaries violated any provision of law or statutory rules. In this context, reliance can be made to the cases of Shahid Bashir us. Chairman Punjab Board of Technical Education (2001 MLD 573) and Rashid Ali vs. National College of Arts (2001 YLR 1428). Learned counsel for the petitioners has also not established with proof any malafideagainst them and where there are general allegations of malice the constitution petition is not maintainable. In this respect, reference can be made to the case of 'Syed Nawaz' reported as (PLD 1981 SC 371).

1. An application No. 1546/03 has been filed by the residents of medical colony in this Court to implead them as party in the writ petition, wherein, it is stated that Aftab Ahmad Manika, the then Addl. Secretary Punjab, a close relative of the owner of the agricultural land was interested and on whose direction the respondents had issued (No Objection Certificate) for installation of the gate in the boundary wall as is admitted in the letter issued by the E.D.O. Okara, referred to in the preceding paragraphs.

2. No thorough-fare can be allowed through the colonies maintained by the Government without sanctioning of the competent authority. The medical colony is a Government property. It was walled off to provide security of life and property to the residents (Medical & Para medical staff), who remain on duty on emergency call round the clock. The developers of the private colonies had been trying to connect the developing areas with the city roads through the medical colony by demolishing a part of boundary wall and establishing a thorough-fare through the medical colony

and under their pressure the DCO and Respondents Nos. 2 and 3 have allowed the installation of gate and use of a thoroughfare through medical colony. Since there was no sanctioned public thorough-fare and if for some days or months it was being used as such, it cannot be said that any vested right has been accured to the petitioners under the principle of locus-poenitentiae.According to the record, the DCO had issued direction to the respondents for initiating action for the installation of the gats on 3.5.2003 and Haji Abdul Ghafoor had filed a suit for permanent injunction against the respondents, restraining them from closing the said passage on 8.5.2003, which was dismissed as withdrawn on 21.5.2003 and feeling their mistake, Respondent No. 2 and 3 moved to the DCO. On 8.5.2003 through a letter dated 9.5.2003 for recalling of his direction and that's why the civil suit was filed on the said date. This fact was concealed by the petitioners and after exhausting the alternate remedy, they have approached this Court through the instant petition and if any fact is concealed by the writ petitioners, this Court would be competent to decline to interfere with the matter while exercising its constitutional jurisdiction.

1. As to the argument of learned counsel for the petitioners that a vested right had been accrued to the petitioners under the principle of locus- poenitentiae, is concerned, according to 'Black's Law Dictionary, the word locus-poenitentiae has been defined i.e. a place for repentance; an opportunity for changing one's mind; and opportunity to undo what one has done; a chance to withdraw from a contemplated bargain or contract before it results in a definite contractual liability; a right to withdraw from an incompleted transaction."

2. The competent authority "which passes any order has the power to undo it under General Clauses Act as well as under principle of "locus- poentientiae" but the authority cannot withdraw/rescind the order if it has taken its legal effect. The DCO and functionaries of Health Deptt. passed the order or initiated action without sanction/approval of the competent authority and they acted in excess of jurisdiction. Though, the concept of "locus-poenitentiae" is the power of rescinding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and close transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order. Reliance in this respect can be made to the cases of Abdul Haq Indhar vs. Prov. of Sindh through Secretary Forest, Fisheries and Livestock Deptt. Karachi (2000 SCMR 907), MessrsExcell Builders reported as (1999 SCMR 2089), The Engineer-in-ChiefBranch through Ministry of Defence vs. Jalaluddin (PLD 1992 SC 207) and Ayesha Afzal vs. Chairman Board of Intermediate and Secondary Education Faisalabad (2001 CLC 1765). Where order in question was illegal, it can be rectified, rescinded, altered and principle of "locus-poenitentiae" would not be applicable to such case. Reliance in this respect can be made to case of Darayus Pestonji vs. Nam Singh (1998 CLC 921).

3. It is well settled proposition of law that the Tribunal acting beyond sphere allotted to it by law and action is a nullity in the eyes of law and the superior Courts would refuse to perpetuate something patently unjust and unlawful as laid down in Raunaq All's case reported as (PLD 1973 SC 236). The action of respondents, in the case in hand, sanctioning the gate in the boundary wall of the medical colony was beyond their authority and it.was itself a nullity in the eyes of law and if recalled would not prejudice the rights of the petitioners because an order/action which is a nullity in the eyes of law is not sustainable and it gives no vested right to a party in whose favour it is passed.

4. So far as the question of legal "right of the petitioner is concerned, suffice it to say, that legal right is one which is enforceable before Courts and is based upon statute and is invoked for having secured interest. Reliance in this respect can be made to the case of Farukh Din vs. Govt. ofSindh (PLD 2000 Kar. 154).

5. The original order, giving permission to use the passage to the petitioners and others, developers of agricultural land for residential colonies, had been passed without permission of the Government and the consent of the medical staff in their absence which was itself a coram-non-judice order just to accommodate/benefit the owners of the agricultural land.

6. As per record of right pertaining to the years 1996-97, the land covered by the medical colony belonging to the Provincial Government/Health Deptt. entered as 'Ghair Mumkin medical colony' could not be used for the benefit of private party. The letter dated 8.10.2003 issued from E.D.O. (R) to M.S. DHQ Hospital Okara, depicts that according to the revenue record there is no colony in the name of Ahmad Ghafoor Housing Society and Sidra Ghafoor Town situated at northern side of Medical colony Okara.

7. From the above facts it is proved that this writ petition pertains to question of fact which cannot be adjudicated upon or gone into by this Court in exercise of its constitutional jurisdiction as laid down in Muhammad Yunus Khan us. Govt. of NWFP (1993 SCMR 618) and Federation of Pakistan vs. Major Rtd. Muhammad Sabir Khan (PLD 1991 SC 476). Learned counsel for the petitioners has not been able to make out a case for interference in exercise of its constitutional jurisdiction and miserably failed to point out any illegality, violation of any'law, mis-use of authority by the respondents while closing the gate installed in the wall of the medical colony rather they rectified their mistake committed by them and excess exercise of their jurisdiction.

8. For the foregoing reasons, this writ petition having no force is dismissed. Since the main case has been dismissed, therefore, CM Bearing No. 1546/03 being infructuous is also disposed of accordingly. However, if

the order passed in the main case is assailed through an appeal, the applicant may appear before the appellate forum, to be impleaded as party.

(A.A) Petition dismissed.

PLJ 2004 Lahore 352

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq, J.

MUHAMMAD SHAFI. JAVED LINE SUPERINTENDENT WAPDA, ISLAMABAD-Petitioner

versus

WATER AND POWER DEVELOPMENT AUTHORITY

LAHORE through MANAGING DIRECTOR (POWER) WAPDA

HOUSE, LAHORE-Respondent

W.P. No. 2710 of 2001, heard on 23.10.2003. (i) Civil Service-

—Promotion-Grounds stated by respondent regarding denial of promotion were absolutely incorrect-Deliberate attempt on the part of departmental committee to deprive petitioner of promotion for which he was otherwise eligible, constitutes malafide act which could not be sustained-Respondent was directed to pass appropriate orders for promotion of petitioner after considering the matter in a just and fair manner.

[Pp. 355 & 356] A, C

(ii) Service Tribunal Act, 1973 (LXXX of 1973)--

—S. 4-Civil Servant-Appeal relating to matter of promotion-Such appeal is barred before Service Tribunal in terms of S. 4(1) Proviso (b) of Service Tribunal Act, 1973. [P. 355] B

PLJ 1996 SC 490 ref.

Syed Asghar Hussain Sabzwari, Advocate for Petitioner. Nemo for Respondent. Date of hearing : 23.10.2003.

judgment

According to this writ petition, the petitioner joined the service of the respondent as a Line Superintendent (L.S.) on 30.12.1961. He got move over and w.e.f. 1.12.1989 is in BS-17. He possessed an A.M.S.E. (London), M.S.E. (London), S.M.I.I.E.E. (New York), M.A.S.M.E. (New York), M.I.E. (London) and A.I.P.I.E. (London). Out of these qualifications, M.S.E. (London) and S.M.I.E.E.E. (New York) are recognized by the respondent vide order Annex: 'A'. These were declared by the West Pakistan University of Engineering and Technology to be equivalent to B.Sc (Engineering) Degree vide letters Annex: 'B' and 'C'. The University Grants Commission also recognized the said qualification equivalent to B.Sc. (Engineering). Vide office orders Annex: 'D' and 'E' 50% quota was reserved for promotion from LS Grade-1 to Junior Engineers having qualification of B.Sc. Engineering) or Sl.I.E. (Pak) with 1st division having three years experience, no inquiry pending certificate and five years satisfactory ACRs. According to the petitioner, he was not promoted and he filed W.P. No. 369/2000 in this Court. This writ petition was disposed of on 29.5.2001 on the assurance of a representative of the respondent that the case of the petitioner will be considered for promotion in the meeting of the Departmental Committee. According to the petitioner instead of a decision in the said matter, he was sent an office order dated 25.7.2001 stating that he has been retired from service on 6.6.1999 on attaining the age of superannuation. Thereafter he received a letter dated 6.8.2001 intimating him that his promotion case has been considered and rejected as he does not fulfil the required promotion criteria. According to the petitioner the said order apart from being violative of the promotion policy, is also violative of the said order inasmuch as the undertaking to treat the petitioner fairly in the matter of consideration for promotion was not adhered to. This writ petition came up on 16.8.2001 when notice was issued and a responsible officer of the respondent was directed to appear with records. Learned counsel put in appearance for the respondent and sought an adjournment to file parawise comments. These comments were filed on 17.10.2001. Now the position taken was that the petitioner has not been found eligible for promotion for the following reasons:—

(i) He failed to supply the authentic proof of his qualifications and registration of Pakistan Engineering Council.

(ii) He did not appear in the departmental promotion examination.

The matter came up and was considered by this Court on 1.11.2002. Now the minutes of the meeting of the Departmental Committee were placed on the record and according to these minutes the petitioner was not recommended for promotion on the following grounds:-

(i) ACRs missing for the year 1998, 1999 and 2000. (ii) The disciplinary case pending against him. (iii) Advance para No. 98 is pending against him.

(iv) Departmental Promotion Examination not passed which is a mandatory condition for promotion.

The learned counsel for the petitioner explained that he is not liable if his ACRs which ought to have been with the administrative wing of the respondent are missing. It was categorically stated that no disciplinary cases are pending as a certificate has already been issued stating that no inquiry is pending against the petitioner. Regarding the said ground No. (iii) it was stated that this reason is unexplained. Regarding ground No. (iv) it was stated that since the petitioner holds a degree equivalent to B.Sc. (Engineering), he is not required to take the Departmental Promotion Examination which was meant only for the Diploma holders. It was observed by his Lordship that the said comments filed by WAPDA do not elucidate these grounds and an order was passed that the concerned official of WAPDA to appear with complete record. It was also directed that the comments be re-submitted in the light of the said submissions of the learned counsel for the petitioner. The needful was not done. The writ petition was admitted to regular hearing on 24.4.2003 nothing that the additional comments have not been filed. Notice was issued. Thereafter comments were filed in this Court on 12.5.2003.1 find that these are the verbatim copy of the comments filed on 17.10.2001 and found to be inadequate by this Court vide order dated 1.11.2002. Now on 16.10.2003 comments were again filed by the respondent. These are signed by Syed Kazim Hussain Kazmi, Advocate. I may note here that an apology has been sought for filing wrong comments earlier. Further apology was sought for wrongly issuing the retirement order of the petitioner when, in fact, the order was meant for another similarly named employee who was a Diploma holder. In these comments an objection has been taken to the jurisdiction of this Court with reference to Section 17(l-b) of the WAPDA Act, 1958 read with Article 212 of the Constitution of the country. Reference has also been made to filing and .dismissal of a Service Appeal No. 316-R/84 by the Service Tribunal. It has also been admitted that the qualification MSB (London) is recognized by the respondent-Authority. It has been objected that the petitioner had to enlist himself as an Engineer with the Pakistan Engineering Council. Tne various documents referred to in the writ petition qua the equivalence of his qualifications with B.Sc. (Engineering) degree have not been denied. But I note here that in these comments not a single reason has been stated as to why the petitioner has not been promoted and of course the reasons stated in the said minutes of the meeting are not supported by the respondent in these comments.

1. This case was called on for hearing on 4.10.2003 several times. The learned counsel for the petitioner remained present while none appeared for the respondent. Still I adjourned the case today. Again the case has been called several times and despite the fact that the respondent is duly represented by a learned counsel whose name stands- listed in the cause list for today, no one has turned up for the respondent. It is accprdingly proceeded against exparte.

2. Now in the light of what I have noted above regarding the conduct of the respondent before and during these proceedings, I find that the respondent had acted in a reckless manner. In the first instance, they proceeded to issue an order announcing the retirement of the petitioner upon attaining the age of superannuation. The petitioner questioned the correctness of this order on the ground that he has not attained the said age so far. Thrice the comments were filed and the respondent persisted that he has been retired. Ultimately an apology was tendered for committing the said blunder.

3. Now there is no denial that the petitioner is possessed of a qualification which has been declared by the concerned Authorities including the respondent itself to be equivalent to B.Sc. (Engineering) degree. This being so, he is not liable to take any departmental examination. No detail or particulars of any pending inquiry have been provided in any of the said comments submitted thrice in this Court. It is thus to be safely assumed that the certificate issued to the petitioner by the respondent itself that no inquiry is pending against him is correct. Of course, there is nothing in any of the said comments as to what is the said advance para-98 admitted. The missing ACRs are not a fault of the petitioner. It is for the respondent to maintain the said records properly. In any case since the last more than two years that this case is pending the respondent has not come up with any allegation that any adverse report is attributable to the petitioner.

4. Having thus examined the file I do find that all the said four grounds stated by the Departmental Committee for not promoting the petitioner are absolutely incorrect. This deliberate attempt on the part of the respondent and the said Committee to deprive the petitioner of promotion for which he is otherwise eligible constitutes a mala fide act which cannot be sustained.

5. Now coming to the said objection that the petitioner in required under the provision of the Pakistan Engineering Council Act, 1976, to be registered with the said Council as an Engineer in order to be promoted, the question stands answered by the Hon'ble Supreme Court of Pakistan in its judgment in the case of Fida Hussain v. Secretary, Kashmir Affairs andNorthern Areas, Islamabad (PLJ 1996 SC 490). Thus, there is no tenable objection against the promotion of the petitioner.

6. Now as to the said objection raised to the jurisdiction of this Court, I may note in the very beginning that the respondent itself has referred to the factum of filing of Service Appeal No. 316-R/84 in the Service Tribunal and its dismissal. Now the copy of judgment dated 26.1.1985 of the learned Service Tribunal is Annex: 'R' to the first comments filed by the respondent. Now I find that the appeal was dismissed on two grounds. First that it was barred by time and second that since it is a matter of promotion, the appeal is not competent before the learned Tribunal. Needless to that Section 4(1) proviso(b) of the Service Tribunal Act, 1973, bars an appeal before the learned Service Tribunal in the matter of promotion. This answers the said objection.

7. I have already held above that it stands sufficiently established on the faces of the record that the respondent has acted malafide in this matter. Deliberate mis-representation has been made in this Court in the matter of reasons for denying the promotion and all of which reasons have been found incorrect with reference to the corrected stance of the respondent. Now all the reasons stated by the said Departmental Committee for denying promotion to the petitioner are admittedly false and incorrect. The apology tendered is accepted. The writ petition is allowed. The respondent is directed to pass appropriate orders for promotion of the petitioner after considering the matter in a just and fair manner. No orders as to costs.

8. A copy of this judgment be immediately remitted to the irespondent for reporting compliance thereof within four weeks of its receipt to the Deputy Registrar (Judicial) of this Court.

(A.A.) Petition accepted.

PLJ 2004 Lahore 356

Present: CH. IJAZ AHMAD, J.

MUHAMMAD RASHID-Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through it's CHAIRMAN, LDA PLAZA, LAHORE and 3 others-Respondents

W.P. No. 9625 of 2003, decided on 3.11.2003. General Clauses Act, 1887 (X of 1887)--

—S. 24-A-Employee of respondent Authority-Entitlement to regularization of service-Departmental Committee's recommendation for regularization of petitioner's service were ignored by competent Authority by directing filling of such posts through advertisement and open competition-Vested right having accrued to petitioner on recommendation of Selection Committee, competent Authority could only disagree with such recommendation with reasons and issuance of notice to petitioner-Such procedure was not adopted by competent Authority which was in violation of principles of natural justice-Impugned order of competent Authority was set aside-Competent Authority was directed to pass fresh order after applying "its independent mind by providing proper hearing to all concerned including petitioner. [Pp. 359 & 360] A & B

2000 PLC (C.S.) 225; 2003 SCMR 410; 2003 SCMR 819; 1995 SCMR 1028; 2003 SCMR 444; 1999 PSC 886; 1998 SCMR 2268; PLD 1965 SC 90 and

1983 SCMR 1208 ref.

Hafiz Muhammad Naseem, Advocate for Petitioner.

Mian Muzaffar Hussain, Advocate/Legal Advisor of Respondents (L.D.A.).

Date of hearing : 3.11.2003.

order

Brief facts out of which present writ petition arises are that the respondents appointed the petitioner as Litigation Officer in the year 1991. The respondents did not regularize the services of the petitioner. The

petitioner being aggrieved filed Writ Petition No. 20343-2001, which was disposed of by this Court vide order dated 18.11.2002 with the direction to the respondents to constitute a committee to finalize the matter within one month positively from today. Thereafter the competent authority was directed to pass an appropriate order on the basis of recommendation of the committee within a fortnight, then the competent authority should submit its report within specific period. The competent authority approved one time regularization in view of peculiar circumstances of the present case and rendered for long years service by the present incumbent. However, final selection would be made on the basis of committee to judge/asses from competency and skilled. The case of the petitioner was placed before the committee on 31.1.2003, wherein the petitioner and the committee unanimously recommended all the persons including the petitioner. The competent authority did not accept the recommendation of the said committee and decided that seven posts of litigation officer should be filled in through open competition and an advertisement shall be given in press by inviting the applications from the eligible candidates. The present petitioner would also be allowed to participate and the petitioner would be given benefit of their experience length of service and relaxation of age, if required. The petitioner being aggrieved filed this writ petition.

1. The learned counsel of the petitioner submits that the respondents did not agitate the order dated 8.11.2002 passed in W.P. No. 20343-2001 by this Court, before any higher forum. The learned counsel, who. entered appearance on Court's call placed on record order of the competent authority dated 14.10.2002 on 8.11.2002, therefore, order dated 8.11.2002 passed by this Court is binding upon the parties, therefore, the respondents have no lawful authority to wriggle out from the order of this Court. He further submits that the competent committee has recommended the case of the petitioner, therefore, the petitioner has accrued vested right and action of the respondents is without lawful authority. In support of his contention, he relied upon the following judgments:-

"Miss Farzana Qadir vs. Province ofSindh" (2000 PLC (CS) 225).

"D.G. Ordinance Service vs. Muhammad Abdul Latif' (2003 S.C.M.R. 410).

"Government of the Sindh vs. Abdul Sattar Sheikh, etc."(2003 S.C.M.R. 819). '

He further submits that the respondents have no lawful authority to issue advertisement qua the post in-question on the well known principle of approbate and reprobate. In support, of his contention he relied upon the following judgments:--

"Shahzad Gull. vs. Addl. Secretary Home, Govt ofNWFP, etc." (1999 S.C.M.R. 1028).

"Government of the Balochistan vs. Marjan 'Khan" (2003 S.C.M.R. 444).

"Chairman Mininum, Wage Board, vs. Fayyaz Khan Khattak"(1999 P.S.C. 886).

He further submits that action of the respondents is hit hy Article 25 of the Constitution as the action of the respondents is discriminatory in a character in view of Paras Nos. 3 & 5 of the constitutional petition, which was not denied in its true perspective by the respondents in the report and parawise comments.

1. The learned counsel of the respondents submits that action of the respondent is in accordance with law. The competent authority has framed the policy on 14.4.1996 as is evident from Annexure R/2 attached with the report and parawise comments. He further submits that case of the petitioner was sent to the Chairman, who did not agree as the Director General, LDA, his subordinate has failed to send summary in accordance • with law. He further submits that action of the respondents is not hit by Article 25 of the Constitution, as cases mentioned by the learned counsel of the petitioner in Paras Nos. 3 & 5, are not exactly similar qua the case of the petitioner, theref&re, action of the respondents is valid. He further submits that, this Court has no jurisdiction to give direction to the respondents to regularize the service of the petitioner in violation of rules and regulations of the respondents. He further submits that the competent authority constituted committee. The first committee did not recommend the- case of the petitioner, whereas second committee has recommended the case of the petitioner, therefore, the competent authority was justified to direct the office to fill the post in-question through advertisement in terms of policy of the respondents dated 14.4.1996.

2. The learned counsel of the petitioner rs rebuttal submits that the petitioner was selected for the post of litigation officer/legal assistant after completing all the legal formalities. The petitioner requested the respondents since 1991 for regularization of his services but the respondents failed to regularize the services of the petitioner malafidely.The respondents allegedly approved the procedure of recruitment and promotion on 14.4.1996; whereas the petitioner has agitated the matter before the respondents before 14.4.1996 as is evident from the documents attached by the petitioner with the constitutional petition. The petitioner has also filed Constitutional Petition No. 682-96, which was disposed of by this Court videorder dated 12.11.1996 on the statement of the legal advisor of the LDA- respondents.

3. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

4. It is admitted fact that the competent authority has constituted a committee consisting of Addl. Director LDA, Director Legal, LDA and Ch.

Muhammad Rashid Ahmad & Mr. Rehan Bashir, legal advisors of the LDA. The committee had granted one time for regularization of service of petitioner in view of peculiar circumstances of the case of the petitioner, thereafter the committee was constituted by the competent authority and the committee recommended the name of the petitioner for regularization, therefore, the petitioner has accrued vested right. The competent authority had discarded the recommendation of the committee without issuance of any notice to the petitioner. The case of the petitioner was placed before the competent committee in its meeting. The committee in its meeting held on 31.1.2002, recommended the case of the petitioner unanimously alongwith other persons, therefore, the competent authority has no lawful authority to discard the same without issuance of notice to the petitioner and without applying its independent mind. It is better and appropriate to reproduce the impugned order of the respondents to resolve the controversy between the parties.

"It was decided that seven posts of Litigation Officer should be filled in through open competition. An advertisement shall be givqn in press inviting applications from eligible candidates. Present officials will also be allowed to participate. However, they would be given benefit of their experience, length of service and relaxation of age if required."

Mere reading of the aforesaid order of the authority does not contain any reason; therefore, the same is not in accordance with law. After addition of Section 24-A in the General Clauses, it is the duty and obligation of the competent authority to pass the impugned order after applying its independent mind with reasons, as per law laid down by the Honourable Supreme Court in "M/s. Airport Support Service's case" (1998 S.C.M.R. 2268). It is also .admitted fact that the petitioner has accrued vested right as the committee has recommended the case of the petitioner to the competent authority, therefore, it is the duty and obligation of competent authority to disagree with the recommendation of the committee with reasons and after issuance of the notice to the petitioner. This procedure was not adopted as is evident from the impugned order. The committee did not adopt this procedure, which is in violation of principle of natural justice. The vested right accrued to the petitioner, cannot be taken-away without issuance of notice to the petitioner as per principle laid down by the Honourable Supreme Court in "Zakir Ahmad's case (PLD 1965 S.C. 90) and "Pakistan Chrome Mines Ltd.'s case (1983 S.C.M.R. 1208).

1. In view of what has been discussed above, the impugned order of the competent authority for advertisement is set-aside, meaning thereby the recommendation of the committee shall be placed before the competent authority. The competent authority shall pass its afresh order after applying its independent mind after providing proper hearing to all the concerned including the petitioner, preferably within 3-months after receiving the order of this Court. The petitioner is directed to appear before the Director General, LDA/competent authority, in his office at 11-00 a.m. on 12-11-2003, who is directed to pass afresh order either himself or send the same to the competent authority, who is also directed to pass afresh order in the terms of aforesaid direction of this Court. Office is directed to provide one copy of this order to Mian Muzaffar Hussain, legal advisor of the respondents-LDA, who is directed to send the same to the aforesaid Director General, LDA/competent authority for necessary action and compliance.

With these observations, the writ petition is disposed of. (A.A.) Order accordingly.

PLJ 2004 Lahore 360

Present: CH. IJAZ AHMAD, J. .

Rana MUHAMMAD MUSTAFA and another-Petitioners

versus

JAVED IQBAL SIDDIQUI, DISTRICT JUDGE FAISALABAD/ELECTION TRIBUNAL, JHANG and 4 others-Respondents

W.P. No. 8346 of 2003, decided on 31.10.2003. (i) Punjab Local Government Election Rules 2000-

—Rr. 39, 40, 42 & 55-Constitution of Pakistan (1973), Art. 199-Polling staff as well as Returning officer failed to count votes in accordance with mandatory provisions of election laws and rules framed thereunder, therefore, result was prepared/declared in violation of mandatory provisions of Rules 39, 40, 42 and 55 of Punjab Local Government Election Rules 2000-Election Tribunal was, thus, justified to declare election in question, as a whole to be void and was justified to give direction to Election Commission to hold re-election qua seats in question-Judgment of Election Tribunal being in accordance with provisions of relevant rules, interference therein, was not warranted.

[Pp. 363 &-364] A (ii) Punjab Local Government Election Rules, 2000--

-—Rr. 39, 40, 42 & 55-Constitution of Pakistan (1973), Art. 199-Findings recorded by Election Tribunal on questions of fact-High Court has no jurisdiction to substitute its own findings in place of findings of Election Tribunal-Election Tribunal's finding that result was prepared by polling staff and Returning Officer in violation of mandatory provisions of election laws-Such finding being finding of fact could not be disturbed by High Court in exercise of its constitutional jurisdiction. [P. 365] B

(iii) Punjab Local Government Election Rules, 2000--

—-Rr. 39, 40, 42 & 55-Constitution of Pakistan (1973), Art. 199-Constitutional jurisdiction being discretionary in nature, High Court was

not inclined to exercise its discretion in favour of petitipner, in view of facts and circumstances of present case. [P. 365] C

PLD 1973 SC 236; PLD 1973 Lahore 600; PLD 1964 SC 260; PLD 1961 SC

224; 1999 CLC 1520; PLD 1976 SC 6; PLD 1968 SC 301; 1961 AELR 354;

PLD 1966 Lahore 97; PLD 1966 SC 1; PLD 2002 SC 184 and

PLD 1990 Lahore 378 ref.

Dr. M. Mohy-ud-Din Qazi, Advocate for Petitioners. Mr. Zafar Iqbal Chohan, Advocate for Respondent No. 4. Date of hearing: 31.10.2003.

order

The brief facts out of which the present writ petition arises are that the petitioners and Respondents Nos. 2 to 5 contested the election for the posts of Nazim and Naib Nazim from Union Council-88 Gohar Shah, Jhang Saddar, held on 31.5.2001 under the provisions of the local bodies election and rules framed thereunder. The petitioners being aggrieved filed an election petition before the Election Tribunal, Jhang, on the ground that votes were not counted by the Polling Staff, in accordance with law. Respondents Nos. 2 and 3 filed independent written statements, controverted the allegations levelled in the election petition. Out of the pleadings of the parties the learned Election Tribunal framed the following issues:--

(i) Whether the petitioners have got no locus standi or cause of action to file this petition ?

(ii) Whether the petitioners are estopped by their conduct to bring this petition?

(iii) Whether the petition is violative of Rules 70 to 72 of the Punjab Local Government Election Rules, 2000?

(iv) Whether the annexures and schedule annexed to the petition have not been verified in the manner laid down in the CPC for verification of pleadings, as required under Rule 72(3) of the Election Rules, 2000?

(v) Whether the respondents procured the result of election in question in their favour through corrupt and illegal practice or illegal acts? If so, its effect?

(vi) Whether the petitioners' valid votes were rejected while preparing the result illegally and incorrectly and the sifting, sorting and scrutiny of the votes was not in accordance with the Rules? If so, whether there exists sufficient ground for recount of ballot papers?

(vii) Whether the election of Respondents Nos. 1 and 2 is valid?

(viii) Relief.

During the pendency of the election petition Respondent No. 2 has resigned from the Post of Nazim to the competent authority for the purpose to contest the election for the seat of Provincial Assembly. The competent authority accepted the resignation of Respondent No. 2. Respondent No. 3 also resigned from the Post of Naib Nazim for the purpose to contest the election for Nazim. The ex-parte order was also passed against Respondents Nos. 4 and 5. The learned Election Tribunal passed the order for recounting of votes of the parties to resolve the controversy between the parties vide order dated 27.2.2003. Subsequently, the learned Election Tribunal had recounted the votes and proceedings qua recounting of votes is at pages 35 to 39 and this fact was also noted by the Election Tribunal in its judgment dated 28.5.2003 in para 6. The petitioners secured 1812 votes whereas respondents secured 1608 votes but the learned Election Tribunal accepted the election petition and copy of the Judgment was sent to the Provincial Election Commissioner, Punjab Lahore for arranging re-election in the concerned Union Council. The petitioners being aggrieved filed this Constitutional petition.

1. The learned counsel of the petitioners submits that Respondents Nos. 2 and 3 contested the election for the Seat of Nazim and Naib Nazim of Union Council No. 88 Gohar Shah, Jhang Saddar respectively. Respondents Nos. 2 and 3 were declared as returned candidates. The petitioners being aggrieved filed election petition before the concerned Election Tribunal. The Election Tribunal directed the Government and Chief Election Commissioner to hold fresh election of concerned Union Council, which was not the prayer of the petitioners in the election petition. He further submits that Respondents Nos. 2 and 3 had resigned and did not contest the election petition filed by the petitioners. He further submits that Respondents Nos. 4 and 5 also did not contest the election petition filed by the petitioners. He further urges that on recounting the votes secured by the petitioners were more as compared with Respondents Nos. 2 and 3 but this fact was not considered by the Election Tribunal and disposed of the election petition, which is not in accordance with the mandatory provisions of election laws. He further submits that petitioners have filed election petition simply on the ground that Polling Staff did not count the votes in terms of the provisions of the election laws under Rule 82 of the Punjab Local Government Election Rules, 2000, therefore, Election Tribunal erred in law to declare the election void as a whole and directed the Provincial Election Commission to hold fresh election qua the seats in question, which is not valid and the requirement of Rule 83 are not attracted in the present case but this fact was not noted and decided by the Election Tribunal in the impugned judgment. He further submits that once the Election Tribunal has come to the conclusion that petitioners have secured more votes as compared to Respondents Nos. 2 and 3, the Election Tribunal has no lawful authority to

declare the election as a whole void. In fact it is the duty and obligation of Respondent No. 1 to declare the petitioners as a returned candidate.

1. The learned counsel of Respondent No. 4 submits that votes were not properly counted by the Polling Staff, therefore, the Election Tribunal was justified to declare the election void as a whole. In support of his contention, he relief upon the reasoning rendered by the Election Tribunal in Paras 13, 14, 15 and 16 of the impugned judgment. He further submits that votes were not properly counted and secured and record is not properly maintained. In support of his contention, he relied upon Abdul Sami's case(PLD 1990 Lah. 378).

2. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

3. It is pertinent to mention here that the petitioners have taken a specific allegation in Para 4 of the election petition that Polling Staff did not count the votes in accordance with the provisions of the election laws and rules framed thereunder. The Election Tribunal after proper appreciation of the evidence on record has given findings qua the corrupt and illegal practice committed by the parties with the connivance of the Polling Staff. In Paras 13, 14 of the Judgment wherein the learned Election Tribunal has reappraisal the evidence on record and finally the Election Tribunal has given findings in the following terms in para 15:--

"As detailed in Para 6 of this judgment, petitioners were shown to have obtained 2051 votes by the Polling Staff while during recounting of votes by this tribunal 1812 votes have been found cast in favour of the petitioners. This being so I feel it necessary to declare the election as a whole to be void and as such re-election should be held".

It is pertinent to mention here that the Election Tribunal has mentioned votes secured by the petitioners and Respondents Nos. 2 and 3. According to Para 6 as mentioned above, the petitioners secured votes 2051 previous at the time of declaration of result of election. The Election Tribunal after recounting found the petitioners secured 1812 votes whereas Respondents Nos. 2 and 3 secured votes 2307'at the time of declaration of the result of the election on the basis of which Respondents Nos. 2 and 3 were declared as returned candidates. The Election Tribunal during recounting process found Respondents Nos. 2 and 3 secured 1608 votes. Mere comparison of the two figures of both the sets i.e. petitioners and Respondents Nos. 2 and 3 clearly reveals that polling staff as well as Returning Officer could not count the votes in accordance with the mandatory provisions of the election laws and the rules framed thereunder, therefore, result was prepared/declared in violation of the mandatory provisions of the Rules 39, 40, 42 and 55 of the Punjab Local Government Election Rules, 2000. In case the contents of the Para 4 of the election petition be read then the pith and substances of the grievances of the petitioners is that the result of the election has been

materially effected on account of the failure of the Returning Officer as well as District Returning Officer to comply with the mandatory provisions of sub-clause (b) and (c) of Clause 3 of the Rule 39 of the aforesaid rvjles and failure of the District Returning Officer to comply with the provisions of the sub-rule (5) of Rule 42 read with Rule 55 of the rules. The grievances of the petitioners thus securely fall within the ambit of Clause (a) of Rule 83 of the rules, therefore, the Election Tribunal was justified to declare the election as a whole to be void and was justified to give direction to the Provincial Election Commission to hold re-election qua the seats inquestion in the said Union Council. The judgment of the Election Tribunal is in accordance with the dictum laid down by the Honourable Supreme Court in Ch. Nazir Ahmad's case (PLD 2002 S.C. 184). It is settled principle of law that in case the Polling Staff failed to act in accordance with the provisions of the rules in such situation, the result of the election has been materially effected and election should be declared as a whole void as the law laid down in the following judgments:--

Sana Ullah's case (PLD 1966 Lahore 97).

Bristol South's East Parliamentary Election (1961 (Vol. Ill) A.E.L.R. 354).

Rashid Rehmani's case (PLD 1968 S.C. 301).

By virtue of Rule 82 of the aforesaid election rules it is condition precedent that Tribunal has to be satisfied that the petitioner before him or such other contesting candidate was entitled to be declared as elected, the election tribunal after applying its independent mind and reappraisal of the evidence has satisfied that the election was not held in accordance with the mandatory provisions of the election laws, therefore, he was justified not to declare the petitioners as returned candidates, which is in accordance with the law laid down in the following judgments:-

Manzoor Ahmad Butt's case (1999 CLC 1520). Saeed Hasan's case (PLD 1976 S.C. 6).

It is also settled principle of law that a corrupt or illegal practice in an election is not an isolated affairs as between the petitioners. It is wrong to suppose that the affects of such practice are confined to the petitioners. It is a matter of vital public interest relating to, the purity of election that such practices should be brought to light and duly investigated as the law laid down by the Honourable Supreme Court in Jamal Shah's case (PLD 1966 S.C. 1). In case Para 6 of the judgment be read with regard to the petitioners votes secured on the basis of the result prepared by the Polling Staff and subsequently, result was declared on the basis of that result by the Returning Officer and votes secured by the petitioners after recounting are entirely different i.e. previous votes secured by the petitioners 2051 and after recounting reduced to 1812 votes. This fact brings the case of the petitioners in the area that the petitioners obtained this advantage for themselves by

contravening a statutory rule, resultantly that the means adopted could fairly be described as "illegal" as the act was contrary to law as the law laid down by the Honourable Supreme Court in Dr. Niaz Ahmad vs. The State (PLD 1961 S.C. 224). In case the result of recounting be perused then it brings the case in the area that petitioners have not approached the Election Tribunal with clean hands. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the tribunal below. The Election Tribunal has given finding of fact against the petitioners in Para 13 to 15 that result was prepared by the Polling Staff and Returning Officer in violation of the mandatory provisions of the election law, therefore, this Court has no jurisdiction to disturb the finding of fact of the tribunal below while exercising power under Article 199 of the Constitution as the law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments;-

M. Musaddaq's case (PLD 1973 Lahore 600). -Syed Azmat All's case (PLD 1964 S.C. 260).

It is also settled principle of law that Constitutional jurisdiction is discretionary in character. Keeping in view the circumstances and facts of this case, I am not inclined to exercise my discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court in Nawab Syed Raunaq All's case (PLD 1973 S.C. 236).

In view of what has been discussed above, this writ petition has no merit and the same is dismissed with no order as to costs.

(A.A.) Petition dismissed.

PLJ 2004 Lahore

Present: muhammad sair ali, J.

M/s EASTERN LEATHER COMPANY (Pvt.) LIMITED, LAHORE through its DIRECTOR-Petitioner

versus

RAJA QAMAR SULTAN, SECTION OFFICER, GOVT. OF PAK. LAW AND JUSTICE HUMAN RIGHT DIVISION and 4 others-Respondents

W.P. No. 5893 of 2003, heard on 28.10.2003.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983--

—-Art. 32-Constitution of Pakistan (1973), Art. 199-Appeal against order of ombudsman before President-President deciding appeal without giving opportunity of hearing to petitioner-Legality-Petitioner has admittedly been denied notice and right of hearing against order of ombudsman- Impugned order adversely affects petitioner and the same has been passed without affording opportunity of hearing to petitioner who was vested with a right of participation in proceedings against the order in question as a party thereto-Law and principles of natural justice oblige President of Pakistan to decide representation before him after opportunity of hearing to parties before him--Constitutional petition having been decided on the ground of absence of hearing to petitioner, questions of law and fact, involved therein have not been dealt with and decided-Such questions were left to be re-decided in appeal filed by respondents before President-Appeal would be deemed to be pending before President to be re-decided in accordance with law after due notice and opportunity of hearing to parties. [Pp. 367 & 368] A & B

1999 SCMR 2744; 1999 SCMR 2189 and 2003 YLR 2790 ref.

Raja Amir Khan, Advocate for Petitioner.

Mr. Khalid Jamil Khan, Advocate for Respondents.

Date of hearing : 28.10.2003.

judgment

M/s Eastern Leather Company (Pvt.) Limited (the petitioner) as manufacturer imported chemicals for manufacturing and processing of leather and leather products. Respondent No. 2 i.e. Commissioner of Income Tax issued certificate of exemption from deduction of income tax at source at import stage, on 6.12.1995 for a period of six months ending on 30.6.1996. In the meanwhile, petitioner opened certain L.Cs to import goods and machinery etc. Renewal of certificate was requested by the petitioner, but his application/representation to respondent remained un-responded whereupon petitioner filed a Writ Petition No. 15740/1996 before this Court. This petition was however decided on'6.10.1996 through directions to release the goods on furnishing of Bank guarantee by the petitioner. Owing to delay in release of the imported consignment, the petitioner had to pay demurrage charges amounting to Rs. 12,81,782.00.

1. Petitioner thereupon filed a complaint before the Hon'ble Wafaqi Mohtasib to seek refund of the demurrage charged from and paid by the petitioner. The grounds of the complaint were that the petitioner had to suffer the above referred payment of demurrage charges owing to delay caused by non-issuance of exemption certificate by. the respondents. The petitioner's complaint before the Hon'ble Wafaqi Mohtasib succeeded through order dated 10.2.2001. The Hon'ble Wafaqi Mohtasib observed and recommended as under:

"In view of the above facts of the case it is established that the complainant had to pay the amount of Rs. 12,81,782/- as demurrage charges due to negligence and mal-administration of the Agency, as

the Agency failed to issue Exemption Certificate inspite of various applications submitted by the complainant in this regard. Therefore, the amount of Rs. 12,81,782/- may be refunded to the complainant and refund voucher be issued in his favour, so that the complainant is compensated for the monetary loss it has suffered. Compliance be reported to this Secretariat within 30 days."

1. Against the above order, the respondents filed representation before Hon'ble the President of Pakistan under Article 32 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. The same was accepted by Hon'ble the President of Pakistan on the ground that the Hon'ble Wafaqi Mohtasib appointed under the Order of 1983, was divested of the jurisdiction to hear the petitioner's complaint dated 23.2.2000 upon promulgation of Federal Tax Ombudsman Ordinance, 2000 w.e.f. 11.8.2000 as provisions of the said Ordinance were applicable retrospectively and thus affected proceedings pending before the Hon'ble Wafaqi Mohtasib qua federal taxes. The findings and recommendations dated 10.2.2001 were thus set aside and petitioner was intimated of the above decision through Memo No. 574/2001-Law (WM) dated 17.1.2002 by a section officer. Hence

the present constitutional petition.

1. On pre-admission notice, report and para wise comments were filed on behalf of the respondents.

2. Upon joint request of the learned counsel for the parties, this case is decided as an admitted/pacca case.

3. The case came up for hearing before this Court today. The learned counsel for the petitioner drew my attention to the impugned order conveyed to the petitioner through the above referred memo dated 17.1.2002 and stated that the order was void ab-initio for having been passed without notice and without opportunity of hearing to the petitioner. Reliance was placed upon a number of judgments to contend that the impugned order of Hon'ble the President of Pakistan was unsustainable for having been passed in absence of the petitioner.

4. Learned counsel for the respondents faced with the above situation, had no answer to offer. He however tried to build his defence on merits.

5. Having heard the learned counsel for the parties, this Court has no option but to accept this constitutional petition. Petitioner has admittedly been denied notice and the right of hearing on the respondents' representation against it. The petitioner has been condemned unheard. The impugned order adversely affects the petitioner but has been passed without an opportunity of hearing to the petitioner who was vested with a right of participation; in the proceedings against it as a party thereto. Question of

absence of proper hearing on a representation to the Hon'ble the President of Pakistan was settled by the August Supreme Court of Pakistan in the cases of "Federation of Pakistan vs. Muhammad Tariq Pirzada and two others" (1999 SCMR 2744) and "Federation of Pakistan vs. Muhammad Tariq Pirzada and two others" (1999 SCMR 2189). In the case reported as 1999 SCMR 2189, the Hon'ble Supreme Court of Pakistan was pleased to settle the law on the nature of the jurisdiction vesting in the President under Article 32 of the above referred Order of 1983. It was held that :--

"the jurisdiction vested in the President under Article 32 partakes of appellate j urisdiction...."

And that:-

"Under the scheme of the Order, the President exercises the same nature of functions as are performed by the Ombudsman. Thus visualized, the President while performing his functions under Article 32 of the Order acts in quasi-judicial and not in administrative capacity, which is totally distinguishable from administrative actions,"

1. Cumulative reading of the above referred two judgments of the august Supreme Court of Pakistan reveals that the law and the principles of natural justice oblige the Hon'ble President to decide a representation before him after an opportunity of hearing to the parties before him.

2. The law as above pronounced was followed by this Court in the cases of "Muhammad Saleem vs. Federal Tax Ombudsman etc." (Writ Petition No. 16946/2002) and "Muhammad Hussain and another vs.Federation of Pakistan" (2003 YLR 2793) to set aside orders passed on representations without hearing the party represented against.

3. Under the above explained circumstances, the impugned order conveyed to the petitioner through Memo No. 257/2001-Law (WM) dated 17.1.2002 is declared to be without lawful authority and of no legal effect.

4. This constitutional petition has been decided on the ground of absence of hearing to the petitioner therefore the questions of law and facts involved in the present constitutional petition have not been dealt with and decided. These questions are left to be re-decided in the representation filed

gby the respondents before Hon'ble the President of Pakistan. The representation shall be deemed to be pending and shall be re-decided in accordance with law after due notice and opportunity of hearing to the parties.

(A.A.) Case remanded.

PLJ 2004 Lahore 369

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq, J. NAZAR HUSSAIN-Petitioner

versus ADDITIONAL DISTRICT JUDGE, CHAKWAL and 4 others-Respondents

W.P. No. 2497 of 1997, heard on 16.10.2003. (i) Co-Sharer--

—-Dispossession-Co-sharer when dispossessed has two remedies; one, a suit for separate possession by partition and second, suit in accordance with terms of S. 9 of Specific Relief Act, 1877. [P. 370] A

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

—-0. VI, R.17-Amendment in pleading-Effect-Amendment when allowed and incorporated in pleading with leave of Court, then same related back to the date of suit as originally filed. [P. 371] C

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

—--S. 9-Dismissal of suit being barred by limitation-Issue relating to dispossession of plaintiff within six months was left un-decided by trial Court-Other issue pertaining to limitation had been decided by trial Court in a slip-shod manner-Revision was decided by Additional District judgment without appreciation of evidence-Judgments of Courts below were set aside and case was remanded for decision afresh in accordance with law. [P. 371] B & D

1994 SCMR 2240 and NLR 1980 AC 243 ref.

Ch. Imtiaz Muhammad Khan, Advocate for Petitioner. Nemo for Respondents. Date of hearing : 16.10.2003.

judgment

.

On 6.6.1991 the petitioner filed a suit against the Respondents Nos. 3 to 5. In the plaint it was stated that the suit land mentioned in the plaint is owned and possessed by the petitioner as a co-sharer therein and he is entitled to retain the possession till partition. Two weeks before the institution of the suit the respondents have illegally taken possession of land measuring two kanals show in red in the annexed plan. With these averments he sought a decree for possession of the suit land in terms of Section 9 of the Specific Relief Act, 1877. The Respondents Nos. 2 to 5 in their written statement proceeded to state that the land was in possession of Qamar Din who sold it to the respondents and delivered possession. Later

disputes arose between Qamar Din and the respondents. Civil suits were filed whidh were decreed in their favour. According to the respondents they are continuing in possession since June, 1978 and have raised constructions

two years ago. Following issues were framed by the learned trial Court: ~

1. Whether,the plaintiff has no cause of action t<? file this suit? OPD.

2. Whether the suit is barred by limitation?

3. Whether the suit has been wrongly valued for the purposes of Court fee and jurisdiction, if so its effect and correct valuation?

4. Whether the defendants are entitled to specialists U/S. 35-A CPC, if so to what extent?

5. Whether the plaintiff was illegally dispossessed from suit property by the defendants within six months from the date of filing of present suit?

6. Whether the plaintiff is entitled to a decree prayed for?

7. Relief.

Evidence of the parties was recorded. Videjudgment and decree dated 8.2.1996 the learned trial Court found the suit to be barred by time under Issue No. 2. Issue No. 5 was left undecided. Issues Nos. 1, 3 and 4 were not pressed. The suit was dismissed. A civil revision was filed by the petitioner which was heard by a learned ADJ, Chakwal, who dismissed the same on 23.4.1997.

1. Learned counsel for the petitioner contends that this is a case where both the learned Courts below have acted without lawful authority inasmuch as without deciding the Issues in terms of Section 9 of the Specific Relief Act, 1877, his suit has been dismissed. No one has turned up for Respondents Nos. 3 to 5 who were duly served and are represented by Mr. Hassan Raza Pasha, Advocate, whose name has been duly listed in the cause list for today but no one has turned up despite several calls. The said respondents are proceeded against exparte.

2. Now I have already reproduced the contents of the respective pleadings of the parties above. The contents of the plaint squarely bring the case of the petitioner within the ambit of Section 9 of the Specific Relief Act, 1877, if proved. It is now well settled that a co-sharer in possession, if dis­ possessed has two remedies. One a suit for separate possession by partition

and the second a suit in accordance with the terms of Section 9 of the Specific Relief Act, 1877 (reference be made judgment in the case of Muhammad Shaft etc. v. Collector, etc. (N.L.R. 1980 AC 243). The petitioner opted for the second remedy. He had specifically stated that he was dispossessed two weeks before the institution of the suit. Now the learned trial Court did not decide Issue No. 5.1 have no manner of doubt in my mind

2004 nazar hussain v. addl. district judge, chakwal Lah. 371

(Mauliv Anwar-ul-Haq, J.)

that had the issue been decided in favour of the petitioner, he would have been entitled to a decree. I may further note here that the Issue No. 2 pertaining to limitation has been decided, to say the least, in a slip shod manner. Without reference to and discussing the evidence on record, the' learned trial Court concluded that the plea of dis-possession within two weeks before the suit is an after thought.'The judgment of the learned trial Court is absolutely perverse particularly when it could not help observing under Issue No. 5 that basically the land in possession of the defendants was being cultivated by the petitioner through a tenant.

1. Now the learned ADJ has proceeded to punish the petitioner by observing that whereas in the original plaint he had written that he was dis­ possessed two days ago, he got permission to amend his plaint and wrote that he was dis-possession two weeks ago. The learned ADJ has proceeded to hold the case of the petitioner to be false on wholly unfounded premises. It appears that the learned ADJ, Chakwal, never cared to read Order VI, Rule 17 CPC and the law laid down by the superior judiciary of the country while interpreting the said provision of law. The consensus of judicial authority in the entire Sub-Continent is that amendments are to be allowed liberally and are to be refused only when the very nature of the suit is changed. Had the learned ADJ cared to read Order VI, Rule 17 CPC, he would have found that Court is empowered at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. There is no denial of the fact that the plaint was amended with the leave of the Court. Nobody challenged the order granting leave to amend the plaint. Needless to state that when an amendment is allowed to be made by the Court and it is incorporated in the pleading with the leave of the Court then the same relates back to the date of the suit as originally filed. Reference may be made to the case of Mst, Barkat Bibi v. KhushiMuhammad and others (1994 SCMR 2240). To my mind the learned ADJ was not even competent to read the said original plaint muchless proceeding to uphold the said perverse judgment of the learned trial Court by accusing the petitioner of the so-called change of version. He also fairly resorted to conjectures instead of reading the evidence on record and to decide the issues framed on the basis of the pleadings of the parties particularly Issue No. 5.

2. For all that has been discussed above, this writ petition is allowed. The impugned judgments and decrees of both the learned Courts below are declared to be without lawful authority and accordingly set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending before the learned Senior Civil Judge, Chakwal, where he shall appear on 17.11.2003. The learned Senior Civil Judge shall requisition the records of the suit, summon the defendants and proceed to decide all the issues framed in the case after hearing the parties and reading the entire evidence on record. Since the respondents have not come forward to oppose this writ petition, I am leaving the parties to bear their own costs.

3. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Chakwal.

(A.A.) Case remanded.

PLJ 2004 Lahore 372

Present: muhammad muzammal khan, J. Haji ABDUL LATIF and 4 others-Petitioners

versus

ATEEQ AHMAD and 3 others-Respondents C.R. No. 554 of 2003, decided on 13.10.2003. (i)

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

—- S. 2-Specific Relief Act, 1877 (I of 1877), S. 12-Preliminary decree in suit for specific performance when becomes final-Preliminary decree for specific performance would become final when same mandates that suit of plaintiff would stand dismissed, in case, amount required to be deposited was not deposited within time specified by such decree, on the date when time so specified expires-Till such time preliminary decree becomes final, Court passing same would keep seizin over lis and can extend time but not thereafter. [P. 375] A

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

—S. 35-Object, Scope and import of S. 35, Specific Relief Act 1877-Party Committing default under decree would have to face rescission of contract on which specific performance had been granted or for cancellation of decree itseSi-Trial Court while specifying date for deposit of outstanding amount had placed rider of dismissal of suit in case of non­ payment of decretal amount-Plaintiff having failed to make deposit on specified date, his suit stood dismissed and, thereafter, nothing remained, pending before trial Court to exercise jurisdiction under S. 148 C.P.C. for extending time for deposit of amount in question-Extension of time in terms of S. 148 C.P.C. for depositing amount in question, one year after decree had become final was unlawful, without jurisdiction and void and same was set aside. [P. 375, 376 & 377] B, C, D & E

AIR 1958 Allahabad 488; 1992 MLD 31; PLD 2002 Lahore 176; 2000 CLC 1633; 2002 MLD 1010 and PLD 1997 Lahore 177, ref.

Mr. Iftikhar Ahmad Dar, Advocate for Petitioners. Mr. Jehangir A. Jhoja, Advocate for Respondents. Date of hearing : 13.10.2003.

order

This revision petition assails an order dated 25.3.2003, passed by the learned trial Court, extending time for deposit of decretal amount of Rs. 1,55,00,000/- till 24.4.2003, on application of the respondents.

1. A short factual background of the case is that the petitioners were the owner of Property No. 120-A, Peoples Colony, Faisalabad, land underneath measuring 4 kanals 1 marlas 130 Sq. Ft. He entered into an agreement to sell this property to respondent for an amount of Rs. l,85,00,000/:, through an agreement to sell dated 5.1.2000 and received an amount of Rs. 30,00,000/- as earnest money. Time for execution of the sale-deed was fixed by the agreement as 31.7.2000, at which time; the remaining amount was to be paid by the Respondent No. 1. The petitioners issued a telegraphic notice to the respondent, requiring him to perform his part of the contract under the agreement dated 5.1.2000 and instead of responding to the notice, he, on 12.8.2000, filed a suit for specific performance of the agreement before the learned Civil Judge, Faisalabad! The petitioners, being defendants in the suit, on 9.9.2000 filed an application before the learned Civil Judge that the respondent be required to make remaining payment under the above referred agreement and on such payment his suit may be decreed. The Respondent No. 1 appear to have been delaying the payment, as he did not accept the offer of the petitioners, immediately and requested for time to file a reply to the application moved by the petitioner. On the adjourned date, the respondent moved some application seeking amendment of the paint but ultimately, his -suit was decreed on 28.2.2001, in view of the concessional written statement filed by the petitioners. The learned trial Court, viewing that a huge amount is to be paid by the Respondent No. 1, granted him two months time and fixed the date as 30.4.2001 for the deposit of an amount of Rs. 1,55,00,000/- and also observed that if the Respondent No. 1 fails to pay the remaining sale price till the above mentioned date, his suit will be considered as dismissed.

2. One Muhammad Anwar Respondent No. 4 filed an application under Order I, Rule 10 CPC, seeking his impleadment to the suit, inspite of the fact that he was a stranger to the agreement to sell between the petitioners and Respondent No. 1. This Muhammad Anwar based his claim of impalement on some- agreement, allegedly executed between him and Respondent No. 1. This application was dismissed by the learned trial Court and his revision petition (C.R. No. 898 of 2001) was also dismissed by this Court vide judgment dated 27.4.2001.

3. The respondent Attiq Ahmad did not comply with the decree dated 28.2.2001 and did not deposit the decretal amount within the time specified by the decree and after a lapse of more than a year, opted to file an application under Section 148 CPC seeking extension of time fixed by the decree passed by the learned trial Court. This application was moved on 29.3.2002 before the learned District judge, as the learned Civil Judge, who

had passed the decree, had transferred. The application of the respondent for extension for time was taken up by the learned Civil Judge, to whom it was marked by the learned District Judge, who after obtaining written reply from the petitioners, accepted the same, granted the Respondent No. 1,one month's time for the deposit of the decretal amount in the following words:--

"The time is finally extended for 30 days i.e the applicant shall deposit the balance decretal amount of 1,55,00,000/- by 24.4.2003, failing which his suit shall stand dismissed with costs."

1. The learned counsel for the petitioners submits that due to failure of the Respondent No. 1 to deposit the decretal amount in terms of decree dated 28.2.2001 within the specified period,\his suit had already been dismissed and there was no Us pending before the learned trial Court and thus neither provision of Section 148 CPC could be invoked nor any such jurisdiction could have been exercised by the learned Civil Judge, as it had become functus officio. He further submits that the Respondent No. 1 was not ready to pay the money and thus was not in a position to perform his part of contract under the agreement to sell dated 5.1.2000 and that is why he instead of making the payment in response to the telegraphic notice by the petitioner, filed a suit for specific performance and then on an application, filed by the petitioner, he kept on delaying the matter of payment on one pretext or the other and ultimately, his suit was decreed on petitioner's concession. He did not comply with it and thus was not entitled to any indulgence by the Courts. The learned counsel for the petitioners elaborated his submissions by saying that the application seeking extension of time was filed after a lapse of a period of more than a.year and that too on the basis of false averments, which do not make out a case for extension of time under Section 148 CPC. He summarized his arguments by saying that order passed by the learned Civil Judge is absolutely without jurisdiction- and thus is not sustainable at law.

2. The learned counsel for the respondent controverting the submissions of the learned counsel for the petitioners, submitted that decree in suit for specific performance is always preliminary in nature and the Court passing it retains power to extend time fixed by such decree. He referred to Section 35 of the Specific Relief Act to contend that the decree in a suit for specific performance is always preliminary in nature. The learned counsel for the respondent also relied on judgments in cases of SomeshwarDayal and others Vs. Widow of Lalman Shah and others (AIR 1958 Allahabad 488) and Amjad Malik Vs. Muhammad Saleem and 5 others (1992 MLD 31) in support of his contentions.

3. I have given an anxious thought to the arguments of the learned counsel for the parties and examined the record appended with this petition. Controversy regrading nature of decree passed in a suit for specific performance has been put to rest by chain of judgments and by this time there is no controversy regarding the fact that such decree is preliminary in

nature. Reference can be made to the cases of Dr. Iftikhar Ahmad Zahid Vs. Mrs. Neelofar Akhtar & another (PLD 2002 Lahore 176), Nisar Ahmad Vs. Muhammad Yousuf (PLD 1994 Lahore 280), Maj (Rtd.) Hamid All Khan Vs. Main Muhammad Anwar (2000 CLC 1633) and Ahmad Yar Vs. Abdul Razzaq and 2 others (2002 MLD 1010).

1. A preliminary decree in a suit for specific performance becomes final when it mandates that suit of the plaintiff will stand dismissed, in case the amount required to be deposited, is not deposited within the time spfecified by it, on the date when such time expires. Till the time such decree becomes final, Court passing it, keeps seizin over the lis and can extend time but not thereafter.

2. Relevant part of the judgment and decree dated 28.2.2001 passed by the learned trial judge reads as follows:—

"I hereby decree the suit of the plaintiff by accepting the application of the defendants and he is directed to pay the remaining sale price of Rs. 15.5 million (Rs. 1,55,00,000/-) within a period of two months i.e. till 30.4.2001. If the plaintiff fails to pay the remaining sale price till the above mentioned date, his suit will be considered as dismissed."

.10. Section 35 of Specific Relief Act shows that party committing default under the decree will have to face rescission of the contract on which specific performance had been granted or for cancellation of the decree itself. In our countiy it is usual that Courts, at the time of passing of decree in suit for specific performance, fix time for deposit of the amount payable under the agreement and also attached a rider to the effect that in case of failure of the plaintiff to deposit the decretal amount, his suit will be deemed to have been dismissed. A similar situation arose in the case in hand and the learned trial Court while required Respondent No. 1 to deposit the amount 'payable under the agreement and ordered that in case of failure, his suit will be deemed to have been dismissed. This condition though was according to the provisions of Section 35 of the Specific Relief Act, I will deal with it in the latter part of this judgment, yet it was a part of the decree passed and had its effect in the nature of the dismissal of the suit of the Respondent No. 1. It remains a fact that Respondent No. 1 did not appeal against the decree dated 28.2.2001 fqr annulment of its' this part and has become final inter parties. On Court's query as to how this part of the decree can be avoided, set aside or ignored, the learned counsel for the Respondent No. 1 only referred to provisions of Section 35 of the Specific Relief Act and contended that inspite of this direction, the learned trial Court had the jurisdiction to extend the time. I am not in a position to see an eye to eye with him, because I am clear in my mind that the suit of the Respondent No. 1 stood dismissed by the force of decree dated 28.2.2001 itself, and unless and until this decree was set aside by any Court of competent jurisdiction it will have its course. Now under this decree suit of the respondent stood dismissed on 30.4.2001, the last date till which he could make the depooit but failed and thereafter there was nothing pending before the learned trial Court to exercise jurisdiction under Section 148 CPC, which provision of law is only available in the pending matters. Looking the case from another, angle, I am of the view that interpretation offered by the learned counsel for the respondents, would lead to uncertainty, as these unbridled powers of extension, inspite of dismissed of suit, would put the defendants in a ditch whereas law treats both the parties at equal pedestals. Extension of time after long time, also creates hardships, as in the instant case it has been extended after a year.

10-A. Determining this case on the touchstone of Section 35 of the Specific Relief Act 1877, it is clear that this provision of law does not preclude the Court from fixing date for payment of the price payable under the agreement and simultaneously ordering that the suit, in case of default in payment, would stand dismissed. As a matter of fact by attaching rider of dismissal of the suit in case of non-payment of decretal amount, the Court, before hand, indicates in terms of Section 35 of the Act ibid, its intention to rescind agreement on the failure of the plaintiff and would entail rescission of the contract, in form of dismissal of suit. My this view is supported by two judgments in the cases of Muhammad Ismail Vs. Muhammad Akbar Bhatti and 5 others (PLD 1997 Lahore 177) and Amjad Malik Vs. Muhammad Saleem and 5 others (1992 MLD 31).

1. Adverting to the application, filed by the Respondent No. 1 under Section 148 CPC, I must observe that, it does not at all furnish sufficient cause for extension of time. In Para 4 of this application,' Respondent No. 1 asserts that he contacted the petitioners with a request to accept the decretal amount of Rs. 1,55,00,000/- but they after promising to ' receive the amount, refused to receive the same, a day before filing of this petition. This assertion of the Respondent No. 1 is negated by the conduct of the parties apparent on the face of the record. The petitioners had given a telegraphic notice to the Respondent No. 1 requiring him to make the balance payment in terms of agreement dated 5.1.2000, but he did not respond and instead thereof filed a suit for specific performance, wherein again, they, on 9.9.2000, filed an application showing their willingness to accept the payment under the agreement but Respondent No. 1 kept on delaying the matter of payment by requesting the Court to give him time for filing the reply to the application and then moved another application for amendment of the plaint and lastly could not make the payment under the decree dated 28.2.2001 inspite of a sufficient time of two months fixed by the decree and still awaited for another year after passing of the decree, to move application for extension of time. If at all the jurisdiction under Section 148 CPC vested in the trial Court that was to be exercised judicially by comprehending the entire dispute between the parties and could not have been invoked arbitrarily or fancifully, taking away the valuable rights, which had accrued to the petitioner by lapse of time (almost a year). On this score, as well, I am of the considered view that order extending time, which otherwise is without jurisdiction, as observed above, is not sustainable at law.

2. From what has been discussed above, I conclude that the j learned Civil Judge was not equipped with any jurisdiction to extend the time for deposit of money under a decree, on the force of which, suit of the respondent has already been dismissed and there was nothing pending before the learned Civil Judge to invoke the provisions of Section 148 CPC. Order dated 25.3.2003 passed by the learned Civil Judge, extending time for deposit of money under the decree dated 28.2.2001 is unlawful, without jurisdiction and void, thus, the same is set aside. This Civil revision succeeds and application, filed by the respondent on 29.3.2002, praying extension of time for deposit of remaining sale price is dismissed with costs.

(A.A) Revision accepted.

PLJ 2004 Lahore 377

Present: muhammad muzammal khan, J. GHULAM ZAINAB and another-Petitioners

versus

SAID RASOOL and 8 others-Respondents C.R. No. 1542 of 1996,-decided on 17.10.2003: Gift-

—- Petitioners claimed ownership of land in question through oral gift purportedly made by their mother in their favour excluding their sisters-Quantum of proof-Alleged gift was not reduced to any kind of writing and was not even reported to revenue officials-Person claiming gift was required to prove same even if same was effected through registered gift-deed-Witnesses produced to prove gift had not given time date or place of making of gift by donor and had not explained occasion on which such declaration was made by donor and how witnesses were happened to be present at that time-Gift in favour of petitioners was thus, not proved-Judgment and decree of Appellate Court to that effect being strictly in accordance with evidence, no interference was warranted therein.

[Pp. 379 & 381] A & B

1991 SCMR 2300; PLD 1994 SC 245 and NLR 1995 CLJ 147, ref. Rana Muhammad Sarwar, Advocate for Petitioners. Date of hearing : 17.10.2003.

order

This civil revision assails judgment and decree dated 10.3.1996 passed by the learned Additional District Judge, Kalurkot, accepting appeal of Respondent No. 1 and dismissed suit of the petitioners by reversing judgment and decree dated 27.9.1995 passed by the learned trial Court.

2.A short factual background of the case is that one Mst.Sahib Khatoon wife of Jam Ali was owner in possession of 120 kanals of land allotted to her in Chak No. 3 (Rakh Rulay Wala) Tehsil and District Bhakkar, under Chashma Barrage Scheme vide Mutation No. 43 sanctioned on 21.11.1989. She had five daughters, out of whom two namely, Mst.Ghulam Zainab and Mst. Alam Khatoon, claimed an oral gift of the entire land, in their favour as their mother Mst, Sahib Khatoon, was claimed to be living with them throughout her life. These two daughters of Mst. Alam Khatoon filed a suit for permanent injunction against their sisters and descendents of sisters, who had died, raising their title on the basis of above- mentioned oral gift by Mst. Sahib Khatoon and claimed therein that they are owners in possession of the land and had also paid all the installments and dues which were payable against the land allotted to their mother and thus prayed that respondents should not interfere in their possession.

1. Respondent No. 1 besides resisting suit by the petitioners by filing written statement, filed a separate suit for declaration, wherein Ghulam Rasul and Ghulam Muhammad respondents were also defendants- to the effect that he is owner in possession of the suit property on the basis of an agreement of Hiba dated 1.7.1974. This suit was resisted by the petitioners on the similar basis, as urged by them in their plaint.

2. Both these suits were consolidated by the learned trial Court and consolidated issues were framed, whereover parties were required to lead their evidence in support of their respective stances. Learned trial Court after recording of evidence on the eight issues framed by it, on 27.9.1995 decreed the suit filed by the petitioners and dismissed the suit of Respondent No. 1.

3. Respondent No. 1 feeling aggrieved of dismissal of his suit and decree in favour of the petitioners, filed two separate appeals before the learned Additional District Judge, Kalurkot, who vide his judgment and decree dated 10.3.1996 accepted Civil Appeal No. 122/1995, reversed findings of the learned trial Court on Issue No. 4 and dismissed the suit of the petitioners. Learned Additional District Judge simultaneously through a consolidated judgment, dismissed Civil Appeal No. 321/1995< filed by Respondent No. 1 affirming judgment and decree dismissing his suit by the learned trial Court, Respondent No. 1 has not further come up before this Court to challenge the judgment and decree of the Appellate Court, passed in Civil Appeal No. 321/1995 and .thus to his extent concurrent judgments of the two Courts below, refusing to accept his claim on the basis of gift by an agreement dated 1.7.1974 stands concluded and only issue with regard to gift in favour of the petitioners remains alive as they have filed the revision petition in hand, assailing the above referred judgment and decree.

4. Learned counsel for the petitioners submits that oral gift in favour of the petitioners was proved on the file and thus the Appellate Court has incorrectly dismissed their suit, by reversing a well-reasoned judgment. He further submits that other daughters of the donor except Mst. Amir Khatoon had given concurrence to the gift and this admission goes a long

way to support stance of the petitioners. It has also been contended by the learned counsel for the petitioners that earlier petitioners' suit for permanent injunction was decreed against Respondent No. 1 and that decree till today remains intact. He then referred to the decision by the Assistant Commissioner dated 12.4.1993, whereby "Supurdari"of the crops was decided in favour of Mst. Ghulam Zainab, one of the petitioners. He further elaborating his submissions stated that tenant of the land in question has also supported the claim of the petitioners of gift, by making a statement in Court, who though was not examined as a witness, but made a statement in presence of the respondents that he is tenant, under the petitioners. This tenant (Sher Muhammad) is also claimed to have sworn an affidavit with regard to his status of tenant under the petitioners. Learned counsel further argued that suit of the petitioners was decreed by the learned trial Court, whereagainst, none-else filed appeal before the Appellate Court except Respondent No. 1 and thus all the other sipt?rs of the petitioners accepted the decision and indirectly have given consent to the gift in favour of the petitioners. He adds that the petitioners' witnesses -who deposed regarding the factum of gift in their favour, the respondent did not cross-examine them on that point and under law their statements to that extent, will be deemed to have been admitted. In this behalf he referred to the case of Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi (1991 SCMR 2300). In the last, he submits non-attestation of mutation in favour of the petitioners carries no weight, as mutation is not a document of title and is sanctioned only for fiscal purposes. In this behalf he referred to the judgment given by the Honourable Supreme Court of Pakistan in the case of Muhammad Ali and 25 others vs. Hassan Muhammad and 6 others (PLD 1994 S.C. 245).

1. I have considered the arguments of the learned counsel for the petitioners and have examined the record appended with this petition, with his assistance. Precise dispute in the case in hand is whether Mst. Sahib Khatoon wife of Jam Ali, mother of the petitioners, did make gift of her land in favour of the petitioners through an oral transaction. Petitioners, who claim title on the basis of an oral gift, with was not reduced to any kind of writing, was not reported to any of the revenue officials and no mutation on the basis thereof was sanctioned, were required to prove it, by cogent and solid evidence because it is now settled that in case of gift even through a registered gift-deed, beneficiary is to prove independent of the deed, transaction of gift, as a fact and if any precedent is needed in this behalf, we again have a support from the case of Zafar Iqbal etc. vs. Yaqoob etc. (NLR 1995 CLJ 147). Comparing the case of the petitioners in whose favour there is no document of any kind to support the gift, with the persons getting title out of registered gift-deeds, petitioners stand on a much weaker wicket and keeping in view this fact, their evidence will be scanned, inspite of my handicap to do so in revisional jurisdiction because learned counsel for the petitioners submitted that the alleged transaction, in favour of the petitioners, is proved on the file. Petitioners produced PW. 3 Zia Ullah Khan

son of Aslam Khan and PW. 4 Mubarak Khan son of Muhammad Khan. PW. 3 deposed that Mst. Sahib Khatoon was an owner of 120 kanals of land, which was in her possession, and she lived with her daughters Mst. Ghulam Zainab and Mst. Alam Khatoon. He further deposed that Mst.. Sahib Khatoon in lieu of services rendered by the petitioners to the donor gifted her land in their favour and directed one Ghulam Rasul, her attorney, to convey to the tenant that in future, share of produce should be given to the petitioners. A similar statement was made by PW. 4. Both these witnesses have not given time, date or place of making of gift by the donor and have not explained the occasion on which such declaration was made by the donor and how these witnesses happened to be present at that time. PW. 3 has named Mubarak Khan son of Muhammad Khan and Ghulam Rasul son of Raza Muhammad besides the parties to the suit, who were present at the time of making of the gift by Mst. Sahib Khatoon, whereas PW. 4 has named Mubarak Khan, Ghulam Rasul and another Raza Muhammad to be present at the that time, but out of these named persons only Mubarak Khan and Ghulam Rasul were produced to prove the alleged transaction and rest of them were withheld. PW. 5 Ghulam Rasul has simply deposed that since Mst. Sahib Khatoon was living with the petitioners, she made gift in January, 1989 in favour of the petitioners and died after four months of period. From this narration of evidence produced by the petitioners, it is clear that they failed to prove time, date or place of gift in their favour. Though learned counsel for the petitioners has attempted to show that from cross-examination of these witnesses, one can determine the time and day of the gift, but in absence of any such assertion in the plaint, some fake assertions in cross- examination, which also do not specify the time and day of gift, the transaction of gift is not proved.

1. It is in the evidence that other sisters of the petitioners were living in some other village and were not on good relations with the donor. Any decision in injunction suit or "Supurdari" matter, as relied by the learned counsel for the petitioners, to which they were not party, does not, ipso facto, prove the transaction of gift. Similarly concessional written statement by two of the sisters, in presence of contesting written statement by one sister of the petitioners would not make a non-existant gift, lawful. File in hand is absolutely thirsty of proof regarding the transaction of gift having in fact been made by the donor. There is no explanation, worth the name, as to why the transaction of gift was not brought into black and white, especially when the petitioners were aware that there are other heirs, as well, of the donor who will claim inheritance in her estate in case of her death. Petitioners have not at all bothered to report gift in their favour, at the time of its making or thereafter or even before filing their suit in 1991, to the revenue functionaries who are bound to incorporate such transaction under the provisions of Land Revenue Act, 1967. It is not shown why the donor lady was not carried before the revenue officer for attestation of mutation who, according to the witnesses of the petitioners themselves, is stated to have died just after four months of the alleged gift.

2. Adverting to the argument of the learned counsel for the petitioners that PWs. 3 to 5 were not cross-examined on the facts deposed by them in their examination-in-chief, touching gift in favour of the petitioners. I find that though this submission is not correct, yet any lapse in cross- examination would not make the petitioners owner of the land, without proof of any lawful transfer in their favour. Likewise his submission that since mutation is not a document of title and is entered only for fiscal purposes, has no much strength in it because had the petitioners got the mutation sanctioned or reported the matter to the revenue authorities, it would have been a strong circumstance in support of the transaction claimed by them.

3. No doubt that except Respondent No. 1, no one else challenged before the Appellate Court decree in favour of the petitioners but the Courts cannot act as silent spectators and are not meant to see acts which never happened. I am mindful of the fact that the case in hand relates to a far flung area of which people do not have much means to contest the protracted litigation, thus non-filing of appeal by any of the heirs -before the Appellate Couit has no much Peflexes because decree in their favour was rightly annulled by the Appellate Court on appeal of Respondent No: 1 and I exercising my revisional and supervisory jurisdiction, cannot contribute to' an illegal act, as committed by the learned trial Court.

4. From what has been discussed above, I am of the affirmed opinion that gift in favour of the petitioners was not proved and thus judgment of the Appellate Court is strictly in consonance with the evidence on the file. The Appellate Court has not transgressed its jurisdiction as it has given lawful reasons for arriving at a just and lawful decision without committing any illegality or irregularity. This revision petition, having no substance in it, is accordingly dismissed, in lirnine, with no order as to costs.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 381

Present: SYED JAMSHED ALI, J.

SALMAN ZAFAR (MINOR) through his Mother-Petitioner

versus

AITCHISON COLLEGE through the SECRETARY, BOARD OF GOVERNORS, LAHORE and 3 others-Respondents

W.P. No. 14113 of 2003, heard on 20.11.2003.

(i) Constitution of Pakistan (1973)--

—Art, 199—Education institutions—Admission to "A" Level by Aitchison College-Petitioner as well as respondent candidate did not fulfil admission criterion, however, respondent was admitted while petitioner

was not admitted although both had 8A's in two attempts while requirement for admission was 7A's in one attempt-Directive of Chairman of Board of Governors of College according to which student of sister institution was to be preferred was neither backed by Admission Policy nor prospectus-Mere fact that particular institutions had been declared as autonomous bodies under education department of government was not by itself sufficient to entitle their students to any preference, over other candidates in matter of admission to Aitchison College wherein admission can -only be regulated by Prospectus and Admission Policy duly framed. [P. 385] A & B

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

—-C.VII, R. 7-Constitution of Pakistan (1973), Art. 199-Applicability to Civil Procedure Code to proceedings in writ petition-Court's power to grant relief-Court having jurisdiction to adjudicate upon a matter, has power to mould relief according to circumstances of case even if such relief has not been expressly claimed, if dictates of justice so demand, provided relief to be given is within compass of jurisdiction of Court- Principle of such rule of G.P.C. was equally applicable to proceedings in writ jurisdiction. [P. 387] C

(iii) Constitution of Pakistan (1973)--

—Art. 199-Educational Institutions-Admission to "A" level of Aitchison College-Petitioner's claim that he had better merit than respondent and was entitled to admission was not acceptable in as much as, College Authorities were the best judge of merits of two competing candidates- Admission of respondent was declared to be without lawful authority and of no legal effect and case was remanded to Principal of the college for considering petitioner and respondent for admission to "A" level by applying objective criteria and pass speaking order—Principal of the college while exercising authority which is parental in nature, would not be influenced by the fact that petitioner had agitated matter before Court- Respondent Authority was directed to pass order within 10 days from date of production of copy of order of Court before him. [P. 387] D

1991 SCMR 320; 1982 SCMR 549; PLD 1964 SC 673;.PLD 1970 SC 1; PLD 1961 SC 1; 1994 SCMR 2213; PLD 1989 Karachi 404 and PLD 1990 Lahore 121 ref.

Mr. M. Saleem Sahgal, Advocate for Petitioner.

Mr. Abbas Mirza, Advocate for Respondents Nos. 1 & 2.

M/s. Hamood-ur-Rehman and Ali Asghar Syed, Advocates for Respondent No. 3.

Mr. Zia Khan, Advocate for Respondent No. 4. Dates of hearing : 19.11.2003 & 20.11.2003.

judgment

The case of the petitioner is that he had 8 As.in 'O' Level from the Lahore Grammar School. He applied for admission in 'A' Level classes in the Aitchison College but it was declined to him vide letter dated 1.9.2003 which reads as follows:—

"I am sorry to inform you that your application cannot be considered for admission to 'A' Levels as the number of applications was very large and we have a limited number of places. We.have given preference to those who have met our criteria in a single attempt (underlining is mine)."

1. In the report and parawise comments submitted by the Principal of the Aitchison College, it has been stated that the College had received 71. applications for admission to 'A' Levels Classes out of which 51 boys were denied admission, 6 did not turn up and 14 boys were admitted. The list of the admitted candidates was enclosed with the comments. It is further reported that special consideration was given to the candidates from "sister institutions" such as the Lawrence College Ghora Gali & Cadet College Hassan Abdal where 'A' Level facilities are not available and the said consideration was for those candidates who had passed '0' Level.in two attempts, however, the final selection depends on the interview with the Academic Council. It was further stated that criteria of admission was a minimum of 7 As in one attempt.

2. Perusal of the list of admitted candidates produced on the record shows that Muhammad Umar Farooq, who had 6 As in first attempt and Muhammad Umar Aqeel, who had 7 As, in the first attempt were among the admitted candidates. Writ petition was originally filed against the Aitchison College and the Principal of the said College. However, after submission of the report and parawise comments, the petitioner sought amendment of the writ petition by impleading aforesaid Muhammad Umar Farooq and Muhammad Umar Akeel. The amendment was allowed and the aforesaid two candidates were arrayed as Respondents Nos. 3 and 4. Through the amended petition admission of the Respondents Nos. 3 and 4 has also been assailed on the ground that Respondent No. 4 had lessor merit in as much as that he had 7 As in 'O' Level while the petitioner was discriminated against, as far as Respondents Nos. 3 is concerned. The list of admitted candidates shows that Respondents Nos. 3 had 8 As in two attempts with 6 'As' first attempt. As for as Respondent No. 4 is concerned he had 7 'As' in first attempt.

3. The learned counsel for the petitioner submits that since Respondent No. 3 did not have 7 As in the first attempt and had 8 As in two attempts, his case was at par with the case of the petitioner. As far Respondent No. 4 is concerned, he maintains that while the petitioner had 8 'As' in 'O' Level and all in grade (a), the said respondents had 7 'As'. He

invited my attention to the prospectus of the Aitchison College. Under the head "Re-admission", it is provided as follows:--

"Once a boy appears for 'O' Level examination, he is automatically .withdrawn from the College. His return to College is determined by the academic standards required for re-admission and his record of past behaviour."

His precise contention is that a boy, who had passed '0' Level examination even from the Aitchison College has to compete with others for admission to 'A' Level and, therefore, there was no occasion for giving preference to the students of the so called "sister institutions" like Cadet College, Hassan Abdal and Lawrence College, Ghora Gali. Therefore, if the admission Policy required 7 'As', preferably in first attempt, could- be relaxed in case of Respondent No. 3, the petitioner with 8 As was also entitled to be treated in the like manner and no preference could be given to Respondent No. 3. It is also contended that preference to a candidate with equal merit from other institutions was against the equality clause of the constitution.

1. On the other hand the learned counsel for .Respondents Nos. 1 and 2 submits that the Governor of the Punjab is also the Chairman of the Board of Governors of Cadet College, Hassan Abdal, Lawrence College, Ghora Gali and Sadiq Public School Bahawalpur, and under his directive- preference is being given to the students of the aforesaid Colleges. It was contended that the petitioner had 2 'As' in first attempt and 6 'As' in second attempt while Respondent No. 3 had 6 As in the first attempt while Respondent No. 4 had 7 As in first attempt.

2. Learned counsel for Respondents Nos. 3 and 4 have also strenuously opposed this petition. The learned counsel for Respondent No. 3 maintains that although Respondent No. 3 has been arrayed as a respondent but no relief has specifically been claimed against the said respondent and since there is no seat for admission in 'A' Level, the prayer of the petitioner can not be granted unless the admission of Respondent No. 3 was set aside. This contention is supported by Prof. Muhammad Usman and others Vs.Punjab University Academic Staff Association and another (1991 SCMR 320), similar view was taken in Akhtar Abbas and others Vs. Nayyar Hussain(1982 SCMR 549). In the said cases it was observed that the relief to be granted in a constitution petition must be confined to the prayer made. The learned counsel for Respondent No. 4, contended that in accordance with the Admission Policy, he had 7 'As' in the. first attempt and, therefore, no exception could be taken to his admission.

3. Controverting the objection of the learned counsel for Respondent No. 3. learned counsel for the petitioner relied on Saiyyid Abul A'laMaudoodi, Misbahul Islam Farugi and Umar Farooq Vs. The Government of West Pakistan and another (PLD 1964 S.C. 673) to contend that this Court is competent to grant such relief as is available to the petitioner on the facts

found by this Court and in any case the alternate prayer in the writ petition for any other appropriate relief which the Court may deem fit in the circumstances covers the relief of annulment of admission of Respondent No. 3. He further submits that by virtue of the decision of the Hon'ble Supreme Court in Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 S.C. 1) Civil Procedure Qo.de is applicable to writ jurisdiction and, therefore, the Court has ample powers to grant proper relief.

1. I have considered the submissions made by the learned counsel for the parties. As far as Respondent No. 4 is concerned his admission was in accordance with the Admission Policy as he had 7 'As' in the first attempt in 'O' Level. Therefore, to his extent the petitioner has no case.

2. However, as far Respondent No. 3 is concerned he had 8 'As' in two attempts which included 6 'As' in first attempt while the petitioner had also 5 'As', although he had 2 'As' in the first attempt. The criterion for admission in 'A' Level, according to the Admission Policy, is 7 'As' preferably in the first attempt. The petitioner as well as Respondent No. 3 did not fulfill the said admission criterion. The question, therefore, was whether Respondent No. 3 could be preferred for admission as against the petitioner only tor the reason that the said respondent belonged to the Cadet College, Hassan Abdal. The directive of the Chairman of the Board of Governors of the Aitchison College is neither backed by Admission Policy nor the Prospectus. The Prospectus shows that' for re-admission even the Aitchisonians are not entitled to any preference. In view of the aforesaid rule in the Prospects, there was hardly any scope to give preference to candidates belonging to any "sister institution" and all candidates had to compete on the basis of merit alone. Although, grant of preference to the students of the Cadet College, Hassan Abdal, Lawrence College, Ghora Gali or Sadiq Public School, is not backed by the Admission Policy or the Prospectus, even if it was there, it could only be saved if it was based on reasonable classification. When questioned as to what was meant by the "sister institutions" the learned counsel for Respondents Nos. 1 and 2 referred to Schedule 1 of the Rules of Business of the Govt. of the Punjab. Column 4 of the said Schedule gives out the, list of autonomous bodies. Apart from a number of other autonomous bodies, the Cadet College, Hassan Abdal, Lawrence College, Ghora Gali, Sadiq Public School, Bahawalpur and Aitchison College, have also been shown as autonomous bodies under the Education Department. The mere fact that these four institutions have been declared as autonomous bodies under the Education Department of the Govt. of the Punjab is not by itself sufficient that a student of Cadet College, Hassan Abdal, Lawrence College, Ghora Gali or Sadiq Punjab School, Bahawalpur is entitled to any preference, over other candidates in the matter of admission to the Aitchison College. All these are public institutions and admissions therein can only be regulated by the Prospectus and the Admission Policy duly framed.

3. The question which, however, survives for consideration is as to the relief to which the petitioner is entitled to. The case of Akhtar Abbas, supra, arose out of a settlement matter in which the order of Additional Rehabilitation Commissioner, which was not challenged in the writ petition, was quashed and with reference to the facts of the said case the observation relied upon by the learned counsel for Respondent No. 3 was made by the Hon'ble Supreme Court. In the case of Professor Muhammad Usman and others, supra, allotment made in favour of Professor Muhammad Usman was not challenged before the High Court but it was set aside and the Hon'ble Supreme Court interfered. In the said case, the case of AkhtarAbbas, supra and AG. Khan Vs. Shuja-ud-Din Qureshi and others (PLD 1961 S.C. 1) was noted. Before proceedings further with the examination of the other judgments bearing on the controversy, it may be noted at the out set that a precedent is to be understood and applied in the context of facts of a particular case as observed by the Hon'ble Supreme Court in Trustees ofthe Port of Karachi Vs. Muhammad Saleem (1994 SCMR 2213). Explaining, the scope of grant of relief in constitutional jurisdiction the Hon'ble Supreme Court in the case of Pakistan through Secretary National Assembly, supra,the Hon'ble Supreme Court made the following observations:--

"It is of the very essence of judicial proceedings that the relief to be granted should follow as a legal result from the right alleged and found. The error in the proceedings is therefore, fundamental where the relief granted is different from the one prayed and flows not from the right alleged but from a right which has not been pleaded and as to which the Court has never heard the parties. This is true in all proceedings but moreso in proceedings for prerogative writs where the Court does not generally act ex debito justitiae but confines the petitioner to a specific right and a specific relief."

1. The question as to the scope of powers of the Court to grant relief in exercise of extra ordinary jurisdiction also came before a bench of five Hon'ble Judges of the Hon'ble Supreme Court in the case of Saiyyid Abul' Ala Mudoodi, supra, in which the following observations were made:-

"I also find no difficulty in granting relief because of any defect in the form of the prayer in the petition. The prayer as framed in the petition is sufficiently wide and, in any event, the Court is not powerless to grant the relief that the justice of the cause requires to the same extent as if it had been asked for."

"Reference may also be made to Ittefaq Foundry Vs. Federation of Pakistan (PLD 1990 Lahore 121) in which the following observations were made:--

'.'Technicalities cannot prevent this Court from exercising the constitutional jurisdiction and affording relief which otherwise petitioner is found entitled to receive."

In the case of Sharaf Faridi and 3 others Vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD. 1989 Karachi 404) a learned Full Bench of the learned Karachi High Court made the following observations:--

"However, there cannot be any doubt that a Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief according to the circumstances of the case, if dictates of justice so demand even if such a relief has not been expressly claimed provided the relief to be given is within the compass of the jurisdiction of the Court."

1. As per the rule laid down in the case of H'ussain Bukhsh, suprathe Code of Civil Procedure applies to the proceedings in constitutional

jurisdiction. It may be noted that according to the Order VII Rule 7 of the Code of Civil Procedure the relief claimed by the plaintiff in the suit shall be expressly stated but it is not necessary to ask for-general or other relief which may always be given as the Court may think just to the same extent as if had been asked for. The principle of the said rule, to my mind, is equally applicable to the proceedings in the writ jurisdiction.

1. From the perusal of the judgments noted above the ratio appears to be that the relief granted to the petitioner in a Constitutional petition should be founded on the pleadings, the other party had notice to

meet the case set up in the petition and the relief granted flows from the adjudication made by the Court. Perusal of the amended writ petition shows. that admission of Respondents Nos. 3 and 4 has specifically been assailed in this petition with a prayer for setting aside the letter dated 1.9.2003 whereby admission was declined to the petitioner with a further prayer to allow admission to the petitioner. In view of the fact no seat is available for accommodating the petitioner, the relief to which he is entitled to can only be granted, if the admission of Respondent No. 3 is set aside and the matter of admission of petitioner and Respondent No. 3 is reconsidered.

1. Perusal of the impugned letter dated 1.9.2003 shows that the

only reason to refuse admission to the petitioner was that preference is given to those, who met the criteria for admission in a Single attempt. Since both the petitioner and Respondent No. 3 were not eligible in accordance with the Admission Policy, and preference could not be given to Respondent No. 3 on the stated ground the comparative merits of the petitioner and Respondent No. 3 were required to be examined objectively. The contention of the learned counsel for the petitioner that the petitioner had (a) grade in all 8 'As', had thus, better merit than Respondent No. 3 and is entitled to admission is not acceptable because the College Authorities are the best Judge of the merits of the two competing candidates.

1. For what has been stated above, this writ petition is partly allowed, the admission of Respondent No. 3 is declared as without lawful authority and of no legal effect and the case is remitted to the Principal of the '

Aitchison College for considering the petitioner and Respondent No. 3 for admission in 'A' Level in the Aitchison College by applying objective criteria and to pass a speaking order. It is hoped that while exercising authority, which is parental in nature, the Principal of the College will not be influenced by the fact that the petitioner had agitated the matter before this Court. Respondent No. 1 is directed to pass an order within 10 days from the date of production of a copy of this order before Him. No order as to cost.

(A.A) Petition accepted.

PLJ 2004 Lahore 388 (DB)

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq and abdul shakoor paracha, JJ.

Mst. MAHMOODA BEGUM-Appellant

versus Syed HASSAN SAJJAD and 2 others-Respondents

R.F.A. No. 120 of 2001, heard on 11.11.2003. (i) Contract Act, 1872 (IX of 1872)--

—S. 5-Time when not of the essence of contract-In matter of immovable property time is never to be essence of contract-Merely because date antr time was fixed in contract for performance would not make time-essence of contract-Contract has to be performed in a reasonable time and further intention of parties has to gathered from attending circumstances of case as to whether they intended time to be of essence of contract.

[P. 392] A

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

—0. VI, R. 1-Pleading-Parties cannot be allowed to prove what had not been pleaded by them-Where however, a party had admitted a fact which has not been pleaded, opposite party would not be required to prove that fact. [P. 392] B

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

S. 55-Time fixed in contract for payment of consideration-Receipt of some amount by a party to contract after expiry of date fixed in contract for receipt of consideration-Time would not be deemed to be essence of contract not withstanding mentioning of date in agreement. [P. 393] C

(iv) Specific Relief Act, 1877 (IX of 1877)--

—-S. 42-Civil Procedure Code (V of 1908), S. 96-Decree for specific performance of agreement to 'sell-Validity-Trial Court decree plaintiffs suit by holding that time was not essence of contract on basis of evidence on record and attending circumstances of case, while dismissed defendant's suit on basis of the same evidence-Such finding of trial Court being in accordance with law and fact does not warrant interference and was maintained. [P. 394] D

PLD 1962 SC 1; PLD 1973 SC 39; 2000 YLR 398 and PLJ 2001 Lahore 462, ref.

Rana Mashood Ahmad Khan, Advocate for Appellant.

Mr. Habib-ul-Wahab-ul-Kheri, Advocate for Respondent No. 1.

Nemo for other Respondents.

Date of hearing : 11.11.2003.

judgment

Maulvi Anwar-ul-Haq, J.--This judgment shall decide RFA. No.

120 and RFA. 121 of 2001 as they proceed against common judgment of as learned Civil Judge, Islamabad.

1. On 12.11.1996 Respondent No. 1 filed a suit against the appellant and the remaining respondents. In the plaint it was stated that the appellant agreed to sell property mentioned in para-1 of the plaint, Respondent No. 1 executed agreement dated 25.6.1995. The possession of basement portion- was delivered to Respondent No. 1 on 25.8.1995. The total consideration was settled at Rs! 50,00,000/-. A sum of Rs. 10,00,000/- was paid as earnest while remaining Rs. 40,00,000/- were to be paid to the appellant at the time of

transfer of property which was settled at 15.8.1995 but later it was extended AtcTl5.10.1995. It was then stated that the appellant had assured Respondent No. 1 that she is exclusive owner of the property and would be responsible for removing hurdles in the way of transfer of property in favour of Respondent No. 1. However, it turned out that the property stood transferred jointly to the appellant and Respondent No. 2 and the CDA had not approved the sub division. An approval was accorded on 14.2.1996 whereby Portion No, 189/-A stood transferred to the appellant thus time was not essence of the contract and he is ready and willing to pay the balance amount. A notice was served but of no avail and besides a stay order also

--stands issued on the basis of some collusive proceedings. With these averments a decree for specific performance of agreement dated 25.6.1995 was sought. The suit was contested by the appellant who filed a written statement. The agreement and its execution was admitted. Delivery of possession of basement was admitted. It was however, stated that Respondent No. 1 had failed to pay the balance amount as promised by him on or before 15.8.1995. Regarding the proceedings by CDA it was stated that some formalities were to be completed and process was on. CDA also filed a written statement but it is neither here nor there. However, it has been reported that the property was jointly transferred and thereafter was subdivided in equal portion vide order dated 14.2.1996 of the CDA.

1. Now the appellant also filed a suit against the respondents on 23.12.1996. In this suit it was confirmed that the properly was jointly purchased by the appellant and Respondent No. 2 and that on 25.6.1995 the

appellant entered into an agreement to sell the house with Respondent No. 1 for consideration of Rs. 50,00,000/-. A sum of Rs. 10,00,000/- was paid as earnest. The basement was handed over while balance .amount was paid by 15.8.1995. The execution of the agreement in the said terms was also pleaded. It was complained that the respondent was bound to pay Rs. 40,00,000/- on or before 15.8.1995 but had failed to do so. Thereafter it-was stated that on the expiry of the date mentioned in the agreement to sell, for payment of balance amount, repeated demands were made on Respondent No. 1 to perform his part of the agreement and to pay the balance but he failed to do so. On 3.9.1995 a notice was served which was responded on 10.7.1996. It was stated that petitioner had not extended the period of payment and had not signed any such document. She accordingly forfeited the earnest and is entitled to recover Rs. 15,000/- per month for use and occupation of the said basement. She accordingly sought a declaration that the agreement dated 25.6.1995 stands rescined and for possession of the basement. This suit was also contested by Respondent No. 1 on the basis of his contentions in specific performance suit. Both the suits were consolidated and proceedings were conducted in the suit filed by Respondent No. 1 for specific performance of contract. Following issues were framed by the learned trial Court:--

1. Whether the suit titled Syed Hassan Sajjad Versus MehmoodaBegumis based on malafide intention and is not maintainable? OPD

2. Whether the suit titled Syed Hassan Sajjad Vs MehmoodaBegumhas been filed to black mail the defendant? OPD

3. Whether Syed Hassan Sajjad has no cause of action of file the suit titled Syed Hassan Sajjad Vs. Mehmooda Begum for' Specific Performance? OPD

4. Whether Syed Hassan Sajjad is entitled to get a decree for specific performance as prayed in the suit titled Syed Hassan

Sajjad Vs. Mehmooda Begum? OPP

1. Whether Mehmooda Begum has no cause of action to file the suit titled Mehmooda Begum Versus Syed Hassan Sajjad for declaration and permanent injunction? OPP

2. Whether Mehmooda Begum had no right to cancel the impugned agreement to sell? OPP

3. Whether suit titled Mehmooda Begum Vs. Hassan Sajjad for declaration and permanent injunction is frivolous and Syed Hassan Sajjad is entitled to special costs'U/S. 35-A CPC? OPD

4. Whether Mehmooda Begum is entitled to declaration, possession and permanent injunction as prayed in the plaint of suit titled Mehmooda Begum Versus Syed Hassan Sajjad? OPD

2004 Mst.mahmooda begum v. Syed hassan sajjad Lah. 391

(Maului Anwar-ul-Haq, J.)

1. Relief.

Evidence of the parties was recorded. Issues Nos. 1 to 3 were not pressed. Issue No. 4 was answered in favour of Respondent No. 1. Issue No. 5 was answered in favour of the appellant. Issues No. 6 was answered in accordance with Issue Nos. 4. Issues Nos. 7 and 8. were answered in the negative. The suit filed by Respondent No. 1 was accordingly decreed subject to deposit of balance amount of Rs. 37,00,000/-. The suit filed by the appellant was dismissed.

1. Rana Mashood Ahmad Khan, learned counsel for the appellant contends that a bare reading of agreement Exh. Pi would show that it was settled that balance amount shall be paid on or before 15.8.1995 and non­ payment of the amount was to result in forfeiture of earnest money and cancellation of the agreement and as such time was of the essence of the. contract. Learned counsel for the appellant further contends that although receipt of Rs. 3,00.000/- was admitted yet since respondent had not pleaded that the amount was paid towards performance of agreement, any evidence to the said effect could not have'been given. The precise contention is that evidence of Respondent No. 1 that he had paid Rs. 3,00,000/- in further performance of the agreement has been considered in violation of the principle of secundum allegata ad probata. According to the learned counsel a sum of Rs. 3,00,000/- was paid towards the value of furniture and fixture in the basement, the possession whereof was delivered to Respondent No. 1.

2. Mr. Habib-ul-Wahab-ul-Kheri, learned counsel for Respondent No. 1 supports the impugned judgment and decree in favour of his client with reference to evidence on record. According to the learned counsel for appellant had admitted the receipt of the said amount of Rs. 3,00,000/- and since no explanation was effered, it was to be deemed that the amount has been paid in performance of the agreement. Refers to the contents of notice issued by the appellant as also from the suit filed by her to assert that even in these documents the appellant has pleaded that she had been calling upon Respondent No. 1 to perform agreement even after the dated fixed in the agreement for payment. Learned counsel further refers to the evidence on record to demonstrate that it was admitted position that the appellant was not in a position to perform her part of the contract on or before 15.8.-1995.

3. We have gone through the learned trial Court record with the assistance of the learned counsel for the parties. It will be noted that most of the facts of this case are admitted, either in the pleadings or in the witness box. Now the admitted facts are that the appellant lady and Respondent No. 2 were joint allottees/transferees of the property in question. The appellant promised to transfer the half of the said property as described in the plaint and in the agreement vide agreement dated Exh. PI. Execution of this agreement with all its contents is admitted. It admittedly bears signatures of the appellant, her husband Muhammad Pervaiz Shah and Respondent No. I/plaintiff. Receipt of Rs. 10,00,000/- as earnest is admitted Receipt of

Rs. 3,00,000/- stands acknowledged vide Exh. P2 by husband and attorney of the: appellant as DW-1.

1. Now upon a plain reading of agreement Exh. PI it appears that time for performance of agreement was fixed as 15.8.1995 when the balance was to be paid by Respondent No. 1 to the appellant and property was to be transferred. It also contains the usual assurance of title of clear transferable title a-nd promised to remove any lacuna therein.

2. Now it is well settled that in the matter of immovable property time is never to be essence of a contract. Further reference be made to the cases of Abdul Hamid. v. Abbas Bhai-Abdul Hussain Sodawaterwala (PLD 1962 SO 1) and Seth Essabhoy. v. Saboor Ahmad (PLD 1973 SC 39), Another settled point is that merely because date and time is fixed in the contract for performance would not made the time essence -of the contract. Rule applicable is that contract has to be performed in a reasonable time and further intention of the parties had to be gathered from attending circumstances of the case as to whether they intended time to be of the essence of the contract Muhammad Ramzan. v. Assadullah (2000 YLR. 398).

3. Now applying the said test to the circumstances of the present case that emerged on record. Now it is true that there is no pleadings from either side regarding admitted fact that a sum of Rs. 3,00,000/- was paid to the appellant by Respondent No. 1, said fact stands admitted. Now the- document Exh. P2 was introduced in the statement of PW-1 i.e Respondent No. 1. Now he states that he paid Rs. 3,00,000/- towards consideration of the property videreceipt Exh. P2 which was signed by the appellant as well as her husband. Now the said statement was not questioned in the cross- examination. On the other hand, it was suggested to him that he had not paid the said amount of Rs. 3,00,000/- and that he had forged the receipt. Now Muhammad Pervaiz husband and attorney appeared as DW-1. In his examination-in-chief he did not utter a word about said payment of Rs. 3,00,000/-. He was cross-examined and confronted with Exh. P2. He admitted that Exh. P2 bears his signatures as also of wife.

4. Now learned counsel for the appellant is right that the parties cannot be allowed to prove what is not pleaded by them. However, in the instant case what has happened that the fact stands admitted by the appellant without any demur. Now we have already stated above that the fact was introduced in the statement of PW-1. It was not questioned in cross- examination or examination-in-chief of DW-1. While in cross-examination he admitted the document Exh. P2. Now a fact that has been admitted need not to be proved. As such Respondent No. 1 would not be required to prove said fact which has been admitted. Now the said admitted document shows that a sum of Rs. 1,00,000/- was paid on 24.12.1995 and Rs. 2,00,000/- oh 27.12.1995. It is being stated before us today that the amount was received towards fixtures in the basement. However, it was not suggested neither- DW-1 stated any thing to this fact while admitting P2 to PW-1/. Be that as it

may, we find that the case as to why the property was not transferred and payment was not made was put to Muhammad Pervaiz Shah D.W-1. He admitted the same without any demur. He admitted that Malik Man had filed a suit and obtained stay order against alienation of the property by the appellant. He admitted that subdivision application was filed on 10.10.1995 by the appellant and Respondent No. 2. He admitted that according to subdivision approved on 14.2.1996 Unit No. 189-A was allotted to the appellant. He then admitted that Malik Man had obtained stay order against CDA and because the same CDA could not transfer the property. Finally he admitted as follows:

He admitted that he had not given any intimaUon inwriting to Respondent No. 1 regarding the alleged cancellation of the contract.

1. It will thus be seen that it is the appellant's own case that even after the passage of date fixed in the agreement she insisted for performance. She in fact received part of consideration after the said date. She admitted the circumstances which constituted hurdle in her way to transfer the property and in any case ultimately sub-division was sanctioned in Feb. 1996. This has further to be seen in the light of admission made by the attorney of the appellant in the witness-box in the matter of performance of agreement and real intention of the parties as to at what point of time the balance amount of consideration was required to be paid. We accordingly do find that evidence on record does not suggest that the parties ever intended time to be of the essence of the contract, notwithstanding mentioning of the said date i.e.. 15.8.1995 in the agreement Exh. Pi.

2. Learned counsel for the appellant then with reference to the judgment in the case of Ch. Shah Muhammad and 6 others u. Muhammad Ishaq & 5 others (PLJ 2001 Lahore 462) argues that filing of the suit was delayed by Respondent No. 1 and in the meanwhile value of the property has enhanced and that following the said judgment we should enhance the amount of consideration. We do not find this contention to be tenable for the reason that substantial portion of the consideration amount was paid as earnest and major portion (the entire ground and first flour) remained in possession of the vendor. This being so, the case for enhancement of consideration is not made out. However, learned counsel's final contention is that it was own prayer of the Respondent No. 1 notwithstanding the payment of said amount of Rs. 3,00,000/: that a decree be passed on payment of Rs. 40,00,000/- which the Respondent No. 1 is ready to pay. Learned counsel relies-on Paras 2 and 4 of the plaint. We confronted Mr. Habib-ul-Wahab-ul-Khari, Advocate, particularly. when there is also reference to extension in the period of performance in the plaint. Learned counsel under the instruction from his client, Respondent No. 1, present in

person in Court states at the bar that his client is ready to deposit an additional amount Rs. 3,00,000/-, without prejudice to the merit of his case.

1. For all that has been discussed above, findings recorded by the learned trial Court on all issues are confirmed, and decree for specific performance of the agreement dated 25.6.1995 is upheld. However, Respondent No. 1 shall take all steps to made a deposit of Rs. 3,00,000/- in the trial Court within 30 days of this judgment. The amount so deposited under the decree of the Court, may be withdrawn by the appellant from the learned trial Court. The decree dismissing the suit filed by the appellant is also upheld. RFA No. 121/2001 is accordingly dismissed while RFA. No. 120/2001 is disposed of in terms stated above.

(A.A) Order accordingly.

PLJ 2004 Lahore 394 (DB)

Present: syed jamshed ali and muhammad ghani, JJ.

PROVINCE OF PUNJAB through DEPUTY COMMISSIONER FAISALABAD and another-Appellants

versus MUHAMMAD AKRAM and another-Respondents

R.F.A. No. 6 of 1993, heard on 28.10.2003. (i) Land Acquisition Act, 1894 (I of 1894)--

—-Ss. 9 & 25--Provision of S. 25(2), Land Acquisition Act 1894--Applicability- Acquisition of land-Land in question was clearly identified and land owners were directed to appear before collector on specified date and to submit their claim including claim for compensation—Award was announced some months thereafter, thus, land owners had adequate notice to appear before collector and lodge their claim for compensation • which they failed to lodge-Valid notice under Section 9, Land Acquisition Act 1894, having been duly served on land owners, provision of Section 25 of the Act was fully applicable. [P. 399] A

(ii) Land Acquisition Act, 1894 (I of 1894)--

—Ss. 9, 11 & 18--Claim for enhancement of compensation—Entitlement-­ Claim for compensation has to be made by interested landowners in response to notice under S. 9, Land Acquisition Act 1894, which is subject matter of determination in inquiry under S. 11 of the Act and ultimately by Court under S. 18 of Land Acquisition Act 1894-Unless omission to prefer claim for compensation was condoned by Court, interested land owners cannot seek enhancement of compensation exceeding amount awarded by Collector. [P. 402] B

(iii) Land Acquisition Act, 1894 (I of 1894)--

—-Ss. 9, 11 & 18-Enhancement of Compensation by Reference C,ourt~- Legality-Record indicated that land owners did not prefer any claim before Collector in response to notice under S. 9, Land Acquisition Act, 1894-Effect of such omission was pure question of law going to root of jurisdiction of Referee Court to enhance compensation—Enhancement of compensation by Referee Court was thus, not warranted. [P. 402] C

(iv) LandAcquisition Act, 1894 (I of 1894)--

—Ss. 9, 11 & 18-Enhancement of compensation by Referee Court-Legality- -Referee Court while making award did not consider evidence on record and solely relied upon estimated cost by Board of Revenue which was only tentative—Adequate evidence, however, was not otherwise available to render satisfactory judgment-Impugned judgment and decree of Referee Court whereby compensation was enhanced without taking into consideration material on record was set aside and case was remanded to Referee Court for fresh decision in accordance with law—However, question of grant of compensation in excess of amount granted by Collector would only arise if Referee Court was satisfied that there was sufficient reason within contemplation of S. 25(2) of Land Acquisition Act 1894 for land owners not to have claimed special amount of compensation under S. 9 of Land Acquisition Act 1894-Parties would be allowed opportunity to produce further evidence. [P. 404 & 405] D & E

PLD 1966 Peshawar 193; 2002 SCMR 407; 1985 SCMR 45; 1985 SCMR

1181; AIR 1936 Lahore 733; 1987 SCMR 2084; 1997 SCMR 1670; AIR

1964 Punjab 68; ILR (1955) Trav Co. 174; 12 CWN 263; ILR 33 All 376;

ILR 37 All. 69; AIR 1917 All 52; AIR 1927 All 183; ILR 7 Lahore 416; AIR

1926 Lahore 401; 1930 M.W.N. 373 and AIR 1930 Made 618 ref.

Ch. Aamar Rehman, Addl. A.G. for Appellants. Mr. Zain-ul-Abidin Syed, Advocate for Respondents. Date of hearing : 28.10.2003.

judgment

Syed Jamshed Ali, J.--The judgment and decree dated 28.9.1992 passed by the learned Senior Civil Judge, Jhang have been assailed in this appeal which arises out of the following circumstances.

1. Land measuring 100 kanals and 5 marlas was acquired for construction of Khairwala Main Drain in village Jhang Chak Shamali, Tehsil and District Jhang. This included land measuring 14 kanals 4 marlas of Respondent No. 2, land measuring 1 kanal 8 marlas exclusively owned by Respondent No. 1 and land measuring 60 kanals 9 marla.s owned by Respondent No. 1 and his brother Bashir Ahmed in equal shares. Said Bashir Ahmed did not claim any reference. These details have been taken from the notices issued under Section 9 to the respondents. Notification

nder Section 4 of the Land Acquisition Act (No. I of 1894) was issued on .12.1981 as stated by the learned counsel for the parties. However, the date oted in the award is 3.6.1981. The learned counsel for the respondents xplained that it was vide the corrigendum notification dated 3.12.1981 that le land of the respondents were included in the notification under ection 4. The award was announced on 2.6.1987. The learned Land Acquisition Collector assessed the Nal Chahi Land @ Rs. 11,000/- per acre rhile the Banjar CJadeem land was assessed at the rate of Rs. 5,500/- per ere. 15% compulsory acquisition charges and 8% compound interest was Iso granted to the respondents. Feeling aggrieved, the two respondents lade a reference application under Section 18 of the. Land Acquisition Act 894 to the Collector with regard to the quantum of compensation on which tie matter was referred to the Civil Court. In the said application they laimed compensation at the rate of Rs. 46000/- per acre which was the stimated cost approved by the Board of Revenue. Parties led their evidence i support of their respective contentions. The Reference was answered by he learned trial Judge, vide his judgment dated 28.9.1992. The letter dated 5.5.1985 (Exh. A/2) of the Board of Revenue determining the estimated ost of the land in dispute as Rs. 46,000/- per acre was relied upon. This udgment has been assailed in this appeal.

1. The learned Additional Advocate General appearing for the .pellant contends that Respondents Nos. 1 & 2 had duly been served totices under Section 9 of Act I of 1894 but did not make any claim for ompensation before the learned Land Acquisition Collector and, therefore, ly virtue of Section 25(2) of the Act I of 1894, the referee Court could not lave granted compensation higher than the compensation determined by the earned Land Acquisition Collector. Reliance was placed on Collector,eshawar District vs. Sher Ahmad Khan and others (PLD 1966 (W.P.) eshawar 193). His next contention is that approval of estimated cost by the 3oard of Revenue is only tentative but instead of considering the evidence roduced in the case, the learned trial Court abdicated its jurisdiction in avour of the estimated cost approved by the Board of Revenue. His next grievance is that the evidence produced in the case was not at all considered. 3e next submits that the compound interest could not have been granted on the compensation awarded by the learned referee Court.

2. On the other hand, the learned counsel for the respondents naintains that the objection based on Section 25 of Act I of 1894 not having Deen raised before the learned referee Court, cannot be entertained for the "irst time by this Court. He, however, maintains that by virtue of reference ipplication under Section 18, requirements of Section 25(2) of the Act (I) of 1894 were adequately satisfied. He submits that Section 23 provides for guidelines for determination of compensation and read with Section 15, it is within the jurisdiction of the referee Court to determine compensation even if it was not claimed before the Collector in response to notice under Section 9 of the Act. As far as the merits of the controversy are concerned, he

strenuously relied on Exh. A/1 (the average sale price) according to whic the sale price preceding one year from the date of Notification of Section for Sakni and agricultural land collectively was Rs. 69,465/60 per acre. H contends that AW-1 appeared and duly proved the statement prepared V. him on the basis of the revenue record. Reliance was also placed on th testimony of the AW.2, according to which, his land in the same revem: estate was acquired and he was paid a compensation of Rs. 50,000/- per acr He maintains that in view of the evidence produced in the case, the learne referee Court was fully justified to act upon Ex. A/1. As far as, mutatior (Ex. R. 6 to Ex. R. 10) produced on behalf of appellants are concerned, r. contends that no person was examined to prove the contents thereof an these were not mentioned in the list of reliance. According to him thes mutations were hardly sufficient to determine the market value of th property on the date of Notification under Section 4. He places reliance o Muhammad Saeed and others us. Collector; Land Acquisition and otht (2002 SCMR 407) to highlight the principles to determine compensatio payable to the land owners which, inter alia, include unrebutted evident inflation, price-hike etc.

1. The submissions made by the learned counsel for the parties has been considered and the evidence produced in the case has been examinee On behalf of the respondent-land owners Muhammad Akram appeared AW-3: The Patwari was examined as AW.l while on Muhammad Siddiqv was examined as AW.2. Documents Ex. A.I and A/2 were also placed on record. On behalf of the appellants notices issued under Section 9 of Act I 1984 were placed on record as Ex."R-l, R/2, R/3 and notice issued by learned Land Acquisition Collector for the date of announcement of award on 2.6.1987 was produced as Ex. R.4. Declaration under Section 6 the Act, 1894 which was published in the official Gazette on 9.9.1985 we exhibited as Ex. R.5. Exh. R/6 to R/10 are five mutations of sale. No othe evidence was produced by the parties.

2. It will be of an advantage to reproduce Section 25:--

"25. Rules as to amount of compensation.--(I) When the applicai has made a claim to compensation, pursuant to any notice give under Section 9, the amount awarded to him by the Court shall exceed the amount so claimed or be less than the amount awarded Ithe Collector under Section 11. (The underlines were omitted West Pakistan Ordinance No. 49 of 69).

(2) When the applicant has refused to make such claim or omitted without sufficient reason (to be allowed by the Judge) 1 make such claim, the amount awarded by the Court shall in no cas exceed the amount awarded by the Collector.

(3) When the applicant has omitted for a sufficient reason (to allowed by the Judge) to make such claim, the amount awarded

him by the Court shall not be less than, and may exceed, the amount awarded by the Collector." .

1. The provisions of Section 25(2) of the aforesaid section show that claim to compensation is required to be made before the Collector pursuant to the notice given under Section 9, failure or omission to make a claim for compensation before the learned Collector entails penal consequence i.e. that compensation to be awarded by the Court, shall in no case exceed the amount awarded by the Collector unless the Court permits to raise the claim before it for a sufficient reason. Provisions of sub-section (3) of Section 25, however, empower the Court to grant higher compensation than the compensation awarded by the Collector, but it is also subject to the condition that the omission to prefer claim before the Collector is condoned by the Court for a sufficient reason. The claim contemplated by Section 25 is before the stage of reference by the Collector under Section 18. Merely because the referee Court entertains the reference and proceeds to decide it, it cannot be presumed that the Court had condoned the default under section 25(2). The provision is expressed in nagative terms and on the basis of the language employed it is to be construed as mandatory, subject to the powers of the referee Court to condone the omission.

2. Reference may be made to Section 11 of Act I of 1894 which contemplates an inquiry by the Collector after notice under Section 9 has been served on an interested person. The inquiry contemplated by the aforesaid section is not only in regard to the measurement of the land under acquisition but also as to the value of the land. In the absence of any claim as to quantum of compensation made before the Collector, the Collector has no occasion to adjudicate upon the claim of an interested person. Section 9(2) of the Act also contemplates that notice will require the interested persons to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation and their objections to the measurement. We have also noted that the provision of Section 18 of the Act providing for a reference to the Collector is for determination by the Court the objection as to the measurement of the land of the interested persons, the amount of compensation, and the person to whom it is payable. The combined reading of Sections 9, 11, 18 and 25 of the Act makes it abundantly clear that on receipt of notice, an interested person has to file his claim for ' compensation and has to specify the amount which he claims as compensation for the land and other interests. The stage of reference under Section 18 is posterior to the announcement of the award. Therefore, the contention of.the learned counsel that a reference application under Section 18 met the requirements of Section 25(2) is not acceptable.

3. Section 15 of the said Act provides that in determining compensation, the Court shall be guided by the provisions of Sections 23 and 24 of the Act. These provisions are to be read alongwith the provisions contained in Sections 9, 11, 18 and 25 and not in isolation. The contention that Section 15 is not controlled by Section 25 will render the provision of

Section 25 as redundant. It is settled principle of law that redundancy cannot be attributed to the legislature. We have also noticed that Section 25 has been placed in the Act after Sections 9, 11, 15, .18 and 23. Therefore, determination of compensation by the Court is subject to the provisions of Section 25 aforesaid.

1. We have kept in mind that penal provisions of Section 25 can only be applied if a valid notice under Section 9 was duly served on an interested land owner. The notices under Section 9, addressed to the respondents, are on the record as Ex. R.I to Ex. R.3. Muhammad Akram- Respondent No. 1,- appeared as AW.l and admitted having received the notice. He also stated that notice was also received by Allah Ditta- Respondent No. 2 and he (Allah Ditta) had gone to the Collector. Even receipt of notice Ex. R.4, intimating the date of announcement of award was also admitted by AW. 3. Perusal of the notices Ex. R. 1, Ex. R. 2 and Ex. R. 3 shows that not only the land of the respondents was clearly identified but they were also directed to appear before the Collector on 18.3.1987 and to submit their claim including claim for compensation. The award was announced on 2.6.1987 and, thus, the respondents had adequate notice to appear before the Collector and lodge their claim for compensation. We have, no doubt that valid notice under Section 9 of the Act had duly been served on the respondents and, therefore, provisions of Section 25(2) of the Act were fully applicable.

2. The provisions of Section 25 aforesaid happened to be considered by Superior Courts in some cases 'on which we have been able to lay our hands. The first is HyderabadDevelopment Authority and another us.Karara Khan Shoro (1985 SCMR 45)..In the said case against the claim of land owners made before the Collector for a compensation of Rs. 60,000/- per acre, the learned Collector allowed a compensation of Rs. 20,000/- per acre. The referee Court, however, enhanced the compensation to Rs. 1,0,8900/- which was, however, reduced in appeal to Rs. 70,000/- per acre. Explaining the provisions of Section 25, the Honourable Supreme Court made the following observations:

"The section provides for three classes of cases. The first clause of the section refers to the case where the applicant has made a claim for compensation pursuant to a notice given under Section 9. In that case, the amount awarded to him by the Court i.e. by the Judge to whom the reference is made, shall not exceed the amount so claimed and at the same time it shall not be less than the amount awarded by the Collector under Section 11. The second clause provides for the case where the applicant has refused to make such a claim or has omitted, without sufficient reason, to make such a claim. In such a case, the amount awarded by the Court, shall in no case, exceed the amount awarded by the Collector. It follows, therefore, that if without any sufficient reason he has refused to take action before the

Collector when the award is made, he cannot afterwards ask the Court, to which the matter may be referred, to award more than the Collector has already done. The third case is under Clause (3) and that relates to cases when the applicant has omitted for a sufficient reason to make such a claim. In such a case, the amount awarded to him by the Court, shall not be less than and may exceed the amount awarded by the Collector."

However, in the above case, with the finding that the notice issued under Section 9 was not in strict compliance thereof, the compensation determined by the appellate Court was not disturbed.

1. Another case to be noted in Muhammad Sharif vs. Afsar Textile Mills Ltd. and another (1985 SCMR 1181). The compensation in the said case was determined for different categories of land by the learned Land Acquisition Collector after considering the claim of the interested land owners. In a reference application the land owner claimed compensation at a flat rate of Rs. 6400/- per acre without reference to the classification. Accordingly, the matter was referred to the Collector. During the hearing of the reference the land owners sought enhancement of the amount of compensation and instead of the flat rate of Rs. 6400/- per acre claimed Rs.100/- per marla(Rs. 16000/- per acre for the rural land) and Rs. 500/-per marla (Rs. 80000/- per acre for the urban land). The learned referee Court allowed this amendment on the ground that this was the amount claimed by the applicant in response to the notice under Section 9 of the Act. The beneficiary of the acquisition, assailed the said order allowing amendment in the reference application which was allowed by this Court against which the matter was taken before the Honourable Supreme Court. The Hon'ble Supreme Court after surveying the case law dismissed his appeal and made the following observations:

"Reading Sections 9, 11, 18 and 21 together what is imperative is that the claimant must give out the particulars of the claim as to the nature of the interest and the amount of compensation desired for it. In other words he should fully present his case before the Collector as this in terms in his pleadings to which he remains confined till the decision of the Collector in regard'to the compensation payable. Necessarily, therefore, he is precluded from making out a fresh case either by way of supplementary claim to compensation or otherwise at the stage of judicial determination. This is what is emphasized by Curgenven, J., in Secretary of State v. C.R. Subramania Ayyar AIR 1950 Mad. 576, and I see much substance in it as the pleadings are a foundation for the grounds on which an objection is taken to the award while seeking a judicial determination under Section 18 of the Act. In effect, therefore, it alone becomes a matter referred under Section 18 of the Act and the Court has no power to determine or consider anything beyond it."

It may also be observed in the said case, inter alia, a judgment of this Court in the Secretary of State vs. Tikka Jagtar Singh (AIR 1936 Lahore 733) was

noted with approval.

1. In Mrs. Gunj Khatoon and another vs. The Province of Sindhthrough Secretary, Revenue Department, Karachi and another (1987 SCMR, 2084). the compensation assessed by the learned Collector for land and garden was enhanced by the referee Court i.e. the learned Sindh High Court. In appeal, the judgment of the learned Single judge was slightly modified. The honourable Supreme Court found that before the learned Collector the land owners had claimed Rs. 10,000/- per acre and even though they were entitled to a compensation of an armrunt in excess of Rs. 10,000/- it could not be granted to them and made the following-observations:

"According to the provisions of Section 9 of the Act the claimant is required to submit, inter alia, his claim with regard to the question of compensation payable to him and the claim made in response to the notice issued under Section 9 cannot be modified during the course of the proceedings.. This rule has recently been reiterated in Muhammad Sharif, v. Afsar Textile Mills Ltd. 1985 SCMR 1181 where the dictum of the Lahore High Court in State vs. Tikka Jagtar Singh Air 1936 Lahore 733 to the effect "under Section 9 of the Act an objector must give particulars of his claims and if an item is not specified therein he will not he awarded compensation on that score. The basis for decision was also the sanctity of the claim preferred by the objector as binding on him was approved by this Court and it was observed that Section 9 requires the claimant/objector to fully present his case before the Collector which will be deemed to be his pleadings and that he shall be confined to. them throughout the proceedings. The provisions to Section 25 are also to the same effect."

1. In Haji Muhammad Yaqoob and another vs. Collector, LandAcquistion/Additional Deputy Commissioner, Peshawar(1997 SOMR 1670), the Land Acquisition Collector had assessed compensation at the rate of Rs. 7335/60 per kanal. It was enhanced by the referee Court to Rs. 25,000/- (Rs. 200,000/- per acre) per kanal and the first appeal was dismissed on the ground that the land owners had themselves cjaimed. Rs."200,000/- per acre before the learned Collector. The Honourable Supreme Court noted that there were two references before the Court. In one the claim for compensation was at the rate of Rs. 200,000/- per acre while in other it was at the rate of Rs. 10,00,000/- per acre and while dismissing the appeal, the learned appellate Court did not notice the contents of the second reference application. Accordingly, in the appeal in which the land owners had claimed Rs. 200000/- per acre was dismissed while appeal of other land owners was, however, allowed. In para 9 of the judgment, the honourable Supreme Court considered Section 25 of the Act and made the following observations :--

"Principles underlying Section 25 of the Act were considered at some length by this Court in the case of Mrs. Gunj Khatoon and another vs. The Province of Sindh through Secretary, Revenue Department Karachi, and another (1987 SCMR 2084), as follows:

"23. According to the provisions of Section 9 of the Act the claimant is required to submit, inter alia, his claim with regard to the question of compensation payable to him and the claim made in response to the notice issued under Section 9 cannot be modified during the course of the proceedings, this rule has recently been reiterated in Muhammad Sharif vs. Afsar Textile Mills Ltd. 1985 SCMR 1181 where the dictum of the Lahore High Court in State v. Tikka Jagtar Singh AIR 1936 Lah. 733 to the effect "that under Section 98 of the Act an objector must give particulars of his claims-and if an item is not specified therein he will not be awarded compensation on that score. The basis for decision was also the sanctity of the claim preferred by the objector as binding on him was approved by this Court and it was observed that Section 9 require the claimant/objector to fully present his case before the Collector which will be deemed to be his pleadings and that he shall be confined to them throughout the proceedings." The provisions of Section 25 are also to the same effect.

1. The ratio of the aforesaid judgments, clearly is, that claim for compensation has to be made by interested land owners in response to the notice under Section 9 which is a subject matter of the determination in an inquiry under Section 11 and ultimately by the Court under Section 18. Unless, therefore, omission to prefer claim for compensation is condoned by the Court, the interested land owner can not seek enhancement of compensation exceeding the amount awarded by the Collector.

2. The learned counsel for the respondent vehemently contended that the objection not having been taken before the learned referee Court, cannot be considered by this Court. As admitted by AW-3, he did not even attend the proceedings before the Collector in response to the notice under Section 9, and, therefore, there is no question of preferring claim for compensation before the learned Collector. As far as Respondent No. 2 is concerned, AW.3 stated that he attended the proceedings before the learned Collector. However, according to the award, the land owners had appeared before the Collector and had accepted the measurement of the field staff to be correct. Allah Ditta did not himself appear in the witness-box to assert that claim for compensation was preferred by him before the learned Collector. We have also seen the reference application. It does not contain any averment that any claim for compensation was preferred before the learned Collector and that it was not properly adjudicated. From the perusal of the record, it is manifestly clear that the two respondents did not prefer any claim before the learned Collector in response to the notice under Section 9. Therefore, the effect of this omission is pure question of law going

to the root of the jurisdiction of the learned referee Court to enhance the compensation from Rs. 11000/- per acre to Rs. 46000/- per acre.

1. A case directly in point is PunjabState us. M/s. Lachhman Dass and Sons (AIR 1964 Punjab 68). In the said case no claim for compensation was made before the learned Collector in response to the notice under Section 9. The Collector assessed the compensation at the rate of Rs. 85 per Biswa. On a reference under Section 18 it was enhanced to Rs. 125 per Biswa. The respondents before the High Court asserted that they were entitled to a compensation of Rs. 400 per Biswa. An objection based on Section 25 of the Act was for the, first time raised before the High Court. While interpreting Section 25, the said learned Court made the following observations:

"Section 25 is mandatory in terms and envisages three contingencies after notice under Section 9 has been issued. The first is that where a claim has been made the compensation cannot be enhanced by the Court in excess of what is claimed. The second is that where there is a refusal to make a claim or there is an omission without sufficient cause to do so the compensation cannot exceed the amount awarded -by the Collector and the third is that where the omission to make a claim is justified for sufficient cause the compensation may exceed-the amount awarded by the Collector but here, as in the case of the first contingency, there is no limitation that it cannot exceed the amount for there is no amount claimed and in the very nature of things none could be claimed."

After recording the aforesaid observations the said learned Court relied on the following passage from State v. Krishna Filial Ramakrishine Pillai (ILR (1955)TravCol. 174).

"The provisions of the section quoted above are mandatoiy. It prescribes a penalty for the omission unless it is properly accounted for and on the language of the section it is the party who Wants to be exempted from the penal consequences prescribed by it that should move the Court to permit him to 'make the claim for enhanced compensation. The wording of the section would seem to us to admit of no other construction. Decided cases support this view: 'Secy, of State for India vs. Gobind Lai Bysak, 12 Cal WN 263, Secy. Of State for India us. Bishan Dat, ILR 33 All. 376, Narian Dat Superintendent of Dehra D.un, ILR 37 All 69 (AIR 1914 All 445), Ram Prasad us. Collector ofAligrah, 40 Ind Case 274: (AIR 1917 All 52). In Birbai u. Collector of Moradabad,AIR 1927 All 183 the Allahabad High Court followed the two earlier decisions of that Court mentioned above. Certain other cases, go further and hold that the claim in answer to the notice under Section 9(2) should be a specific claim, a claim which states in rupees the value the claimant placed upo«. his property. Orient Bank of India Limited u. Secy.Of

State ILR 7 Lah. 416; (AIR 1926 Lah. 401) and Subbanna v. District Labour Officer, 1930 Mad. WN 373: (AIR 1930 Mad. 618)."

1. As far as entertainment of objection based on Section 25 by the High Court is concerned, the argument of the land owners was repelled with the following observations:

"The next question that requires to be settled is whether the objection on the basis of Section 25 of the Act should be deemed to have been waived by the State and, therefore, the State is not entitled to raise this objection at this stage. Section 25 prescribes rules as to amount of compensation. I have already held that this provision is mandatory and there is no option left with the Court but to give effect to it. The provisions of Section 215 really limit the jurisdiction of the Court in the matter of enhancement of compensation and thus there can be no question of waiver of these provisions. A Court cannot do what the statute expressly forbids. Neither by consent nor by waiver the mandatory provisions of the statute can be either modified or waived. Therefore, in my view no question of waiver can arise. It is a statutory duty which is cast on the Court and effect must be given to it. It is not a benefit which is conferred on any party."

1. The Punjab High Court, however, noted that from the record it was not clear that there was sufficient reason for the respondents in not making the claim for compensation before the Collector pursuant to the notices under Section 9. The said aspect was not considered and examined by the trial Court. The said learned Court thought it fit.and proper to remand the case to the learned referee Court to provide an opportunity to the land owners to show that they were prevented by a sufficient cause to. prefer a claim for compensation before the Collector. The course adopted by the learned Punjab High Court is just, fair and proper and we intend to follow the same.

2. There is merit in the contention of the learned Additional Advocate General that the learned referee Court did not consider the evidence and solely relied on the approval of the estimated cost by the BOR (Ex.A. 2) which was only tentative and the learned Collector was required to determine compensation on the basis of the evidence produced in the case keeping in view the guidelines indicated in Sections 23 & 24 of Act I of 1894 as interpreted by the Superior Courts. Reference may be made to Muhammad Saeed and other (supra) (2002 SCMR 407). However, we have noticed that adequate evidence is not otherwise available to render satisfactory judgment. The respondents land owners relied on the average sale price for the period from 2.12.1980 to 3.12.1981 (Ex. A.I). The said document is based on 95 mutations out of which 6 mutations relate to the agricultural land and the remaining 89 mutations relate to "Sakni" land. The total area involved in the 6 mutations at Sr. Nos. 4, 17, 18, 33, 77, and 79 of

Exh. A.I is 72 kanalsand 13 marlas sold for a total price of Rs. 4,740,88.79. The average sale price of agriculture land, according to Ex. A.I, comes to approximately Rs. 52672/- per acre. We will like to add note of caution. This statement was not accompanied with the mutations referred to therein. In the mutation at Sr. 77 of Ex. A. 1 agricultural land measuring 17 kanals 11 marlaswas sold for Rs. G2522/-. The mutation was sanctioned on 26.9.1981. However, another mutation (No. 4601) was also sanctioned the same day. The area involved in this mutation was 18 kanals 9 marlas and was shown to have been sold for Rs. 3,50,000/-. The difference of price of the same category of land in the two mutations sanctioned on the same day was highly disproportionate particularly when in both the mutations the area sold was almost the same except that in case of Mutation No. 4601, the area sold was 18 marlasmore than the area sold vide mutation No. 4599. It is also not on the record as to whether these mutations were sanctioned on the basis of the oral sale or were based on registered transactions. As far as the five out of these six mutations are concerned, the average sale price per acre comes to Rs. 17776/- approximately. The appellants had placed on record mutations of sale Ex. R. 6 to Ex. R. 10. All these were based on registered sale transactions between the period from 2.12.1980 to 3.12.1981, except Exh. R.8 in which case the registered sale had taken place on 10.9.1980. The area involved in other four mutations was 39 kanals 5 marlasand the sale consideration was Rs. 41000/-. The average sale price on the basis of these mutations comes to approximately to Rs. 1100/- per kanal or Rs. 8800/- per acre. We may like to observe that location of the land acquired is of paramount importance. The land abutting a main metalled road, although agriculture in nature, may be of higher value and have better potential than the land situated elsewhere. None of the parties produced any evidence to show the location of the land or its potential. We' have also noticed that according to Ex.A/1 even "Sakni" land was sold at the rate of Rs. 3500/- per kanal at <Sr. No. 62), Rs. 3000/- per kanal(Sr. No. 32) and at Rs. 100 per marla(Sr. No. 37) of Ex. A.I. According to the aforesaid transactions even the rate of "Sakni" land in the revenue estate in some cases respectively was Rs. 28,000/- per acre, Rs. 24,000/- per acre and Rs. 16000/- per acre. In some cases it was much more. AW.2 claimed that he was paid compensation for his land acquired in the said revenue estate at the rate of Rs. 50,000/- per acre but no document was placed on record to substantiate his oral assertion,, although it could be produced.

1. For what has been stated above, this appeal is allowed. The impugned judgment and decree dated 28.9.1992 of the learned Senior Civil Judge, Jhang are set aside and the case is remanded to him for a fresh decision in accordance with law. It may be observed that question of grant of compensation in excess of the amount granted by the Collector will only arise if the learned referee Court is satisfied that there was sufficient reason within the contemplation of Section 25(2) and 25(3) for the respondents not to have claimed specific amount of compensation before the learned Collector in response to the notices under Section 9. The respondents will be allowed an opportunity for the purpose and if need be an issue may be framed and decided first before proceedings further in the matter. The said question shall be determined by the learned referee Court by passing a speaking order and in case the respondents are able to over-come the constraints of Section 25, he will proceed to determine the compensation in accordance with law. The parties will be allowed an opportunity to produce further evidence. No order as to costs.

(A.A.) Case remanded.

PLJ 2004 Lahore 406

Present: muhammad akhtar shabbir, J.

USMAN ALI and 5 others-Petitioners

versus

MEMBER (JUDICIAL III) BOARD OF REVENUE PUNJAB

LAHORE and 3 others-Respondents W.P. No. 12742 of 2003, heard on 13.10.2003.

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

—S. 163-Punjab Board of Revenue Act 1957, S. 8-Civil Procedure Code, 1908 (V of 1908), O. XLVII, R. 1-Powers of Review of Member Board of Revenue-Extent of-Power of review exercised by Member Board of Revenue whether within four corners of law-Powers of review of Member Board of Revenue are analogous to powers conferred by O.XLVII, R. 1 of C.P.C.-Scope of exercise of powers of review in terms of O.XLVII, R. 1 C.P.C. and S. 8 of Punjab Board of Revenue Act was limited and interference would be made if Court/Board was satisfied on discovery of new and important matter, which, after exercise of due diligence was not within knowledge or could not be produced by concerned party at the time when decree was passed or order made on account of some mistake or error apparent on the face of record or for any sufficient reason-Member Board of Revenue while reviewing judgment/order in question, had ignoredfindings' of fact relating to wanda of respondent recorded by revenue hierarchy and had not assigned sufficient reasons while reviewing order of Board of Revenue—Order of. review in question, being not in consonance with provisions of law and not sustainable in law was set aside being illegal, without lawful authority and of no legal effect.

[P. 409 & 411] A, B & C

1996 SCMR 710 ref.

Ch. Inayat Ullah Khan, Advocate for Petitioners.

Sardar Muhammad Aslam Sakhera, Advocate for Respondents.

Date of hearing : 13.10.2003.

judgment

The petitioners have taken the exception to the order dated 13.6.2003 passed by Respondent No. 1 in exercise of his review jurisdiction, whereby, he reviewed the order dated 25.5.2000 of Member(C), Board of Revenue, dismissing the revision petition filed by the respondents.

1. Facts giving rise to the present writ petition are to the effect that the Consolidation Scheme of agricultural land situated in mauza Bela Singh Kukra, Tehsil Minchanabad, Distt. Bahawalnagar, was sanctioned by the Consolidation Officer, vide, his order dated 29.9.1988 on the basis of record of rights pertaining to the year 1983-84. The petitioners and Haji Luqman Ali etc. had challenged the said Scheme through two separate Appeals Nos. 1178 and 1210 respectively on multiferious grounds, alleging that Wanda No. 92 of the petitioners has been jointly prepared with owners of different Wandas No. 88 against thsir will. It was also alleged that 163 kanals6 marlas land of the petitioners had been reduced. Both the afore-mentioned appeals were accepted by the Additional Deputy Commissioner (Consolidation)/Collector, Bahawalpur Camp Bahawalnagar, through order dated 12.8.1992, determining the entitlement of all owners and separating the Wandas Nos. 88 & 92. The respondents aggrieved by the said order had challenged the same before Addl. Commissioner (C), Bahawalpur Division, Bahawalpur through revision which was treated as second appeal under Section 11 of the Ordinance and was dismissed vide order dated 27.11.1994.

2. Respondents Nos. 2 and 3 had filed a Revision Petition No. 3162/1994 before the Member Board of Revenue, Punjab, Lahore on 14.12.1994, challenging the orders dated 12.8.1992 and 27.11.1994 referred to above, who, after affording an opportunity of hearing to the parties and examining the record, dismissed the same vide, judgment dated 25.5.2000. This order was assailed by Respondents Nos. 2 and 3 by filing a Review Petition No. 107/2000 before Respondent No. 1, who, vide his order dated 13.6.2003 accepted the review petition and remanded the case for decision afresh.

3. Learned counsel for the petitioners contends that-MBR/Respondent No. 1 has reviewed the order dated 25.5.2000 without adverting to the provisions of review and review is provided in Section 163 of Land Revenue Act, Section 8 of Board of Revenue Act and Order 47 CPC. Further submitted that the impugned order has been passed on the basis of factual arguments which is not the ground of review. Further added that Respondent No. 1 had not assigned sufficient reasons While passing the impugned order and by remanding the case to EDO (R) had re-opened the past and closed matter.

4. Conversely, learned counsel for the respondents has vehemently opposed the arguments of learned counsel for the petitioners, contending that the review petitioners were given 10 kanals of land less than their

ntitlement by the Collector as well as Addl. Commissioner (C) and the important documentary evidence, record of rights, misal haqiyat, and registered scheme was not taken into consideration. Further argued that respondents had proved the case for review of earlier order.

1. I have heard the learned counsel for the parties at length and perused the record.

2. Respondent No. 1 while accepting the review petition had observed as under:-

"Facts of this case hinges on one point only, which is that whether or not petitioners have\ been allocated land 10 kanalsless then their entitlement. Counsel for petitioners has contended that petitioners contention is supported by Register Haqdaran, Khatooni Ishtimal and Map Haqdaran. In other words, entire revenue record supports their contention that they owned 423 one marla.I think this point needs reconsideration. Without being absolutely sure on this point, the case cannot be decided. I do not see on record a definite proof substantiating or negating petitioners".

The impugned order has been passed holding that the review petitioners were owners of 423-K, 1 marla, land while the lower officer have declared them entitled for 413 Kanals of land. A copy of record of rights pertaining to the years 1995-96 produced by learned counsel for the respondents depicts that Sardar AH and Bagh Ali, Respondents Nos. 2 and 3 were owners- of land in Khasras Nos. 560/15, 560/16, 580/16 and according to the observation made by Respondent No. 1 this land of the petitioners was not calculated.

1. The provision of review is provided in Section 163 of Land Revenue Act and sub-section (2) of this section of the Act envisaged that any person considering himself aggrieved by an order passed by a Commissioner, Collector or an Assistant Collector, and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence was. not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order passed against him, may apply for a review of the order to the Commissioner, Collector or Assistant Collector, as the case may be, and such officer may modify reverse or confirm any order passed by himself or by any of his predecessor-in-office.

2. Section 8 of Punjab Board of Revenue Act, 1957 confers power of review on the Member, Board of Revenue subject to certain conditions contained in that section which reads as under:-

"Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due

diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record (for any other sufficient reason) desires to obtain a review of the decree passed or order made against him', may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require."

1. The powers of review of the M.B.R. are same as conferred by Order 47 Rule 1 CPC and a decree or order can be reviewed on account of (1) discovery of new and important matter of evidence which, after due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of decree passed or order made against him, may apply for a review of

the judgment to the Court which had passed the same........ (2) The discovery

of new and important matter or evidence would mean that where important evidence having a material bearing upon the merits of the case is subsequently discovered, three courses are open to such party (i) it may apply for review of judgment after judgment has been pronounced, or (ii) it may apply for admission of fresh evidence before judgment is pronounced, or (iii) it may appeal from the judgment and apply for admission of additional evidence before the appellate Court and a party applying for review under this ground should establish that there was no negligence on its part.

1. The scope of exercise of power of review in terms of Order 47 Rule 1 CPC, and Section 8 of Punjab Board of Revenue.Act was limited and interference would be made if Court was satisfied on discovery of new and important matter, which, after exercise of due diligence, was not within knowledge or could not be produced by concerned party at the time when-

decree was passed or made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Reliance in this respect can be made to case of Kalsoom Malik us. Assistant Commissioner (1996 SCMR 710).

1. The mistake or error on the basis of record would mean such mistake or error may be one of law or fact and should be apparent on the face of the record, it should be self evident from a perusal of the record itself, and should not require any extraneous evidence to establish it and it should be established without elaborate arguments. It should be so manifest and clear as cannot -be permitted by any Court to remain on record and the error must also have a material bearing on the fate of the case.

2. There is a distinction between appeal and review. In this connection the points of distinction jotted down in Chitaley's commentary on Rule 1 Order 47 CPC may be referred to for convenience. They are as follows:—

"A review is not the same thing as, or a substitute, for, an appeal. The two proceedings differ in very many particulars:

(i) The Primary intention of a review is the reconsideration of the subject of the suit by the same Judge under certain conditions, while an appeal is a re-hearing by. another Tribunal.

(ii) A point which may be a good ground of an appeal may not be a good ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review though it may be a good ground for an appeal.

(iii) A review, does not of necessity, re-open questions already decided between the parties. The matter in issue is only re-opened when the application for review is accepted, while in the case of an appeal, the matter is re-opened as soon as an appeal is admitted."

In this context, a reference may be made to the case of Allah Dino vs. Fakir Muhammad (PLD 1969 SC 582).

1. Learned Member (Judtcial-I) Board of Revenue, while passing the order in Revision No. 3162/94, in Paragraph No. 8 of the order had observed as under:--

"It was held by the Additional Commissioner that the appellants have been given land to the extent of 413 kanals 1 marla which was in accordance with their entitlement. As regards their contention that certain khasra numbers which had been, in their possession before consolidation, were included in the wanda of other right holders after consolidation, the Addl. Commissioner determined that all khasra numbers indicated by the petitioners were in possession of the present respondent prior to consolidation. Since the Additional Commissioner had come to the conclusion that Sardar Ali and Bagh AH had been given land in consolidation proceedings according to their entitlement before consolidation, this question being one of fact cannot constitute a valid ground for interference with the impugned order in revision. No law'point has been cited by the learned counsel for Sardar Ali and Bagh Ali. In this view of the matter, Revision Petition No. 3162/94 is liable to be dismissed which is accordingly ordered."

The Addl. Commissioner Bahawalpur Division, Bahawalpur, videhis order dated 27.11.1994 had observed that consolidation operation in village Bela Singh Kukra, Tehsil Minchanabad were carried out on the basis of Register Haqdaran Zamin 1983-84 and the consolidation scheme was confirmed on 29.9.1988. All the khasra numbers indicated by the learned counsel-for the appellants exist in Khata No. 10 of Register Haqdaran Zamin 1983-84 and have been shown in possession of Luqman Ali, respondent since died. The

appellant have been given land to the extent of 413 K, 1 Maria, which is in accordance with their entitlement.

1. The A.D.C (C) in his order dated 12.8.1992 also calculated the. entitlement of Sardar Ali and Bagh Ali, Respondents Nos. 2 and 3 as 413 K, 1-M, including all land in different khasra numbers. Three Consolidation Officers, The Collector, Additional Commissioner and MBR, concurrently held the entitlement of Respondents Nos. 2 and 3 as 413 K and one marla.Respondent No. 1 while reviewing the order dated 25.5.2000 had based his findings on record of rights pertaining to the years 1995-96 while consolidation was made on the record for the years 1983-84. If after close of the consolidation proceedings, Respondents Nos. 2 and 3 have obtained some land it would not become the part of their wandas. The Revision Petition No. 3162/94 was filed by Respondents Nos. 2 and 3 on 4.12.1994 and at that time they were not the owners of above referred land.

2. The consolidation scheme after confirmation has been incorporated in the record of rights and all the three Consolidation Officers while passing the orders had examined the record and calculated the entitlement of the share-holders of the wandas.

3. In view of the above discussed position, I find that the MBR/Respondent No. 1 while passing the review order had not assigned sufficient reasons, hence, the same being not in consonance with the provisions of law and not sustainable in law and declared to have been passed illegally, without lawful authority and of no legal effect;

4. Resultantly, this writ petition is accepted. The impugned order.1 dated 13.6.2003 is set aside and that of order dated 25.5.2000 is restored. There shall be no order as to costs.

(A.A.) Petition accepted.

PL J 2004 Lahore 411

Present: CH. IJAZ AHMAD, J.

Mrs. ISBAH HASSAN-Petitioner

versus

WATER AND SANITATION AGENCY, LDA LAHORE through OFFICER BILL AREA, LAHORE-Respondent

W.P. No. 7369 of 2002, decided on 17.9.2003. (i) Constitution of Pakistan (1973)--

—-Art. 4-General Clauses Act, 1897 (X of 1897), S. 24-A-Public functionaries-Duty and obligation-Duty and obligation of public functionaries is to decide representation of citizens without fear, favour

and nepotism within reasonable time as per dictates of Article 4 of the constitution read with S. 24-A of General Clauses Act. [P. 413] A-

(ii) Constitution of Pakistan (1973)--

---Art. 199-Administration of Justice-No body is to be penalized by inactions of public functionaries-In that view of matter copy of writ petition was directed to be sent to M.D. WASA who was directed to look into the matter personally and pass appropriate order strictly in accordance with law after providing proper hearing to all concerned including petitioner and any other person who would be aggrieved by his order preferably within one month after receiving order of Court and to submit to High Court copy of the order passed by him through Deputy Registrar (Judicial) within stipulated-M.D. WASA was also directed to constitute a committee to probe into matter who was responsible officer who did not file report and parawise comments in obedience of direction of High Court till date-Any official found responsible for such lapse should be proceeded against with intimation to High Court through Deputy Registrar Judicial-Law officers were directed to send such direction alongwith copy of writ petition to M.D. WASA.[Pp. 413 & 415] B

Malik Saeed Hassan, Advocate for Petitioner. Mian Muzaffar Hussain, Legal Advisor of L.D.A: Date of hearing : 17.9.2003.

order

The petitioner has filed this writ petition with the following prayer:— It is humbly prayed:—

(a) Annex-A Commercial bill may be set aside.

(b) The respondent may be ordered by this Hon'ble Court to install the meter;

(c) The respondent may be directed to send and charge bills on residential basis and not on commercial basis."

1. The learned counsel of the petitioner submits that public functionaries are duty bound to act in accordance with law in view of Article 4 of the Constitution read with Section 24-A of the General Clauses Act. He further submits that action of the respondents is without lawful authority. He further submits that petitioner being aggrieved submitted various applications before the higher authorities of the respondents who did not decide the same till date. He further urges that it is the duty and obligation of the public functionaries to decide the representation of the citizens without fear, favour and nepotism within reasonable time. The petitioner being aggrieved filed this writ petition.

2. The learned law officer submits that the case pertains to WASA. Respondents was directed to file report and parawise comments vide order dated 2.5.2002 and thereafter respondent was directed to file report and parawise comments vide order dated 27.5.2002. Office sent various notices to the respondent but the respondent failed to file report and parawise comments till date.

3. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

4. It is settled proposition of law that it is the duty and obligation of the public functionaries to decide the representation of the citizens without fear, favour and nepotism within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act as per principle laid down by the Honourable Supreme Court in M/s. 'AirportSupport Service us. The Airport Manager, Karachi, Airport (1998 SCMR 2268) and Zain Yar Khan us. The Chief Engineer C.R. etc. (1998 SCMR 2419). It is also settled principle of law that no body should be penalized by the inactions of the public functionaries as per principle laid down by this Court in Ahmad Lateef Qureshi vs. Controller of Examinations (PLD 1994 Lahore 3). In this view of the matter, let a copy of this writ petition be sent to M.D. WASA, 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 any other person who would be aggrieved by his order preferably within one month after receiving the order of this Court. Petitioner is directed to appear before M.D. WASA, in his office on 22.9.2003 at 11.00 a.m. who is directed to pass an appropriate order strictly in accordance with law in terms of the aforesaid direction preferably within one month till 22.10.2003 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 aforesaid direction preferably within one month till 22.10.2003. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within the stipulated period. M.D. WASA is also directed to give directions to his subordinates that cases are decided against WASA as his subordinates did not file report and parawise comments in obedience of the direction of this Court within time. He is directed to constitute a committee to probe into the matter who is responsible officer-official, who did not file report and parawise comments in obedience of the direction of this Court dated 2.5.2002 till date. He is directed to complete this process preferably within three months. In case the committee finds any official-officer responsible not to file report and parawise comments within time, then he is directed to proceed against him under Efficiency and Discipline Rules. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within the stipulated period. Mian Muzaffar Hussain, Legal Advisor of LDA is directed, to send a copy of the writ petition alongwith this order to the M.D. WASA for necessary action and compliance. Office is also directed to provide a copy

of this order to Mian Muzaffar Hussain, Legal Advisor of LDA, and Mr. Muhammad Hanif Khatana, Addl. Advocate General, who are directed to send the same to the M.D. WASA for necessary action and compliance.

With these observations this writ petition is disposed. (A.A.) Order accordingly.

PLJ 2004 Lahore 414

Present: FAKHAR-UN-NlSA KHOKHAR, J. WALAYAT KHAN-Petitioner

versus MUHAMMAD SHARIF (deceased) through Legal heirs-Respondents

C.R. No. 1317-D of 1998, decided on 16.10.2003. (i) Punjab Pre-emption Act, 1991 (IX of 1991)--

—S. 13(3)-Right of pre-emption-Evidence relating to ta/frs-Material' contradictions-Effect-Evidence of most material witness about talb was full of material contradictions and same was not trust worthy in so far as same contradicts notice which carries exact description of Khata,Khatooni and khasra of land in question-Such evidence being not trustworthy is not to be relied by Court-Petitioner never claimed that no notice of attestation of mutation was given to public at large and for that reason be remained ignorant about sale-Petitioner claiming to be co- sharer in land in question, could not be expected to remain ignorant of factum of attestation of mutation as attestation of mutation was before public at \arge-Talb-i-Muwathibat and talbs-i-Ishhad having not been made immediately after knowledge of sale, decree passed by Appellate Court in favour of plaintiff was set aside. [P. 421] B

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 42-Punjab Pre-emption Act (IX of 1991), S. 13-Entries in register of mutation-Nature of-Right of pre-emption after attestation of mutation-Delay in exercising right of pre-emption-Effect-Entry in register of mutation does not confer any title in as much as, mutation in favour of a person would not be a conclusive evidence of transfer of land to him-Where mutation in question, had found its way in revenue record, burden of proof that person effected by it were un-aware either of attestation of mutation or of subsequent entries in revenue record,, burden of proof that persons effected by it were un-aware either of the attestation of mutation or of subsequent entries in revenue record would . heavily lay on the party asserting such facts as right of pre-emption envisaged performance of certain ceremonies prescribed by Muslim Law immediately after hearing about sale are absolutely necessary to create such right-Delay in performing ceremony is fatal to that right-When talb-i-muwathibatwas not made immediately on coming to know of sale, right of pre-emptions was lost; even short delay would not be exercised.

[Pp. 420 & 421] A

NLR 1995 SCJ 703 and 1995 SCMR 1510 ref.

Mr. S.M. Masud, Advocate for Petitioner.

Agha Taj Muhammad, Advocate for Respondents.

Date of hearing : 8.10.20Q3.

judgment

Brief facts in this Civil Revision are that the respondent filed a suit for possession of agricultural land through pre-emption on the basis of superior right of pre-emption being Shafe-shareek, Shafe-khaleeq and Shafe-jar against the Petitioner/defendant in respect of 6 kanals and 9 marlas agricultural land purchased by the petitioner/defendant on 4.4.1995 in consideration of Rs. 3,25,000/- situated in mauza Chohoudu Tehsil Kharian-District, Gujrat. Suit was contested by the petitioner/defendant and on the basis of pleadings of the parties the learned trial Court formulated 16 issues, which are re-produced below:-

1. Whether in the present form, suit is not proceedable therefore, liable to dismissal? OPD.

2. Whether sale bargain was within full knowledge of plaintiff at the time of setting the bargain, whether defendant informed to plaintiff and other co-sharers regarding purchasing of land, but they refused to purchase, if there was any pre-emption right of plaintiff, that is waived and plaintiff is prohibited to file suit on ground of word and conduct? OPD.

3. Whether suit being partial is liable to dismissal? OPD.

4. Whether suit is barred by time, therefore, liable to dismissal? OPD.

5. Whether valuation of suit regarding Court fee and jurisdiction is wrongly determined, therefore, suit is not duly instituted and unstamped properly therefore, liable to dismissal, because previous to filing of suit, on land in dispute; the most expensive houses are constructed? OPD.

6. Whether Talab-e-Muwathibat and Talab-e-Ishhad according to. law are not performed, therefore, suit is liable to dismissal? OPD.

7. Whether plaintiff has no locus-standi ^nd cause of action, therefore, liable to dismissal? OPD.

8. Whether all expenses on attestation of mutation and misc. expenses were suffered Rs. 50,000/- by defendant and in case

suit is decreed, the defendant is entitled to get from plaintiff? OPD.

1. Whether plaintiff has filed suit only to distress the defendant, therefore, entitlement of defendant to special costs? OPD.

2. Whether the defendant asked plaintiff, before purchasing the land in dispute and the land in dispute was purchased by defendant for Rs.3,25,00/- whereas market value is more than this amount? OPD.

3. Whether plaintiff has no "need" of land in dispute and on purchasing the land by defendant, the plaintiff has no "Zarar"? OPD.

4. Whether defendant purchased the land in dispute for. Rs. 2,50,000/- vide sale Mutation No. 1434 dated 4.4.1995 and to stop plaintiff from exercising his pre-emption right, the ostensible sale price Rs. 3,25,000/- was entered in mutation? OPP.

5. Whether plaintiff performed Talabs according to law of pre­ emption? OPP.

6. Whether plaintiff has superior right of pre-emption than defendant on grounds as mentioned in Para No. 4 of plaintiff?OPP.

7. Whether plaintiff is legally entitled to decree for possession through pre-emption on the base of facts as averred in plaint, and relief as claimed/prayed for? OPP.

8. Relief.

Evidence was produced by the parties and the learned Civil Judge, Kharian vide judgment and decree dated 24.42.1998 dismissed the suit of the plaintiff/respondent. He being aggrieved filed an appeal against the judgment and decree passed by the learned trial Court, which was accepted and the judgment and decree passed by the learned trial Court was set aside vide judgment and decree dated 20.6.1998 passed by the learned appellate-Court and the suit was decreed with costs, hence, the instant Civil Revision.

1. Arguments advanced by learned counsel for the petitioner are that the impugned judgment and decree is against the facts and law applicable to the present case, while reversing the finding of learned trial Court on the crucial issues of talabs and the superior right of pre-emption, the learned Addl. District Judge, Kharian committed the material irregularity while deciding Issues Nos. 13 and 14 as finding of th§ learned trial Court on these issues are well reasoned. The present suit was hit by limitation. The learned appellate Court also failed to understand that the plaintiff/respondent has failed to prove "Zaroorat" and suffering of "Zarfar" in case the land is not given to him. This proof was a basic requirement for getting the decision in exercise of pre-emption right. The learned appellate Court also failed to understand that suit was not properly valued.for the purposes of Court fee and jurisdiction and it failed to read the evidence and appreciate the same on record in its true perspective and in this way set aside the well reasoned judgment and decree passed by the learned trial Court. As far as the evidence of talabs is concerned the land was purchased through a Mutation No. 1434 sanctioned on 4.4.1995. According to the averments in the plaint, pleadings and also in evidence of the PWs Talab-e-muwathibat was made through the information given on 18.7.1995 in the presence of Qalab-e-Abbas and Nadir Hussain and notice was served on. 3,8.1995, therefore, both the talabs the jumping demand as well as talab-e-ishhad were beyond limitation. Learned counsel for the petitioner relied on "Muhammad Ramzan vs. Lai Khan" (NLR 1995 S.CJ. 703) a full Bench judgment where it is held Section 13(1) right of pre-emption would not be available when pre-emptor had failed to make Tatab-e-muwathibatwithin two weekings of attestation of mutation of sale as the pre-emptor u/Ss. 13(1) and 31 of the Punjab Pre-emption Act, 1991 pre-emptor would be deemed to have acquired knowledge of attestation of sale within two weeks from issuance of notice u/S. 31. Talab-e-muwaihibatmade by him after two weeks of such knowledge would not constitute Talab-e-muwathibat within the meaning of Section 13(1) and would dis-entitle pre-emptor to pre­emption right. Rationale behind this requirement of Section 13(1) is -put restriction on exercise of pre-emption right which is based, on tradition of Holy Prophet (PBUH). He further argued that learned appellate Court has failed to consider the fact while deciding the superior right of p\re-emption that respondent/plaintiff was not owner in all khewats. There is material contradiction in the statements of PW-3 and PW-4 and also the respondent/plaintiff. The reason given by the learned appellate Court that there was not notice u/S. 13(1) of the Punjab Pre-emption Act 1991, is also groundless, as according to Section 42 of the Land Revenue Act mutation of the agricultural land is sanctioned in open assembly and this fact cannot remain un-attended as the respondent/plaintiff is asserting superior right of pre-emption on the basis of co'ntiguity. In the notice Ex. P-l there is full' detail of the land, which was sold to the petitioner but the PWs have made contradictory statements in respect of the detail of land mentioned in the notice.

2. Learned counsel for the respondent argued that the learned appellate Court while giving well reasoned judgment has reversed the finding of the learned trial Court. Since the disputed property was transferred through mutation of agricultural land the attesting authorities were bound to give a public notice u/S. 13(1) of the Punjab Pre-emption Act 1991. It was the duty of the Revenue attesting authority to get that notice issued and paste it at conspicuous place. Since time against the respondent

will run from the date of knowledge of the sale and talab-e-muwathibat and talab-e-ishhad will be considered within the time if the respondent has successfully proved that he came to the knowledge of the same and he without wasting anytime made jumping demand and talab-e-ishhad.Moreover, on talab-e-muwathibat the findings of the learned trial Court are in favour of the Respondent and the petitioner has failed to challenge the same even before the learned appellate Court, therefore, this judgment cannot be interfered in the instant Civil Revision.

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

2. While deciding Issue No. 13 the learned trial Court observed that the plaintiff has produced his evidence to prove that he has completed the requirements of Talabs according to law enforced. The learned trial Court while discussing the evidence of PW-3 Qalb-e-Hussain, PW 4 Nadar Hussain and Muhammad Sharif PW-5, observed that the plaintiff completed the requirement of Talab-e-Muwathibat on 18.7.1995 but according to the contents of the plaint the disputed sale was completed on 4.4.1995 and the first Talab was completed on 18.7.1995 while the plaintiff was under obligation to complete first Talab within 15 days of the completion of sale.

.According to the law laid down in NLR 1995 Supreme Court 703, the pre-emptor was to be deemed to acquire knowledge of attesting of mutation of sale within two weeks from issuance of notice under Section 31 of the Punjab Pre-emption Act and Talab-e-Muwathibat made by any pre-emptor after two weeks of such knowledge constitutes Talab-e-Muwathibatwithin the meaning of Section 13 of the Punjab Pre-emption and would disentitle the pre-emptor to exercise his pre-emption right. As the pre-emptor would be presumed to have knowledge of attestation of sale mutation within two weeks from issuance of notice under Section 31 of the Punjab Pre-emption Act and his failure to make Talab-e-Muwathibat within two weeks of the attestation of mutation would disentitle him to exercise his pre-emption right. While deciding Issue No. 14 the learned trial Court held that the Mutation No. 1434 reveals that the land in dispute has been alienated out of Khewat Nos. 98/201, 99/202, 100/203 and 102/205. The plaintiff has placed' on record a copy of record of right as Exh. P-5, P-6 and P-7. Exh. P. 5 does not support the plaintiff to show him co-sharer in the Khewat of disputed land. Exh. P. 6 reveals that the plaintiff is owner in Khewat Nos. 96 and 97 and he is co-sharer in Khewat No. 102, therefore, he is not a co-sharer in the entire Khewats. As per Akas Shajra Exh. P. 8 and P. 9 the Plaintiffs land is adjacent to land in dispute. The disputed land bears Khasra Nos. 663/227, 235/234, 219, 236, 226 and Exh. P. 6 reveals that the plaintiff is owner in Khasra Nos. 663, 430, 665/234, 664/227, 231 & 226 and also owner in Khasra Nos. 218/1 and 218/2 vide Exh. P. 7 and the learned trial Court came to the conclusion that all the pieces of land in dispute are not adjacent to the land of the Plaintiff. Some of the Khasra numbers are adjacent to the land of the Plaintiff but the rest are not. Therefore, the Plaintiff has not succeeded to prove his superior right.

1. While the judgment of the learned Appellate Court in respect of Issue No. 13 about Talab-e-Muwathibat is that the plaintiff in Paragraph-2 of the plaint alleged that without any notice or information to the plaintiff mutation under pre-emption was got sanctioned. As there is no evidence existing on the file to show that any charges under Section 31(3) of the Punjab Pre-emption Act of 19,91 were deposited by the vendee in the Government treasury for the issuance of said notice. There is no evidence on' the file that any such notice was displayed on the main entrance of the mosque or on any other public place of the village or places where the property is situated. Therefore, it could not be presumed that the factum of the sale had definitely came to the knowledge of the plaintiff on the date of attestation of mutation dated 4.4.1995. In the absence of any such evidence the allegations of the plaintiff are got to be believed that the information of sale came to his knowledge on 18.7.1995 through Kalb-e-Hussain Shah. The learned Appellate Court also observed that under the mandatory provision of Section 31 of the Punjab Pre-emption Act the officer regarding the sale-deed or attesting the mutation of sale shall within two weeks of the registration or attestation as the case may be gives public notice in respect of such registration or attestation. While deciding Issue No. 13 the learned Appellate Court observed that according to the plaint the land in 'dispute falls in Khasra Nos. 219, 226, 663/227, 234, 235 and 236.' Exh. P. 8 shows that Khasra Nos. 232, 321 and 230 are adjacent to Khasra Nos. 234, 235, 236 and Khasra No. 232 is adjacent to Khasra No. 227 and the copy of Jamabandi Exh. P. 6 shows that Khasra Nos. 230, 231 and 232 belonging to Muhammad Sharif, the pre-emptor and his right of pre-emption is superior on the point of contiguity. Akas Shajra Exh. P. 9 shows that Khasra No. 219/2 is adjacent to Khasra Nos. 218/1 and 218/2. In this connection the learned counsel for the pre-emptor has relied upon Exh. P. 7, copy of Jamabandi to show that the pre-emptor inherited the land in the said Khasra number from his father. vide Mutation No. 1430 and this land is adjacent to the disputed one, therefore, he enjoys his superior right of pre-emption regarding Khasra No. 226 and copy of record Exh. P. 6 shows that he is a co-sharer of the said Khasra number. Therefore he set aside the judgment and decree passed by the learned trial Court.

2. The evidence in respect of Talabs is PW. 1 about the receipt of notice, PW. 2 about Exh. PW-2/1 and PW-3 Kalab-e-Hussain, who stated in his examination-in-chief that on 18.7.1995 he imparted the information of the sale of the disputed land to the plaintiff and he made a jumping demand in the presence of Nadar Hussain and then all the three PWs came to the lawyer at Kharian and got a notice registered. The copy of the notice is Exh. P. 2 and his signatures are Exh. P.2/1 and the plaintiff is a Shareek Khata in the disputed land. In cross-examination he stated that he is a Wagon Driver and the owner of the Wagon of somebody else. He came to the house of the pre-emptor searching Nadar Hussain and there he gave the information of the sale of the disputed land. He stated that he heard the same in his uncle's Haveli from the people who were discussing the sale of the disputed land. He also admitted in cross-examination that he did not -know whether the property is transferred through Registry or through mutation! He also stated that when they came to the lawyer they had no Fard Jamahandi nor a copy of the mutation and in his presence Muhammad Sharif did not tell the lawyer Khasra numbers and when the notice was read over to him and .Khasra numbers were not incorporated in the>notice. He also stated that he had no knowledge whether the mutation number was incorporated in the notice. He also stated that he did not know about the Khasra or Khatoni numbers. He has no idea whether a house is situated in the dispute land.

PW-4 is Nadar Hussain. He supported PW-3 in respect of Talabs. In cross-examination he stated that notice Exh. P. 2 carries his signatures Exh. P.2/2. Sharif is his paternal cousin and he does not know that on 1.7.1995 what day it was. He also stated that Kalb-e-Abbas did not tell when the land was sold and he heard this from some one. Then they came to District Court. However, they did not visit Walayat to enquire whether the property is sold or not. When they came to Kharian the lawyer gave his Clerk to them and they all went and took the copy of the mutation from the Patwari and when the notice was read over to him all the numbers of Khasras and Khatas were incorporated therein. The mutation number was also incorporated in the notice. The house was also mentioned in the mutation.

PW.5 is Muhammad Sharif. He stated in his examination-in-chief that he made a humping demand in the presence of PWs Nos. 3 & 4 and then went to the Court and got a notice Exh. P. 2 and it carries his signatures Exh. P.2/3. He is a co-sharer and his land is contiguous to the disputed property and he only came to know about the sale of the disputed-property through Kalb-e-Hussain.In cross-examination he stated that he did not know why Kalb-e-Hussain came to his house and he had no knowledge whether he came to meet him or Nadar. He was told by Nadar about the disputed land and he did not ask Kalb-e-Hussainwhen the property was sold and from which source Kalb-e-Hussain came to know about the sale of the disputed property and how many days before. He also admitted in cross-examination that when they reached the lawyer they had no Fard of property or mutation on that day. Again stated that before going to the lawyer he took the copy of the mutation.

1. This is a settled proposition of law in pre-emption cases that the pre-emption right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talab-e-Muwathibatimmediately on hearing the sale. The learned Appellate Court set aside the findings of the learned trial Court on the assertion that no notice of attestation of mutation was given to the public-at-large and therefore, the time will run against the pre-emptor for making the Talabs from the date of knowledge. The settled principle revenue law is that before a mutation can be entered, there should be an acquisition of right and not merely a claim as there is no place in the record of rights for claim. An entry in the register of mutation does not confer any title as the mutation in favour of a person is not a conclusive evidence of transfer of land to him. Where the mutation in question had found in its way in the revenue record the burden of proof that the persons effected by it were unaware either of the attestation of mutation or of subsequent entries in the revenue record would heavily lay on the party asserting such facts and the right of pre-emption being one based on Muslim Law the performance of certain ceremonies prescribed by that law immediately after hearing about the sale are absolutely necessaiy to create right. The delay in performing the ceremony is fatal to that right. When Talb-e-Muwathibatis not made instantly on coming to know of the sale; the right of the pre-emption is lost a short delay would not be excused. In Muhammad Ramzan vs. Lai Khan(1995 S.C.M.R. 1510) the Apex Court held that the pre-emption suit was instituted on 16.5.1999 whereas the mutation of sale was sanctioned in favour of the vendee on 13.4.1991 and thus the plaintiff was deemed to have acquired knowledge of attestation of the mutation of sale within two weeks thereof. '

2. The evidence of PW. 3, PW. 4 and PW. 5 shows that not a single word is uttered by these PWs that no notice of attestation of mutation was given by the revenue officer while sanctioning the mutation and no copy of the mutation was pasted at the conspicuous place or mosque. Therefore, they had come to know about the sale through PW-3. .The evidence of the most material witness about Talab is full of material contradictions and is not trust worthy as it contradicts the notice which carries the exact description of the property Khata, Khatooni and Khasra, the house and the-mutation numbers. Such an evidence being not trust worthy is not to be relied by the Court. It was never a case of the Petitioner that no notice of attestation of mutation was given to the public-at-large. Therefore, he remained ignorant about the sale. On the other hand he has placed on record

evidence that his land is contiguous to the disputed property. He is a co-sharer in some of the Khatas in the disputed land. How is it possible that he remained ignorant about the attestation of the mutation as the heavy duty lies on him to prove that he made Talabs within the required time as envisaged in Section 13 of the Punjab Pre-emption Act, and since no notice was given as required by Section 31 of the Punjab Pre-emption Act by the attesting Revenue -authority to public-at-large, the sale came to his knowledge through an informant and the evidence of the witness imparting the knowledge of sale to the pre-emption must be reliable, true, trustworthy and beyond material contradiction as to the factum of knowledge of sale, therefore, the instant Civil Revision is accepted, the judgment and decree dated 20.6.1998 passed by the learned Appellate Court is set aside. 10. No order as to costs.

(A.A.) Revision accepted.

PLJ 2004 Lahore 422 (DB)

[Rawalpindi Bench Rawalpindi]

Present: mansoor ahmad and sardar muhammad aslam, JJ.

M/s. INNOVATIVE TRADING COMPANY LIMITED, RAWALPINDI-Appellant

versus

APPELLATE TRIBUNAL CUSTOMS, EXCISE AND SALES TAX ISLAMABAD and 2 others-Respondents

Custom Appeal No. 40 of 2002, decided on 21.10.2003. (i) Customs Act, 1969 (IV of 1969)--

—-S. 194-A [as amended by Customs Act (Amendment) Ordinance, 2000]--Appeal filed by Collector of Customs under S. 194-A of Customs Act 1969 as amended-Competency-Expression "an officer of customs" wa,~ made after expression "any person" and same became effective from 19th June 2000 in S. 194-A of Customs Act 1969-Prior to such amendment "an officer of the customs" was not competent to file appeal under S. 194-A of Customs Act 1969-Order against which Collector of Customs had filed appeal, was passed in revision by Member of Customs, Central Board of Revenue on 3/6.5.2000 on said date when decision was made and when same was conveyed on 19.5.2000, to Collector Customs, he was not-competent to file appeal-Order passed by Revisional Authority had thus attained fmality-Subsequently amendment in law clothing Collector with . right to file appeal on 19th June 2000, would not tend to destroy right of appellant acquired by it on 19th June 2000.

[Pp. 430 & 431] A & B

(ii) Customs Act, 1969 (IV of 1969)--

—Ss. 25 & 196-Mode for determing value of imported goods prior to 1st January, 2000 in terms of S. 25 of Customs Act, 1969 as it existed prior to amendment-Prior to amendment in S. 25, Customs Act 1969, value of imported goods was to be taken as normal value-Department in first instance had accepted bill of entry and import invoices submitted by importer, accepted version of importer that goods imported were non-genuine parts, charged them to custom duty and other taken and released those consignments—Pre-supposition of department before making out case of contravention was, that normal price of goods in question, was that which was given in price list issued by original companies of manufacturing-Such pre-supposition could only be taken if department would have scrutinized examined and determined classification of goods in first instance which exercise was not carried out by it-No case of contravention was thus proved against appellant and provision, of S. 32, Customs Act 1969 were misapplied against them-Appeal against order of

customs, central Excise and Sales Tax Appellate Tribunal was accepted while order of Member Customs, Central Board of Revenue was restored.

[Pp. 432 & 434] C, D & E

(iii) Customs Act, 1969 (IV of 1969)--

-—S. 196--Appeal against order of customs, Central Excise and Sales Tax Appellate Tribunal-Tribunal had not rendered any finding on questions raised by appellants by merely stating that as regards remaining appeals they are dismissed in toto-No speaking order was thus, passed nor any finding was recorded by Collector against clearing agent while passing order in original—Orders passed against clearing agents were set aside and their licences were restored. [P. 435] F

1982 SCMR 1083; 2002 PTD 2957; 2003 PTD 890; PLD 1997 Karachi 378;

1986 CLC 612; PLD 2001 Lahore 51; 1985 CLC 1781; 1985 MLD 1610; 1986

MLD 1429; 1991 MLD 1582; 1989 MLD 999; PLD 1988 Karachi 99; PLD

1989 Lah. 89 and 2003 SCMR 1063 ref.

Mr. M. Athar Minallah and Qazi M. Naeem, Advocates for Appellant. Raja Khalid Ismail Abbasi, Advocate for Respondent No. 3. Date of hearing : 6.10.2003.

judgment

Mansoor Ahmad, J.--Three custom appeals under Section 196 of the Customs Act, 1969 are preferred from judgment dated 21.3.2002 passed by Customs, Central Excise and Sales Tax, Appellate Tribunal, Islamabad. Appeal No. 40/2002 is filed by M/s. Innovative Trading Company Ltd., an importer. The Appeal No. 29/2002 is filed by M/s. Moon Enterprises, a clearing agent. Appeal No. 30 of 2002 is filed by M/s. Butt Agencies Custom Clearing Agents. Through this consolidated judgment, we decide all the three appeals.

Appeal No. 40/2002

1. Appeal No. 40 alongwith Appeals Nos. 29 and 30 of 2002 were admitted to regular bearing to consider legal questions arises out of the judgment of the Appellate Tribunal and the questions raised by the appellant are enumerated as under :-

"(1) Whether the Respondent No. 1 having been constituted under Section 194 of the Customs Act 1969 and conferred appellate jurisdiction under Section 194-A thereof, can travel beyond the statute and disregard its provisions which are clearly and unambiguously attracted ?

(2) Whether the Respondent No. 1 is a forum of limited powers and its powers do not include the powers of judicial review as are available to the Civil Courts in exercise of their plenary jurisdiction and the High Court or Supreme Court in exercise of their Constitutional jurisdiction ?

(3) Whether the Respondent No. 1 could have entertained the appeal filed by the Respondent No. 3 after holding that the said appeal was not filed competently and in accordance with the provision of the Customs Act, 1969?

(7) Whether the impugned order restoring the Order-in-Original passed with respect to show-cause notice may be limited to penal consequences without providing an opportunity to the person concerned to show-cause as to why the allegation on the basis of which penal consequences flow are unwarranted in law and illegal ?

(9) Whether valuation of goods under Section 25 cf the Customs Act, 1969 be conducted behind the back of the appellant ?

(10) Whether valuation of the goods under Section 25 of the Customs Act, 1969 be conducted without pro riding an opportunity to the appellant to lead its evidence in rebvttal ?

(13) Whether the burden to prove an access value of goods other than the declared value in terms of Section 25 of the Customs Act, 1969 lies on the custom Authorities?

(14) Whether in determing the value of goods under Section 25 of the Customs Act, 1969, the price at the country of purchase is irrelevant and the certificate of the price prevalent in such country may be ignored without any cogent or contradictory evidence?

(15) Whether in determining the value of goods under Section 25 of the Customs Act, 1969, the kind of goods and the value of such goods accepted and adopted by the custom authorities in the past is irrelevant?

(20) Whether the penalty imposed vide, the Order-in-original passed by the learned Respondent No. 3 under Section 32(l)(b) of the Customs Act, 1969, without the said section being charged as having been contravened by the appellant could be sustained under law vide the impugned order ?

(21) Whether the custom authorities are bound to disclose evidence and precise allegations on the basis of which notice under Section 32 of the Customs Act, 1969 is being issued in the show cause notices?

(22) Whether in order to allege contravention of Section 32 of the Customs Act, 1969 it is mandatory that the person concerned- should make the false statement/submit false document with the knowledge that the same are false/incorrect?

3.Facts available in the case are that appellant is importer of auto parts. He has been importing auto parts of different vehicles namely Volvo, Renault and Mitsubishi from Dubai (UAE), at AFU, Islamabad Airport. These consignments were cleared by the Customs Department through M/s. Falcon Corporation, M/s. Enterprises and Butt Agencies, clearing agents, during the period December, 1995 to 16th August 1997. The appellant has been importing these parts for NLC (National Logistic Cell) of Pakistan Armed Forces and KRL (Kahuta Search Laboratories) and other Government Departments. 241 invoices during the period were presented to the Customs Department and they had cleared the goods after the charge and payment of the custom duty and the sales tax etc.

1. On the basis of some information the Customs department entertained suspicion that the appellant has grossly mis-declared the values of goods imported. On receipt of an information that some parts which have already been cleared from AFU, Islamabad, by undervaluing the same by mis-declaration, were being transported from Rawalpindi to Gujranwala through a vehicle bearing Registration No. RPT-2070 for onwards delivery to NLC, Gujranwala. The Deputy Collector Customs Preventive, Rawalpindi constituted a raiding party and intercepted the vehicle. The vehicle was subjected to search and it was brought to the Headquarter office and it was seized alongwith goods vide seizure case No. 384/97. On the same day, a notice under Section 171 of the Customs Act, 1969 was served on the manager of the appellant company. Another notice under Section 26 of the Act was also served and in that record of the Company like Air Way Bills Register, Challan Register and Stock Register were demanded and the same were provided by the appellant Company to the raiding party. A show-cause notice dated 21.10.1998 was issued by the Collector to the appellant and its sister concern company M/s. International Path Finders and three other Clearing Agents. In the show cause notice it was alleged that the,.appellant and its sister concern company M/s. International Path Finders committed gross mis-declaration and violated the provision of Section 16 & 32(l)(b) and 25 of the Customs Act, 1969 read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1X9X14) of the Customs Act. The appellant submitted reply to the show-cause notice and after hearing the Collector passed an order in original dated 26th of January, 2000 and held that the appellant in collusion with the clearing agents evaded the payment of the duty and taxes to the tune of Rs. 3,20,86,486/-, and the appellant was ordered to "pay the same. A personal penalty equal to Rs. 3,70,70,967/- was also imposed in terms of Section 156(1X14) of the Act and the appellant was directed to pay the same.

2. The appellant-challenged the Order in Original under Section 195 of the Customs Act by submitting the revision petition before the Central Board of Revenue. The revision of the appellant was accepted by Member Custom, Central Board of Revenue videhis judgment dated 6.5.2000. Vide

this judgment the revision petition was allowed and the Order in Original passed by the Collector was set aside and it, was held that the clearance of the imported parts by the appellant between 1995 and 1997 were inconsonance with the practice m vugue in the Customs House, Karachi for the similar and comparable goods and the imports of the appellants were treated as cleared against fair value.

1. Collector of Customs, Rawalpindi on 3rd of July, 2000 filed an appeal against the order dated 3/6-5-2000 passed by the learned Member Custom of Central Board of Revenue, Islamabad under Section 194-A of the Customs Act, 1969. A Full Bench of CESTA, Tribunal, Islamabad heard the appeal and finally decided vide its judgment dated 26.2.2002 and the order passed by learned Member Custom, CBR, Islamabad under Section 195 was set aside and the Order-in-Original dated 26.1.2000 passed by the Collector Customs, Rawalpindi was restored subject to modification that the penalty imposed on the appellant was reduced from Rs. 3,70,70,967/- to Rs.' 1,00,00,000/- (one crore). Relevant it would be to point out that the Appellate Tribunal vide its judgment disposed of four appeals through a consolidated judgment and three other appeals related to the Clearing Agents. The judgment of the Tribunal was not unanimous. The Bench comprising Chairman and two members (one of them technical member) rendered a dissenting judgment but through the majority judgment the appeal of the Collector was allowed.

2. It is argued on behalf of the appellant that the Collector of Customs, Rawalpindi could not file an appeal under Section 194-A of the Act before the Appellate Tribunal from the order passed by the learned Member Customs Act, 1969. It is contended that Section 194-A of the Act was amended through Finance Act of 2000 which came into force on 19th of June, 2000, by virtue of this Finance Act the expression after the word "any person" "or an officer of Custom", was inserted in Section 194-A of the Act. The learned counsel thus submitted that before 19th of June, 2000 any officer of the Custom department had no right to file an appeal before the Tribunal. According to him the revision of the appellant company was decided on 3/6-5-2000 by Member Customs, CBR, and on the day or thereafter fill 19th of June, 2000 right of appeal to any officer of the Custom was not available. The amendment could not operate retrospectively and by judgment prior to 19th of June, 2000 it had become past and close transaction and the judgment of the Member Customs had attained finality. "

3. Legal Questions Nos. 1, 2' and 3 raised by the appellant were argued on the premises and reasoning narrated in the preceding paragraph. Question No. 7 was dropped and legal Question Nos. 9, 10, 13, 14, 15, 20, 21 and 22 were argued as discussed hereunder.

4. Next it was contended by the learned counsel for the appellant that Section 25 of the Customs Act, 1969 lays down the principle regarding the valuation of the goods and value of any imported goods had to be taken

to be the normal price which would fetch as sale price in open market between buyer and seller, independent of each other. It was submitted that Section 25 of the Customs Act as it stands now was substituted through Finance Act, 1999 with effect from 1st January, 2000. and doctrine of transaction value was introduced which is the price actually paid or payable for the goods when sold for export to Pakistan. Basing his argument on the provision of Section 25 of the Act, the learned counsel submitted that in both the events whether it was a case under Section 25 of the Act before amendment or after amendment the principle was that value has to be determined on the basis of sale in the open market between buyer and seller independent of each other or in the alternative on the transaction value. Reasoning the arguments, the learned counsel sought support from Section 80 of the Act and pointed out that clearly it is provided in said section that on the delivery of bill, the goods or such part thereof as may be necessary may, without undue delay, goods were to be examined or tested, and thereafter the goods shall be assessed to duty, if any, and owner of such goods may then proceed to clear the same. Adding to his arguments, the learned counsel submitted til at if any dispute arises about the kinds of goods then the goods are to be identified for obtaining a proper value and in case the declared value by the importer was not acceptable to the Customs department, the onus to disprove the value shown in the invoice was that of the department. The department in that event was required to identify the goods, its make nature and kind and thereafter proceed to assess its value under Section 25 of the Customs Act. Grievances of the appellant in the instant case were that Customs Department in the first instance have been releasing the goods after receiving custom duties and sales tax on the basis of the declaration made in the bill of entry and invoices. Later in 1.997, seized one of the vehicles from Gujranwala carrying the imported auto parts. Although the parts seized were properly declared but were taken into custody when it were bound for supply to NLC, Gujranwala. These circumstances warranted an onus on the department to seek the identification of the goods and thereafter proceed to seek their transaction value or otherwise. Instead of doing this, the department relied on price-list of the .genuine parts. It is submitted that auto parts are of two major kinds; One known as genuine parts and other non-genuine. Genuine parts are those auto parts which are manufactured by the original Companies and non-genuine parts are those' which are manufactured by other Companies under a license or franchise by the Companies. According to the learned counsel, the genuine parts are only used by the manufacturing Companies and for replacement or otherwise, non-genuine parts manufactured by other Companies are sold and purchased throughout the world and import of genuine parts are not normally made for use in repair of the second-hand vehicles. It is submitted that the appellant during all this period imported non-genuine parts which were lesser in value than the genuine parts. The import invoices clearly identify these imported goods, as such the same were cleared by the Customs Department after charging the custom duty and sales tax on non-genuine

parts but latter the department at the behest of some other competitioners intercepted some parts of the goods of the appellant after clearance and alleged mis-declaration against the appellant. Unfair and mala fide approach of the department was attributed from the fact, submitted by the learned counsel, that the goods seized were not identified whether these were genuine or non-genuine and without such an examination all the import of the appellant ranging from December, 1995 till August, 1997 was treated to be an import of genuine parts. It was valued on the basis of price-list of the genuine goods and the appellant was saddled with Huge liability of the custom duty as also of the huge penalty.

1. The learned counsel next contended that for penalizing the- appellant provisions of Section 32 of the Customs Act were invoked as is evident from the show-cause notice and the Order-in-Original. One of the pre-requisites in Section 32 is the mensreaand a proper proof that the invoices submitted earlier by the appellant, which were accepted by the Customs Department, were false and incorrect and that the appellant contumaciously, deliberately, mis-declared the things with guilty intention. It is submitted by the learned counsel that total number of invoices were 241 spread over during the period of December, 1995 to August, 1997. There was no mean with the department to substantiate their allegations because of the imported consignment had already been supplied by the appellant to various Government Departments and Organizations particularly NLC and KLR. The department intercepted consignment which was bound for NLC, Gujranwala and it was a negligible part of the import made by the appellant. In any case, the department did not embark 'upon the exercise of identification of the seized parts as genuine or non-genuine. So without having determined the basic fact the application of price of the genuine parts could not be made as the first basic step was omitted by the department. According to learned counsel it was deliberately done,by the department because the fact was that the imported parts were of the non-genuine kind. This is clearly mentioned in the invoices, order of the learned Member Customs, GBR, and dissenting judgment rendered by the technical Member of the Tribunal.

2. In support of his contention the learned counsel for the appellant referred to and placed reliance on a large number of judgments particularly cases of M/s. Latif Brothers vs. Deputy Collector of Customs,Lahore (1982 SCMR 1083), Punjab Beverages us. Appellate Tribunal(Customs, Excise and Sales Tax) (2002 PTD 2957), Irfan Tayyab vs.Collector Customs, (2003 PTD 890), M/s. Abdul Aziz Ayoob vs. AssistantCollector, Customs (PLD 1997 Kar. 378), Kausar Trading vs. Government ofPakistan (1986 CLC 612), Saleem ana" Co. iu. Deputy Collector, Customs(PLD 2001 Lahore 5), Farooq International vs. Chief Controller Imports andExports (1985 CLC 1781), Dawood Cotton Mills vs. Central Board, ofRevenue. (1985 MLD 1610), Ali Muhammad vs. Deputy Collector Customs(1986 MLD 1429), M/s. Sasta Autos vs. Government of Pakistan (1991 MLD

1582),, Capital Supports Sialkot us. Government of Pakistan (1989 MLD 999), Indus Auto Mobile Ltd, vs. CBR (PLD 1988 Karachi 99), Commercial Pipes Ltd. vs. Federal Government of Pakistan(PLD 1989 Lah. 89) and Haji Abdullah Jan vs. The. State (2003 SCMR 1063).

1. On the other hand, the learned counsel representing the Revenue submitted that the appeal filed by the Collector before the Tribunal was competent. He referred to the provision of Section 194-A (3) and pointed out that every appeal before the Tribunal was required to be filed within 60 days from the date of the decision. The order assailed was passed on 3/6-5-• 2000, therefore, 60 days were to expire on 6th July and the appeal was filed on 3rd July. His argument is that by virtue of sub-clause (3) right to file an appeal was 60 days and during this period by virtue of ^Finance Ordinance the right to file an appeal was conferred by law on the Collector who was one of the officers of Customs, therefore, it was properly constituted appeal and was competently filed under the provision of Section 194-A. Replying to the next legal question under Section 25 it was submitted that the value of the imported goods was worked out on the basis of the price-list of the Company of the genuine goods. He referred to CGO of 1985 and submitted that in respect of auto parts price of non-genuine parts had to be 80% of the price of genuine parts. According to him, the parts imported by the appellant were genuine in kind, therefore, Customs Department were justified in finding a mis-declaration against the appellant and determining its value on the basis of the price-list of the genuine parts. The judgment of the Tribunal was supported by the learned counsel.

13; We have considered the arguments of learned counsel for the parties. Firstly the question raised by the learned counsel for the appellant relates to the competency of filing of the appeal by the Collector of Customs. We would take up this question first. Section 194-A, of .the Customs Act, as amended finally by Ordinance 2000, reads as under:

."194-A (1) Any person or an officer of Customs aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders:—

(a) a final decision or order passed by an officer of customs as an adjudicating authority under Section 179;

(ab) an order passed by the Collector (Appeals) under Section 193;

(c) an order passed under Section 193, as it stood immediately before the appointed day;

(d) an order passed by the Board or the Collector of Customs under Section 195 (\):

(ii) Every appeal under this section shall be filed within sixty days from the date on which the decision or order sought to be appeal against is communicated to the Board or the Collector of Customs, or as the case may be, the other party preferring the appeal.

1. Vide insertion made through the Finance Ordinance, 2000, the expression "an officer of Customs" was made after the expression "any person". This insertion was made on 19th of June, 2000 and it was made effective from the said date. Prior to this an officer of the Customs was not competent to file an appeal under Section 194-A. The jurisdiction to file an appeal by any officer of the Custom was thus conferred on 19th of June 2000 and before that although right to file appeal was available to any person aggrieved but it was not within the competency of any of the officer of Custom to file such appeal. In the present case order under Section 195 was passed by the Member of Custom, Central Board of Revenue in exercising his revisional jurisdiction on 3/6-5-2000. On the said date when the decision was made and when it was conveyed on 19-5-2000 to the Collector Customs, he was not competent to file any appeal. As such the order passed by the revisional authority had attained finality. Subsequent amendment in law clothing the Collector with the right to file an appeal on 19th of June 2000, would not tend to destroy the right of the appellant acquired by it before 19th of June, 2000. It is a settled principle in the domain of fiscal law that the amendment touching upon and dealing with substantive right could not be given retrospective effect until and unless it is specifically intended to be so by the Legislature. Conferring a right of appeal is one of the substantive rights which was thus provided to the officers of the Custom on 19th of June, 2000. Conversely, it also abridge the right of the other party to claim immunity against any order passed in their favour by revisional forum. We-are not persuaded to agree with the learned counsel of the revenue that the amendment brought under Section 194-A by virtue of Finance Ordinance, 2000 was merely procedural in nature. In case Haji Abdullah Jan vs. The State (2003 SCMR 1063) Section 417 (2A) of the Criminal Procedure Code was examined by the Apex Court. Section (2-A) was added under Section 417, Cr.P.C. through an Amending Act No. XX of 1994 on 28.10.1994 and it was gazetted on 14.11.1994. On 31.10.1994, learned Sessions Judge passed a judgment of acquittal and an appeal was preferred by the Deputy Attorney General of Pakistan on behalf of the Federal Government. In that case, it was held that the appeal was not competently filed. It was further observed that sub-clause (2A) was enforced after the judgment of acquittal. Therefore, on examining the various provisions of law we find that, the right to file an appeal by any officer of the Custom was not available before 19th of June 2,000/- and the appellant acquired a valuable right' through the judgment dated 6-5-2000 and this right could not be taken away by construing the amended provision retrospectively. On 6-5-2000, when the Revisional Authority passed a judgment in favour of the appellant, as it was non-appealable order, therefore, it had attained the finality and it had become a past and close transaction. Admittedly, the Finance Act; 2000 came after 50 days of the above judgment and conferred right on any officer of the Customs to file the appeal, which could not be used by the Collector Customs, Rawalpindi to challenge the order dated 6-5-2000 passed by CBR in its revisional jurisdiction. Even sub-clause (3) which deals with the limitation of 60 days did not confer any right as the question of limitation is dependent on the competency to file appeal, sub-clause (3) could not be interpreted in a manner so as to give retrospectivity to the amended provision of sub-clause (1). The argument raised on behalf of the Revenue that under sub-clause (3) because of the limitation of 60 days was available and computing the 60 days from 6-5-2000, the date of revisional order, the right of appeal was available to the Collector upto 6th of July and the 3rd July was a day within when he had a right to file the appeal, therefore, he argued that the appeal was competently filed. We are afraid that this argument is not well taken. Computation would be dependant on a kind of order described under sub-clause (1) and the competency to challenge the said order under the law. In the absence of any competency, the procedural provision related to limitation would not confer any substantive right on the Collector to file an appeal. We, therefore, hold that the appeal filed by the appellant before the Tribunal was not competent as the Collector Custom was not conferred any jurisdiction to file the appeal and the order dated 6th of May, 2000 had attained finality and it was past and close transaction in the instant case.

2. Next question raised relate to the Section 25 of the Customs Act, 1969. In Latif Brothers' case the Hon'ble Supreme Court authoritatively interpreted the provision of Section 25 of the Act and the principal enunciated was consistently followed by all the Courts and hierarchy. In that judgment Para 8 is illuminated and it is reproduced here-in-below:--

"8. Section 25 of the Act deals with the determination of the value of the imported goods and is so far as relevant for the purposes of this appeal reproduced below-

"the value of any imported goods shall be taken to be the normal price, that is to say, the price which they would fcLch (on the date referred to in Section 30), on a sale in open market between a buyer and a seller independent of each other."

According to Section 30, the value and rate of duty leviable on the imported goods are those which shall be in force for the goods meant for home consumption, like the consignment in dispute, on the date when the "Bill of Entry" is presented to the Customs Authority, Section 25 speaks of "normal price" which is described as the price, the goods would fetch on sale in "open market" in a bona fide transaction. The "open market" here means the market in the country of origin and not at the place of importation. Thus, criterion for determination of the value of the goods should have been the prevailing commercial price in Thailand at the time of import and not the price obtaining in Singapore or other Far East Countries. Admittedly, the price list of similar goods of Thailand origin was not before the Authorities concerned when the appellant's consignment was evaluated. The onus to establish that the appellant made a misstatement was entirely on the department who failed to muster any evidence from the country of origin to belie the declared value. No such material has been placed before us even at the time of hearing of the appeal. The position would be different, if the price list from the country of origin was not at all available, despite efforts of the departmental authorities. But, such is not the case here. In the circumstances of the case, it is difficult to hold that the appellant is guilty of making mis-statement within the meaning of Section 32 or of violation of Section 156CD-14."

1. All 241 invoices in present case pertain to the period December, 1995 to August 1997, therefore, Section 25 as it existed prior to 1st January, 2000 was applicable and the value of the imported goods was to be taken as normal value that is to say, the price would fetch a sale in'open market, between the buyer and seller independent of each other. In the process of determination of value in the instant case, if the department disagreed with the value declared by the imported, the onus shifted on it to prove that the " consignment imported was different than the one described in the invoices. It is surprising that the department in the first instant accepted the bill of entry and import invoices submitted by the importer, accepted the version of the importer that the auto parts imported were non-genuine parts, charged them to Custom duty and other taxes and released those consignments. It was in 1997, that on the receipt of some information a truck of the appellant Company was intercepted in Gujranwala which was carrying auto parts for supply to NLC Gujranwala. It was a fraction of the huge imports spread over a period of 1% year even then the department did not proceed to seek the proper identification and examination of the seized goods as to find out whether those were genuine auto parts or non-genuine auto parts. Instead of adopting a logical course the department presumed the seized parts as the genuine one and using the price list of genuine parts made out a case of contravention against the appellant. Presupposition of the department before making out a case of contravention was, that the normal price of the auto parts was that which was given in the price list issued by the original Companies of manufacturing. This presupposition could oiily be taken if the department would have scrutinized, examined and determined the classification of the goods in the first instance. In the absence of any such exercise, the application of the price list of the genuine parts was not warranted in the circumstances of the case. In para 15 of the majority judgment of the Tribunal it was observed as under:-

"The respondent company themselves had supplied to the raid party' the records of their imports, including the manufactures price lists, obviously of genuine spare parts in support of the quantity and quality of goods they had been importing and the adjudicating officer was justified to assess the differential of the amount of the Government dues evaded by the respondent company on the basis of these price lists after allowing them maximum usual trade discount at the rate of 15% under the advice of Collectorate of Customs Valuation Karachi."

1. We observed that the Tribunal also relied on price list of genuine spare parts. Real link in the chain was missing that the department did not determine the classification of the imported goods. It could not be in respect of the consignment which was already released and consumed but this could be done in respect of the parts seized by-intercepting the truck. The invoices which were produced by the importer were already accepted and therein these auto parts were declared to be non-genuine, so there was no tangible evidence available with the department to reach a conclusion that the imported parts which had already been released were genuine in kind and the same were misdeclared in the original invoices. The department sought the production of the price list of the genuine auto parts from the company and the same were produced. It was presumed that the goods which were imported during 1% year were also genuine. The same error was also committed in the decision of the Tribunal which has vitiated' its decision as such it is not sustainable.

2. Lastly, dealing with the question relating to Section 32, we find that misdeclaration was alleged against the appellant. So, charging of mis- declaration on untrue statement, misdeclaration pre-requires a fact that the person charged for the same made or signed or causes to be made any statement in answering to any question which he knows or have reason to believe that such documents are false. In the present case importer has been filing bills of entry and imports invoices before the Customs Authorities. They were accepting these invoices and bills of entry and charging them the custom duties and other taxes on the.basis of declaration made therein. All 241 invoices presented by the importer were accepted and the consignment was released on payment of custom duty and other taxes as determined by the custom department. It came to the notice of the custom department that the declarations made by the importer were not true. They accordingly intercepted one truck carrying imported parts which was bound for delivery of the same to NLC Gujranwala. The consignment in the truck was seized. Notice under Section 26 of the Act was issued to the appellants for production of documents which were produced. As it was a case of misdeclaration on presentation of a document and • misdeclaration was alleged in respect of a part of a consignment which was allegedly seized by the custom department, the onus shifted to the department and it heavily lay on them first to classify the goods seized as the genuine auto parts and'

thereafter use price list of the genuine auto parts so as to determine the value of the consignment. We also find that it was not possible for the Custom Department to take the entire import ranging from December, 1995 to August 1997 as the import of genuine parts merely on the basis of consignment intercepted on one truck which was hardly a little fraction of the entire import. The department in the first instance would have determined the classification of the goods seized and as the most of the import was made by the importer for supply to NLC of Pakistan Armed Forces and Kahuta Search Laboratories again a Government Organization, the record could have been verified to find out the kind and classification of the goods imported. Unfortunately the department did not undertake either of the exercises and merely thought it proper to take the price from the price list of the genuine auto parts. It appears that the department did'not act diligently and failed to perform their functions and the contravention case 'was either not made with serious mind or it was not initiated with the serious object. We wanted to examine the record ourselves and we directed the department to produce the invoices and TIPs but after obtaining few dates the departmental representative made a statement that all the invoices on the basis of which the goods were released are not available in the department for producing the same in the Court. The statement of Mr, M.A. Sherazi, Inspector Customs, Legal Division, Customs House, Rawalpindi was recorded and it has fortified our opinion that the department did not act with diligence and the serious approach on its part to make a case of contravention, which was lacking. Contravention under Section 32 is not merely making of a false statement but it should contain an element of mensrea as it defines an offence and makes it punitive. Failure to bring on record, through scrutiny, examination or any other means, that the imported auto parts were genuine in kind, price list was of no use to the department and it could not be proved that the value declared in bills of entry and import invoices by the inspector were untrue and false. Thus, we are of the view that no case of contravention was proved against the appellant and the provisions of Section 32 were misapplied in the circumstances of the case.

1. In view of our findings hereinbefore we allow Appeal No. 40/2002 (M/S Innovative Trading Company Ltd.- vs. CEST, AppellateTribunal, Islamabad) and set aside the judgment dated 21.3.2002 passed by the Customs, Excise and Sales Tax, Appellate Tribunal and restore the order of Member Custom, Central Board of Revenue dated 26.1.2002.

APPEALS NOS. 29 & 30 OF 2002.

1. Learned counsel appearing in the connected Appeals Nos. 29 and 30 of 2002 has argued that the appellants therein were merely clearing Customs agents and they were issued license under Section 207 of the Custom Act read with Rules known as Customs Agent Licensing Rules, 1971 issued vide Notification No. SRO 13Q/71 dated 8th January, 1971 and that they were working as such for about 25 years and they filed the bills of

entries on behalf of M/s Innovative Trading Company for clearance of auto parts in routine which were duly examined by the appropriate officer and imported consignments were released. It was contended on their behalf that their license could only be invoked under Rule 19 of Customs Agent Licensing Rules, 1971. The learned counsel pointed out that the grounds for revocation/suspension of license of any of the agent are enumerated in Rule 19 and no show-cause notice alleging any violation of Rule 19 was served on the appellant. On the contrary, show-cause notice which was given to the importer company was also served on the appellant and through the same Order-in-Original their licenses were revoked. Further submitted that the Order in Original was challenged by the importer company by filing a revision petition before the Central Board of revenue but the appellant herein filed an appeal before the Tribunal. Latter there appeals were disposed of by the Tribunal through consolidated judgment alongwith the appeal of the Collector Custom.

1. Next it was contended that the cancellation of license while adjudicating the case under Section 156 of the Customs Act, 1969 is illegal and without jurisdiction and the license of the petitioner could not be cancelled under the provision of Section 196 of the Customs Act. Referring to the show-cause notice it was submitted by the learned counsel that the only allegation against the appellant was submission of the document of the imported consignment and thereafter the Collector while passing Order-in- original held that the Clearing Agents had mala fide (collusion) with the main .respondent and filed the incorrect, untrue and false import document before the concerned Custom Authorities while the Tribunal did not decide any question raised by the appellant and merely dismissed three appeals without any reasoning.

2. We have examined the record in the light of the contentions of the appellant and find that the Tribunal has not rendered any finding on the question raised by the appellant and merely in the last three lines of the judgment stated that as regards the remaining appeals these are dismissed in toto. There is no speaking judgment against the appellant by the Tribunal nor any findings were recorded by the Collector against the Clearing agent while passing the Order in Original. We have already found that the judgment of the Tribunal dated 2.1.3.2002 was not sustainable in law. Accordingly the Appeals Nos. 29 and 30 of 2002 filed by M/s Moon Enterprises and Butt Agencies, Custom Clearing Agents are allowed and the judgment of the CEST, Appellate Tribunal dated 21.3:2002 as well as the Order in Original dated 26.1.2002 passed by the Collector are set aside and the licenses of the Agents are restored if same have not been suspended or revoked in any other case. A copy of this judgment be sent to the Tribunal (CESTAT), Islamabad who would pass such order as is necessary to dispose of the case conformably to such decision.

(A.A.) Order accordingly.

PLJ 2004 Lahore 436

Present: muhammad muzammal khan, J. KHALID JAVED-Petitioner

versus

MUHAMMAD IMRAN-Respondent S.A.O. No. 95 of 2003, decided on 15.12.2003.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—Ss. 13 & 15-Eviction of tenant on ground of default in payment of rent- Agreement of tenancy being in writing, terms and conditions thereof would continue to govern relationship of parties even after expiry of period of the same-Tenant's plea that monthly rent of defaulting months was to be paid within period of 60 days after rent became due was repelled in view of terms and conditions of agreement of tenancy whereby rent of each month was to be paid in advance by 10th of each relevant month-Default in payment of rent thus, stood established and tenant was directed to hand over vacant possession of demised premises within specified period. [Pp. 438 & 439] A & B

1981 SCMR 18; 2000 UC 242; 2000 MLD 382 and 2000 CLC 1873 ref.

Agha Abdul Hassan Arif, Advocate for Petitioner.

Mr. Muhammad Munir Badar, Advocate for Respondent.

Date of hearing : 8.12.2003.

order

This second appeal assails judgment and decree dated 21.7.2003 passed by Additional District Judge, Gujrat, whereby appeal of Respondent No. 1 was accepted and an ejectment order for eviction of the appellant was passed, by setting aside judgment/order dated 17.12.2002 passed by the Rent Controller, Gujrat.

1. A short factual background of the case is that Respondent No. 1 Muhammad Imran filed an ejectment petition on 14.2.2002 claiming respondent as tenant in his shop at a monthly rent of Rs. 3500/- per month and asserting that appellant has defaulted in payment of rent and that shop in question was needed for his bona fide personal need.

2. Appellant being respondent before the Rent Controller controverted the allegations in the ejectment petition and pleaded that original owner of the shop in his possession, was Muhammad Amin, who has died and after death of the owner his legal heirs have succeeded him but Respondent No. 1 has nothing to do with the ownership and thus he cannot claim it for his personal use. Besides denying personal need of Respondent'

No. 1, default in payment of rent was also disputed. Controversial pleadings of the parties led to framing of six issues and recording of respective evidence of the parties by the Rent Controller, who on the basis of his appraisal of evidence on 17.12.2002 dismissed the ejectment petition filed by Respondent

No. 1.

4.Muhammad Imran Respondent No. 1 feeling aggrieved of the decision of the Rent Controller dated 17.12.2002 filed an appeal before the Additional District Judge, Gujrat, where he succeeded as his appeal was accepted and ejectment of the appellant was ordered on the ground of default in payment of rent, whereas findings of the Rent Controller regarding personal use and occupation by Respondent No. 1 were affirmed, vide judgment dated 21.7.2003. Appellant has now come up in second appeal before this Court for setting aside ejectment order against him.

1. Learned counsel for the appellant submits that default in payment of rent of two months i.e. January and February, 2002 was claimed by Respondent No. 1 and since written tenancy between the parties had expired, where-after tenancy will be treated as oral and in view of the provisions of Section 13(2)(i) of the Urban Rent Restriction Ordinance, 1959, rent could be paid within a period of sixty days and rent of two alleged defaulted months having been paid within sixty days, there was no default, on part of the appellant, as such, his ejectment could not have been ordered. He is support of his contention referred to the case of Muhammad BaqarQureshi vs. Mst. Razia Begum (1981 SCMR 18) and Asad Ejaz Ahmed vs.Rent Controller, Multan and 2 others (2000 U.C. 242). He further submits that view taken by the First Appellate Court is not in consonance with the judgments of the superior Courts because according to him receipts Exh. R.I and R. 2 establish that dispute of payment of rent stood settled between the parties which was payable on 10th of each month.

2. Conversely, learned counsel for the respondent refuted the submissions of the appellant and supporting judgment of the First Appellate Court, urged that after expiry of written agreement, terms and conditions contained in the earlier written rent note will continue between the parties and tenancy does not become oral. He further submits that since under the written rent note rent is to be paid by lOth of each month, rent of December was payable by 10th of the same month and similarly rent of January was payable by 10th of January and since rent was not paid accordingly by the appellant he was a defaulter and has rightly been ordered to be evicted. In support of his stance, he referred to the cases of Abdul Qadeer vs. HajiMuhammad Ismail (2000 MLD 382) and Abdul Aleem Ansari vs. Mst.Zubaida Shaheen and another (2000 CLC 1873). He further contends that appellant has not denied ownership of the respondent in his written statement and thus he should not be permitted to turn back and to deny it. under the principle of estoppal. He also adds to his submissions that for maintaining an ejectment petition a landlord may not be an owner and

appellant having executed rent note in his favour cannot deny relationship between the parties and that too at the stage of second appeal.

1. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Respondent in support of his claim in the ejectment petition appeared as AW.l and stated that rent for the months of January and February 2002 and thereafter for the months of April and May 2002 was outstanding against the appellant. He admitted payment of rent of March 2002, which was remitted by the ^appellant through money order. A suggestion was put to him that rent for the months of January and February 2002 was received by his brother Adnan, who was produced by the appellant as RW. 1 and he admitted his signatures over receipts Exh. R. 1 and R. 2, but denied receipt of rent amounting to Rs. 7000/- for two months from the appellant. He deposed that his signatures were obtained on blank papers in the month of March 2002 and thus blank papers were controverted into receipts by the appellant. This witness though is brother of the respondent, but was summoned by the appellant and appeared in the witness-box on his behalf, so his stand will bind him. Both the receipts Exh. R. 1 and R. 2 were.deposed to have been subsequently controverted into receipts by the appellant yet it is manifest therefrom that rent of each month was payable by 10th of concerned month.' Adnan Fauzi RW.l has denied receipt of Rs. 7000/- from the appellant and besides this he was not a person authorized to receive rent on behalf of Respondent No. 1, as he was not his attorney. Both the receipts Exh. R. 1 and R. 2 though were prepared at one and the same time, as is clear from the statement of RW. 1, but are shown to have been executed on 10.1.2002 and 10.2.2002. This conclusion also lends support from the statement of the appellant himself (RW.2), as he stated that the amount of Rs. 7000/- was paid by him at one time to Adnan, thus it comes out that both the receipts are fake and if at all were executed by RW. 1, were unauthorizedly executed as he was not holding any attorney on behalf of Respondent No. 1. In this manner appellant did not make payment of rent for the months of January and February 2002.

2. Contention of learned counsel for the appellant that rent for both these months i.e. January and February could be made by the appellant within a period of 60 days after the rent became due, is misplaced because tenancy between the parties was written vide rent note dated 5.8.1997 for a period of three years commencing from 1st January 1998 to 1st January 2001. Under law when a tenant enters into a rented premises under some written agreement, after lapse of period mentioned 'therein, terms and conditions settled between the parties through written agreement, continue to govern the terms and conditions of the tenancy and it by no stretch of imagination becomes oral tenancy. Learned counsel for the respondent has rightly pointed out that rent payable by the appellant could be paid by 10th of the month of which rent is payable, meaning thereby that rent of December was to be paid till 10th of December. My this view gets support

from the judgments in the cases of Mst. Maqsooda Begum vs. Hamid MahmoodButt (1999 CLC 391), Ismail Adamjee vs. Mst. Bilquis Iqbal (1996 CLC 619) MehfoozAli vs. Mst. Parveen Fatima (PLJ 1998 Karachi 484) and Abdul Aleem Ansari vs. Mst. Zubaida Shaheen and another (2000 CLG 1873).

1. Judgments referred by the learned counsel for the appellant have no applicability to the facts and circumstances of the case in hand. Judgment of the Honourable Supreme Court of Pakistan in the case of MuhammadBaqar Qureshi (supra) specifies period for payment of rent in case of oral tenancies and written tenancies, separately and the point under discussion was not involved before the Honourable Supreme 'Court of Pakistan and thus appellant cannot get any help from this esteemed judgment. The other judgment relied by the learned counsel for the appellant As'ad Ejaz Ahmed(supra) also proceeds on altogether other facts, whereas judgments noted in the foregoing paragraph deal with the similar circumstances as involved in the case in hand. I accordingly hold that tenancy being written between the parties, where under rent for the month of January 2002 was payable by 10th of that month and rent for the month of February 2002 was payable by 10th of February 2002, but having not been paid by the appellant according, to those terms, he has become defaulter and liable to ejectment. Findings of the First Appellate Court are in accordance with the evidence and law enunciated by the superior Courts and thus calls for no interference by this Court. Ejectment of the appellant has rightly been ordered by the appellate Court and this appeal having no substance in it, is dismissed with no order as to costs. .

2. Since appellant is doing his business in the shop in question for the last almost five years, I allow him two months' time to vacate the same and to hand over possession thereof to Respondent No. 1 and if appellant fails in this behalf, Respondent No. 1 will have possession through process of execution.

(A.A.) Appeal dismissed.

PLJ 2004 Lahore 439

Present: syed sakhi hussain bukhari, J.

MUKHTARAN BIBI and 8 others-Petitioners

versus

SHABBIRAN BIBI-Respondent C.R. No. 579 of 2003, heard on 18.11.2003.

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

---S. 42--Civil Procedure Code, 1908 (V of 1908), S. 115-Suit for declaration claiming title of land in question on ground of gift dismissed by trial

Court and decreed by Appellate Court, assailed-Land in question was not included in gift deed-Marginal witnesses of gift deed had admitted that gift deed was read over to plaintiff and donor before attestation of same and that they had admitted the same to be true-Perusal of gift deed showed that same was properly worded and description of land has been very clearly stated therein—Intention of donor is very clear—None had raised objection during life time of donor about gift in question-Copy of Khasra Girdawari showed that defendants were in possession of land in question-Plaintiff was not shown to be in possession-Possession, of land in question having not been transferred to plaintiff and same having not been included in gift deed, she could not claim title thereof on ground of gift-Plaintiffs suit relating to land'in question was dismissed being without merit. [P. 442] A

PLD 1964 SC 143 and 1972 SCMR 50 ref.

Mian Ghulam Hussain, Advocate for Petitioners.

Mr. Taqi Ahmad Khan, Advocate for Respondent.

Date of hearing: 18.11.2003.

judgment

Mst. Shabbiran Bibi, respondent filed a suit for declaration etc. against the petitioners/defendants to the effect that she was owner in possession of suit land (measuring 4-Kanals 7-Marias) and petitioners/ defendants had no concern with the same. The plaintiff/respondent stated that her father, Rasool Bux was owner of land measuring 24-Kanals 13-Marlas and he transferred the same in her favour vide registered gift deed .dated 14.2.1991 and since then she was in possession of the same. She further stated that inadvertently land mentioned in Para No. KB) of plaint (measuring 4-Kanals 1-Marlas out of 13-Kanals l-Marla Khewat No. 195/743, Khasra Nos. 1437, 1438, 1439 and 1565, according to record of rights for the years 1987-1988) could not be entered in the registered gift-deed. She maintained that her father had transferred his entire land situated in village Baghiari, Tehsil Pasrur in her favour by way of gift and also delivered her possession and since then she was in possession of the same. She alleged that she asked the defendants (legal heirs of Rasool Bux being brothers and sisters) to admitt her to be owner of th§ suit land but they resisted, therefore she was constrained to file suit. The petitioners/ defendants mentioned in their written statement that plaintiff was not in possession of the suit land rather they were in possession of the same as-owners. On the pleadings of the parties, following issues were framed.

ISSUES;

1. Whether the plaintiff has no locus-standi and cause of action to file the suit? OPD

2. Whether the suit is not proceed-able in its present form ? OPD

3. Whether the plaintiff is estopped by her words and conduct to file the suit ? OPD

4. Whether the suit is false and frivolous and vexatious and the defendants are entitled for recovery of special cost under Section 35-A of CPC if so, to what extent? OPD..

5.Whether the land measuring 4 kanals 7 marlas as detailed in Para No. 1-B of the plaint was also gifted to the plaintiff by her deceased father alongwith other property on 14.2.1991 and she is entitled for decree as prayed for? OPP

1. Relief.

The parties adduced evidence in support of their respective claims and suit brought by plaintiff/respondent was dismissed videjudgment dated 28.10.1999. Mst. Shabbiran .Bibi, respondent filed appeal against the said-judgment, which was accepted vide judgment dated 3.2.2003 passed by learned Addl. District Judge, Pasrur. Hence, this revision petition.

1. I have heard the arguments and perused the record.

2. As mentioned above the plaintiff has filed suit regarding land measuring 4-Kanals 1-Marlas situated in Khewat No. 195/743. The case of Mst. Shabbiran Bibi, (respondent/plaintiff) is that her father had transferred suit land in her favour as he transferred entire agricultural land situated in Village Baghiari, Tehsil Pasrur (measuring 24-Kanals 13-Marlas)but inadvertently suit land could not be entered in registered gift-deed dated 14.2.1991. However, case of petitioners/defendants is that Rasool Bux, father of respondent/plaintiff had transferred only land measuring 20-Kanals6-Marlas.The perusal of registered gift-deed dated 14.2.1991 shows that Rasool Bux had transferred land measuring 20-Kandls 6-Marlas situated in Khewat Nos. 53, 59, 61, 67, 138, 142, 217, 254, 279 and 285 in favour of Ms?. Shabbiran Bibi, plaintiff/respondent. In gift-deed (Ex, P.I) description of land (Khewat, Khatuni and number of total fields) has been given clearly. There is no mention of disputed land (measuring 4-Kanals 1-Marlas out of 13-Kanals 1-Marla Khewat No. 195/743 bearing Khasra Nos. 1437, 1438, 1439 and 1565 mentioned in Para No. 1-B of the plaint) in Ex. P. 1. So her claim is baseless.

3. The plaintiff examined Siraj Din son of Abdullah as PW.l. He' stated that Rasool Bux. had transferred entire land in favour of his daughter and he (PW.l) had thumb marked the gift-deed. He further stated that Sain Liumbardar and Rasool Bux had also thumb marked Ex. P.I and plaintiff was in possession of suit land. During cross-examination he, admitted that Ex. P.I was read over to him before obtaining his thumb impressions. He also admitted that he and Sain Lumbardar thumb marked the same after hearing and understanding the contents of the same. He stated that Rasool Bux died about one year back. The witness stated that Rasool Bux had transferred entire land in favour of her daughter Mst. Shabhiran Bibi by way of gift except one number It shows that Rasool Bux and marginal witnesses had thumb marked the gift-deed after it was read over to them and that Rasool Bux had not transferred entire land in favour of plaintiff. Sain Ahmad Lumbardar appeared as DW.l and stated that father of Shabbiran Bibi had given her land measuring 2Q-Kanals 6-Marias and he (DW.i) was marginal witness of registered gift-deed. He further stated that registered gift-deed was read over to him. The witness also stated that her father had not transferred in her favour land measuring 4-Kanals. It is clear from the statements of PW.l and DW.l (marginal witnesses"of registered gift-deed Ex. P.I) that registered gift-deed was read over to them before attestation of the same. As mentioned above registered gift-deed 'indicates that land measuring 2Q-Kanals 6-Marlas only had been transferred in favour of Shabbiran Bibi plaintiff/respondent. As such she cannot say that suit land (measuring 4-Kanals 1-Marias was also transferred in her favour.

4. The perusal of Ex. P.I shows that the same is properly worded gift-deed. The description of property has been very clearly stated in the same. The intention of donor is also clear from Ex.P.l Admittedly Rasool Bux, donor died about 1M years after the registration of gift-deed but none raised objection about the gift during his life. It shows that he intended to transfer only land measuring 20-Kanals 6-Marlas. The perusal of copy of Khasra Girdawari for Kharif 1989 to Rabi 1993 crops (Ex. D.2) shows that petitioners/defendants were in possession of the suit land as purchasers. This document (Ex. D.2) does not show that Mst. Shabbiran Bibi plaintiff/respondent had obtained possession of the suit land on the basis of alleged gift. The delivery of possession is necessary on the basis of gift. Reliance can be placed on the case of Shamshad Alt Shah and others versusSyed Hassan Shah and others (PLD 1964 Supreme Court 143) and the case ofAshiq Hussain and another versus Ashiq Alt (1972 SCMR 50). In these circumstances it becomes crystal clear that donor had not transferred land measuring 4-Kanals 1-Marlas in favour plaintiff/respondent and she had filed suit only to deprive the defendants/petitioners of the suit property. As such learned trial Court had rightly dismissed the suit brought by respondent/plaintiff. The perusal of judgment dated 3.2.2003 shows that learned Addl. District Judge failed to appreciate the evidence available on record, which has resulted in mis-carriage of justice. As such impugned, judgment is not sustainable in the eyes of law and justifies interference by this Court.

5. The upshot of the above discussion is that this revision petition is accepted, impugned judgment is set aside and suit brought by Mst.Shabbiran Bibi, plaintiff/respondent is accordingly dismissed. No order as to costs.

(A.A.) Revision accepted.

PLJ 2004 Lahore 443

Present: MUHAMMAD MUZAMMAL KHAN, J. SHEIKH KHURSHID MEHBOOB ALAM--Petitioner

versus

MIRZA HASHIM BAIG and another-Respondents C.R. No. 2284 of 2002, heard on 10.12.2003.

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

—-O. XVII, R. 3--Closing of evidence in terms of O:XVH, R. 3 C.P.C.-- Essentials--For taking action under O.XVII, R. 3 C.P.C., relevant case on preceding date should have been adjourned on request of the party being penalized-Adjournment of present case was not adjourned on request of plaintiff/respondent, therefore, provisions of O.XVII, R. 1 C.P.C. could not have been taken. [P. 445] A

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

—-O.XVII, R. 3 & S. 115-Closing of plaintiffs evidence-Plaintiffs right to lead evidence was closed on specified date and by that time there was no material available for decision by trial Court in absence of which, no judicious determination could be made-Trial Court therefore, should have proceeded under R. 1, instead of 3 of O. XVII, C.P.C.-Closing of evidence of plaintiff under O.XVII, R. 3 C.P.C. being not warranted, Appellate Court had rightly remanded case for decision afresh in accordance with law. [Pp. 446 & 447] B & D

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

—- O.XVII, R. 3-Two suits of rival pre-emptors consolidated by trial Court-­ Dismissal of respondents suit in terms of O.XVII, R. 3 C.P.C. where against appeal was pending-Plaintiff/petitioner's suit decreed during pendency of appeal against which respondent did not file appeal-Both suits by rival pre-emptors having been consolidated, petitioner's suit should not have been decided singly-Both rival pre-emptors having been impleaded in cross-suits, and petitioner being party to suit of respondent, his decree remained subject to scrutiny by Court cognizant of suit of. respondent-Appellate Court had thus, taken rightful view on application of petitioner relating to dismissal of respondent's suit which was pending for decision before it. [P. 446] C

PLD 2003 SC 180; 1985 SCMR 585; 1998 CLC 610; 2001 CLC 1899; 2002 CLC 574; PLD 1991 SC 1109; PLD 1986 SC 129; PLD 1969 SC 270 and

1998 SCMR 2296;

Mr. Shaukat Hussain Khan Baloch, Advocate for Petitioner. Malik Amjad Parvez, Advocate for Respondents. Date of hearing: 10.12.2003.

judgment

This judgment proposes to decide two revision petitions (Civil Revisions Nos. 2284 and 2285 of 2002) which assail judgment and decree dated 22.6.2002 passed by the Additional District Judge, Daska, District Sialkot, whereby appeal of Respondent No. 1 was accepted, judgment and decree dated 24.3.1998 passed by the trial Court was set aside and the case was remanded to the trial Court for its decision, in accordance with law.

1. Additional District Judge while accepting appeal of Respondent No. 1 simultaneously dismissed application of the petitioner under Order XLI, Rule 27 CPC, whereby he had prayed that in view of decretal of his pre­ emption suit appeal of Respondent No. 1 has become infructuous with an added prayer for permission to produce copies of judgment and decree in his suit and that of the execution petition by way of additional evidence.

2. A short factual background of the case is that sale of land through a registered sale-deed dated 20.9.1994 in favour of Respondent No. 2 was pre-empted by the petitioner, as well as, Respondent No. 1 by filing two independent separate suits, which were consolidated by the trial Court on 1.4.1996. Suit of Respondent No. 1 after adjournments on different occasions, was on 24.3.1998 fixed for evidence of Respondent No.I/plaintiff, when he was proceeded against under Order XVII, Rule 3 CPC on account of non-production of evidence and his right to produce evidence was closed, consequently his suit was dismissed for lack of proof, on the same day. Respondent No. 1 filed an appeal against the judgment and decree dated 24.3.1998 assailing order passed by the trial Court under Order XVII, Rule 3 CPC before the Additional District Judge, Daska, District Sialkot. Pending this appeal, suit of the rival pre-emptor-Sh. Khurshid Mahboob, the petitioner, was decreed by the learned trial Judge on 24.2.1999. Petitioner filed an application before the Additional District Judge with whom appeal of Respondent No. 1 was pending praying that appeal may be dismissed as having become infructuous, in view of decretal of suit of the petitioner.

3. Additional District Judge took up both the matters, appeal of Respondent No. 1 and application of the petitioner, referred to above, on- 22.6.2002 and vide his judgment and decree of even date, accepted the appeal of Respondent No. 1, set aside the order of the trial Court passed under Order XVII, Rule 3 CPC and remanded the case to the trial Court for its decision on merits, in accordance with law. Appellate Court while accepting appeal of Respondent No. 1 dismissed the application filed by the petitioner seeking abatement of appeal. Petitioner has now come up in revisional jurisdiction of this Court by filing two separate revision petitions, noted above, for setting aside the judgment and decree of the appellate Court.

4. Learned counsel for the petitioner submits that judgment and decree dated 22.6.2002 is not sustainable as Respondent No. 1 was rightly proceeded against under Order XVII, Rule 3 CPC for non-production of evidence and if order closing evidence of Respondent No. 1 is sustained, order impugned becomes redundant. Learned counsel for the petitioner further contends that decree in favour of the petitioner has not been challenged by Respondent No. 1 and thus has attained finality. According to him, in presence of decree in favour of the petitioner, suit of Respondent No. 1 cannot proceed. Learned counsel for the petitioner in support of his submissions, referred to the case of Ghulam Qadir alias Qadir Bakhsh vs.Haji Muhammad Suleman and 6 others (PLD 2003 SC 180).

5. Conversely, learned counsel for Respondent No. 1 controverted the submissions of the petitioner and supporting decision of the appellate. Court, urged that for proceeding against.a party under Order XVII, Rule 3 CPC, case should have been adjourned on his request, on the preceding date and according to hirn since the suit of Respondent No. 1, on the preceding date i.e. 26.2.1998, was not adjourned on request of the plaintiff/Respondent No. 1, he could not have been proceeded against under Order XVII, Rule 3 CPC and thus the order of the trial Court was rightly set aside by the appellate Court. He further argued that routine orders adjourning cases, not on request of the party penalized, do not furnish lawful basis for the orders, like the one passed in this case. He graded the preceding order, from which the case was adjourned to 24.3.1998 as a routine order. He in support of his stance, referred to judgments in the cases of Syed Tasleem Ahmed Shah vs.Sajawal Khan etc. (1985 SCMR 585) Hadi Bakhsh vs. Additional DistrictJudge and others (1998 CLC 610), Irshad All and another vs. MunawarKhan (2001 CLC 1899) and Chanan Din vs. Ghulam Haider and 8 others(2002 CLC 574). It is also the case of Respondent No. 1 that inspite of decree in favour of the petitioner, his suit will proceed because decree in favour of a rival pre-emptor can be adjudged in his suit. In support of his this assertion he referred to a judgment of the Honourable Supreme Court of Pakistan in the case of Qutab-ud-Din vs. Gulzar and 2'others (PLD 1991 SC 1109). Learned counsel for Respondent No. 1 further urged .that in view of the dictum of the Honourable Supreme Court of Pakistan in the case of Qutab- ud-Din (supra), petitioner's application seeking abatement of appeal before the Additional District Judge becomes meaningless.

6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Right of Respondent No. 1 to produce evidence was closed on 24.3.1998 under Order XVII, Rule 3 CPC on account of his failure to produce evidence, as required by the Court. It is settled law that for taking penal action under the provisions in question, case on the preceding date should have been adjourned on the request of the party being penalized and this date in the case in hand is 26.2.1998. Order passed by the trial Court on 26.2.1998 observes that both the counsel for the parties were present and the Court after hearing arguments on an application for summoning of the witnesses, allowed the same subject to payment of Rs. 50/- and adjourned the case for recording of evidence of Respondent No. I/plaintiff. It is manifest from this order that the case was not adjourned on the request of Respondent No. 1 and the order passed is a

routine order accepting application, as noted above. Since adjournment of case from 26.2.1998 to 24.3.1998 was not at the behest or on the request of Respondent No. .1, action under the provisions of Order XVII, Rule 3 CPC could not have been taken. I have borrowed this view point from the judgment of the Honourable Supreme Court in the case of Syed Tasleem Ahmed Shah vs. Sajawal Khan etc. (1985 SCMR 585). In this precedent case was fixed for evidence of the defendant and his counsel requested for adjournment, which was not objected by his adversary, the plaintiff. It was-held that non-raising of objection by the plaintiff to the grant of adjournment does not amount to granting time to the defendant on his request and hence provisions of Order XVII, Rule 3 CPC could not have been applied as the order passed, was a routine order. This view was later affirmed in another judgment of the Honourable Supreme Court in the case of Haji Muhammad Ramzan Saifi vs. Mian Abdul Mqjid and others (PLD 1986 S.C. 129) and other judgments relied by the learned counsel for the respondent.

1. There is another aspect of the case that Respondent No. 1 was

d-tplaintiff in the suit and his right to lead evidence was closed on 24.3.1998, by

that time there was no material available for decision by the trial Court, in

absence of which, no judicious determination could be made, as such, the

trial Court should have proceeded under Rule 1 instead of Rule 3 of Order XVII of the Code of Civil Procedure. In this behalf, I am fortified by a chain of alighted judgments of the Honourable Supreme Court of Pakistan,- like in the cases of Muhammad Haleem and others vs. H.H. Muhammad Nairn and others (PLD 1969 S.C. 270) and Syed Haji Abdul Wahid and another vs. Syed Sirajuddin (1998 SCMR 2296). Judgment in the case of Ghulam Qadir alias Qadir Bakhsh (supra)deals with the eventuality when neither the parties or any of them appeared nor produced their evidence, the Honourable Supreme Court held that the Court should proceed under Order XVII, Rule 2 CPC. In this case plaintiff or his witnesses did not appear for long three years without any valid reason and thus invocation of Rule 3 of the above referred Order-was held to be rightly invoked but in the instant case Respondent No. 1 was present through his counsel. From scan of record, as noted above, judgment of the Honourable Supreme Court of Pakistan, I find that appellate Court has rightly intervened, by accepting appeal of Respondent No. 1 and has correctly set aside the order dated 24.3.1998 of the trial Court passed by it under Order XVII, Rule 3 CPC and since the case could not have been decided on the available record, the case was correctly remitted back.

1. Taking up the objection of the petitioner that in view of decree in his suit, which has not been challenged by Respondent No. 1 and which, according to him, has attained finality, makes the appeal or suit of Respondent No. 1 infructuous, I find that both the suits by the rival pre-emptors were consolidated on 1.4.1996 and as such should not have been decided singly. Both the rival pre-emptors have be.en impleaded in these cross suits and since petitioner is a party to the suit of Respondent No. 1, his decree remains subject to scrutiny by the Court cognizant of the suit by

Respondent No. 1. In a similar situation where two suits were filed and one of those was decided, the Honourable Supreme Court of Pakistan remanded the case by setting aside decree of the rival pre-emptor in the case of Qutab-ud-Din (supra). Since decree passed in favour of the petitioner is not subject matter of instant civil revision and if at all, it has attained finality, it is opened for the petitioner to assert so before the trial Court, before whom he' is party as a defendant, as observed above. I cannot see an eye to eye with the learned counsel for the petitioner especially in view of authoritative dictum by the Honourable Supreme Court of Pakistan in the case of Qutab-ud-din (supra)and I feel that appellate Court has taken a rightful view on this application of the petitioner.

1. All this brings me to conclude that judgment and decree, impugned, is in consonance with the law, evidence on the file and the record, the appellate Court has not committed any illegality or irregularity and there had been no misreading or non-reading of the file, in absence of which, no interference is permissible under law. Both the revision petitions (Civil Revisions Nos. 2284 and 2285 of 2002) having no merit in those, are consequently dismissed with no order as to costs.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 447

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq, J-

M/s. HASHWANI HOTELS LIMITED through FINANCIAL CONTROLLER, ISLAMABAD-Petitioners

versus

CAPITAL DEVELOPMENT AUTHORITY ISLAMABAD through its CHAIRMAN-Respondent

W.P. No. 201 of 1997, decided on 11.11.2003.

Constitution of Pakistan (1973)--

—-Art. 199-Property tax-Petitioners whether liable to be charged as Industrial concern-Terms, "Industrial", "Institution" and "Commercial" having not been defined in relevant Rules framed by Government, imposition of "Property Tax" and recovery thereof, was governed by regulatory orders issued from time to time-Office Memorandums or notifications being relied upon by petitioners showed that concerned Authorities like WAPDA or Ministry of Oil and Gas or Ministry of Tourism or Ministry of Industries have included "Hotels" and allied business like restaurants or motels in the term "Industries" for application of relevant laws-Effect of relevant office Memorandum and notifications is that Hotels stand included in "industry", therefore, till such time that a statutory statement including Hotels located in capital territory is not made by competent Authority, petitioner cannot as of right be charged as an industrial concern vis-a-vis said property tax just by reference to action taken by said other Authorities vis-a-vis application of applicable laws or statutory Rules in the matter of applicable tariff-Writ petitions were thus, not maintainable.

[P. 449 & 450] A

Mr. M. Afzal Siddiqui, Ch. Ghazanfar Ali and Mr. Mahboob Mam, Advocate for Petitioners.

Malik M. Nawaz, Advocate for Respondent. Date of hearing : 28.10.2003.

judgment

. This judgment shall decide W.Ps. Nos. 201/97, 1707/98, 1522/98, 744/98, 3475/01, 3578/01, 52/02 and 1358/02 as common questions are involved.

1. The petitioners in all these cases own and operate Hotels in the Islamabad Capital Territory. The writ petitions were filed to question the very imposition of property tax in the said Capital Territory by the respondent-CDA and its recovery. It was further pleaded that the petitioners are liable to be charged as industrial concerns. All present state that the said first matter of the imposition, levy and recovery of the-property tax stands resolved by this Court as also by the Hon'ble Supreme Court of Pakistan inasmuch as the respondent-CDA has the requisite authority to impose and recover the said tax. The only question now required to be decided is as to at' what rate the petitioners are liable to be charged. Both the parties have placed on record various instruments and statutes that were made or enacted by the Federal Government as also the respondent-CDA in this behalf. A perusal of the same would reveal that the properties were categorised as follows for purposes of levy of the said property tax as per Rules prescribed for each category. These are:-

(i) Industrial/Institution, (ii) Residential Plots, (iii) Commercial Plots, (iv) Petrol Pump.

1. The learned counsel appearing for the petitioners in these cases rely upon an Office Memorandum dated 22.7.1990 of Government of Pakistan in the Ministry of Industries & Production (Industries Wing) whereby the Toursim has been declared to be an Industry and consequently the Hotels/Motels/Restaurants which promoted the tourism may be treated as Industrial concerns/units. They also rely upon a letter dated 22.9.1990 issued by WAPDA, Lahore, informing a Section Officer in the Ministry of Water & Power, Government of Pakistan, that the hotels/lodges and restaurants are charged on Tariff A-2. However, supply to three phase 400 volts compressors and pump motors of air conditioning equipments installed' in the centrally air conditioned premises and other three phase 400 volts apparatus of general utility in the premises are governed by appropriate industrial tariffs. They also referred to the Notification No. 1178CD/94 dated 5.12.1994 issued by the Ministry of Petroleum and Natural Resources whereby hotel industiy has been included under the heading "Industrial Consumers". Reference is also made to CDA Notification dated 28.6.1995 classifying the Residential, Non-residential and further Commercial and Industrial categories of properties as also Petrol Pumps. The contention is that commercial properties located in the specified areas are to be charge on the said rate whereas the Industrial/Institutions are to be charged separately. The case of the petitioner in W.P. No. 201/97 is that it is npt located in any of the areas mentioned under the heading "Commercial". Another O.M. dated 22.7.1996 of the Ministry of Industries & Production with reference to O.M. dated 20.5.1996 of the Sports and Tourism Division has been relied whereby the Hotels, etc. which promote the tourism may be treated as Industrial concerns/units. Minutes of a meeting dated 31.5.2002 and also a reference made by the Ministry of Industries and Production vide O.M. dated 20.1.2003 for considering and settling the issue have also been referred.

2. Learned counsel for the CDA-respondent, on the other hand contends that vide Notification No. 783(I)/2003 dated 9.8.2003 non- residential properties outside commercial areas have been included in the' heading "Commercial" in the Notification No. 24(I)/2001 dated 11.1.2001.- According to him, the CDA has not agreed to the declaration of the Hotels as an Industry for the purpose of imposition of the property tax lawfully levied by it. According to the learned counsel, the classification of the plots has been indicated in the Islamabad Land disposal Regulations, 1993 framed in exercise of the powers conferred under Section 51 and Section 49 of the CDA Ordinance, 1960. According to Regulation No. 3 Commercial and Business plots include plots located in commercial areas meant for use, inter alia, as hotels or Motels. Similarly Industrial Plots have been defined in Regulation No. 3(5) and according to the learned counsel the petitioners do not fall in the said category.

3. I have given some thought to the respective contentions of the learned counsel in the light of the said submissions made by them. Now the term "Industrial" or "Institution" or for that matter "Commercial" has not been defined as such in the Rules framed by the Federal Government for the imposition of the said tax and recoveiy thereof or for that • matter in Statutory regulatory orders issued from time to time. Now the several Office Memorandums or Notifications being relied upon by the petitioners would show that the concerned Authorities like WAPDA or Ministry of Oil and Gas or the Ministiy of Tourism or -the Ministry of Industries have included the Hotels and the allied business like restaurants or motels in the term "Industries" for the application of the relevant laws. It neecj not be stated that it is by an extension of a term that the inclusion clause is effected. Now the effect of the said OMs and Notifications is that the Hotels stand included in the "Industry" as defined in the laws governing the tariffs of WAPDA or Sui Southern or Northern Gas Pipelines Limited or the application of the Customs Laws. It is but evident that till such time that a Statutory enactment including the Hotels located in Islamabad Capital Territory in the term "Industry" of "Industrial" or "Institution" is not made by the competent authority, the petitioner cannot as of right claim to be charged as an Industrial concern, vis-a-vis the said property tax just by reference to the action taken by the said other Authorities vis-a-vis the application of the applicable laws or Statutory Rules in the matter of applicable tariff. All the writ petitions are accordingly dismissed. No orders as to costs.

(A.A.) Petitions dismissed.

PLJ 2004 Lahore 450

Present: M. AKHTAR shabbir, J. MAHMOOD ELAHI PARACHA-Petitioner versus

DEPUTY DISTRICT OFFICER (REVENUE), MANDI BAHAUDDIN. and another-Respondents

W.P. No. 6243/B of 2003, heard on 4.11.2003.

(i) Criminal Procedure Code, 1898 (V of 1898)--

—Ss. 154 & 156-Alleged cognizable crime-Police under S. 156 Cr.P.C. has statutory right to investigate circumstances of alleged cognizable crime without permission from judicial authorities-Such statutory right cannot be interfered with by judiciary-Parallel civil as well as criminal inquiry can continue before appropriate forum-Revenue Officer concerned however, was not appropriate forum in matter in question, therefore, he lacked jurisdiction to make inquiry, with regard to private property of a person—Inquiry conducted by Revenue officer concerned relating to genuiness or ingenuiness of sale-deed duly registered by Registration officer was thus, not sustainable and same was quashed. [P. 456] D

(ii) Pakistan Penal Code, 1860 (XLV of I860)--

—Ss. 463, 471, 475 & 476-Criminal Procedure Code, 1898 (V of 1898), S. 195-Constitution of Pakistan (1973), Art. 199 Prosecution of offences described in S. 463 and punishable under Ss. 471, 475 & 476-Mode of---No Court would take cognizance of any offence described in S. 463 or punishable under Sections 471, 475 & 476 P.P.C., when such offence-was alleged to have been committed by a party to any proceedings in any Court in respect of a document produced or given in such proceeding . except on complaint in writing of such Court or of some other Court to which such Court was subordinate-Civil Court had not yet determined that alleged sale-deeds were result of fraud and fabrication-Enquiry conducted by Revenue Officer concerned relating to genuiness or ingenuineness of sale-deed in question was, thus, without lacking of any legal authority, therefore, same were declared to have been initiated illegally and without lawful authority and being of no legal effect were quashed. [Pp. 455 & 457] C & E

(ill) Registration Act, 1908 (XVI of 1908)--

—Ss. 58, 59 & 60-Civil Procedure Code (V of 1908), S. 9-Registered documents--Presumption-Adjudication with regard to genuineness/ ingenuniness-Presumption of truth is attached to registered documents under Sections 58 to 60 of Registration Act 1908-Adjudication with regard to genuineness/ingenuiness of registered documents can be made by Court of competent jurisdiction i.e. Civil Court under S. 9 of C.P.C.

[P. 454] A-

(iv) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—-Ss. 172 & 175-Registration Act, 1908 (XVI of 1908), S. 34-Jurisdiction of Revenue Officer—Extent of—Registered sale-deed cannot be challenged before Revenue Officer-Neither West Pakistan Land Revenue Act 1967, nor colonization of Government (Lands) Act 1912, empowers Revenue officer to take cognizance of genuiness or ingenuineness of registered document—Registered sale-deed can only be challenged through civil suit which is competent to declare same as forged and fabricated. [P. 454] B

Sh. Naveed Shakaryar, Advocate for Petitioner.

Malik Noor Muhammad Awan, Advocate for Respondent No. 2.

Date of hearing: 4.11.2003.

judgment

A complaint was filed, by Respondent No. 2 Falak Sher on 1.1.2002 before Army Monitoring Cell and Inspection Team Mandi Baha-ud-Din, praying to initiate criminal proceedings against Sabir Hussain Shah son of Akbar Shah resident of Kandhanwala, Mehmood Elahi son of Manzoor Elahi caste peracha resident of Phaliya Road Mandi Baha-ud-Din, and Mohsin Nazir Barki the then Sub-Registrar and others, for cancellation of the registered deeds Nos. 997 and 998 alleging therein that he had purchased a piece of land measuring 2 Kanal in Khewat No. 3 Khatuni Nos. 53 to 57 situated in village Kandhanwala Tehsil & District M.B Din from Saeed Muhammad son of Jewan through registered deed No. 678 dated 30.8.2000 and after completion of the sale-deed, he constructed there five shops. After construction of the shops, said Sabir Shah in collusion with Mehmood Elahi peracha the present petitioner got prepared a 'fard-badr' and on the basis of 'Fard badr' entered into a mutation and got sanctioned two registered deeds Nos. 997 and 998 from Mohsin Nazir Burki, the then Sub-Registrar M.B. Din defining the boundaries of the constructed shops belonging to the applicant Falak Sher Respondent No. 2 herein. He further stated in the application that he brought this fact into the knowledge/notice of Sub-Registrar who himself visited the spit and intentionally and deliberately sanctioned the sale-deeds and caused a heavy loss to him. He alleged in his application that all fraud was committed in order to deprive him from the valueable property/shops, which he had constructed from his own pocket. The enquiry was entrusted to the Deputy District Officer (Revenue) namely Mehr Maqsood Ahmad Luk, who called both the parties and heard them at length. On his transfer, the enquiry was entrusted to present Respondent No. 1. The Respondent No. 1 vide, his impugned report concluded that the sale-deeds Nos. 997 and 998 on the basis of 'fard badr' were fabricated and forged documents and observed that these wrong registered deeds were, liable to be cancelled and that the electricity meter installed at the land of the petitioner is liable to be removed and a new one is to be installed in the name of real owner of the land namely Falak Sher Respondent No. 2. He also initiated criminal proceedings against Sabir Hussain and Mehmood Elahi the vendor and the vendee.

1. The petitioner Mehmood Elahi has taken exception to the inquiry report dated 5.2.2003 through the instant writ petition.

2. Pre-admission notice was issued to the respondents and today Malik Noor Muhammad Awan advocate has entered appearance on behalf of Respondent No. 2. Falak Sher.

3. Learned counsel for the petitioner has -contended that three civil suits (i) Muhammad Ashraf etc. vs. S,abir Hussain Shah and Hadi HussainShah for declaration with regard to the land measuring 2 kanal bearing Khatuni Nos. 3/54 to 57 situated in Mauza Kandhanwala Tehsil and District M.B. Din as per record of rights for the year 1996-97, (ii) Imtaiz HussainShah and another us. Saee son ofJewan and others and (iii) Mehmood Elahi Peracha vs. Saee son ofJewan etc. All the three suits were filed with regard to the land situated in Khasra Nos. 1654, 1886, 1889, 1652 and 1653, 1261, 1247/811/1, 1247/811/1, 1554/1247/811, 1247/811 and 824. The learned counsel further contended that during pendency of the above said civil suits the said application had been filed by the applicant/Respondent No. 2 and all. the above mentioned suits Falak Sher is a party, somewhere as plaintiff and somewhere as defendant. Also contended that Respondent No. 1 was not competent to adjudicate upon the validity of the sale-deeds. It is the Civil Court, which is competent to determine the genuineness/ingenuineness of the registered documents.

4. Oh the other hand, learned counsel for Respondent No. 2 vehemently oppose the arguments of learned counsel for the petitioner contending that the petitioner acquired the land through forged and fabricated sale-deeds in connivance with Sabir Hussain Shah who was not owner of the land. Further contended that Inquiry Officer/ Respondent No. 1 has given its findings under the direction of the High Court in a Writ Petition No. 6575/2001 filed by Respondent No. 2- titled 'Falak Sher vs. Assistant Commissioner, Mandi Baha-ud-Dln. It is further contended that the parallel proceedings of civil and criminal can be proceeded against a person who committed forgery and acquired the property through deceitful means. He relied upon the case of Muhammad Shaft us. DeputySuperintendent of Police, Narowal and 5 others (PLD 1992 Lahore 178) and Muhammad Azam vs. Saee Muhammad and others (2000 SCMR 774).

5. I have heard the arguments of learned counsel for the parties, perused the record at limine stage and decided to dispose of the same as a- notice case.

6. Respondent No. 1 had filed a complaint before the Army Monitoring Cell on 1.1.2001 complaining against the petitioner and one Sabir Hussain Shah that they by clapping hands with each other prepared the alleged Sale-Deed Nos. 997 and 998 depriving of the petitioner from his property.

7. Falak Sher Respondent No. 2, alongwith Muhammad Ashraf, Muhammad Raiz, Qamar-uz-Zaman'his real brothers had filed suit for declaration against Sabir Hussain Shah and others claiming in the plaint that they are owners in possession over the property in dispute vide a registered Sale-Deed No. 678 attested on 30-8-2000 restraining the defendants Sabir Hussain Shah and another from alienating the said property more than their share. The suit was instituted on 12-9-2000 and the other suit with regard to the same property had been filed by Imtiaz Hussain Shah, Nusrat Tauqir, Haider Shah sons of Syed Aman Ullah Shah against Saee son of Jewan, Muhammad Ashraf, Falak Sher and his brothers Sabir Hussain Shah and Hadi Hussain challenging the registered Sale-Deed No. 678 executed in favour of Respondent No. 2 and others with regard to the same subject matter. This suit was instituted on" 1.12.2000 in which present petitioner filed an application under Order 1 Rule 10 CPC to be impleaded as a party but his request was declined by the trial Court as well as the revisional Court and at last the present petitioner filed .his own suit against Respondent No. 2 and others with regard to the same property, i.e. shops allegedly claimed by Respondent No. 2. This suit was filed on 16.7.2001.

8. Respondent No. 2 lodged the complaint on 1.1.2001 while both suits referred to above were filed prior to the complaint. The subject matter/suit property in these suits was the same and during pendency of

these suits, the D.D.O.(R) initiated enquiry proceedings with regard to the sale-deeds.

1. The presumption of truth is attached to the registered documents under Sections 58 to 60 of the Registration Act. The adjudication with regard to the genuineness/ingenuineness of the registered documents can be made by a Court of competent jurisdiction and that is the Civil Court under Section 9 of CPC.

2. The Revenue Officer under Section 172 of the Land Revenue Act, 1967 is empowered to dispose of or take Cognizance of the matter in which Government, the Board of Revenue vest on it, the revenue officer has the exclusive jurisdiction to deal with the matters as provided in sub-section (2) of Section 172 of the Act. The Revenue Officer further enjoys the power under Section 175 of the Act to remove encroachment made by any person from the land reserved for common purposes.

3. So far as the enquiry with regard to the registered documents is concerned, there is no provision in the West Pakistan Land Revenue Act 1967 which empowers a Revenue Officer to inquire into such like matter. Even the Colonization of Government Lands Act, 1912 has not. empowered the Revenue Officer to take cognizance of the matter like the matter in hand.

4. The registered Sale-Deed Nos. 997 and 998 registered by the Sub-Registrar under the Registration Act can be challenged through a civil suit and it is the Civil Court which is competent to declare the same as a forged and fabricated. A procedure is provided in Section 34 of the Registration Act, 1908 to make an enquiry before registration by the Sub- Registrar which reads as under:-

Section 34(l)~Subject to the provisions contained in this part and in Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24,- 25 and 26 provided that if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the pi\oper registration fee, in addition to the fine, if any, payable under Section 25, the document may be registered.

The Registration Officer shall thereupon-

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed.

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document,, and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

(4) An application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

It means that if there is any complaint to the Sub-Registrar he can make enquiry in this regard before registering the document. In this case the Sub-Registrar had made inquiry at site and thereafter registered the Sale-Deeds Nos. 798 and 799.

1. The present petitioner had filed a suit for declaration in respect of the property in dispute on the basis of said two registered sale-deeds attested on 16.12.2001 in his favour which were the subject matter of the suit. Section 195 Cr.P.C. deals with the prosecution for certain offences relating to documents given in evidence and this section further emerges, that no Court shall take cognizance of any offence described in Section 463 or punishable under Sections 471, 47.5 and 476 PPC, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in such proceeding except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate-lS. The Civil Court has not determined as yet that the alleged sale-deeds (798 and 799) were result of fraud and fabrication. The proposition dealt with by a Full- Bench of this Court was the interpretation of .Section 195(l)(c) wherein it was held that the offences mentioned in this clause are non-cognizable offences and the police has, before it can embark upon their investigation, to obtain the permission of a Magistrate. The facts of this case and the proposition are not attracted to this case.

2. The question that boils down for determination in this case is whether the D.D.O. (R) was competent to adjudicate or make an investigation with regard to registered sale-deed, registered under the Registration Act.

3. It is the power of a police officer to register a case/F.I.R. on a complaint made to it with regard to commission of a cognizable offence. Section 154 of the Cr.P.C. contemplates that every information relating to the commission of a cognizable offence, if given orally to an officer incharge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, any every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government prescribe in this behalf.

Section 156 Cr.P.C. further narrates that (1) any officer incharge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under sub-section (3) of Section 156 of the Cr.P.C. is empowered under Section 190 to make investigation as above mentioned.

1. From the plane reading of the above provisions o\ Section 156 Cr.P.C. it is, therefore, manifestly clear that the police under this Section has the statutory right to investigate the circumstances of the alleged cognizable crime without any permission from the judicial authorities and such statutory right cannot be interfered with by the judiciary.

2. There is no cavil with the fact that the parallel civil as well as criminal inquiry can continue before the appropriate forum but Respondent No. 1 D.D.O(R) was not the appropriate forum in this regard. He lacks the jurisdiction to make any inquiry with regard to the private property of a person. Respondent No. 2 neither based the findings of the Civil Court nor approached the police officer in exercise of his power under Section 154 Cr.P.C.

3. As to the argument of the learned counsel for the petitioner that the D.D.O. has proceeded under the direction of this Court passed in Writ Petition No. 6576/2001 titled 'Falak Sher us. A.C etc.' This petition was filed by Respondent No. 2, which came up for hearing before this Court on 23.4.2001. The complaint before the Army Monitoring Cell filed by the. petitioner, was submitted on 1-1-SOOl which was remitted to Respondent No. 1 for inquiry. It means that application of said Respondent No. 2 was prior in time than filing of his writ petition, which was disposed of on 3.12.2001 with the observation as under:~

"The Deputy District Officer (Revenue) is still conducting the inquiry relating to the matter agitated in the present petition. This case is, therefore, disposed of. The petitioner, however, shall have a right to all available legal remedies on the basis of the report in question."

It is clarified that this Court had not directed Respondent No. 1 to m'ake inquiry. It is an admitted fact that the inquiry proceedings on the application of Respondent No. 2 Falak Sher were already pending before Respondent

No. 1. The contention of learned counsel for Respondent No. 2 that the inquiry was made under the direction of this Court is misconceived. Respondent-No. 1 has concluded the inquiry with certain observations and according to the observation of this Court in disposing of writ Petition (6575/2001) Respondent No. 2 has not availed of any of the legal remedy.

1. For the foregoing reasons, I have no hesitation in observing that the inquiry proceeding and the impugned report dated 5.2.2003 by Respondent No. 1 is without backing of any legal authority, hence declared to have been initiated illegally and without lawful authority and of no legal effect and therefore quashed. The present petition succeeds.

(A.A.) Petition accepted.

PLJ 2004 Lahore 457

Present: sayed zahid hussain, J. SAOOD AHMAD-Petitioner

versus

TANVIR AHMAD-Respondent C.R. No. 2066 of 2003, heard on 3.12.2003.

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

—O.XXXVTI, R.3-Suit for recovery of amount in summary jurisdiction- Leave to appear and defend suit was granted to defendant on payment of costs and he was directed to file written statement—Defendant neither paid costs nor filed written statement on successive adjourned dates-­ Such indolence and laxity on part of defendant would disentitled him to any further indulgence in such matter-Conduct of defendant clearly- indicated that dilatory tactics were being adopted by him to somehow . prolong proceedings and failed not only to comply with Courts order but also availing indulgence shown to him-Order of trial Court whereby defence of defendant was closed was neither illegal nor irregular and same did not warrant interference in revision. [P. 458 & 459] A

PLD 2002 SC 630; 1999 SCMR 105; 1999 CLC 602 and PLJ 2002 Lahore 110, ref.

Mr. Abdul Wahid Ch. Advocate for Petitioner. .Mian Muhammad Javed Munawwar, Advocate for Respondent. Date of hearing : 3.12.2003.

judgment

By Order dated 6,11.2003 the trial Court proceeded to close the defence of the petitioner for non-compliance of order and non-filing of

written statement. The same has been assailed through .this, revision petition.

2, It is contended by the learned counsel that' since there was no specific direction on the preceding date i.e. 4.11.2003 for filing of the written statement, no such penal order could be passed. It. is further contended that, the law favours adjudication on merits, the order impugned should be set aside being illegal and unlawful. Reference in this context has been made to Col.(Retd.) Ayub Ali Rana u. Dr. Curlite Pane and another (PLD 2002 S.C. 630), Zahoor Ahmad v. Mehra through Legal heirs and others (1999 SCMR 105) and HajiRais Ahmed n. Aslarn (1991 CLC 602). The learned counsel for the respondent/plaintiff has with reference to the proceedings in the suit, contended that although, leave to appear and defend the suit was granted by the Court subject to furnishing surety bond to the satisfaction of the Court, yet the said order remained un-complied with despite adjournments granted to the petitioner and that even the costs subject to which the ex-parte order was recalled, had not been paid by the petitioner. It is further contende'd that the petitioner does not deserve any further indulgence in the matter. He has placed reliance upon Haji Muhammad Siddiquc v. Rana Muhammad Sanvar(PLJ 2003 Lahore 110).'

3, It was suit under Order XXXVII CPC for the recovery of a stated amount, on. the basis of promissory note in which the petitioner sought leave to appear and defend, which was granted on 7.6.2003 subject to furnishing surety bond to the satisfaction of the Court, for which purpose the suit was adjourned to 30.6.2003 and the filing of written statement. The perusal of the order-sheet, copy whereof has been placed on the' record, shows that thereafter the suit was adjourned either on the ground that there was some compromise being negotiated between the parties or some other reasons. On 4.9.2003 the petitioner was proceeded, against ex-parte and the suit was adjourned for ex-parte, evidence. On 20.9.2003 an application was filed by the petitioner for setting aside of the ex-parte proceedings, which application was allowed by the learned Additional District Judge, Faisalaba.d or. 21.10.2003 subject to payment of costs of Rs. 100/-. On that date the petitioner was "directed to submit written statement, and surety bonds on 4.11.2003." On the adjourned date i.e. 4.11.2003 written statement was not filed and the suit was adjourned to 6.11.2003 for making up deficiency in the surety. On 6.11.2003, it appears that on the first call counsel for the parties appeared when it was stated before the Couvi that the written statement was not ready and time was sought. The case was thus kept in waiting which was taken up at, about .1:30 p.m. when the petitioner/defendant himself appeared and stated that the written statement was not ready and asked for adjournment. The Court then appear to have taken, account of the previous proceedings in the suit and noting the defaults on the- part, - of the petitioner/defendant proceeded to close his defence. The perusal of the

order-sheet is indicative of the fact that neither the conditional order dated 6.2003 granting leave to appear and defend had been complied with, despite indulgence shown by the Court nor the order for payment of costs subject to which ex-parte proceedings were recalled by -the Court on 21.10.2003, was complied with. Even the written statement was not filed despite direction contained in order dated .21.10.2003. Such indolence and laxity on the part of the petitioner hardly entitled him to any further indulgence in the matter. Suffice it to state that this was a summary suit under Order XXXVII CPC envisaging special procedure for expeditious disposal of the matter. The assertion made by the learned counsel for the petitioner that the son of counsel for the petitioner since had met with an accident, the written statement, therefore, could not be prepared, has been vehemently controverted by the learned counsel for the respondent who practices at Faisalabad and states that no such incident had taken place and an incorrect/false stance is being taken to mislead the Court. Be that as it may, on consideration of the proceedings that have taken place since after the grant of leave to appear and defend to the petitioner a clear impression is discernable that dilatory tactics were being adopted by the petitioner to somehow prolong the proceedings and failed not only to comply with the Court's order but also availing the indulgence shown to him. Reliance upon the precedents cited by the learned counsel for the petitioner is inapt and misplaced in view of the peculiar fats and circumstances of the case, as noted above. It may be observed that the judgment in Col. (Retd.) Ayub Ah Rana case (Supra), in which previous precedents have been noted and considered, arose out of a suit for recovery of damages whereas in the instant case it was a suit under Order XXXVII CPC, the distinguishing features are thus quite obvious.

In view of the above, I find that no such illegality or material irregularity has been committed by the trial Court, which could warrant interference by this Court under Section 115 CPC. The revision petition, therefore, is dismissed. No order as to costs.

(A.A.) Revision dismissed

PLJ 2004 Lahore 459

Present: SAYED ZAHID HUSSAIN, J.

Mst RASHIDA BTBI-Petitioner

versus

BORDER AREA COMMITTEE through its SECRETARY, BOARD OF REVENUE and 3 others-Respondents

W.P. No. 100-R of 2003, heard on 4.12.2003. (i) Constitution of Pakistan (1973)--

—Art. 199-Allotrnent by Border Area Committee subsequently disputed by such committee-Order in original for allotment of land had been passed by such Committee which bears signatures of all member of Committee-­ Order in question, has got presumption of correctness and regularity-. Border Area Committee had no option to discredit its own proceedings and orders-Border Area Committee is although empowered to scrutinize any allotment but once such power was exercised which culminated into order of confirmation of allotment, exercise of that power over again would not be consistent with legal position obtaining on subject, rather same would erode very essence of concept of finality of adjudicatory 'process-Denial of factum of allotment by committee was thus, not warranted. [P. 462] A

(ii) Constitution of Pakistan (1973)--

—Arts. 4 & 199-Dispossession of lawful allottees by Border Area Committee-Such action was not fall within ambit authority and jurisdiction of such coramittee-To enjoy protection of law and to be treated in accordance with law is inalienable right of every citizen as enshrined of Article 4 of the Constitution—Allotment in question, having been scrutinized already by competent authority, there was no jurisdiction and authority vested in respondents to call in question either factum of allotment or efficacy of orders passed by Border Area Committee-Dispossession of petitioners forcibly from lawfully allotted land being unwarranted was declared to be an act of no legal effect, [P. 463 & 464] B

Munirs Principles and Digest of Qanun-e-Shahadat p. 1334 ref.

Ch. Abdur Rashid, Advocate for Petitioners.

Mr. Aamir Zahoor Chohan, Advocate for Respondents.

Raja Jehanzeb Akhtar, Advocate for Respondents Nos. 2 and 3.

Mr, Fazal Miran Chohan, A.A.G. for Respondent No. 4.

Date of hearing : 4.12,2003.

judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 it is prayed that:--

"possession of the land taken over forcibly from the petitioners by the respondents may kindly be restored to them with immediate effect and the allotment in the name of their predecessor-in-interest may kindly be considered in-tact and no interference from any quarter may be allowed to be taken in this case and the crops which have been destroyed and ruined by the respondents alongwith some other public personal and a ease may kindly be ordered to be registered against them and the respondents be kindly directed not to interfere further in the matter in any manner whatsoever not warranted in the law."

2.It is the case of the petitioners, that their predecessor late Muhammad Sarwar, an ex-army personnel, had been allotted land in dispute in the year 1979, which allotment had been duly implemented in the public records and mutation had also been sanctioned in his name in the year 1981. It is their grievance that they have been forcibly dispossessed by and at the instance of Respondents Nos. 2 to 4, which action is unwarranted by law as they are successors of a lawful allottee of the land, which allotment had already been scrutinized by the Border Area Committee and was found as legal and valid vide order dated 7.12.1989.

The learned counsel for the parties have been heard and respective contentions have been considered.

1. In the report and parawise comments submitted by the Border Area Committee the allotment in favour of Muhammad Sarwar deceased is dubbed as bogus. As to the proceedings undertaken by the Border Area Committee about the scrutiny of allotment, which remained pending from the year 1986 till 7.12.1989 when order upholding the allotment was passed by the Committee, a somewhat strange and curious stance has been taken i.e. "Surprisingly the case was closed on 7.12.1989 holding that the allotment in the name of Muhammad Sarwar was genuine. Bare .perusal of the order dt. 7.12.1989 shows that the forged signatures of the then members of BAG had been made, and this order had been manufactured by the so called allottee in connivance of the functionaries of the BAG, otherwise no order' could be passed without the submission of the verification report as ordered on 14.11.989." Thus an attempt has been made to disown/discredit order dated 7.12.1989.

2. The learned counsel for the Border Area Committee has, on my asking produced and shown the original file of proceedings, which contains order dated 7.12.1989, perusal whereof shows that scrutiny of the allotment of Muhammad Sarwar deceased had commenced in the year 1986. He was directed to produce the relevant documents pertaining. to his allotment, which were produced before the Committee as is evident from order dated 21.7.1988. Thereafter the matter remained pending with the Committee till 7.12.1989 when the file was consigned to record upholding the allotment. The file further shows the correspondence exchanged between the Border Area Committee and the District Authorities qua allotment of Muhammad Sarwar., On 26.4.1981 a registered communication had been sent-by the Border Area Committee to the Assistant Commissioner, Shakargarh for implementation of allotment orders of land under the Border Area Scheme, relevant portion thereof reads as follows:-

"1\ Following individuals were allotted land in village Dhadwal and Haji pur Gujran Tehsil Shakargarh Distt. Sialkot but their allotment order could not be incorporated in revenue record at Shakargarh due to exigencies of service of the individuals in hard area. From the. records maintained in this office it is found that they have rightly

been allotted land in the said village. Their allotment orders are sent herewith for completion of legal requirements and implementation in the revenue records at your end:—

(a) xxx - xxx

(b) xxx - xsx

(c) Swr MuHEuiimad Sarar , 111/BAC dated 10 Jan 79. Village

Haji pur Gujran.

(d) xxx - xxx

2.Please incorporate the same in your revenue record accordingly, 3. Aboye mentioned allottees are also permitted to deposit the cost of allotted land in Govt. Treasury at the rate of Rs. 01.00 per unit and after deposit of amount the mutations in their name may please be made accordingly.

AAG(LT Col.)

Member Border Area Committee (AbdulJalil)

It was thus, that the factum of allotment was carried into effect and implemented in the public/revenue records. To dispute such allotment or the legal efficacy of order dated 7.12.1989 is not possible and is too late for the Border Area Committee. Order dated 7.12.1989 in original had been passed and is part of a duly maintained file, which bear the signatures of members of the Committee. Not only that it has got a presumption of correctness and regularity it does not behove the Border Area Committee to discredit its own proceedings and orders. It is not possibly understandable that how all orders and communications made by the Committee from time to time, from the year 1979 to the year 1989 was a manipulated affair. It is too general and wild an assertion to entertain.

1. There is no denying the fact that the Committee is empowered to scrutinize the allotment, but once such a power had been exercised, which culminated into order dated 7.12.1989, exercise of that power over again would not be consistent with the legal position obtaining on the subject, rather the same would erode the very essence of concept of finality of adjudicatory process. Indeed the principle stated at Page 1334 Volume II of 'Justice Munir's Principles and Digest of the Qanun-e-Shahadat by Justice (Retd.) Khalil-ur-Rehman Khan, gets attracted to a situation of this nature which reads as follows:—

"Estoppel by record means nothing more generally than that the matter is res judicate.It. belongs more properly to the province of pure procedure and is so dealt with in our legislation. Resjudicata is an estoppel by judgment. It embraces all those rules the common characteristic of which is that a final judicial decision of a tribunal of competent jurisdiction, once pronounced between parties litigant, cannot be contradicted by anyone, as against any other of such parties, in any subsequent litigation between the same parties respecting the same subject matter. There is a difference in the principles upon which the doctrines of nx and estoppel by representation are based, Res jiidicata in this country is founded on the principle thai there should be an end to litigation as to any issue between the parties when once that issue has been directly determined between them by a Court of competent jurisdiction, and it affects not only the original parties but all others afterwards claiming under-them and litigating under the same title. It was fresh litigation at the outset. Estoppel by representation is a rule of evidence based on the principle that a man, who by his acts or statements has induced another to believe a thing to be true, should not afterwards be heard to deny the truth of that thing to the prejudice of the other who acted upon the belief so induced. Res judicata ousts the jurisdiction of the Court, while estoppel merely shuts the mouth of a party. Estoppel never means anything more than that a person shall not be allowed to say one thing at one time and the opposite of it, at another rime, while res judicata means nothing more than that a person shall not be heard to say the same thing twice over."

I am thus not prepared to entertain such a plea of Respondents Nos. 1, which runs counter to its own correspondence, proceedings and orders.

1. Insofar as action and conduct of Respondents Nos. 2 to 4 in dispossessing the petitioners from the land is concerned, the same is wanton in law, inasmuch as it does not fall within the ambit of authority and jurisdiction of the said respondents to probe and pry into the genuineness or otherwise of title of a citizen qua the land, nor the State machinery could be employed to dispossess in such a manner. Needless to state that all actions of the State functionaries must have the backing of a contemporaneous law, failing which the action would be regarded as without jurisdiction and illegal. To enjoy the protection of law and to be treated in accordance v/itL lav,7 is the inalienable right of every citizen enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This provision of the B Constitution embodies safeguards of utmost importance to an individual, in the matter of his life, liberty, honour, reputation and. property. A citizen cannot be deprived of such protections and guarantees on the basis of any supposed assumption. The action taken by Respondents Nos. 2 to 4 is sought to be justified on the basis of some intelligence report about the slleged bogus nature of allotment of Muhammad Sanvar deceased. As noted above, the said allotment having been scrutinized already by the competent authority in the matter i.e. the Border Area Committee, there was no jurisdiction arid authority vested in these respondents to call in question either the factum of allotment or the efficacy of the orders passed by the

Border Area Committee. Suffice it to observe that in case some illegal and offensive activity was going on in the border belt, the same could be handled and curbed by having resort to the legal process in accordance with law but there was no justification or warrant to dispossess the petitioners by forcible means from the land allotted to their predecessor late Swr. Muhammad Sarwar.

In view of the ab&/e, the petition is accepted to the extent that dispossession of the petitioners from the land in dispute was unwarranted and had no backing of the contemporaneous law, which action is declared as of no legal effect. No order as to costs.

(A.A.) Petition accepted.

PLJ 2004 Lahore 464 (DB)

Present: ch. ijaz ahmad and bashir A. mujahid, JJ. MUHAMMAD ASHIQ and another-Appellants

versus

NIAZ AHMAD and another-Respondents R.F.A. No. 7 of 2003, heard on 30.10.2003, (i) Interpretation of Statute-

—Latter provision of law would prevail over the earlier provisions of law.

[P.4701C

(ii) Negotiable Instruments Act, 1881-

—S. 4--Promissory note-Proof of payment mentioned therein-Making of payment in connection with Promissory note does not require to be proved or admitted. . [P: 469] B

(iii) Stamp Act, 1899--

—Ss. 35 & 36—Instruments not duly stamped—Objection relating to admissibility thereof, when to be taken—Objection about stamp insufficiently affixed on document cannot be taken- when document in question, was already admitted-Where any Court wrongly admits such document, Appellate Court was prevented by S. 36 of the Act of 1899 for calling into question, admission in evidence of such instrument, though' same might have been wrongly admitted. [P. 469] A

(iv) Stamp Act, 1899--

—Ss. 35 & 36-Instrument insufficiently stamped-No objection taken by defendants when such documents were being admitted by Court-Trial Court was justified to decide issue of admissibility against defendants-No infirmity or illegality having been found in impugned judgment, same was maintained. [P. 470] D

AIR 1934 Lahore 606; AIR 1939 Lahore 31; PLD 1963 Karachi 905; PLD 1964 Karachi 172; PLD 1977 Lahore 763; PLD 1988 Lahore 225; PLD 1992

Lahore 366; 2000 CLC 795; 2001 MLD 1351; 1996 SCMR 575; 1993 CLC 2015; 1975 SCMR 167; PLD 1963 Karachi 906; PLD 1962 Karachi 253; PLD

1961 Dacca 102; PLD 1961 Dacca 596; PLD 1993 Karachi 375; NLR 1995 CLJ 24; NLR 1995 CLJ 695 and PLD 1978 SC 279 ref.

Rana Rashid Ikram Khan, Advocate for Appellants. Riasat All, Advocate for Respondents. Date of hearing : 30.10.2003.

judgment

Ch. Ijaz Ahmad, J.--The brief facts out of which the present appeal arises are that the respondent filed a suit against the appellants for recovery of Rs. 5,00,000/- on the basis of promissory note dated 3.5.1999 executed allegedly by the appellants alongwith receipt, before the learned Addl. District Judge, T.T.Singh. The contents of the plaint reveals that the appellant secured a sum of Rs. 500,000/- from the respondent/plaintiff. Promissory note dated 3.5.1999 was also executed by the appellants in favour of the respondent/plaintiff on 3.5.1999. According to the terms of the pronote, the appellants/defendants were duty bound to pay advance amount till 30.4.2000. The appellants allegedly failed to pay the said amount to the respondent/plaintiff, therefore, the respondent/plaintiff filed suit for recovery of the said amount against the appellants in the said Court. The appellants filed an application for leave to appear and defend the suit before the learned Addl. District Judge, T.T. Singh who granted leave to defend to the appellants/defendants, vide order dated 25.9.2001 subject to deposit of security. The appellants/defendants deposited the security and submitted written statement and controverted the allegations leveled in the plaint alongwith preliminary objections regarding non-maintainability of the suit as the stamp upon the promissory note was not crossed, the promissory note was result of fraud, misrepresentation and without- consideration. The appellants/defendants also took a stand in their written statement that they had never secured Rs. 500,000/- from the respondent/plaintiff and in fact the respondent/plaintiff purchased 200 bags of oil cake (Khal) and- paid a" sum of Rs. 5,70,000/-. Due to rainy season, Khal was wasted and the respondent/plaintiff did not lift the Khal from the appellants/defendants. The respondent/plaintiff also supplied two trucks of mustered to the appellants/defendants which was inferior, therefore, the appellants suffered a loss. The contents of the written statement further reveal that the appellant/defendant paid Rs. 2,30,000/- to the respondent/plaintiff. Out of the pleadings of the parties, learned trial Court framed the following issues:--

1. Whether promissory note and receipt is under stamped and stamps affixed on the promissory note have not been crossed/cancelled, if so its effect? OPD.

2. Whether defendant has received a sum" of Rs. 5,00,000/- from the plaintiff as loan and got executed promissory note dated 3.5.1999 alongwith agreement dated 3.5.1999 of his own free will? OPD.

3. Whether plaintiff is entitled for the recovery of Rs. 5,00,000/- as alleged in plaint? OPD.

4. Relief.

The learned trial Court decreed the suit videjudgment and decree dated1 20.12.2002. Hence this appeal.

Learned counsel of the appellants submits that the appellants had taken specific preliminary objection that promissory note is insufficiently stamped and the stamps affixed on the promissory note are not cross-cancelled, therefore, promissory note is not admissible in evidence. The learned trial Court erred in law to consider the document in question admissible in evidence in violation provisions of Sections 12 and 35 of Stamp Act, 1899 and the law laid down by the Superior Courts. In support of his contentions he relied upon the following judgments:--

1. Sohanlal Nihal Chand vs. Ranghu Nath Singh AIR 1934 Lah. 606.

2. . Firm Sri Chand Sheo Parshad vs. Lajja Ram AIR 1939 Lah. 31.

3. KM Muneer vs. Mirza Rasheed Ahmad PLD 1963 Karachi 905.

4. KM. Muneer vs. Mirza Rasheed Ahmad PLD 1964 Karachi 172.

5. Sheikhupura Central Cooperative Bank Ltd. vs. Ch. TawaqalUllahand another PLD 1977 Lah. 763.

6. United Bank Limited vs. Mian Abdul Khaliq PLD 1988 Lah. 225.

7. Mirza Arif Baig vs. Mubarak Ali PLD 1992 Lah. 366.

8. Malik Muhammad Akram vs. Khuda Bakhsh 2000 CLC 795.

He further urges that wording of the pronote and receipt reveal that it is a 'qarz-i-hasna', therefore, suit filed by the respondent/plaintiff against the appellants is not maintainable. In support of his contentions he relied upon Habib Bank Limited vs. M/s Qayyum Spinning Ltd. (2001 MLD 1351). He further urges that Respondent No. I/plaintiff failed to prove execution of the alleged promissory note and the payment of money, but the learned trial Court by misreading of evidence on record has given finding otherwise which is not in accordance with evidence on record coupled with the fact that the

learned trial Court erred in law not to note the material contradictions in the evidence produced by the respondent/plaintiff before the trial Court. He further urges that the learned trial Court erred in law to decide Issues Nos. 2 and 3 jointly which is in violation of mandatoiy provisions of Civil Procedure Code. He further urges that respondent has failed to prove payment of Rs. 5,00,000/- and execution of alleged promissory note and agreement dated 3.5.1999 as is evident from the evidence produced by the respondent/plaintiff before the trial Court, but the learned trial Court 'has given finding against the appellants/defendants by misreading and non-reading of the record. He summed up his arguments that the trial Court erred in law to decide Issue No. 1 against the appellants without any reasons as is evident from the operative part of the impugned judgment in para-8.

Learned counsel of the Respondent No. I/plaintiff submits that pronote as well as agreement/receipt was exhibited before the learned trial Court without any objection raised by the appellants/defendants, therefore, the learned trial Court was justified to decree the suit of the respondent/plaintiff against the appellants. The appellants are estopped to raise objection at appellate stage as the documents in question were exhibited before the trial Court without any objection raised by the appellants/defendants as is evident from the statement of the parties on record of the trial Court. He further urges that the appellants are estopped to raise objection qua insufficient stamps on the documents in question and non-registration of the documents in question in view of the conduct of the appellants/defendants as the defendants/appellants did not raise objection qua the maintainability of the documents in question before the trial Court, therefore, judgment of the trial Court is in accordance with law laid down by the -Superior Courts. In support of his contentions he relied upon the following judgments:--

1. Sirbuland us. Allah Lake 1996 SCMR 575.

2. Farced Akhtar Hadi vs. Muhammad Latif Ghazi, 1993 CLC 2015.

3. Manzoor Ahmad Khan's case 1975 SCMR 167.

4. Haji Ghulam Mustafa vs. Allah Bakhsh PLD 1963 Karachi 906.

5. Kasim Kamber and others vs. Chander Ban Wadhual andanotherPLD 1962 Karachi 253.

We have considered the contentions of learned counsel of the parties and perused the record ourselves.

It is better and appropriate to reproduce Sections 12, 35 and 36 of Stamp Act, 1899 to resolve the controversy between the parties:-

1. Cancellation of adhesive stamps. (l)(a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing

such stamp, cancel the stamp so that it cannot be used again; and

(b) whoever executed any instrument on any paper bearing adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid, cancel the same so that it cannot be used again.

(2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as- such stamp is concerned, be deemed to be unstamped.

(3) The person required by sub-section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner.

1. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or' shall be acted upon, registered or authenticated by any such person or by any public office, unless such instrument is duty stamped:

Provided that:-

(a) any such instrument not being an instrument chargeable with a duty only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times of such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kinds is effected by correspondence consisting of two or more letters and any one of the letters bear the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court

other than a proceeding under Chapter XII of Chapter XXXVI of the Code of Criminal Procedure, 1898;

(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or wherein it bears the certificate of the Collector as provided by Section 32 or any. other provision of this Act.

1. Admission of instrument where not to be question.

Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

Mere reading of the aforesaid provisions of law reveals that objection about stamp insufficiently affixed on document cannot be taken when a document is already admitted. Section 35, no doubt, prohibits a Court from admitting in evidence an instrument which in its view is not duly stamped and also prohibits the Court from acting on such document, yet if the Court wrongly admits such document, appellate Court is prevented by Section 36 of the Act for calling into question the admission in evidence of such an instrument, though it may have been wrongly admitted, meaning thereby the appellate Court is bound to hold that admission was proper. The aforesaid section was interpreted and laid down the aforesaid principle in Amin Jute Baling Company Ltd. vs. Aminpur Union Cooperative Multi Purpose Society Ltd. (PLD 1961 Dacca 102). The relevant observation is as follows:--

"Now, Section 35 of the Stamp Act prohibits a Court from admitting in evidence an instrument which in its view is not duly stamped. This section also prohibits the Court from acting on such document.' If the Court, however, wrongly admits such document, the appellate Court is prevented by Section 36 of the Stamp Act from calling in question the admission in evidence of such an instrument, though it may have been wrongly admitted. In other words, the appellate Court is bound to hold that admission was proper."

Similarly in the case of Abdul Hashim PLD 1961 Dacca 596 has also the same view.

It is settled principle of law that making of payment in connection with promissory note does not require to be proved and it is sufficient if the execution of the promissory note is either proved or admitted. In arriving to this conclusion we are fortified by PLD 2002 Peshawar titled Sherbaz Khan vs. Mir Adam Khan. It is also settled principle of law that the document in question could not be admitted in evidence in view of Sections 33 and 35 of the Stamp Act as the law laid down in the aforesaid judgments relied upon by learned counsel of the appellants. However, in view of Section 36 of Stamp Act nothing can be done at appellate stage. All such stamps once under stamp or unstamped admitted in evidence preclude any controversy on the point except to the extent permitted by Section 61 of the Stamp Act, 1899 as the laid down in Muhammad Luqman's case NLR 1995 Civil Law Judgments 24. The same principle has been laid down by Mr. Justice Ihsan ul Haq Chauflhry (as his Lordship then was) in M/s Rasheed Ullah vs.' Punjab Province and others NLR 1995 Civil Law Judgments 689 by considering all the case law at page 695. The same view was laid down in Fareed Akhtar's case (PLD 1993 Karachi 375) after considering all the case law on the subject and laid down the following principle:—

"An instrument once having been admitted in evidence is immune from challenge on the ground that it was under stamped or stamps were not cancelled properly. The admissibility of such instrument cannot be challenged except of course as provided in Section 61 of the Stamp Act."

It is also settled principle of law that legislature in its wisdom put Section 36 after Sections 12, 33 and 35, therefore, latter will prevail over the earlier provisions of law. It has been held by the Hon 'ble Supreme Court in Union Insurance Company of Pakistan Ltd. vs. Hafiz Muhammad Siddiq (PLD 1978 SC 279) that object of Section 35 of the Act is not to invalidate the instruments not properly stamped but to protect the public revenues. The respondent/plaintiff has proved on record the execution of the documents in question by producing two attesting witnesses and subscriber. The appellants also admitted before the trial Court in the contents of the application for leave to appear and defend in para-4 that the appellants are ready to settle the dispute with the respondent/plaintiff in case the appellants would be liable to pay some amount of the respondent/plaintiff-then the appellants would ready to pay the said amount in easy installments. It is pertinent to mention here that the appellants have taken preliminary objection with regard to documents in question that documents in question were not properly stamped and stamps were not crossed, but the appellants did not ask any question with regard to the objection taken by the appellants in written statement from the witnesses of the respondent/plaintiff. The appellants did not utter a single word in their statement before the trial Court with regard to the preliminary objection raised by the appellants in the written statement, therefore, the trial Court was justified to decide Issue No. 1 against the appellants. The judgments relied upon by learned counsel of the appellants are distinguished on fact on law as the effect of Section 36 of Stamp Act, 1899 was not noted and decided in the judgments relied upon by learned counsel of the appellants, therefore, we do not find any infirmity or illegality in the impugned judgment of the trial Court. The appeal is dismissed, with no order as to costs.

(A.A.) Appeal dismissed.

PLJ 2004 Lahore 471

Present: CH. ijaz ahmad, J.

RIFAT ULLAH KHAN alias RAFIQUE WARIS KHAN--Petitioner

versus

ELECTION TRIBUNAL ADDITIONAL DISTRICT & SESSIONS JUDGE, FEROZEWALA DISTT. SHEIKHUPURA and 6 others-Respondents

W.P. No. 13930 of 2003, heard on 9.12.2003.

(i) General Clauses Act, 1897 (X of 1897)--

—-S, 24-A-Constitution of Pakistan (1973), Art. 199-Amendment of Order by Election Tribunal in terms of S. 152 C.P.C. without issuing notice to necessary parties-Order passed by Election Tribunal was non-speaking order wherein no reasons were recorded while making amendment in its earlier order-Impugned order was thus, not sustainable in the eye of law-Order in question, being in violation of natural justice and without application of mind was set aside-However, application seeking amendment of order of Tribunal would be deemed to be pending before Election Tribunal which was directed to be decided after due notice to concerned parties and affording them opportunity of being heard.

[Pp. 475 & 476] B & C

(ii) Punjab Local Government (Election) Ordinance, 2000--

—S. 14(l)-Constitution of Pakistan (1973), Art. 199-Finding of fact rendered by Election, Tribunal assailed in writ petition-Election Tribunal had given finding of fact against petitioner in its judgment after proper appreciation of evidence-High Court has no jurisdiction to substitute its own finding in place of finding of Election Tribunal while exercising power under Art. 199 of the Constitution. [P. 474] A

(iii) Punjab Local Government Election Rules, 2000—

—R. 70-Election petition-Preliminary objection that election petition c'annot be heard in absence of service of remaining respondents-Such objection had no force firstly, that those respondents .were proforma respondents and secondly, that no relief had been claimed against them.

[P: 476] D

PLD 1973 Lahore 600; PLD 1964 SC 260; PLD 1970 SC 173 and PLD 1969 SC 223, ref.

Dr. Qazi Mohyud Din, Advocate for Petitioner.

Ch. Hameed-ud-Din, Advocate for Respondent No. 3.

Date of hearing: 9.12.2003.

judgment

P intend to decide the following Constitutional petitions by one consolidated judgment having similar facts and law and arising out of the same proceedings and the impugned orders being the same:-

1. W.P. No. 13930/2003

2. W.P. No. 14206/2003

3. The brief facts out of which the aforesaid Constitutional petitions arise are that petitioners and Respondents Nos. 3 to 7 in W.P. No. 13930/2003 contested the elections as Nazim and Naib Nazim respectively from Union Council No. 128 Nishtar Town, Lahore. The petitioners were declared as returned candidates. Respondents Nos. 3 and.4 filed election petition before the Election Tribunal under Rule 70 of the Punjab Local Government Election Rules, 2000 on 6.8.2001. The petitioners filed written statement and controverted the allegations levelled in the election petition. Out of the pleadings of the parties learned Election Tribunal framed the following issues:—

4. Whether this petition is not maintainable in its present form? OPR?

5. Whether the petitioners have not come to the Court with clean hands? OPR

6. Whether this petition has been filed with mala fide intention and to harass the respondents who are entitled to special costs? OPR

7. Whether the declaration of assets submitted by Respondent No. 1 was absolutely false and was not in accordance with the provisions of sub-rule 4 of Rule 16 of the Punjab Local Government Election Rules, 2000? OPA.

8. Whether Respondent No. 1 was not qualified to contest election? OPA

9. Whether the election of Respondents Nos. 1 and 2 is void and of no legal effect? OPA

10. Whether the petitioners deserve to be declared as elected/returned candidates? OPA.

11. Relief.

12. Learned Election Tribunal accepted the election petition to the extent of Riffat Ullah Khan (Petitioner in W.P. No. 18930/2003) and found that his nomination papers as candidate for Nazim were invalid in terms of Section 14(1) of Punjab Local Government Elections Ordinance, 2000. Copy of the order was forwarded to the Provincial Election Commissioner Lahore' for issuance of Notification. The Provincial Election Commissioner Punjab issued a Notification on 29.9.2003 and Notification of petitioners as returned candidates dated 7.7.2001 was rescinded. Respondent No. 3 filed application under Section 152 CPC for correction of the judgment dated 24.9.2003 and issuance of fresh notification which was accepted by the Election Tribunal vide order dated 2.10.2003. A copy of the said order was sent to the Provincial Election Commissioner, Punjab Lahore on 2.10.2003 to issue a Notification of Respondent No. 3 Dr. Chaudhry Amjad Mustafa as elected Nazim of Union Council in question. The petitioners being aggrieved filed aforesaid writ petitions.

13. Learned counsel of the petitioners submits that Election Tribunal modified the order/judgment dated 24.9.2003 vide'order dated 2.10.2003 without issuance of notice to the petitioners. Therefore, Election Tribunal erred in law to modify the judgment dated 24.9.2003. He further submits that judgment dated 24.9.2003 is result of misreading and non-reading of the record. He further submits that Election Tribunal has no power of review under the law. Therefore, impugned order dated 2.10.2003 is not sustainable in the" eyes of law. He further urges that application under Section 152 CPC filed by Respondent No. 3 was not maintainable as the Election Tribunal has decided the matter under a special law wherein powers of review has not. been specifically conferred to the Election Tribunal. He further submits that Election Tribunal was constituted under the Rules which were subsequently repealed. Therefore, judgment of the Election Tribunal is not sustainable in the eyes of law.

14. Learned counsel of Respondent No. 3 raised a preliminary objection that service of Respondents Nos. 2, 4 to 7 has not been effected. Therefore, constitutional petitions cannot be heard. He further submits that learned counsel of the petitioners failed to attach evidence of the parties alongwith the Constitutional petitions, therefore, learned counsel of the petitioners failed to point out that judgment of the Election Tribunal is result of misreading and non-reading of the record. He further submits that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution. He further submits that petitioners have no locus standi as the Election Tribunal has not decided the case against the petitioner Amir Nisar Khan and petitioner Riffat Ullah Khan has concealed the material facts in his nomination papers as is evident from the impugned judgment. Therefore, petitioner Riffat Ullah Khan has not approached this Court with clean hands. He further submits that after declaration of petitioner Riffat Ullah Khan's election as void vide impugned judgment dated 24.9.2003. Therefore, he ceases to have locus standi to assail the subsequent order of Election Tribunal dated 2.10.2003. He further submits that no prejudice is. caused to the petitioners by their non-hearing by the Election Tribunal. He further urges that principle of natural justice is not attracted in this case. He further submits that Election Tribunal has decided Issue Nos. 6 and 7 together but the learned Election Tribunal by accidental omission did not grant the relief to Respondent No. 3 as returned candidate in place of the petitioner which relief is consequential in nature. Therefore, impugned order dated 2.10.2003 is valid. He further submits that application under Section 152 CPC was maintainable before the Election Tribunal in view of ingredients of Section 152 CPC. He further urges that principles of CPC are applicable in the proceedings before the Election Tribunal in view of Sections 4, 94, and 141 CPC. He further submits that petitioner Riffat Ullah Khan approached this Court with unclean hands and is facing allegations of corruption, forgery and misappropriation of public funds as is evident from Annexures R/l to R/2 attached with the written statement. He -further submits that petitioner Riffat Ullah Khan approached this Court with unclean hands as is evident from Annexures R/3 and R/4 attached with the written statement. He further submits that Respondent No. 3 was declared as returned candidate on 3.10.2001 by the Returning Officer having secured 4138 votes as is evident from the result sheet and other, annexures attached with the written statement as R/5 to R/9. He further submits that the petitioner has not filed replication, therefore, the petitioner cannot wriggle out from the assertions and pleas taken by Respondent No. 3 in his written-statement. He summed up his arguments that the Election Tribunal has not given any relief against petitioner Amir Nisar Khan, therefore, he has no locus standi to file Constitutional Petition No. 14206/2003 against the impugned orders of Election Tribunal.

15. Learned counsel of the petitioner in rebuttal submits that learned Election Tribunal has passed the judgment under Rules 80, 81, therefore, it was not justified to reverse the judgment through an application filed by Respondent No. 3 under Section 152 CPC specially in the circumstances when the judgment of the Election Tribunal has already been implemented. The petitioner Riffat Ullah Khan is aggrieved person and is a party in the proceedings since the election petition was filed by Respondents Nos. 3 and 4 against the petitioners before the Election Tribunal. He further submits that Election Tribunal has not debarred Riffat Ullah Khan to contest fresh election. He summed up his arguments that Election Tribunal has no lawful authority to entertain the application under Section 152 CPC specially in the circumstances when the rights of third party have accrued in view of judgment of the Election Tribunal dated 24.9.2003.

16. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

.8. The Election Tribunal has given finding of fact against the petitioner Riffat Ullah Khan in its judgment dated 24.9.2003 after proper-appreciation of evidence, therefore, this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution as the law laid down

by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:--

Musaddaq's case (PLD 1973'Lahore 600) Syed Azmat All's case (PLD 1964 S.C. 260)

It is pertinent to mention here that Election Tribunal after proper appreciation has given finding of fact against the petitioner that petitioner concealed the assets owned by him and his wife while submitting his declaration of assets alongwith the nomination papers-. Therefore, impugned judgment is in accordance with the mandate of Section 14(1) of the Punjab Local Government Election Ordinance, 2000 which is in accordance with law laid down by the Full Bench of this Court in W.P. No. 16723/2002 vide judgment dated 14.9.2002. It is appropriate to reproduce basic facts to resolve the controversy between the parties qua the order of the Election Tribunal dated 2.10.2003:-

(i) Election Tribunal accepted the election petition vide judgment dated 24.9.2003;

(ii) Copy of the said judgment was sent by him to the Provincial Election Commissioner Punjab, Lahore.

(iii) Provincial Election Commissioner Punjab, Lahore issued Notification dated 29.9.2003 in obedience of the judgment of the Election Tribunal dated 24.9.2003.

(iv) Respondent No. 3 alone filed application under Section 152 CPC for correction of judgment dated 24.9.2003 which was allowed vide impugned order dated 2.10.2003.

_(v) Election Tribunal sent a copy of the order to the Provincial Election Commissioner Punjab, Lahore vide letter, dated 2.10.2003 under the heading "Amended request of issuance of notification regarding Nazim of Union Council No. 128 Lahore vide my judgment dated 24.9.2003 rectified vide order dated 2.10.2003.

(vi) The Election Commission issued revised notification on 3.10.2003.

(vii) Respondent No. 3 submitted joining report on 4.10.2003.

In case the aforesaid facts are put in a juxta position then it brings the case in the area that Election Tribunal exercised discretion while accepting the application of Respondent No. 3 without application of mind and without issuance of notice to the parties in the election petition and the impugned order does not contain any reason. It is the duty and obligation of the public functionaries to decide the controversy between the parties with reasons in view of Section 24-A newly added in General Clauses Act. As the impugned order does not contain reasons therefore, the same is not sustainable in the eye of law as the law laid down by the Honourable Supreme Court in Maula Ejahar Alt us. Government of East Pakistan(PLD 1970 S.C. 173). The impugned order is also passed by the Election Tribunal in violation of the principle of natural justice. Therefore, the same is not in accordance with the iaw laid down by the superior Courts as the vested right has accrued to the voters of the area and the parties in the proceedings. Therefore, impugned order is not sustainable in the eye of law keeping in view the special circumstances of this case as the judgment of the Election Tribunal was implemented by the Provincial Election Commissioner Punjab Lahore vide Notification dated 29.9.2003.

1. In view of the aforesaid circumstances the writ petitions to the extent of judgment of the Election Tribunal dated 24.9.2003 are dismissed.. However, impugned order dated 2.10.2003, as mentioned above, has been passed by the learned Election Tribunal in violation of principle of natural justice and without application of mind, therefore, Constitutional petitions to the extent of order dated 2.10.2003 are accepted and the said order dated 2.10.2003 is set aside. Meaning thereby that the application filed by Respondent No. 3 shall be deemed to be pending adjudication before the Election Tribunal. The parties are directed to appear before the Election Tribunal on 18.12.2003 who is directed to decide the application of Respondent No. 3 as early as possible without 'being influenced by the observations of this Court, strictly in accordance with law. The parties are directed to cooperate with the Election Tribunal so that the application may be finalized by the learned Election Tribunal as expeditiously as possible. In case the parties fail to cooperate with the learned Election Tribunal then learned Election Tribunal is directed to invoke the penal provisions qua the inaction of the parties which would be-hindrance to decide the application of Respondent No. 3.

2. Now I would like to decide the preliminary objections raised by the learned counsel of Respondent No. 3 that Constitutional petition cannot be heard in absence of the service of the remaining respondents. This objection has no force; firstly that Respondents Nos. 4 to 7 are proforma respondents and secondly that no relief has been claimed against them by the petitioners. The second objection qua the locus standi of the petitioners- has also no force as the petitioners are already parties in the proceedings since the filing of the election petition by Respondents Nos. 3 and 4 before the Election Tribunal against the petitioners coupled with the fact that learned Election Tribunal has not debarred the petitioner Riffat Ullah Khan to participate in the fresh election qua the office in question. Therefore, the petitioners have locus standi to file Constitutional petitions as per principle laid down by the Honourable Supreme Court in Fazal Din's case (PLD 1969 S.C. 223).

With these observations, the writ petitions are disposed of, (A.A.) Order accordingly.

PLJ 2004 Lahore 477 [Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq, J. SHER AFZAL KHAN--Petitioner ' versus

SECRETARY UNION COUNCIL NO. 19, TEHSIL AND DISTRICT ATTOCK and another-Respondents

W.P. No. 3009 of 2003, heard on 8.12.2003. Punjab Local Government Ordinance, 2001--

—-S. 85-Constitution of Pakistan (1973), Art. 199-Proceedings relating to No-Confidence Motion against petitioner assailed by him—Precise contention of petitioner was that meeting could not have been called by respondent/Nazim against whom motion of no confidence had been carried out earlier-Writ petition was disposed of with direction that Respondent/Nazim was entitled to continue as Nazim of Union Council concerned till such time that all those proceedings mentioned in S. 85 of Punjab Local Government Ordinance 2001, were fmalized-Proceedings and resolution already suspended by High Court were, however, set aside with direction to respondent (Nazim) to issue fresh notice to petitioner intimating him of said no-confidence resolution and thereafter to proceed further in matter in accordance with provisions of Punjab Local Government Ordinance, 2001. [P. 479] A

Mr. Razza A, Mirza, Advocate for Petitioner.

Mr. Sadaqat Alt Khan, Advocate for Respondents Nos. 1 and 2.

Date of hearing : 8.12.2003.

judgment

According to the writ petition the petitioner is the elected Naib Nazim while Respondent No. 2 is the elected Nazim of Union Council No. 19, District Attock. A member moved a no-confidence motion against the Respondent No. 2 and a meeting was held with him in the chair on 26.10.2003. The motion was carried. Thereafter on 3.11.2003 the Respondent No. 2 issued a notice that a meeting was held at 11.30 a.m. on the same date and that a no-confidence motion is to be discussed against the petitioner. According to the petitioner, since a no-confidence motion had been carried against the Respondent No. 2 himself, he was no longer the Nazim and was not entitled to call a meeting.

1. This writ petition came up on 10.11.2003 when notice was issued to the respondent for 18.11.2003. C.M. No. 1/2003 was also taken up and it was directed that a notice be sent to the respondents through a special messenger at the cost of the petitioner to be deposited in a couple of days and in the meanwhile the said notice issued by the Respondent No. 2 shall not be acted upon. On 18.11.2003 no one appeared and the case was ordered to be listed on 21.11.2003. On this date it was brought to the notice of the Court that the order dated 10.11.2003 has been violated inasmuch as pursuant to the said notice the meeting was held and a resolution has been passed against the petitioner. Notice was issued to the respondents in the writ

petition as well as in Crl. Org. No. 235-W/03 for today and the said resolution was suspended.

1. Learned counsel for the petitioner states that he had issued a certificate on the same date i.e. 10.11.2003 (Annex: 'B' to the Crl. Org.) certifying that this Court had suspended the notice and that the said certificate was presented in the Union Council on the same date. However, the meeting was held and the no-confidence motion was passed. Learned counsel for the respondents in the writ petition as also Mr. S.M. Ayub Bokhari, Advocate, for Respondent No. 1 in Crl. Org. says that the notice was to be sent through a special messenger and it is a matter of record that the petitioner filed an application for deposit of the expenses on 12.11.2003. The precise contention is that before the receipt of notice the deed had been done.

2. I have given some thought to the respective contentions of the learned counsel for the parties in this writ petition and the connected Crl. Org. Upon my query all present including the learned counsel for the petitioner state that the resolution expressing no-confidence against the Respondent No. 2 has not so far been approved by the Village and the neighbourhood Councils. This being so, the Respondent No. 2 holds the office and is entitLd to hold the same till such time that the matters are not- finalized in accordance with the law contained in Section 85 of the Punjab Local Government Ordinance, 2001. The said contention of the learned counsel for the petitioner, therefore, is without any force. Now it appears that after issuance of notice on 3.11.2003 by the Respondent No. 2, the petitioner filed a suit and obtained a stay order from a Civil Court which suit was withdrawn on 10.11.2003. Thereafter, the meeting was called and the resolution against the petitioner was carried. I find that whereas it cannot be strictly said that the said resolution had been passed in disobedience of the orders of this Court, as the record shows that the expenses for the special messenger were deposited by the petitioner on 12.11.2003, at the same time it is apparent on the face of the record that the matters were proceeded with an some haste.

3. The writ petition accordingly is disposed of with the observation that the Respondent No. 2 is entitled to continue as Nazim of the said Union Council till such time that all the proceedings mentioned in Section 85 of the Punjab Local Government Ordinance, 2001 are finalized. At the same time, the proceedings and the resolution already suspended by this Court are set aside with the direction to the Respondent No. 2 to issue a fresh notice to the petitioner intimating him of the said no-confidence resolution and thereafter to proceed further in the matter in strict accordance with the provisions of the Punjab Local Government Ordinance, 2001. In case the petitioner still feels aggrieved, he can approach the Court again. No orders as to costs.

(AA.) Petition disposed of.

PLJ 2004 Lahore 479

[Rawalpindi Bench Rawalpindi]

Present:maulvi ANWAR-UL-HAQ, J. ALLAH DAD and another-Petitioners

versus

FAZAL DAD and others-Respondents . C.R. No 352/D of 2000, heard on 2.12.2003.

Civil Procedure Code, 1908 (V of 1908)-

—-Ss. 9 & 115-Suit for partition of joint Khata-Defendant's plea, that land in question, comprised of Khasra Numbers was agricultural in nature and Civil Court had no jurisdiction to proceed in matter was accepted by trial Court as also by Appellate Court-.-Legality--Trial Court while holding that it had no jurisdiction in such matter gave finding of fact that land in question, already stood partitioned--Appellate Court affirmed such finding of fact without applying its mind-Case was remanded to' District Judge where First Appeal would be deemed pending-District Judge either himself decide appeal or would entrust it to some Additional District Judge for decision of same who after bearing parties and in light of observations of High Court would decide the appeal. [P. 481] A & B

2002 SCMR 1114 and 2002 SCMR 667, ref.-

Mr. M Younas Bhatti, Advocate for Petitioners. Raja M. Sattar Ullah, Advocate for Respondents. Date of hearing: 2.12.2003.

judgment

For the order I propose to pass in this case, I will not be referring to the facts in much detail. Suffice it to say that the .petitioners filed a suit against the respondents for separate possession through partition of their

share out of total land measuring 13 Kanals6 Marias. The grievance made out was that Respondent No. 1 had purchased one Kanal 12 Marias of land hut has taken over possession of the entire property and has also started raising construction. It was also stated that the suit land is a building site. The suit was contested only hy Respondent No. 1. He objected that the particular Khasra number cannot be partitioned and that the Civil Court had no jurisdiction. It was admitted that the parties to the suit are recorded in the revenue papers as co-sharers but the possession was delivered to him by the vendor. Regarding the nature of land it was stated that a part of land is under construction and part is being cultivated. Inter alia, following Issues Nos. 3 and 8 were framed:--

Evidence of the parties was recorded. Now under Issue No. 3 the learned trial Court recorded a finding that it has no jurisdiction as according to the copies of the revenue record on the file, the suit land is agricultural and crops are being cultivated. It was also mentioned that some construction is there but this would not change the status of the land.

1. Now after recording the said finding under Issue No. 3, the learned trial Court took up Issue No. 8 and for reasons at least not decipherable by this Court, proceeded to hold that the petitioners are not entitled to get the possession of the land from Defendant No. 1 and that a family partition has already been effected and the parties are in possession of their shares. The suit was dismissed vide judgment and decree dated 18.1.1995. The petitioners filed a first appeal. Now the learned ADJ after hearing the appeal and examining the copies of the revenue record proceeded to observe that the land appears to be agricultural and as such partition thereof would be in exclusive domain of the Revenue Courts.-However, at the same time the findings of the learned trial Court on Issue . No. 8 were also confirmed. This was done videjudgment and decree dated 10.5.2000.

2. Mr. M. Younas Bhatti, Advocate, learned counsel for the petitioners argues that both the Courts below have acted with material irregularity in the exercise of their respective jurisdiction. According to the learned counsel apart from the fact that the evidence regarding the nature of the property was mis-read, even if it was to be held that the Civil Court has no jurisdiction then the plaint ought to have been returned. Now what has happened is that on the one hand it has been held that the Civil Court has no jurisdiction and on the other hand the suit has been decided on its merits by holding that the plaintiffs are not entitled to get the land in partition. Raja M. Sattarullah, Advocate, learned counsel for the respondents, on the other hand, has tried to support the impugned judgments and decrees with reference to the judgments in the cases of Nazir Ahmed through LRs v.

Umra and others (2002 SCMR 1114) and Mst. Husna Bano alias Mst. BibiHussan Bano and others v. Faiz Muhammad through Legal Heirs and others(2002 SCMR 667) by urging that the concurrent findings recorded by the learned Courts below are not to be interferred with by this Court under Section 115 CPC. .

1. I have gone through the copies of the records. I have already stated in some detail the contents of the. two impugned judgments. Now it is apparent on the face of record that the learned trial Court on the one hand proceeded to hold that it has no jurisdiction and on the other hand gave a finding of facts that the land already stands partitioned and the petitioners cannot get the land in the said suit. The learned ADJ apparently, failed to take note of the said finding recorded by the learned trial Court on Issue No. B. This is apparent from the bare perusal of the judgment dated 10.5.2000 where only the question of jurisdiction has been discussed. Somehow or the other the learned ADJ proceeded to confirm the findings on Issue No. 8 as a whole which was not discussed at all by him in his judgment.

2. Now so far as the judgments being relied upon by the learned counsel for the respondents are concerned, there can be no cavil with the proposition laid down therein but in the instant case both the Courts below have, in fact, exercised the jurisdiction not vested in them even going by their findings in the respective judgments. The same cannot be upheld. Since the first appeal covers the legal as well as the factual aspects of the case, I allow this civil revision. The result would be that the first appeal filed by the petitioners shall be deemed to be pending in the Court of learned District Judge, Rawalpindi, where the parties shall appear on 15.1.2004. The learned District Judge shall requisition the records and either proceed to hear the first appeal himself or entrust it to a learned ADJ who shall hear the parties,' examine the entire records and decide the appeal in accordance with law and the observations made above. No orders as to costs.

3. A copy of this judgment be immediately remitted to the learned District Judge, Rawalpindi.

(A.A.) Appeal accordingly.

PLJ 2004 Lahore 481

Present: muhammad muzammal khan, J.

WATER AND POWER DEVELOPMENT AUTHORITY through its CHAIRMAN WAPDA HOUSE, LAHORE and another-Petitioners

versus

SYED IRSHAD HUSSAIN ABDI (deceased) through his Legal Representatives-Respondents

C.R. No. 1091 of 2001, heard on 5. 2.2003.

(i) Darnages—

—-Disconnection of Electricity of plaintiff for alleged non-payment of Electricity bill-Electricity bill in connection did not relate to plaintiff or' to his residence-Disconnection was restored after 9 years from date of disconnection-Defendants admitted that there was nothing outstanding in name of plaintiff-Disconnection of electricity supply of plaintiffs on basis of arrears against some other account was not warranted and thus, defendants could not escape from liability incurred by them-Damages awarded to plaintiff by Courts below were thus, in accord with evidence on record and no illegality and irregularity having been committed by Courts below, no interference was warranted in judgments and decrees of Courts below. [Pp. 484 & 485] A & D

(ii) Damages-

—Suit for damages claimed to be barred by time by defendants-Electricity supply was restored by order of ombudsman on 30.8.1991, while suit filed on 7.10.1992 was well within time. [P. 484] B

(iii) Maxim: "actio personalis moritur cum persona"-- "

—Applicability-Original plaintiff died during pendency of suit-Legal representatives, of original plaintiff were substituted in his place-Newly added plaintiffs being sons and daughters of deceased plaintiff had been living with him and had suffered alongwith him for 8 long years due to illegal and un-authorized activity of petitioners-Maxim, "actio personalismoritur cum persona" was thus not applicable to present case for reason, that heirs of deceased plaintiff had suffered alongwith him and were thus, entitled to damages. [Pp. 484 & 485] C

PLD 1967 Karachi 755 & 1996 MLD 803 ref.

Mian Khurshid Alam Ramay, Advocate for Petitioners. Nemo for Respondents. Date of hearing : 5.12.2003.

judgment

This civil revision assails judgments and decrees dated 20.3.1997 and 16.2.2001 passed by the learned Senior Civil Judge and learned District Judge, Bhakkar, respectively, deciding the lis against the petitioners.

1. A short factual background of the case is that Syed Irshad Hussain Abdi was a consumer of the petitioners fide Account No. 52259 according to the.revenue record of the petitioners. He is January, 1983 received an electricity bill containing arrears of Rs. 2165.23, claiming to be outstanding against Account No. 52260. He contested this bill and contacted WAPDA authorities apprising them that the bill issued does not relate to his electricity connection where against, there is no arrears, as he had been paying the entire bills regularly against Account No. 52259. His request for withdrawal of bill was not accepted by the concerned WAPDA authorities which conduct, coerced him to file a suit for permanent injunction before the Civil Court but it was dismissed due to non-compliance of order of deposit by the trial court and consequently his electric supply was disconnected and remained suspended for long eight years. In the meanwhile, Syed Irshad Hussain Abdi, original consumer, approached Hon'ble Ombudsman and under the orders therefrom, his electricity connection was restored in 1991. At this stage, Syed Irshad Hussain Abdi, filed a suit for recovery of an amount of Rs. 25,000/- as damages against the petitioners for illegal and unauthorised disconnection of his power supply for eight years. Pending suit, Syed Irshad Hussain Abdi, died and his legal representatives were substituted in his place.

2. The petitioners being defendants in the suit, controverted the allegations in the plaint and denied their liability to pay damages on the ground that they did not disconnect electricity connection of the deceased plaintiff and besides it they claimed that suit by the plaintiff was barred by ".imitation. Controvertial pleadings of the parties, necessitated framing of issues and recording of evidence. Trial Court after doing the needful and after appraising the evidence on 20,3.1997, decreed the suit for recoveiy of Rs. 25.000/-, as damages, sustained by the respondents. '

3. The petitioners aggrieved by the decision of the trial Court dated 20.3.1997 filed an appeal before the learned District Judge, Bhakkar, but- remained unsuccessful as their appeal was dismissed on 16.2.2001, vhereafter they filed instant revision petition before this Court seeking annulment of concurrent judgments and decrees of the two Courts below.

4. Notice to the respondents were issued and Respondent No. 3 was served for the date 10.10.2003 but did not appear and thus was proceeded against ex-parte. Remaining respondents were served with fresh notices for today, but nobody turns to defend this petition, hence, they are also proceeded against ex-parte.

5. Learned counsel for the petitioners submits that suit of the respondents was barred by limitation and, thus, could not have been decreed because according to them the alleged disconnection of his electric supply took place in May, 1983, whereas the suit under adjudication was filed on 7.10.1993, after the lapse of about nine years. He-further contends that disconnection of electric supply was against Account No. 52260 which was not in the name of late Syed Irshad Hussain Abdi and thus he could not maintain any kind of suit for damages, on the basis, thereon. He further elaborates his arguments by saying that original plaintiff died, pending suit, without any final verdict by the trial Court and in this manner legal representatives of the deceased, plaintiff, were not competent to follow the damages suit. He in support of his contentions referred to judgments in cases of Mercantile Co-operative Bank Ltd. us. Messrs Habib & Co. and others (PLD 1967 Karachi 755) and A Majid Sama vs. The Asbestos Cement Industries Ltd. and another (1996 MLD 803).

6. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record. Disconnection of electric supply is not denied by the petitioners, the only thing urged by the petitioners is that disconnection was against the account which was not in the name of the original deceased plaintiff. The original consumer on receipt of bill containing arrears against Account No. 52260 had been pursuing matter before the WAPDA authorities but nobody attended to his hue and cry whereafter he filed a suit for permanent injunction and on dismissal of it, his electric supply was disconnected. He was forced to approach Hon'ble Ombudsman and under the orders of that authority, his connection was restored by the petitioners. In view of these facts, it does not lie in the mouth of the petitioners to say that electric supply of Syed Irshad Hussain Abdi was not disconnected by them. This argument appears to be an after-thought and only a fake attempt to same the skin of the petitioners, from penal consequences in form of damages, in lieu of their illegal and unauthorised act of disconne'ction of electric supply. To my mind, assertion of the petitioners that bill of arrears did not relate to the account of the original plaintiff, goes against them because by this arguments, they admitted that- there was nothing outstanding Account No. 52259 in th« name of Syed Irshad Hussain Abdi. Disconnection of electric supply of the respondents on the basis of arrears against some other account, is more cruel and on this basis, they cannot escape from the liability incurred by them, subject of this suit.

7. On moved by Syed Irshad Hussain Abdi, Hon'ble Ombudsman, under went the agony of determination of dispute regarding disconnection of electric supply and through its order dated 20.8.1991 mandated that amount claimed by the petitioners was not due from the respondents and, thus, found that disconnection of electricity was not justified. Hon'ble Ombudsman got restored the electric supply of the respondents which fact could not be refuted by the petitioners. Order of the Hon'ble Ombudsman was not further challenged by the petitioners and has attained finality. In presence of this order, arguments of the learned counsel for the petitioners loose substance and it is a complete answer to the arguments of the petitioners regarding limitation, as well, because from the date of this order, suit in hand is within time. Order of the Hon'ble Ombudsman was passed on 30.8.1991 and the suit in hand was filed on 7.10.1992.

8. Judgments relied by the learned counsel for the petitioners relate to tort action wherein on account of some alleged defamition plaintiff filed suit for damages but died pending suit. In the case in hand, situation is altogether different. The respondents who are sons and daughters of late Syed Irshad Hussain Abdi, had.been living along him, during sufferings for long eight years, due to illegal and unauthorised activity of the petitioners, I am of the affirmed view that Maxim: "actiopersonalis moritur cum persona", is not applicable to the case in hand, for the simple reason, heirs/legal representatives of the plaintiff deceased had also sustained damages, as mentioned above.

9. For what has been discussed above, both the Courts below have rightfully exercised their jurisdiction and judgments, thus, returned by them, are in consonance with the evidence on the file which has neither been asserted nor is proved to have been mis-read or non-read, in absence of which no interference in revisional jurisdiction of this Court is permissible, under law. Both the Courts below committed no illegality or 'irregularity, this revision petition has no merits in it and is consequently dismissed, with costs.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 485

Present: sayed zahid hussain, J.

Mst. ANJUM ARA and 11 others-Petitioners

versus

THE PROVINCE OF PUNJAB through THE SECRETARY TO

GOVERNMENT OF THE PUNJAB, REVENUE DEPARTMENT

and 3 others-Respondents

C.R. No. 906 of 1995, heard on 15.12.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—O.XXXIII, R. 1 & S. 115-PlaintifPs willingness to make balance price of land in question-Such offer was accepted by Department.in their written statement though such offer was not pressed by plaintiffs-Plaintiffs in their memorandum of appeal and even before High Court had offered to make payment of balance price-Trial Court having jurisdiction in matter, case was remanded to it to consider questions raised by parties before High Court and decide matter afresh—Desire of petitioners/plaintiffs in order to bring to an end litigation also needs to be given due consideration by Court in as much as a settled transferee could not be ousted from property in such manner except to effect recovery of price if some balance was found to be due. [P. 488] B

(ii) Displaced Persons and Evacuee Laws (Repeal) Ordinance, 1975 (XIV of 1975)--

—-S. 3-Cancellation of PTD for non-payment of balance price of land-­Legality-Jurisdiction-Cancellation of transfer by settlement Department for non-payment of price of land, which was calculated after issuance of PTD. was illegal and un-warranted-Civil Court had jurisdiction in such matter as per dictate of Supreme Court as laid down in 2002 SCMR 1470.

[P. 488] A

1980 SCMR 789; 1980 SCMR 827; 1997 SCMR 1559 and 2002 SCMR 1470 ref.

Mr. Muhammad Iqbal, Advocate for the Petitioners. Rana Muhammad Nawaz, Advocate for Respondents Nos. 1 to 3. Mr. Khalid Iqbal Mian, Advocate for Respondent No. 4. Date of hearing : 15.12.2003.

judgment

The petitioners herein are successor-in-interest of Ch. Noor Muhammad Bhatti, who had instituted a suit for declaration with consequential relief that he was a lawful transferee of the property and the" defendants (Settlement Authorities) had no authority to cancel the permanent transfer deed (PTD) or placing it in the auction pool. Order dated 7.7.1980 as conveyed through communication dated 14.7.1980 was assailed in that context. The suit was contested and was dismissed by the trial Court vide its judgment dated 9.5.1991. Appeal preferred by the petitioners thereagainst was dismissed by the learned Additional District Judge, Lahore on 19.1.1995. This is revision petition thereagainst.

1. The learned counsel for the parties have been heard and material on the record has been perused and considered.

2. The suit was grounded on the assertion that the suit property had been duly transferred after due verification of the entitlement and P.T.D. had been issued in the year 1965 and the price had been deposited by him. It was after the issuance of P.T.D. that the price was re-assessed at Rs. 3,95,880/-. After deducting the price already deposited, he was asked to deposit a sum of Rs. 3,20,280/-. It was pleaded that after the issuance of P.T.D. the department had no jurisdiction and that order dated 7.7.1980 conveyed through communication dated 14.7.1980 was illegal and without jurisdiction and was nullity in law. The allegation of commission of any fraud attributed to him was also controverted. It was claimed that after the issuance of P.T.D. the transferee had become absolute owner thereof. In their written statement filed by the defendants (Settlement Authorities), the' jurisdiction of Civil Court was objected to.'Apart from their plea that transfer of the, property and issuance of title documents were illegal, it was pleaded that the Department had jurisdiction to cancel P.T.D. and to resume the property. Respondent/Defendant No. 4 also objected to the jurisdiction of the Civil Court by filing a separate written statement. The learned trial Court thus, framed the under-mentioned issues:--

"ISSUES:

(1) Whether the plaintiff is lawful transferee of the property in dispute with possession? OPP

(2) Whether the Defendants Nos. 1 to.3 had no authority to cancel the PTD relating to the property in dispute vide orderdated 7.7.1980 and 14.7.1980 ? OPP

(3) Whether the suit is not maintainable in view of preliminary Objection Nos. 2 and 3? OPD.

(4) Whether the suit is insufficiently stamped, if so, its what effect? OPD

(5) Whether this Court has no jurisdiction to hear and try the present suit? OPD

(5-A) Whether the suit is barred by resjudicata? OPD-4

(5-B) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction?OPD-4

(5-C) Whether the Defendant No. 4 is entitled to special cost under Section 35-A of C.P.C.? If so, to what extent?

(6) Whether the plaintiff is estopped by his own conduct? OPD

(7) Relief."

1. There is no denial of the fact that the suit property had been transferred to Ch. Noor Muhammad, deceased, who had paid a sum of Rs. 75,000/- as demanded from him and then P.T.D..was issued. It was later on that the matter of transfer and payment of price was reopened which gave rise to litigation between the parties and successive writ petitions had to be filed by the transferee, i.e. W.P. No. 71-R/76 (disposed of on 10.6.1976), W.P. No. 148-R/76 (disposed of on 13.4.1977) and W.P. No. 1109-R/76 (disposed of on 16.10.1977). The last order dated 7.7.1980 which was conveyed through communication dated 14.7.1980 had been passed .by the Additional Settlement Commissioner (Industries), Punjab whereby transfer of the property and P.T.D. issued to him was cancelled for default in payment of Rs. 3,20,280/-, had been assailed by him. The learned trial Court however,-has returned the finding on Issue No. 5 that the suit was barred under the law and the Civil Court had no jurisdiction in the matter. At the same time, by clubbing together Issues Nos. 2, 3 and 6 the Court took the view that the transfer price of the property was Rs. 3,95,82Q/- and balance of Rs. 3,20,280/- had to be deposited by Ch. Noor Muhammad who .had failed to make deposit, therefore, the P.T.D. was rightly cancelled. It has been noted by the trial Court that an application was made before the Court showing willingness of the transferee to make deposit of the balance price which however, had not been pressed and even the issuance of P.T.D. would not debar the Department to reopen the case. Suffice it to observe that such a view taken by the trial Court which has been affirmed by the First Appellate Court, is not consistent with the law on the subject. In Allah Bakhsh etc. v. Ghulam Shabbir Shah (1980 SCMR 789) and Mst. Majeeda Begum v. Deputy Settlement Commissioner-II end others (1980 SCMR 827) it was laid down that when 25% of the price had bean paid, the balance price could be recovered by adopting legal course and not the cancellation of transfer. In Israr Ahmad and others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another (1997 SCMR 1559) the receipt of balance price by the Department, pending the matter in the High Court was found to be just and proper. Thus cancellation of transfer by the Department for non-payment of price, which was calculated after issuance of PTD was illegal and unwarranted. The Civil Court thus, had jnrisdiction in. the matter in view of Pakistan Transport Company Ltd. vs. Walayat Khan through legal heirs (2002 SCMR 1470), wherein it was held that 'The Court (Civil Court) can make an enquiry and if on finding thai all the circumstances needed for passing an order were not present, it can declare the order to be void." In the context of the controversy and the admitted fact that P.T.D. had been issued to the transferee and admittedly the price (then demanded) had also been paid and the dispute was in regard to whether the price had been correctly assessed before issuance of P.T.D., the matter could be dealt with by the Courts below in some different manner enabling the transferee or his successors to make payment of the balance price and the cancellation and resumption of such property which had been transferred long before the repeal of the Laws could be avoided.

There was indeed an application made by the petitioners under Order XXXIII Rule 1 CPC that though the extra price being demanded was illegal and void yet in order to end the litigation, successors-in-interest of the transferee were prepared to make payment thereof. Such offer was accepted by the Department even in their reply filed before the Court dated 22.7.1990 but, the said application was not pressed later on and was rejected by the trial Court. The petitioners had in their memorandum of appeal before the First Appellate Court and even before this Court have, repeated and expressed their willingness to settle the matter by making such payment. " This desire of the petitioners in order to bring to an end the litigation also, need to be given due consideration by the Court inasmuch as a settled transferee could not be ousted from the property in such a manner except to effect recovery of the price if some balance was found to be due. Needless to state that if in arriving at a decision, different factors are taken into consideration^ and one of them is found to be incorrect, faulty and non­existent, there may be no way of knowing as to how much that faulty or non­existent factor had influenced the mind of the Court in the formation of its decision. In view of the conclusion arrived at by the Courts that the Civil Court had no jurisdiction, the decision on other issues was certainly got infected. Therefore, appropriate course is to remand the matter to the trial Court for decision afresh.

Keeping thus all aspects in view, it is held that the Civil Court had jurisdiction to try such a suit in view of the assertions and counter assertions of the parties, the view taken by the Courts below is found to be unsustainable. By setting aside their judgments, the matter is remanded to the trial Court for decision afresh in accordance with law. The revision petition is accepted accordingly. Parties to appear before the trial Court on 26.1.2004.

No order as to costs. (A.A.) Case remanded.

PLJ 2004 Lahore 489

Present: ch. ijaz ahmad, J.

NAZIA SAYED-Petitioner

versus

DISTRICT EDUCATION OFFICER (W-EE) OKARA and 2 others-Respondents

W.P. No. 3207 of 2003, decided on 15.12.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—-S. 9-Constitution of Pakistan (1973), Art. 199-Constitutional petition involving disputed question of fact was not maintainable-Petitioner, however, is well within his rights to avail proper remedy for resolution of disputed question of'fact before competent Court. [P. 491] E

(ii) Constitution of Pakistan (1973)--

—Art. 199-Constitutional petition-Maintainability-High Court has no jurisdiction to resolve disputed question of fact in constitutional jurisdiction—High Court, also has no jurisdiction to substitute its own- finding in place of findings of tribunal below. [P. 490] A

(iii) Constitution of Pakistan (1973)--

—Art. 199-Constitutional jurisdiction-Extent of-High Court has no jurisdiction to re-evaluate marks secured by candidates in interview conducted by respondents. [P. 491] B

(iv) Constitution of Pakistan (1973)--

—Art. 199 Constitutional petition-Maintainability-Essentials-Petitioner, qua maintainability of constitutional petition has duty and obligation to point out that action of respondents, was in violation of rules and regulations of respondents-Petitioner, however, failed to point out that any rule and regulation was violated by respondents, therefore, constitutional petition was not maintainable. [P. 491] C

(v) Constitution of Pakistan (1973)--

—- Art. 199-Ma/a fide of general nature--Effect--Allegations levelled by petitioner against respondents qua malafide was not maintainable in eyes of law being general in nature. [P. 491] D

1993 SCMR 618; PLD 1973 Lahore 600; 1984 SCMR 433; PLD 1974 SC 151; PLD 1990 SC 1092 and PLD SC 263 ref.

Mian Saeed-ud-Din Ahmad, Advocate for Petitioner.

Mr. Muhammad Hanif Khatana, Addl. Advocate General for Respondents Nos. 1 and 2, alongwith Perveen Zahida D.E.O. (EE.W.) Okara.

Date of hearing : 15.12.2003.

order

The petitioner has filed this petition with the following prayer:--

"Under the circumstances, it is most respectfully prayed that by accepting the present constitutional petition, the impugned order (Annexure-A) may very kindly be set aside and Respondents Nos. 1 and 2 may very kindly be directed to fill the vacancy of Elementary School Educator, on contract, basis, by making fresh recruitment, while acting strictly in accordance with law.

It is further prayed that the impugned order (Annexure-A) may very kindly be suspended, till the final adjudication of the present petition."

1. The learned counsel of the petitioner submits that respondents did not hold the interview and arbitrarily prepared the merit list. He further submits that petitioner secured high marks in the academic side whereas Respondent No. 3 has secured less marks in the academic side. He further submits that the respondent granted more marks to Respondent No. 3 in the- interview, therefore, action of the respondents is the result of malafide.

2. The learned law officer submits that respondents conducted the interview and other proceedings in good faith and this Court has no jurisdiction to re-evaluate the marks secured by the candidates while exercising power under Article 199 of the Constitution. He further submits that action of the respondents is in accordance with law. He further submits that disputed question of fact cannot be decided by this Court in Constitutional jurisdiction.

. 4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

1. In case the contents of the writ petition and parawise comments are put in juxta-position then it brings the case of the petitioner in the area disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as the law laid down by the Honourable Supreme Court in Muhammad Younas Khan's case (1993 SCMR 618). It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the tribunal below as the law laid down by the Division Bench of this Court in M. Musaddaq's case (PLD 1973 Lahore 600). It is also settled principle of law that this Court has no jurisdiction to re-evaluate the marks secured by the candidates in the interview held by the respondents as the law laid down by the Honourable Supreme Court in Salma Afroze's case (PLD 1992 S.C. 263). It is also settled principle of law that qua the maintainability of the Constitutional petition, it is the duty and obligation of the petitioner to point out that the action of the respondents is in violation of the rules and regulations of the respondents but the learned counsel of the petitioner fails to point out any rule and regulation which was violated by the respondents, therefore, Constitutional petition is not maintainable in view of the law laid down by the Hon'ble Supreme Court in Ali Mir's case (1984 S.C.M.R. 433). It is pertinent to mention here that respondents have only fixed five marks for interview, therefore, contention of the learned counsel of the petitioner that respondents have awarded more marks to Respondent No. 3 is not sustainable in the eyes of law. The allegations levelled by the petitioner against respondents qua malafide is not sustainable in the eyes of law being general in nature as the law laid down by the Honourable Supreme Court in the following judgments:—

Saeed Ahmed Khan's case (PLD 1974 S.C. 151). Aman Ullah's case (PLD 1990 S.C. 1092).

1. In view of what has been discussed above, this writ petition has no merit. The petitioner is well within his right to avail proper remedy for resolution of disputed question of fact before the competent Court.

With these observations, the writ petition is disposed of. (A.A.) Order accordingly.

PLJ 2004 Lahore 491

[Rawalpindi Bench Rawalpindi]

Present: ali nawaz chowhan, J. MUHAMMAD AJAIB-Petitioner

versus

FARRUKH IMTIAZ and 3 others-Respondents C.R. No. 615/D of 2001, decided on 5.11.2003.

Punjab Pre-emption Act, 1991 (IX of 1991)--

—S. 13-Pre-emption suit-Dismissal of suit on ground of waiver-Legality-Mere oral statements by some witnesses showing that pre-emptor had knowledge of sale would not create relinquishment of right, in as much as, more was needed in that respect-Even if vendor had .offered land in question, at relevant time and such offer was not accepted by pre-emptor for certain reasons, then he might change his mind subsequently, when, his liquidity permits and opt for same land-Nothing can be said to be permanent in that respect until absolute refusal on his part was . established-No issue had framed on issue of waiver nor any evidence had been specifically led on that point-Oral evidence of two witnesses of defendant side was not enough for trial Court to dismiss plaintiffs suit- Respondent/pre-emptor having already established his right of pre­ emption and his locus standi as a Shaft Jar and Shaft Shareek, Appellate Court had correctly decreed plaintiffs suit which warrants no interference in revisional jurisdiction. [P. 494] A & B

1999 SCMR 201; AIR 1937 Lahore 504; 1992 SCMR.786; PLD 1972 SC 133 and PLD 1962 Peshawar 14 ref.

Malik Shahzad Ahmad Khan, Advocate for Petitioner. Mr. Mujeeb-ur-Rehman Kiani, Advocate for Respondents. Date of hearing : 5.11.2003.

order

This revision petition pertains to a pre-emption suit filed by the respondent before this Court. It pertains to about 3 Kanals and 16 Mariasof land located in village Wahli Bala in District Chakwal, the details of which are provided in the text of the plaint.

Mr. Sub ha Sadiq Khan, the learned-Senior Civil Judge, Chakwal, after holding that the plaintiff was the Shaft Shareek and Shaft Jar and,-therefore, had the superior right of pre-emption and while also upholding that the conditions of Talbs having been fulfilled, dismissed the suit on the ground of waiver. Because, according to the defendant's side, the property in question had been offered firstly to the plaintiff and on his refusal had been sold. In this connection, the verbal evidence of two witnesses of' the Defendant (DW-2 & DW-3) were produced.

When the matter was taken in appeal, the learned District Judge, Chakwal (Mr. Muhammad Mehmood Chaudhry) set aside these findings 'vide his judgment dated 16.10.2001. Before the learned District Judge cross objections were also filed by th3 petitioner but these cross objections were rejected. The relevant except from the findings of the learned District Judge is re-produced below in extenso:-

"As concerned the findings of learned trial Court upon Issue No. 2, learned trial Court has already held that appellant-plaintiff is vested with superior right of pre-emption, so I have to see as to whether, appellant-plaintiff ever waived of his right of pre-emption. At the very outset, I may mention here that a Court of law has to frame issues arising out of pleadings of the parties. After framing of issues, evidence has to be led. In case there is no issue, then there is no need for adducing evidence relating to the same. In the case in hand, no issue whatsoever relating to waiver was framed. I may also mention, here that to prove waiver, it is always the duty of respondent-defendant to produce sufficient convincing evidence, which may go to show that prior to sale, vendor offered a pre-emptor to purchase the suit land and it was not agreed. Let us see as to whether in the case in hand, statements of DW-1, DW-2 and DW-3 are quite sufficient to prove the same. In the written statement, it is simply submitted that appellant-plaintiff was requested to purchase the suit land but it was refused by him. No date, place etc. has been mentioned wherein, appellant-plaintiff was requested to purchase the suit land. Plaintiff, Farrukh Imtiaz has submitted in plaint words that for the first time, he came to know about the sale on 2.5.1996. He was subject to cross-examination. He submitted that beside Azam, no body told him about the sale. He denied this suggestion that prior to sale, Akram, Azam Baig and Mirza Qazi came to him and requested him to purchase the suit land. He denied this suggestion that he was aware of sale in dispute. He denied this suggestion that he was requested to purchase tfee suit land and it was refused by him. PW-2, also in cross-examination submitted that he came to know about the sale from the vendee. He was never suggested that prior to sale in dispute, plaintiff was ever offered to purchase the suit land. PW-1 admitted in cross-examination that in the year 1996, Sattar Cheema proceeded for Hajj.He admitted that mutation was sanctioned in the absence of Sattar Cheema. Sattar as' DW-2, in cross-examination, K has admitted that when he proceeded to plaintiff, by that time, sale had not taken place. In this way, simple statements of DW-1, DW-2 and DW-3 are not sufficient enough to prove that prior to sale, appellant-plaintiff was ever requested to purchase the suit land. I may also mention here that suit land was sold out by Chan Rahman. Chan Rahman has not been produced as a witness. He was the best person to say that prior to sale in dispute, he requested the plaintiff to purchase the suit land. Simple statements of DW-1, DW-2 and DW-3 that plaintiff was requested to purchase the suit land are not sufficient enough to constitute a waiver. Fact remains that sale in dispute took place on 17.4.1996. Registered A.D. notice was issued on 6.5.1996 i.e. just within 20 days and it does not appeal to reasons that if earlier, appellant-plaintiff has refused to purchase the suit land, then why within 20 days he became so active to request the defendant to accept his superior right. All these factors go to show that appellant-plaintiff was never requested to purchase the suit land and he never waived of his superior right of pre-emption. This being so, learned trial Court was not right in coming to this conclusion that appellant-plaintiff ever waived of his superior right. In this regard, findings of learned trial Court are unwarranted in law and the same are accordingly reversed."

Mere oral statements by some witnesses showing that a pre-emptor had knowledge of sale do not create relinquishment of a right as more is needed in this respect. Obviously, a vendor even if he had offered the land in question at a relevant time and which was not accepted by a pre-emptor for certain reasons, then, may change his mind subsequently, when his liquidity I permits and opt for the same land. So nothing can be said to be permanent in this respect until it is established that there was an absolute refusal. So we have to look for a conduct clearly indicating a deliberate abandonment of the right. In this connection, I am fortified by the following rulings: (1) Abaid-ur-Rehman and others vs. Mehmand and others (1999 SCMR 201); (2) AIR 1937 Lah. 504; and (3) Jam Pari us. Muhammad Abdullah (1992 SCMR 786).

In the case Baqri and 4 others vs. Salehon and 3 others (PLD 1972 SC 133) the rule laid down was that the right of pre-emption could be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff showing that he was not interested in the purchase of the property. The situation was compared to the principle of foreclosure as envisaged by the Punjab.. Pre-emption Act of 1913.

In the case of Mustaqim vs. Sher Bahadur (PLD 1962 W.P. Peshawar 14), waiver in matters of pre-emption was defined as follows:--

"Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act or relinquishment or of conduct such as would warrant an inference of relinquishment of the right. To deprive a person of any legal right there must be clear and cogent evidence on record justifying that course. One and the same person may possess two separate characters, one private, and the other representative of the rights of others, and a representation made by him in one character is not binding on him in the other. In other words, acts done by a person in a representative character do not create an estoppel when a claim is made by him in his personal capacity."

The decision of the learned District Judge which is impugned before this Court seems to follow the principle enunciated by the case law referred to above. There was no issue on the question of waiver nor any evidence has been specifically led on this point. Under the circumstances, taking help from two witnesses of the defendant side was not enough for the learned Senior Civil Judge who dismissed the suit of the plaintiff on ground of waiver. The respondent having already established his right of pre-emption and his locus-standi as a Shaft Jar and Shaft Shareek, this Court agrees with the findings of the learned District Judge and dismisses this Civil Revision. There is no order as to costs since the judgments of the Courts below were at variance.

(A.A.) Revision dismissed.

PLJ 2004 Lahore 495 (DB)

Present: ch. ijaz ahmad and bashir A. mujahid, JJ.

M/s. EVERGREEN PRESS and others-Appellants

versus

BANK OF PUNJAB having its HEAD OFFICE AT 7-EGERTON ROAD, LAHORE-Respondent

R.F.A. No. 373 of 1998, heard on 14.10.2003-.

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

—-S. 2(c)-Decree in suit for recoveiy of loan amount-Appellants claimed specified amount on the basis of independent agreement between parties be adjusted against decretal amount-Such amount must be determined by competent forum-Mere submitting of claim by appellants would be of no avail-Appellants having admitted liabilities of respondent Bank on merit and no objection having been raised qua merits of case, no infirmity or illegality in impugned judgment was found to justify interference therein-No interference was thus, warranted in appeal. [P. 500] A & B

PLD 1976 SC 57; 1988 CLC 1660; NLR 1988 Civil 554; 2003 CLD 653 and

PLD 1982 Karachi 13 ref.

Mr. AsadMunir, Advocate for Appellants.

Mr. Muhammad All Butt, Advocate for Respondent.

Date of hearing : 14.10.2003.

judgment

Ch. Ijaz Ahmed, J.--The brief facts out of which the present appeal arises are that the appellants have been availing financial facilities from the respondent-bank by executing various agreements since 1992. The last agreement was executed between the parties qua the financial facility secured by the appellants from the respondent-bank on 26.7.1995. The respondent-bank had also provided running finance facility to Appellant No. 1 vide agreement dated 26.7.1995 against, inter alia, hypothecation of Appellant No. 1's stocks of polypropylene, polythene, inks and nylon block plates etc. The respondent-bank sanctioned advice qua the loan facilities in favour of the appellants on 18.6.1995 on the basis of which the aforesaid agreement was executed between the parties and the letter of hypothecation was also executed between the parties on 26.7.1995. The hypothecated goods to be ensured for full value against fire and theft by the Appellant No. 1 in the name of the respondent-bank and with an Insurance Company approved by the respondent-bank. The hypothecated goods were duly ensured upon payment of premium by Appellant No. 1 in the name of. respondent-bank for Rs. 10,00,000/- for the period from 12.9.1995 to 12.9.1996 through insurance policy dated 12.9.1995 which was issued by Crescent Star Insurance which' was nominated by the respondent-bank. The said insurance policy included the bank mortgage clause whereunder any money become due under the policy was payable to the respondent-bank only. The hypothecated stocks worth about Rs. 10,00,000/- lying at Appellant No.l's godown were totally destroyed during the night of 15/16.6.1996 due to electric short circuiting. The appellants informed the respondent-bank about the said incident. The respondent-bank agreed with the appellant that it had suffered a loss of Rs. 8,52,500/-. The respondent-bank did not make any effort to recover the said amount from the said Insurance Company. The respondent-bank filed a suit for recovery amounting to Rs. 6,72,000/- on 9.10.1997 alongwith compensatory charges, cost and liquidated damages under Section 9(1) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 19,97 before the Banking Court No. 3, Lahore. The appellants filed following two application-

(1) application for leave to appear and defend the suit;

(2) application under Order 1 Rule 10 CPC for impleading Crescent Star Insurance Company as a party

The learned Banking Court dismissed both the application and decreed the suit of the respondent-bank vide order dated 11.8.1998. Hence the present appeal.

Learned counsel of the appellant submits that sanction advice of the respondent-bank contained various conditions including condition No. 2 which prescribes stocks to be ensured by an Insurance Company on the banks approved list against all necessary risks with banks mortgage clause inserted therein. Finance facility agreement was also executed between Appellant No. 1 and the respondent-bank which also contained Clause 5(d) which would have to be fulfilled by the appellant which reads as under:~

"5. The Customer hereby further covenants as follows:--

(a)

(b)

(c)' -----

(d) To keep the hypothecated/pledged goods duly insured with an insurance Company approved by the Bank for a sum not less than the amount of purchase price due and payable to the Bank and deliver to the Bank copies of receipts evidencing payment of premium".

Insurance Fire Policy also contained the following condition which was agreed between the parties:--

"Upon any moneys becoming payable under this policy the same shall be paid by the Company to the Bank and such part of any

money so paid as may relate to the interest of other parties ensured hereunder shall be received by the bank as agents for such other

parties."

Learned counselof the appellant submits that the learned Banking Court erred in law not to implead the said Insurance Company as respondent which is proper and necessary party in view of the aforesaid clauses of the various documents. He further submits that in the presence of the insurance policy the bank could select the appellant for enforcing recovery of the outstanding which is not in consonance with the laid down by the Superior Court. In support of his contentions he relied upon an urireported judgment dated 13.1.2000 passed in RFA No. 264/1999.

Learned counsel of the respondents submits that insurance agreement relates to the goods which has no nexus with the finance facilities secured by the appellant from the respondent-bank. He further urges that no insurance policy was issued or agreement was executed between the parties quathe loan secured by the appellant from respondent-bank. He further submits that unreported judgment is distinguished on facts and law as the Division Bench of this Court decided the case qua the loan facilities secured by the loanee for the purchase of vehicle under City Bank Car Scheme and the vehicle in the cited^case was in the name of the City Bank.

Learned counsel of the appellant in rebuttal submits that Insurance Company is proper and necessary party, therefore, the learned Banking Court erred in law to dismiss the application of the appellants to implead the Insurance Company as respondent in the suit of the respondent-bank. He summed up his arguments that Insurance Company is proper and necessary party in view of Section 2(c) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

We have given our anxious consideration to the contentions of learned counsel of the parties and perused the record ourselves.

It is better and appropriate to reproduce the relevant clauses of sanctioned advice, finance facility agreement dated 26.7.1995, Insurance Fire Policy and Section 2(c) of the aforesaid Act, to resolve the controversy between the parties:

SANCTION ADVICE

(1)

(2) Stocks to be insured by an insurance company on the Bank's approved list against all necessary risks, with Bank's mortgage clause inserted therein.

FINANCE FACILITY AGREEMENT

1. The Customer hereby further covenants as follows: ~

(a) —

(b)

(c)

(d) To keep the hypothecated/pledged goods duly insured with an insurance Company approved by the Bank for a sum not less than the amount of purchase price due and payable to the Bank and deliver to the Bank copies of receipts evidencing payment of premium".

FIRE POLICY

"Upon any moneys becoming payable under this policy the same shall be paid by the Company to the Bank and such part of any money so paid as may relate to the interest of other parties ensured hereunder shall be received by the bank as agents for such other parties."

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act. 1997

2(C) "Borrower" means a person who has obtained a loan under a system based on interest from a banking company and includes a surety or indemnifier.

Mere reading the aforesaid clauses Insurance Company is not proper and necessary party, in view of the law laid down by the Hon'ble Supreme Court in Khan Abdul Wall Khan's case PLD 1976 SC 57.

Order I, Rule 10 CPC was interpreted in similar circumstances by the Allahabad High Court in Oum Prakash Tewari vs. State Bank of Indiaand others AIR 1949 Allahabad 313. The relevant observation is as follows:

"It is significant that one of the very necessary principal in all these cases for impleading a party is that only such parties should be impleaded whose presence is necessary to settle all the questions involved in the suit. In the present case all the questions which will be raised between the Bank and the applicant, the Insurance Company will in no way be of any assistance or the person who would be required for adjudication between the two. The Bank, as per para 8 of the Agreement, in case the decree is passed and the amount which is to be realized is not realized from the loanee,-could realize the same from the said Insurance Company the amount which is realizable by the loanee from the said Insurance Company towards the loan advanced. The question of payment by the Insurance Company to the loanee is by way of separate contract" which has nothing to do with the dispute between the applicant and the Bank arising out of a separate contract. In case the Insurance Company or the said loanee raises any dispute regarding the contract, then such dispute could not be decided in the present case."

Section 2(c) of the said Act was interpreted by the Division of Karachi High Court in case M/s United Bank Limited vs. Adam Jee Insurance Company Limited reported as PLJ 1988 Karachi 490. This case was also reported in the following Law Journals:

M/s United Bank Limited vs. M/s Alamgir Insurance Co. 1988 CLC 1660.

United Bank Ltd. vs. Adam Jee Insurance Co. Ltd., etc. NLR 1988 Civil 554;

in which principle was laid down that Insurance Company is not covered by definition of "borrower" in Section 2(c) of the said Act. Relevant observation is as follows:

"In our view, the provisions of the Ordinance are to be construed strictly and the same cannot be extended to a case unless it is covered by the provisions of the Ordinance. We are inclined to hold that an Insurance Company, which may have issued a Marine Insurance Policy in respect of the goods, which were to be imported against the L/C opened by a banking company on behalf of a borrower is not covered by the definition of "borrower" as given in Clause (b) to Section 2 of the Ordinance. It is true that the Insurance Company is an indemnifier but it iz not an indemnifier in the sense in which it has been used in the definition of the word 'borrower' in above quoted clause (b). The Insurance Company is an idemnifier for any losses, the insured may sustain through the agency of the sea risks insured against i.e. any loss occurring by means of any of the perils insured against and not in relation to the loan contract.— Furthermore, the liability of an Insurance Company is not co­extensive with the liability of a borrower. If the borrower had obtained a loan of rupees five lacs from a banking company for opening L/C and say that the goods in transit were damaged resulting into loss say of Rs. 20,000/- only, the Insurance Company ' would be liable under the Marine Insurance Policy to the extent of Rs. 20,000/- and not to the above amount of loan with interest thereon etc."

The judgment of the Division Bench was also followed by this Court in EFU General Insurance Company's case reported as PLD 2001 Lahore 313. We are also fortified by the following judgments:—

National Bank of Pakistan and 5 others vs. Punjab Road Transport Board through Managing Director and 3 others (2003 CLD 653)

Juna Bunder Joint Venture, Karachi vs. Board of Trustees of Port of Karachi, etc. (PLD 1982 Karachi 13)

Para (a) Clause 1 of Insurance Fire Policy contained "upon any money become payable under this policy", which means the amount must be determined by a competent forum. Mere submitting a claim by the appellant to the respondent-bank does not entitle the appellant to claim the said amount be adjusted qua the outstanding liabilities of the appellants against the outstanding of the respondent-bank. In fact' it is an independent agreement between the parties which has no nexus to discharge the liabilities of the respondent-bank by the appellants on the basis of loan agreement executed between the parties on 26.7.1995.

The unreported judgment cited by learned counsel of the appellant is distinguished on .facts and law which clearly reveals that finance agreement was executed between the City Bank and the Loanee in pursuance of the City Bank Car Scheme with joint investment. The vehicle was purchased which undeniably stands in the name of the Bank whereas in the present case there is no joint investment, therefore, unreported judgment dated 13.1.2000 passed in RFA No. 264/1999 is distinguished on facts and law. It is settled principle of law that each and every case has to be decided on its own facts and circumstances, therefore, judgment relied upon by learned counsel of the appellant has no relevancy and nexus to resolve the present controversy between the parties. The appellant admitted liabilities of the respondent-bank on merits and learned counsel of the appellants did not raise any objection qua the merits of the case wherein the liabilities of the respondent-bank has been admitted by the appellants.

In view of what has been discussed above, We do not find any infirmity or illegality in the impugned order of the Banking Court. The appeal has no merits and the same is dismissed.

(A.A.) Appeal dismissed.

PLJ 2004 Lahore 500

Present: CH. IJAZ AHMAD, J.

PUNJAB TEXT BOOK BOARD EMPLOYEES ASSOCIATION LAHORE through its PRESIDENT-Petitioner

versus

PUNJAB TEXT BOOK BOARD through its CHAIRMAN, LAHORE and 2 others-Respondents

W.P. No. 11840 of 1999, heard on 30.10.2003. (i) Administration of Justice-

—Constitutional petition-Subsequent events-High Court has ample powers/jurisdiction to look into the subsequent events at time of deciding constitutional petition. [P. 505] A

(ii) Constitution of Pakistan, 1973--

—Art. 199RecaUing of earlier order whereby employees, were promised payment of house allowance, assailed-Relief in question, was granted to petitioners by respondent Authority by order dated 27.12.2002, which was subsequently recalled on 16.4.2003-Petitioner has not challenged vires of order dated 16.4.2003, before competent forum/Court till date inspite of fact that same was brought to the notice of petitioner on 29.9.2003-Constitutional petition being without merit was dismissed- Petitioner, however, would be within his right to -challenge impugned order before competent forum/Court. [P. 505] B

1990 CLC 1069; PLD 1978 SC 220; 1992 CLC 282; 1995 CLC 846; 1997 CLC. 615; PLJ 2002 Lahore 1897; 1991 CLC 13; PLD 1990 SC 295 and PLD 1987 Lahore 336 ref.

Ch. Khurshid Ahmad, Advocate for Petitioner.

Mr. Badar-ul-Ameer Malik, Advocate for Respondents.

Date of hearing : 30.10.2003.

judgment

The petitioner has filed this writ petition with the following prayer:-

"It is respectfully prayed that the decision of the Board of Directors of the Punjab Text Book Board dated 1-12-1998 and order dated 9.2.1999 of the Chairman of the said Board rejecting the request of the employees of the Punjab Text Book Board for the grant of House Rent Allowance @ 45% of the running pay may very kindly be declared illegal, ultra vires, not binding on the petitioners and for the grant of any other appropriate relief or direction to the respondents to allow the payment of House Rent Allowance @ 45% of the running pay w.e.f. 1.6.1994 as per decision of this Honourable Court in ICA No. 551-97."

1. The learned counsel of the petitioner submits that the petitioner filed Constitutional Petition No. 13069-94 qua. Medical Allowance to be paid to the employees of Board at the rate of Rs. 35%, which was accepted by this' Court vide judgment dated 16.6.1997. The judgment of this Court was implemented by the respondents videorder dated 28.6.1997. The petitioner also made demand of house rent at the rate of Rs. 50% on the basic pay scale, which was refused by the respondent-Board vide its meeting held on 1.12.1998 videItem No. 2. The petitioner being aggrieved filed representation before the Board against its meeting dated 1.12.1998, which was also rejected vide order dated 9.2.1999. The petitioner being aggrieved filed this Constitutional petition.

2. The learned counsel of the petitioner further submits that the competent authority has promulgated and constituted the Board of

Intermediate & Secondary Education and Punjab Text Book Board by two independent Ordinances i.e. (West Pakistan Text Book Board Ordinance, 1962 and the West Pakistan Board of Intermediate and Secondary Education, 1961), having similar provisions. The provisions of West Pakistan Textbook Board subsequently the aforesaid Ordinance merged in Punjab Text Book Board as amended vide Act No. V of 1971. The West Pakistan B.I.S.E. amended as Punjab Board of Intermediate & Secondary Education, 1976. The employees of the Board of Intermediate & Secondary Education demanded house rent like the petitioner, which was not acceded by the Board of Intermediate & Secondary Education. The employees of the Board of Intermediate & Secondary Education being aggrieved filed the constitutional petition, which was accepted by this Court. The petitioner demanded the same relief from the Punjab Text Book Board, which was declined by the Board without any justification, in spite of the fact that the working paper was prepared by the Secretary Punjab Text Book Board, Lahore which is attached with the writ petition as Annexure J and admitted the claim of the petitioner in the working paper which is as follows :--

(a) That the employees of the Punjab Textbook Board have been receiving the house rent allowance on the basis of their pay drawn/running pay since the inception of the Board i.e. in the year 1962.

(b) That the Government of the Punjab Finance Department videNotification dated 18.7.1994, maintained the level of some allowances including the house rent allowance at the level drawn/admissible at the rate as on 31.5.1994. The said Notification censed to be effective due to decision of the Division Bench dated 1.12.1997, in ICA No. 551-97 and resultantly the employees of all the B.I.S.E. in Punjab were paid house rent allowance at the rate of 50% on their pay. drawn/running pay (instead of 50% of the initial pay scale) w.e.f. 1-6-1994.

(c) That the judgment dated 1.12.1997 of the D.B. in ICA No. 551- 97 filed by the employees of the B.I.S.E. (which has not been challenged in the Supreme Court of Pakistan) has become a case law.

(d) That in pursuance of decision of the Lahore High Court dated 16.6.1997 in W.P.No, 13069-94, the employees of the B.I/S.E. were allowed relief partly and accordingly medical allowance was paid to them at the rate of 35% of their basic pay. Following the said procedure, the employees of the P.T.B.B. were also allowed medical allowance at the rate of 35% of their pay drawn/running pay.

(e) That the orders of D.B. in ICA No. 190 of 1991 and in ICA No. 551-97 (filed by the employees of the Punjab Textbook Board

and that of the B.I.S.E. respectively) being judicial precedences/case laws, have over riding effect own any executive order/policy decision etc.

(f) Following the judgment dated 1.12.1997 of the D.B. in ICA No. 55197 (filed by the employees of the B.I.S.E.) the employees of Punjab Board Technical Education, Allama Iqbal Town, Lahore, were also allowed house rent on running pay.

(g) That the Board has its own sources of income and there is no need of any grant from the Government. An approximate amount of rupees fifty six lac and fifty thousand is required to meet the expenditure of the house rent allowance, from the date the same was freezed, be re-appropriated in the current financial year.

In view of the position explained above, the case is submitted to the Board of Directors with the request to accord approval to grant the house rent allowance to the employees of the Board at the rate of 45% of their basic pay/running pay w.e.f. 1-6-1994."

He further submits that the respondents have no lawful authority to refuse the claim of the petitioner in violation of law laid down by this Court qua employees of the Board of Intermediate and Secondary Education in I.C.A. No. 551-97, which was decided on 1.12.1997. He further submits that the respondents granted said relief to the petitioner during the pendency of the writ petition vide order dated 27.12.2002. Subsequently, the respondent-Board has recalled the order dated 27-12-2002 vide order dated 16.4.2003, therefore, the claim of the petitioner was accepted by the respondent-Board. The respondent-Board has no lawful authority to wriggle out from this position. He further submits that the Government has no power to interfere in the function of the Punjab Text Book Board as the Punjab Textbook Board is a creation of statute. He further submits that the Board is the competent to regulate its furids in view of letter dated 27.8.2003 of the Government Finance Punjab. He further submits that as the employees of Board of Intermediate & Secondary Education and employees of the Punjab Tax Book Board, are performing similar functions and duties and the same are regulated by the similar provision of law as is highlighted by the comparison of Sections 4, 5, 11 & 15 of Punjab Text Book Board with Sections 10 & 11 of Punjab Board of Intermediate & Secondary Education, 1976, therefore, the action of the respondents is hit by Article 25 of the Constitution. In support of his contention, he relied upon the following judgments:-

"Paki. Petroleum Workers Union vs. Ministry of Interior, etc." (1991 C.L.C. 13)

"Shrin Munir, etc. vs. Govt. of Punjab thro: Secretary Health", (PLD 1990 S.C. 295)

"Gout, of Punjab through Secretary Health, etc. vs. Naila Begum" (PLD 1987 Lahore 336).

He further submits that the respondent-Board has allowed one relief to the petitioner in view of order dated 28.6.1997; therefore, the respondent has no lawful authority to refuse the second relief with regard to the house rent to the petitioner. He further submits that the impugned order does not contain' any reason and basis; therefore, the same is not sustainable in the eye of law.

1. The learned counsel of the respondent \ submits that the petitioner has filed this writ petition in the representative capacity in violation of mandatory provision of Order I Rule 8 CPC, therefore, the constitutional petition is not maintainable. In support of his contention, he relied upon the following judgments:-

"Datari Construction Co. Ltd. us. A. Razaq Adamjkee, etc." (1995 C.L.C. 846).

"Anisur Rehman us. Government ofSindh, etc." (1997 C.L.C. 615).

"Nazir Ahmad us. Faisalabad Development Authority", PLJ 2002 Lahore 1897).

He further submits that the employees of Board of Intermediate & Secondary Education are governed by the provisions of Punjab Board of Intermediate &Secondary Education Act, 1976; whereas employees of respondent-Board are governed by the Punjab Text Book Board Act, 1962 as amended vide Act V of 1971, therefore, the judgment rendered by this Court qua the employees of Board of Intermediate & Secondary Education is not a judgment in rem but is judgment in personam, therefore, the judgement of this Court is not binding upon the Punjab Text Book Board. He further submits that the writ petition is liable to be dismissed on the well known' principle of laches as cause of action accrued to the petitioner in July, 1991 as the petitioner has filed this constitutional petition in May, 1999. He further submits that the Punjab Text Book Board adopted the Punjab Civil Servant Rules by revision of Pay Rules 1997, therefore, the judgment rendered by this Court qua the employees of Board of Intermediate & Secondary Education, has no relevancy to resolve the present controversy. He further submits that the matter pertains to the terms and conditions of service of the petitioner, therefore, the constitutional petition is not maintainable.

5, The learned counsel of the petitioner in rebuttal submits that the petitioner as mentioned above, filed petition on behalf of association of all the employees of the Board which mentioned in the contents of the writ petition as is evident from Para No. 1 of the constitutional. petition, therefore, the constitutional petition is maintainable and has not been filed • by the petitioner in violation of mandatory provisions of Order I Rule 8 CPC. In

support of his contention, he relief upon "Malik Muhammad Ismail etc. us. Settlement Commissioner and another" (1992 C.L.C. 282).

1. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

2. Without adverting to the contentions of learned counsel of the parties, it is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:-

(i) The petitioner submitted an application before the Punjab Textbook Board for grant of allowance in-question, which was rejected by the Board in its meeting held on 1.12.1998 vide Item No. 2.

(ii) The petitioner being aggrieved filed a joint representation before the Board, which was also rejected vide order dated 9.2.1999.

It is pertinent to mention here that the petitioner has challenged the vires of the aforesaid order in constitutional petition. During the pendency of the writ petition, the respondents accepted the demand of the petitioner vide order dated 27.12.2002. The said order dated 27.12.2002 has been recalled by the Board vide order dated 16-.4.2003. Respondents placed on record orders dated 27.12.2002 and 16.4.2003 through C.M. No.1-2003 which was allowed by this Court vide order dated 22.9.2003. It is settled principle of law that this Court has ample jurisdiction to look into the subsequent events at the time of deciding the constitutional petition, as per principle laid down by the Division Bench of Karachi High Court and by the Honourable Supreme Court in the following judgments:-

"NasirJamal vs. Mst. Zubaida Begum", (1990 C.L.C. 1069).

"Mst. Amina Begum, etc. vs. Mehr Ghulam Dastgir". (PLD 1978 S.C. 220).

It is admitted fact as mentioned above, the relief was granted to the petitioner by the Board vide order dated 27.12.2002, which was subsequently recalled vide order dated 16.4.2003. The petitioner has not challenged the vires of order dated 16.4.2003 before the competent forum/competent Court till date in spite of the fact that it was brought in the notice of the petitioner on 29.9.2003.

In view of what has been discussed above, this constitutional petition has no merit and the same is dismissed. However, the petitioner is well within his right to challenge the impugned order dated 16.4.2003 before the competent form/competent Court.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 506

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq, J. Mst. PIARI JANPetitioner

versus

MUHAMMAD AFZAL and 14 others-Respondents

C.R. No. 321/D of 1998, heard on 15.10.2003.

Specific Relief Act, 1877(1 of 1877)--

—-S. 42-Civil Procedure Code, 1908 (V of 1908), S. US-Plaintiffs filed suit for declaration that their predecessor had divorced defendant during his life time and that share of his inheritance awarded to her be declared to be void-Plaintiffs suit was dismissed, however, they, succeeded in appeal and their suit was decreed-Legality-Plaintiff s predecessor had earlier filed suit against present defendant during his life time that defendant stands divorced-Plaintiffs suit was however, dismissed for lack of evidence as also for non-prosecution when he was still alive—Predecessor of plaintiff had also filed writ petition to that effect which was also dismissed-No evidence was available on record that deceased plaintiff had taken any steps for restoration of those proceedings-Writ petition had been filed against order of maintenance allowed by Arbitration- Effect of dismissal of writ petition was that deceased had to pay maintenance to defendant and that order remained in the field-Trial Court had rightly dismissed present suit of successors-in-interest of deceased plaintiff on the basis of evidence on record while appellate Court had misread evidence in decreeing their suit—Judgment of trial Court whereby plaintiffs suit was dismissed was restored while that of Appellate Court decreeing their suit was set aside. [P. 508] A

PLD 1991 Karachi 174 ref.

Sardar Tariq Anees, Advocate for Petitioner.

Raja Muhammad As/am, Advocate for Respondents.

Date of hearing : 15.10.2003.

judgment

On 20.12.1981, the predecessor-in-interest of the respondents filed a suit against the petitioner. According to the plaint the suit land was owned by Fazal Hussain, who died in the year 1976 and was survived by the said plaintiffs and present respondents. According to her, Piari Jan petitioner was married to Fazal Hussain but he had divorced her. Inheritance mutation was taken up and was attested in favour of Zeenat Mahal as widow and respondents. The petitioner filed an appeal which was dismissed by the Collector on 25.11.1993. However, her revision was allowed by the Addl.' Commissioner Rawalpindi, on 3.5.1984 and she was given 1/16 share. The second revision filed by the plaintiff was dismissed by a learned Member of Board of Revenue. A decree was sought that the said orders of the Addl. Commissioner and Board of Revenue whereby 1/16 share in the estate of Fazal Hussain has been given to the petitioner be declared to be void. The petitioner contested the suit. In her written statement she asserted that she was married to Fazal Hussain and also bore him a daughter. She vehemently denied that she was divorced by Fazal Hussain. Inter alia, following issue No. 1 was framed:-

"Whether Fazal Hussain deceased had divorced Defendant No. 1 during his life time? OPP."

Evidence of the parties was recorded. Learned trial Court dismissed the suit vide judgment and decree dated 5.1.1995. A first appeal filed.by the respondents (as by that time Zeenat Mahal had died) was heard by a learned Addl. District Judge Rawalpindi, who allowed the same and decreed the suit on 18.3.1998 holding that the petitioner had been divorced by Fazal Hussain.

1. Learned counsel for the petitioner contends that the learned Addl. District Judge has misread the evidence and has misconstrued the law on the subject while passing impugned judgment and decree. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgment, and decree with reference to the case of Dr. AshiqueHussain. v. 1st. Addl. District Judge & Family Appellate Court and 2 others(PLD 1991 Karachi 174).

2. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I have already reproduced material contents of the pleadings above. It will be seen that it was for the respondents to have proved that Fazal Hussain divorced the petitioner. Now at the time of evidence Muhammad Banaras the attorney of deceased plaintiff appeared as PW-1 and came out with a document Exh. P2 (duly objected to) which according to him was a divorce deed. In his cross- examination he admitted that said document is being produced in the Court for the first time. He stated that he cannot identify the signatures or thumb impression on Exh. P2. He stated that he is not witness of Exh.P2. He expressed ignorance that Exh. P2. is forged document. In rebuttal the attorney of the petitioner appeared as DW-1 and he stated that petitioner was never divorced and that Exh. P2 is forged document.

3. Now what happened in this case was that the petitioner filed proceedings in the Arbitration Council for recovery of maintenance. Videorder Exh. D3 dated 17.11.196.9 the maintenance was awarded at the rate of Rs. 40/-per month. Fazal Hussain filed a revision petition which was dismissed by the Addl. Commissioner Rawalpindi, on February, 70 vide Exh. D4. The said Officer observed that Fazal Hussain deliberately absented from.

the proceedings before the Chairman to whom he had heen sending letters. Now document Exh. D5 is copy of order of learned Civil Judge, Rawalpindi, dated 27.1.1975. This order records 'that a declaratory suit filed by Fazal Hussain against Piari Jan was taken up and since he has not produced evidence nor he has himself turned up, the suit is dismissed for non-prosecution as well as for non production of evidence. Exh. D6 is the copy of order dated 1.11.1974 of this Court whereby W.P. No. 341/70 filed by Fazal Hussain against the petitioner and said Deputy Commissioner was dismissed for non-prosecution.

1. Now the learned Addl. District Judge has taken note of the copy of the writ petition Exh. D8 wherein Fazal Hussain had stated that he pronounced "Talaq" upon the petitioner. He has then referred to some civil suit wherein similar statement was made. Thereafter referring to the said case of "Dr. Ashiq Hussain" he has stated that the said contents of the writ petition would constitute a valid divorce.

2. I am afraid, the said observation is wholly perverse. On the other hand, record shows that the writ petition was dismissed and that it was dismissed in the life time of Fazal Hussain. Similarly the suit was dismissed in the life time of Fazal Hussain. The only inference to be drawn is that the pleas raised in the writ petition or the said suit were not accepted by the opposite party or the Court. Now in the said case of "Dr. Ashiq Hussain", the said person had filed a writ petition challenging the decree of maintenance and had stated that he had divorced the respondent. His lordship referred to the evidence of the parties including the statement of the lady who stated to have been divorced and concluded that she has been divorced.

3. In the present case a declaration was sought by him that the petitioner stands divorced. The suit was dismissed for lack of evidence as also for non-prosecution. It is on record that Fazal Hussain died in the year 1976 while the suit was dismissed on 27.1.1975 in the presence of counsel for defendant, i.e petitioner. While writ petition was dismissed on 1.11.1974. There is nothing on record not even an allegation that Fazal Hussain took any steps for restoration of the said proceedings. The result is that declaration sought for by Fazal Hussain was not granted to him while effect

of dismissal of writ petition was that order directing Fazal Hussain to pay maintenance to the petitioner remained in force.

1. This is case of deliberate mis-reading of evidence of record. The civil revision is allowed. The impugned judgement and decreed dated 18.3.1998 of the learned Addl. District Judge, Rawalpindi, is set aside-while one passed by the learned trial Court on 5.1.1995 dismissing the suit of the deceased plaintiff is restored. No order as to costs.

(A.A.) Revision accepted.

PL J 2004 Lahore 509

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-ul-haq, J.

DOCTOR ABRAR MAQBOOL and 2 others-Petitioners

versus

GOVERNMENT OF PUNJAB through SECRETARY HEALTH DEPARTMENT LAHORE and another-Respondents

W.P. No. 2410 of 1998, heard on 22.10.2003. Pakistan Medical and Dental Council Ordinance, 1962-

—S. 33-Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979-Constitution of Pakistan (1973), Art. 143-Appointment of Teachers and Examiners in Medical and Dental Institutions of Pakistan-Regulations framed by Pakistan Medical and Dental Council for appointment to posts in question, with reference to qualifications and preferences were at variance with qualifications laid down by Punjab Health Department (Medical and Dental Teaching Posts) Service Rules 1979-Petitioner's were not called for interview by Punjab Service Commission on the ground that they were not qualified as per rules framed by Punjab Health Department-Regulations framed by Pakistan Medical and Dental Council under S. 33 of Pakistan Medical and Dental Council Ordinance 1962, being Federal Statute would prevail over Rules framed by Punjab Health Department-Petitioner being qualified in terms of Regulations framed by Pakistan Medical and Dental Council were eligible for the posts in question-Respondent Department was directed to evaluate petitioners vis-a-vis other candidates strictly in accordance with Regulations framed by Pakistan Medical and Dental Council by observing order of preference prescribed therein. [P. 513] A

1995 CLC 1409; 1998 SCMR 1469; 1995 SCMR 421 and 1999 PLC (C.S.) 359 ref.

Mr. Muhammad Bashir Kiani, Advocate for Petitioners. Mr. Tanvirlqbal, A.A.G. for Respondents. Date of hearing: 22.10.2003.

judgment

Pursuant to an advertisement issued by Respondent Nos. 2 in National press on 6.9.1998 inviting applications, inter alia, for the appointment of 4 Assistant Professors of Surgery in the Punjab Health Department. The petitioners filed application. They were, however, refused to be interviewed on the ground that because of low percentage of marks in MBBS they cannot be interviewed. According to the petitioners this constitutes violation of the Regulations framed by the Pakistan Medical & Dental Council (PMDC). According to which if a candidate is qualified has

requisite experience then the merit is to be inter-judged with reference to preferences of priority laid down by the said PMDC.

1. In their parawise comments Respondent No. 2 has admitted that the Petitioners Nos. 1 and 2 are eligible while the Petitioner No. 3 has not the requisite experience being less then two years on the closing date for receipt of applications. It was then stated that the respondent-Commission has made recommendation strictly in accordance with Rules and Regulations as provided by Health Department and PMDC Regulations as amended upto 7.1.1997. At another place it has been mentioned that Commission has to follow Rules and Regulations provided by Health Department Provincial Government has taken the position that according to the existing Service Rules, there is no provision regarding preference of teaching or practical experience. It has further been asserted that the service rules have been framed in accordance with minimum qualification prescribed by PMDC Regulations.

2-A. Mr. Muhammad Bashir Kiani, learned counsel for the petitioners contends that although the Service Rules as amended on-10.4.1995 do give an impression that the said preference clause in the matter of experience has been done away with, however, in the Regulations framed by the PMDC the said preference clause is very much there. The precise contention is that Regulations having been framed in exercise of powers vesting in the said Council under PMDC Ordinance, 1962, being in apparent conflict with the said Provincial amendment as being construed by the respondents, said Federal Legislation would prevail and since the petitioners have not been judged in accordance -with said Regulations, the act of the respondent-Commission in not interviewing the petitioners and evaluating them in accordance with said preference clause would be void. He relies on the case of Dr. Abrar Hussain Ahmad Khan and others v. Government of Punjab through Secretary and others (1995 CLC 1409).

1. Learned Assistant Advocate General, on the other hand, contends that by virtue of amendment made on 10.4.1995 by the Government of Punjab in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, the provisions of Schedule-II relating to the post of senior Registrar and Assistant Professor stands substituted as a whole and consequently all the candidates were evaluated on the basis of qualifications so prescribed by way of the said amendment videa notification dated 10.4.1995 and such an evaluation cannot be interfered with being in accordance with the existing Rules.

2. I have given some thought to the respective contentions of the learned counsel and learned Law Officer. Now I find that as per Regulations for Appointment of Teachers & Examiners in Undergraduate & Postgraduate Medical & Dental Institutions of Pakistan as framed by PMDC and amended upto 7.1.1997. Following is provided in terms of basic and additional qualification and experience:-

Post.

Basic Qualification

Additional (Postgraduate) Qualifications.

Experience

Assistant Professor

MBBS or equiv­alent medical qualifications recognised/regi­stered by the PM&DC

F.C.P.S./M.S/M.D in. respective subject OR other equivalent

qualifications in the speciality recognised/ registered by the

pm&dc!

Three years teaching/ practical

experience in the respective subject in the recognised institution in order of following preference:

1ST PREFERENCE .

Teaching experience.

2ND

PREFERENCE

Practical experience after Postgraduation.

3RD PREFERENCE

Practical

experience before Postgraduation.

Now I find that vide notification published in the Punjab Gazette on 3.7.1988 Schedule-II of Punjab Health Department (Medical & Dental Teaching Post) Service Rules, 1979, with reference to the posts of Senior Registrar and Assistant Professor was brought in accord with the 'said Regulations as reproduced by me above.

1. Now amendment, being relied upon by the learned A.A.G, was. made in the said Rules 1997 vide notification dated 10.4.1995 and reads as follows:- -

"In Schedule-II for the qualification for appointment by initial recruitment/promotion against the post of Senior Registrar/Assistant Professors in all the Specialities, the following shall be substituted:-

(i) MBBS or equivalent medical qualifications recognized by the PMDC and the post graduate qualifications of FCPS/MS

FRCS/MRCP/Diplomate of American Board in the respective speciality or equivalent medical qualifications in the respective speciality recognized by the PMDC.

OR

(ii) MBBS or equivalent medical qualification recognized by the PMDC with FCPS/MS/FRCE/MRCP/Diplomate of American Board (General Surgery/Medicine or any other equivalent medical qualification recognized by the PMDC with .3 years practical experience in the respective speciality in a recognized institution after post-graduation.

Now learned A.A.G insists that the said Schedule-II which was in accord with the provisions of the said Regulations framed by PMDC stands wholly substituted and said preference clause no longer exists. •

1. Now to my mind, a reading of the said amendment made by the said notification dated 10.4.1995 in juxta-position to the Schedule-II as.amended vide notification published in Punjab Gazette on 3.7.1988 clearly gives impression that only qualifications have been substituted and preference clause remains inacted.

2. Now assuming that the contentions of the learned A.A.G is correct. Now the said case of "Dr. Abrar Hussain Ahmad Khan and others" being relied upon by the learned counsel for the petitioner does go to hold that the Regulations framed by PMDC in exercise of powers under the Federal Statute i.e PMDC Ordinance, 1962, if in conflict with the provisions of the said Provincial Statute i.e said Service Rules 1979, Article 143 of the Constitution would come into play and said Provincial Statute will have to give way to the said Federal Statute. I may note here that his lordship was dealing with the same Regulations and same Rules in another context. Now the fact that the said Regulations have a statutory validity find support from the observations in the cases of Miss Hina Javed and others, v. Governmentof NWFP and others (1998 SCMR 1469) and Nadir Khan and others v.Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421).

3. Mr. Muhammad Bashir Kiani, learned counsel for the petitioner, also draws my attention to the judgment in the case of Dr. Riaz Ahmad, v.Govt. of Punjab and 6 others (1999 PLC(C.S) 359).-Incidentally in this particular case this very Regulations came up for consideration with reference to said amendment dated 10.4.1995. Petitioner before his lordship contended that the said qualifications at (i) and (ii) above would constitute two classes and such candidates with qualifications at (i) will have to be preferred over the candidates with qualification (ii). His lordship reproduced the said Regulations and while rejecting the contentions of the petitioner before him observed that where preference has to be given, specific provisions have been made and this observation of his lordship has reference to 1st, 2nd and 3rd preferences in the matter of Assistant Professor.

4. Now I will of a moment revert back to the position taken by both the respondents and particularly respondent-Commission in the comments. I- have already stated above that the respondent-Commission has insisted that it has conducted proceedings strictly in accordance with the Regulations as amended upto 7.1.1997. I have already reproduced above the relevant Regulations framed by the PMDC which by all means is a legislation under a Federal Statute in exercise of powers vesting in the said PMDC under Section 33 of the PMDC Ordinance, 1962. Now Regulations clearly lay down the preference and manner in which the preference is to be given. It will thus be seen that where equally qualified candidates holding the requisite qualification are before the Commission, then it has to go by orders of preference stated in the said Regulations made by the PMDC and this has admittedly not been done.

5. For all that has been discussed above, this writ petition is allowed. The result would be that the respondent-Commission shall evaluate the petitioners vis-a-vis the other candidates strictly in accordance with said Regulations made by the PMDC and observing the order of preference prescribed therein. No order as to costs.

(A.A.) Petition accepted.

PLJ 2004 Lahore 513

Present: CH. IJAZ AHMAD, J.

CHAIRMAN PAKISTAN TELECOMMUNICATION LTD., ISLAMABAD

and 4 others-Petitioners

versus

S.A. HAMEED, ADVOCATE, DISTRICT COURTS

GUJRANWALA-Respondent C.R. No. 733 of 2003, decided on 29.10.2003.

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

—-0. VIII, R. 1 & S. 115-Parties are bound by their pleadings-Defendant did not controvert stand of plaintiff on material points in written statement coupled with the facts that even if defendant had controverted contents of plaint in letter and spirit, he failed to prove contents of written statement-Courts below had given concurrent findings against petitioners-Petitioner had failed to bring on record any piece of evidence, which was non-read and misread by Courts below therefore, no interference was warranted in concurrent findings of facts of Courts below-Complained cf act of defendant, was not in accordance with law as was evident from the statement of defendant's own witness-Defendants having failed to bring on record any document to dislodge claim of plaintiff, no interference was warranted in concurrent judgments of Courts below. [Pp. 516 & 517] A & B

PLD 1949 P.C. 26 and NLR 1985 Civil 114 ref.

Mirza Nadeem Baig, Advocate for Petitioners.

Date of hearing: 29.10.2003. .

order

Brief facts out of which present revision petition arises are that the respondent is customer of the petitioners and he submitted an application for securing the telephone connection. The petitioners accepted the application of the respondent and installed telephone No. 250690 in his name in the office of the respondent at District Courts, Gujranwala in the year 1996. The respondent has been paying bills regularly and no arrear is due against the respondent. The contents of the plaint reveal that connection of said telephone of the respondent-plaintiff, was installed after fulfillment of all the requirements of the petitioners under rules and regulations, .but the petitioners neither issued bill in the name of the respondent-plaintiff nor sent a single bill in the office of the respondent-plaintiff. The respondent-plaintiff had to go in the office of the petitioners for receiving the duplicate telephone bills. The contents of plaint further reveal that in the month of January, 1999 the last date for depositing the telephone bill was 23.1.1999 but the respondent-plaintiff deposited the same within due date. In spite of that the petitioners-defendants disconnected the connection of the respondent-plaintiff. The respondent-plaintiff subsequently, compelled by the circumstances, to visit in the office -of the petitioners for restoration of the said telephone connection. The said telephone connection was installed by the petitioners in the name of the respondent-plaintiff but the petitioners-defendants have intentionally not issued bill in the name of the respondent-plaintiff due to this act of the petitioners-defendants. The respondent-plaintiff has allegedly suffered physical as well as mental agony and he could not contact his clients. Therefore, he has suffered financial loss amounting to Rs. 20,000/-. The respondent-plaintiff asked the petitioners-defendants to pay him said amount as token damages but the petitioners-defendants refused to accept the request of the respondent-plaintiff. The petitioners-defendants filed written statement controverting the allegations levelled in-the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:--

(i) Whether the suit is not maintainable in its present form? OPD

(ii) Whether the plaintiff has been estopped by his own words and conduct to file the suit? OPD

(iii) Whether the plaintiff has no cause of action to bring the suit? OPD

(iv) Whether the plaintiff is entitled to get Rs. 20,000/- from the defendants as damages? Opp

(v) Relief.

The learned trial Court decreed the suit vide judgment and decree dated 2.11.2002. The petitioners-defendants being aggrieved preferred an appeal before the learned Addl: District Judge Gujranwala, who dismissed the same vide impugned judgment and decree dated 12.3.2003, hence the present revision petition.

2.The learned counsel of the petitioners-defendants submits that the judgments of both the Courts below are the result of mis-reading and non-reading of the record. He further submits that both the Courts below erred in law to consider the admission on behalf of the petitioners by DW-1 (Zaheer Ahmad), which is not in accordance with the record as is evident from his operative piece of material evidence. In case, the statement of DW-1 Zaheer Ahmad be read as whole then it is clear that both the Courts below merely relied upon the portion of statement of -DW-1 Zaheer Ahmad, therefore, the judgments of bc\,h the Courts below are the result'of mis­ reading and non-reading the record. He further submits that the respondent-plaintiff did not approach the petitioners' official/officer, who did not have any record of written application submits by the respondent- plaintiff in the office of the petitioners-defendants, which is condition precedent in the terms of agreement arrived between the parties. He further submitted that the Ex. P-B produced by the respondent:plaintiff dated 13.2.1999 is forged document but the both the Courts below did not consider this aspect of the case, therefore, judgments of both the Courts below are the result of mis-reading and non-reading of the record. He further submits that the learned trial Court erred in law to decide Issues Nos. 1 & 2 in favour of the respondent in violation of legal aspect of the case that the suit filed by the respondent-plaintiff was not maintainable in view of Clause 11(2) of the agreement executed between the petitioners-defendants and the respondent- plaintiff. He further submits that the learned trial Court also erred in law to give findings against the petitioners-defendants on Issue No. 3 without adverting to the bar of jurisdiction. He further urges that in terms of Clause - V & VI of the agreement, it was incumbent upon the respondent-plaintiff to submit a written complaint before the relevant authority which admittedly had not been filed by the respondent-plaintiff, therefore, both the Courts below erred in law to entertain the suit and assume the jurisdiction. He further submits that there are various remedies available to the respondent- plaintiff to agitate the matter before the higher authorities under the law but this fact was also not considered by the learned trial Court in its true perspective. He further submits that the First Appellate Court also counter- signed the judgment of the learned trial Court without applying its independent mined. He further submits that the First Appellate Court did not consider grounds 2, 3 & 6 taken by the petitioners-defendants in the memorandum of the appeal, therefore, the judgment of First Appellate Court is not sustainable in the eye of law.

1. I have given my anxious consideration to the contentions of the learned counsel of petitioner and perused the record.

2. It is admitted fact that both the Courts below have given concurrent findings against the petitioners-defendants qua following, facts after re-appraisal of the evidence on record.

(i) The respondent-plaintiff submitted an application in his own name before the petitioners-defendants to obtain telephone connection.

(ii) The demand notice was also issued by the petitioners-defendants in the name of respondent-plaintiff, (iii) The amount mentioned in the demand notice, had been received by the petitioners-defendants from the respondent-plaintiff.

(iv) The agreement was also executed between the petitioners-defendants and the respondent-plaintiff in the year 1996. (v) The petitioners-defendants sent bills qua telephone in-question since 1996 till June, 1999 to the respondent-plaintiff in the name of one Muhammad Riaz at his address i.e. Bismill Colony, Bye-pass Chowk, Gujranwala, but respondent-plaintiff has no concerned whatsoever with the said Muhammad Riaz.

It is pertinent to mention here that the petitioners-defendants did not bring on record the application submitted by the respondent-plaintiff to show that the respondent-plaintiff had mentioned the address; where the petitioners had sent the bills to the respondent. The petitioners-defendants also failed to bring on record even an agreement executed between the petitioners-defendant and the respondent-plaintiff.

1. It is better and appropriate to reproduce the operative part from the statement of examination-in-chief as well as cross-examination of DW-1 Zaheer Ahmad to resolve the controversy between the parties:-

| | | --- | | |

| | | --- | | |

| | | --- | | WJ |

lt is settled principle of law that parties are bound by their pleadings. The Ailpetitioners-defendants did not controvert the stand of the respondent-

plaintiff on material point in the written statement coupled with the facts, even if the petitioners had controverted the contents of plaint in letter and spirit then the petitioners failed to prove the contents of written statement as is evident from the statement of DW-1 Zaheer Ahmad. Both the Courts below have given concurrent findings against the petitioners. The .Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under Section 115 of CPC in "N.S. Vankatagiri Ayyangar and another. Vs. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as follow:

"This is section empowers the High Court to satisfy itself upon the three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."

The judgment of the Privy Council is followed by this Court in "Board of Intermediate & Secondary Education, Lahore Vs. Syed Khalid Mehmood" <XLR 1985 Civil 114).

1. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court. The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. The learned counsel of the petitioner also failed to bring on record any piece of evidence, which was non-read and mis­read by both the Courts below, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below. It is the duty and obligation of the petitioners-defendants being public functionaries to act in' accordance with law as is envisaged by Article 4 of the Constitution. The act of the petitioners-defendants is not in accordance with the law as is evident from the statement of DW-1 Zaheer Ahmad. It is pertinent to mention here that the cases are generally decided against the Government Department/Semi Government Department as public functionaries do not bring on record true facts by producing oral as well as documentary evidence. This is also one of the classical cases, where the petitioners-defendants failed to bring on record any document to dislodge the claim of the respondent-plaintiff.

In view of what has been discussed above, I do not find any infirmity and illegality in the judgment of both the Courts below, therefore, this revision petition has no merit and the same is dismissed.

(A.A), Revision dismissed.

PLJ 2004 Lahore 518

Present muhammad sair ali, J. Mirza NASRULLAH KHAN-Petitioner versus

SUPERINTENDENT, CENTRAL EXCISE AND SALES TAX HAFIZABAD

and 2 others-Respondents

W.P. No. 4361 of 1996, decided on 14.11.2003.

Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1977-

—-R. IS-Constitution of Pakistan (1973), Art. 199-Petitioner engaged in business of producing and dealing in reclaimed lubricating oil, claimed not to fall within definition of "Manufacturer" and thus, not liable to imposition of Excise Duty and Sale Tax-Petitioner had not denied that he was engaged in business of producing oil under licences by reprocessing and reclaiming used mobil oil in his reclamation plant- Reclaimed lubricating oil produced in reclamation plant by processing used mobil oil employing chemicals and acids, is an item distinct from original mobil oil-Reclaimed and re-processed oil so produced is also different and distinct in its properties, propensities uses and value from original or used mobil oil-Such product, therefore, attracts levy and charge of "excise duty" and "sales tax"-That distinct and new product cannot be deemed to be subjected to double or manifold taxation- Petitioner was, thus, not entitled to relief claimed. [P. 522] A

NLR 1992 Tax 100; NLR 1990 Quetta 1; AIR 1963 SC 791; PTCL 1992 CL 38; 1994 SCMR 1872; PLD 1959 SC 103; PLD 1960 SC 4; PLD 1972 Karachi 210 and PTCL 1992 CL Iref.

Malik Saeed Hassan, Advocate for Petitioner.

Mr. Izhar-ul-Haq Sheikh, Advocate for Respondents.

Date of hearing: 17.10.2003.

judgment

The petitioner claims to be engaged in cleaning lubricating oil at a small factory at Ali Pur, Hafizabad, District Gujranwala, holding a central excise licence as well as registration under the Sales Tax Act, 1990. He also states to be registered under Rule (18) of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1977. The petitioner's case is that he purchases used mobil oil from service stations and reclaims the same through a process using chemicals, acids and other cleansing agents. The lubricating oil so reclaimed is sold in the market for various uses other than in vehicles etc.

1. This reprocessed and reclaimed lubricating oil was subjected to excise duty and sales tax by the respondents thus providing a grievance to the petitioner for the present constitutional petition. The stand of the learned counsel for the petitioner is that since the mobil oil was subject to excise duty and sales tax therefore such duty and tax cannot be re-imposed on reclamation of the used mobil oil rejected after vehicular use. And that the chemicals, acids and agents employed to reclaim the rejected mobil oil were also duty - tax paid wherefor levy and imposition of excise duty and sales' tax on the reclaimed oil amounted to manifold taxation on the same item. Learned counsel for the petitioner relying upon the dictionary meaning of the terms 'Manufacture' submitted that reclaiming of mobil oil did not fall within the definition of the term 'Manufacture'.Reliance was also placed upon the cases of "Deputy Collector Central Excise Vs.. Tire PakistanLimited" (NLR 1992 Tax 100), "Noori Trading Corporation Vs. Federation ofPakistan" (NLR 1990 Quetta 01) and "Union of India Vs. Dehli Cloth andGeneral Mills" (AIR 1963 SC 791).

2. In response to notice, report and parawise comments were filed by the respondents. Their learned counsel supported the levy. It was also stated that the reclaimed oil as produced was covered in the definition of 'Manufacture' under Sales Tax Act, 1990 as well as the Central Excises Act, 1944.

3. I have considered the submissions of the learned counsel for the' parties and have also examined the record filed by the parties. Petitioner's grievance is that the reclaimed oil produced by him at his plant/factory from the used/rejected mobil oil through various processes by employing cleansing agents, chemicals and acids, was not a lubricating oil to fall within the Heading No. 2710.0081 and 2710.0082 of the Notification of S.R.O. No. 546(l)/94 dated 9th June, 1994 and Notification of S.R.O.No. 545(l)/94 dated 9th June, 1994. And further that the reclaimed oil as produced by the petitioner does not fall within the definition of 'Manufacture' to attract the provisions of the Central Excises Act, 1944 and the Sales Tax Act, 1990. And also that the duty or tax so levied amounted to triple taxation.

4. It is note worthy that no material has been brought on record by the petitioner to show that the reclaimed oil produced through reprocess of the used mobil oil was different from lubricating 'oil .included in the table of the above referred Notifications against Headings No. 2710.0081 and No. 2710.0082. It was on petitioner's application that his blending an reclamation plant was registered on November 6, 1994 under Rule (18) of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1977. Furthermore petitioner has himself relied upon the licence issued to him on 8.8.1933 by the Assistant Collector, Central Excise and Land Customs, Gujranwala "for the manufacture of and dealing in lubricating oils". The petitioner has not denied that he is engaged in the business of producing oil under above licences by reprocessing and reclaiming the used mobil oil in his reclamation'

plant. Wherefor his contention that he is producing and oil called reclaimed oil and not the lubricating oil cannot he accepted.

1. The next contention of the learned counsel for the petitioner is that the definition of the term 'Manufacture' as contained in the Blacks Law Dictionary and Ayer's Terms and Phrases read with the above referred judgments do not bring petitioner's product within the definition of 'Manufacture' to attract the central excise duty or the sales tax. The Hon'ble ' Supreme Court of Pakistan has been pleased to set at rest any controversy on the subject of 'Manufacture'by pronouncing law in the cases of "Assistant Collector of the Central Excise and Land Customs etc. Vs. Orient Straw Board Papers Mills" (PTCL 1992 CL 38) and "Sethi Straw Board Mills Limited Vs. Pakistan through Secretary to the Government of Pakistan etc." (1994 SCMR 1872). On elaborating and illuminating discussion on the definition of 'Manufacture' with specific reference to Section 2(f) of the Central Excises and Salt Act, 1944, it was held that:

"In general and literal sense 'manufacture'means production, preparation or making any article or product of corporeal or substantial in nature manually or mechanically from material which after such production changes its shape, character or nomenclature or transforms into a good complete for use or sale in the existing form or otherwise. However, the Act enlarges the scope of this word by including in its meaning any process which is incidentally or in an ancillary manner required for making the manufactured product complete and finished article including repairing, remaking, reconditioning, packing and repacking. This expression was considered in Superintendent of Central Excise, Lyallpur V. Ch. Faqir Muhammad PLD 1959 SC 103 in which the question before the Supreme Court was, whether calendaring is process ancillary to the completion of the manufacture product. Taking note of the word 'manufacture' their Lordships disagreed with the view of the High Court and it was observed:

"We are unable to agree with the view of the learned Judges that unless the content of the article is changed it remains the same in spite of it being given a finish. It might have been so if without the finish the goods were not marketable, but uncalendered cloth is also sold in the market. The fact that its price is higher after it is calendered shows that the purchasing public regards calendered cloth as a different article having a positive and specific use in its new state"

In Pakistan and Collector of Central Excise and Land Customs v. Muhammad Aqil, PLD 1960 SC 4 it was held that the processes of dyeing and glazing tanned leather of sheep skins are calculated to produce goods and were held liable to excise duty. It was also

observed that "duty does not fall upon any process, hut upon the goods produced."

In M/s Satar Vacuum Bottle Manufacturing Co. Ltd. v. Collector of Central Excise and Land Customs, Karachi and other PLD 1972 Karachi 210 the petitioner claimed that the flasks were made hy assembling together the excisable items viz. tin, plastic and glass purchased in free made condition. It also turned out that glass flasks are subjected to a process of oxidization by the petitioners which gives a highly polished surface and maintains the temperature. It was held that even assembly would amount to manufacture ..."

Also referring to the case of Civil and Military Press Ltd. (PTCL 1992 CL.l) the Hon'ble Supreme Court of Pakistan noted that:-

"the word manufacture means bringing into existence a vendible product known to the market."

It was also held that":-

"The word 'manufacture' as defined is intended to enlarge its field of operation to such acts, processes, works and repair which may not generally be covered by it literally. By bringing any process incidental or ancillary to the completion of a manufactured product within the meaning of manufacture its scope and concept has been widely extended and by such legal fiction even a process which ordinarily may not amount to manufacture in its literal sense will be covered by it provided use of such process is necessary or subsidiary and ancillary for completing manufactured goods. Such process may be manual or mechanical intended to complete the manufacture goods. It is not necessary that by such process any new article may be produced. The article may remain the same but the processing may make it a finished goods which may be different in quality or utility from the original one." (underlining added)

1. The test was thus laid down by the Hon'ble Supreme Court of Pakistan. In the case of "Sethi Straw Board Mills Limited Vs. Pakistan through the Secretary to the Government of Pakistan and 3 otfzers"(1994 SCMR 1872) the proposition for consideration before the Hon'ble Supreme Court of Pakistan was whether the Glazed Paper Board and the Glazed Chip Board fell within the definition of 'Manufacture' or not to attract the excise duty. The appellant had alleged that the processes carried out in the mill did not fall within the definition of 'Manufacture' as the article was not manufactured in Pakistan in the case of imported paper and paper board and in the case of indigenous paper and paper board processed in the mills. The same having already suffered central excise duty, no further duty was chargeable. The Hon'ble Supreme Court of Pakistan held that the Glazed Paper Board and the Glazed Chip Board fell within the definition of

Manufacture' and were thus excisable. The following passage from the judgment in appeal before the Hon'ble Supreme Court of Pakistan was quoted with approval:-

"The definition of 'manufacture' in Section 2(f) of the Act, reproduced in para 11 above, shows that it includes therein any process incidental or ancillary to the completion of a manufactured product and any process of remanufacture, remarking, reconditioning or repair and the processs of packing or repacking such product. The definition of Paper Board, reproduced in para 10 above, shows'that Corrugated Paper Board, Glazed Paper Board and Glazed Chip Board would be covered by it. The processes applied to bring the above products into being clearly include the process of remaking and reconditioning the original products..."

1. Applying the above test to the present case, there is no doubt that the reclaimed lubricating oil produced in the reclamation plant by processing used mobil oil employing chemicals and acids, is an item distinct from the original mobil oil. The reclaimed and reprocessed oil so produced is also different and distinct in its properties, propensities, uses and value from the original or the used mobil oil. Such product therefore attracts the levy and charge of excise duty and the sales tax. Furthermore this distinct and new product cannot be said to be subjected to double or manifold taxation. This writ petition is therefore dismissed with no order as to costs.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 522

Present: muhammad akhtar shabbir, J.

AFAF RAHIM-Petitioner

versus

NISAR AHMAD and 2 others-Respondents W.P. No. 11256 of 2003, decided on 13.11.2003. (i) Interpretation of Statute--

—Any act or statute promulgated by legislature would be effective immediately from the date of enforcement having no retrospective effect unless provided in law. [P. 524] A

(ii) Pakistan Penal Code, 1860 (XLV of I860)--

—S. 489-F-Constitution of Pakistan (1973), Art. 199-Quashment of F.I.R. registered against petitioner for issuing of cheques which were dishonoured-Cheques mentioned in F.I.R. were issued on 16.2.2001; 25.2.2001, 16.3.2001 and 25.3.2001 respectively-Cheques in question,.

were dishonoured by the Bank with remarks that there was no account of petitioner-When cheques were issued and dishonoured, offence under S. 489 P.P.C. was not provided-Amended Ordinance was issued and enforced much after alleged occurrence, therefore, case against petitioner was not covered within the ambit of Section 489-F P.P.C.-No .other offence has been added in F.I.R.-Offence against petitioner having not been made out, F.I.R. was declared to have been lodged illegally and was of no legal effect and same was quashed.

[P. 524] B-

PLJ 1995 Lah. 429; 1970 Law Notes 757; 1972 PCr.LJ 1182; PLD 1970 SC 514 and 1988 SCMR 715 ref.

Mr. Ahmad Shahzad Farooq, Advocate for Petitioner. Mr. Nadeem Mahmood Mian, Advocate for Complainant. Mr. Muhammad Sohail Dar, A.A.G. for State. Date of hearing: 13.11.2003.

order

The petitioner seeks quashment of FIR No. 110/2003 dated 11.7.2003 registered under Section 489/F PPC with Police Stati~^ Mochi Gate Lahore on the complaint of one Nisar Ahmad Respondent No. I (herein) alleging therein that he (Respondent No. 1) has to receive Rs. 9,00,000/- from the petitioner. The petitioner had issued him four cheques of MCB Shah Alam Branch Lahore, the detail of which is mentioned in Paragraph No. 4 of the writ petition and deliver the same to him. Thereafter, when Respondent No. 1 presented the same in the Bank, they were dishonoured because of no cash in the account of the petitioner.

1. Learned counsel for the petitioner argued that the cheques mentioned in the FIR were issued 'and dishonoured much before the enforcement of amended Ordinance in PPC dated 25.0.2002 and from the contents of the FIR the offence under Section 489-F PPC is not constituted.

2. On the other hand, learned counsel appearing on behalf of complainant as well as state when confronted with this legal aspect of the case could not respond. They argued that offence of cheating by the petitioner has been committed and the case is covered under Sections 420, 468, 471 PPC. They relied upon cases of Ch. Pervaiz Elahi vs. Federation of Pakistan etc. (PLJ 1995 Lahore 429 (DB), Mirza Ishtiaq Hussain vs. SyedAbdul Qadir (1970 Law Notes 757) and Abdul Karim Butt vs. Abdul Qayyum(1972 Pak. Crl.L.J. 1182).

3. I have heard both sides and perused the record.

4. The amended Section 489-F PPC read as under for ready reference:-

"Dishonestly issuing a cheque:- Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque." (This'amendment had been inserted in PPG by Ordinance LXXXV of 2002 dated 25.10.2002).

It is settled proposition of law that any act or statute promulgated by the legislature shall be effective immediately from the date of enforcement and it has no retrospective effect unless provided in the law. In this context reference can be made to the cases of Province of East Pakistan vs. Sharafatullah (PLD 1970 SC 514), and The Chief Land Commissioner Sind vs. Ghulam Haider Shah (1988 SCMR 715).

1. The cheques mentioned in the FIR were issued on 16.2.2001, 25.2.2001, 16.3.2001 and 25.3.2001 respectively and these were presented in the Bank for encashment but returned with the remarks that there was no amount in the account of the petitioner and thus were dishonoured on 4.5,2001 and 16.5.2001. At the time of issuing of cheques and declaring them dishonoured the offence U/S. 489-F PPC was not provided in PPG. The amended Ordinance, whereby, the said offence has been added in the law. was issued and enforced much after the alleged occurrence, hence, the case is

not covered within the ambit of provision of Section 489-F PPC. No other offence has been added in the FIR.

1. For the foregoing reasons, I am convinced that said offence against the petitioner is not made out, so, this writ petition is accepted and the said FIR is declared to have been lodged illegally and of no legal effect, hence, quashed.

(A.A.) F.I.R. quashed.

PLJ 2004 Lahore 524

Present: M. AKHTAR SHABBIR, J. MUHAMMAD AKRAM-Petitioner

versus Mst. SHEEDAN BIBI and another-Respondents

W.P. No. 10638 of 2003, heard on 12.11.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—-S. 115-Constitution of Pakistan (1973), Art. 199-Writ petition against revisional order-Maintainability-Revisional order cannot be challenged through writ petition if such order was not covered within dictum laid' down in cases reported as PLD 1999 Karachi 257 and 1991 SCMR 970.

[P. 527] C

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

.—S. 39-Court Fee Act (VII of 1887), S. 7(iv)(c)-CancelIation of document-­ Requisite Court fee leviable on plaint seeking cancellation of mutation- Plaintiff in suit for cancellation of document under S. 39 of Specific Relief Act, 1877, must allege that if instrument challenged was left outstanding, same would cause him injury-Suit for cancellation of instrument would be through declaration for cancellation of instrument declaring the same to be void or voidable-Suit for declaration for setting aside gift mutation having been filed, such mutation is not covered within definition of instrument or document and such like suit would be covered within provision of S. 7 IV (C) of Court Fee Act, which provides to obtain declaratory decree or order where consequential relief is prayed-In such suit plaintiff has to assess value of suit. [P. 526 & 527] A & B

1982 CLC 9; NLR 1984 Civil 59; 2002 CLC 1549; 1993 CLC 1391; KLR 1994 Civ. case 230; PLD 1991 AJK 66; PLD 1991 AJK 50; 1984 PSC 567;.PLD 1999 Karachi 257 and 1991 SCMR 970 ref.

Mr. Muhammad Yaqoob Chaudhry, Advocate for Petitioner. Ustad Muhammad Iqbal, Advocate for Respondents. Date of hearing: 12.11.2003.

judgment

This writ petition arises out of the facts of a suit for declaration with consequential relief filed by the plaintiff/Respondent No. 1 herein with regard to the land measuring 23 Kanals 5 Marias of land bearing Khata No. 308, Khatooni No. 551 to 554 situated in Sarhali Kalan, Tehsil and District Kasur, challenging the entries of mutation of Gift No. 1463 claiming to be the owners in possession over the suit land. During proceedings of the suit, defendants filed an application under Order 7, Rule 11 CPC contending that the petitioner has challenged the gift of the suit property through mutation of Gift No. 1463 dated 31.12.1996. It was asserted in the application that the plaintiff has also sought suit for possession of the suit property and it is a suit for cancellation of a document and the Court fee is payable under Section 7(iv) (C) of the Court fee Act. The defendants alleged in the application that value of the suit property has been mentioned as Rs. 80,000/- in the disputed mutation therefore a Court fee of Rs. 6.000/- is liable to be affixed on the plaint. The learned trial Court after hearing the arguments of learned counsel for the parties directed the plaintiff to affix Court fee amounting to Rs. 6,000/-.

1. Feeling aggrieved Mst.Sheedan plaintiff/respondent herein preferred a revision petition which came up for hearing before the District Judge, Kasur who vide, his judgment dated 16.6.2003 accepted the revision petition and set aside the order of the trial Court observing that the plaintiff filed a suit for declaration with consequential relief of possession and she has affixed the value of the suit U/S. 7(iv) (c) of the Court Fee, Act and it was the discretion of the plaintiff to determine value of the suit.

2. The learned counsel for the petitioner has contended that the plaintiff/respondent has filed the suit for cancellation of an instrument/ mutation in which the value of the property is mentioned as Rs. 80,000/-' therefore, the plaint is liable to be affixed the advalorem Court fee of Rs. 6,000/- He placed reliance on the cases Rasheed Ahmad vs. Hag Nawaz and others (1982 CLC 9), Mst, Bhagan through legal heirs. Vs. Mubarik Begumetc(NLR 1984 Civil 59), Mst. Perveen Akhtar vs. Azhar All and 2 others(2002 CLC 1549), Muhammad Riaz Aslam vs. Muhammad Akhtar and 2others(1993 CLC 1391) and Abdul Hamid alias MD Abdul Hamid vs. Dr.Sadeque Ali Ahmed and others).

3. On the other hand, learned counsel for the respondents, has vehemently opposed the arguments of learned counsel for the petitioner contending that a suit for declaration challenging the mutation is chargeable under Section 7 (iv) (c), (4 A) of the Court Fee Act, 1887 and it was not a suit for cancellation of the document and the Court fee is not liable on the total value of the property. He placed reliance upon the cases of Ghulam Farid vs.Mst. Pathani and 2 others (KLR 1994 Civil Cases 230-Lahore), Mst: NasimAkhtar vs. Muhammad Sabeel and another (PLD 1991 .Azad Jammu & Kashmir 66) and Pervez, Akhter and 2 others vs. Raj Muhammad (PLD 1991 Azad Jammu & Kashmir 50). Learned counsel further argued that the petitioner is not an aggrieved person, therefore a writ is not maintainable and objected that the Court fee is to secure the revenue-for the benefit of the State and not to a litigant. Reliance has been placed on Siddique Khan andothers, vs. Abdul Shakur Khan and another (1984 PSC 567).

4. I have heard the arguments of learned counsel for the parties and perused the record.

5. A suit for cancellation of instrument can be filed under Section 39 of the Specific Relief Act which provides as under-

"A person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, in its discretion, so adjudge it to be delivered up and cancelled."

In a suit for cancellation of a document under S. 39 of the Specific Relief Act, the plaintiff must allege that if the 'instrument' challenged is left outstanding it will cause him injury.

1. From the plain reading of the provisions of Section 39 of the Specific Relief Act, it reveals that under the said Section, the suit for cancellation of instrument would lie through a declaration for cancellation of the instrument declaring it to be void or voidable. The word 'instrument' has been defined in Chamber's English Dictionary 'a writing containing a contract a formal record. According to Black's Law Dictionary, the word 'instrument' would mean 'a formal or legal document in writing such as a contract deed, will, bond, or lease. A writing that satisfies the requisites of the negotiability. It has been further defined that anything reduced to writing a document or a formal or solemn character, a writing given as a means of affording evidence. A document of writing which gives formal expression to a legal act or agreement, for the purpose of cisating securing modifying or terminating a right.'

2. From the contents of the plaint in hand it is evident that suit for declaration for setting aside a gift mutation has been filed and according to

the Chamber's Dictionary and Black's law dictionary, the mutation is not

covered within the definition of instrument or document and such like suit

will be covered within the provision of Section 7(iv)(c) of the Court Fee Act,- which provides to obtain a declaratory decree or order where the consequential relief is prayed and the Court fee shall be calculated according to the amount at which the plaint or memorandum was filed. The plaintiff shall state the amount and such as in suit in hand the plaintiff shall state the amount on which he seeks relief. It means that it is the plaintiff, who has to assess the value of the suit as laid down in the case of Ghulam Farid vs. Mst. Pathani and 2 others (KLR 1994 Civil Cases 230) in which it has been observed that as suit being for declaration of rights and relief flowing therefrom. It was not a suit for cancellation of a document and it fell under

Section 7(iv) (c) of the Cdurt Fee Act. The same principle was followed in the case of Pervez Akhtar vs. Raj Muhammad and Naseem Akhtar vs. Muhammad Sabeel and another (supra). In these cases it has been observed

that in the suit for declaration with consequential relief of possession, the

trial Court's verdict that such suit was covered by provisions of S.7 (iv) (c) Court Fee Act, was correct and called for no interference in re'visional jurisdiction.

1. The case law laid down by learned counsel for the petitioner pertains to the registered documents, registered sale-deeds and gift-deeds

which are not attracted to the facts of the present case and the petitioner is not entitled to the benefit of the same.

1. Furthermore, the revisional order cannot be challenged through a writ petition if it is not covered within the dictum laid down by the superior- Courts in the cases of Rana Mamoon Rasheed vs. Kokab Noorani Okarvi(PLD 1999 Karachi 257) and Muhammad Khan vs. Mst. Ghulam Fatima(1991 SCMR 970).

2. For the foregoing reasons, the impugned order passed by the

revisional Court dated 16.6.2003 is unexceptional, call for no interference, hence this writ petition being devoid of force is dismissed.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 528

[Rawalpindi Bench Rawalpindi]

Present: abdul shakoor paracha, J.

Ch. GULZAR KHAN and 3 others-,-Petitioners

versus SAGHIR AHMED and 7 others-Respondents

W.P. No. 617 of 1998, heard on 28.10.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—-S. 9-Status of Executing Court-Executing Court is not a Court of civil jurisdiction. [P. 532] A

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

—-0. XXVI, Rr. 9 & 10; 0. XXI, R. 32-Appointment of Local Commissioner in Executing Proceedings-Legality-Executing Court had no jurisdiction to appoint Local Commissioner on application of respondent in execution proceedings under O.XXI, R. 32 C.P.C.-There being neither a decree for specific performance nor for mandatory injunction in favour of petitioner, provision of O.XXI, R. 32 C.P.C. was not applicable, therefore, appointment of Local Commission was without jurisdiction, [P. 533 & 534] B'

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

—O. XXI, R. 32 & O.XXVI, Rr. 9 & 10-Constitution of Pakistan (1973), Art. 199-Appointment of Local Commissioner in Execution Proceedings under O.XXI, R. 32 C.P.C.-Such order being without jurisdiction and coram non-judice can be set aside by High Court in exercise of writ jurisdiction even though order in question was maintained in revision.

[P. 534] C

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

—O.XXI, R. 32 & O.XXVI, Rr. 9 & 10-Constitution of Pakistan (1973), Art. 199 Order of appointment of Local Commission in executing proceedings being without jurisdiction and cora.m-non-ju.dicewas declared to be without lawful authority and of ho legal effect-Court, however, has jurisdiction under O.XXI, R. 32 C.P.C. to initiate contempt proceedings and restore possession if a person in violation of his commitment before Court had unlawfully taken possession of property, he had committed not to do so before Court. [P. 534] D

PLD 1985 SC 131; PLD 1982 Lahore 159; 1991 SCMR 970; PLD 1991 SC 65;

(1895) 17 All 106; AIR 1939 Madras 578; PLD 1964 Dacca 661; PLD 1964

Dacca 202; 1990 CLC 1514; PLD 1982 Lahore 459; 1978 Law Notes 156;

PLD 1985 SC 131; PLD 1973 SC 507; 1991 SCMR 970; PLD 1991 SC 65;'

PLD 1985 SC 131 and PLD 1982 Lahore 459 ref.

Mr. Ibadur Rehman Lodhi, Advocate for Petitioners. Malik QamarAfzal, Advocate for Respondents. Date of hearing : 28.10.2003.

judgment

House/Khola measuring 15 Marias,bearing Khasra No. 200 owned by Petitioner No. 1 Ch. Gulzar Khan, was in possession of the respondents' father Subedar Muhammad Alam. The petitioner obtained a decree for possession of the above said Khola/house against Subedar Muhammad Alam, who died during the pendency of the suit. The said decree dated 16.1.1986 of the learned Civil Judge in favour of the petitioner remained in tact up to the Apex Court in civil petition for leave to appeal filed against the order passed in Revision Petition No. 100 of 1993. The review petition filed by the respondent was also dismissed by the Hon'ble Supreme Court on 19.6.1994. Thereafter the petitioner obtained possession through execution.

1. Second round of litigation was started by the respondents by filing a suit of permanent injunction against the petitioner in the Court of Civil Judge, Rawalpindi in Februaiy, 1997. It was stated in the plaint that the plaintiff-respondents are owner in possession of the plot measuring 7 Marias, bearing Khasra No. 199 (new) No. 389 (old) situated in revenue estate of Tulsa Hardo, Tehsil Rawalpindi, and the suit plot measures East: 55, West:60-l/2 North: 49% South: 38^ and its boundaries were also mentioned. The petitioner entered appearance in the Civil Court in the latter suit and filed a written statement. A local commission was appointed for spot inspection, who reported that the petitioner was in possession of his own area which he had acquired in the execution of the decree. Further objections that the suit is absolutely false, frivolous and was aimed to reopen a decided case to nullify the effect of earlier adjudication of rights of the parties up to the level of the Supreme Court of Pakistan. During the pendency of the said suit, the learned Civil Judge recorded the statement of the petitioner on 15.3.1997 as under:

In pursuance of the aforesaid statement of the petitioner, the learned Civil Judge disposed of the suit in the following way:-

1. Thereafter the respondents filed an application under Order ~XX1,Rule 32 CPC alle'ging therein that the petitioners are raising construction on the land bearing Khasra No. '199, and thereafter the respondents filed an application for appointment of a local commission for demarcation. The learned Civil Judge vide the impugned order dated 22.1.1998 appointed Naib Tehsildar (Halqa) as local commission for conducting demarcation. In the intervening period, an application for grant of temporary injunction remained pending and finally through an order passed in Writ Petition No. 2888 of 1997 a direction was issued to the trial Court to decide the application under Order XXI, Rule 32 CPC within three months from 14.1.1998 by holding day-to-day proceedings. It was further directed that the trial Court will also determine the question regarding maintainability of the petition.

2. The order of appointment of the local commission dated 22.1.1998 was challenged by the petitioner by way of filing a revision petition before the District Judge, Rawalpindi, and the learned Additional District Judge vide order dated 18.3.1998 dismissed the revision petition. The order of appointment of the local commission dated 22.1.1998- and of the learned Additional District Judge dated 18.3.1998 is the subject matter of the instant writ petition. It is important to note here that during the pendency of the revision petition, the local commission also visited the site, which is, of course, subject to legal objections raised by the petitioner.

3. The controversy between the parties is regarding the powers of the executing Court to appoint local commission vide its order dated 22.1.1998.

The learned counsel for the petitioner on the strength of Order XXVI, Rule 9 CPC contends that the Civil Court had no jurisdiction to, appoint Naib Tehsildar as local commission in the execution petition under Order XXI, Rule 32 CPC filed by the respondent. Further contends that the latter suit was filed by the respondent after adjudication of rights of the parties by the Courts up to the Supreme Court of Pakistan. The second suit as well as the application under Order XXI, Rule 32 CPC was filed with an ulterior motive to set at naught the valid decree passed in favour of the petitioner, which was maintained by the Apex Court.

1. On the other hand, it is contended by the learned counsel for the respondents that £he order dated 22.1.1998 of appointment of the local commission has become final because the order does not fall within the expression Case Decided' appearing in Section 115 CPC and in this view of the matter the revision petition before the learned Additional District judge was not competent. Adds that the order of appointment of the local commission as well as of the learned Additional District Judge dismissing the revision petition of the petitioner was within jurisdiction of the Court and orders cannot be termed as orders without ju'risdiction therefore the petition under Article 199 of the Constitution of the Country is not maintainable. Reliance is placed on the case reported as NoorMuhammadvs. Sarwar Khan and 2 others (PLD 1985 SC 131). Further contends that the Civil Court had the powers to appoint the local commission under Order XXI Rule 32(5) CPC. Further states that the trial Court disposed of the suit of the plaintiff-respondent for permanent injunction on the statement of the defendants that they had nothing to do with the ownership of the land in question and had no intention to interfere with the plaintiffs possession therefore the undertaking given by the petitioners-defendants having been acted upon by the trial Court, the same for all practical purposes is just like a decree for permanent injunction issued by a Court and for non-observance of the undertaking the proceedings under Order 21, Rule 32 CPC could have been initiated and the plaintiff in such a circumstance was not required in further to file a fresh suit to safeguard this rights because the undertaking given before the Court in such regard is tantamount to stay order as held in the case reported as Muhammad Ashiq alias Ashiq All us. Razia Begum andothers(PLD 1982 Lahore 459).

2. In rebuttal the learned counsel for the petitioner on the strength of the case reported as Muhammad Khan and 6 others vs. Mst. GhulamFatima etc. (1991 SCMR 970) and Hassan Din us. Hafiz Abdus Salam andothers(PLD 1991 SC 65) contends that there is no absolute rule that if an illegality is committed or the order of the.Court below is without jurisdiction or coram nonjudice this Court cannot interfer in it. He further states that no mandatory injunction or. direction was issued through the order dated 22.1.1998 which was passed on the statement of the petitioner therefore the provisions of Order XXI, Rule 32(5) CPC are not attracted.

3. On examination of the record, it reveals. that the decree for possession dated 16.1.1996 obtained by the petitioner was maintained up to Supreme Court of Pakistan. The petitioner obtained the possession through the execution of the decree. In the second round of litigation on the statement of the petitioner and his learned counsel the suit for permanent injunction filed by the respondent was disposed of on 15.3.1997. Thereafter petition under Order XXI, Rule 32 CPC was filed by the respondent and through the order of the Court dated 22.1.1998 Naib Tehsildar (Halqa) was appointed as local commission.

4. Before I proceed to decide the question of maintainability of this petition, I would dilute upon the controversy regarding powers of the trial Court to appoint Naib Tehsildar (Halqa) as local commission as the petitioner contends that this order was passed without jurisdiction as the provisions of the above Order apply only to the suit and do not apply to the proceedings in execution. It is not disputed that the application under Order XXI, Rule 32 CPC is a proceeding in execution. Relevant provision of Order XXVI, Rule 9 CPC reads as under:-

5. Commission to make local investigations.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or elucidating any matter in dispute, or of ascertaining the market value of any property or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such persons as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the Provincial Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

In case reported as AyanamudiVenkayya vs. Lanka Rattayya{A.I.R 1939 Madras 578) while interpreting the Order XXVI, Rule 4 CPC it has been held that the provisions of Order XXVI, Rule 4 are not applicable to execution proceedings and have not been made so by Section 141. This rule, in its language empowers a Court to issue a commission in any suit. The learned counsel for the respondent contends that by Section 141 CPC the provisions of the above rule are made applicable to proceedings in execution: Section 141 CPC reads as follows:--

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.

1. There is no cavil with the proposition that the executing Court is not a Court of civil jurisdiction. In case reported as Thakur Prasad v.Fakirulla(1895) 17 All 106, their Lordship of the Privy Council at page 111 said that:

the whole Chapter 19 of the Code consisting of 121 Sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended tp apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Sec. 647 include original matters in the nature of suits as proceedings in probates, guardianships, and so forth, and do not include executions.

The above stated case was decided under the provisions of old Indian Code of Civil Procedure in which Chapter 19 corresponds to Order 21 and Section 647 to the present Section 141. The wording of Section 647 is, although slightly different to the same effect, and it is as follows:-

The procedure herein prescribed shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction other than suits and appeals.

1. In case of BurhanuddinAhmad and others vs. Veda Brata Chakraborti and others (PLD 1964 Dacca 661) while interpreting the provisions of Order XXI, Rule 32 (5) CPC it was observed that-

"clause (5) of Rule 32, Order XXI, CPC, makes the specific provision when by the decree of the Court it is required that an act is to be done and in case of failure of performing the act required to be done by the judgment-debtor but the same may be done so far as practicable by the decree-holder or some other persons appointed by the Court. So apparently clause (5) has no bearing to or connection with the case of a prohibitory injunction order."

The learned counsel for the respondent has relied on the case reported as Birgis Jahan Bajiga Malik vs. Muhammad Hasan and others (PLD 1964 Dacca 202) and Muhammad Ameer Qasmi vs. Ch. Muhammad Azhar ( 1990 CLC 1514-Lahore). In the former referred case, while interpreting the provisions of Order XXI Rule 32 CPC, it was ruled that, "if relief for possession not prayed for and consequently decree passed in suit also silent as to delivery of possession. Notwithstanding such commission executing Court not debarred from granting relief of possession". :

1. In the above referred two cases, it was the decree ofspecific performance which was executable under Order XXI Rule 32 CPC, and as a natural corollary Order XXI Rule 32(5) CPC was also made applicable, which is not the position in the case in hand, because for intents and purposes the statement of the petitioner and his learned counsel in the latter suit could only tantamount to stay order as held in Muhammad Ashiq's case (PLD 1982 Lahore 459). In the case, of Muhammad Hussain etc. vs. Muhammad Aslam(1978 Law Notes- Supreme Court Judgments- 156) the provisions of Order XXI Rule 32 clauses (1), (2),(3) and (5) came up for interpretation and it was- ruled that the decree-holder on the breach of the prohibitory order under the rule is not entitled to any specific relief; yet it does not mean that the judgment-debtor can escape penalties and consequences of breach of decree for injunctions. Clauses (1) to (3) apply to both classes of injunction but clause (5) has no application in the case of simple prohibitory injunction.

2. On the touchstone of the provisions of Order 26 Rule 9 CPC read with Rule 10 CPC, I am constrained to hold that the learned Civil Judge had no jurisdiction to appoint the Naib Tehsildar as local commission on the application of the respondent in the execution proceeding under OrderXXI

Rule 32 CPC. Similarly, Order XXI Rule 32 (5) CPC also is not applicable, because neither there is a decree for specific performance nor for mandatory injunction in favour of the petitioner. This being the position, the order of the learned Civil Judge dated 22.1.1998 appointing the Naib Tehsildar as local commission was without jurisdiction and therefore was without any lawful authority, and the same is set aside.

.15. This brings me to decide the objection raised by the learned counsel for the respondent that the writ petition against the revisional order is not competent as held in the case ofNoor Muhammad (PLD 1985 SC 131). I have already observed that the order of the Civil Judge for appointment of the Naib Tehsildar as local commission was beyond his jurisdiction and since through the impugned order the learned Civil Judge after judicially considering the case of the parties and stated facts has given a decision, this decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court. The phrase 'case decided' appearing in Section 115 CPC came up for interpretation before the Honourable Supreme Court in the case reported as BashriAhmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 SC 507), in which case the application for amendment of plaint and impleading new defendants was dismissed by the trial Court and it was held that though the whole suit was not disposed of yet the Court had given decision in respect of any state of facts after judicially considering the same therefore the same falls under the expression "case decided" and the revision petition was held to be competent. In the case reported as Muhammad Khanfand 6 others vs. Mst. Ghulam Fatima and 12 others (1991 SCMR 970) and Hassan Din vs. Hafiz. Abdus Salam and others (PLD 1991 SC 65) where their Lordships have taken note of the earlier judgement in the case ofNoorMuhammad (PLD 1985 SC 131) and observed that where the orders of the Courts below are without jurisdiction and coramnon judice the same can always be interfered with by the High in exercise of its Constitutional jurisdiction under Section 199 of the Constitution of Islamic Republic of Pakistan 1973. Before parting with this judgment. I may observe that the statement of the petitioner-defendant in the later suit is tantamount to stay order as held in the case of Muhammad Ashiq alias Ashiq Ali (PLD 1982 Lahore 459) the violation of which is cognizable under Order XXI Rule 32 CPC. Though the order of appointment of the local commission dated 22.1.1998 in exercise of provisions of Order XXVI, Rules 9 and 10 CPC and Order XXI Rule 32 (5) CPC has been declared to be without lawful authority, yet the trial Court has jurisdiction to pass any order for committing the contemner in prison by exercising jurisdiction under Order XXI, Rule 32 (1) and (2) CPC and restoring possession if it is proved that the said order has been violated.

With the above observations, this petition is disposed of. (A.A.) Order accordingly.

PLJ 2004 Lahore 535

[Rawalpindi Bench Rawalpindi]

Present: TANVIR BASHIR ANSARI, J. SAEEDA ALIA--Petitioner

versus Syed GHULAM MURSALIN NAQVI and another-Respondents

W.P. No. 1020 of 2003, decided on 29.10.2003. Family Courts Act, 1964 (XXXV of 1964)--

—-S. 14--Constitien of Pakistan (1973), Art. 199-Suit for maintenance of minors to extent of Rs. 1000/- per child was decreed as also for wife's maintenance to the extent of Rs. 1000/- for period of iddat-Ju&gmentand decree of Family Court assailed in writ jurisdiction-Competency-- Right of appeal was available to petitioners before Appellate forum under Family Courts Act 1964-Writ Petition being not competent was dismissed-Petitioners would have option to approach Appellate forum for redress of their grievance-Appellate Court if approached would consider question of limitation favourably in view of fact that petitioners acted bonafide in filing writ petitions in face of view expressed in judgments cited by petitioner before High Court with which Court disagreed on the basis of Division Bench Judgment of Peshawar High Court reported as 1999 MLD 2723. [P. 537] A

2002 MLD 1520; 2002 CLC 270; 2002 CLC 1740; 1999 MLD 2723; 2002 MLD 784 and 1999 MLD 3437 ref. .

Malik Shahzad Ahmad Khan, Advocate for Petitioner.

Mr. Muhammad Sher Bahadur, Advocate for Respondent No. 1.

Date of hearing: 29.10.2003.

order

This single order shall also decide W.P. No. 1020/03 as both these writ petitions arise out of single consolidated judgment.

1. The facts are that the petitioners filed Family Suit No. 351 dated 12.7.2002 for recovery of maintenance in respect of Petitioners Nos. 2 and 3 as well as far maintenance for Iddat period in respect of the Petitioner No. 1 The petitioner filed another Family Suit No. 376 dated 23.7.2002. for recovery of dowry articles. Petitioner No. 1 had claimed dowry articles of the value of Rs. 701,900/- in her suit. Both the suits were contested by the respondent. The learned Judge Family Court Attock consolidated both the suits and framed the following issues:-

ISSUES

1. Whether the plaintiffs are entitled to recovery of past or future maintenance if so to what extent and at what rate?.

2. Whether the plaintiff No. 1 is entitled to recovery of dowry articles as per list attached with the plaint or price thereof in alternative? OPD

3. Relief.

4. After recording evidence of the parties the learned Judge Family Court decreed the suit for maintenance in the sum of Rs. 1000/- per month per child (Petitioners Nos. 2 and 3) and also directed that Petitioner No, 1 shall he paid maintenance at the rate of Rs. 1000/- to the extent of period of Iddat. Upon issue regarding the recovery and value of dowry articles, the learned Judge Family Court found that Petitioner No. T-$a.s entitled to the articles the value of which was placed at Rs. 10000/- by the Court. Videconsolidated judgment dated 21.1.2003, the learned Judge Family Court passed the decrees in question in the terms herein before stated. Feeling aggrieved of the said judgment and decree and also being of the view that no appeal lay against the said judgment and decree under Section 14(2)(b & c) as amended, the petitioners have preferred the instant writ petitions.

5. At the very outset the learned counsel for the Respondent No. 1 has taken the objection that writ petition(s) were not competent as the judgment and decree of the Judge Family Court both in respect of the grant of maintenance as well as dowry was appealable before learned appellate Court under Section 14 of Family Courts Act 1964.

6. The learned counsel for the petitioner has placed reliance upon the case of Mussarat Khateen VS. Zafar Ali 2002 MLD 1526, Muhammad Shareef. VS. Judge Family Court 2002 CLC 270 and M. Javed Iqbal. VS.Tahira Naveed 2002 CLC 1748 to contend that as the maintenance granted per head to the petitioners was Rs. 1000/- only, the appeal before the District Court was not competent under Section 14(2) (c). It is further submitted that as the decree in respect of the dowry articles was passed only in the sum of Rs. 10,000/- as against the prescribed amount of Rs. 30,000/- in Section 14(2)(B), appeal against the decree for dowery was also not competent. According to the learned counsel, the only remedy available was in exercise of writ jurisdiction. .

On the other hand, the learned counsel for Respondent No. 1 has placed reliance upon a Division Bench judgment of Peshawar High Court, cited as Khawaja Muhammad. VS. District Judge Mansehra 1999 MLD 2723 and Mst. Neelam Nosheen. VS. Raja Muhammad Khakan 2002 MLD 784 to contend that infact all the petitioners were granted a decree which exceeded Rs. 1000/- in aggregate and that the appeal in case of maintenance was not barred in the present case. Regarding the suit for recovery of dowery it was contended that the petitioner has claimed a sum of Rs. 7,00,000/- in dowry and that the restriction placed upon the right of appeal under Section 14(2)(b) did not apply to the petitioner. Further reliance was placed on NoorMuhammad vs. Muhammad Farooq 1999 MLD 3437 to contend that a constitution petition was not competent when the appeal under Section 14 of the West Pakistan Family Courts Act 1964 was not availed.

1. Arguments have been heard and record perused.

2. Although there is a divergence of opinion in cases cited by the parties, all the cases referred to by the learned counsel for the petitioner have been rendered by the Hon'ble Judges of this Court sitting singly. The case ofKhawaj Muhammad 1999 MLD 2723 on the other hand is a judgment which has been rendered by a Division Bench of Peshawar High Court. In that case maintenance was decreed at the rate of Rs. 500/- per month for each minor. As there were three minor children in all in that case, the joint decree and the amount exceeded the prescribed amount as prescribed in Section 14 of the West Pakistan Family Courts Act 1964 and it was held that in an appeal would certainly lie before the learned District Judge. It was further held that the decretal amount would be construed for each month and not for each head. The reasoning adopted by the learned Division Bench advanced the cause of the minors as the contrary view would amount to depriving them of a right of appeal.

3. It may further be observed that the petitioners before this Court are the plaintiffs who had filed the suit for maintenance and dowry respectively and which were not decreed in accedence with their claim. The grievance is that of the partly successful plaintiffs and the bar of Section 14(2)(b)(c) of the West Pakistan Family Courts Act 1964 shall not apply to them. The abridgement of the right of appeal as contained in the aforesaid provision of law, as per the object and spirit of the said legislation would apply to the judgment debtor and not to decree-holder as the legislature has thought it fit not to provide an appeal against a decree for a relatively small amount both in case of claim for maintenance as well as that of the claim for dower or dowry.

4. For the above reasons, following the dictum laid down in the case of Khawqj Muhammad Supra, it is held that right of appeal in both cases was available to the petitioners before appropriate appellate forum under Family Courts Act 1964. The writ petitions in this view of the matter are not competent and are hereby dismissed.

5. The petitioners may, however approach the appropriate appellate forum under West Pakistan Family Courts Act 1964 for redress of their grievance. The learned appellate Court if approached shall consider the question of limitation favourably in view of the fact that the petitioners acted bonafide in filing these writ petitions in face of view expressed in the judgments cited by the petitioners before this Court with which, most humbly I find myself unable to agree on the basis of the Division Bench Judgment of Peshawar High Court. Parties to bear their own costs.

(A.A.) Order accordingly.

PLJ 2004 Lahore 538 (DB)

Present: mian hamid farooq and muhammad sayeed akhtar, JJ.

UNITED BANK LIMITED BANK SQUARE BRANCH, LAHORE-Appellant

versus FATEH HAYAT KHAN TIWANA and 7 others-Respondents

F.A.O. No. 189 of 1994, decided on 5.11.2003. (i) Limitation Act, 1908 (IX of 1908)--

—S. 5-Extension of period of limitation-Court could not enlarge or extend period of limitation which is statutorily fixed. [P. 541] A

(ii) Limitation Act, 1908 (IX of 1908)--

—-Art. 181-Civil Procedure Code (V of 1908), S. 48-Provisions of Art. 181 of Limitation Act, 1908 and S. 48 of C.P.C. would show that inner limitation for filing execution application in three years in terms of Art. 181 of Limitation Act 1908, while outer limitation for filing execution application is six years as provided by S. 48 of C.P.C.-First execution application thus, to be filed within three years while the same filed beyond period of three years would be barred by time-Where first application was filed within three years then any number of subsequent

. applications can be filed within a period of six years from the date of decree per force of S. 48 of C.P.C.-While filing first execution application, decree holder cannot avail benefit of extended period of S. 48 C.P.C.

[P. 543] B

(iii) Limitation Act, 1908 (IX of 1908)-

—- Art. 181-Civil Procedure Code (V of 1908), S. 48-First execution application was filed on 27.6.1983, which was within time from date of decree-Such application was withdrawn by appellant on 7.2.1989 on the ground that fresh subsequent execution application was filed on 16.1.1989 and thus, first execution application stood disposed of~ Although first execution application which was .disposed of was within time, yet subsequent and fresh execution application which was filed after expiry of eight years of passing of decree was barred by time in terms of S. 48 of C.P.C.-Fresh application was not in continuation of original execution application-Order of dismissal of fresh execution application by Court below on ground of being time barred does not warrant interference. [P{ 544] C

1996 SCMR 759 and PLD 1990 SC 778 ref.

Mr. M. Saleem Sehgal, Advocate for Appellant. Ex-parte for Respondents Date of hearing : 6.10.2003.

judgment

Mian Hamid Farooq, J.--United Bank Limited, the appellant/decree holder, through the filing of the present appeal has called in question order dated 14.7.1994, whereby the then learned Judge Banking Court dismissed appellant's execution application heing barred by limitation.-

1. The appellant on 1.9.1976, filed a suit for the recovery of Rs. 42,05,177.55/-, before the Civil Courts, against the respondents, who filed the written statement and consequently issues were framed. With the promulgation of Banking Companies (Recovery of Loans) Ordinance 1979 (hereinafter referred to as Ordinance), the suit was transferred to newly constituted Banking Courts, established under the provisions of the Ordinance by operation of law. Despite proclamation in the newspaper, the respondents failed to enter appearance before the transferee Court, therefore, the learned Special Judge Banking Court passed an ex partedecree of the aforenoted amount, against the respondents, vide judgment and decree dated 20.1.1981. Pursuant to the above, the appellant, on 27.6.1983, filed first execution application (Ex. A. No. 7-B/83) before this Court, for the execution of judgment and decree dated 20.1.1981. During the execution proceedings, the appellant filed an application, under Order XXI Rule 13 CPC (C.M. No. 5953-C/83), praying for the attachment and sale -of certain properties, however, the said application was withdrawn by the learned counsel for the appellant on 23.11.1983. It appears from the record that during the pendency of the said execution application, the appellant, on 16.1.1989, filed another execution application, which was separately numbered as Ex. A. No. l-B/89. When the earlier instituted execution application (Ex. A. No. 7-B/83) was listed for hearing on 7.2.1989, the same was consigned to record on the statement of the learned counsel for the decree holder on the ground that a fresh execution application has been filed. In the latter execution application (Ex. A. No. l-B/89), it was mentioned that previous application for execution of the same decree was moved and numbered as 7-B/89. Record shows that in the earlier instituted execution application (Ex. A. No. 7-B/83) on proceedings were undertaken during the period ranging from 23.11.1983 to 7.2.1989. During the execution process, property situated at Sargodha was auctioned and the report was submitted by the Court Auctioneers. Appellant's application (C.M. No. 116/B/92), for the amendment of the execution application, so as to implead Mst. Shahzadi, daughter of late Khizer Hayat Khan Tiwana, as one of the judgment debtors, was allowed by this Court on 16.12.1992, it was permitted to file the amended execution application and in obedience thereto, the appellant, on 23.12.1992, filed the amended execution petition. The respondents, on 26.1.1994, filed an objection petition, inter alia,' pleading that as the" execution petition is barred by time, therefore, the same be dismissed. The said application was resisted by the appellant through filing the reply. As a result of amendment in the Ordinance in respect of pecuniary jurisdiction of Banking Courts, the execution proceedings were transferred from this Court

to the learned Special Judge Banking who, after finding that the latest execution application (Ex. A. No. l-B/89) was a fresh application for the execution of the decree and as the same has been filed after eight years of the passing of the decree, therefore, the same is barred by time, proceeded to dismiss appellant's execution petition, vide impugned order dated 14.7.1994, hence the present appeal.

1. As none entered appearance to represent the respondents, therefore, they were proceeded exparte by this Court on 15.9.2003.

2. The learned counsel for the appellant, while relying upon Mahboob Khan Vs. Hassan Khan Durrani (PLD 1990 SC 778), has contended that the execution application, filed by the appellant, on 16.1.1989, was, in fact, in substitution of the earlier application (C.M. No.. 5953 of 83) and it was neither a new nor another application, therefore, the question of limitation does not arise, He has further submitted that although the earlier execution application (Ex.A. No. 7-B of 83) was consigned to record, yet the same remained alive, as it was not disposed of. He has concluded his arguments by submitting that in any case the execution application was not barred by time and the impugned order suffers from legal errors.

3. It flows from the above narrative that the decree under execution was passed on 20.1.1981, first execution application (Ex. A. No. 7-B/89) was filed on 27.6.83 subsequent execution application (Ex.A. No. l-B/89) for the execution of the same decree i.e. dated 20.1.1981, was instituted on 16.1.1989 and the first execution application was consigned to record on 7.2.1989 at the request and the statement of the learned counsel for the decree holder.

4. So far as, the first contention of the learned counsel that subsequent execution application was in continuation of application (C.M. No. 5953 of 83) is without any substance. The said application was filed by the decree holder, under Order XXI Rule 13 CPC, with the prayer that "the property detailed and described in the schedule be ordered to be attached for subsequent auction for the satisfaction of the decree." This application was withdrawn by the appellant on 23.11.1983, so as to file an appropriate application. It is evident from the record that the appellant did not file any "appropriate application" for more than five years till the time it, on 16.1.1989, filed another execution application, which was separately numbered as Ex. A. No. l-B/89. It is pertinent to mention here that the latest execution application wa^ filed under the provision of Order XXI Rule 11 CPC read with Section 8(3) of Ordinance, which provisions of law, undoubtedly, deal with the filing of the application for the execution of decrees. Upon the examination of the contents of the said execution application, it amply manifests that the same meticulously fulfills the requirements of Order XXI Rule 11 (2) CPC, wherein, in Column No. 4, it has been mentioned "That the previous application for execution of the decree was moved in this Hon'ble Court and was numbered as 7-B/83."

However, it was erroneously narrated in Column No. 5 "That the said application came up for hearing before his Lordship Mr. Justice Mehboob Ahmed, who was pleased to allow the plaintiff/decree holder to withdraw that application and make an appropriate application, after seeking instructions from the plaintiff holder." While in fact, at the time of the filing of the second application, the previous/first execution application was pending. It is evident from the record that the appellant, on 23.11.1983, withdrew its application, filed under Order XXI Rule 13 CPC, for the attachment of the property, and not the main execution application, which was subsequently consigned to record, on 7.2.1989 at the specific request of the learned counsel for the appellant on the ground that the Bank has filed the fresh execution application. To our mind, the Bank was conscious that it is filing a "fresh" execution application, which was barred under Article 181 of Limitation Act and even under Section 48 CPC and therefore to cover up said legal infirmity and to made the execution application within the limitation period, the concerned functionaries of the Bank even took the risk of making mis-statement by saying that this Court allowed the Bank to withdraw the execution application to file fresh one, which, as noted above, was contrary to the record. Even if, without conceding, the said permission was granted to the appellant, that of course would be subject to law of limitation, as it is settled law that even a Court could not enlarge or extend the period of limitation, which is statutorily fixed. As elaborated above, the Bank for all intents and purposes filed a "fresh" execution application, on 16.1.1989, thereby complying with the requirements of Order XXI Rule 11 (2) CPC, therefore, it cannot be legitimately argued that the subsequent application was in continuation of the previous application (C.M. No. 5953 of 83), therefore, the same is within time. On the face of it, the second execution application and aforenoted misc. application have no similarities, on the basis of which it can be urged that another execution application was a follow up measure of the misc. application. Needless to add that the subsequent execution application cannot be equated with the aforesaid misc. application, which was only for the attachment of the property, as the two applications have different dimensions.

6A. Adverting to the next contention of the learned counsel that the first execution application was not disposed of. Suffice it to say that the same was consigned to record on the specific statement the learned counsel for the decree holder. For facility of reference, order dated 7.2.1989 passed in execution application (Ex.A. No. 7-B/83) is reproduced below:-

"Mr. Ayyaz Hassan, Adv. for the decree holder.

States that the decree holder-Bank has filed a fresh execution application giving all the details of the properties sought to be attached and sold in execution of the decree and therefore this Ex: Application may be consigned to record. Order accordingly."

It is to be noted that when the appellant filed the subsequent execution application, on 16.1.1989, it was separately numbered and therefore all the proceedings were undertaken in the subsequent execution application without any objection from the appellant, inasmuch as all the applications, even filed by the appellant, were instituted in the said fresh execution application. As appears from the above reproduction, even according to the appellant, it has filed a "fresh" execution application. If the said application was not disposed of, as canvassed by the learned counsel, there was no occasion to file fresh execution application, as has been done by the appellant giving all the details of fresh execution application.

1. Now coming to the other limb of the argument that subsequent execution application was not a "fresh application." The appellant filed the amended execution application on 23.12.1992, of course, under orders dated 16.12.1992, passed by the learned Executing Court. In the said amended execution application although the Bank was allowed to only correct the name of one of the judgment debtors, yet it made certain unauthorized amendments in the amended execution application, which aspect need not be dilated upon at this stage. However, significantly, the appellant, in Column No. f of the amended execution application, has unequivocally admitted that the previous execution application was withdrawn by the Bank for filing "fresh application". For ready reference the said portion is reproduced below:

(f) Whether any, and (if any) what Application No. 7-B of 1983, previous applications have been withdrawn for filing fresh

made for the execution of the decree application with the leave of the

the dates of such applications and Court, their results, More importantly, the execution petition was not only signed by the two authorized officers of the Bank, but the contents of the execution application, obviously including the aforesaid portion, have also been verified on oath by them. In view of the clear admission on the part of the Bank regarding withdrawal of previous first execution application in order to file "fresh" execution application, the contention of the learned counsel that the previous execution application was not disposed of or no fresh execution application was filed, is ill founded and misconceived.

1. Now coming to the period of limitation for filing "first" and "subsequent" or "fresh" application for the execution of the decree. Article 181 of the Limitation Act provides that an application for which no period of limitation is provided elsewhere in this schedule or by Section 48 CPC, can be filed within a period of three years when the right to sue accrues. In view of the said Article, an execution application filed after the period of three years is clearly barred by time. It is well settled by now that the first execution application would be governed by the Residuary article i.e. 181 of the Limitation Act, which provides a period of three years for filing the

execution petition from the date of the decree and rest of the applications made thereafter will be governed by the period of six years, as prescribed by Section 48 CPC. Joint reading of Article 181 of the Limitation Act and Section 48 CPC would show that inner limitation for filing the execution application is three years, as provided by Article 181 of the Limitation Act, while the outer limitation for filing the execution petition is provided under Section 48 CPC, i.e. six years. It flows from the above that first execution application is to be filed within the period prescribed under Article 181 of the Limitation Act i.e. three years, the first execution application filed after the expiry of three years would obviously be barred by time and if the first application was filed then any number of subsequent execution applications can be filed but within a period of six years from the date of decree per force of Section 48 CPC. While filing the first execution application the decree holder cannot avail the benefits of the extended period by Section 48 CPC.. The Hon'ble Supreme Court of Pakistan, while dilating upon the interpretation of the provision of Article 181 of Limitation Act and Section 48 CPC, in a case reported as Mehboob Khan Vs. Hassan Khan Durrani (PLD 1990 SC 778), incidentally relied upon by the appellant, has held as under :-

"-The effect of the amendment made by the Law Reforms Ordinance, 1971, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent .or fresh application for execution would be governed by Section 48, C.P.C., it would be out of the purview of Article 181 on its express terms. In some of the Indian decisions, the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak V. Govindrao Ramji Pant AIR 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Traancore-Cochin 268 and Venlappa and others V. Lakshmikant Rao AIR 1956 Hyd 7."

"The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by Section 48. Although the original purpose underlying Section 48, read alongwith Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of Section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made," thereafter, would be barred under the said Article and as such there would be no occasion to avail of

the benefits of the extended time provided by Section 48, CPC. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in Section 48, CPC otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, Section 48 would become redundant and ineffective."

In another case reported as National Bank of Pakistan Vs. MianAziz ud Din and 7 others (1996 SCMR 759), the Hoh'ble Apex Court of the

Country, while replying upon the case of Mehboob Khan (supra) has

approved the same principles as enunciated in the aforenoted case.

1. As noted above,, according to the own showings of the appellant, after the withdrawal of the first execution application, fresh execution application was filed, therefore, now the Bank is precluded to plead that the first execution application was not disposed of.

2. In view of the above backdrop, we are of the view that the first, execution application (Ex. A. No. 7-B/83) was filed by the appellant on 27.6.1983, which was within time, as the same was filed within a period of three years from the date of decree, as per Article 181 of the Limitation Act, but the same was withdrawn by the appellant on 7.2.1989 on the ground that 'fresh/subsequent" execution application was filed on 16.1.1989 and thus the first application stood disposed of. Although the first execution application, which was disposed of, as noted above, was within time, yet subsequent and fresh execution application (Ex. A. No. l-B/89), which was filed after the expiry of eight years of the passing of the decree, was barred by time in view of Section 48 CPC. The "fresh" application was not in continuation of the misc. application, as the subsequent application for all practical purposes was for the execution of the same decree.

3. In the above perspective, we have examined the impugned order and fined that the same is legal, unexceptionable and is not only in accordance with the record of the case but also in consonance with law on the subject, thus, we are not inclined to interfere in the impugned order, hence the same is maintained.

4. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same stands dismissed-with no order as to costs.

(A.A.) Appeal dismissed.

PLJ 2004 Lahore 545

Present: ch. ijaz ahmad, J.

ZAHEER-UL-HASSAN and another-Petitioners

versus

PAKISTAN POSTAL OFFICE through POST MASTER GENERAL, LAHORE and 2 others-Respondents

W.P. No. 11791 of 2003, heard on 13.11.2003. Constitution of Pakistan (1973)--

—-Arts. 199 & 212-Principle of consistency-Applicahility-Postal Service- Petitioners although secured position, in merit list yet they were not issued appointment letters-One of the candidates who had secured first position in consolidate result succeeded in her constitutional petition reported as 2003 PLC (C.S.). 1274-For reasons recorded in that judgment, present writ petitions were accepted keeping in view principle of consistency-Respondent's contention that constitution petitions were liable to he dismissed on principle of laches has no merit in view of law laid down by Supreme Court in Muhammad Zaeem Khalid's case reported as 1995 SCMR 723-Petitions were thu's, accepted in terms of judgment passed in Miss Fauzia Yaqub's case reported as 2003 PLC (C.S.) 1274. [P. 546] A

PLD 1959 SC 9; 1995 SCMR 723 & 2003 PLC (C.S.) 1274 ref.

Mr. Ghulam Farid, Advocate for Petitioners. Mr. Sher Zaman, D.A.G. for Respondents. Date of hearing : 13.11.2003.

judgment

I intend to decide the following constitutional petitions by one consolidated order having similar facts and law:-

1. W.P. No. 11791/2003

2. W.P. No. 12377/2003

3. W.P. No. 12127/2003

4. W.P. No. 12546/2003

5. W.P. No. 10703/2003

6. The brief facts out of which the aforesaid writ petitions arise are that the respondents issued advertisement to fill the posts in question. The petitioners in obedience of the advertisement of the respondents preferred their applications. The respondents issued call notices to the petitioners to appear in the written test. The petitioners appeared in the written test and

passed the same. The respondents thereafter issued call letters to the petitioners to appear in the interview and viva. The petitioners appeared in the interview and viva held hy the respondents. The petitioners secured position in the merit list at S. Nos. 2 to 5. The respondents did not issue the appointment letters to the petitioners, The respondents issued letters to the petitioners hy Divisional Superintendent Postal Service Sialkot to appear before the respondents for re-examination. The petitioners being aggrieved filed the aforesaid writ petitions.

1. Learned counsel of the petitioners submits that Miss Fauzia Yaqub appeared alongwith the petitioners who stood first in the merit list. The respondents did not issue appointment letter to Miss Fauzia Yaqub who filed W.P. No. 4920 of 2003 which was accepted by this Court vide judgment dated 3.7.2003. The cases of the petitioners are exactly similar to the case of Miss Fauzia Yaqub.

2. Learned Deputy Attorney General submits that constitutional petitions are not maintainable in view of the bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act. He further submits that the constitutional petitions are liable to be dismissed on the well known principle of laches.

3. I have given my anxious consideration to the contentions of the learned counsel of parties and perusdd the record.

4. The case of the petitioners is exactly similar to the case of Miss Fauzia Yaqub who appeared alongwith the petitioners in the written test and interview and secured position No. 1. The constitutional petition filed by Miss Fauzia Yaqub was accepted by this Court vide judgment dated 3.7.2003 reported as Miss Fauzia Yaqub Vs. Assistant Post Master Punjab, Lahore(2003 PLC (C.S.) 1274). For the reasons recorded .in the judgment dated 3.7.2003 passed in Miss Fauzia Yaqub's case these writ petitions are also accepted keeping in view the principle of consistency. Even otherwise I am not in a position to deviate from my own view on the principle of consistency as per law laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan Vs. Muhammad YousafKhan (PLD 1959 S.C. 9). The other contention of' the learned Deputy Attorney General that constitutional petitions are liable to be dismissed on the well known principle of laches has no merit in view of the law laid down by the Honourable Supreme Court in Muhammad Zaeem Khalid Vs. Baha-ud-Din Zakariya University and others-(1995 SCMR 723).

In view of what has been discussed above, these constitutional petitions are accepted in terms of judgment passed in Miss Fauzia Yaqub's supra (2003 PLC (C.S.) 1274).

(A.A) Petitionaccepted.

PLJ 2004 Lahore 547

Present: rustam ali malik, J.

REHMAT ALI and 4 others-Petitioners

versus

STATION HOUSE OFFICER, POLICE STATION SADDAR GUJRANWALA and another-Respondents

W.P. No. 8221 of 2003, decided on 22.10.2003. (i) Bonded Labour System (Abolition) Act, 1992--

—-S. 4(2)-Constitution of Pakistan (1973), Art. 199--F.I.R. relating to amount in question, which was allegedly given as "Paishgi" (advance) to petitioners and claimed to be misappropriated by them, sought to be quashed-Challan relating to contents of F.I.R. had been submitted before trial Court-High Court's power to quash F.I.R.-High Court in exceptional cases can exercise jurisdiction without waiting for trial Court to pass orders under Section 259-A or 265K Cr.P.C., where facts of case so warrant and main consideration to be kept in view would be whether continuance of proceedings before trial forum would be a futile exercise, wastage of time and abuse of process of Court or not-Addition of word "amanat" with "Qarz-i-Hasna" alleged in F.I.R. was ridiculous and appeared to have been added so as to justify registration of criminal case- Provisions of Bonded Labour System (Abolition) Act 1992, forbid any advance or to compel any person to render any bonded labour or other form of for,ced labour-Investigation relating to F.I.R. in question, was pending and during pendency of writ petition challan was submitted before trial Court-High Court would thus, deal with the position as same existed at the time of filing of writ petition. [P. 550] A & B

(ii) Bonded Labour System (Abolition) Act, 1992-

—S. 4(2)-Registration of case two month after filing of writ petition- Continuing of proceedings of criminal case would thus, certainly be abuse of process of law and would result in wastage of time-No offence even on admitted facts could be made out even on admitted facts against petitioners-Petitioners having sought declaration that registration of F.I.R. in question, be declared to be without lawful authority, therefore filing petition for writ of certiorari is the most appropriate remedy-High Court in exceptional circumstances can quash .F.I.R. and proceedings initiated on basis thereof, even if challan had been submitted before trial Court-F.I.R. against petitioner was thus quashed. [P. 551] C

2000 SCMR 122; PLD 2001 Lahore 399; PLD 1990 SC 513; 1992 PCr.L.J. 679; 1996 SCMR 839; PLD 1967 SC 317 and 2000 SCMR 1945 ref. '

Mr. Muhammad Aslam Zar, Advocate, for Petitioners. Mr. Waqar Hassan Mir, Advocate for Respondent No. 2. Mr. M. Akbar Tarar, Addl. A.G. for Respondent No. 1. Date of hearing: 22.10.2003.

order

The instant writ petition had been'filed on behalf of the petitioners namely Rehmat Ali, etc. with the prayer that F.I.R No. 195/2003 registered on 22.5.2003 in Police Station Saddar, Gujranwala against them and others under Sections 406 and 506 P.P.C, at the instance of Respondent No. 2, be quashed. It was averred by the petitioners that they albngwith others were employed as labourers at the Brick Kiln of Respondent No. 2 who did not pay wages to them and to their other-companions. On being asked for the payment of wages, Respondent No. 2 became furious and gave server beating to them and their companions, alongwith his other partners who are proprietors of Chaudhry Bricks Company, Bano Kot Pulley, Sheikhupura Road, Gujranwala and who have to pay wages to the petitioners, their families and relatives, to the tune of Rs. 1,25,0007-= On being asked to pay their dues, they maltreated them through their 'Goondas'. Petitioner No. 1 then filed a Habeas Corpus Petition (Crl. Misc. No. 207-H/2003) which was disposed of by this Court on 21.3.2003 and the alleged detenues numbering 63 were released. However, Respondent No. 2 who was also a respondent in Crl. Misc, No. 207-H/2003 got this case registered on 22.5.2003 in Police Station Saddar, Gujranwala against the petitioners and others only in order to harass and blackmail them as a counter-blast and with the intention to usurp the amount of Rs. 1,25,000/- which was outstanding against him and his partners as wages. It was further averred that the case was got registered against the petitioners and their companions only in order to blackmail and pressurize them to extract labour from them. It was prayed by the petitioners that by issuing an appropriate writ/order impugned, F.I.R No. 195/2003 registered on 22.5.2003 in Police Station Saddar, Gujranwala under Sections 406 and 506 P.P.C be quashed.

1. Respondent No. 2 and also the learned counsel for the State have resisted the petition.

2. In the F.I.R it has been stated by the complainant/Respondent- No. 2 that the amount of Rs. 4,58,514/- had been given to 13 accused persons as 'amanat'and which was to remain with them till the completion of their work at the Brick Kiln. However, they worked at the Brick Kiln only for a few days, mis-appropriated the amount given to them as 'amanat' and filed a Habeas Corpus Petition (Crl. Misc. No. 207-H/2003) in the High Court but they failed to prove that they had been kept in illegal detention. They have also been threatening the complainant and other owners of the Brick Kiln. An amount of about Rs. 5 lac is outstanding against them and they have committed the offence of criminal breach of trust. Hence the matter was reported to the Police.

3. Admittedly, previously a Habeas Corpus Petition (Crl. Misc. No. 207-H/2003) has been filed by one Rehmat Khan for the recovery of the petitioners and their companions. Even during the hearing of the said petition, it had been contended on behalf of Respondents Nos. 1 to 3 (in the said petition) that an amount of Rs. 5,00,000/- was outstanding against the alleged detenues but they worked on the Brick Kiln only for five days and then filed the Habeas Petition only in order to mis-appropriate the said amount. The learned counsel for the petitioner has argued that registration of criminal case against the petitioners and others vide F.I.R No. 195/2003 in Police Station Saddar, Gujranwala is clearly an abuse of process of law and hence the same is liable to be quashed. He has argued that addition of the word 'amanat' in the F.i.R would not change the. nature of the amount which was allegedly given to the petitioners and others. He has argued that no offence even on admitted facts could be made out against the accused as the dispute was entirely of civil nature and which had been converted into criminal proceedings with ulterior motives. He has argued that further proceedings before the trial Court on the basis of the impugned F.I.R would be a sheer wastage of time as there was no hope of success of this case. In this respect he has placed reliance on Miraj Khan v. Gul Ahmad & 3 others (2000 SCMR 122). He has also argued that registration of a case to enforce a civil liability was not sustainable in law and the case was thus liable to be' quashed. In this behalf he has placed reliance on Iftikhar Ahmad & another v. S.H.O & 2 others (PLD 2001 Lahore 399). Placing reliance on a landmark judgment of the honorable Supreme Court Darshan Masih alias Rehmatay & others v. The State (PLD 1990 Supreme Court 513), he has argued that the amount in question was clearly an advance (Paishgi), allegedly given to bonded labour and which has absolutely no importance in the eye of law. He has argued that the challan was submitted in the learned trial Court on 10.8.2003, almost two months after the filing of this writ petition and hence this Court can quash the F.I.R even if the proceedings are pending before the learned trial Court. In this respect he has placed reliance on ArifRafique v. The State (1992 P.Cr.L. J 679 Karachi). He has also referred to the provisions of the Bonded Labour System (Abolition) Act (III of 1992) and has argued that it is provided under sub-section (2) of Section 4 of the said Act that no person shall make any advance under, or in pursuance of, the bonded labour system or to compel any person to render any bonded labour or other form of forced labour. He has argued that registration of case against the petitioners is clearly malafide and abuse of the process of law and hence the F.I.R in question and also the proceedings initiated on its basis be quashed.

4. On the other hand, the learned counsel for Respondent No. 2 has argued that the challan in this case has already been submitted in the Court and that the amount in question had been given to the petitioners and others' as 'amanat' 'and not as 'Paishgi' under the bonded labour system. Placing reliance on Sheikh Mahmood Saeed & others v. Ameer Nawaz Khan & another (1996 SCMR 839), he has argued that normally every case should be allowed to proceed according to law and resort to the provisions of Section 561-A Cr.P.C should not be lightly made as the same would tend to circumvent the due process of law. In this behalf he has also placed reliance on Ghulam Muhammad v. Muzammal Khan & 4 others (PLD 1967 Supreme Court 317). Placing reliance on Altaf Hussain v. Abdul Samad (2000 SCMR

550 Lah. REHMATALIv. STATION HOUSE OFFICER PLJ

(Rustam Ali Malik, J.)

1945), he has argued that the power given by Section 561-A Cr.P.C cannot be so utilized as .to interrupt or divert the ordinary course of criminal-procedure as laid down in the procedural statute.

1. I have carefully considered the arguments.

2. The provisions of Bonded Labour System (Abolition) Act, 1992 forbid any'advance under, or in pursuance of the bonded labour system or to compel any person to render any bonded labour or other form of forced labour. Section 5 of the said Act declares that any custom or tradition or practice or any contract, agreement or other instrument, whether entered into or executed before or after the commencement of the Act, by virtue of which any person, or any member of his family, is required to do any work or render any service as a bonded labour as void and inoperative. Even the contents of the F.I.R indicate that the amount in question had been given as 'Paishgi' (advance) for extracting labour from the petitioners and their companions. Even if this 'Paishgi' is also described as 'amanat' in the F.I.R., it will not change its nature. Any such agreement or contract between the parties in that respect is void under Section 4 (2) of the aforesaid Act.

3. Now the question to be seen is as to whether an F.I.R or the proceedings on its basis can be quashed even after the submission of challan in the Court. It was held in Mirqj Khan's case (supra) that the High Court in exceptional cases can exercise jurisdiction without waiting for trial Court to pass orders under Section 259-A or 265-K Cr.P.C, if the facts of the case so warrant and the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be a futile exercise, wastage of time and abuse of process of Court or not and if on the basis of facts admitted and patent on record, no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial. In the same authority it was held that addition of the word 'amanat' with 'Qarz-i-Hasna' was ridiculous and appeared to have been added so as to justify the registration of the criminal case. It was also held in Arif Rafique's case (supra)that the power of the trial Court under Section 249-A Cr.P.C is co-extensive with similar powers of High Court under Section 561-A Cr.P.C and both could be resorted to and nothing could bar High Court from entertaining an application under Section 561-A Cr.P.C in appropriate cases, in its inherent jurisdiction.

4. It may be mentioned here that at the time of filing of this writ petition on 14.6.2003, investigation was pending and it was almost two months later, during the pendency of his petition that the challan was submitted before the trial Court. So this Court will deal with the position as it existed at the time of filing of this writ petition.

5. It may also be mentioned here that present one is not a petition under Section 561-A Cr.P.C but a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and there is no bar to pass an appropriate order/writ/direction for quashing an F.I.R if it was in patent

violation of some provision of law. In this case, even if -the allegations as contained in the F.I.R are believed, it will not make out a case against the petitioners and their companions as the agreement mentioned therein is clearly in violation of the provisions of the Bonded Labour System (Abolition) Act, 1992. Admittedly, two months prior to the registration of this case, the Habeas Corpus Petition (Crl. Misc. No. 207-H/2003) was filed concerning the petitiorfers and their companions, against Respondent No. 2 and others i.e the owners of Brick Kiln and hence registration of F.I.R application of Respondent No. 2 against the petitioners is clearly malafide. Hence continuing with the proceedings of the criminal case would be certainly an abuse of process of law and would certainly result in wastage of time. No offence even on adniitted facts could be made out against the accused as the dispute was entirely of civil nature, which with ulterior motives had been converted into criminal proceedings. As the petitioners are also seeking a declaration that the registration of F.I.R in question is without lawful authority, therefore filing a petition for a writ of certiorari, is the most appropriate remedy. In exceptional circumstances (as is the position in this case), this Court can quash an F.I.R and the proceedings initiated on its basis, even if the challan may have been submitted before the trial Court.

1. In view of what has been stated above, this writ petition is accepted and the registration of F.I.R (No. 195/2003) in Police Station Saddar, Gujranwala under Sections 406 and 506 P.P.C and also the proceedings initiated on its basis are declared to -be without any lawful authority and of no legal effect and the same are hereby quashed.

(A.A) Petition accepted.

PL J 2004 Lahore 551

Present: M. akhtar shabbir, J. SARJAH-Petitioner

versus

Mst. BEGI and another-Respondents C.R. No. 449 of 2002, heard on 17.9.2003. (i)

Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 30--Limitation Act, 1908 (IX of 1908), S. 4-Suit for possession through pre-emption-Limitation-Sale in question, had been made through sale-deed attested on 26.8.1996 and from said date four months expire on 26.12.1996-Courts remained closed from that date till 1.1.1997 and re-opened on 2.1.1997, when suit had been instituted-Suit was, thus, validly instituted by petitioner within time. [P. 554] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 13(3)--Civil Procedure Code, 1908 (V of 1908), S. 115--TaZfa-i- Muwathibat and talb-i-Ishhad, making of proof-Copy of notice of talb-i-Ishhad had been produced in evidence on which no cross-examination had been made by defendants nor any objection had been made by them- Petitioner had produced sufficient and convincing evidence to establish talb-i-muwathibat and ta/b-J-Is/i/zad-Plaintiff in his plaint and in his statement specifically stated date and time of making of talb-i-muwathibatwhich was also corroborated by statements of witnesses-Such evidence stood un-rebutted by defendants-Making of talb-i-muwathibat and talb-i- Ishhad thus, stood proved-Judgments and decrees of Courts below non­ suiting plaintiff were set aside and his suit was decreed. [P. 555] B

2001 SCMR 539 and 2000 SCMR 354 ref.

Mr. Ghulam Farid Sanotra, Advocate for Petitioner. Ch. Haider Bakhsh, Advocate for Respondents. Date of hearing : 17.9.2003.

judgment

The facts giving rise to the present revision petition are to the effect that Sarjah Khan son of Bhai Khan plaintiff/petitioner had filed a suit for possession through per-emption against Mst. Baigee daughter of Rehman and Muhammad Aslam defendants/respondents with regard to agricultural land measuring 25 kanalssituated in Khata No. 64 of Mauza Jhadah Tehsil Bhalwal District Sargodha through sale deed dated 26.7.1996 alleging in the plaint that to defeat his superior right of per-emption a fictitious sale price has been entered as Rs. 4,50,000/- while the actual sale price paid in good faith was Rs. 2,10,000/-. The plaintiff claimed superior right of pre-emption being co-sharer in the khata in dispute.

1. The suit had been contested by the defendants/respondents who filed their written statement denying the averments made in the plaint by raising some preliminary objections. From the factual controversies appearing on pleadings of the parties, the trial Court led to frame the following issues:-

(1) Whether the plaintiff has superior right of pre-emption? OPP

(2) Whether plaintiff has fulfilled the requirements of ta/abs? OPP

Whether ostensible sale price Rs. 4,50,000/- was fixed in good faith and actually paid? OPD

(4) If issue No. 3 is not proved then what was the market value of the suit land at the time of its sale? OP parties.

(5) Whether the defendants are entitled to recover Rs. 52,500/- (expenses of registration and district council fee), besides the consideration amount, if the case is decreed? OPD

(6) Whether plaintiff is estopped by his words and conduct to bring this suit? OPD

(7) Whether suit has been incorrectly valued for the purpose of Court fee, If so what is its correct valuation? OPD

(8) Whether the suit is not within time? OPD

(9) Whether the suit is false, frivolous, mala fide, without cause of action, if so, its effect? OPD

(10) Relief.

1. After recording and appreciating the evidence of the parties, proand contra, the trial Court vide its judgment and decree dated 24.3.1999 dismissed the suit with costs.

2. Feeling aggrieved the plaintiff/petitioner preferred an appeal which came up for hearing before the learned Additional District Judge Bhalwal District Sargodha. During the pendency of the appeal, Muhammad Aslam Respondent No. 2 made a consenting statement on 19.6.2001 stating that he has entered into compromise with the appellant/petitioner and admitted his superior right of per-emption 'received share of sale consideration Rs. 1,50,000/- and in the light of his statement the appellate Court accepted the appeal and decreed the suit to his extent and dismissed the appeal to the extent of Respondent No. 1 Mst. Baigee observing that the appellant/petitioner has failed to perform the requirements of Talb-i-Muwathibat and Talb-i-Ishhad.

3. Learned counsel for the respondents at the very outset objected that the suit of the plaintiff/petitioner has not been filed within time, and liable to be dismissed on this sole ground and the learned trial Court has also declared the suit barred by limitation. He forcefully supported the judgments of the Court below.

4. On the other hand learned counsel for the petitioner contended that the suit was filed on 2.1.1997 on the first day of opening of the Court after Winter vacation which is within time. Reliance has been placed on Noor uddin and 3 others vs. Pakistan through the Secretary, Ministry of Communication Government of Pakistan, Islamabad and 3 others (2000 SCMR354).

The learned counsel for the petitioner further contended that both the Courts below have non suited the petitioner on the. ground that petitioner has failed to establish the performance of Talb-i-Muwathibat and Talb-i-Ishhad, while there is ample evidence on the record to establish this factum. The Courts below have given findings on this issue without applying the judicial mind to the evidence produced by the petitioner.

1. I have heard the arguments of learned counsel for the parties, perused the record.

2. Section 4 of the Limitation Act envisages, that where the period, of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, the appeal or application may be instituted, preferred or made on the day that the Court re-opens.

3. Section 30 of the Punjab Pre-emption Act 1991 provided limitation for filing suit for pre-emption four months from the date (a) of the registration of the sale-deed, (b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale-deed, (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or mutation, or (d) of knowledge by the pre-emption, if the sale is not covered under paragraph(a) or paragraph (b) or paragraph (c).

4. The provision of paragraph (d) is not attracted to the present case. The sale in dispute had been made through a sale-deed attested on 26.12.1996 and from the said date four months expire on 26.12.1996. There is not cavil with the fact that till 1.1.1997 the Court was closed and had re­ opened on 2.1.1997 when the suit had been instituted. This argument has been further strengthened by the law laid down in Nooruddin case (supra). The suit was validly instituted by the petitioner within time.

5. In paragraph 3 of the plaint, the plaintiff has categorically stated that for the first time he got knowledge of sale of the property in dispute on 3.9.1996 at 8/9 a.m. at his dera when Muhammad Hayat son of Ghulam Muhammad in presence of Ashiq Hussain Shah deposed that the property in dispute has been sold out to the vendees and he there and then declared to pre-empt the suit property. The plaintiff in his statement as PW1 also deposed that he was told about the sale in dispute by Muhammad Hayat in presence of Ashiq Hussain. The statement of the PW was supported by PW2 Muhammad Hussain who disclosed the sale and PW3 Ashiq Hussain in whose presence disclosure with regard to the sale of the property in dispute was made. Both the PWs categorically stated that the plaintiff has declared the intention to pre empt the suit land. The notices for Talb-i-Ishhadas Exh. P4 and P5 had been placed on record testified by two truthful witnesses Muhammad Hayat, Ashiq Hussain (PW2 and PW 3). The learned counsel for defendants/respondents cross-examined the PWs at length but no substantial contradiction was made out,. But the Courts below have non-

suited the plaintiff/petitioner on the observation that there are minor contradictions in the statements of the plaintiff. Somewhere he has stated the date of first information as 19 Bhadoon ( i?9j\j& ) while in cross examination he stated the month of Aswaj ( "frj\1 ) but there is no cavil to the effect that the plaintiff as well as the witnesses stated the date of knowledge and making of Talb-i-Muwathibat on 3.9.1996. This date has not been controverted by the defendants/vendees. The plaintiff/petitioner has specifically referred in the plaint two talabshaving been made in presence of two witnesses. Copy of notice of Talb-i-Ishhadas envisaged under Section 13(3) of the Punjab Pre-emption Act, 1991 has'been produced in the evidence on which no cross-examination had been made nor any objection had been made by the defendants. The witnesses have identified their signatures on the notices. The petitioner has produced sufficient and convincing evidence to establish Talb-i-Muwathibat and Talb-i-Ishhad. The learned lower appellant as observed in paragraph 9 of the judgment that the appellant as PW1 has not given specific time when he got knowledge of the disputed sale for the first time and had ambiguously stated that he got knowledge of the disputed sale at 8/9 a.m. The plaintiff/petitioner in plaint and in his statement as PW1 has specifically stated the date and time of making 'Talb-i-Muwathibat' as 3.9.1996 at about 8/9 a.m. There is no ambiguity in the plaint and statement of the plaintiff about making 'Talb-i-Muwathibat' which is also corroborated by the statements of PW2 and PW3. The judgments of the Courts below are based on surmises and conjectures and it would not be appropriate rather in the interest of justice to non suit the plaintiff on some slight discrepancy if any in his statement.

1. The evidence produced by the petitioner has not been rebutted by the defendants/vendees (respondents herein). Where copy of the notice of 'Talb-i-Ishhad' had been produced in evidence on which no cross examination had been made nor any objection had been raised by the defendant at the time of production of the notice, it would be inferred that the plaintiff/pre-emptor had proved Talb-i-Ishhad.which follows Talb-i-Muwathibat. The superior right of plaintiff/petitioner has also not been rebutted by cogent evidence by the respondents and in such like cases the High Court can set at naught the concurrent findings of the Courts below. In this context reference can be made to the case of Nadir Khan vs. Itebar Khan(2001 SCMR 539).

2. For the foregoing reasons, this revision petition is accepted and the judgement and decrees dated 24.3.1999 and 12.2.2002 passed by both the Courts below are set aside. The suit for pre-emption filed by the plaintiff/petitioner is decreed with costs throughout.

(A.A) Revision accepted.

PLJ 2004 Lahore 556

Present: syed jamshed alt, J. MUHAMMAD PERVAIZ-Petitioner

versus THE DEPUTY COMMISSIONER, NAROWAL and 8 others-Respondents

W.P. No. 3410 of 2000, heard on 20.11.2003. (i) Constitution of Pakistan (1973)--

—Art. 199-Appointments to posts in question, assailed on the ground that same were made on extraneous considerations and in arbitrary manner-Report of Deputy Commissioner showed that name of one of respondents was added later on by tampering list and that appointments in question, were made on extraneous considerations i.e. unwritten allocation of quota to M.N.As and M.P.As-Even if such report of Deputy Commissioner was ignored, process of selection to posts in question does not appear to have been undertaken in a just, fair and transparent manner—Minutes of District Recruitment Committee do not indicate that any understandable method was applied to evaluate merits of competing candidates to prefer selected candidates to other candidates including petitioners-Such appointments having been made in arbitrary manner were declared to be without lawful authority and of no legal effect.

[Pp. 558, 559 & 560] A, B & D

(ii) Constitution of Pakistan (1973)--

—Art. 199-Laches in filing constitutional petition such plea of respondents has no merit in as much as petitioner has been agitating such matter before concerned authorities and representation to Chief Minister was made-Laches alone, however, was not a sufficient ground to dismiss constitutional petition unless equity leans in favour of contesting respondent. [P. 559] C

AIR 1965 SC 1293 ref.

Petitioner in person.

Mr. Aamir Rehman, Addl. A.G for Respondents Nos. 1 to 5 with Khalid Majeed, Project Manager.

Syed Iqbal Hussain Shah Gillani, Advocate for Respondents Nos. 7 and 8. '

Respondent No. 6 ex-parte Date of hearing : 20.11.2003.

judgment

Through a public notice which was published in the daily 'Jang' on 28.2.1995 application were invited for appointment to the post of Secretary

Union Counsel. The petitioner made an application on 2.3.1995. The departmental Recruitment Committee, however, selected Respondents Nos. 6 to 8 for the aforesaid posts.

1. The grievance in this petition is that the petitioner had better merit, the appointment of Respondents Nos. 6 to 8 was made on extraneous considerations, they were over-age. It is further averred that the petitioner made a number of applications including application to the Chief Minister of Punjab on which an inquiry was directed and- the then Deputy Commissioner, Narowal submitted report on 23.1.1999 to the Chief Minister Secretariat according to which the name of Muhammad Afzal Khan, Respondent No. 8 appeared to have been added by tampering the list later' on. It has also been reported that in the year 1995, recruitment was made in most of the departments on political grounds against an un-written quota allotted to M.N.A/M.P.As/Candidates of Ruling Party and District Recruitment Committee worked under tremendous political pressure. In the said report it was recommended that the petitioner may be accommodated on priority basis when a vacancy is available in future. The petitioner has also placed on record photo copy of the minutes of the meeting of the District Recruitment Committee held on 18.3.1995. It only gives out the names of Respondents Nos. 6 to 8 as selectees for the post in question without indicating any method as to how the comparative merits of the competing candidates were evaluated.

2. On the other hand Mr. Aamir Rehman, Addl. Advocate General has opposed this petition. He maintains that Respondents Nos. 6 to 8 were selected by the District Recruitment Committee and, therefore, no exception could be taken to their appointment.

3. Syed Iqbal Hussain Gillani, Advocate appeared for Respondents Nos. 7 and 8. He contends that while the appointments were finalized in 1995, this writ petition has been filed in the year 2000 which suffers from laches, it has not been established that the petitioner had ever applied for the job and that the report of the then Deputy Commissioner relied upon by the petitioner was manipulated after the change of the political Government. As far as the merits of selection of Respondents Nos. 7 and 8 are concerned, he maintains that Respondent No. 8, Muhammad Afzal Khan, was a graduate whereas the petitioner was F.A. It is next maintained that the respondents are working as Secretary Union Council for the last about eight years and it well be too harsh to uproot them after such a long period. According to him, illegality, if any, committed by the Recruitment Committee should not be allowed to operate to their detriment.

4. The submissions made by petitioner and the learned counsel for the respondents have been considered. On being questioned, the learned Add!. Advocate-General submits that despite best efforts the record relating to the disputed appointments is not traceable. Therefore, I am proceeding to decide this petition on the existing record. The report of the Deputy

Commissioner (Annex 'F') and the minutes of the meeting of the District Recruitment Committee have not been disputed in the parawise comments submitted by the then Deputy Commissioner, Narowal and the Assistant Director LG & RD. Perusal of the report dated 23.1.1999 of the then Deputy Commissioner shows that the name of Muhammad Afzal, Respondent No. 8, was added later on by tampering the list and that in 1995 appointments in various departments including the Local Government Department were made on extraneous considerations i.e. unwritten allocation of quota to the M.N.As and the M.P.As. However, even if the said report of the Deputy Commissioner was ignored, the process of selection to the posts in question does not appear to have been undertaken in a just, fair and transparent manner. The proceedings of the meeting of the District Recruitment Committee held on 18.3.1995 are reproduced hereunder:--

"PROCEEDINGS OF THE MEETING OF DISTRICT RECRUITMENT COMMITTEE, NAROWAL HELD ON 18.3.1995 REGARDING INTERVIEW/APPOINTMENT OF SECRETARY UNION COUNCIL IN LG&RD DEPARTMENT NAROWAL.

A meeting of the DRC, Narowal was held on 18.3.1995 at 9.00 a.m in. the Committee Room of the Deputy Commissioner/Chairman, DRC, Narowal. The following members of the DRC, Narowal were present in the meeting.

1. Mian Muhammad Khan Mohal, Deputy Commissioner/Chairman, DRC, Narowal.

2. Mr. Sher Afgan Khan.

A.C. Narowal/Secretary, DRC, Narowal.

1. Mr. Azhar Majeed, ADLG, Narowal/Member, DRC, Narowal.

2. The Project Manager (Hqrs) Narowal/Member. DRC, Narowal.

According to the scheduled programme the candidates for appointment as Secretary Union Council were interviewed as per list attached (Annex-A). The DRC, Narowal approved/selected the following candidates for appointment as Secretary Union Council in LR&RD Department, Narowal.

Sr. No. Name of the candidate with Address Percentage

1. Mr. Arfan Haider S/o R/0 Qaser-e-Qalander, Sh. Daulat Ali Mohallah Khawajgan, Narowal

City.

1. Mr. Muhammad Rafique R/O Bari Minhasan, tehsil S/o Khair Din Shakkargarh, District Narowal.

| | | --- | | 3. Muhammad Afzal S/o Muhammad Anwar |

l.Sd/-

ADLG Narowal

Member.

1. Sd/-

P.M (Hqr) Narowal/ Member

R/o Kothey, Bara Manga, Shakargarh.

1. Sd/- 3. Sd/-

AC Narowal/Secretary Deputy Commissioner/

(Post of ADC (G) was Chairman,JDRC, Narowal vacant at that time)

1. The aforesaid minutes do not indicate any understandable method which was applied by the District Recruitment Committee to evaluate merits of the competing candidates to prefer Respondents Nos. 6 to 8 to other candidates including the petitioner nor it could be found in the parawise comments submitted by the then Deputy Commissioner and AD & LG. From the perusal of the minutes of the meeting of the District Recruitment Committee, I have no doubt in my mind that Respondents Nos. 6 to 8 were appointed by Recruitment Committee in an arbitrary manner. It may be observed that public employment is not bounty of the state and its functionaries to be doled out at whims as was done in this case.

2. As far as the contention on behalf of Respondents Nos. 7 and 8 that the petition suffers from laches is concerned, it has no merit, The petitioner has been agitating the matter before the concerned authorities and a representation to the Chief Minister of the Punjab was made on 2.10.1995. It may also be noted that laches alone are not a sufficient ground to dismiss a constitutional petition unless equity leans in favour of a contesting respondent. As far as next contention is concerned it was categorically stated in para 3 of the petition that the petitioner was a candidate for the post of Secretary Union Council which was admitted as correct both by the Deputy Commissioner and the Assistant Director, Local Government. The third contention regarding the report of the then Deputy Commissioner dated 23.1.1991 has already been dealt with above. The next contention of the learned counsel that merely because Respondent No. 8 was a graduate, therefore, he was rightly preferred has not impressed me either because for determination of merits of the competing candidates no acceptable method, was adopted and further that the Assistant Director Local Government, vide certificate dated 23.10.2003, reported that the requisite qualification for the post of Secretary Union Council was Matric.

3. As far as the last contention of the learned counsel for Respondents Nos. 7 and 8 is concerned, I am quite conscious that Respondents Nos. 6 to 8 will be uprooted after about eight years but that is inevitable on the basis of the findings recorded by me in this judgment. Reference may be made to Channabasavaih vs. State of Mysore (AIR 1965 SC 1293) in which a similar plea was raised but was repelled with the following observations:-

"(9) It is very unfortunate that these persons should be uprooted after they has been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidate do the right thing. If any blame for the inconvenience is to be placed it certainly cannot be placed upon the petitioning candidates, the candidates whom this order displaces or this Court."

1. For what has been stated above, this petition is allowed. The appointment of Respondents Nos. 6 to 8 as Union Council is declared as-without lawful authority and of no legal effect. They will, accordingly, vacate the said posts which shall be filled in accordance with law after inviting applications through a public notice. Nothing said in this judgment shall stand in the way of Respondents Nos. 6 to 8 to make fresh applications (subject of course to their eligibility) for the post in question as and when applications are invited. No order as to costs.

(A.A) Petition accepted.

PLJ 2004 Lahore 560

Present: syed sakhi hussain bukhari, J. Mst. SIRAJ ZAMANI-Petitioner

versus Kh. AZHAR IQBAL and 9 others-Respondents

C.R. No. 947 of 1992, heard on 3.11.2003. Civil Procedure Code, 1908 (V of 1908)--

—-O. VII, R. 11 & S. 115-Rejection of plaint-Essentials-Plaint can be rejected only if same did not disclose cause of action or was barred by any law-To invoke applicability of Clause (a) of 0. VII, R. 11 C.P.C., Court has to look into contents of plaint only and would examine plaint on its face value—Where plaint by itself indicates any infirmity enumerated in Clauses (a) to (d) of O. VII, R. 11 C.P.C., Court must order rejection of plaint in as much as fruitless litigation would require to be buried in its inception to avoid wastage of time of Court and unnecessary harassment of opposite party-'Where, however, Court had rejected plaint only on the basis of averment, in written statement and agreement in question, such judgment of Court was not sustainable—Appeal against that order was dismissed without appreciating material on record which had resulted in mis-carriage of justice, therefore, the same was set aside and case was remanded for decision afresh in accordance with law.

[Pp. 562 & 563] A, B&C

1985 SCMR 450 and PLD 1989 Lahore 320 ref.

Mr. Zafar Iqbal Chaudhry, Advocate for Petitioner. Mr. Muhammad Nawaz, Advocate for Respondents. Date of hearing : 3.11.2003.

judgment

Mst. Siraj Zamani,'petitioner filed a suit for declaration against the respondents to the effect that agreement to sell dated 1.11.1988 was illegal, void, based on fraud and liable to set aside and Respondent/Defendant No. 1 (Khawaja Azhar Iqbal) could not use the same in any manner and that Respondents/Defendant Nos. 2 and 3 could not supply him (Respondent No. 1) electricity connection. She stated that she and Mst.Razia Bibi daughter of Habibullah were owner in possession of suit land (measuring 47 Kanals 10 Marias bearing Khewat No. 1466/1229 situated in Ghak No. 1-A/4-L) and they were selling the same in the shape of plots for residential purposes. She maintained that they agreed to sell land measuring 66 Marias to Respondent/Defendant No. 1 vide agreement dated 1.11.1988 for a consideration of Rs. 8,00,000/- and he paid them Rs. 10,000/- as earnest money and promised to pay Rs. 1,65,000/- on 10.12.1988 failing which earnest money would be forfeited and agreement would stand cancelled. She asserted that Mst. Razia Bibi died on 10.10.1990 and Respondents/Defendants Nos. 4 to 10 are her legal heirs. She alleged that Respondent No. 1 failed to pay Rs. 1,65,000/- on 10.12.1988 whereupon she sent him a notice on 26.1.1999. She further alleged that Respondent No. 1 started raising construction in their absence. She asked him not to raise construction and asked Respondents/Defendants Nos. 2 and 3 not to supply him electricity but they resisted, therefore she was constrained to file present suit. Khawaja Azhar Iqbal, Respondent No. 1 mentioned in his written statement that plaintiff had executed fresh agreement dated 5.11.1988 after the agreement dated 1.11.1988, henc,e she had renewed the same and previous agreement had become in-effective, therefore, suit was not maintainable. He further mentioned that plaintiff agreed to sell disputed plots for a consideration of Rs. 7,00,000/- instead of Rs. 8,00,000/- and she received Rs. 3,65,000/- from him and allowed to raise construction, therefore, he had raised construction. Alongwith suit she had also filed application.for issuance of temporary injunction and the same was fixed for arguments. However after hearing arguments on the said application learned trial Court rejected plaint under Order 7 Rule 11 CPC vide order dated 3.4.1991. The petitioner filed appeal against the said judgment, which was dismissed by learned Addl. District Judge, Okara vide judgment dated 5.5.1992. Hence, this revision petition.

1. The revision petition was admitted to regular hearing on 9.6.1992 and notices were issued to respondents. The case was fixed for 13.6.2003 but Respondents Nos. 1 to 3 did not appear on the said date, therefore, they were proceeded against exparte.

2. I have heard the arguments and perused the record.

3. Learned counsel for the petitioner submits that according to Order 7 Rule 11 CPC learned trial Court could reject plaint only on the ground that it did not disclose cause of action. Further submits that defence' set up or documents annexed thereto could not be looked into for rejection of plaint but learned trial Court rejected the plaint on the ground that defendant has mentioned in written statement that agreement dated 1.11.1988 on the basis of which plaintiff had filed suit had been substituted by agreement dated 5.11.1988, therefore, impugned judgments are illegal and liable to be set aside. As mentioned above,petitioner/plaintiff had filed a suit for declaration etc on the basis of agreement dated 1.11.1988. The case of petitioner is that aforesaid agreement is illegal, void, based on fraud and liable to be set aside. However order dated 3.4.1991 shows that trial Court rejected the plaint on the ground that according to written statement plaintiff had executed agreement dated 5.11.1988 after disputed agreement (1.11.1988), therefore, plaintiff had no cause of action. It is pertinent to note that trial Court observed that "Muhammad Naeem, General Attorney of plaintiff had filed an affidavit to the effect that he had neither executed the agreement deed dated 5.11.1988 nor had received any consideration amount mentioned on it and that this agreement deed was forged and void,". So it is clear that plaintiff had not accepted agreement dated 5.11.1988 to be correct rather her case is that the same is forged and void. It is well settled that plaint can be rejected only if it did not disclose cause of action or the same is barred by any law. Order VII Rule 11 CPC is reproduced below:-

"The plaint shall be rejected in the following cases:-

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law."

So it is clear that in order to invoke the applicability of clause (a) the Court shall look into the contents of the plaint only and shall examine the plaint on its face value. If the plaint by itself indicates any infirmity enumerated in clauses (a) to (b) of Rule 11 of Order VII CPC then the Court shall order the rejection of the plaint as the fruitless litigation requires to be buried at its inception to avoid the wastage of time of Courts and unnecessary harassment of the opposite party. Reliance can be placed on the case of Haji Allah Bukhsh vs. Abdul Rehman and others (1995 SCMR 459). The defence set up and documents annexed with the written statement cannot be looked into for rejection of plaint. Reliance can be placed on the case of Mushtaq Ahmad Khan and another vs. Mercantile Cooperative Finance Corporation Limited and another (PLD 1989 Lahore 320). However as mentioned above learned trial Court rejected the plaint only on the basis of averments in the written statement and agreement dated 5.11.1989. In these circumstances I find that judgment of learned trial Court is not sustainable in the eyes of law. Learned counsel for Respondents Nos. 4 to 10 also concedes on this point. The perusal of judgment dated 5.5.1992 passed by learned Addl. District Judge shows that appeal brought by petitioner was dismissed without appreciating the material available on record, which has resulted in miscarriage of justice, therefore, the same cannot be sustained and justifies' interference by this Court.

1. For what has been discussed above, I am of the considered opinion that judgements passed by both the Courts below are liable to be set aside. As such this revision petition is accepted, impugned judgments are set aside and case is remanded to learned trial Court for decision afresh in accordance with law. The application for issuance of temporary injunction shall also be decided on merit. No order as to costs.

(A.A) Case remanded.

PLJ 2004 Lahore 563

Present: M. akhtar.shabbir, J.

MIAN RIAZ-UL-HAQ (deceased) through his Legal Representatives-Petitioners

versus MUHAMMAD PERVAIZ CHAUDHRY and 2 others-Respondents

W.P. No. 23887 of 1999, heard on 3.11.2003. West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—-Ss. 117 & 175-Constitution of Pakistan (1973), Art. 199-Demarcation of property comprised in Khasra Number which had been constructed and had ceased to be estate or holding-Demarcation powers can be exercised by Revenue Officer with regard to limits of estate, holding field or any portion thereof-Collector had observed that land in question, having been constructed, intricate question of law and fact were involved and directed parties to approach Civil Court-Such direction of Collector was set aside by Additional Commissioner and Board of Revenue, holding that Revenue Officer was competent to demarcate property in question-High Court, ordinarily would not sit as a Court of appeal on a decision/ judgment of Court; Special Tribunal in exercise of its constitutional jurisdiction, however, where special forum had misconstrued provision of law or passed decision contrary to settled proposition of law and based its judgment/decision on non-consideration of material evidence on record or exceed, jurisdiction or committed gross error of law or fact, High Court can correct that mistake-Impugned orders of official respondents were thus, set aside. [Pp. 566 & 567] A, B & C

1992 CLC 586; 1982 CLC 1732; AIR 1927 Lahore 615; PLD 1999 Lahore 31

and PLD 1985 SC 260 ref.

Mr. Ras Tariq Chaudhry, Advocate for Petitioners alongwith Mr. Anwar-ul-Haq, Attorney of LRs of the Petitioner.

M/s Shahid Amin and M. Aslam Khan Butter, Advocates for Respondent No. 1.

Mr. Muhammad Sohail Dar, A.A.G. for Respondents Nos. 2 and 3. Date of hearing: 3.11.2003.

judgment

This writ petition has been filed to call in question the orders dated 14.6.1999, 7.10.1997 and 13.12.1995 passed by Member, Board of Revenue and Additional Commissioner, Revenue, Respondents Nos. 3 and 2 respect­ively.

1. The facts giving rise to the filing of this writ petition are to the effect that Respondent No. 1 filed two different applications before Assistant Commissioner Sadar Gujranwala, for demarcation of Khasra number 2024/90 and 864 located in village Dullay Wala Guranwala, which was dismissed by the Collector through, his order dated 26.6.1995 on the ground that the Civil Courts has already seized of the matter and appointed Tehsildar Gujranwala, as Local Commission for demarcation of the said Khasra numbers. The order of the Assistant Commissioner/Collector was challenged by Respondent No. 1 through an appeal before the Additional Commissioner Gujranwala, who vide,his or.der dated 13.12.1995 accepted the appeal observing that the revenue officer is competent to demarcate the land. The revision petition against the order of the Addl. Commissioner filed by the petitioner had been dismissed on 7.10.1997 and review against the same met with failure on 14.6.1999.'

2. Learned counsel for the petitioner has contended that the petitioner had filed a suit for declaration with regard to the same khasra numbers wherein a Local Commission to demarcate the land was appointed and the Local Commission submitted his report against Respondent No. 1 and therefore he had withdrew the suit. He filed another suit for possession. In that suit too the revisional Court passed and order and a Local- Commission was appointed and on whose report, Respondent No. 1 had again withdrew his suit for possession. After exhausting the remedies before the Civil Court the petitioner applied to the revenue functionaries for demarcation of the same property. Learned counsel has further contended that Khasra Number 864 was an evacuee property and it was allotted to the original allottee from whom this was purchased by the petitioner, who had made construction thereon i.e. Khasra Number 864 which is constructed, land not within the ambit of revenue functionaries.

3. On the other hand, learned counsel for contesting respondents, has vehemently opposed the arguments of learned counsel for the petitioner contending that the revenue officer is empowered to demarcate the estate or holding of a person and the Local Commission appointed by the Civil Court has not barred the jurisdiction of the revenue officer.

4. I have heard arguments of learned counsel for the parties and perused the record.

5. Respondents had^applied to the Assistant Commissioner for demarcation of the Khasra Numbers 2024/900 and 864 claiming to be a common path occupied by the present petition. It is an admitted position that respondents had filed a suit for declaration in which an application for temporary injunction was filed which was rejected by the trial, Court vide,his order dated 29.1.1991. The said order was challenged by ^Respondent No. 1 through an appeal which was disposed of with the direction to the lower Court to appoint some responsible revenue officer of higher pedestal for demarcation of the suit property. Under the direction of the appellate Court, Tehsildar Gujranwala was appointed as a Local Commission, by the Civil Court who, submitted his report on 5.5.1992 observing that Khasra Number 2020/873 measuring 8 Kanal belonging to Muliammad Riaz ul Haq petitioner and 8 marla of Khasra was used of Mattel road and more than 3% marla out of Khasra No. 2024/900 was also under the constructed Matteled road and on other part of Khasra Number 2023/873 petitioner had constructed building where an electricity meter has been installed. This suit was withdrawn by Respondent No. 1 with a permission to file a fresh one on 28.6.1993 and in this suit application was moved under Order 26 Rule 9 CPC for appointment of Local Commission and during pendency of the suit, another Local Commission was appointed wlio also after demarcating the land in dispute opined against the petitioner.

6. Section 117 of the West Pakistan Land Revenue Act, 1967 empowers a Revenue Officer for the purpose of framing any record or making any assessment on the application of any person interested, define the limits of the estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired.

7. The powers under Section 117 of the Land Revenue Act for demarcation proceedings are unlimited and unfettered as observed by a Member, Board of Revenue in the cases of Sheikh Abdul Ghafoor and others vs. Faqir Muhammad (1992 CLC 586) and Tahir Hanifvs. Member, Board ofRevenue and others (1982 CLC 1732). The honourable Judge of this Court has observed that 'Revenue Officer for purpose of preparation of records or assessment of a case, may on his own motion or on application of interested person, demarcate boundaries of an estate.'

8. From the plane reading of the provision-of Section 117 and the dictum laid down in the above-referred cases, it is manifestly clear that the revenue officer is empowered and competent to make demarcation of the estate and the land. Meaning thereby that demarcation of the estate/land or holding can be made by the Revenue Officer.

9. Estate has been defined in Section 4 sub-section (9) as under :- (i) for which a separate record of rights has been made, or

(ii) which has been separately assessed to land revenue; or

(iii) which the Board of Revenue may, be general rule or special order, declare to be an estate;

Sub-section (10) of Section 4 further defines "Holding" means a share of portion of an estate held by one, land owner or jointly by two or more land owners. "LAND" means land which is not occupied as the site of a town, village, factoiy or industrial establishment, and is occupied or has been or can be let for agricultural purposes allied or subservient to agriculture and includes the sites of buildings and other structures on such land.

1. Section 175 of the West Pakistan Land Revenue Act, 1967 empowers a Revenue Officer to remove the encroachment from the land which was reserved for the common purposes. Rule 67-A of the West Pakistan Land Revenue Rules, 1968 further strengthens the argument that the demarcation powers can be exercised by the Revenue Officer with regard to limits of estate, a holding field or any portion thereof. The said rule envisages the demarcation of land on an application U/S. 117 for defining the limits of an estate, a holding field or any portion thereof shall contain the following particulars:--

"It means that the powers are only available to the revenue officer with regard to the estate or holding which is the agricultural property and if the nature of land is altered long before action is taken under Section 117 ibid which is not applicable as laid down in the case of AmirBibi us, Dheru and another (AIR 1927 Lahore 615)."

1. In the order dated 27,1.1988 the Deputy Commissioner/ Collector Gujranwala on the application- of Muhammad Yunus son of Muhammad Ismaeel for restoration of the common path through Khasra Number 864 has already observed that from examination of the record it is proved that the construction had been made at site and the matter being intricate question of law and facts the application of Section 175 of the Punjab Land Revenue Act is not attracted and the applicant Muhammad Yunus was directed to approach the Civil Court. This order of the Collector was confirmed by the Commissioner, Gujranwala Division vide, his order dated 16.10.1988 (wrongly typed as 16.10.1987) and after perusal of above- mentioned two orders passed by the revenue officers it is established and the that the property i.e. Khasra No. 864 has ceased to be an estate or holding and the said land had changed its character as a building had been constructed on the said property.

2. This Court in case ofPervez Ahmad Khan Burki and 3 others vs.Assistant Commissioner, Lahore Cantt. and 2 others (PLD 1999 Lahore 31) has also observed as under:-

"Area sought to be demarcated by Authority was built upon since long and formed part of bungalow bearing property number and did not form of revenue estate-Section 3, West Pakistan Land Revenue Act, 1967 provided that except for certain fiscal purposes nothing in the said Act would apply to land which was occupied as a building site or such land on which permanent structure had been raised because such land after raising structure thereon, would loose also characteristics of agricultural land and dispute as regard partition of such land had to be resolved through Civil. Court and not by Revenue Court."

1. The above legal aspect of the case has not been attended to by Respondents Nos. 2 and 3. This Court will not sit as a Court of appeal on a decision, judgment of Court, Special Tribunal in exercise of its Constitutional jurisdiction, where the Special forum misconstrued the provision of law or passed the decision contrary to the settled proposition of law and based its judgment/decision on non-consideration of material evidence on record or exceeds the jurisdiction or committed a gross error of law or fact, this Court can correct that mistake as laid down in the case of Mst. Amina Begum vs. Sheikh Muhammad Nazir and others (PLD 1985 Supreme Court 260).

2. For the foregoing reasons and following the dictum in the cases (supra), this writ petition is accepted the impugned orders dated 13.12.1995, 7.10.1995 and 14.6.1999 passed by Respondents Nos. 2 and 3 respectively are declared to have been passed illegally, without jurisdiction and of no legal effect. There shall be no order as to costs.

(A.A.) Petition accepted.

PLJ 2004 Lahore 567

Present: M. AKHTAR SHABBIR, J. MUHAMMAD MALIK and 4 others-Petitioners

versus

MANSOOR SIDDIQUE and 4 others-Respondents C.R. No. 268 of 1995, heard on 27.10.2003.

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

— O.XXI, R. 32 & S. 115--Suit for permanent injunction restraining defendants from alienating and raising construction on property in question was decreed on consenting statement of defendants-Defendants started selling away some specific portion of land in violation of judgment and decree which had attained finality-Plaintiff s initiated action against defendants under 0. XXI, R. 32 C.P.C. which was dismissed by Courts below-Legality-Defendant having sold portion of land in question, and having started construction on a part thereof thus, violated judgment and decree of Court restraining them not to do so till partition thereof, provisions of O.XXI, R. 32 C.P.C. were very much attracted-Courts below having misconstrued provisions of O.XXI, R. 32 C.P.C., their order of dismissal of plaintiffs lis was set aside and case was remanded for decision afresh in accordance with law. [Pp. 571 & 572] A & B

1988 SCMR 151; AIR 1954 U.P. 197; PLD 1954 Dacca 651; AIR 1934 Calcutta 462; AIR 1938 All. 416 and 1990 MLD 1450 ref.

Malik Amjad Pervaiz, Advocate for Petitioners.

Sh. Abdul Aziz, Advocate for Respondents.

Date of hearing : 27.10.2003.

judgment

The petitioners/plaintiffs had filed a suit for permanent injunction restraining the respondents/defendants from alienating and raising the construction of the property situated in joint khata without its partition. During pendency of the suit Defendants Nos. 1 to 5 made a conceding statement and on their statement the trial Court decided the case on 2.1.1980 as under:-

No appeal was filed against the said judgment and decree which attained finality.

1. The defendants/respondents in violation of the judgment and decree started selling away some specific portion of the land from disputed

khata and the petitioners were constrained to file an execution petition before the Executing Court on 20.2.1989. They made a prayer for initiating action under Order 21 Rule 32 CPC against the judgment debtors/ respondents. The respondents had filed the objection petition asserting therein that the property had been partitioned privately, the execution petition was not maintainable. The learned executing Court framed the following issues:—

(1) Whether there was any sort of private partition effected by the parties in regard to the impugned Khata 7, if so, when and how?

(2) Whether the application under Order 21 Rule 32 CPC is incompetent? OPRs

(3) Relief.

1. Issue No. 1 had been decided against the respondents whereas Issue No. 2 was decided against the decree holder and the execution petition was dismissed. Feeling aggrieved the petitioners preferred an appal which came up for hearing before the learned Addl. District Judge, Daska who, dismissed the appeal as well as the cross objections filed by the respondents Hence this Revision petition.

2. The execution petition was opposed by the learned counsel for the judgment debtors/respondents contending that the decree for declaration and injunction was not executable and the leaned counsel forcefully supported the findings of both the Courts below. Learned counsel for the respondents further contended that execution petition was awfully barred by limitation as provided under Section 48 CPC.

3. On the other hand, learned counsel for the revision petitioners vehemently opposed the objection of the learned counsel for the respondents contending that the execution petition was within time when the decree was violated by the judgment debtors/respondents. Further that the provisions of Order 21 Rule 32 CPC are attracted to the present case and in support of ms arguments he relied upon the case of Muhammad Hussain and others vs. Muhammad Aslam (1988 SCMR 151).

4. I have heard the arguments of learned counsel for the parties and perused the record.

5. Section 48 of the CPC has barred the execution in certain cases, which reads as under:-

'Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon and fresh application presented after the expiration of six years from:-

(a) the date of decree sought to be executed, or

(b) Where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed...

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of six years where the judgment debtor has by fraud or force prevented the execution of the decree at some time within six years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908."

1. From bare reading of the provisions of above-said law, it reveals that the execution of the decree otherwise than a decree granting of injunction is barred after expiration of six years from the date of decree sought to be execution provided fresh application is made after the prescribed period.

2. So far as the execution of injunction decree is concerned, Order 21 Rule 32 CPC is applicable to such decrees. /

Where a party against whom a decree for the specific performance of the contract, or for restitution of conjugal rights, or for an injunction has been passed, has had an opportunity of obeying a decree and has willfully failed to obey it, the decree may be enforced [in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for specific performance of a contract or for an injunction] by his detention in prison, or by the attachment of his property, or by both.

Sub-Rule (5) of Rule 32 ibid further provides-Where a decree for specific performance of a contract or for an injunction has not been . obeyed, the Court may in lieu of or in addition to all or any of the process aforesaid, direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court, at the cost of the judgment debtor and upon the act being done the expenses incurred may be ascertained in such manner or as the Court may direct and may be recovered as if they were included in the decree.

1. This rule applies to the cases where a party is directed to do some act as well as the cases where he is directed to abstain from doing an act and such decree for injunction can only be executed in the manner given in this rule. Reliance in this context can be placed to the case of MunicipalCommittee Sonepat vs. Dharem Chand etc (A.I.R 1954 197). Before allowing execution under this rule against the judgment debtor, the only condition is hat the Court could see if he had any opportunity of obeying the decree or whether he is willfully failed to obey it. Where a decree declaring right of the plaintiff to repair and put up a 'Bund' at the junction of two plots and the defendants were restrained from cutting the Bund or interfering with it in any manner. It has been held by the Court that the defendants had no opportunity of obeying the decree till the plaintiff had made an attempt to construct a Bund and therefore a decree was in capable of execution under this rule, however, was an attempt on the" part of the plaintiff to put up a bound and there was an obstruction on the part of the defendants.

2. In the instant case, it was decided by the Court that the defendants would not make any construction on the share of the plaintiffs-decree holders/petitioners measuring 3% m.arlas and also would not raise construction in Nos. 4 to 11 and 65 to 67 and they were restrained from transferring the same in any manner to any person but the petitioners were constrained to file the execution, when the defendants/respondents transferred specific portion of the land to other persons and raised construction on the said land. The provisions of Order 21 Rule 32 CPC are very much attracted. The provisions of Order 21 Rule 32 CPC were examined by the honourable Supreme Court in the case of Muhammad Hussain and others vs. Muhammad Aslam (1988 SCMR 151) observing as under:--

There is little doubt that the decree passed in favour of the decree-holder against the judgment-debtors was for a declaration as well as permanent injunction restraining them from interfering.with the actual and physical possession of the Killa numbers mentioned above. Even on the 17th of March 1972, the learned counsel for the; judgment-debtors unequivocally gave an undertaking to restore the possession of the land to the decree-holder within two months. There is hardly any force in the contention that the decree was purely declaratory and as such was not executable at all.

Before us the learned counsel also contended that in this case, for alleged breach of the prohibitory order under Clause (5) of Rule 32 of Order 21 of the Code of Civil Procedure, the respondent/ decree-holder was not entitled to any specific relief. In support of this contention he relied on the pronouncement in Burhanuddin Ahmad and others vs. Veda Brata Shakaraborti and others PLD 1954 Dacca 651. But it does not necessarily mean that thereby the petitioners were liable to escape the penalties and consequences of the breach of the decree for injunction as laid down in Clauses (1), (2) and (3) of Rule 32 of Order 21 of the Code. Iii this connection reference may be made to the pronouncement in Angad and others vs. Mudhe Ram and others AIR 1938 All. 416 and Hem Chandra Maskar and another vs. Narendry Nath Bos:', and others AIR 1934

Cal. 462, while Order 21, Rule 32, Clauses (1), (2) and (3) apply to both classes prohibitory and mandatory injunctions and enable the decree-holder to put the judgment-debtor's into civil prison and to attach the judgment-debtor's property and by these means to compel him to obey the decree."

This rule was further followed in cases of Muhammad Azam Khan and 7 others vs. Nobat Khan and 3 others (1990 MLD 1450) and Sachi Prasad Mukherjee vs. Amar Nath Rai Chowdhury and others (Calcutta Vol. XLV 1918 (864) observing that decree of a prohibitory injunction can be enforced through the execution Court by invoking the question contained in Order 21 Rule. 32 (1), (2) and (3) CPC.

1. Both the Courts below have misconstrued the provisions of Order 21 Rule 32 CPC and passed the impugned order in violation of the principle laid down in the above cases and in such .like circumstances, the High Court can set at naught the concurrent findings of the Courts below.

2. For the foregoing reasons, this revision petition is accepted. The orders dated 27.6.1991 and 8.11.1994 by both the Courts below are set aside. The execution petition filed by the petitioners shall be deemed pending before the Executing Court and the said Court will proceed therewith, under the law.

(A.A) Revision accepted.

PLJ 2004 Lahore 572

Present: muhammad akhtar shabbir, J.

KAWALITY PAPER MILLS (PVT.) LTD. through its M.D. LAHORE-Petitioner

versus

PRESIDING OFFICER, LABOUR COURT NO. 1 LAHORE and 2 others-Respondents

W.P. No. 11015 of 2003, heard on 17.11.2003. (i) Constitution of Pakistan (1973)--

—Art. 189-Judgment of Full Bench of High Court in conflict with judgment of Supreme Court-If Bench of a High Court was faced with situation where, on one side, a decision of Full Bench of a High Court was cited and, on other hand, a decision of Supreme Court of Pakistan, in such situation, decision of Supreme Court, on same point is to be followed in view of clear provision of Art. 189 of the Constitution. [P. 576] B

(ii) Payment of Wages Act, 1936 (IV of 1936)--

—-S. 17--Appeal against order of Authority under Payment of Wages Act, 1936--Requirement-Requirement of law for filing appeal under S. 17 of Payment of Wages Act 1936, is attachment of a certificate of Authority to effect that appellant has deposited with the Authority, amount payable under the direction appealed against. [P. 575] A

(iii) Payment of Wages Act, 1936 (IV of 1936)--

—-S. 17-Constitution of Pakistan (1973), Arts. 199 & 189-Dismissal of appeal by Labour Court for non-deposit of disputed amount in terms of order of Authority under Payment of Wages Act 1936-Full Bench of High Court in Chenab Cement Product's case reported as PLD 1996 Lahore 672 had declared the condition requiring deposit of entire disputed amount before preferring appeal to be unlawful-Supreme Court in Syed Match Factory's case reported as 2003 SCMR 1493 on similar question of fact and law filed against judgment of Peshawar High Court had observed that constitutional jurisdiction of High Court had been invoked to nullify effect of S. 17(l)(a) of Payment.of Wages Act 1936, which was mala fide and dismissed petition for leave to appeal-Following decision of Supreme Court reported as 2003 SCMR 1493 order of dismissal of appeal of petitioners by Labour Court for non-deposit of requisite amount, was maintained. [P. 576] C

PLD 1996 Lahore 672; 2003 SCMR 1493; 1983 PLC 1235; 1986 SCMR 1607; 1986 SCMR 520 and 1990 PLC 26 ref.

Mr. H.R. Haider, Advocate for Petitioner.

Mr. Muhammad Bashir Ch., Advocate for Respondent No. 1.

Date of hearing : 17.11.2003.

judgment

This judgment will dispose of Writ Petitions Nos. 11015, 11016, 11017, 11018, 8740, 8741 and 10827 of 2003 as common question of law and fact is involved in these matters and the same are directed against the orders dated 19.6.2003 and 14.1.2003 passed by Respondents Nos. 1 and 2 respectively.

1. Facts giving rise to the present writ petitions are to the effect that petitioners in all the cases, are a small unit dealing in manufacturing of paper where number of workers is less than 20,. Respondent No. 3 in the writ petitions employed in the petitioner's mills left jobs from there and filed claims before the Authority under the Payment of Wages Act and the said authority (Respondent No. 2) passed an ex-parteorder accepting the claim of Respondent No. 3 of Rs. 242100/-. The petitioners filed appeal before Respondent No. I/Punjab Labour Court No. 1, Lahore calling in question the order of Respondent No. 2 which was dismissed videimpugned order on

the sole ground that appeal had been filed without depositing the amount appealed against.

1. Learned counsel for the petitioners relied on the judgments/order of a learned Single Judge of this Court passed in Writ Petitions Nos. 1086/2002, 5579/2002 and 21923/2001, wherein, the learned Single Judge while relying on a Judgment passed by a Full Bench of this Court in case of M/s Chenab Cement Product Put. Ltd. vs. The Banking Tribunal Lahore.fPLD 1996 Lahore 672) declared the condition requiring deposit of the entire disputed amount before preferring an appeal to he unlawful.

2. On the other hand, learned counsel appearing on behalf of the respondents have vehemently opposed the arguments of leaned counsel for the petitioner, contending that High Court in its constitutional jurisdiction would not nullify the effect of Section 17(1) (a) of Payment of Wages Act, 1936. They relied on case of Syed Match Company Ltd. reported as (2003 SCMR1493.).

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

4. The appeal before the Presiding Officer lies against the decision of the authority under Section 17 of Payment of Wages Act. First, it would be worthwhile to reproduce the whole Section 17 as folldws:-

"17. Appeal.--(1) An appeal against a direction made under sub­section (3) or sub-section (4) of Section 15 may be preferred within 30 days of the date on which the direction was made before the Labour Court, constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates, arose.

(a) by the employer or other person responsible for the payment of. wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority, to the effect that the appellant has deposited with the authority, the amount payable, under the direction appealed against, or

(b) by an employed person or if he has died, by any of his heirs, if the total amount of wages, claimed to have been withheld from the employed person or from the unpaid group to which he belonged, exceeds fifty rupees, or

(c) by any person directed to pay a penalty under sub-section (4) of Section 15. We hold that contentions raised by the learned counsel are based on correct interpretation of the aforesaid provision of law.

From the plain reading of above referred Section 17(1) (a) it reveals that appeal before the Labour Court would be preferred within 30-days of the date on which the direction was made by the authority but no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority, the amount payable under the direction appealed against.

1. A constitution petition was filed before the Karachi High Court titled as "Ahmad Spinning Mills vs. Authority under Payment of Wages Actand others" reported as (1990 PLC 26) wherein, it is observed that alternate remedy of appeal is available to the petitioner against the order of authority and he could not invoke constitutional jurisdiction merely on plea that remedy of appeal available to him was not efficacious and adequate as he had to deposit with Court huge amount order by the authority. Learned Judge dismissed that petition observing that intention of the legislature in enacting Section 17 of the Payment of Wages Act is very clear. It seems that the" legislature intended the amount covered by an order under Section 15 of said Act to be deposited in the Labour Court before it entertained an appeal against such an order. Such a provision cannot be allowed to be circumvented through constitutional petition as purpose of Art. 199 of the Constitution is not to nullify effect of a legislative provision or to make statutory provision ineffective. The same proposition was also considered by a Division Bench of Karachi High Court in case of Chief Personnel OfficerPakistan Railways Lahore vs. Muhammad Ibrahim (1983 PLC 1235) wherein, the appeal filed by the petitioner was rejected on the ground of mandatory condition provided in proviso to Section 17 (l).'It was observed that remedy by way of appeal availed without complying condition precedent, allowing to question order of Authority would defeat provisions of S. 17 (l)(a).

2. In case of Divisional Superintendent, Pakistan Railways,Rawalpindi vs. Muhammad Aslam (1986 SCMR 1607) the Hon'ble Judges of Supreme Court of Pakistan have observed in Paragraph No. 4 of the judgment which is reproduced as under:-

"We have examined the contentions raised by the learned counsel and find that Section 17 of the Payment of Wages Act on which the judgment of the learned High Court is based, mentions only the period within which the amount should be deposited and not that it should be deposited before filing an appeal or after its institution."

The requirement of law for filing the appeal under Section 17 of the Act is the attachment of a certificate of the authority to the effect that the appellant has despited with the authority, the amount payable, under the direction appealed against.

1. In a similar matter in case titled as Syed Match Company vs.Authority under Payment of Wages Act (2003 SCMR 1493) the Hon'ble

Judges of Supreme Court of Pakistan while dismissing the Civil Petitions Nos. 455 to 463 of 2002 on similar question of fact and law filed against the judgment of Peshawar High Court have observed that constitutional jurisdiction of the High Court had been invoked in order nullify effect of S. 17 (1) (a) of the Wages Act, 1936 which was malafide and the Supreme Court dismissed petition and refused leave to appeal.

1. In all the cases referred to above, the superior Courts have refused to exercise jurisdiction to nullify the statutory provision provided in the law by the legislature. The judgments passed by the Hob'ble Single Judge of this Court, referred to be the learned counsel for the petitioner, are in conflict with the dictum laid down by the High Court as well as Apex Court.

2. As to the judgment of Full Bench of this Court titled as M/sChenab Cement Product Put. Ltd. (supra) is concerned , the question arises whether the judgment of the Full Bench of the High Court is to be followed or the decisions of the Hon'ble Supreme Court of Pakistan. In order to strengthen this argument, it would be appropriate to refer the provision of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 which enshrines that any decision of the Supreme Court, shall; to the extent that it decides a question of law or is based upon or enunciates a principal of law, be binding on all other Courts in Pakistan. The decisions of the superior judiciary are considered decisions of the Court or an institution instead of decisions of individual judge or judges. The Supreme Court observed that if a

Bench of a High Court is faced with situation where, on one side a decision of Full Bench of a High Court is cited and, on the other hand, a decision of the Supreme Court, on the same point is cited. According to the Supreme Court of Pakistan, in such situation, a decision of the Supreme Court has to be followed in view of clear provision of Article 189 of the Constitution. This provision of the Constitution left no scope for the learned Judge in the High Court to prefer the Full Bench decision over the decision of Supreme Court on a question of law. Reliance in this respect can be made to the case of Sher Muhammad vs. Additional Rehabilitation Commissioner Multan (1981 SCMR520).

1. In view of the above discussion, I am constrained to say that it is the judicial dignity to follow the decision of the Supreme Court of Pakistan. Respondent No. 1 has rightly dismissed the appeals of the petitioners for non-compliance of the pre-conditions provided in proviso (a) to Section 17 (1) of Payment of Wages Act.

2. For the foregoing reasons, these writ petition being devoid of merits are dismissed.

(A.A) Petition dismissed.

PLJ 2004 Lahore 577

Present: muhammad akthar shabbir, J.

NOOR AHMAD-Petitioner

versus

ADDL. DISTRICT JUDGE, PATTOKE DISTT. KASUR and 6 others-Respondents

W.P. No. 8107 of 2003^ heard on 12.11.2003. Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 24-Constitution of Pakistan (1973), Art. 199-Suit for pre-emption-­ Deposit of one third of sale price-Plaintiffs failure to deposit requisite amount, in Court as per order of Court-Trial Court's order extending time for deposit of amount in question, set aside by Appellate Court- Legality-Time for deposit of one third of pre-emption money cannot be extended by Court-Trial Court had exceeded its jurisdiction in extending time-Appellate Court had rightly interfered with order passed by trial Court which calls for no interference. [Pp. 578 & 579] A & B

2000 SCMR 650; 1995 CLC 1271; NLR 1993 Rev. cases 145 and 1992 SCMR 746. ref.

Ch. Muhammad Afzal Wahla, Advocate for Petitioner.

Mr. Shaukat Haroon, Advocate for Respondents Nos. 2 to 7.

Date of hearing : 12.11.2003.

judgment

Noor Ahmad plaintiff-petitioner (herein) had filed a suit for possession through .pre-emption on a sale of land measuring 19 kanals 9 marlas,the detail of which is mentioned in the heading of the plaint, situated in mauza Saharankey Tehsil Pattoki, District Kasur, transferred-through sale Mutation No. 1255 dated 2.12.2002 for an ostensible sale price of Rs. 1,80,000/- by the vendors Muhammad Siddique and two others in favour of defendants/respondents (vendees), claiming to be the co-sharer in joint Khata of suit land, alleging that fictitious sale price of Rs. 4,00,000/-was entered in the mutation to defeat the superior right of pre-emption of the petitioner. On 2.1.2003, the trial Court registered the suit and issued process to the defendants directing the plaintiff-pre-emptor to deposit l/3rd sale price (zara soim) of Rs. 1,33,334/- within thirty days. The plaintiff did not comply with the order of the Court and failed to deposit the same within time. On 3.2.2003 the plaintiff has filed an application for extension of time for deposit of l/3rd sale price and the Court had extended the time till 21.2.2003. The said order was challenged by the plaintiff before the ADJ, Pattoki through revision petition, who vide, judgment and decree dated 5.6.2003 accepted the same, setting aside the order of the trial Court.

1. Learned counsel for the petitioner contended that the trial Court for the ends of justice and keeping in view the case of hardship of the petitioner had rightly extended the time for deposit of zare. soim. He relied on cases of Abdul Wahid us. Sardar Alt (2000 SCMR 650) and Ch.Muhammad Yaqub vs. Nazim Hussain (1995 CLC 1271).

2. On the other hand, learned counsel appearing on behalf of Respondents Nos. 2 to 7 has vehemently opposed the arguments of learned counsel for the petitioner and supported the judgment of revisional Court contending that the Court is not empowered to extend time for the deposit of zare soim.

3. I have heard both sides and perused record. Section 24 of the Punjab Pre-emption Act, 1991 enunciates as under:-

Plaintiff to deposit sale price of the property:- .

(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one third of the sale price of the property in case within such period as the Court may fix; Provided that such period shall not extend beyond thirty days of filing of the suit;

Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one third of the probable value of the property.

(2) Where the plaintiff fails to make a deposit under Section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.

(3) Every sum depositing under sub-section (1) shall be available for the discharge of costs.

(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price by the pre-emptor.

1. The Court had granted time to the petitioner for the deposit of l/3rd of the sale price within a period of one month and this order was not complied with by the petitioner instead an application for extension of time was moved which was allowed by the trial Judge and time for deposit of Zar-i-Soim was extended upto 21.2.2003.

2. From the plain reading of Section 24, it is manifestly clear that- the time for the deposit of one third of the pre-emption money cannot be extended by the Court. A restriction was imposed on the power of the Court by the legislature and it has been held by the Supreme Court in case of Haji(Rana Muhammad Shabbir Ahmad Khan vs. Govt. of Punjab Province Lahore (NLR 1993 Revenue Cases 145) that the legislature while framing Section 24 of the Act has perhaps taken into consideration the long period of litigation, v/hich is normally spent before the final decision of the suit of pre-emption. If Imam Muhammad could have subjected the right of pre-emption to the condition of depositing the sale price, while the legal suits in those days used to conclude within few days time, that legislature of today can put such a condition for the more obvious reason that non^depositing of the sale price may encourage the frivolous suits of pre-emption."

3. It has been held in case of Awal Noor us. District Judge Karak11992 SCMR 746) that time for the deposit of one third of pre-emption money has been fixed by the statute itself and it cannot be extended by the Court. "This principle was followed by the Lahore High Court in case of Muhammad Ismaeel reported as (1995 MLD 1011). It is the judicial dignity to follow the principle laid down by the apex Court of the country and I am in agreement with the dictum laid down in case of Awal Noor (supra) which is fully applicable to the facts of the instant case, therefore, by following the principles laid down in the cases referred to above, I am constrained, to hold that the Court is not empowered to extend time for deposit of one third pre­ emption money. The trial Court had exceeded its jurisdiction. The lower appellate Court has rightly interfered with the order passed by the trial Court which calls for no interference.

4. For the foregoing reasons, this writ petition being devoid of force is dismissed.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 579

[Rawalpindi Bench Rawalpindi]

Present: maulvi ANWAR-UL-HAQ, J. ALTAF HUSSAIN SHAH and another-Petitioners

versus ABDUL QADEER and 2 others-Respondents

C.R. No. 352/D-1998, heard on 23.10.2003. (i) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 13(3)-Dismissal of suit allegedly for non-performance of talbs, assailed-Witnesses of plaintiff were unanimous that talbs were made 11 months before their statements were recorded-That being so, fact that

witnesses were not unanimous on details as to time, place and date as also names of witnesses, would not be relevant, once it was proved that notice, was in fact given in accordance with law-Courts below thus, acted without lawful authority in rejecting testimony of plaintiffs witness for not mentioning date, place and time or names of witnesses in their statements before Comt~Talb-i-Muwathibat was thus, proved. [P. 583] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 13(3)-Notice of talb-i-Ishhad-Proof of Defendants claimed not. to have received any notice of ta/5-j'-/s/i/iad-Petitioner/plaintiff in view of such denial produced local postman who stated that he had handed over relevant registered envelopes personally and that he had made entries in his Postman Book which he had brought in Court-Copies of the original notice were produced-Such witness was not cross-examined at ail-Thus, it stood proved that original of said notice Mark 'A' was duly posted and same reached respondents. [P. 584] B

(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—- S. 13(3)-Civil Procedure Code, 1908 (V of 1908), S. 115-Courts below having misread evidence had dismissed plaintiffs suit for pre-emption- Evidence of Talb-i-Ishhad and that of talb-i-muwathibat having been discarded by Courts below unlawfully, judgments and decrees rendered by them in dismissing plaintiffs suit were set aside and the same was decreed to the extent of plaintiffs entitlement. [P. 585] D

(iv) Qanun-e-Shahadat, 1984 (10 of 1984)--

—Art. 76 & 77-Secondary evidence-Mode of producing such evidence- Article 76 Qanun-e-Shahadat 1984, permits leading of any secondary evidence of contents of document mentioned in Clause (a) thereof, while Art. 77 Qanun-e-Shahadat exempts a party seeking to prove notice in its terms-Copy of original notice of talb-i-Ishhad was thus, admissible in evidence-Court below had thus, committed error of jurisdiction to discard the same on assumption that permission was required to produce such document. [Pp. 584 & 585] C

2001 AC 589 (S.C.) and 2000 SCMR 329 ref.

Malik Shahzad Ahmad, Advocate for Petitioners'. Haji Shamas-ud-Din, Advocate for Respondents. Date of hearing : 23.10.2003.

judgment

Vide registered sale-deed dated 20.4.1994 purchased suit land measuring 49 Kanals A marlas for a consideration of Rs. 6,00,000/- on 4.9.1994 the petitioners filed a suit for possession by pre-emption. According to them the land had, in fact, been sold for Rs. 3,00,000/-. They claimed to be co-sharers as well as owners of adjacent land. Performance of talbs was pleaded. The respondents filed a written statement denying the said allegations Following issues were framed by the learned trial Court:-

1. Whether plaintiffs have superior right of pre-emption quathe defendants? OPP.

2. Whether talabs were properly performed by the plaintiffs? OPP.

3. Whether suit is barred by law of limitation? OPD.

4. Whether ostensible sale price of Rs. 600000/- was bona fidefixed and paid by the defendants? OPD

5. If Issue No. 4 is not proved in affirmative, what was the market value of suit property at the time of sale? OP Parties

6. Whether suit is incorrectly valued for purposes of Court fee and jurisdiction, if so what is correct valuation? OPD.

7. Whether plaintiffs are estopped by their act and conduct to file the present suit? OPD

8. Whether the defendants are entitled to incidental charges and improvements as asserted in the written statement? OPD.

9. Relief.

evidence of the 'parties was recorded. Vide judgment and decree dated 15.9.1996 the leaned trial Court found under Issue No. 1 that the superior right of pre-emption of the petitioners extends only to 12 Kanals 10 marlas.' Issue No. 3 was answered against the respondents. Under Issue No. 4 it was held that the respondents paid Rs. 6,00,000/- for the land. Issues Nos. 6 and 7 were found against the respondents. Under Issue No. 8 it was found that they have spent Rs. 60,000/- as incidental expenses on the registration, etc. of the sale. Issue No. 2 pertaining to talbs was decided against the petitioners. The suit was accordingly dismissed. A first appeal was filed by the petitioners which was heard by a leaned ADJ, Attock. Before him only findings on Issue No. 2 were questioned. No. other finding was questioned by any of the parties. The learned ADJ confirmed the findings on Issue No. 2 and dismissed the appeal on 26.2.1998.

1. Learned counsel for the petitioners contends that the evidence on record has been mis-read. According to him there was no major discrepancy in the statements of the witnesses qua talb-i-muwathibat. He has relied upon the case at Abdul Qayum through Legal Heirs v. Mushk-e-Alam and an other(2001 AC 589) (S.C). Regarding the notice as well, according to the learned counsel, the learned Courts below acted without jurisdiction in discarding the same on unfounded grounds. Learned counsel for the respondents, the other hand, supports the impugned judgments and decrees with reference to the reasoning given by the learned lower Courts • in their respective judgments.

2. I have gone through the copies of the records, with the assistance, of the learned counsel for the parties. Now I find that in para-2 of the plaint it has been stated that the moment the petitioners came to know about the sale they made a talb-i-muwathibat and thereafter sent a notice of talb-i-ishhadunder registered cover A.D. Now the learned counsel for the respondents contends that it was necessary for the petitioners to have given all the requisite details as to time, place and date as also names of witnesses

and the informer. The contention loses sight of the law declared by a larger Bench of the Hon'ble Supreme Court of Pakistan in the case of Haji Noor Muhammad u. Abdul Ghani and 2 others (2000 SCMR 329). The said, pleadings are, therefore, sufficient in order to enable the petitioners to prove the making of talbs. Now before I proceed further I may note here that the relevant witnesses of the petitioners were examined on 26.3.1995. Now PW-1 is Niaz Hussain Shah petitioner. He states that 11 months ago he and his brother (the other petitioner) met their maternal uncle Fazal Hussain Shah at his Tubewell while going to Shahbazpur. Fazal Hussain Shah told them that the land from the joint khata has been sold to the respondents by Qazi Mahboob vendor. He and his brother immediately stated that this will cause Zarar and they will file a pre-emption suit. The said Fazal Hussain Shah appeared as PW-2 and stated that 11 months ago his nephews i.e. petitioners met him at his Tubewell and he informed them of the sale and .they immediately declared that they will file- a pre-emption suit. Anwar Din is PW-3. He states that while he was sitting on the Tubewell of PW-2 11 months ago the petitioners came there and were informed of the sale by PW\2 and they stated that they will file a pre-emption suit.

1. Now the learned trial Court has observed that the date, time and place of performance of talb-i-muwathibat is not clear. He has then stated that there is a difference about the numbers of days whereafter the notice was served after the knowledge. The learned ADJ has observed that the said PW-1 stated that notice was sent 4/6 days .after the talb-i-muwathibat. PW-2 has stated that notice was sent 14 days after the knowledge. While PW-3 has stated that the notice was sent 8 days thereafter. This is the precise reason, recorded by the learned Courts below for holding Issue No. 2 against the petitioners in the matter of talb-i-muwathibat.To my mind both the learned Courts below failed to read the evidence. As stated by me above, the statements were recorded on 26.3.1995. All the three witnesses have stated that it was 11 months ago that the information was conveyed to the petitioners and they made the talb-i-muwathibat.This takes us back to 27.4.1994. Which is the point of time on which the knowledge is stated to have been acquired vide contents of notice Mark 'A' which is dated 4.5.1994. Now the learned Courts below also failed to take note of the fact that PW-2 Fazal Hussain Shah was 65/66 years of age while Anwar Din PW-3 was 70/71 years of age when their statements were recorded.

2. The said case of Abdul Qayum through Legal Heirs becomes fully attracted to the facts of the present case. Now the discrepancies relied upon by the learned trial Court and the learned Peshawar High Court while stated by the learned Court of first appeal to be minor are mentioned in para-9 of the judgment. I deem it proper to reproduce the same here:-

"Evidence of Abdul Qayyum plaintiff, Ghulam Muhammad P.W. 3 and Ghxilam Qasim P.W. 4 in relation to Talabs was rejected by the learned «) udge of the High Court by observing that there were material discrepancies as to time when Talb-i-Muwathibat was

made, for at one place, it was stated that the same was made at Deegarwala Whereas at the other place it was stated that it was made in the evening time and that Abdul Qayyum petitioner and Ghulam Muhammad P,W. 3 stated that they went to Lakki for preparation and issuance of notice after five days whereas Qasim P.W. 4 stated that the same was got prepared on the next day."

Hon'ble Mr. Justice Munir A. Sheikh expressing the leading opinion of the Bench observed as follows:-

"In our view it was not a case of any discrepancy or contradiction in the evidence of these three witnesses as regards the time and place-of making Talb-i-Muwathibat or issuance of notice in relation to Talb-i-Isshad. The combined effect of reading the statements of these- witnesses clearly was that Talb-i-Muwathibatwas made on 4.5.1991 on which date all the witnesses are unanimous. As regards time whether it was made at Deegarwala or in the evening, there may be a minor variation that the same could not be treated to be contradiction of each other. The witnesses were making statements after lapse of considerable period from the date of Talb-i-Muwathibat, therefore, they were not expected to remember each and every minor details as to time. These were natural variations which a human being in the ordinary course of business would certainly make which do not in any way detract from the veracity of their evidence."

It was further stated that the question as to on which date the notice-was got prepared was immaterial, as for the above-mentioned reasons, witnesses were not expected to remember each and every date after such a long time and such variations are always held to be natural for they are not to give statement as tape-recorders. The memory of each and every human being is not the same, therefore, it has been proved on record substantially that requirements of performance of both the talabs had been fulfilled and proved. The evidence of the witnesses, therefore, could not have been rejected on the ground of minor variations by holding that the same were discrepancies of material nature. The Hon'ble Supreme Court allowed the appeal of the pre-emptors and restored the decree passed by the learned Court of first appeal.

1. Now as stated by me above, all the three witnesses are unanimous that talb was made 11 months before their statements were recorded. This being so,' the fact that one witness said that the notice was given after 6 days, the other stated 4 days and the 3rd stated 8 days would not be relevant once it is proved that the notice was, in fact, given in accordance with law. Respectfully following the said dictum of the Hon'ble Supreme Court I do hold that the both the leaned Courts below have acted without any lawful authority in rejecting the testimony of the said three witness for the reasons stated by them in their respective judgments.

. Now coming to the talb-i-Ishhad, PW-1 stated that the notice, the copy whereof is Mark 'A' was given and it was attested by Fazal Hussain Shah and Qazi Anwar Din. He further stated that he appended the postal receipts with the plaint. PW-2 Fazal Hussain Shah and PW-3 Anwar Din stated that the notice Mark 'A' was attested by them. Now the copy of the said notice is Mar 'A', It is dated 4.5.1994. According to it, the petitioners received the information six days ago and made talb-i-muwathibat and are now making talb-i-Ishhad.The notice is signed by the petitioners and is attested by the said PW-2 and PW-3. The postal receipts and A.D. receipts were produced and exhibited in evidence. Now Abdul Majid Respondent No. 2 is DW-1. He stated in the examination-in-chief that the other respondents are his brothers and they purchased the suit land. He asserted that he (i.e. the witness) did not receive any notice. In cross-examination he was confronted with the receipts and he stated that he had not received the same but he cannot say whether Abdul Qadeer, the other respondent, his brother had received the notice or not. In view of the said denial of the said respondent, the petitioners produced Habib Khan PW-6 the local Postman. He stated on oath that he was handed over six registered envelopes on 5.5.1994. He know all the three respondents personally and that they had received them and he had made the entry in the Postman Book brought by him. The copies were produced as P. J8 to P. 24. This witness was not cross-examined at all.

1. Now it stands proved that the original of the said notice Mark 'A' was duly posted and it reached the addressees i.e. the respondents.

2. Now coming to the reason for discarding entire evidence of talb-i-Ishhad.According to the learned Courts below the petitioners did not seek permission to lead secondary evidence and as such the said copy Mark 'A' is not admissible. I find that the said observations are wholly unfounded. The matter of secondary evidence is governed by Article 76 of the Qanun-e- Shahadat Order, 1984. Now the said Article 76 permits a party to give secondary evidence of the existence or contents of a document, infer alia,in the following case:-

"(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court; or of any person legally bound to produce it and when after the notice mentioned in Article 77 such person does not produce it."

Now if the requirements of his clause are met, any secondary evidence of the contents of the document is admissible. However, Article 77 lays a pre­condition for leading secondary evidence regarding the documents mentioned in the said Clause (a) of Article 76 of the Qanun-e-Shahadat Order, 1984. Under Article 77, secondary evidence of the contents of the documents in Article 76 (a) shall not be given unless the party proposing to

give such secondary evidence has previously given to- the party in whose possession or power the document is, or to his Advocate such notice to produce it as is prescribed by law. Now the proviso to the said Article 77 absolves the documents mentioned in Clauses (1) to (6) form the' applicability of the said condition of service of prior notice and the very first document so exempted is when the document is to be proved is itself a "notice."

1. I have already observed above that in the present case the service of notice under registered cover A.D. stands proved on record. It thus sufficiently appears that the respondents were in possession of the original document. Article 76 permits leading of any secondary evidence of the contents of document mentioned in the said Clause (a) while Article 77 exempts a party seeking to prove a notice from serving a prior notice in its terms. This being so, the copy of Mark 'A' was very much admissible in evidence and the learned Courts below have committed an error of jurisdiction in proceeding to discard the same on the assumption that some permission was required by the petitioners to produce the said document.

2. Having thus examined the records, I find that both the "learned Courts below have mis-read the evidence on record while proceeding to dismiss the suit of the petitioners to the extent they had the supersrt of pre-emption as held by the leaned trial Court, by discarding the said evidence oftalb-i-muwathibat as well as talb-i-Ishhad having been duly made by the petitioner.

3. This civil revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside. The suit of the. plaintiffs/petitioners is decreed in their favour and against the respondents/defendants to the extent of 12 kanals and 10 marlas detailed as follows:-

(i) Khasra Nos. 1957 and 1958 measuring 8 Kanals 19 marlas.

(ii) Khasra No. 1937 measuring 3 marlas.

(iii) 3 Kanals 8 marlas in Khasra Nos. 1912, 1928, 1931 and 1932.

(ivj Suit to the extent of the rest of the suit land is dismissed.

(v) The plaintiffs/petitioners shall make a deposit of proportionate price and incidental charges total being Rs. 1,69,,900/- in the trial Court on or before 24.11.2003. However, if they have already deposited some amount by way of zar-e-Soam, this amount will stand adjusted accordingly. In case the deposit is not made or adjusted on or before 24.11.2003, the suit shall stand dismissed with costs throughout. For the moment the parties are to left bear their own costs.

(A.A.) Revision accepted.

PLJ 2004 Lahore 586

Present: MUHAMMAD GHANI, J.

INTERNATIONAL MULTI LEASING COMPANY-Appellant

versus

CAPITAL ASSETS LEASING CORPORATION LIMITED and another-Respondents

ICA No. 14-L of 2003, decidecj on 25.11.2003.

Companies Ordinance, 1984 (XLV of 1984)--

—-S. 284 read with Ss. 285, 286, 287 and 288-Amalgamation and merger of companies-Comapnies doing same business-Economy of-Principal object-Approval of scheme of agreement for amalgamation-Evidence- Petitioners, International Multi Leasing Corporation Ltd. and Capital Assets Leasing Corporation Ltd; both filed joint petition for meeting of the members and to make the scheme of arrangement binding on them- Parties were represented by same counsel in the scheme of agreement with principal object of the scheme of merger to effect an amalgamation between companies and to dissolve company without winding up with effect from completion date and was to be renamed as Calcorp Multi Leasing Limited-Petition was accompanied resolutions of the Board of Directors of two companies-Petition was granted by sanctioning agreement and binding petitioners, members and creditors-Appellant, International Multi Leasing Company moved an application u/S. 151 C.P.C. for recall of above order-Application was dismissed-ICA filed by appellant was also dismissed assuming that by first Resolution Board of Directors had not authorised to file C.M. for recall of order-Second resolution had come into being upon sanctioning of scheme of merger/amalgamation of appellant and Respondent No. 1 had authorised "The Chief Executive" to appoint advocate for taking necessary steps including negotations/legal action in order to protect the interests of "IML Shareholder" and subsequently to inform the Board in next meeting obviously, "Chief Executive" had not authorised to file C.M. for recall of order whereby the scheme for merger/amalgamation of two companies was sanctioned. [P. 647] A

(ii) Evidence Act, 1872 (I of 1872)--

—Evidence/Additional documents appellant attempted to bring on record certain documents-ffe/d, Appellant could be permitted to introduce fresh evidence, particularly one which has come into existence after decision by learned judge, it would be opening a Pandora's box and there would be no end to litigation-Further held that parties were not entitled to produce additional evidence, whether oral or documentary, in appellate Court-­Additional evidence at appellate stage can be received only if it was deemed essential for pronouncing judgment, material already on record being not sufficient to enable appellate Court to come to a definite conclusion." [P. 647 & 648] B & C

Mr. M. Saleem Saghal, Advocate for the Appellant.

Mr. Munawar-us-Salam, Advocate for Respondent No. 1.

Messrs Abid Hussain Chattha and Faisal Maalik Buttar, Advocates for Respondent No. 2.

Dates of hearing : 16.9.2003, 2.10.2003, 6,9.10.2003, 13,15.10.2003 and 20.10.2003.

judgment

International Midti Leasing Corporation Limited (hereinafter referred to as the appellant-company) has authorized-share capital of Rs. 100,000,000.00 divided into 10,000,000 ordinary shares of Rs.10/- each, whereas its paid-up share capital in Rs. 54,000,000.00. Capital Assets Leasing Corporation Limited (henceforth called the respondent-company)' has authorized share capital of Rs. 200,0.00,000.00 divided into 20,000,000 ordinary shares of Rs. 10/- each whereas its paid-up share capital is Rs. 77,831,410.00. On 31st of March 2002 the assets of the —-Uant-company were valued at Rs. 65,661,084.00 whereas its liabilities were Rs. 13,814,091.00 while assets of the respondent-company were to the tune of Rs. 117,415,367.00 and its liabilities amounted to Rs. 107,080,563.00. Both the companies are public limited companies, and are listed on the Lahore Stock Exchange.

1. On 19.10.2002, a petition (C.O. No. 95 of 2002) under Section 284 read with Sections 285 to 288 of the Companies Ordinance, 1984, was filed jointly by the two companies through M/s Muhammad Rafiq and Fazal H. Rizwan, respectively the Chief Executive and the Company Secretary of the appellant-company and Mr. Salman Qureshi, Chairman of the respondent-company with the prayer that the Court may make:--

"(a) an order under Section 284(1) of the Company Ordinance 1984 for a meeting of the members of Petitioner No. 1 and Petitioner 2 to approve the Scheme of Amalgamation;

(b) an order under Section 284(2) of the Companies Ordinance 1984 sanctioning the Scheme of Arrangement attached as Annexure "L" hereto so as to make the said Scheme of Arrangement binding on the petitioner, their respective' creditors and members;

(c) the following orders under Section 287 of the Companies Ordinance, 1984:

(i) an order under Section 287(1) of the Companies Ordinance 1984 for the transfer to and vesting in Petitioner No. 12 of

the whole of the undertaking and business of Petitioner No. 2 together with all of the assets, properties, rights, liabilities and obligations of every description of Petitioner No. 2, more particularly described of Petitioner No. 2, more particularly described in the Scheme of Arrangement attached as Annexure "L" hereto with effect from the effective date, as defined in the said Scheme of arrangement;

(ii) an order under Section 287(l)(a) of the Companies Ordinance, 1984 for the transfer to and vesting in Petitioner No. 1 of the assets of Petitioner No. 2 including properties of all kinds whether movable or immovable, tangible or intangible, stock-in-trade, inventory, rights in leases, leasehold properties, actionable claims, book debts, advances deposits, prepayments and other receivables, loans made, investments, cash and bank balances;

(iii) an order under Section 287(l)(a) of the Companies Ordinance, 1984 for the transfer to and vesting in Petitioner No. 1 of the rights, powers, authorities and privileges of Petitioner No. 2 (including all registrations, licenses, permissions and approvals under the Leasing Companies (Establishment and Regulation) Rules 2000, all other registration, licenses, permits, categories, entitlements, sanctions and permissions relating to trading, imports and exports or otherwise concerning the investment in or carrying on of any business by Petitioner No. 2;

(iv) an order under Section 287(l)(b) of the Companies Ordinance, 1984 approving the issuance at par and allotment of 5400,000 new ordinary shares of Petitioner No. 1 credited as fully paid up shares to every registered holder of the shares of Petitioner No. 2 within 30 days from the completion date (as defined in the Scheme of Arrangement) on the basis of a swap ration of 1:1, that is, for every one ordinary share of Rs. 10/- each of Petitioner No. 2 held by a registered shareholder of Petitioner No. 2, 1 (one) ordinary share of Rs. 10/- each of Petitioner No. 1 shall be issued in the name of such registered shareholder.

(v) An order under Section 287(l)(c) of the Companies Ordinance, 1984 directing that all suits, appeals and other legal proceedings instituted by or against Petitioner No. 2 and pending immediately before the effective date (as defined in the Scheme of Arrangement) to be treated as suits, appeals and legal proceedings by or against

Petitioner No. 1 and may be continued, prosecuted and enforced by or against Petitioner No. 1 accordingly.

(vi) An order under Section 287(l)(d)' of the Companies Ordinance, 1984 directing the dissolution, without winding up, of Petitioner No. 2 on the date on which the ordinary shares of Petitioner No. 1 are allotted to the registered holders of the ordinary shares of Petitioner No. 2 or on such later date as the Hon'ble Court may prescribe.

(vii) An order under Section 287(l)(d) of the Companies Ordinance, 1984 directing that all contracts, agreements, trusts, leases, conveyances, grants and instruments of transfer entered into by or subsisting in favour of Petitioner No. 2 upon being transferred to and vested in-Petitioner No. 1 shall remain in full force and effect as if originally entered into by or granted in favour of Petitioner No. 1 instead of Petitioner No. 2, as the case may be, and that Petitioner No. 1 may enforce all rights and shall perform all obligations and discharge all liabilities arising thereunder accordingly;

(viii)An order under Section 287(l)(f) of the Companies Ordinance 1984 directing that with effect from completion date (as defined in the Scheme of Arrangement) the name of Petitioners Nos. 1 and 2 shall be changed to "CALCORP Multi Leasing Limited".

(ix) Such further order or orders as may be deemed to be just and proper to this Hon'ble Court to secure that the amalgamation of Petitioners 1 and 2 is fully and effectively carried out as proposed in the said Scheme of Arrangement.

(x) Such further order or orders as may be deemed to be just and proper to this Hon'ble Court .to secure that the amalgamation of Petitioners 1 and 2 is fully and effectively carried out as proposed in the said Scheme of Arrangement".

Since it was a joint petition, both the parties were represented by the same counsel. In the "SCHEME OF ARRANGEMENT" filed as Annex "L" with the petition the principal object of the scheme of merger, as stated, was to effect as amalgamation between the two companies, through the transfer to and vesting in the respondent-company of the whole of the undertaking and business of the appellant-company, together with all of its assets, property, rights, liabilities and obligations of every description, against allotment of fully paid-up ordinary shares of the respondent-company to the registered share holders of the appellant-company in lieu of shares held by them, and to

dissolve the appellant-company, without winding up, in accordance with the provisions of Sections 284 to 288 of the Companies Ordinance, 1984. With effect from the completion date, respondent-company was to be re-named as "CALCORP MULTI LEASING LIMITED". The scheme of arrangement was drawn up on 17th of June 2002 and hears signatures of Mr. Muhammad Rafiq, Chief Executive of the appellant-company and Mr. Salman Qureshi, Chairman of the respondent-company. The petition was accompanied hy the Resolutions of the Board of Directors of the two companies.

1. When the petition came up for hearing on 21.10.2002, notices were issued to the Security and Exchange Commission of Pakistan, and Memhers and Contributories of the two companies. In order to give wide-publicity, notices were directed to be published in the Daily "The News" and the Daily "Nawa-i-Waqt", At the same time, learned counsel who appeared to prosecute the petition was directed to file, within three days, list of creditors of both the companies, which order was duly complied with. From the order, dated 24.1.2003 passed by the learned Judge seized of the petition, it appears, direction was then sought by both the companies for holding of their Extraordinary General Meetings so that the scheme of arrangement for merger of the two companies, already approved by their Boards of Directors, could be presented before their respective members/share-holders to obtain approval. The request was allowed videorder, dated 24.1.2003 and Mr.'Zia-ud-din, Advocate, was appointed to chair meetings of both the companies in order to find out genuineness and bona fides of the scheme of arrangement for merger. Notices were also ordered to be issued to the Registrar of Companies and to the creditors of the two companies, which were also published in both the Newspapers already mentioned. Consequently, separate meetings of both the companies were held on 21.2.2003. Mr. Zia-ud-Din, who had chaired separate meetings of both the companies submitted his Reports on 24.2.2003. It was in this backdrop of events that the learned Judge allowed the petition vide order, dated 4.3.2003, operative part of which reads as follows:

"In this view of the matter there appears to be no legal impediment in granting the prayer made by the petitioner. I, therefore", grant this petition as prayed for and sanction the scheme of arrangement marked as "Annex-L" which shall be read as part of this order and binding on petitioner, their members and creditors. It is directed that the Joint Registrar of Companies, Lahore shall place all documents relating to Petitioner No. 1 and registered with him on the file maintained in relation to Petitioner No. 2 and the files relating to Petitioner No. 2 and 1 shall be consolidated accordingly.

The parties to the arrangement or other persons interested shall be at liberty to apply to this Court for any direction that may be necessary in regard to the working of the arrangement. A copy of this order shall be sent to Joint Registrar Companies, Lahore."

4.On 31st of March 2003 an application (C.M. No. 225-L of 2003) "under Section 151 CPC read with all other enabling provisions of law" was filed by the appellant-company for recall of the order, dated 4.3.2003. In the meantime, another application (C.M. No. 215-L of 2003) was filed on 27.3.2003 on behalf of the two companies by the same learned counsel who had earlier filed C.O. No. 95 of 2003, though this application .bears signatures only of Mr. Salman Qureshi, on behalf of the respondent- company. Essentially, therefore, the application was on behalf of the respondent-company. In the second application, the grievance voiced against the appellant-company was that implementation of the agreed scheme was' being obstructed by the appellant-company and accordingly, certain directions were sought for implementation of the agreed scheme of merger.

1. Notices of the two applications were given to the opposite side and, after hearing the parties, application (C.M. No. 225-L of 2003) was dismissed by the learned Judge vide the impugned order, dated 12.6.2003. However, the learned Judge simultaneously disposed of the other application (C.M. No. 215-L of 2003) of the respondent-company by giving the following further directions in conjunction with the directions, dated 4.3.2003, reproduced above:-

(i) "As consideration for the transfer to and vesting in CALCORP of the IML Undertaking, CALCORP shall issue at par and allot 5,400,000 new ordinary shares of CALCORP credited as fully, paid up shares to be allotted to every registered holders of the shares of IML on the basis of a swap ratio of one: one, that is, for every one (1) ordinary shares of Rs. 10 each of IML held by a registered shareholder of IML, 1 (one) ordinary share of Rs. 10 each of CALCORP shall be issued in the name of such registered shareholder. The aforesaid issuance and allotment of the shares shall be made by CALCORP within 30 days commencing June 20, 2003. CALCORP shall consolidate all fractional shares, sell the same on the Stock Exchange and make payment of the proportionate amounts of the sale consideration so received to the members entitled thereto. The Board of Directors of CALCORP shall comprise of seven Directors in the ratio of 4 (CALCORP) and 3 (IML) to be elected in accordance with the provisions of the Companies Ordinance, 1984 as soon as possible. As interim measure all bank accounts of CALCORP and IML shall be operated by the existing Directors of CALCORP. In future all decisions shall be taken by the Board of Directors elected as directed above.

(ii) All members whose names shall appear in the Register of Members of IML on November 15, 2002, maintained by SECP shall surrender their share certificates for cancellation thereof to CALCORP. In default, upon the new shares in the

CALCORP being issued and allotted by it to the members of IML whose name shall appear on the REGISTER OF members of IML on the date, as aforesaid, the share certificates in relation to the shares held by them in IML shall be deemed to have been cancelled.

(iii) All contracts, agreements, trusts, leases, conveyance, grants and instruments of transfer entered into by or subsisting in favour of IML upon being transferred to and vested in CALCORP shall remain in full force and effect as if originally entered into by or granted in favour of CALCORP instead of IML, as the case may be, CALCORP may enforce all rights and shall perform all obligations and discharge all liabilities arising there-under accordingly.

(iv) The debts, liabilities, claims against and the obligations of IML upon being transferred to and vested in CALCORP shall be treated- as the debts, liabilities and claims against and the obligations of CALCORP as if originally incurred by CALCORP instead of IML, CALCORP shall pay and discharge all such debts and liabilities, 'shall satisfy all such claims and shall perform all such obligations accordingly.

(v) CALCORP shall take in employment all such employees' of IML who have accepted employment with CALCORP in lieu of their employment with IML on the terms and conditions applicable to such employees at IML immediately preceding the Completion Date including the terms relating to entitlement upon termination of employment, that is; provident, gratuity and pension funds with the benefit of past employment in IML.

(vi) All suits, appeals and other .legal proceedings instituted by or against IML and pending immediately before the completion date shall be treated as suits, appeals and legal proceedings by or against CALCORP and may be continued, prosecuted and enforced by or against CALCORP accordingly.

(vii) The IML shall stand dissolved without winding up on the date on which the ordinary shares of CALCORP are allotted to the holders of the ordinary shares of IML in accordance with the scheme of amalgamation/merger. '

(viii)The entire undertaking of IML including all assets, properties, rights, the privileges, bank accounts, trade marks, patents and licenses of IML are transferred to and stand vested in CALCORP", It was further observed that the parties to the arrangement or other persons interested shall be at liberty to apply to the Court-for further directions if

need arises for working of the arrangement. It is in this background that the appellant-company has filed this Intra-Court Appeal.

1. At the very outset, Mr. Munawwar-us-Salam, learned counsel for respondent-company has raised multi-dimensional preliminary objections i.e. that the appeal against the original order, dated 4-3-2003 having been filed on 21.6.2003 was barred by 88 days and there is no application for condonation of the delay; that the subsequent order, dated 12.6.2003, passed, as it is, on an application under Section 151 CPC, is not appealable; that even if the application, dated 31.3.2003 (C.M. No. 225-L of 2003) is treated as a review petition under Order XLVII, Rule 1, CPC, no Intra-Court Appeal is competent against the order, dated 12.6.2003, whereby said application was dismissed; that the instant Intra-Court Appeal filed, as it is "under Section 10(3) of the Companies Ordinance, 1984 read with all other enabling provisions of law against the order, dated 12.6.2003" is not, at all, competent; that there is no provision in the Companies Ordinance, for "recall" of an order sanctioning an arrangement for merger/amalgamation of two companies; that where the Legislature had so intended, it has specifically made a provision to that effect in the Ordinance itself, reference to Section 319 being in point; that even if C.M. No. 225-L of 2003 is treated as an application under Section 12(2) CPC, the impugned order, dated 12.6.2003 passed thereon is not appealable, that the order, dated 4.3.2003 having been obtained by the two companies themselves, the same is a consent order and, therefore, not open to impeachment collaterally, let alone through a miscellaneous application; that the proper remedy for the party considering aggrieved of the same was to have assailed the original order, in appropriate proceedings; that the principle of estoppel being also attracted with full force to the facts and circumstances of the present case, the appellant cannot be allowed to approbate and reprobate; that the application (C.M. No. 225-L of 2003) having been filed by a wholly unauthorized person, was. not maintainable; that once the scheme for amalgamation was approved, by the statutory majority, neither any member/shareholder/creditor nor the company itself could have challenged the same, and that once the scheme had been sanctioned by the Court, it assumed finality, became a statutory instrument and was immune from challenge in any manner whatsoever. In support of his submission, learned counsel for the respondent-company made extensive reference to case-law mainly from Indian jurisdiction, and also the law laid down by our own Superior Courts, to which we shall advert while dealing with his respective submissions.

2. In reply, Mr. M. Saleem Sahgal, learned counsel for the appellant relying on PIAO GUL versus The State (PLD 1960 SC 307) and PakistanFisheries Ltd., Karachi and others versus United Bank Ltd. (PLD 1993 SC 109) contended that a party cannot be non-suited on the ground that- the provision of law under which the proceedings have been instituted has been inadvertently misquoted; that when the application (C.M. No. 225-L of 2003) was entertained by the Court, no objection was raised to its maintainability;

that by the impugned order, dated 12.6.2003, the scheme already sanctioned has been modified, specific reference having been made to clauses (iv) and (v) of the original scheme and directions at serial Nos. (i) and (ii) in the impugned order to say that the original scheme was modified; that since the' original scheme could be modified only under Section 285 of the Ordinance, C.M. No. 225-L of 2003, should have been treated and tried as a fresh application under Section 284 and the decision thereon could be taken only after complying with the entire gamut of procedure. Reliance in support of the last contention was placed on In re Comrade Bank Ltd. (PLD 1957 Dacca 554). Learned counsel for the appellant, by referring to Section 107 read with Order XLI, Rule 33 C.P.C. further argued that the appeal is a vested right; it is continuation of original proceedings and the appellate Court has the same powers which the Court of first instance possesses. On these premises, he submitted that irrespective of any technical impediment in our way, we can grant him the same relief which the learned Judge could have granted. Learned counsel for the appellant also submitted that the scheme of merger/amalgamation of the two distinct companies, members of one not being the members of the other, was beyond the pale of jurisdiction which the Court had under Part IX of the Ordinance and, therefore, the petition (C.O. No. 95 of 2002) and the consequent order passed thereon, on 4.3.2003, being wholly without jurisdiction, was non-existent and has to be ignored altogether; that even if it be assumed that before 15th of November 2002 the petition for sanctioning of a scheme for merger/amalgamation could lawfully be instituted before the Company Judge of this Court, jurisdiction of this Court was taken away as from the said date, by Ordinance No. CXXIII of 2002, whereby Securities and Exchange Commission of Pakistan (SECP) had. been invested with the exclusive power to entertain such a petition, pertaining to Leasing Companies, and that the Court simultaneously stood stripped off its jurisdiction to proceed further with the petition; that in any case, the order, dated 4.3.2003 having been obtained by concealment of material facts tantamounting to fraud and misrepresentation, it stood vitiated, and neither the bar of limitation nor the principle of estoppel, for any reason and on any ground whatsoever, could be pressed into service to save it from being challenged directly as well as collaterally.

1. In support of his submissions, learned counsel for the appellant placed reliance on Abdul Majid Ahmed Bawany v. Ill Sind Labour Court (PLD 1979 Karachi 549) in which the view taken was that an appeal is only a step in the proceedings which is not a matter of mere procedure, but a substantive right which has to be presumed till the rest of the career in litigation; that the right of appeal becomes vested as soon as an action commences and further that such right can only be extinguished if the Legislature expressly so provides or the conclusion of extinction can be justified on the doctrine of necessary intendment. These propositions are well engrafted in our case-law, but the real question in. the instant case is whether the order obtained by the appellant itself could be assailed in the

manner it had been done through C.M. No. 225-L of 2003 and whether the appeal against the order passed thereon would be competent, if the same had become barred by limitation against the original order, dated 4.3.2003. Learned counsel for the appellant submitted that C.M. No. 225-L of 2003 was competent since the appellant had challenged the very jurisdiction of the Court, and in support of his contention he relied on Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.W.F.P. and another (PLD 1995 Supreme Court 66) where at page 263 of the Report it was observed: "Further as was held in State v. Zia-ur-Rehman (PLD 1973 SC 49 at 77) if there is a dispute on the point as to whether a Court has or has not jurisdiction over a certain subject-matters it can certainly hear and determine that dispute, even if the result be that it had to hold that it has no jurisdiction'. The argument of the learned counsel, in other words, is that even if it be assumed that the order, dated 4.3.2003 was a consent order, C.M. Xo. 225-L of 2003 was competent since it sought to challenge the very jurisdiction of the Court passing the order. We may observe that question here is not what the appellant thought of the order, dated 4.3.2003, but whether the said order was, in fact, coram nonjudice. If the assumption of the appellant, howsoever innocent the same may be, is eventually found to be untenable, the question would arise whether he could take benefit of wholly incompetent proceedings to avoid the rigours of law of limitation, as has been argued by the learned counsel for the respondent-company. Mr. Sahgal further submitted that even if exception to the jurisdiction of the learned Judge was not taken before him, the appellant could still, in these-proceedings, throw challenge to the same in view of the decision of the Supreme Court in Shagufta Begum v. the Income-Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 Supreme Court 360) where it was held "that a plea regarding assumption of jurisdiction by a Tribunal or a Court is available to a litigant even when appearing before the highest Court in the country". He also relied on Muhammad Hayat v. Additional District Judge 1st., Okara and 2 others (PLD 1990 Lahore 350) where a Civil Judge, not invested with the powers of a Guardian Judge under the Guardian and Wards Act (No. VIII) of 1980, had dealt with a guardianship petition, the High Court declared the order without jurisdiction by observing that in a case of total lack of jurisdiction and proceedings being coram non judice objection could be raised at any stage. Learned counsel for the appellant relied on Brother Steel Mills Ltd. and others vs. Mian Ilyas Miraj and 14 others (PLD 1996 Supreme Court 543) to contend that the jurisdiction which the High Court exercises under the Companies Ordinance is original civil jurisdiction and the proceedings are of civil nature to which the Code of Civil Procedure is applicable by virtue of the provisions contained in its Section 117. In the cited case, it was inter alia held that the proceedings under the Ordinance are initiated in the High Court as a Court of first instance; that while exercising such jurisdiction it has the characteristics and attributes of original jurisdiction; that in view of the provisions of Section 15 of Ordinance (No. X) of 1980 which was an exception to Section 3(3) of the Law Reforms

Ordinance, an Intra-Court Appeal against interlocutory orders made by a Single Judge of the High Court in exercise of his original civil jurisdiction was competent. On these premises, it was contended by the learned counsel for the appellant that this Intra-Court appeal was competent. There can be no cavil with the propositions of law hereinbefore mentioned, but the questions involved in this case are somewhat different, i.e., whether the order, dated 4.3.2003 having been passed inter alia on appellant's own motion and with its consent was appealable and, if so, whether the appeal there-against is not barred by limitation, the time consumed in seeking its review/recall notwithstanding, 9. Learned counsel for the appellant also argued that the original impugned order, dated 4.3.2003 passed by the learned Single Judge was illegal and without jurisdiction. Reference was made to Section 287 of the Companies Ordinance, 1984, to contend that the power of the Court to sanction the compromise or arrangement of amalgamation was not absolute, but was hedged in by the condition that the scheme of a compromise or arrangement of amalgamation proposed should be between a company and any such persons as are mentioned in Section 284 of the Ordinance viz; ."between company and its creditors, or any class of. them, or between the company and its members or any class of them". Learned counsel interpreted Section 284 to mean that if there are two distinct and separate companies, members of one company having no interest in the other company, the' Court has no power to sanction the scheme of merger/amalgamation. According to him, his submission was fortified by the fact that since there was no provision for merger/amalgamation of two independent leasing companies, members/share-holders of one company not being members/share-holders of the other company, necessity was felt by the Legislature itself to supply the omission in the form of Ordinance No. CXXIII of 2002 whereby Chapter VIII-A was added on 15.11.2002, according to which the power to sanction the scheme lay with the Security and Exchange Commission of Pakistan, and not with the "Court" as defined in the Companies Ordinance and, therefore, during pendency of the petition (C.O. .95 of 2002) jurisdiction of this Court stood ousted. He supplemented his argument by saying that though there exists no such provision in the Companies Ordinance for amalgamation of two distinct companies, such provisions did exist "in Sections 47 and 48 of the Banking Companies Ordinance, 1962 about Non-Banking Financial Companies (NBFCs) and that when the Legislature became conscious of this omission in the Companies Ordinance, Chapter VIII-A was enacted by Ordinance No. CXXIII of 2002. In nutshell, the argument of Mr. Sahgal is that the original order, dated 4.3.2003 being coram nonjudice, wholly void and an absolute nullity, the appellant was entitled ex debito justitiaeto have it set aside through C.M. 225-L of 2003, whatever be the nature thereof and, therefore, bar of limitation could not be pressed into service so far as his appeal is concerned.. Learned counsel for the appellant also argued that as shown in the

application (C.M. No. 225-L of 2003), the order had been obtained by fraud and misrepresentation, and since fraud vitiates even the most solemn proceedings, the order, dated 4.3.2003, could not be held to be clothed with finality and, therefore, C.M. No. 225-L of 2003 as well as the instant appeal, being a continuity thereof, were competent and no question of limitation arose. The last limb of his argument was that by the sanction of the scheme of merger/amalgamation, the appellant-company and, in the ultimate analysis, its members/share-holders are suffering a continuing wrong and, therefore, on the principle of de die in diem, there can be no question of any limitation or estoppel.

1. Arguments advanced by the learned counsel for the respondent- company as to the maintainability of this appeal, and conversely the contentions raised by the learned counsel for the appellant-company cannot be adequately attended to, without going into merits of the case. In the circumstances, it will be appropriate to proceed with the appeal on merits as the question of maintainability of the appeal is inter-linked with the objections raised by the learned counsel for the respondent-company.

2. In order to appreciate the aforementioned contentions of the learned counsel for the parties, we would like to reproduce hereunder. Sections 284 and 287 of the Companies Ordinance, 1984, for facility of reference:-

"284. Power to compromise with creditors and members:--(l)

Where a compromise or arrangement is proposed between a company and its creditors or any class of them, or between the company and its members or any class of them, the Court may, on the application in a summary way of the company or of any creditor or member of the company or, in the case of a company being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members of the company or class of members, as the case may be, to be called, held and conducted in such manner as the Court directs.

(2) If a majority in member representing three-fourths in value of the Creditors or class of creditors, or members, as the case may be, present and voting either in person or, where proxies are allowed, by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the Court, be binding on all the creditors or the class of creditors or on all the members or class of members as the case may be, also on the company, or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company.

Provided that no order sanctioning any compromise or arrangement shall be made by the Couit unless the Court is satisfied that the company or any other person by whom an application has been

made under sub-section (1) has disclosed to the Court, by affidavit or otherwise, all material facts relating to the company, such as the latest financial position of the company, the latest auditor's report on the accounts of the company, the pendency of any investigation proceedings in relation to the company and the like.

(3) An order made under sub-section (2) shall have no effect until a certified copy of the order has been filed with the registrar within thirty days and a copy of every such order shall be annexed to every copy of the memorandum of the company issued after the order has been made and filed as aforesaid, or in the case of a company not having a memorandum to every copy so issued of the instrument constituting or defining the constitution of the company.

(4) If a company makes default in complying with sub-section (3), the company and every officer of the company who is knowingly and willfully in default shall be liable to a fine which may extend to five hundred rupees for each copy in respect of which default is made.

(5) The Court may, at any time after an application has been made to it under this section, stay the commencement or continuation of any suit or proceeding against the company as such terms thinks fit a proper until the application is finally disposed of.

(6) In this section the expression "company" means any company liable to be wound up under this Ordinance and the expression "arrangement" includes a re-organization of the share-capital of the company by the consolidation of shares of different classes or by the division of shares or by both those methods, and for the purposes of this section unsecured creditors who may have filed or obtained decrees shall be deemed to be of the same class as other unsecured creditors".

"287. Provisions for facilitating and amalgamation of companies.--(l) Where an application is made to the Court under Section 284 for the sanctioning of a compromise or arrangement proposed between a company and any such person as are mentioned in that section, and it is shown to the Court that the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any two or more companies or the division of any company into two or more companies, and that under the scheme the whole or any part of the undertaking property or liabilities of any company concerned in the scheme (in this Section referred to as a "transferor company") is to be transferred to another company (in this section referred to as "the transferee company"), the Court may, either by the order sanctioning the compromise or

arrangement or by any subsequent order, make provision fcv all or any of the following matters, namely:--

(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company.

(b) the allottment or appropriation by the transferee company of any shares, debentures, policies, or other like interests, in that company which" under the compromise or arrangement are to be allotted or appropriated by that company to or for any person;

(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;

(d) The dissolution, without winding up, of any transferor, company;

(e) The provision to be made for any persons who, within such time and in such manner as the Court directs, dissent from the compromise or arrangement;

and

(f) Such incidental consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation is fully and effectively carried out.

(2) Where an order under this section provides for the transfer of property or liabilities, that property shall, by virtue of the order, be transferred to and vest in, and those liabilities shall, by virtue of the order, be transferred to and become the liabilities of, the transferee company, and, in the case of any property, if the order so directs, freed from any charge which, is, by virtue of the compromise or arrangement, to cease to have effect.

(3) Where an order is made under this section every company, in relation to which the order\ is made shall cause a certified copy thereof, to be delivered to the registrar for registration within thirty days after the making of the order, and if default is made in complying with this sub-section, the company and every officer of the company who is knowingly and willfully in default be liable to fine which may extend to one thousand rupees.

(4) In this section the expression "property" includes property, rights and powers of every description, and the expression "liabilities" includes duties.

(5) In this section the expression "transferee company" does not include any company other than a company within the meaning of this Ordinance, and the expression "transferor company" includes any body corporate, whether a company within the meaning of this Ordinance or not".

1. An arrangement in the nature of amalgamation is the result of an agreement between the amalgamating company and its members, as well as a corresponding agreement between the transferee-company and its members, and the result of amalgamation is the absorption of one company with another, or by merger of the two to create the third. In other words, amalgamation of a company with another or an amalgamation of two companies to form a third is brought about by two parallel schemes of arrangements entered into between one company and its members and the other company and its members and the two separate arrangements bind all the members of the companies as well as the companies themselves, when sanctioned by the Court. Amalgamation is, therefore, an absorption of one company into another or merger of both to form a third, which is not a mere act of the two companies or their members but is brought about by virtue of a statutory instrument and to that extent has statutory genesis and character, and to that extent it is distinguishable from a mere bilateral arrangement to merge or join in a common endeavour, undertaking or enterprise. In the instant case, it was undoubtedly an arrangement between the transferee-company and its members, because the transferee-company is taking not only the assets and liabilities of the transferor-company, but also inducting more shareholders. As far as the question of amalgamation is concerned, both the companies stood on the same footing because the two companies were amalgamating and forming into one company, though with a different name. Doubtless, in view of the language employed in the afore-quoted Section 287, on the principle of legislation by reference, the words "its creditors or any class of them,, or between the company and its members or any class of them" as used in Section 284 (1) must be imported into Section 287(1) and substituted in place of the words "and any such person as are mentioned in that section" occurring between the word "company" and the word "and". Even after import of the said words of Section 284 into Section 287, the plain reading of Section 287 means that any scheme of compromise or arrangement for amalgamation of any two or more companies must be. between the company and is creditors or any class of them, or between the company and its members or any class of them. It is a cardinal principle of interpretation of statutes that if the language is clear and admits of neither any ambiguity nor more than one meaning, the same has to be given effect to without adding any words thereto or subtracting any words therefrom. The Legislature has not deemed fit to impose any limitation in terms, and we see no reason for implying any. There is inherent evidence in Sections 284 and 287, read together, to find out who can-move the Court to consider a scheme of compromise or arrangement inter alia for the purpose of

merger/amalgamation of two or more companies. Sub-section (1) of Section 284, in no uncertain terms, provides that an application can be made by the company or a creditor of the company, or a member of the company, or, in the case of winding up, by the liquidator. The Legislature having carefully enacted Sections 284 and 287 conferred power on specified persons to move the Court. If the Legislature wanted to disqualify two distinct companies from invoking jurisdiction of the Court under Section 287, one would have expected clear exposition of legislative intendment in Section 287. There being no ambiguity in the provisions of Section 287, nothing more can be read in it than what is stated therein. Any attempt at mutilating it would be tantamount to doing violence to the plaint, clear and unequivocal language of Section 287. In our view, the construction put forth one, and the limitations, assumed in Section 287 by Mr. Sahgal are difficult concede because we cannot see anything in the Section which justifies his submission. Therefore, the first contention of Mr. Sahgal that an application of merger/ amalgamation of these two companies could no be entertained under Section 287 without meeting the requirement of Section 284, has no merit.

1. In support of his submission that the joint petition (C.O. No. 95 of 2002) filed on behalf of the two companies i,e. the transferor and the transferee companies (appellant and Respondent No. 1 herein) was not competent and the assumption of jurisdiction by the learned Judge and his consequent order, dated 4.3.2003 sanctioning the scheme, in the absence of two independent petitions by the companies, was illegal and without jurisdiction, learned counsel for the appellant relied on Electro Carbonium P. Ltd., and Electric Materials Co. P. Ltd., [1979 49 Comp Cas 825] wherein the Karnatka High Court had held that separate petitions by the transferor company and the transferee company must be filed. This judgment was considered by the Delhi High Court in Mohan Exports Lundai Ltd., In re : [(1999) 95 Comp. Cas. 53] and was not followed, by observing as follows:-

"I have gone through the judgment and find that no reasons have been given as to why there should be separate petitions by two such companies when the subject-matter for decision is the same as to whether a particular scheme of compromise or amalgamation or arrangement ought or ought not to be sanctioned by the Court. Neither prohibits the filing of a joint petition by the two companies when the subject-matter is the same and common questions of fact and law would arise for decision."

Under Order I, Rule 1 of the Code of Civil Procedure all persons may be joined in one suit as plaintiffs where any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, in such persons whether jointly, severally or in the alternative and if such persons brought separate suits any common question of law or fact would arise. I may mention that the provisions or Order I, Rule 1 of the Code of Civil Procedure

were not considered in the case of Electro Carbonuim P. Ltd., In re and Electric Materials Co. P. Ltd., In Re: [(1979) 49 Gomp Cas 825 (Karanatka)] so, I hold that a joint petition is maintainable by the transferor and the transferee companies."

The objection of Mr. Saghal that a joint petition by the two companies was not competent must, therefore, fail.

1. Another argument of the learned counsel for the appellant based on addition of Chapter VIII-A vide Ordinance No. CXXIII may be attended to. His emphasis was on Section 282-L wherein specific provisions were, made "for amalgamation of NBFCs" which included leasing companies as well. He maintains that assuming, without conceding, that this Court had the jurisdiction under Sections 284 to 287 of the Ordinance to entertain a scheme for merger/amalgamation even of two leasing companies, it stood divested of its jurisdiction with the change of the forum and the SECP could alone after 15.11.2002 deal with the matter. In this context, his precise submission was that after 15th of November 2002, no parallel jurisdiction could be conceived of in the Court as well as in the SECP. In support of this submission, learned counsel for the appellant relied on Chief AdministratorofAuqaf, Punjab v. Allah Ditta and another (19.90 CLC 821) wherein dealing with an ouster clause in Act LVI of 1976, it was observed as follows:--

"The scheme of the Act visibly demonstrates its clear intent that the remedy specified in the special legislation was exclusive and not concurrent. In view of the nature of the property and the issues involved for determination, it was thought fit to confer exclusive jurisdiction on the District Court to decide whether the property taken over was waqf or not and this matter was not left for decision by the ordinary Civil Courts. Parallel litigation in different forums was not contemplated. Term 'jurisdiction' which refers to the legal authority and the competence of the Court to administer justice is conferred by law only. It can neither be conferred nor taken away by consent of parties. Even submission shall not confer jurisdiction where it does not exist. Provisions in the Act LVI of 1956 later substituted by parallel provisions in Punjab Waqf Properties Ordinance, 1979 gave clear indication that jurisdiction of ordinary Civil Courts was expressly barred by a special remedy provided in Section 7 of the Act. In this view, it is difficult to uphold the views expressed by the.Courts below about their jurisdiction over the subject matter in dispute."

Reliance jAras also placed on Riazul Hassan vs. Hidayat Ullah (PLD 1975 Lahore 841).

1. Section 282-L in Chapter VIII-A, added by the Amending Ordinance of 2002, which is the foundation of the argument of the learned counsel for the appellant, is reproduced for facility of reference:—

"282-L: Procedure for amalgamation of NBFCs...(l) Without prejudice to the provisions contained in Part IX of this Ordinance. NBFCs may be amalgamated with each other provided a scheme containing the terms of such amalgamation has been placed in draft before the share holders of each of the NBFC concerned separately, and approved by a resolution passed by a majority in number representing two-thirds in value of the share-holders of each of the said NBFCs, present either in person or by proxy at a meeting called' for the purpose, (2) Notice of every such meeting as is referred to in sub-section (1) shall be given to every share-holder of each of the NBFC concerned in accordance with the relevant articles of association, indicating the time, place and object of the meeting, and shall also be published at least once a week for three consecutive weeks in not less than two newspapers which circulate in the locality or localities where the registered offices of the NBFCs concerned are situated, one of such newspapers being in a language commonly understood in the locality or localities.

(3) Any share-holder, who has voted against the scheme, or amalgamation at the meeting or has given .notice in writing at or prior to the meeting to the NBFC concerned or the presiding officer of the meeting that he dissents from the scheme of amalgamation, shall be entitled, in the event of the scheme being sanctioned by the Commission to claim from the NBFC concerned, in- respect of the shares held by him in that NBFC, their value as determined by the commission when sanctioning the scheme and- such determination by the Commission as to the value of the shares to be paid to dissenting shareholder shall be final for all purposes.

(4) If the scheme of amalgamation is approved by the requisite majority of shareholders in accordance with the provisions of this section, it shall be submitted to the Commission for sanction and shall, if sanctioned by the Commission by an order in writing passed in this behalf be binding on the NBFCs concerned and also on all the share-holders thereof.

(5) Where a scheme of amalgamation is sanctioned by the Commission under the provisions of this section, the remaining or resulting entity shall transmit a copy of the order sanctioning the scheme to the registrar before whom the NBFC concerned has been registered, and the Registrar shall, on receipt of any such order, strike off the name of the NBFC hereinafter in this.section referred to as the amalgamated NBFC which by reason of the amalgamation will cease to function.

(6) On the sanctioning of scheme of amalgamation by the Commission, the property of the amalgamated NBFC shall, hy virtue of the order of sanction, be transferred to and vest in, and the liabilities of the said NBFC shall, by virtue of the' said order be transferred to and become the liabilities of the NBFCs which under the scheme of amalgamation is to acquire the business of the. amalgamated NBFC, subject in all cases to the terms of the order sanctioning the scheme."

1. The original petition (C.O. No. 95 of 2002) for sanction of scheme of merger/amalgamation was instituted in this Court on 19th of October 2002, well before promulgation of Ordinance CXXIII of 2002 w.e.f. 15th of November 2002. It was thus a pending proceeding. In the circumstances, the question arises whether the Court stood denuded of its jurisdiction to deal with the matter as from 15th of November 2002 and whether the petition stood transferred to the SECP. Sections 284 to 287 fall within Part IX of the Ordinance. The saving clause in Section 282-L viz"Without prejudice to the provisions contained in Part IX of this Ordinance" is the essence of the legislative intent and makes the- expression free from any shade, obscurity or hideness. It is settled law that if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The language of a statute cannot be strained to make it apply to a case to which it does not apply. The expression "without prejudice" was considered by the Sindh High Court in Ardheshir Cowasjee and others v. K.B.C.A, and others(2001 YLR 2403). Objection to the maintainability of the petition, which was in the nature of a public interest litigation, was raised on the ground that such a petition could be filed only under Article 184(3) of the Constitution, before the Hon'ble Supreme Court. Relying on the language employed in Clause (3) of Article 184, viz "Without prejudice to the provisions of Article 1.99" it was held that the powers available to the High Court under Article 199 were inact. We have, therefore, no doubt in our mind that the power conferred on SECP under Section 282-L: is in addition to, and not in derogation of the power of the "Court" under Sections 284 to 287 of the Ordinance.

2. The matter may be looked at from yet another angle. Incorporation of Leasing Companies, beyond a reasonable size, had to be taken care of, firstly by the Corporate Law Authority and then by the Security and Exchange Commission of Pakistan, by framing Rules regulating their working. Section 282-L, appears to have been enacted so that in view of the increase in the paid-up share capital of leasing companies to Rs. 200 million, a large number of such companies may not be in a position to make good the deficiency and, per force, will have to resort to merger/amalgamation with each other to meet with the requirements of the Rules, another forum was provided. We are fortified in this view by the fact

that in the Amending Ordinance, there is no provision for transfer to the SECP the proceedings pending in the Court on 15th of November 2002 when Chapter VIII-A, containing Section 282-L, was inserted in the Companies Ordinance.

1. There is yet another aspect of the matter. Whereas the regulatory and, if we may say so, disciplinary powers qua Non-Banking Financial Companies, including leasing companies have been entrusted to the care of SECP, the more stringent powers of winding-up of NBFCs, restoration of illegal benefits and gains derived and properties acquired by any person, being the Chairman, Director, Chief Executive, Official Liquidator or any officer of a NBFC whether in his own name or in the names of his family members, by mis-managing the affairs of the NBFC or misuing his position, and trial of offences and consequent punishment in the form of imprisonment or fine, still remain vested in the Court, particularly in view of the provisions contained in Section 282-JC3) and 282-K(l) and (3) of Chapter VIII-A itself.

2. The next argument of the learned counsel for the appellant based on transfer of jurisdiction to the SECP has no merit in view of our finding that notwithstanding insertion of Chapter VIII-A to the Companies Ordinance, jurisdiction of this Court remains intact. This question has recently been dealt with, rather exhaustively, by this Court in Writ Petition No. 1681 of 1999 decided on 31st of January 2003 by observing as follows:

"The question of transfer of jurisdiction from one forum to another and the effect thereof has often been debated before the superior Courts. Broadly the consensus has been that change of forum pertains to the domain of procedure and a procedural. law is' retroactive in operation unless by express letter or necessary intendment a contrary intention is expressed in the said law. On the first sight it looked as if the judgment of the learned Additional District Judge, was in accordance with law and is supported by the judgment of this Court in Riaz-ul-Hassan's case (PLD 1975 Lahore 841). However, on deeper examination of the issue I am of the view that if on the date of institution of the suit, the Civil Court had the jurisdiction, then unless expressly ousted, the Civil Court, will continue to have the jurisdiction. I have examined the Rent Ordinance but could not notice that there was any provision in the said Ordinance whereby a pending case of ejectment stood transferred to the Rent Controller. It may also be observed that change of forum where proceedings earlier taken are continued and transfer of jurisdiction which may have the effect of nullifying the proceedings pending before the competent forum have to be clearly distinguished. In case of change of forum without nullifying the proceedings already taken the principle that procedural law applies with retrospective effect may be accepted as a rule, because it does

not cause prejudice to any party. However, retroactive application of a procedural law which has the effect of destroying the proceedings taken by a competent forum has to be differently viewed because of. its inherent vice to put the parties to another round of litigation before a new forum. All possible efforts are to be made that an interpretation which promotes public good is to be preferred so as to avoid an evil consequence. Multiplicity of litigation is undoubtedly a vice which is not in public good. With reference to this case it may be observed, that from the order of the learned trial Court it appears that the proceedings had concluded and the case was fixed for arguments when Respondent No. 2 sought rejection of the plaint on tlie ground of applicability of the Rent Ordinance. The effect of the orde,r passed by the revisional Court is that proceedings taken before the Civil Court stand nullified and the petitioner will have to initiate proceedings before the learned Rent Controller afresh. The judgment in the case of Riaz-ul-Hassan relied upon by the learned revisional Court has been examined by me. In the said case, the learned Rent Controller was seized of an ejectment petition in the area which was urban. During the pendency of the said petition, the Governor of West Pakistan declared area as rural. The learned Rent Controller dismissed the ejectment petition of the landlord on the ground that the jurisdiction of the Rent Controller stood ousted. This order was interfered with by learned First Appellate Court on the basis of the observations in E.M.D. v. Mir Zaman (PLD 1960 Karachi 962). This Court came to the conclusion that the order passed by the learned Rent Controller was in accordance with law. If was observed that doctrine that the state of things existing at the time of institution of the suit is • sufficient to determine the jurisdiction had no application where question is one of the jurisdiction over the subject matter. Such jurisdiction must exist throughout the proceedings. It may be observed that in the said case jurisdiction of the learned Rent Controller stood ousted. Jurisdiction on a special tribunal is conferred by a statute and could be taken away by a statute but the Civil Courts are Courts of plenary jurisdiction and if on the date cognizance of a suit is taken with jurisdiction, it could only be taken away by express letter of law or clear intendment. Therefore, Section 13 impliedly ousting the jurisdiction of the Civil Court in this case could not be applied with retrospective effect so as to undo the proceedings lawfully taken by the learned Civil Court. The question came'under consideration in Kailashnath Gurtu, Applicant vs. Harishchandra and another, (AIR 1953 M.B. 13). In the said case suit for determination of fair rent was filed before the Civil Court under an existing law which was substituted by another law under which such a suit was not maintainable before the Civil Courts. The learned Civil Court returned the plaint for presentation before the proper Court and the

said order was concurred by the learned First Appellate Court. The Madhya Madia Bharat High Court reversed the said orders with the observation that the relevant provisions of the latter legislation did not take away the jurisdiction of the Civil Court in a case filed before the commencement of the said Act. The judgment was based on the rule laid down in "C.P. Benergy vs. B.S. Irani (A.I.R. 1949 Bombay 182) which in turn was based on Venugopala us. Krishna Sawami. (AIR 1943 F.C. 24) and the observations made by the learned Bombay High Court were as follows:

"These observations of the Federal Court are enough to show that when an action has been rightly instituted in a Court which had jurisdiction to entertain it, would require strong and distinct word to defeat such vested right which has accrued to the litigant".

On the basis of the judgments of the Federal Court and the Bombay High Court the Madhya Bharat High Court made the following observations:

"(8) There is nothing in Section 23 to show that the right to continue an action which has been rightly commenced has been taken away. Section 10 imposes two restrictions, one is that after the Act becomes operative suit for the decision of the fair rent shall be instituted in no other Court except that of t'he Rent Controller, second is that no decree passed after this Act comes into force, can be executed if it is contraiy to or inconsistent with any decision regarding rent given under this Act. These restrictions do not take away the jurisdiction of the Civil Court to try a suit filed before the commencement of the Act; In both these sections, I find no strong and distinct words to defeat the vested right of the litigant to continue his action which has been rightly commenced; nor do I find anything in these sections which would induce me to hold that the legislature impliedly intended to take away the jurisdiction of the Civil Court in such matters.

The issue came up before this Court in National Bank of Pakistan vs. Taj Muhammad (PLD 1984 Lahore 417). In the said case a suit filed before the Civil Court by the Bank was decreed ex-parte on 29.6.1982. Having failed to get the ex-parte decree set aside the defendant filed an appeal which was accepted and the case was remanded. After remand, the learned Civil Judge referred the case to the District Judge for disposal under the impression that District Court Gujranwala alone had the jurisdiction in the matter on account of amendment made in the Banking Companies (Recovery of Loans) Ordinance (No. XIX of 1979) by Ordinance II of 1983. The learned Additional District Judge, dismissed the application for setting aside the ex-parte decree, but modified the decree on the statement of the defendant in the suit by permitting him to repay the loan in 12 installments and also remitted interest. The said judgment was assailed before this Court and the question before this Court was whether the learned Additional District Judge, had the

jurisdiction in the matter. A Division Bench of this Court found that according to the position at the time of promulgation of Ordinance No. XIX of 1979 suits for bank loans for a sum of Rs. 1 lac or less were entertainable by a Civil Court of competent jurisdiction and appeals against their decree lay to the learned District Court or this Court depending on the jurisdictional value of the suit. However, under Ordinance II of 1983 all suits for recovery of bank loans of any amount could be heard by the learned District Judge/Additional District Judge notified as a Specified Court. This Court held that the Civil Judge should have disposed of the matter to whom the case was remanded by the learned District Judge. While deciding the said case this Court was of the view that the amendment made in Ordinance XIX of 1979 by Ordinance II of 1983 regarding the change of forum could not be applied with retrospective effect and the following observations were recorded:

"The case in hand was, however, a pending case and it is to be examined whether the said amendment in law was retrospective in nature and affected the said pending case or not. Normally procedural amendments including those purporting to transfer jurisdiction over certain causes of action operate retroactively but when the new forum makes the remedy provided inconvenient, the Courts are not inclined to treat the procedural amendment to be retrospective in effect. Reference in this connection is invited to Adrian Afzal v. Captain Sher Afzal (PLD 1969 SC 187) wherein it was observed by the Supreme Court that if giving of retroactive operation to procedural provisions causes inconvenience, then Courts will not even in the case of a procedural statute favour an interpretation giving retrospective effect to the Statute.

The question was also considered by a Division Bench of this Court in Muhammad All v. The State (PLD 1980 Lahore 195) in which it was observed that a procedural change brought about by new law is to be treated as retrospective. However, a case in which even procedural change in forum affects the existing rights of the parties, retrospective operation cannot be construed. In reaching this conclusion the following observations in AlafDin vs. Shaukat Ali (PLD 1969 Peshawar 62) were relied upon:-

"Whenever the change of forum is in addition to dealing with purely procedure, and it also affects the existing rights of the parties, as to the continuance or culmination of certain proceedings in the existing forums, the change of forum may not be retrospective unless it is made retrospective by clear words used or clear intendment shown in the amending (underlining is mine) Act. For. example, where the remedies, available in the earlier forum or, against the decisions of the earlier forum, are more substantial or are more in number than the remedies provided in or against the decisions of the new forum, the change of forum would affect the rights of the parties. Therefore, the change of forum in such a situation, will not only be mere procedural matter but something more than that, and thus will not

be retrospective."

The question also came up before the Hon'ble Supreme Court in Muhammad Bashir and 2 others vs. Muhammad Firdous and another (PLD 19SS SC 232). In the said case ejectment petition filed by the landlord was dismissed by the learned Rent Controller on 18.7.1984. The appeal filed by :he landlord before the District Court was allowed on 8.3.1985. However, before the decision of the appeal, the forum of appeal against the order passed by the Cantonment Rent Controller was changed and appeal lay before this Court by virtue of an amendment in the Cantonment Rent Restriction Act. The tenant filed a writ petition which was dismissed on merits. It was argued before the Hon'ble Supreme Court that the learned District Judge, had no jurisdiction in the matter because of the change of the forum of appeal. The argument was repelled and the following observations of the Hon'ble Supreme Court in Adnan Afzal's case (PLD 1969 SC 187) was reiterated:

"Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation' causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute."

Although the case of Muhammad Bashir supra related to right of appeal, but right to sue, although inchoate, is a valuable right and, therefore, the provisions of Section 13 of the Rent Ordinance giving exclusive jurisdiction to the learned Rent Controller could not be applied retrospectively because it would result in manifest inconvenience, injustice and bring about multiplicity of litigation".

Besides, in Malik Gul Hassan and Co. v. Allied Bank of Pakistan (NLR 1996 Civil (S.C.) 153) a suit for recovery of Rs. 18,45,721/- filed by the Bank before the Special Banking Court which, at that time was presided over by a Judge of the High Court, constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979, was decreed, and an appeal there-against was also dismissed by the High Court. In the Supreme Court, the contention raised was that the change in the jurisdiction brought about by the Banking Companies (Recovery of Loans) (Amendment) Act (No. XVII of 1992) whereby the words "ten millions" were substituted in Clause (f) of Section 2 of the Ordinance in place of "one million" thereby enhancing the pecuniary jurisdiction of the High Couit as a Special Court under the Ordinance in respect of suits relating to bank loans and, therefore, all suits, pending in the High Court in which the value of the subject matter was less than Rs. 10.00 million could not be tried, and were to be transferred to Special Courts having jurisdiction in the matter, was procedural and operated retroactively so as to make the proceedings before the Special Court

presided over by a Judge of the High Court without jurisdiction. Relying on the earlier decisions reported as Muhammad Ishaq v. The State (PLD 1956 S.C. (Pak) 256), State v. Maulvi Muhammad Jamil and others (PLD 1965 S.C. 681), Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362), AdnanAfzal v. Capt. SherAfzal (PLD 1969 SC 187), Ch. Safdar Ali v. MalikIkram Elahi & another (1969 SCMR 166), Hafiz Muhammad Abdullah v. Imdad Ali Shah and another (1972 SCMR 173), Bashir v. \Vazir Ali (1987 SCMR 978), Mst. Yasmin Nighat and others v. National Bank of Pakistan and others (PLD 1988 S.C. 391), Habib Bank .Ltd. v. Messrs Aulia Engineering and others (1993-CLC 154) and Office Reference No. 259 of 1974 etc. (PLD 1994 Karachi 258), it was held that the change of forum,. pecuniary or otherwise, is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice. The contention that although pecuniary jurisdiction had been enhanced, the High Court was competent to continue with the hearing of the case was repelled by observing that any statute, which enhances or reduces the pecuniary jurisdiction of a Court or provides a forum other than the one, where the case is pending falls within" the category of procedural law and if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, it will be governed by the principles stated above, subject to the exception that if in this process any existing rights are affected or the giving of retrospective operation causes inconvenience or injustice or prejudice to a substantive right, then the Court will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. In Aftabuddin Qureshi and others v. Mst. Rachel Joseph (PLD 2001 Supreme Court 482) after referring to Adnan Afzal v. Sher Afzal (PLD 1969 SC 187), The Colonial Sugar Refining Company Limited v. Irving (1905 A.C. 369), Joseph Suche & Company Limited [(1985) 1 Ch. D. 48] and State v. Maulvi Muhammad Jamil and others (PLD 1965 Supreme Court 681) it has been held that "when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such •rights". It was further held as follows:

"A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future. It is only if it be more than a mere matter of procedure, i.e. if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in a giving a successful challenge to the retrospective effect of the new Act. In Nabi Ahmed's case (supra), this Court laid down the principle of law that rights of the parties

arising from facts which come into existence before the passing of a statute should be presumed to be unaffected by it, unless it is expressly or by necessary implication made retrospective."

Recently, in Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050), it has been held that:

The statutes relating to the remedies and jurisdiction of the Courts, Tribunals and Authorities are considered procedural in character and subject to rights of parties may take retrospective effect but if retrospectively of a statute affects the substantive rights and causes injustice in such rights, the Courts by taking exception to the general rule of interpretation of statutes that the procedural law regulating the remedy and jurisdiction of the Courts and the authorities operates retrospectively, may not accept its retrospectivty."

1. We would, therefore, hold that in the absence of an express provision, or an obvious legislative intendment, that the proceedings already pending before Company Judge of this Court stood transferred to SECP, the petition (C.O. No. 95 of 2002) was rightly dealt with by the learned Judge. In the view of the matter we take, the contention of the learned counsel for the appellant fails and is hereby repelled.

2. The next contention of the learned counsel for the appellant is that the three-fourth majority postulated by Section 284(2) of the Ordinance means three-fourth of the total number of members or class of members of the company, which was lacking and, therefore, the approval of the scheme was not in accordance with law. We cannot subscribe to this submission of the learned counsel for the appellant. Three fourth majority of the creditors or members prescribed by sub-section (2) of Section 284 of the Ordinance has no reference to the total number of creditors or members, but is referable to those who are present at the meeting and are voting. Even a member who, though present at the meeting, does not vote for or against, but remains neutral, is not to be taken into consideration. While interpreting a similar language in sub-section (2) of the Section 391 of Indian Companies Act of 1956, as is used in sub-section (2) of Section 284 of our Ordinance, the following view was taken in In re: Hindusthan 'General ElectronicCorporation Ltd. (AIR 1959 Caluctta 1079):

"There can be no doubt that these words and voting have been introduced with a purpose and it appears to me that the intention of the framers of this section was that the majority of the three-fourth value must be of persons who were present and who took part in the voting. Mere presence would not be enough".

The aforementioned decision was appealed against and was affirmed by a Division Bench in Hindusthan Commercial Bank Ltd. v. Hindusthan General Electric Corporation Ltd. (AIR 1960 Calcutta 637) by observing:

"The majority required hy Section 391(2) is the majority in number representing three-fourth in value of the class of members present and voting at the meeting."

1. Learned counsel for the appellant then contended that the order sanctioning a scheme of merger/amalgamation cannot he held to be immune from challenge, since the element of dishonesty was apparent on the face of the record. Mr. Sahgal referred to a decision of Special Bench of three Judges, reported as Madan Gopal v. Peoples Bank of Nothern India Ltd.(AIR 1935 Lahore 779) wherein it was observed that it is the duty of the Courts to see that Directors and other officers of limited liability companies cany out their duties honestly and to punish them if they do not; that the rule that the opinion of the creditors and share-holders should be followed, as generally applied in English should not apply so strictly to India; that, limited liability companies in India are in their infancy; that share-holders and creditors are easily misled; and that fraudulent Directors have no difficulty in India in deceiving share-holders and creditors. Without entering caveat to the generality of these observations, it may be observed that each case has its own merits and demerits and the applicability or otherwise of the observations, relied upon, would depend on the facts of each particular case.

2. Having held that a joint petition for sanctioning of scheme of merger/amalgamation of the appellant and Respondent No. 1 was competent and that the learned Judge had plenary power to decide the same, it falls for .._ determination whether on the facts established on record, any element of fraud or misrepresentation can be found out, thereby vitiating the proceedings in their entirety. The grounds, which .can be spelt out from C.M. No. 225-L of 2003 filed by the appellant and, on the basis of which the order, dated 4.3.2003 was sought to be avoided can be summed up as follows:

(a) The appellant-company was led to 'enter into the scheme of amalgamation, dated 17.6.2002 upon representation by the respondent-company that the value of its share was equal to that of the share of the appellant-company, whereas the share­ holders had written letters to the appellant-company informing it that the net value of a share of the respondent company was only Rs. 4.00 but by concealment of material facts it had' claimed its break up value at Rs. 13.07, and that the net worth value of a share of the appellant-company was Rs. 13.16, consequently the share holders of the appellant-company had been substantially prejudiced. There are sweeping statements in the petition to the effect that one of the share holders had disclosed that the respondent-company attempted to sell away its shares to Escorts Investment Bank, Lahore, and when the latter analysed the relevant facts through its Auditors, it came to know that the value of a share of the respondent-company

was less than even Rs. 4/- and, therefore, the negotiations did not materialize. Another share holder is also alleged to have pointed out that the persons holding 0.2% shares of the respondent-company were in control of it, and were managing affairs thereof according to their own whims;

(b) The shares were movable property, and the principle of caveatemptor being not attracted, the respondent-company was under obligation to have made a faithful disclosure of all the material facts affecting the value of its shares, which-was not done.

(c) The persons managing the affairs.of the respondent-company had either directly or indirectly interest in Johnson & Phillips- Pakistan Limited, and Shalimar Construction Company Limited, but this fact was not disclosed by them to the appellant-company, and its share holders.

(d) The respondent-company had advanced a sum of Rs. 21.63 million as lease finance facility against insufficient securities worth only Rs. 8.95 million and the chances of recovery of the amount advanced were extremely remote. Though the names of the borrowers are ,not mentioned, but they appear to be the companies named in the preceding paragraphs.

(e) The mark-up amounting to millions of rupees accrued upon the leasing facilities availed of by the aforementioned two companies had been posted in the Suspense Account rather than in the Profit and Loss Account of the respondent-company with the intention not to recover the same from the borrowing companies.

(f) A comparative study of the Balance Sheets of the two companies for the three immediate preceding years, viz; 2000, 2001 2001 and 2002 would show that whereas the respondent- company had shown its tax liability at Rs. 1..596 million, the appellant had shown its tax liability of Rs. 15.500 million.

1. Respondents 1 and 3 to 9 in the petition, filed a joint written statement, whereas Respondent No. 2 (Securities and Exchange Commission of Pakistan) filed a separate written statement. Maintainability of the application was objected to by Respondents 1 and 3 to 9 by raising preliminary objections, viz:~

(1) The order, dated 4.3.2003 having been filed with the Registrar of Companies as enjoined by sub-section (3) of Section 284 of the Companies Ordinance, 1984, it had assumed finality and, therefore, could not be re-called;

(2) Relying on Order XX, Rule 3, CPC, it was pleaded that the Court having signed the order, it had become functus offlcio, except, of course, its power to give directions in regard to the working of the scheme.

(3) The application, filed as it was under Section 151 CPC, was even otherwise not maintainable, (4) The scheme of merger/amalgamation having been consented to, unanimously adopted and approved by the appellant-company and its share holders, without a single dissent, it was not open to exception, (5) The application was based on mere bald allegations of fraud,, without there being any solid proof thereof, and the same even otherwise, could not be determined in proceedings under Section 151 CPC which were summary in nature.

(6) There was no resolution of the Board of Directors, expressly authorizing the filing of the application.

(7) The applicant-company stood already merged, and having lost its entity as a juristic person, no application on its behalf could be filed.

1. On merits, while giving lie to the allegations of the appellant, it was asserted that the appellant-company and its share-holders had consented to the scheme of their own volition and free will, after detailed investigation, into the affairs of the respondent-company, including its financial portfolio, client portfolio, balance sheets and entire corporate record. Before formulation of the scheme for merger/amalgamation of the two companies, Memorandum of Understanding, dated 27.5.2002 was drawn up by the two companies, wherein it was made absolutely clear that the appellant-company shall be merged into respondent-company in consideration of issuance of shares in the ratio of 1:1 whereafter a draft scheme was prepared and Board of Directors of both the companies unanimously approved the scheme as well as the swap ratio of 1:1. Before sanctioning the scheme, even the Court allowed sufficient time for any. interested person to come forward with objections/reservations in relation to the scheme, but, at no time, any person, let alone the appellant-company, had raised any objections. The letters of share-holders filed alongwith the application were dubbed as fictitious and fabricated, and it was averred that out of 13 share-holders, whose letters had been appended with the application, nine were close relations of Sheikh Amjad Rashid, one of the sponsors and major share holder of the applicant-company. Besides, only one of them was said to have personally participated in the Extraordinary General Meeting in which the scheme was approved; eight of them were represented by the same proxy, and four even did not bother to show up. It was further pleaded that pursuant to the order of the Court, Mr. Zia-ud-Din Kasuri, Advocate, after giving due publicity, chaired the meeting of the share holders on 21.2.2003, and all those who attended the meeting voted in favour

of scheme, without a single dissent, as is borne out from his Report, dated 24.3.2003. The allegation regarding break up value of the shares of the two companies was specifically controverted by pleading further that the value thereof was calculated by the Chief Executive of the applicant-company himself on the basis of unaudited accounts of both the companies as on 31.3.2002 and the swap ratio of 1:1 was agreed after several meetings of the two companies and upon exchange of their respective financial records. The figures of prices shares of the two companies, as given by the appellant-company, were specifically denied, being illusory. It was admitted that a long term finance facility in the sum of Rs. 11 millions was provided to Johnson and Phillips, and of Rs. 9.5 million to Shalimar Construction Company (Pvt.) Limited, but it was asserted that the same were fully secured, through equitable mortgages. While admitting that Rs. 3.23 million and Rs. 4.22 million on account of accrued mark up were posted in the Suspense Account, it was pleaded that it was so done in accordance with the Leasing Companies (Establishment and Regulations) Rules, 2000, and that it became a part of the client portfolio, which record was examined by the appellant-company in great details. The facilities so advanced as well as the amount receivable thereon were clearly reflected in Notes 17 and 21 to the audited balance sheets, dated 31.3.2002 filed in the Court. The allegation that the persons managing the affairs of Respondent No. 1 had direct or indirect interest in the two companies to which financial facilities were advanced was specifically denied. It was also denied that the persons holding 0:2% share of the respondent-company were controlling and managing its affairs. Documents were brought on record to show that the applicant had a history of withdrawing from its commitment to merge with other leasing companies, the instance of Asian Leasing Corporation Limited was cited as a precedent. The allegations pertaining to the posterior to the sanction of the scheme of merger/amalgamation were also specifically refuted and explanations for alleged freezing of Banks accounts were given.

1. In its written statement, the Securities and Exchange Commission of Pakistan pleaded that in order to comply with the minimum paid up capital requirement of Rs. 200 million as prescribed in the Leasing Companies (Establishment and Regulations) Rules 2000, the appellant company itself approached' the Commission through Letter No. 6687/CE, IML/2002, dated 17th June 2002, informing it that a MOU dated 27th May, 2002 had been signed between the authorised representatives of the two companies for merger of the two respective corporate entities; that the swap ratio as per said MOU, was 1:1, based on audited accounts of the two companies for the period ending 31st of March 2002; that as per the said audited accounts, the break-up value of each share of the respondent-company was Rs. 13.38 and of the appellant-company was Rs. 14.30 as on 31st of March 2002; that the applicant had informed the Commission that the said MOU had been approved by its Board of Directors in the meeting held on 1st of June 2002 and, therefore, requested for grant of NOC for the

proposed merger of the two companies; that taking into account all these factors, the request of the appellant-company was acceded to and the requisite NOG was issued subject, of course, to the consent of the share holders and creditors of the two companies as well as approval by the Court of the scheme of merger/amalgamation; that the NOG was issued to facilitate the appellant company to meet the minimum paid-up capital requirement of Rs. 200 million by way of merger; that it was the responsibility of the appellant-company before taking the commercial decision, to have carried out an appropriate financial and legal due diligence exercise, prior to the grant of approval to the scheme of merger in order to secure the interest of its own share holders. The written reply of SECP concluded with the averment that the allegations levelled by the applicant were baseless and without any supporting evidence.

1. We have considered the arguments of the learned counsel for the parties and have minutely examined the record. Alongwith the petition, Articles of Association of both the Companies were filed to show that the same did contain provisions for reconstruction etc. Duly audited accounts for the period ending 31.3.2002 of-both the companies were also annexed to the petition. The following Resolution passed at the 1st meeting of the Board of Directors of the respondent-company held on 26.5.2002 was filed an Annex E/l to the petition:

"Resolved that subject to rejection of the offer by the Sponsor Shareholders of Calcorp for sale of their shareholding to Escorts Investment Bank Limited and in order to comply with the minimum paid up capital requirement imposed by the Securities & Exchange Commission of Pakistan for leasing companies, International Multi Leasing Corporation Limited (IML) merge with Capital Assets Leasing Corporation Limited (CALCORP).

Resolved Further that the terms of such merger shall involve dissolution of IML without winding up and vesting of assets and liabilities of IML in Calcorp and such other terms and conditions as may be agreed to by Shareholders of the Company:

Resolved Further that the SWAP Ratio for the merger be 1:1;

Resolved Further that the Accounts as on March 31st 2002 be audited for the purpose of amalgamation and the company's Auditors M/s. Ebrahim & Company, Chartered Accountant be authorized to carry out this special audit.

Resolved Further that the new merged entity be named Calcorp Multi Leasing Limited.

Resolved Further that the Chairman and/or the Chief Executive Officer be and are hereby authorized to jointly or singly take all steps required to give effect to the said merger including approaching the

Securities & Exchange Commission of Pakistan to obtain approval of the same, arranging for audit, hiring of counsel and auditors to assist in the merger, fmalization of the Scheme of Amalgamation to be presented to the Court for its sanction and such other steps as the Chairman and/or the Chief Executive officer deem necessary or expedient to implement the aforementioned merger."

Similarly, the Resolution passed on 1.6.2002 by the Board of Directors of the appellant-company was filed as Annex E/2 to the petition. The same reads as follows:-

"Resolved that the Memorandum of Understanding (M.O.U) signed on May 27, 2002,.between the Chief Executives of IML and Calcorp to merge the operations of both the companies on the terms and conditions stated therein be and is hereby approved.

Resolved that the draft scheme of Arrangement to amalgamate the operations of International Multi Leasing Corporation Limited with Capital Assets Leasing Corporation Limited be and is hereby approved.

Also Resolved that the Chief Executive and Secretary, of the company be and are hereby authorized to take all legal, corporate and other necessary steps in connection with the filing of the aforesaid scheme of Arrangement in the Hon'ble Lahore High Court".

No objection Certificates from the Security and Exchange Commission of Pakistan as well as from the creditors of both the companies were also filed along with the petition. Even at the cost of repetition, it may be observed that when the petition came up for hearing on 21.10.2002, the Court issued notices to the Security and Exchange Commission of Pakistan and to the members and contributories of the two companies. "Public Notice" was also ordered to be published in the Daily "THE NEWS" and the Daily "NAWA-I-WAQT". It is not disputed that such notices were, in fact, sent and published. After the requisite formalities had been observed, and as required by Rule 55 of the Companies (Court) Rules, 1997, a joint application, being C.M. 2 of 2002 was filed on 18.10.2002 on behalf of both the companies, seeking an order under sub-section (1) of Section 284 of the Ordinance, for holding general meetings of the members of the two companies to consider the scheme of amalgamation. When this application came up for hearing before the Court on 24.1.2003, an order, in terms of Rule 56 of the 1997-Rules was passed directing that both petitioner-companies should "convene separate meetings of their respective members/share-holders for the purpose of approving the proposed scheme of arrangement for merger". In term of the proviso to clause (b) of Rule 58, Mr. Zia-ud-din Kasuri, Advocate, was nominated to chair both the meetings in order to find out the bona fides and genuineness of the arrangement by the members/share-holders of the

petitioner-companies, and to submit his report. It was further directed that "Notices shall also be issued to Registrar of Companies and to the creditors of the petitioner companies through ordinary mode and courier service as well as by publication in the daily "Nawa-i-Waqt" and "The News" for 25.2.2003".' The same are available on the record. Consequently, separate Extraordinary General Meetings of both the companies were held under the Chairmanship of Mr. Zia-ud-din Kasuri, Advocate, on 21.2.2003. As is apparent from the Report, dated 24.2.2003 of Mr. Kasuri, in compliance with the order of the Court, dated 24.1.2003, notices with the main points of the scheme and statements under Sections 286(l)(a) and 160(l)(b) of the Companies Ordinance were served on all the members/shareholders for the meeting to be held on 21.2.2003. Moreover, the members/shareholders and other persons entitled to attend the meeting were apprised that copy of the scheme of arrangement could be obtained from the Registered Offices of the companies during normal business hours on application prior to the meeting of the shareholders. This was quite in accord with the provisions of Section 286 of the Companies Ordinance, which reads as follows:

"286. Information as to compromises or arrangements with creditors and members:--(l) Where a meeting of creditors or any class of creditors, or of members or any class of members is called under Section 284--

(a) with every notice calling the meeting which is sent to a creditor or member, there shall be sent also a statement setting forth the terms of the compromise or arrangement and explaining its effect; and in particular, stating any material interest of the. directors including the Chief Executive of the company, whether in their capacity as such or as members or creditors of the company or otherwise, and the effect on those interests, of the compromise or arrangement if, and insofar as, it is different from the effect on the like interest of other persons; and

(b) in every notice calling the meeting which is given by advertisement, there shall be included either such a statement as aforesaid or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies'of such a statement as aforesaid.

(2) Where the compromise or arrangement affects, the rights of debenture-holders of the company, the said statement shall give the like information and explanation as respects the trustee of any deed for securing the issue of the debentures as it is required to give as respects the company's directors.

(3) Where a notice given by advertisement includes a notification that copies of a statement setting forth the terms of the compromise or arrangement proposed and explaining its effect can be obtained by

creditors or members entitled to attend the meeting, every creditor or member so entitled shall, on making an application in the manner indicated by the notice, be furnished by the company, free of charge, with a copy of the statement.

(4) Where default is made in complying with any of the requirements of this section, the company, and every officer of the company who knowingly and wilfully is in default, shall be liable to fine which may extend to two thousand rupees, and for the purpose of this sub-section any liquidator of the company and trustee of a deed for securing the issue of debentures of the company shall be deemed to be an officer of the company:

Provided that a person shall not be liable under this sub-section if he shows that the default was due to the refusal of any other person, being a director, including Chief Executive, or managing agent or trustee for debenture-holders, to supply the necessary particulars as to his material interests.

(5) Every director, including the Chief Executive, or managing agent of the company and every trustee for debenture-holders of the company, shall give notice to the company of such matters relating to himself as may be necessary for the purposes of this section and on the request of the company shall provide such further information as may be necessary for the purposes of this section; and, if he fails to do so within the time allowed by the company, he shall be liable to fine which may extend to one thousand rupees".

Moreover, alongwith the Report of the Chairman, a list, spread over 55 pages, of the share-holders of the appellant-company on whom notices were served, was attached. Seven members/share-holders, holding 4980 shares, participated in the meeting personally whereas twenty-four members/share­holders, having 19,94,408 shares, participated in the meeting through proxies, authorizing Mr. Kamal Khan, Chief Executive of the Company. In this manner, members/shareholders, having total number of 19,99,388 shares of the appellant-company, had thus participated in the Extraordinary General Meeting convened for the purpose of ascertaining the views of the members/shareholders of the appellant-company. As per Article 27 of the Articles of Association of the appellant-company: "Three members present of the total voting power either in their own account or as proxies shall be a quorum". As mentioned above, seven members/share-holders were personally present whereas twenty-four were present through proxies having nominated Mr. Kamal Khan who had undeniably participated in the meeting as is borne out from his signatures appearing on the attendance sheet filed with the Report by the Chairman. There being not a single dissentient member amongst those who had participated in the meeting wherein the afore-quoted Resolution was passed, the requirements of sub­section (2) of Section 284 were thus fully met with. The report of Mr. Kasuri, who had chaired the meeting of the respondent-company also reveals that members/shareholders having total number of 54,52,508 shares, which was much more than the required quorum, had participated either personally or through proxies. The figures given above would, at a glance, show that the members/share-holders were fairly represented and the scheme had been approved unanimously. Moreover, after the receipt of the Reports of the Chairman, the matter remained pending till 4th of March 2003, and no one came forward to take exception to the scheme of merger/amalgamation.

1. From the above discussion, it is also abundantly clear that before the scheme for merger/amalgamation was finally formulated, both the companies had long-drawn meetings and discussions qua various facts of the scheme; Memorandum of Understanding (MOU) was drawn up containing matters of interest for both the companies; SECP was approached for NOC by Mr. Kamal Khan himself, who filed C.M. 225-L of 2003 and is also prosecuting the instant appeal on behalf of the appellant-company; the whole scheme of merger/amalgamation as proposed by the two companies was filed alongwith the petition, which became a public record and could be examined by every member/share-holder of the two companies, including Mr. Kamal Khan, who was rather on the forefront; the existing financial positions of the companies, showing their assets and liabilities were clearly reflected in the audited Balance Sheets as on 31st of March 2002 and were annexed to the petition; the swap ratio of both the companies was put on at' par and was treated alike with no difference; both the companies, after minutely examining the scheme of merger/amalgamation, had gone through the whole process of the procedure provided for the purpose by the Companies Ordinance, 1984 and the Companies (Court) Rules, 1997. In these circumstances, members/share-holders of the two companies were the best judges of their own interest, and the facts narrated above indicate that they had acted honestly, because the record of the case is conspicuous by an absence of reference to any piece of evidence to show that the scheme was coercive or oppressive of minority by majority, in particular in the absence of single dissenting vote.

2. Doubtless, as contended by Mr. Sahgal, in exercising its discretion under Sections 284 and 287, the Court should not act merely as a rubber stamp nor the Court is to sit as a mute spectator. But, if the Court finds that the scheme is fair and reasonable, it is not for the Court to interfere with the collective wisdom of the members of a company. Moreover, the Court cannot launch an investigation upon the commercial merits and demerits of the scheme which is the function of those who are interested in the arrangement. In Brook Bond Pakistan Limited and anotherv. Aslam Bin Ibrahim and another (1997 CLC 1873), it-was observed that if the required majority of the members of both the companies have approved the resolution for merger of both the companies, in such circumstances, sanction cannot be withheld unless it is shown that it is unfair or unreasonable. It was further observed that the burden would be upon the

person who alleged the scheme to be unfair. In this context, the following guidelines for deciding a matter of merger as laid down in Sinhpur Mills Co. Ltd., In re (AIR 1962 Gujrat 305) followed in Naujivan Mills Co. Ltd. Kolal,. In re [(1972) 42 Comp. Cases 265] and cited in Brook Bond Pakistan Ltd. and another v. Aslam Bin Ibrahim and another (1997 CLC 1873 at pages 1882-1883) are worth special notice:

"Therefore, in my judgment, the correct approach to the present case is (i) to ascertain whether the statutoiy requirements have been complied with, and (ii) to determine whether the scheme as a whole has been arrived at by the majority bona fide and in the interests of the whole body of shareholders in whose • interests the majority purported to act, and (iii) to see whether the scheme is such that a fair and reasonable shareholder will consider it to be for the benefit of the company and for himself. The scheme should not be scrutinized in the way a carping critic, a hair splitting expert, a meticulous accountant or a fastidious counsel would be it, each trying to find out from his professional point of'view what loopholes are present in the scheme, what technical mistakes have been committed, what accounting errors have crept in or what legal rights of one or the other sides have or have not been protected. It must be tested from the point of view of an ordinary reasonable shareholder, acting in a business like manner, taking within his comprehension and bearing in mind all the circumstances prevailing at the time when the meeting was called upon to consider the scheme in question. I am emphasizing the last point because an argument was made by Mr. Amin that certain circumstances or events which took place after the scheme had been considered should be taken into account. I do not wish to be understood to say that, in no case cost facto circumstances or events cannot be taken into account, but, on the whole, I have come to the conclusion that, whilst, in some rare and Gxceptional cases, the Court may take into consideration subsequent events to protect the interests of the company or the shareholders, as a general rule, the Court should consider the resolution on the footing of the circumstances which were in existence at the time when the scheme was formulated, deliberated upon and approved. If any other approach were to be made, then, in that case, there would be no sanctity about business contracts. In fact, such an approach may induce interested persons to shape further events and circumstances in such a way as to convert a reasonable scheme into an unreasonable once."

1. Therefore, once the scheme was approved by overwhelming majority of the members of the two companies, participating either personally or by proxies in the Extraordinary General Meetings convened separately of the two companies for the purpose of considering the scheme, all that of Court was to examine was whether the provisions of the

Ordinance and the Rules had been complied with; that the statutory majority was acting bona fide; that the arrangement was reasonably fair and that the circumstances prevailing at the time when the members/share­holders considered the scheme; justified approval thereof and there was no better option for them. It is not the duty of the Court to examine the scheme in the manner a businessman of astute power of judgment would do it. Till such time the order was passed by the learned Judge on 4.3.2003 sanctioning the scheme, no one from the appellant-company came forth to object to the scheme on the ground of being not commercially sound. Even when the application (C.M. 225-L of 2003) was filed, the appellant could not lay hands on a shred of evidence, except bald allegations. Be that as it may, as to how much shares should have been allotted by the transferee-company to the existing members of the transferor-company and in what ratio or proportion to their existing holding, under the scheme of amalgamation, was a matter entirely between the two companies and their members, there being no occasion for the Court to intermeddle with their affairs, once the scheme was passed by the statutory majority more significantly when none had come forward to object to the same.

1. There is yet another important aspect. Undeniably, both the companies in the instant case, are listed at Lahore Stock Exchange. If the difference in the market value of shares of the two companies had been so vast, as is alleged before us, it was really not very difficult for the appellant to have rendered solid proof and evidence in support thereof. Doubtless, in order to determine the price of a share of a company which is non-functioning or has become defunct, one may have to resort to complicated calculations. But, as observed above, in the instant case, both the companies were living and working companies. Their shares were quoted at the Stock Exchange. The price fluctuations would have been the indicator of commercial judgment of the community about the value of the shares of both the companies. In re Press Caps. Ltd. [(1949) 1 All E.R. 1013 = (1949) Ch. 434], quoted by Pannington in his Company Law, Second Edition at page 59, it was held as follows:

"If the transferor or transferee company's shares have a stock exchange quotation, dealing price over a period shortly before the transferee company's offer was announced will usually be taken as the measure of their value.".

The swap ratio of 1:1 appears to have been fixed by reference to the ruling price of the shares of the two companies on the Stock Exchange at the relevant time. Suspicion, conjectures or mere surmises cannot take the place of legal evidence, which is completely lacking in the instant case, to prove the allegations of fraud and misrepresentation. It is settled law that when fraud or misrepresentation is alleged in pleadings, particulars thereof must be given so that the other party is put on guard to answer the same specifically. To prove an allegation of concealment of material facts which may

tantamount to fraud, the following criteria has been laid down by the Supreme Court in a recent judgment reported as Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050 at page 1061):

The concealment of material facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would lie on the party which alleges fraud except in a case in which the fraud is floating on the face of the record. The active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be more

heavier in the cases in which a long period has -passed since passing

of the decree or judgment under which valuable rights have accrued in favour of the opposite party; there can be no exception to the rule of law that without bringing the essential facts on the record and the' evidence in proof of the fraud the plea of ignorance and lack of knowledge simplicitor would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings. The fraud undoubtedly vitiates solemn proceedings and time would not sanctify an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of the allegation of fraud. The

appellants in the present case having taken plea of fraud were under heavy burden to substantiate the allegation of fraud through clear and convincing evidence but they have not been able to discharge their onus to the satisfaction of law".

1. In the instant case, as observed above, there is nothing on record to bring home the allegation of fraud or misrepresentation to the respondent-company. Reference may be made to Dadabhoy 'Cement Industries Ltd. v. N.D.F.C. (2002 C.L.C. 166). In a suit filed by NDFC against Dadabhoy Cement Industries Ltd., parties arrived at a compromise on the basis of which the suit was disposed of. An application under Section' 12(2) CPC filed by the defendant having been dismissed by the learned

Single Judge of the Sindh High Court, the decision was challenged in appeal.[ In that case also, a Memorandum of Understanding had preceded the final

compromise. In appeal, learned counsel for the appellant argued that MOU and the consent decree suffered from misrepresentation as the same had been obtained by fraud and that a consent decree did not stand on a higher

footing or pedestal than as ordinary decree and could be set aside or recalled

if it could be proved that the same was conceived out of fraud. It was further

argued that there was no such principle that a party who was aggrieved by a consent decree having been obtained by fraud or was contrary to law was estopped from challenging the consent decree on the ground that there was no estoppel against law. The contentions were countered by the learned

counsel for the respondent-NDFC by submitting that a party alleging fraud, misrepresentation, -concealment/suppression of facts and wrong or illegal conclusion was under a bounden duty to give the necessary particulars of the facts which according to him amounted to fraud or misrepresentation. The Division Bench, after reviewing the case-law, and taking into consideration the facts of the case as borne out from the record; reached the following conclusion:

"In all the afore-cited cases, it was held that where a party levels allegation of fraud then it must specify and mention the details of the fraud and further that the same was required to be proved beyond or reasonable doubt and not on the basis of surmises, conjectures and suspicion. The facts/representations made by Messrs NDFC in the MOU were neither deceitful nor were based on misrepresentation as the appellants had been informed of such' facts/statements which were to form the basis of the compromise prior to the making of the compromise".

In the instant case also, MOU dated 27th of May 2002 had preceded the formulation and consequent sanction of the scheme of merger/ amalgamation. There is not an iota of evidence, that the respondent-company had in any manner duped the appellant-company either by fraud, misrepresentation or by concealment of any relevant factors. Thus the plea of fraud and mispresentation also fails, 33. There is yet another aspect of the matter to which we have already made an oblique reference, which to our mind had prompted the two companies to enter into the scheme of merger/amalgamation. The two companies had to resort to merger/amalgamation because of statutory compulsion requiring them to make good the deficiency in their respective paid-up share capital. There appeared to be a little choice and freedom for manoeuver, because none of the two companies could raise its paid up share capital to the required minimum. In exercise of the powers conferred by Section 506 of the Companies Ordinance, 1984, read with Finance Division's Notification No. S.R.O. 698(l)/86, dated 2nd of July, 1986 the Corporate Law Authority had made "The Leasing Companies (Establishment and Regulation) Rules, 1996". By virtue of Rule 5(b) of the said Rules, a minimum paid up share capital of one hundred million rupees was made a. condition precedent to a leasing company, incorporated under the Companies Ordinance, to qualify itself for the grant of a licence under Section 5 ibid. In Rule 7(4) it was then laid down that:-

"The Companies granted licence before the commencement of these Rules and having paid-up share capital less than one hundred million rupees, shall be required to raise their paid-up capital to that limit within two years from the date of commencement of these Rules."

However, by a subsequent amending Notification No. S.R.O. 1133(l)/97, dated 4.11.1997, for the word "one" as occurring both in Rule 5(b) and Rule 7 (4) the word 'two" was substituted, meaning thereby that a leasing company must have paid-up share capital of rupees two hundred million. Further the words "date of commencement of these Rules" were substituted by the figure, letters, words and commas "1st November, 1997, and after expiry of two years, the Authority may extend the said period for another one year on the basis of sound reason to be given, in writing, by the company." These Rules were, however, superseded as will be shown presently. After the enactment of the Securities and Exchange Commission of Pakistan Act (No. XLII of 1997) whereby Securities and Exchange Commission of Pakistan was established, the Commission, in exercise of its powers under Section 506 of the Companies Ordinance (No. XLVII of 1984) read with the Finance-Division's Notification No. S.R.O. 698(I)/86, dated 2.7.1986 made the Leasing Companies (Establishment and Regulation) Rules 2000, which came into force w.e.f. 25th of September 2000. Unnecessary details apart, a Leasing Company, which is an "NBFI" (Non-Banking Financial Institution) was required, by force of Rule 5, to obtain a licence from the Commission upon fulfillment of conditions stipulated in the said rule. And, one of the requirements vide Clause (b) thereof was that it should have "a minimum paid-up share capital of two hundred million rupees" in order to qualify itself for the requisite license. In sub-rule (3) of Rule 7 it was further provided that 'The companies granted license before the commencement of these Rules, shall raise the paid up capital to two hundred million rupees by 30th June, 2001". The cut-off date, we are told, was extended from time to time and is now to expire on 31st of December, 2003. As mentioned above, whereas the authorized share capital of the appellant was Rs. 100 million its paid up share capital was only Rs. 54.00 million. It appears, the appellant could not raise its paid up capital to Rs. 200 million till the petition under Section 284 read with Sections 285 to 288 of the Companies Ordinance was filed on 19.10.2002. Similarly, though the authorized share capital of Respondent No. 1 was Rs. 200 million, but its paid up share capital was a little more than Rs. 77.83 million, which was also less than the upper ceiling of Rs. 200 million. In Clause (d) under the heading "FACIS" of the appeal, the appellant itself has pleaded thus:

"(d) the minimum paid-up capital required in respect of leasing companies was raised to Rs. 200(M) through an amendment in the Leasing Companies (Establishment and Regulations) Rules 2000, and the leasing companies like the Appellant, whose capital was below the stipulated level, were advised to enhance their paid-up capital up to Rs. 200(M) by 30.6.2001. It was in this context that a number of leasing companies took initiative to negotiate merger with each other to meet the requirements of the enhanced paid up capital".

1. We are of the view that the appellant-company in view of the stringent provisions of Rule 7 of the Rules of 2000 adopted the consenting course for the impugned arrangement. Under an amalgamation, merger or take over, two or more companies are merged either de jure by a consolidation of their undertaking or de facto by the acquisition of a controlling interest in the share capital of one by the other or of the capital of both by the new company. The arrangements covered by Section 284 are of widest character ranging from simple composition or moratorium to an amalgamation of two or more companies in one, including re-organization of their share capital. One can, therefore, legitimately assume that "this watt one of the main, rather compulsive reason, why the appellant-company opted to" he merged with Respondent No. 1.

2. The next question is whether a scheme of merger which has been approved by the requisite statutory majority of three-fourth of the members present and voting can be objected to by the members/ shareholders participating in the meeting and voting in favour of the scheme or even by a dissenting member/share-holder/creditor, or by the company itself. In our view, it is not possible to do so. We are fortified in our view by various decisions from foreign jurisdiction. Jn re: Dr. S.B, Mathur u. IndiaPorcelain Ltd. and another [(1956) 26 Comp. Cas 161] the company passed a resolution for its voluntary winding up. Rajisthan Govt. which was a creditor of the company applied for compulsory winding up which was ordered by the. District Judge under the Companies Act of 1913. An Advocate of Rajisthan High Court was appointed its official liquidator. Thereafter, various creditors and contributories moved an application under Section 153 of the Indian Companies Act stating that they had made an arrangement with Amar Nath Mehrotra of Messrs Amar Nath Mehrotra & Co. of Sitapur for running the company. The District Judge having agreed to the said course ordered the requisite meetings be held. The official liquidator was appointed as chairman of the meetings. The creditors and contributories passed the scheme with certain modifications, but when the scheme came up for sanction before the District Judge, it was rejected due to absence of Amar Nath Mehrotra, on the assumption that he had no intention to run the factory. Amar Nath' Mehrotra could not succeed in getting the scheme, reinstated. Some other creditors and contributories also failed in their attempt to get the scheme sanctioned. The decision of the District Judge was challenged in appeal before the Punjab High Court. At the appellate stage, Government of Rajasthan sought to substitute another financier in place of Amar Nath Mehrotra. Though when the scheme originally came up before District Judge, counsel for the said Government was present but he took no objection to the scheme. Having held, on the facts of that case, that the absence of Amar Nath Mehrotra could not be taken that he was not serious in the implementation of the scheme or that he had gone back upon the scheme which was accepted by the contributories and the creditors, and that he being more "suitably placed" than the financier sought to he substituted in

his place, the appellate Court remanded the case to the District Judge, being incharge of the liquidation case, for consideration of the scheme hy inter alia

observing as follows:

The Government as creditors were represented at the. meeting of :ne creditors and are hound by the scheme as passed by that meeting. And if they are now allowed to upset the scheme which was adopted by the contributories and the creditors, it would be a serious inroad on the powers of the Court and would make the whole thing. subservient; o the wishes of powerful interests and would be obvious interference with the administration of company law".

In Vasant Investment Corporation Lid. v. Official Liquidator, Colaba Land and Mill Co. Ltd. [(1981) 51 Coir.p. Gas. 20] the following views were inter alia expressed:

"Hence, if at a meeting called to consider a scheme under S. 391, the scheme is passed by the requisite majority, then it becomes binding on all the members of the company, irrespective of the question whether they have expressly consented to it or not."

Again in Centron Industrial Alliance Limited v. Parvim Kantilal Vakil and another [(1984) 55 Comp. Cas. 731)] a petition under Section 391 of the Indian Companies Act, 1956, for sanctioning a scheme of amalgamation between the petitioner-company and Brook Bond India Limited had been filed in the Bombay High Court. Under the directions of the Court, meetings of the share-holders; secured creditors and unsecured creditors to consider the scheme of amalgamation were held. The scheme was approved by overwhelming majority. Central Govt. had also accepted application as required by Section 23(2) read with Section 54 of MRTP Act, 1969. Some of the share-holders then floated requisition for calling an. extraordinary general meeting of the company to consider the following Resolutions:-

"Resolved that the company re-negotiate with Brook Bond India" Ltd. and/or examine alternate scheme(s) in the interest of the company and for the purpose".

"Further Resolvedthat the company should withdraw Petition No 84 of 1981, filed in the High Court in Bombay from the date of this resolution".

In the circumstances, the question that arose for consideration was, "Can the share-holders now call a requisitioned meeting to compel the company to withdraw from the scheme?" It was held that "once the members of the company have approved of the scheme in the manner laid down under Section 391, it is not open to the share-holders to requisition a meeting for the purpose of passing a resolution asking the company to withdraw the petition filed by it for sanctioning the scheme". We would, therefore, hold that after the scheme has been passed by a majority in number representing

three-fourth in value of the creditors or class of creditors, or members, as the case may be, present and voting either in person or, where proxies are allowed, by proxy at the meeting, then irrespective of the question whether they have expressly consented to it or not, neither members/shareholders/ creditors nor even the company can back out or go back upon the scheme.

1. The next question is the extent of sanctity attached to a scheme, which has been validly sanctioned by the Court under Part IX of the Ordinance, It has been a moot question in a number of cases in England and India. In Re: Calgary and Edmonton Land Co. Ltd., In re: [(1975) All. E.R. 1046] it was held that when the scheme is sanctioned, the members become bound by the scheme. In Mahigang Loan Office Limited v. Behari Lai Chaki (AIR 1937 Calcutta 507), it was observed by a Division Bench of Calcutta High Court that the scheme once sanctioned has a binding effect. The question then came up for consideration in Krishna Nath v. Dinajpur Loan Office [(1938) 8 Comp. Gas 152] and the view taken was "that a scheme of arrangement which is sanctioned by the Court under Section 153, Companies Act, has the force of a judicial pronouncement". Similar views were expressed in Srimati Premila Devi v. Peoples Bank of Northern India, Ltd. (on Liquidation) (AIR 1938 P.C. 337). The precise question came up for consideration in Navjivan Mitts Co. Ltd., Kalol, In re; [(1972) 42 Comp. Cas. 265] where a scheme of compromise and arrangement proposed between the company and its creditors and members was sanctioned by the Court after observing the necessary procedure. The right of the company vis-a-vis its members/shareholders and creditors who approved of the scheme in properly held meetings came under discussion at pages 312 and 318 of the Report, where the following observations appear:

"If Mr. Shah is further right in his submission that no scheme can be imposed upon an unwilling company, the moment the company, showed its unwillingness to any proposed scheme, the Court becomes powerless and has to stay its hands. I must say that there is no warrant for this construction of Section 39(1). Rule 68 appears to have been enacted for a limited purpose of apprising the company that a scheme of compromise and arrangement is proposed as between itself and its creditors and/or members. The company having its independent juristic personality, independent of its members, where a member puts forth a scheme which in the ultimate analysis would bind the company, it is just and fair that the company must be informed of such a proposal. But giving up of the information does not tantamount to granting of veto to the company so as to repudiate the scheme by its veiy dissent. The Court is not powerless to consider and, if satisfied, to sanction the scheme even in the teeth of opposition by the company. In fact the scheme of Section 391 and especially of Section 391(2) is that once a scheme of compromise and arrangement is approved by a statutory majority, it not only binds the dissenting minority but it also binds the company.

This is manifest from the language of sub-section (2) which provides that the compromise and arrangement shall, if sanctioned by the Court, be binding on all the creditors or the class of creditors, all members or the class of members as the case may be and also on the company, or in the case of a company which is being wound up,' on the liquidator and contributories of the company. The effect of the sanction of the scheme is not merely that it binds the dissenting minority but it simultaneously and to the same extent binds the company and also the liquidator if the company is bring wound up. Therefore, if I have to accept the construction as canvassed for by Mr. Shah it would lead to an impasse. Assuming that a scheme proposed by someone other than the company is accepted and approved by all the members and creditors of the company, the company which has an independent personality has merely to appear through its principal executive officer and inform the Court that it is not in a mood to accept it and the scheme must fail. Mr. Shah further urged that such a situation would never arise because the majority of members of the company can always remove the directors and the, principal executive officer.'Now, therefore, if in a given case the statutory majority of creditors and shareholders approve the scheme of compromise and arrangement but the company opposes it until these members go to the extent of removing the directors and the principal executive officer, the scheme cannot proceed an inch further. I am afraid that will render the entire provision contained in Section 391 nugatory and fruitless. This can never be the intention of the framers of Section 391."

"The fact, however, remains that the scheme was unreservedly sanctioned and could be said to have come to operation from that date. To say that order is interlocutory is to beg the issue. There was nothing interlocutory about it as far as sanctioning of the scheme was concerned. It was final and binding unless revised, set aside or modified by the appellate Court."

1. The question also came up for consideration before the Supreme Court of India in U.K. (Bombay) P. Ltd. u. New Kaiser-i-Hind Spg. & Wvg. Co. Ltd. and others [(1970) 40 Comp. Cas. 689] where it was held as follows:

"The principle is that a scheme sanctioned by the Court does not operate as a mere agreement between the parties. It becomes binding on the company, the creditors and the shareholders and has statutory price, and therefore, the joint-debtor could not invoke the principle of accord and satisfaction. By virtue of the provisions of Section 391 of the Act, a scheme is statutorily binding even on creditors and shareholders who dissented from or are opposed to its being sanctioned. It has statutory force in that sense and therefore cannot be altered except with the sanction of the Court even if the

shareholders and the creditors acquiesce in such alternation [F. Premila Devi v. Peoples Bank [1964] 2 S.C.R. 145; A.I.R. 1966 S.C. 1631)]. The effect of the scheme is "to supply by recourse to the-procedure thereby prescribed the absence of that individual agreement by every member of the clasj to be bound by the scheme which would otherwise be necessary to give it validity. (Palmer's Company Law, 20th Ed., page 664). Sub-section (2) of Section 391 of the Act allows the decision of the majority prescribed therein to bind the minority of creditors and shareholders and it is for that reason that a scheme is said to have statutory operation and cannot be varied by the shareholders or the creditors unless tuch variation is sanctioned by the Court. The effect, therefore, of a schame between a company and its creditors is that so long as it is carried out by the company by regular payment in terms of the scheme a creditor who is bound by it cannot maintain a winding up petition. But if the company commits a .default, there is a debt presently aue by the company and a petition for winding up can be sustained at the instance of a creditors."

1. In Vasant Investment Corporation Ltd. v. Official Liquidator,Colaba Land and Mill Co. Ltd.1(1981) 51 Comp. Case. 20] it was observed as follows:

"The scheme when sanctioned does not, me'rely operate as an agreement between the parties but has statutory force and is binding not only on the company but even dissenting creditors or members, as the case may be. The effect of the sanctioned scheme is to supply by recourse to the procedure thereby prescribed the absence of that individual agreement by every member of the class to be bound by the scheme which would otherwise be necessary to give it validity."

1. Thus, we are of the considered view that when the scheme is sanctioned by the Court, it does not merely operate as an agreement between the parties, and the matter goes beyond the domain of contract, it becomes an order of the Court, has the force of judicial pronouncement, and it assumes statutory force and is binding not only on the members/creditors and the company but also on the dissenting creditors and members, as the case may be.

2. The question then arises whether the appellant-company had not lost its entity as a juristic person after the sanction of the scheme of arrangement for its merger/amalgamation with the respondent-company, and a third company having come into exiscence, in particular after the order, dated 4.3.2003 has been filed with Registrar of Companies, no proceedings could thereafter be instituted in the name of the appellant- company. In General Radio and Appliances Co. Ltd. and others v. M.A.Khader (dead) by L.Rs. (AIR 1986 Supreme Court 1218) it was observed:

"The order of amalgamation has been made on the basis of the. petition made by the transferor company in Company Petition No. 4 of 1968 by the High Court of Bombay. As such it cannot be said that this is an involuntary transfer effected by order of the Court. Moreover, the first appellant-company is no longer in existence in the eye of law and it has effaced itself for all practical purposes."

1. Though in different context, but the same question came up for consideration before the Supreme Court of India in Sarswati Industrial Syndicate Ltd. v. Commissioner of Income Tax, Haryana, Himachal Pradesh and Delhi III [(1991) 70 Comp. Cas, 184]. The following observations appear at page 188 of the Report:

"The question is whether, on the amalgamation of the Indian Sugar Company with the appellant-company, the Indian Sugar Company continued to have its identity and was alive for the purposes of Section 41(1) of the Act. The amalgamation of the two companies was effected under the order of the High Court in proceedings under Section 391 read with Section 394 of the Companies Act. The Saraswaci Industrial Syndicate, the transferee-company, was a subsidiary of the Indian Sugar Company, namely, the transferor-company. Under the scheme of amalgamation, the Indian Sugar Company stood dissolved on October 29, 1962. and it ceased to be in existence thereafter, through the scheme provided that the transferee company, the Saraswati Industrial Syndicate Ltd.,' undertook to meet any liability of the Indian Sugar Company which that company incurred or it could incur, before the dissolution or not (sic) thereafter. Generally, where only one company is involved in a change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganization or scheme of arrangement. In an amalgamation, two or more companies are fused into one by merger or by one taking over the other, Reconstruction or amalgamation has no precise legal meaning. Amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company becoming substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly, "amalgamation" does not cover the mere acquisition by a company of the share capital of the other company which remains in existence and continues its undertaking but the context in which the term is used may show thai it is intended to include such an acquisition. See Halsbury's T.;nv3 of England, 4th Edition, Volume 7, para 1539. Two companies -r«ay join to form a new company but there may be absorption r; blending of one by the other and both amount to amalgamation. When two companies are merged and are so joined.

as to form a third company or one is absorbed into the other or blended with another, the amalgamating company loses its entity".

1. Both the aforementioned decisions were relied upon in DataComputer Services v. Northern Digital Exchanges Ltd. [(1998) 92 Comp. Cas. 362] and it was inter alia observed as follows.

"Once the final order of merger had been passed, the erstwhile respondent-company would lose its legal or corporate entity. The amalgamation of a company must be understood as having a definite meaning, as opposed to a reorganization or scheme of arrangement arrived at between two companies. In the case of 01.3 company being merged into the other in terms of the scheme the transferor company merges in the transferee for all purposes' and intents, including loss of its corporate character and legal entity. The amalgamation thus is a blending of two or more existing companies into one and the transferee company become holdtrs of the shareholding of the transferor company. A complete merger of one company into another with complete assets and liability being transferred to the transferee company is not a. mere or temporary eclipse. The legal and financial status of the merged company has the effect of replenishing the very corporate and legal entity of the said company. In simple words, it is loss of legal entity by the earlier-company."

"The cumulative effect of the above settled principles of law enunciated by the highest Court of the land, upon its application to the facts and circumstances of the case, leaves no doubt in my mind that the earlier company had completely lost its legal entity aad ceases to exist in the eye of law. This is a case which on the bare reading of the scheme and the order shows that one company has merged and been absorbed into the other and blended with the other causing loss of legal entity of the erstwhile petitioner-company. The complete rights and liabilities of the transferor-company had become vested with all such rights and liabilities in the transferee company".

1. Although we have held that the learned Company Judge had the jurisdiction to allow amalgamation of the two companies, yet we will like to deal with the contention of the learned counsel for the appellant that if a Court, Tribunal or other authority has no jurisdiction to entertain a Us,consent of parties could not invest the Court,'Tribunal or authority with any jurisdiction. In support of his submission, he relied on Jyotish ProkasChaporag and another vs. Balga Kanta Chaudhari and others (AIR 1922 Calcutta 274) where the suit for recovery of arrears of rent when filed before the Settlement Officer, he had the territorial jurisdiction but before he could exercise jurisdiction, he was stripped off the same, and thus lost jurisdiction over the area concerned. In this context, it was observed that "jurisdiction of the subject matter is given only by law and cannot be conferred by consent".

Reliance by the learned counsel for the appellant on Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 Supreme Court 314) is inapt. In that case, Muhammad Afzal, appellant in the Hon'ble Supreme Court, was a respondent before the Member, Board of Revenue who decided the case against him. Muhammad Afzal challenged the order by a writ petition in the High Court. The High Court refused to grant relief on the ground that the question of jurisdiction had not been raised below. While accepting the appeal, their Lordships of the Supreme Court held: "By mere submission, in the capacity as a respondent, to the authority of the Member, the appellant could not be thought to have conferred jurisdiction on the Member which he did not posses, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner", In the instant case, the appellant herein was not a respondent before the learned Judge, but was one of the two applicants who had themselves invoked jurisdiction of the Court. Learned counsel for the appellant also placed reliance on Muhammad All v. The State (PLD 1980 Lahore 195) wherein a Division Bench of this Court had not accepted the argument that if an accused was tried and convicted by a Court or a Tribunal and he had not taken objection to the jurisdiction of the Court or Tribunal, he was barred in subsequent proceedings from raising the plea of lack of jurisdiction of the Court or Tribunal trying him. In the precedent case, the accused had not approached the Court of his own. He had been put to trial by the State. His next reliance was on the case reported as Riazuddin v. Haji Muhammad Aslam represented by legal heirs and 2 others (PLD 1985 Karachi 411). In that case Riaz-ud-din was a respondent in a rent matter and his defence had been struck off. The question of jurisdiction of Rent Controller qua an open plot and not rented land was raised. It was in that context; that it was observed that the question of jurisdiction or a pure question of law can be raised even at the appellate stage and that the consent of the parties cannot confer a jurisdiction on a Tribunal which it does not possess of. This decision is again not of any advantage to the appellant, because Riaz-ud-Din was a respondent in the case and his failure to object to the jurisdiction of the trial Court, before the stage of final arguments, was held not fatal by observing that consent of parties cannot confer jurisdiction on -a Court, if it otherwise-lacks jurisdiction, and that the question of jurisdiction could be raised at any stage of the proceedings. Sajjad Hus^ain v. Musarrat Hussain Shah (1989 SCMR 1826) relied upon by the learned counsel for the appellant was a case which concluded in the trial Court by consent, but was re-opened on first appeal by the High Court, and the suits were remanded to the trial Court for decision afresh, on the question of limitation, after recording evidence. The decision of the High Court was set aside by the Supreme Court by holding as follows:-

"The first question which requires decision is whether the judgment in the trial Court was by consent so as to bar an appeal. Section 96 of the Code of Civil Procedure prescribes that no appeal shall lie from a

decree passed by the Court with consent of the parties. The order sheet already referred to shows that the statement conceding to the claim of the other and it was as a result of their consent that the judgment was given and the decree passed. Even now it is not the case of any of the parties that such consent was not in fact given. What is contended is that it should not have been given. The learned counsel has in his Written Arguments pointed out that as in the case ofMoluvi Zahirulsaid AM. v, R.S. Seth Lachhmi Naryan (AIR 1931 Privy Council 107) the consent of the parties should have appeared on the face of the decree. If the record ex-facie shows that the decree had been passed with the consent of the parties sufficient and substantial compliance with the requirement of law has to he assumed particularly so where even in appeal before us the fact of consent and compromise is not controverted."

1. The case of Ghulam All u. The District Judge, Lahore etc, (NLR 1994 Civil 122) relied upon by the learned counsel for the appellant, is also not relevant to the issue involved in this case. There, it was held that submission by a party to jurisdiction of Court/Tribunal in capacity of a respondent would not, disentitle him to challenge the order of Court/Tribunal in writ jurisdiction on the ground that Court/Tribunal lacked jurisdiction to decide the case. His next reliance was onMautui Noor Muhammad and 3 others v. The State (2000 P.Cr.L.J. 1583). In that case, the appellants who were tried and convicted under Section 365-A, PPG by the learned Special Judge for Anti-Terrorism Activities, challenged the proceedings before the trial Court being coram non judice. The contention raised by the other side that the question of jurisdiction could not be raised at appeal stage was repelled by relying on Pir Sahir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.W.F.P., and another (PLD 1995 SC 66), wherein it was held that question of jurisdiction is very important and fundamental in nature and if a forum has no jurisdiction, the same cannot be conferred upon it by consent of the parties. This decision is also no answer to the contention of the learned counsel for Respondent No. 1 because the appellants in that case had themselves not approached the trial Court, but were put up for trial by the State. The precise question was considered in Nazat HusKain v. Fuqir Muhammad (1974 SCMR 188) wherein the decision of the District Court was sought to be avoided on the ground that it lacked pecuniary jurisdiction to- entertain, the revision filed by the petitioner. The contention was repelled by holding as follows:--

''However we dc not regard this as a fit case fci our interference for, the reason that a was the petitioner himself who invoked the vevisional jurisdiction of the District Court, and lie cannot now be permitted to contend that Court had no jurisdiction simply because he had failed on merits."

Similarly, in Anwar-ullah Khan (A, Khan) v. Chotey Khan (1978 SCMR 14) law was laid down thus:-

"It was contended before us that the Second Appeal was not competent in view of the decision of this Court in Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) and, therefore, the judgment is a nullity. But this contention appears to be misconceived for, it was the petitioner who had filed the appeal and if according to him, it was incompetent he should not have done so. But having invoked the jurisdiction and the decision being against him he is disentitled by his conduct to seek special leave to appeal against it".

1. The case reported as Haji Muhammad Asghar v. Malik ShahMuhammad Awan and another (PLD 1986 Supreme Court 542) is almost on all fours, wherein it was inter alia held as follows:-

"Where a part}' to the proceedings before a Court or Tribunal enters into an agreement of its own free will for disposal of the matter, it cannot turn round and successfully plead that it had no legal right to consent and the Court or authority could not act on such consent and should not be allowed to do so. It is not the case of the appellant that he did not consent, or had a mistaken view of the situation or was otherwise duped or taken in. These are the cases where the doctrine of election, of approbation and reprobation, comes into play. \\\\ Besides, as the order sought to be reviewed by the appellant was passed on his own undertaking and assent there was no occasion to get it reviewed. The impugned order in such a context, suffers from no legal infirmity".

1. In Federation of Pakistan through Secretary, Ministry of Works,Govt. of Pakistan, Islamabad v. Mrs. Musarrat Bokhari and another (1993 C.L.C. 2519) the view taken was: "It is an established legal principle that if the litigant himself chooses a forum for redress of his grievance, he is estopped to challenge the jurisdiction of that forum if the ultimate decision is rendered against him." In North West Frontier Province, Peshawar throughCollector, Abbottabad and another i\ Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 SC 418-' the respondents having themselves invited the impugned order were not ailo-.ved to challenge the same nor to resile from the consent given by their learned counsel on the basis of which the order was passed. In Ch. Haq Nawaz Chohan vs. Ch. Tariq Azam and 43 others (1994 CLC 1530), after reviewing the case-law, almost exhaustively, it was observed that though parties to lis cannot confer upon the Court or an authority, jurisdiction by their consent, but generally the person who himself invokes jurisdiction of a Court or an authority and participates in the proceedings before the said forum/authority he cannot be subsequently allowed to approbate and reprobate, and to challenge the competency of proceedings before the said forum as he cannot be heard in support of his

contention on the principle of estoppel and acquiescence. It was further held that the cases of ousters being eoram nan judice were receptions to the general rule. The jxidgraent of the Supreme Court reported as Khooshamonai Tribe of Samagole, Tehsil Morkek, District Chitral through representative v. Provincial Government of N.W.F.P. through Addl. Secretary, Government of NWFP, Home and Tribal Affairs Department, District Courts Peshawar and 3 others (2000 SCMR 1657), relied upon by Mr. Sahgal, rather goes against him. Doubtless, it was held therein; "There is no cavil with the proposition that litigants cannot confer jurisdiction on a Court or Tribunal which is otherwise not possessed by it" but the appeal was dismissed against the decision of a Division Bench of.the Peshawar High Court wherein it was inter alia observed that petitioners could not be allowed to blow hot and cold and to change their stance whenever it, suited them, which observations were approved by the Supreme Court. The-decision of Hon'ble Supreme Court in Federation of Pakistan v. Amir Hamza (2001 SCMR 1959) is also in point. In that case, Amir Hamza, originally an Inspector of Police, Northern Areas, but having been promoted as Senior Superintendent of Police and on earning move-over was placed in BS-19. His wife, Mrs. Shaista Sharnitn Hamza, became Member of Northern Areas Council during 1995. Dunug a meeting held on 24.7.1995 presided over by the Chief Executive of the Council who was Minister for Kashmir Affairs and Northern Areas, she was a little out-spoken arid gave vent to her feelings quaproblems confronted by local residents of Northern Areas, and sense of deprivation being felt by them, besides criticizing the. Chief Executive of the Northern Areas about neglecting members of the Council. Three days thereafter Amir Hamza was transferred from the post of SSP, Ghizar to KA & NA Division, Islamabad. Unnecessary details apart, on account of certain unpleasant and violent remarks used by him in his charge assumption report, Amir Hamza was proceeded against departmentally and was eventually dismissed from service. His representation to the President having gone by the board, he approached Federal Service Tribunal through an appeal which was partly allowed, major penalty of dismissal from service having been converted into a minor penalty of withholding three increments without cumulative effect. Federation of Pakistan as well as Amir Hamza challenged the decision of Service Tribunal before the Supreme Court. Amir Hamza took objection to the competency of authority in affecting his transfer from Northern Area etc, While dealing with the objection, their Lordships observed inter alia as follows;--

"The appellant after his dismissal from service had himself invoked jurisdiction of tlie Tribunal by preferring Appeal No. 491 of 1996 whtraoy relief as regards reinstatement subject to imposition of minor penalty of withholding three increments without cumulative effect was granted. Besides, the appellant conceding the jurisdiction has further challenged position of the impugned judgment to the extent, of minor penalty awarded against him before this Court

through Civil Appeal No. 77 of 1997. The very factum of his invoking jurisdiction of the Tribunal and preferring proceedings before this Court, negates legal and Constitutional objections raised by him. It may be observed that the appellant cannot be permitted to approbate and reprobate in the same breath, i.e. to challenge the Constitutionality and jurisdiction of forum which he has himself invoked for seeking relief under the law".

1. In Abdul All v, Hqji Bismillah (2002 SCMR 2003) also a similar contention was raised that the High Court had no jurisdiction to hear the appeal as the appellant was charged in the FIR under Section 17(4) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, and. was repelled by observing inter alia that:

"the appellant could not be permitted to raise such aii objection at this stage on account of the principle of estoppel which would operate against him because of his acquiescence/silence."

1. Here also, in the first instance, an attempt was made by the appellant to seek relief from the learned Judge by invoking his jurisdiction and, when failed, has filed this appeal. Thus, the contention of the learned counsel for the respondent-company that the appellant having himself approached the Court is debarred to challenge its jurisdiction after the decision has heen rendered against it in C.M. No. 225-L of 2003 must, therefore, prevail.

2. The next question is whether the appeal against the original order, dated 4.3.2003 being beyond limitation, the appellant can take advantage of-the order passed on 12.6.2003 in C.M. No. 225-L of 2003. The case reported as Ghulam Hussain and another v. Kanwer Ashiq All Khanand another (PLD 1980 Suprsme Court 198) is on all fours. In that case, suit of the plaintiff having been decreed, first appeal filed by the defendants was accepted by holding that the plaintiffs would have 'the right to retain possession of land purchased by them till they were reimbursed and returned the compensation price of Rs. 14,700/- paid by them to the vendor. This led both the parties to file Regular Second Appeal in the High Court. By a common judgment dated 14.12.1977, appeal filed by the plaintiffs was dismissed whereas that of the defendants was accepted and the matter of determination of the quantum of sale price/compensation was remanded to the -learned trial Court for fresh decision in accordance with law. The plaintiffs filed a review petition but without any success as the same was dismissed in limir.e on 12.2.1978. The plaintiffs then filed Civil Petition for Special Leave to Appeal against the basic order, dated 14.12.1977, as well as against the order, dated 12.2.1978 refusing to review the previous order. The Hon'ble Supreme Court dismissed the petition by holding that the object of the petitioners was to seek vacation of the basic order which had become final by efflux of time, and the order of refusal to review could not give a

fresh period of limitation to challenge the same. In the context, it was held as follows:

"The present petition against the basic order of the High Court dated 14.12.1997 is barred by 395 days and there is no application or prayer either for (indonation of delay or to set aside that order as such. When confronted with this situation the learned counsel argued that the present is a petition against the order dated 12.2.1978 refusing to review the previous order dated 14.12.1977 and in its own turn is within limitation qua that order. This may be so but while seeking leave to appeal against order refusing to review the main previous order, in fact the object of the petitioner is to seek vacation of the said previous order which by efflux of time has become final. The fact that in review the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will not give a fresh period of limitation to challenge it. In this peculiar situation, therefore, when the previous order has become binding on the petitioners, they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed. There may be cases where for instance petition of review may be refused merely for want of jurisdiction in which of course a petition may lie but will be on ground of refusing to exercise jurisdiction vested in a Court by law on the ground that it has no jurisdiction whereas in fact and in law it had such jurisdiction. In those cases a petition against refusal to review will not be a petition directly or indirectly against the main\ previous order on merits but only against the order in review itself. The position in the instant case is however different. Here the question is not of lack of jurisdiction of the High Court to entertain review, but after entertaining it refusing the same on the ground that no case for review on merits exists. Such a decision will essentially compel a suitor to challenge the previous order itself to point out the mistakes allegedly existing therein, which exercise obviously cannot be resorted to if the period of limitation for challenging the main previous order has run out and because you cannot do that indirectly which you cannot be directly. A more proper course in such situation will be to file a petition for leave to appeal against the basic previous order and apply for extension of time under Section 5 of the Limitation Act IX of 1908 on the ground that the petitioner had in good faith and with due diligence been pursuing a remedy of review therefore the time spent therein may be allowed to him on the principle of Section 14 of the aforesaid Act etc."

1. In Lahore Development Authority v. Fahmecda Khatoon and others (1986 SCMR 1478), a learned Single Judge of this Court had accepted, on 28.4 1980. certain writ petitions filed by persons aggrieved of LDA's decision, refusing to exempt a part of the land which h;.d been included by LDA in its scheme. LDA filed time-barred review petitions in all cases, which \vere dismissed on 24.11.1980 LDA, thereafter filed Intra-Court Appeals which wery, however, dismissed on merits. LDA challenged the decision in the Supreme Court through Civil Petitions for Leave to Appeal which were dismissed by inter alia observing as follows:—

"The petitions are liable to be dismissed on the short ground that no appeal was competent against the order refusing to review the order

passed in the writ petitions."

"Under Ordei XXXVII (should be XI.VII), Rule 7, C.P.C. and order of the Court rejecting an application for review is not appealable. Consequently, no L.C.A. was competent against the order, dated 24.11.1980, whereby the review applications were dismissed. The Intra-Court Appeals were liable to be dismissed on the short ground."

"It needs to be mentioned that although in the heading of each Intra-Court, Appeal, it is stated that the appeal is directed against the original order, dated 28.4.1980, passed in the writ petition but the text of the memorandum of appeal clearly shows that it is directed against the order refusing to review the said order. Even if each appeal is taken to be directed against order, passed in writ petition, dated 28.4,1980, the same was liable to be dismissed on the short ground of limitation."

Khawaja Muhammad Afzal and another v. Sh. Muhammad Sadiq and others 11988 SCMR 179) is a case almost on all fours. In that case, instead of filing a Letter Patent Appeal from the order of a learned Single Judge, the respondent filed a review petition which was dismissed. When the respondent filed Letters Patent Appeal, it was opposed by the appellant on the ground of being barred by time. The learned Judges of the Division Bench seized of the appeal over-ruled the objection arid gave benefit, to the respondent of computation of the time spent in pursuing the review application. The decision was reversed by the Hon'ble Supreme Court by inter alia holding as follows:-

"It is well established that once time has begum to run it does not stop. The time for filing the Letters Patent, Appeal having already expired neither the time spent in pursuing the review application nor the rime spent in obtaining copy of the order passed by the Single Judge could be deducted from the period of 20 days. Similarly the time spent in obtaining copy of the order rejecting the review application could not be-deducted as under the Rule it was not

necessary to file copy of that order alongwith the memorandum of the Letters Patent Appeal. In computing the time for filing the Letters Patent Appeal the High Court had thus fallen in error."

Similarly, in Cantonment Board, Rawalpindi u. Muhammad Sharif through Legal Heirs (PLD 1995 Supreme Court 472) the contention that though the appeal was barred by tin e ?r. against the original order, but the petitioner, had been pursuing remedy of review, and the appeal be deemed to be within time from the order passed in review, was repelled by holding as follows:--

"The prosecution of the review petition before the learned District Judge and time spent therefor could not be excluded under Section 14 of the limitation Act".

In Khurshid Alain and 2 others v. Government of the Punjab and 6 others (PLD 1998 Lahore 189) a Division Bench of this Court, relying on the case of Cantonment Board, Rawalpindi supra held that the appellants were not entitled to have the time spent by them in prosecuting the review application excluded while computing the limitation for the purpose of appeal.. Relying on Ghulam Hussain 's case, it was further held, as follows:--

"It was observed by the Supreme Court of Pakistan that the main order remained to be the order by which the case was disposed of and not the order refusing to review the same and as the previous order had become binding on the appellants they could not be allowed ,to bypass it on the ground that the application for review had been filed".

We have thus no doubt in our mind that the appeal filed by the appellant in so far the order dated 4.3.2003 is concerned being barred by limitation, is liable to be dismissed on this ground as well.

1. The contention of the learned counsel for the respondent-company that the appeal against the order, dated 12.6.2003 was not maintainable even if the said application was treated as review petition or an application under Section 12(2) C.P.C. or the one under Section 151 CPC has no merit. Every Court, Tribunal or Authority, who had passed an order can recall the said order if it lacked inherent jurisdiction or it was procured through fraud and misrepresentation as held by the Hon'ble Supreme Court in Muhammad Fazil vs. Chief Settlement Commissioner(PLD 1975 SC 331). Further, appealability of an order is not to be seen with reference to the provisions of the Civil Procedure Code because of specific provision in the form of Section 10(3) of the Companies Ordinance, 1984. It may be added that by virtue of Section 15 of the Code of Civil Procedure (Amendment) Ordinance (No. X) of 1980, even an interim order passed in exercise of original civil jurisdiction is appealable before a Bench of two Judges. We, therefore, hold that the order dated 12.6.2003 whereby application of the appellant-company was dismissed and application of the respondent-

company was allowed was appealable under Section 10(3) of the Companies Ordinance.

1. Mr. Sahgal heavily relied on S.M. Yusuf & Brother v.Muhammad Mehdi Pooya (PLD 1965 Supreme Court 15) to contend that since the scheme sanctioned by order, dated 4.3.2003 is not "workable" we, sitting as an appellate Court against the said order, have unfettered power to set aside the order even though Intra-Court Appeal had not been filed against the said order within the period of limitation. In that case, their Lordships were dealing with the contention, based on Order XLI, Rule 33, CPC, to the effect that the mere fact that the appeal was against a part of the decree, would not debar the appellate Court from granting relief to the parties in accordance with justice, equity and good conscience, or where the failure to exercise jurisdiction would lead to impossible, contradictory and unworkable orders. At the same time, their Lordships had struck a note of caution in the following terms:-

"The rule confers unfettered discretion and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for in each one, the application of the rule must be made beneficially and in accordance with the relevant facts."

1. Learned counsel for the appellant then took exception to the order, dated 12.6.2003 by contending that the Court could not allow or modify the sanctioned scheme, In support of this submission, reliance was placed on In re: Mahigang Loan Office Ltd. v. Behari Lai Chaki (AIR 1937 Calcutta 667) wherein it was inter alia observed that the "Court has no power to modify or alter a scheme without the consent of those who agreed to it" and that "to hold that the Court has power to expunge part of ;a sanctioned scheme without the consent of those persons whose agreement to the scheme was essential before it could be sanctioned at all, would be in my opinion contrary to all principles of fairness and justice". Support for this contention was also sought from In re: Comrade Bank Ltd. (PLD 1957 Dacca 554) wherein the view expressed was as follows:—

"In the case of In Re: Bank of Mymensingh Gouripur Ltd. (53 C.W.N. 143) Das, J, of the Calcutta High Court held that after an order sanctioning a scheme under Section 153 of the Companies Act has been drawn up, completed and filed, the Court can do nothing except correcting accidental omissions or mistakes in the order. But if any alteration or amendment other than correcting the accidental omissions or mistakes is required then this can only be done by way of a fresh scheme. The same learned Judge again, whilst Chief Justice of the East Punjab High Court, dealt with this question more fully in the Full Bench decision of the East Punjab High Court in the

case of Sm. Bhagwanti v. New Bank of India, Ltd., Amritsar (AIR 1950 E.P. 111). The learned Chief Justice (Now Chief Justice of the Supreme Court of India) after reviewing a number of English and Indian authorities laid down certain general principles, and one of those principles is that where a scheme which is not of the kind mentioned in Section 153-A or 153-B is sanctioned otherwise than in the course of a winding up, the Court sanctioning the scheme has no further seisin of the scheme, and has no jurisdiction or power as the Company Court to entertain any application for modifying the scheme, and that this jurisdiction cannot be conferred on the Court even by providing in the scheme for reservation of powers to the Court to entertain such subsequent applications. Applying the principles that can be gathered from the above mentioned decisions it seems to me that any application for the modification of a scheme sanctioned under Section 153 of the Companies Act, and all the requirements of the aforesaid section must be duly satisfied before such modification can be sanctioned. It is on the basis of this principle that in the very first stage, I treated this application as a fresh application under Section 153 of the Companies Act, and directed the issue of the notices of this application".

1. The language of Section 285 of the Companies Ordinance, 1984 is exactly the same as that of Section 392(1) (b) of the Indian Companies Act, 1956. In Mansukhlal vs. M.V. Shah, Official Liquidator, Liquidator of Hathising Mfg. Co. Ltd. (In Liquidation), and others [(1976) 46 Comp. Gas. 279] the power to modify the scheme by the Court which had sanctioned the same was conceded by a Single Judge of Gujrat High Court. At pages 291-292 of the Report it was observed as follows:--

"Reading Clauses (a) and (b) of sub-section (1) of Section 392, it appears that Parliament did not want the Court to be functus officio as soon as the scheme of compromise and arrangement is sanctioned by it. The Court has a continuing supervision over the implementation of compromise and arrangement. Un-envisaged, unanticipated, unforeseen or even unimaginable hitches, obstruction and impediments may arise in the course of implementation of a scheme of compromise and arrangement and if on every such occasion, sponsors have to go back to the parties concerned for seeking their approval for a modification and then seek the approval of the Court, it would be a long-drawn out, protracted, time-consuming process with no guarantee of result and the whole scheme of compromise and arrangement may be mutilated in the process. Parliament has, therefore, though it fit to trust the wisdom of the Court rather than go back to the interested parties. If the parties have several times to decide the modification with the democratic process, the good part of an election machinery apart, the dirt may step in, the conflicting interests may be bought and sold, and, in the process, the whole scheme of compromise and arrangement may be so twisted and torn out of context as to be thoroughly useless and may be jettisoned. In.order, therefore, to guard against this eventually and situation, which is clearly envisageable, Parliament has conferred power on the Court, not only to make modifications even at the time of sanctioning the scheme, but at any time thereafter during the period the scheme is being implemented. Conceding that before the Court sanctions the scheme, it partakes the character of an emerging contract between the company and the creditors and members; once the Court approves it, it becomes a statutorily enforceable contract even on dissidents, with power in the Court to modify, amend or correct or revise the contract the outer periphery or its limits on the power being that, after testing it on the anvil of probabilities, surrounding circumstances and the prevalent state of affairs, it can be done for the proper working of the compromise and arrangement, and, subject to this limit on the Court's power, the power seems to be absolute and of the widest amplitude and it would be unwise to curtail it by process of interpretation."

Again in Ram Lai Anand v. Bank of Baroda and others [(1976) 46 Comp. Cas. 307], a decision of a Division Bench of Delhi High Court, following observations appear at page 313:-

"Under Section 392, the High Court has the power to supervise the carrying out of the compromise or arrangement which has been sanctioned by it under Section 391. Further, it has the power to give directions either at the time of sanctioning the compromise or at any time thereafter in regard to any matter for the proper working of the'" compromise or arrangement. The Court has the power even to modify the compromise in order to make it work satisfactorily. The order under Section 392 can be passed by the Court suo motu and it is not necessary for it to wait for an application for the purpose. While ensuring the proper working of one part of the compromise which requires the appellant to give up his rights, the Court is not prevented from giving directions in regard to the other part of the compromise dealing with the obligations of the company. It is 'true that no hard and fast rules can be laid for the manner in which the Court will exercise its powers under Section 392: and there may be cases where the Court will insist on the performance of one part of the compromise leaving the other part for consideration at some future occasion, especially when the two parts are not dependent on each other".

The matter was examined, rather in details, by a learned Single Judge of Delhi High Court in a subsequent case reported as Dr. Ved Mitra v. Globe

Motors Ltd. [(1978) 48 Comp. Gas. 64] and the following views were expressed:--

"In order to appreciate the legal position, it is necessary to notice the change brought about in this respect by the Companies Act, 1956, after the introduction of Section 391 instead of the old Section 153 of the Act of 1913. The position under the old Act was explained by the Judicial Committee in [1939] 9 Comp. Gas 1 .(P.C.) Any scheme of arrangement which had become operative by virtue of the sanction given by the Court under Section 153 of the old Act (of 1913) became binding on the creditors and shareholders of the company whose terms could thereafter be varied by the Court only after the variation had been approved at a meeting of the creditors and shareholders. The Judicial Committee repelled the argument that it was possible for a company and its directors to vary the scheme under the guise of a compromise with the creditors and shareholders; there could be no validation by mere acquiescence of the shareholders and creditors. In Natore Kamala Bank Ltd. 's case. [1937] 7 Comp. Gas. 178 (Cal), Lord Williams J. had held that the powers of the Court under Section 153 of the old Act were strictly limited; the Court may either sanction or refuse to sanction a scheme approved by a company and its creditors or members and the Court has no power, upon an application, to alter the scheme which has been sanctioned by the Court after having been approved by the creditors and members without giving them a fresh opportunity for considering the scheme in the way the Court proposed. Since this result was found extremely inconvenient in practice, the legislature brought in a new provision, namely Section 392, giving the Court power to sanction modification of the scheme, already approved by it, without directing a fresh meeting of the creditors and members. Since there was nothing more in the old Act than the said provision (Section 153), corresponding to present Section 391, and there was no further provision corresponding to present Section 392, the legislature thus clearly intended to clothe the Court with such special powers in the larger interest of overseeing whether the scheme was being worked satisfactorily or could be worked with some modifications; the Court could, even without giving an opportunity to the shareholders and creditors to consider those modifications, order the existing arrangement to continue instead of winding up the company. It is a permissible manner of gathering legislative intent by seeking to find out the mischief to be avoided and the remedy to be promoted. On the language of Section 392 and in the above context, it appears that an alternative has now been given to the Court to order winding up in the event of a scheme already approved by the Court not being possible to work, "with or without modifications". It may be noticed

that the power under Section 392 to do so has been conferred on the Court in a manner that will permit the exercise of the said power not only on any application made to it but even suo motu."

Referring to an unreported decision of the same Court, it was further observed: "The learned Judge also held that the contention which was put forward to the effect, namely, that the Court had no power to accord.'any sanction to modification of the scheme which already has been sanctioned without directing a fresh meeting was not sound and that the Court enjoyed such a power under the Companies Act of 1956 and the rules framed thereunder, as noticed above". In India, the question stood settled, once for all, with the decision of a Full Bench of Indian Supreme Court reported as S.K. Gupta and another v. K.P. Jain and another [(1979) 49 Comp. Cas. 342]. The following observations appear at page 351 of the Report:--

"When a detailed compromise and/or arrangement is worked out, hitches and impediments may arise and if there was no provision like the one in S. 392, the only obvious alternative would be to follow the cumbersome procedure as provided in S. 391(1), viz., again by approaching the class of creditors or members to whom the compromise and/or arrangement was offered to accord their sanction to the steps to be taken for removing such hitches and impediments. This would be unduly cumbersome and time consuming and, therefore, the legislature in its wisdom conferred power of widest amplitude on the High Court under S. 392 not only to give directions but to make such modification in the compromise and/or arrangement as the Court may consider necessary, the only limit on the power of the Court being that such directions can be given and modifications can be made for the proper working of the compromise and/or arrangement. The purpose underlying S. 392 is to provide for effective working of the compromise and/or arrangement once sanctioned and over which the Court must exercise continuous supervision [see S. 392 (1)], and if over a period there may arise obstacles, difficulties or impediments, to remove them, again not for any other purpose but for the proper working of the compromise and/or arrangement. This power either to give directions to overcome the difficulties or if the provisions of the scheme themselves create an impediment, to modify the provision to the extent necessary, can only be exercised so as to provide for smooth working of the compromise and/or arrangement. To effectuate this purpose the power of widest amplitude has been conferred on the High Court and this is a basic departure from the scheme of the U.K. Act in which provision analogous to S. 392 is absent."

Needless to mention that the observations of Gujrat High Court in the case ofMansukhlal referred to above, were quoted, with approval, by the learned

Judges of Supreme Court in the afore-mentioned case of S.K. Gupta. In Mysore Electro Chemical Works Ltd. v. Income Tax Officer, Circle-I, Bangalore [(1982) 52 Comp. Gas. 32] it was observed that Sections 392 and 394 of the Indian Companies Act, 1956, had set at rest the old controversy as to whether the Court sanctioning a scheme retains jurisdiction thereafter to issue any directions. We are, therefore, clearly of the view that reliance hy the learned counsel for the appellant on the cases of Mahigang Loan Office Ltd. v. Behari Lai Chaki and In re: Comrade Bank Ltd. supra is totally irrelevant, in view of the provisions of Section 285 of the Ordinance which confers on the Court sanctioning a scheme plenary powers not only to give directions, but it can also make modifications in the scheme for its proper working.

1. Lastly, learned counsel for Respondent No. 1 also took exception to the maintainability of the application (C.M. No. 225-L of 2003) whereby recall of the order, dated 4.3.2003 sanctioning the scheme of merger/amalgamation of the appellant and Respondent No. 1 and as a consequence thereof coming into being a new company by the name of "CALCORP MULTI LEASING LIMITED", was sought. His precise objection was that the person, namely, Mr. Kamal Khan, who filed the application on behalf of the appellant-company had not been authorized by the Board of Directors to file the said application.

C.M. No. 225-L of 2003 was filed supposedly on behalf of the appellant-company by Mr. Kamal Khan, posing himself as "its Chief Executive" and having been authorized to institute the said petition through Resolutions, dated 4.3.2003 and 25.3.2003 passed by the Board of Directors. In order to deal with the objection of learned counsel for Respondent No. 1, we have examined the two Resolutions. The same are reproduced below:--

Resolution dated 4-3-2002

"It was unanimously resolved that Mr. Kamal Khan, Chief Executive and Mr. Man Mahmood, Marketing Executive are authorized to sign singly and jointly plaints, Written Statements, Wakalatnamas, sign and verify the petition(s), affidavits, Counter affidavits and any other related documents, to act and appear on behalf of the company and to do and perform all other act, deeds and things in all legal proceedings as are necessary for the preparation and filing of recovery suits against defaulters of the company, when it deemed necessary."

Resolution dated 25.3.2003.

"It was resolved that in view of unilateral, unjustified and illegal actions taken by CALCORP necessary steps should be taken including negotiations/legal action in order to protect the interests of IML shareholder. Mr. Saleem Saigol, Advocate be appointed on a fee with mutual understanding for which the Chief Executive is

authorized to make payment and subsequently inform the Board in the next meeting".

1. A bare reading of the first Resolution, dated 4.3.2003 shows that Mr. Kamal Khan and Mr. Man Mahmood were authorized to act on behalf of the company and to sign and verify, jointly and singly, all kinds of pleadings "necessary for the preparation and filing of recovery suits against defaulters of the company, when it deemed necessary". (Emphasis has been supplied by us). The language of the Resolution does not admit of any doubt, nor more than one meaning can he given to it. In plain language, it was not all pervading but was restricted to institution of recovery suits against defaulters of the company, nothing more nothing less. Moreover, in Annex-B to the petition, wherein the Resolution has been reproduced, it is inter aliamentioned: "Extracts of the Minutes of Board of Directors Meeting of International Multi Leasing Corporation Limited held on March 4, 2003 at 11.00 a.m.". The date of this Resolution is the same as is the date of the order' whereby the scheme had been sanctioned. We have been the original file. The order is spread over four pages. May be, by 11.00 a.m. the appellant- company was not even aware of the contents of the order, and, therefore, we can safely assume that by the first Resolution, dated 4.3.2003, the Board of Directors had not authorized Mr. Kamal Khan to file C.M. No. 225-L of 2003 seeking recall of the order, dated 4.3.2003.

2. So far as the second Resolution, dated 25.3.2003 is concerned, it appears, the Board of Directors, aggrieved of certain actions of "CALCORP" which had come into being consequent upon sanctioning of the scheme of merger/amalgamation of the appellant and Respondent No. 1, had authorized the "Chief Executive" to appoint "Mr. Saleem Saigol, Advocate" for taking necessary steps including negotiations/legal action in order to protect the interests of "IML Shareholder", on a fee to be settled with mutual understanding, to make payment thereof, and subsequently to inform the Board in the next meeting. Obviously, by means of this second Resolution as well, the "Chief Executive" had not been authorized to file C.M. No. 225-L of 2003 for re-call of the order, dated 4.3.2003 whereby the Scheme for merger/amalgamation of the two companies was sanctioned. In this view of the matter, the objection of the learned counsel for Respondent No. 1 that Mr. Kamal Khan was not a duly authorized person to have filed C.M. No. 225-L of 2003 on behalf of the appellant-company, is not without substance, and we hold that Mr. Kamal Khan was only an eminence guise.

3. By means of C.M. No. '664 and C.M. No. 878 of 2003, the appellant has attempted, during the course of hearing of this appeal, to bring on record certain documents to show that after the impugned orders, dated 4.3.2003 and 12.6.2003, had been passed, the financial health of the respondent-company has suffered adversely, as per latest Balance Sheet. If the appellant can be permitted to introduce fresh evidence, particularly $he B one which has come into existence after the decision by the learned Judge, it

will be opening a Pandora's box and there will be no end to litigation. In Kassowji Issur u. G.I.G. Railway (34 LA. 115) their Lordships of the Privy Council held that if the evidence could have been tendered in the lower Court it was not a substantial cause for producing it in appeal. In Hakim All v. Member Power, WAPDA (PLD 2002 Lahore 28) a Division Bench of this Court has held that when a person has not pleaded something and has not built up his case on the specific assertion before the learned Single Judge, he is precluded from taking such a plea before the appellate forum in Intera Court Appeal. After going through the case-law cited at the Bar, and the language of Order XLI, Rule 27 itself, we are of the view that since the appellant had ample opportunity of producing documents, which were indisputably in its possession, but it elected not to do so, rather rested its case on C.M. No. 225-L of 2003 as it stood, he ought not to be allowed to trender documents sought to be produced now before us by means of C.M. Nos. 664 and 878 of 2003, at the fag end of the arguments in this appeal. Under the said provision, parties are not entitled to produce additional evidence, whether oral or documentary, in the appellate Court. Additional evidence at appellate stage can be received only if it is deemed essential for pronouncing the judgment, the material already on record being not sufficient to enable the appellate Court to come to a definite conclusion. In the view of the matter we take, C.M. Nos. 664 and 878 of 2003 for production of additional documents have no merit and are accordingly dismissed.

1. The upshot of the above discussion is that the impugned orders, dated 4.3.2003 and 12.6.2003 of the learned Single Judge do not suffer from any error of approach or a jurisdictional defect. Consequently, the appeal fails and is hereby dismissed, leaving the parties to bear their own costs.

(B.A.) Appeal dismissed.

PLJ 2004 Lahore 648

Present: MUHAMMAD MUZAMMAL KHAN, J. MUHAMMAD MUNIR and 5 others-Petitioners

versus MUHAMMAD IQBAL and 73 others-Respondents

W.P. No. 5289 of 2003, decided on 24.12.2003. Civil Procedure Code, 1908 (V of 1908)--

—-O.XIV, R. 1, 5-Framing of issue-Partition suit-Second report of Local Commission was also objectioned-Saving property from auction-Preliminary decree had already been passed declaring the property in dispute as joint—Defendant tried to introduce objection regarding jointness of property through amendment of written-statement but failed upto High Court--No issue regarding partability or otherwise can be framed without having any backing in the pleading-Petition dismissed.

[P. 651] A

Mr. Sadaqat All, Advocate for Petitioners.

Mian Israrul Hag, Advocate for Respondents Nos. 1-46.

Ex Parte for other respondents.

Date of hearing : 12.12.2003.

judgment

This Constitutional petition seeks judgments/orders dated 25.3.2003 and 7.4.2003 passed by Civil Judge and Additional District Judge, Sialkot. respectively, to be Declared as illegal, void and ineffective.

1. A short factual background of the case is that a suit for partition was filed on 4.6.1984 claiming the properties mentioned in Para 1 of the plaint, as detailed in its three subparagraphs, to be joint between the parties. In this suit after contest between the parties, a preliminary decree was passed on 18.10.1995. Muhammad Munir and others filed an appeal against the preliminary decree but remained unsuccessful as' it was dismissed on 31.7.1999. Under the preliminary decree, the learned trial Judge appointed Syed Ijaz Hussain Naqvi, Advocate, as a local commission, who submitted his report after site inspection but on objections to it, the same was set aside and a fresh commission was appointed. Second report of the local commission was also subjected to objections by the parties and during the course of arguments on the objections, the parties agreed for sale of property through auction, consequently, auction of the property was ordered on 4.2.2003.

2. Petitioners appear to have made certain efforts to save the property from auction as per order dated 4.2.2003 passed by the trial Court by filing some application for amendment of their written statement and few other applications, but could not succeed in their purpose of having an order, staying auction of the property. Petitioners then moved an application under Order XIV, Rule 5 CPC praying that their property has been included by the respondents in the plaint which, as a matter of fact, is not joint. According to the petitioners' assertion, their predecessor Umar Din along one Muhammad Ibrahim purchased certain property through a registered sale- deed dated 5.3.1945 in equal shares. Petitioners who along respondents, are descendants of Umar Din, purchased share of Muhammad Ibrahim, co- vendee of Umar Din their predecessor through a registered sale-deed dated 19.4.1958. Their claim is that property mentioned in Para 1 of the plaint, which has further been detailed in Para 7 of the plaint by the respondents, is the entire property purchased by both Umar Din and Ibrahim vide sale-deed dated 5.3.1945 and also includes their half share purchased by them from Muhammad Ibarhim vide sale-deed dated 19.4.1958.

3. Respondents contested the application of the petitioners and out of this contest learned Civil Judge vide his order dated 25.3.2003 dismissed it. Petitioners' revision before the Additional District Judge also failed on 7.4.2003. They have now come up in Constitutional jurisdiction of this Court for annulment of both the judgments/orders of Civil Judge and Additional District Judge, as noted above.

4. Stance of the learned' counsel for the petitioners is that respondents being brothers and sister and living jointly, were not aware of the sale-deed in favour of Muhammad Sadiq deceased father of -the petitioners, at the time of filing of written statement. According to him, both sale-deeds relied by the parties dated 5.3.1945 and 19.4.1958 are registered and being 30 years old documents carry a presumption of correctness and if these documents are read along the plaint of the respondents, it becomes clear that property purchased by Muhammad Sadiq from Muhammad Ibrahim is exclusive ownership of the petitioners, which cannot be made subject of partition suit. He also submits that failure of both the Courts below to frame issues, is claimed to have prejudiced proprietary rights of the petitioners.

5. Conversely, learned counsel for the respondents refuted assertions of the petitioners, supported the impugned judgments/orders and urged that petitioners were party to the partition suit and had filed their written statement but no such objection, was raised by them in their written statement. According to him, during entire contest of the suit, they did not raise any kind of objection to the partability of the property now claimed to. be their exclusive ownership. According to him, petitioners attempted to raise this objection by filing an application under Order VI, Rule 17 CPC praying amendment of their written statement, but it was refused up to the level of this Court. Learned counsel for the respondents further elaborated his arguments by saying that without there being any assertion or denial in the pleadings, issues claimed and that too after passing of preliminary decree, cannot to be framed. He also submits that preliminary decree was also challenged in appeal but after its dismissal, the decree has become final between the parties.

6. I have anxiously considered respective arguments of the learned counsel for the parties and have examined the record appended herewith. Undeniably, property mentioned in Para 1-B ( ) further detailed in Para 7 of the plaint, is the same, which was purchased through sale-deed dated 5.3.1945 and this fact has duly been narrated by the respondents themselves in Para 7. I have examined this sale-deed, copy of which is appended with this petition at Page 50-A. It was executed by one Fazal Hussain son of Hakim-ud-Din caste Arain, resident of Mouza Mayanapura, Sialkot City regarding the property above noted, in favour of two persons i.e. Mistri Umar Din son of Blund Bakhsh and Muhammad Ibrahim son of Shah Muhammad. Both these vendees were brothers-in-law, inter se, as asserted by the counsel for the petitioners and they purchased this property in equal

shares. There is another sale-deed at Page 47, which was executed by Muhammad Ibrahim son of Shah Muhammad on 19.4.1958 in favour of Muhammad Sadiq son of Umar Din, transferring his share purchased by him under sale-deed dated 5.3.1945. Vendee under this sale is father of the petitioners. These documents have their evidentiary value as claimed by the petitioners and prima facie show • that share of Muhammad Ibrahim purchased by farther of the petitioners Muhammad Sadiq, has been included in the plaint and has been made part of the joint property, but this objection was not raised by the petitioners in their written statement or at'any subsequent stage of the proceedings in the suit, which has matured into a preliminary decree. After dismissal of appeal by the appellate Court against preliminary decree, it can no more be attacked and it, at least, declares two things; firstly, properties mentioned in the plaint to be joint and secondly, shares of the parties therein.

1. Filing of application for framing of issues under Order XIV, Rule 1 CPC is of no benefit of the petitioners because at this stage of the proceedings in the suit, no issue regarding partability or otherwise of the property, already declared to be joint through preliminary decree, can be framed. Petitioners themselves are aware of the situation, as they had earlier attempted to amend their written statement without which the issues claimed, cannot be framed. Under Order XIV, Rule 1 CPC a fact asserted and denied, can only be brought to issues but the issues sought to be framed, have no backing in the pleadings, thus no indulgence can be shown in favour of the petitioners. Both the Courts below have rightly decided the present dispute regarding framing of issues. Respondents 73 and 74 have passed their orders within the framework of their jurisdiction, provided by law. Jurisdiction vesting in them is not shown to have been exercised arbitrarily and fancifully. Orders passed within .competence/jurisdiction cannot be declared as prayed. This petition has no merit in it and is accordingly dismissed with no order as to costs.

(J.R.) Petition dismissed.

PLJ 2004 Lahore 651

Present: ch. ijaz ahmad, J.

Dr. ZAFAR-ULLAH CHAUDHRY-Petitioner

versus

GOVERNMENT OF THE PUNJAB through CHIEF SECRETARY, PUNJAB SECRETARIAT, LAHORE and another-Respondents

W.P. No. 17955 of 1999\ decided on 13.2.2004. (i) Civil Procedure Code 1908 (V of 1908)--

—-O.XVII, R. 1-Constitution of Pakistan (1973), Art. 199-Adjournment-Cannot be granted in old cases as a routine matter without prior adjustment or consent of opposite counsel specially when such note has been given on the cause list issued by the office to advocates—The counsel of petitioner did not bother to send written request for adjournment one day prior to date of hearing-Counsel of petitioner had not sent associate or requested any advocate to request for adjournment on his behalf- Declined adjournment and decided on merit. [Pp. 652 & 653] A

(ii) Lahore Development Authority Act, 1975 (XXX of 1975)--

—-Ss. 14, 38 & 48-Constitution of Pakistan (1973), Art. 199-Modern City Planning-Paramount object of modern city planning seems to ensure maximum comforts for the residents of city by providing maximum facilities and orderly arrangements of residential business and industrial parts of the city-Public functionaries can not be allowed to defeat such objective in any manner. [P. 654] B

(1999 SCMR 2883 and 2001 CLC 1589 rel.)

Nemo for Petitioner.

Mr. Muhammad Hanif Khatana. Addl. Advocate General for Respondent No. 1.

Mian Muzaffar Hussain,Advocate/legal advisor of the Respondent No. 2(LDA).

Date of hearing: 13.2.2004.

order

1, intend to decide the following writ petitions by one consolidated order having similar facts and law:~

(i) W.P. No. 17955-99, (ii) W.P. No. 17957-99, (iii) W.P. No. 17958-99, (iv) W.P. No. 17959-99, (v) W.P. No. 18934-99, (vi) W.P. No. 18935-99, (vii) W.P. No. 18936-99.

1. The learned counsel of the petitioner has sent a written request for adjournment; which is produced in Court today. Office issued cause list to the respective members of the bar with the following note:-

"The old cases will not be adjourned except with prior adjustment or with the consent of opposite counsel."

The learned counsel for the petitioner did not get the case adjusted well in time, in terms of the aforesaid note. Even the learned counsel of the petitioner did not bother to send written request for adjournment one day prior to the date of hearing. Learned counsel for the petitioner has not even sent any associate or requested any advocate to request for adjournment on his behalf. Copy of the adjournment has been sent by the learned counsel for the petitioner through his clerk in the Court today. In view of the aforesaid circumstances, I am not inclined to adjourn the case and decide the aforesaid writ petitions on merit.

1. The petitioner has filed the aforesaid writ petitions with the prayer that respondents have no lawful authority to convert the Green -Belt into a commercial Car Park. The contents of the writ petitions further reveal that action of the respondents is without lawful authority as the respondents have no lawful authority to change the master plan, which was sanctioned at the time of the scheme inquestion qua the residential area.

2. Learned legal advisor of the respondent-LDA submits that the ownership of the area vests with the Provincial Government and the LDA is not undertaking the work for the constructions of Public Car Para in the area. Respondent No. 2 has also received a complaint in this regard.

3. Mr. Muhammad Hanif Khatana, Addl. Advocate General, submits that action of the respondents is in accordance with law.

4. I have given the anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is pertinent to mention here that respondents were directed to file report and parawise comments in the year 1999 but Respondents Nos. 1 and 3 failed to file report and parawise comments till date. Office sent notices to the parties on 17.1.2004 for 13.2.2004. The representative of Respondents Nos. 1 & 3 did not enter appearance despite repeated calls. Respondent No. 2 has taken stand that Respondent No. 2 has not converted the green belt into commercial car park. Respondents Nos. 1 & 3 did not file as mentioned above, report and parawise comments. It would be appropriate to reproduce the objective of modern city planning from chapter Encyclopaedia Britannic, 1963 Edition, referred by the Honourable Supreme Court in "Abdul Razzak. vs. Karachi Building Control Authority and others" (PLD 1994 S.C. 512). The relevant observation is as follow:

Goals of Modern City Planning

The ultimate goals were social although the plans themselves related to physical thing. They were deeply involved with intermediate economic objectives. The expression of the goals was, of course, coloured by the culture of the society seeking them. In the U.S. and countries following western European traditions, the ideal urban environment would reconcile the maximum opportunity for individual choice with protection for the individual from the adverse effects of the actions of others. Within this philosophy, city planning would probably seek: (1) the orderly arrangement of parts of the city- residential, business, industrial, etc. so that each part could perform its functions with minimum cost and conflict; (2) an

efficient system of circulation within the city and to the outside world, using the maximum advantage all modes transportations: (3) the development of each part of the city to optimum standards, as of lot size, sunlight and green space in residential areas, and parking building spacing in business areas; (4) the provision of safe, sanitary and comfortable housing in a variety of dwelling types to meet' the needs of all families; (5) the provision of recreation, schools and other community services, of a high standard of size; location and quality, (6) the provision of adequate and economical water supply, sewerage, utilities and public services.

In any community, these goals might be supplemented by special goals, such as preservation of a historical area, or the protection of property values, or the efficient conduct of Government. On occasion, the goals of some powerful special interests might be inconsistent with those of others; e.g. the preservation of slum property values and the provision of adequate housing. Furthermore, the statement of ideal goals required the use of relative terms, such as "adequate" "high standard" etc, which are relative rather than absolute, and change from time to time. Therefore, inherent in the concepts was the recognition that an ideal is not a fixed objective, but itself will changes; that the idea city can be striven toward, but never achieved."

From the above quoted passage from Encyclopaedia Britannica, it is evident that the concept of modern city planning inter-alia envisages the orderly arrangement of parts of the city-residential, business and industrial etc. so that each part could perform its functions with minimum cost and conflict. The paramount object of modern .city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities referred to hereinabove. It must, therefore, follow that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. Deviation from the planned scheme will naturally result in discomfort and inconvenience to others. Respondent No. 3 in the above quoted paras 15 to 17 of the memo, of petition has rightly highlighted that the Society in which the plot is situated was planed on the assumption that a 273 square yards would have normal residential and not flats.

1. The Honourable Supreme Court reiterated and re-affirmed the aforesaid view in "Ardeshir Cowasjee and 10 others, vs. Karachi Building Control Authority (KMC), Karachi and 4 others" (1999 S.C.M.R. 2883). This Court has also followed the said view in "New Garden Town Welfare Society (Registered) through President, vs. L.D.A and 2 others" (2001 C.L.C. 1589). The Honourable Supreme Court also affirmed the earlier view in Abdur Razzak's case in judgment dated 19.4.2003 passed in Civil Petition No. 3772-L/2001 and in C.P. No. 3170-L/2002.

2. In view of what has been discussed above, these Constitutional petitions are disposed of with the direction to the respondents to look into the matter and pass an appropriate order strictly in accordance with law keeping in view the aforesaid principles preferably within 3-months after receiving the order of this Court. They are further directed to submit their report to the Deputy Registrar (J) of this Court within stipulated period. Mian Muzaffar Hussain, Advocate/legal advisor of the respondents (LDA) and Muhammad Hanif Khatana, Addl. Advocate General are directed to notify the order to the respondents for necessary action and compliance.

With these observations these writ petitions are disposed of. (J.R.) Petitions disposed of.

PLJ 2004 Lahore 655

Present: MIAN SAQIB NlSAR, J.

NAZAR MUHAMMAD and 2 others-Petitioners

versus GHULAM MUSTAFA and 3 others-Respondents

C.R. No. 451 of 1998, decided on 16.1.2004. (i) Civil Procedure Code, 1908 (V of 1908)--

—S. 152-Correction of decree-Court has the powers even suo motu to correct the decree sheet-Application could be moved by consent-There is absolutely no bar of limitation in this regard. [P. 656] A

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

—- S. 152-Application for the correction of decree sheet could be made even . after expiry of the period of limitation for its execution. [P. 657] B

Mr. Shahbaz Khursheed, Advocate for Petitioners. Rao Tariq Chaudhry, Advocate for Respondents. Date of hearing : 22.12.2003.

judgment

Mst. Raj Bibi, the predecessor-in-interest of the respondents, on the basis of inheritance, filed a suit for possession with regard to M share of the land measuring 164 Kanals and 2 Marias, which suit was decreed by the learned Civil Judge on 30.1.1980. She did not apply for the execution of the decree seeking possession, but subsequently on 25.1.1992, her legal heirs/respondents, moved an application for the correction of the decree, stating therein that, the decree has been passed to the extent of full land i.e. 164 Kanalsand 2 Marias, whereas the entitlement of Mst Raj Bibi is only to the extent of 82 Kanals and 1 Maria therefore, it should be corrected accordingly. This application was allowed by the learned Civil Judge, but without notice to the petitioners. However, after the requisite amendment of the decree, in the execution process, the respondents got such amended decree executed, through the process of the Court and got the physical possession of their share, when the petitioners, moved an objection petition, claiming that the decree could not have been amended after the lapse of time for execution; it was illegally amended without notice to the petitioners; besides that before issuing the warrants for possession, notice was not issued to the petitioners. The objection petition was allowed by the learned Executing Court videorder dated 30.11.1995. However, on appeal filed by the respondents, which was accepted on 2.3.1998, the objection petition has been dismissed.

1. Learned counsel for the petitioners contends that, no correction in the decree could have been allowed after the expiry of period of limitation and that too without notice to the petitioners; moreover, the execution application was barred by time, therefore, it was in-executable and should have been straightaway dismissed. Lastly, it is submitted that no notice, at any stage of the proceedings, either in the correction process of the decree, or in the execution, was issued to the petitioners, which has rendered the entire proceedings and the orders, void ab-initio. In support of his contentions, learned counsel has relied upon the judgments reported as Land AcquisitionOfficer (B & R), Hyderabad us. Seth Allahdino (1983 CLC (Karachi) 865) and Pakkiri Muhammad Rowther vs. L. Swaminatha Mudaliar (AIR 1938 Madras 573).

2. I have heard the learned counsel for the parties and find that, Mst. Raj Bibi was enforcing her right of inheritance and had clearly claimed in the suit the half share of the suit land measuring 164 Kanals and 2 Mariaswhich means that precisely, her entitlement was 82 Kanals and 1 Maria. The suit was decreed as was not finally contested by the defendants, rather conceded, and had attained finality. However, due to a conspicuous error in the decree-sheet, instead of 82 Kanals and 1 Maria, full land measuring 162 Kanals and 2 Mariaswas mentioned. Therefore, until and unless the decree was amended, corresponding to the claim of Mst. Raj Bibi, the same was not executable. It is settled law that, for the purposes of correction of a decree-sheet, so as to bring it in line with the judgment, the

| | | --- | | |

Court has the powers even to suo moto make the correction, or an application in this behalf by the concerned party, can be moved at any time. There is absolutely no bar of limitation in this regard. Resultantly, even if, the legal heirs of Mst. Raj Bibi had applied for the correction of the decree after the lapse of 12 years, yet the Court, without notice, as a matter of duty, being satisfied that the request is genuine and bona fide and the mistake in the decree is apparent, conspicuous and floating on the face of the record, could correct the decree without notice to the opposite side. In such situation, the rule of violation of hearing principles shall not be applicable.

1. The other argument that, after the lapse of period provided for the execution of the decree, no amendment could have been allowed, also/has no force because, in the facts and circumstances of this peculiar case, the decree had attained the finality, but due to error of the Court,'the true area was not mentioned therein, rather the area given was even beyond the claim ^ of Mst. Raj Bibi, which could not have been so, therefore, either on pointation of the concerned party or on its own motion, the Court, even after the expiry of the period of limitation for the execution could grant the amendment, as has been done in the present case. The two judgments cited by the learned counsel for the petitioners, have no relevance to the facts and circumstances of the case.

2. It may be pertinent to state here that, when repeatedly

questioned by the Court, if there was any impediment in the way of the Court to have disallowed the amendment of the decree; if an application in this behalf was moved within three years time, and that the petitioners would have any valid defence to resist the decree, the learned counsel for the petitioners has not been able to give any plausible answer. Therefore, in exercise of my revisional jurisdiction, I do not find this to be a fit case for interference when it would vividly be an injustice to a person who, had got the decree in his favour, but the decree-sheet was incorrectly drawn by the Court, should be deprived of the fruits of the decree, as the principle that, no one should be prejudiced by the act of the Court, is squarely applicable to the case in hand.

In the light of above, this revision petition has no force and is hereby

dismissed.

CJ.R.) Petition dismissed.

PLJ 2004 Lahore 657

[Rawalpindi Bench Rawalpindi]

Present: maulvi anwar-UL-HAQ, J. ZAHID PERVAIZ-Petitioner . versus

COMMISSIONER RAWALPINDI DIVISION RAWALPINDI and 3 others-Respondents

W.P. No. 1405 of 1999, heard on 18.11.2003.

Stamp Act, 1899 (II of 1899)--

—-S. 50(3)-Constitution of Pakistan (1973), Art. 199-Refund of stamp amount-Application of petitioner for refund was rejected for having not been filed within statutory period in terms of S. 49(d)(5) of Stamp Act 1899-Reasons to why document in question, was not registered or presented for registration would not at all be relevant-Section 50(3) of Stamp Act 1899 would be applicable which prescribes period of six months for any stamp paper which has beer\«executed by any of the parties through any instrument-Impugned order of respondents refusing to refund that application for the same was not presented within 2 months was found to be wholly without jurisdiction and the same were declared to be without lawful authority and set aside-Respondents were directed to issued of stamp in question to petitioner. [P. 658] A

Mr. So/id Ilyas Bhatti, Advocate for Petitioner. Syed Sajjad Hussain Shah, AAG for Respondents. Date of hearing : 18.11.2003.

judgment

In order to execute a sale-deed the petitioner purchased non-judicial stamp of the value of Rs. 60,000/- on 9.3.1994. The document was executed on 31.3.1994. However, the document could not be presented for registration. It is also stated that the petitioner became infected with viral Hepatitis and remained on bed. On 2.6.1994, he filed an application for refund of the stamp. This was rejected by the Collector on 5.6.1994 on the ground that the refund could have been applied for within two months and since the application has been filed beyond the said time refund cannot be made. The petitioner filed a revision petition which was dismissed by the Commissioner, Rawalpindi Division, Rawalpindi on 13.8.1997.

1. Learned counsel for the petitioner contends that both the orders are misconceived inasmuch as the document had been executed and it was a case covered by Section 50(3) of the Stamp Act. 1899. According to the learned counsel, Section 49(d) (5) of the said Act is not attracted at all, as refund was not sought on the said reasons recorded in the said later provision of law.

2. Syed Sajjad Hussain Shah, learned AAG has, on the other hand, tried to argue that it was a case of refusal of execution covered by Section 49(d) (5) of Stamp Act, 1899.

3. I have given some thought to. the respective contentions of the learned counsel the parties. Now there is no denial that the document was executed on the said stamp papers and that it was so executed by or on behalf of the said vendor. This being so, reasons as to why the document was not registered or presented for registration would not at all be relevant. Section 50(3) of the said Act prescribes a period of six months for any stamp paper which has been executed by any of the parties through an instrument. This being so, the impugned orders are found to be wholly without jurisdiction. Writ petition accordingly is allowed and the impugned orders are declared to be without lawful authority and are set aside. Respondents are directed to issue refund of the said stamp to the petitioner immediately.

(A.A.) Petition accepted.

PLJ 2004 Lahore 659

[Rawalpindi Bench Rawalpindi]

Present: muhammad muzammal khan, J. RIAZ KHAN and 3 others-Petitioners

versus

MUHAMMAD AMIR and another-Resppndents C.R. No. 528-D of 1998, decided on 12.12.2003. (i)

Specific Relief Act, 1877 (1 of 1877)--

---S. 12-Decree in suit for specific performance of agreement to sell, assailed by subsequent vendors-Executant did not deny execution of agreement, to sell, instead execution of the same was denied by subsequent vendors-Plaintiff in proof of execution of document, in question produced two marginal witnesses and scribe of the same—Minor discrepancies found in statement of such witnesses were of no significance as the same were not with regard to execution of documents in question-Defendant failed to produce any material .evidence except statement of one witness whose evidence remained un-corroborated-Besides, defendant failed to produce executant in support of their defence that they have no knowledge of earlier agreement to sell and were bonafide purchasers for consideration-Defendants had knowledge that plaintiff was in possession of land in question, thus, they could not be presumed to have no knowledge of previous sale-Mere denial of existence of agreement to sell, by subsequent purchaser, was not enough to bring him within purview of bonafide purchaser for value without notice, unless he proves that he underwent due inquiry about the same, from all possible sources.

[Pp. 661 & 662] A, B, C & D

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

—S. 12-Civil Procedure Code, 1908 (V of 1908), S. 115-Judgments and decrees of Courts below whereby plaintiffs suit for specific performance of agreement to sell was decreed, assailed-Decree and judgment of Courts below was in consonance with evidence on record—No misreading or non- reading of evidence having been proved, interference in concurrent findings of fact were not permissible in revisional jurisdiction, therefore the same were maintained and confirmed. [Pp. 662 & 663] E

1995 CLC 1977; PLD 1995 Lahore 395; 1992 CLC 1678; 1992 SCMR 1442

ref.

Mr, Khalid Ikram Khatana, Advocate for Petitioners, Mr. Muhammad Munir Khan, Advocate for Respondents. Date of hearing : 3.12.2003.

judgment

This Civil revision calls in question judgments and decrees dated 30.11.1995 and 3.3.1998 passed by the Civil Judge and the Additional District Judge, Jhang, respectively, deciding lis against the petitioners.

1. Precisely, facts relevant for the disposal of this petition are that Muhammad Amir-respondent No. 1 filed a suit for specific performance of an agreement to sell dated 20.3.1989 whereby, Mahboob Alam Qadari (Respondent No. 2) an allott of land measuring 100 kanals of Chak No. 11/3 Thai, Tehsil and District Jhang agreed to sell his this land in his favour, for an amount of Rs. 30,000/- who after receiving an amount of Rs. 25,000/- as earnest money executed the agreement to sell dated 20.3.1989. Sale-deed in favour of Respondent No. 1 was to be executed after conferment of proprietary rights to Respondent No. 2 (Mahboob Alam Qadari). Who after acquiring proprietary right sold this land to the petitioners vide Mutation No. 2275 dated 6.4.1989 which necessitated filing of suit.

2. Petitioners being defendants in the suit contested it by controverting the allegations in the plaint and denied execution of the agreement to sell dated 20.3.1989. Petitioners claimed themselves to be bonafide purchasers, for valuable consideration, without notice of-the agreement which was claimed by them to be forged. Original owner/allottee who was Defendant No. 1 before the trial Court did not appear in the suit and was preceeded against exparte.Controversial pleadings of the parties necessitated framing of issues and recording of evidence respective of the parties. The trial Court after doing the needful on 20.11.1995 decreed the suit of the Respondent No. 1 and annulled the Mutation No. 2275 dated 6.4.1989 attested in favour of the petitioners.

3. Petitioners aggrieved of the decision-dated 20.11.1995 of the trial Court, filed an appeal before the Additional District Judge Jhang, but remained unsuccessful, as their appeal was dismissed on 3.3.1998. They have now come up in the revisional jurisdiction of this Court for setting aside the concurrent judgments of both the Courts below.

4. Learned counsel for the petitioner submits that Respondent No. 1 could not prove due execution of agreement to sell dated 20.3.1989 and thus his suit could not have been decreed. He further contends that there are material contradictions in the statements of PWs which show the agreement to sell (Ex.P.l) is a forged document. He in this behalf relied on the case of Ghulam All Shah and another Versus Abbas Alt and 5 others (1995 CLC 1977) and Muhammad Yaqoob and others versus Naseer Hussain and others(PLD 1995 Lahore 395). Learned counsel for the petitioner further submits that the petitioners are bonafide purchaser for valuable consideration, without notice of any agreement in favour of Respondent No. 1 and thus their purchased is protected under law. In support of his submissions, he referred to judgments of the Honourable Supreme Court in the case of

Muhammad Ashraf Versus Ali Zaman and others reported as (1992 SCMR 1442) and (1992 CLC 1678).

1. Learned counsel for the Respondent No. 1 has not only controverted the submissions of the petitioners but besides supporting the judgments of the two Courts below, urged that execution of agreement dated 20.3.1998 by Respondent No. 2 is proved beyond any .shadow of doubt. He further contends that Respondent No. 1 was in possession of the land in question but petitioners did not inquire before purchase of land in dispute from him and thus they cannot be graded as bonafide purchasers, without notice. Learned counsel for Respondent No. 1 elaborating his arguments submitted that petitioners could not deny execution of Ex.P.l, as they are not party to it. He further adds to his agreement by saying that the petitioners should have produced Mahboob Alam Qadari (Respondent No. 2) in the witness box to rebut impact of evidence of the Respondent No. 1. He also claimed that concurrent findings of facts recorded by the two Courts below, are immune from interference in the revisional jurisdiction.

2. I have anxiously examined the respective contentions of the,' learned counsel for the parties and have perused the record appended herewith. Undeniably Respondent No. 2 did not appear before the .trial Court and was proceeded against exparte.He being executant of Ex.P.l (agreement to sell) did not deny its execution and instead execution of this document was denied by the petitioners, which is not much material. Respondent No. 1 in order to prove execution of Ex. P.I and receipt whereunder the earnest money was paid by him (Ex. P.2) produced three witnesses. PW. 1 is Allah Dad, who is a marginal witness of both the agreement and receipt (Ex. P. 1 and Ex. P.2) who besides proving these documents deposed that Respondent No. 2 agreed to sell his allotted land to Respondent No. 1. A similar is the statement of PW. 2 Fazal who is also a marginal witnesses of both these documents and besides proving these documents deposed regarding receipt of earnest money by Respondent No. 2 PW. 3 is Attique scribe of these documents who supported the version of Respondent No. 1, as stated by PW. 1 and 2 and 'made a categorical statement that Respondent No. 2 signed these document, in his presence. Execution of Ex. PI and 2 by Respondent No. 2 is thus proved to the hilt which were executed on 20.3.1989 and statements of PWs were recorded on 10.10.1995. Now if there be any minor discrepancy, not with regard to execution of these documents but only regarding situation and the manner in which those witnesses arrived at the spot, are neither fatal to the suit nor are of such a nature, to make these documents forged. Such minor discrepancies are bound to happen by lapse of time especially when the witnesses the illiterate.

3. Petitioners in order to rebut the evidence of the Respondent No. 1 produced no material evidence except statement of one of them as DW. 1, there is no corroboration of this statement of DW. 1, who simply stated that agreement to sell is fictitious, in absence of any evidence in support of fictitiousness of agreement, especially when the petitioners were in a position to produce the owner/executant of it (Mahboob Alam Qadari) in the witness box, deliberately with held him and obviously presumption would be that had he appeared in the witness box, must have supported the. case of Respondent No. I, agreement to sell cannot be graded as asserted by the petitioners.

4. Petitioners claimed themselves to be bonafide purchasers for valuable consideration, without notice of agreement to sell in favour of the Respondent No. 1. The only evidence available on the- file is statement of DW. 1 which also does not show that petitioners undertook any inquiry, before purchase of land from Respondent No. 2. Copy ofjamabandi for the year 1977-78 (Ex. P. 3), and copy of khasra girdawan (Ex. D.I) show that' land in question was in possession of Respondent No. 1 though as an illegal occupant yet DW. 1 did not depose that they went to inquire from Respondent No. 1, before its purchase. There is no cavil with the proposition that a bonafide purchaser without .notice is protected under law but as observed above, there is no evidence on the file in support of this claim of the petitioners who had themselves graded the agreement as a forged document which in itself shows that petitioners did not opt to any inquire about existence or other wise, of the agreement between the respondents.

5. Section 53-A of Transfer of Property Act, rights of a bona fidepurchaser without notice of any earlier agreement to sell by the owner, are protected but under law, mere denial of existence of an agreement to sell, by the subsequent purchaser, is not enough to bring him within the purview of a bona fide purchaser, for value, without notice of it, duly proved to have been executed by his vendor/owner and would not protect his purchase and his rights, thereunder, unless and until he proves that he underwent due inquiry about it, from all the possible sources. In a. similar case of Mst.Khair-ul-Nisa and 6 others Versus Malik Muhammad Ishaque and 2 others PLD 1972 Supreme Court 25, the Honourable Supreme Court, very candidly mandated that such an inquiry is necessary and proof, thereof has to be brought on file. Alike view was taken in the case of Mst. Surraya Begum andothers Versus Mst. Suban Begum and others (1992 SCMR 652), the High Court also gave judgment on the same lines in the case of Muhammad Shaft Versus Muhammad Sarwar and others (1997 CLC 1231). In the instant case, petitioners neither conducted any such inquiry nor produced an iota of evidence, in this behalf, rather, as noted above, DW.l deposed nothing on this point. I, consequently, respectfully following the above noted judgments, hold that petitioners are bona fidepurchasers, without notice of the agreement to sell in favour of Respondent No. 1 and thus their purchase, during it, is not protected, under law.

6. From what has been discussed above, I am of the considered view that both the Courts below have rightly granted the Respondent No. 1, the decree prayed for which is in consonance with the evidence on the file. No misreading or non-reading of evidence, has been proved, in absence of which no interference in concurrent findings of facts is permissible in revisional jurisdiction of this Court. Reappraisal of evidence and substitution

of view, concurrently taken by the two Courts below is not within the purview of Section 115 CPC. Both the Courts below have committed no illegality or irregularity. This revision petition having no merit in it is accordingly dismissed leaving the parties to bear their own costs.

(A.A.) Petition dismissed.

PLJ 2004 Lahore 663

Present: ch. ijaz AHMAD, J.

WAPDA/LESCO through its SUB-DIVISIONAL OFFICER, SUB-DIVISION

BUCHIKI, TEHSIL NANKANA SAHIB, DISTRICT

SHEIKHUPURA-Petitioner

versus

M/s. BHATTI ICE AND RICE MILLS, BUCHIKI, TEHSIL NANKANA SAHIB DISTRICT SHEIKHUPURA through its PROPRIETOR .' and anothers-Respondents

W.P. No. 10868 of 2003, decided on 16.12.2003. ' (i) Constitution of Pakistan (1973)--

—Art. 19,9—High Court had no jurisdiction to substitute its findings in place of finding of tribunals below in exercise of its constitutional jurisdiction.

[Pp. 664 & 665] A

(ii) Constitution of Pakistan (1973)--

—-Art. 199-Constitutional petition was not maintainable against concurrent findings of Tribunals below. [P. 665] B

(iii) Constitution of Pakistan (1973)--

—-Art. 199-Discretionary jurisdiction of High Court when not exercisable- Petitioner had not impleaded Electric Inspector as respondent, therefore, constitutional petition was not maintainable-Besides, admittedly petitioner was granted several opportunities by Electric Inspector to file reply of petition of respondent, however, petitioner failed to file reply of petition therefore, petitioner contention that order of electric inspector was hit by principle of natural justice, has no force-No body is allowed to get benefit of his own misdeed-Constitutional jurisdiction is discretionary in a character, he who seeks equity, must come to Court with clean hands. [P. 665] C

(iv) Constitution of Pakistan (1973)--

—Art. 199-Decision of case against petitioner on account of ih-action of its officials-Copy of writ petition was directed to be sent to petitioner for proceedings against its defaulting official under Efficiency and Discipline Rules and to complete such process within specified time and action taken against those officials be communicated to Court through Deputy Registrar Judicial within that specified period. [Pp. 665 & 666] D

PLD 1973 Lahore 600; PLD 1964 SC 260; 1974 SCMR 279; PLD 1981 SC 246; PLD 1981 SC 522; PLD 1973 SC 236 and 1998 SCMR 1461 ref.

Mr. Shabbir Ajmal Jaffery, Advocate for Petitioner.

Mr. Muhammad Hanif Khatana, Addl. A.G. on Court's Call.

Date of hearing: 16.12.2003.

order

The brief facts out of which present writ petition arises are that the' petitioner sent a bill in-question to Respondent No. 1 Respondent No. 1 being aggrieved filed Constitutional Petition No. 1458-99, which was disposed of by this Court. Subsequently, the respondent filed ICA No. 102-99, which was also disposed of by the Division Bench of this Court with the direction to the Chief Engineer of LESCO to pass appropriate order after providing proper hearing to the petitioner after verifying the relevant record. The Chief Engineer of LESCO decided the case against Respondent No. 1. Respondent No. 1 being aggrieved filed a complaint before the Electric Inspector, who accepted the same vide order dated 11.7.2001 with the condition to pay initial detection correct bill amounting to Rs. 1,47,750-; whereas final detection bill of Rs. 3,93,301/- was declared void. The petitioner being aggrieved filed an appeal before the Advisory Board, who dismissed the same vide order dated 23.4.2003. The petitioner being aggrieved filed the present writ petition.

1. The learned counsel for the petitioner submits that both the tribunals below have decided the case against the petitioner without applying their independent mind and without proper appreciation of evidence on record. He further submits that the Inspector has decided the case against the petitioner in violation of principle of. natural justice. He further submits that the Advisory Board has counter-signed the order of the Inspector.

2. The learned law officer entered appearance on Court's call, he submits that the writ petition is not maintainable.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

4. The Inspector has afforded several opportunities to the petitioner to file written reply of the application filed by Respondent No. 1, but the petitioner did not bother to submit written reply of the application for-the reasons best known to the petitioner, therefore, the Inspector was constrained to struck off the right of the petitioner to file- reply of the application, vide his order dated 4.9.2000. The Inspector after granting proper hearing to both the parties and after proper appreciation of evidence, accepted the application of Respondent No. 1 vide order dated 11.7.2001. Thereafter, order of the Inspector was up-held by three members of the Advisory Board after proper appreciation of evidence on record, vide

\ impugned order dated 23.4.2003. It is settled principle of law that this Court : has no jurisdiction to substitute its findings in-place of findings of tribunals

below as per law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:-

"Board of Intermediate Education, LHR. vs. M. Mussadaq Naseem Sindhu" (PLD 1973 Lahore 600)

"Syed Azmat Ali vs. The Chief Settlement Rehabilitation Commissioner." (PLD 1964 S.C. 260)

It is settled principle of law that the Constitutional petition is not maintainable against the concurrent findings of the tribunals below as per law laid down by the Honourable Supreme Court in the following judgments:—

"Khuda Bakhsh. vs. Muhammad Sharif and another." (1974 S.C.M.R 279)

"Muhammad Sharif, etc. vs. Muhammad Afzal Sohail, etc." (PLD 1981 S.C. 246)

"Abdul Rehman Bajwa vs. Sultan etc." (PLD 1981 S.C. 522)

It is admitted fact that the petitioner has not impleaded the Electric Inspector, Government of Punjab as respondent, therefore, the Constitutional petition is not maintainable as per principle laid down by the Honourable Supreme Court in "Rameez-ul-Haq's case" (PLD 1992 S.C. 221). It is also admitted fact that the petitioner was granted several opportunities by the aforesaid Electric Inspector to file reply of the petition of Respondent No. 1 but the petitioner failed to file the same, therefore, contention of the learned counsel of the petitioner that the order of the electric Inspector is hit by the principle of natural justice, has no force. It is also settled principle of law that no body is allowed to get benefit of his own'mis-deed. It is also settled principle of law that the constitutional jurisdiction is discretionary in a character, he who seeks equity, must come to the Court with clean hands.

1. Keeping in view of the aforesaid circumstances and the conduct of the petitioner, I am not inclined to exercise my discretion in favour of the petitioner, as per principle of law laid down by the Honourable Supreme Court in "Nawab Syed Raunaq Ali's case" (PLD 1973 S.C. 236) and "Rana Muhammad Arshad's case" (1998 SCMR 1461). It is admitted fact that the case was decided against the petitioner on account of in-action of the official/officer of the petitioner, therefore, the keeping in view of this aspect of the present case, let a copy of writ petition be sent to the Chairman, WAPDA, who is directed to constitute a high powered committee to probe into the matter, who is responsible officer/official, who did not file reply of application of Respondent No. 1 within prescribed period and did not pursue the case diligently. In case, the committee finds any officer/official who did not pursue the matter before the Electric Inspector diligently, then he is directed to proceed against the delinquent officer/official under (Efficiency & Discipline) Rules. He is also directed to complete this process within 3-months after receiving the order of this Court. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period. Office is also directed to provide one copy of this order to Mr. Muhammad Hanif Khatana, Addl: Advocate General, who is directed to send the same to the Chairman WAPDA for necessary action and compliance.

With these observations, the writ petition is disposed of. (A.A.) Order accordingly.

PLJ 2004 Lahore 666

Present: MBS. FAKHAR-UN-NlSA KHOKHAR, J. FAZAL DIN-Petitioner

versus

FARZAND ALI and 3 others-Respondents C.R. No. 1160-D of 1998, decided on 19.1.2004.

Punjab Pre-emption Act, 1991 (I of 1991)--

-—S. 6(2) Talab-e-Muwathibat-Elements of plaint-Suit was contested issues were formulated and evidence was produced but since in the plaint elements of Zaroorat and Zarar have not been mentioned in the plaint, the learned Courts below keeping in view the pleadings of parties that knowledge of sale was joined by the Pre-emptor 8/9 days before institution of suit and no specific date or time had been mentioned, therefore, the making of Talab-e-Muwathibat which was necessary suit for pre-emption could not be proved moreover, it was necessary that Zaroorat or Avoidance of Zarar was to be pleaded in the plaint in terms of Section 6(2) of Punjab Pre-emption Act, 1991-Revision dismissed.

[P. 667] A.

Mr. Seerat Hussain Naqui, Advocate for Petitioner. Mr. Zia Ullah Khan Niazi, Advocate for Respondents. Date of hearing : 13.1.2004.

judgment

Brief facts in the instant civil revision are that suit for possession through pre-emption was filed by the petitioner, the same was contested, evidence was produced and the learned trial Court dismissed the suit by way of rejection of plaint under Order VII, Rule 11 CPC. On appeal the learned appellate Court videjudgment and decree dated 27.5.1998 affirmed the judgment and decree passed by the learned trial Court, hence this Civil Revision.

1. Arguments advanced by learned counsel for the petitioner are that the petitioner was non-suited on the basis of proof pertaining to Zarar and Zaroorat, which is declared contrary to the injunctions of Islam vide "Haji Rana Muhammad Shabbir Ahmad Khan vs. Govt. of Punjab Province, Lahore" (PLD 1994 S.C. I) and the plaintiff could not be non-suited in view of

aforesaid judgment without affording opportunity to the petitioner to prove the requirement of Talab-e-Muwathibat, which was duly incorporated in the plaint.

1. Learned counsel for the respondent relied on "Mst. Bashiran Bibi'vs. Muhammad KashifKhan" (PLD 1995 Lahore 200) wherein it is held that pre-emption suit instituted on 15.11.1989 i.e. during the interregnum period existance of zaroorat and avoidance of zarar was necessary in accordance with dictates of Section 6(2) of the Apt. Elements of Zaroorat and avoidance of zarar being conspicuously absent in the plaint of pre-emption before Supreme Court's decision had taken effect. Plaint in pre-emption suit was materially defective and had been rightly rejected on that score. Effect of the decision of Supreme Court (PLD 1994 S.C. 1) whereby Sections 6(2) and 35(2) of Punjab Pre-emption Act being repugnant to the injunctions of Islam is w.e.f 31.12.1993, therefore, both the learned Courts below have rightly rejected the plaint and non-suited the plaintiff, 4. I have heard the learned counsel for the parties and perused the impugned judgments of both the learned Courts below. Although the suit was contested, issues were formulated and evidence was produced but since in the plaint elements of zaroorat and zarar have not been mentioned in the plaint, the learned Courts below keeping in view the pleadings of parties that knowledge of sale was gained by the pre-emptor 8/9 days before institution of suit and no specific date or time has been mentioned, therefore, the making of talab-e-muwathibat which is necessary for a suit for pre-emption could not be proved. Moreover, it was necessary that zaroorat or avoidance of zarar was to be pleaded in the plaint in terms of Section 6(2) of Punjab Punjab Pre-emption Act 19,91. The suit was filed on 13.2.1989 during the interregnum period of 1.8.1986 to 13.2.1989 was to be filed in terms of Section 35(2) of the Punjab Pre-emption Act 1991, where it was necessary to mention the elements of zaroorat and avoidance of Zafar for filing a suit for pre-emption and also talab-e-muwathibat. Plaint in pre-emption suit was rejected on these both counts on account of lack of mentioning zaroorat and zarar and also not proving talab-e-muwathibat.

2. As far as "Haji Rana Muhammad Shabbir Ahmad Khan vs. Govt.of Punjab Province, Lahore" (PLD 1994 S.C. 1) is concerned this will positively be applied prospectively w.e.f. 31.12.1993. It will not apply retrospectively to a suit filed on 13.2.1989, therefore, the learned appellate Court keeping in view the judgments "Muhammad Ishaque and others vs.District Judge, Sargodha and others"(PLD 1993 Lahore 456) and "Muhammad Ismail Qureshi and others vs. Govt. of Punjab and others"(PLD 1991 FSC 80) has rightly rejected the plaint filed by the petitioner. No interference by this Court is required in the concurrent findings of both the learned Courts below. Instant civil revision is dismissed.

(J.R.) Revision dismissed.

PLJ 2004 Lahore 668

Present: ch. ijaz ahmad, J.

GOVERNMENT OF THE PUNJAB through SECRETARY HOUSING &

PHYSICAL PLANNING, PUNJAB, LAHORE

and anothers-Petitioners

versus

MUHAMMAD ASHRAF-Respondent C.R. No. 2290 of 2003, heard on 4.12.2003. (i)

Constitution of Islamic Republic of Pakistan 1973-

—Arts. 4 & 5(2)-Public functionaries are duty bound to act in accordance with law. [P. 670] A

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

—-S. 115--Appreciation of evidence-First Appellate Court has a right to come to different conclusion by re-appraisal of evidence-High Court could not interfere such conclusion under Section 115 unless it finds some jurisdictional defect or any material irregularity-Petition dismissed. [P. 670] B

Mian Muhammad Athar, Advocate for Petitioner's. Date of hearing: 4.12.2003.

order

The brief facts out of which the present revision petition arises are that the petitioners allotted a plot inquestion in favour of respondent on 25.4.1982. The possession slip was also issued by the petitioners to respondent on 2.4.1983. The petitioners sent National Identity Card of the respondent to the Registration Authority for verification. The Registration Authority found that the National Identity Card of respondent is fictitious and bogus. The petitioners canceled the plot of the respondent vide order dated 8.12.1996. The respondent being aggrieved filed a suit for declaration with permanent injunction in the Court of Civil Judge 1st Class, Gujranwala, on 25.1.1997. The contents of the plaint reveal that the Plot No. 28-30/X-5 was allotted to respondent by the petitioners-defendants on the basis of an application dated 25.6.1981 vide letter dated 25.4.1982 and in pursuance of that allotment the possession slip dated 2.4.1983 was also secured by the respondent-plaintiff from the Petitioner-defendant No. 2. The respondent constructed the house over the plot inquestion after obtaining possession from the petitioners-defendants. The contents of the plaint further reveal that after some years a person of District Sargodha having collusive with the petitioners-defendants submitted an application before Petitioner No. 1, who canceled the allotment of the plot inquestion and included the said plot in auction lease. The contents of the plaint further

reveal that respondent-plaintiff produced a copy of the National Identity Card No. 286-51-472758 dated 28.4.1994 and Domicile Certificate No. 10839/14 dated 18.12.1993 before the petitioners-defendants but despite that they cancelled the allotment of the plot inquestion in the name of the respondent-plaintiff vide order dated 8.12.1996. The petitioners filed written statement, controverted the allegations levelled in the plaint and took a stand in the written statement that it has been established in the result of inquiry that the National Identity Card, which has been produced by the respondent-plaintiff for the allotment of the disputed plot was bogus .'and fake and the same had been issued in the name of some Ashiq Ali son of Abdul Sattar and as such the particulars and person of respondent-plaintiff had been found fictitious. The trial Court out of the pleadings of the parties framed the following issues:-

(i) Whether the plaintiff lacks cause of action to file this suit? OPD

(ii) Whether the suit is not maintainable and defendants are entitled to compensatory costs if so, to what extent? OPD

(iii) Whether the cancellation of plot from plaintiffs name is against law and facts therefore, ineffective against the rights of the plaintiff? OPP

(iv) Relief.

1. The learned trial Court dismissed the suit vide judgment and decree dated 30.3.2002. The respondent being aggrieved preferred an appeal before the learned Addl. District Judge, Gujranwala, who accepted the same vide judgment and decree dated 16.7.2003, hence, the present revision petition.

2. The learned counsel of the petitioners submits that judgments of both the Courts below are at variance. He further submits that First Appellate Court did not advert to the reasoning of the trial Court and reversed the findings of the trial Court, which is based on surmises and conjectures. He further submits that the First Appellate Court erred in law to arrive at a different conclusion on the basis of the evidence on the record qua Issue No. 3, which was material issue between the parties. He further submits that respondent secured a plot by playing fraud with the petitioners, therefore, the trial Court was justified to dismiss the suit of the respondent- plaintiff whereas the First Appellate Court erred in law to accepted the appeal of the respondent-plaintiff.

3. I have given may anxious consideration to the contentions of the learned counsel of petitioners and perused the record.

4. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:-

(i) Respondent submitted the application for allotment of the plot inquestion on 25.6.1981;

(ii) Petitioner No. 2 issued allotment letter to respondent-plaintiff on 25.4.1982;

(iii) Petitioner No. 2 also issued possession slip to respondent-plaintiff on 2.4.1983; (iv) Respondent-plaintiff had paid all the dues to the petitioners;

(v) The petitioners cancelled the plot inquestion from the name of the respondent-plaintiff vide letter dated 8.12.1&96.

In case the aforesaid facts are put in juxta position then the principle of locus poenitentiae is attracted in all respects, therefore, the First Appellate Court was justified to reverse the findings of the trial Court, which is in consonance with the law laid down by the Honourable Supreme Court in Abdul Hameed's case (PLD 1969 S.C. 407). It is pertinent to mention here that there is no column in the application form to be filled by the respondent-plaintiff by mentioning the number of his National Identity Card, therefore, the trial Court erred in law to non-suit the respondent-plaintiff whereas the First Appellate Court was justified to reverse the findings of the trial Court as there is no condition precedent in the rules and regulations of the petitioners at the time of submitting the application by the respondent-plaintiff to mention the number of National.Identity Card in the application form. It is settled principle of law that public functionaries are duty bound to act in accordance with law as is envisaged by Article 4 of the Constitution read with Article 5(2) of the Constitution. The action of the petitioners is in derogation of their own rules and regulations, therefore, the First Appellate Court was justified to accept the appeal of the respondent-plaintiff, which is in accordance with the law laid down by the Honourable Supreme Court in Ali Mir's case (198.4 SCMR 433). It is also settled principle of law that the First Appellate Court has a right to reappraisal the evidence on record and after reappraisal to come to a different conclusion as the law laid down by the Privy Council in "N.S. Vankatagiri Ayyangar and another vs. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The judgment of the Privy Council was followed by this Court in "Board of Intermediate & Secondary Education, Lahore vs. Syed Khalid Mehmood". (NLR 1985 Civil 114). It is pertinent to mention here that the judgment of this Court was up-held by the Honourable Supreme Court. The Privy Council has laid down the following Principle in the cited judgment to interfere while exercising powers under Section 115 C.P.C.:-

"This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court, has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied r'non thoso threo matters, it has no nower to interfere\

differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."

The learned counsel of the petitioners failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment, therefore, I do not find any infirmity and illegality in the judgment of First Appellate Court.

In view of what has been discussed above, this revision petition has no merit and the same is dismissed.

(J.R.) . Petition dismissed.

PLJ 2004 Lahore 671

Present: muhammad muzammal khan, J. KHAIRAT MASIH (deceased through legal heirs)-Petitioners

versus

AZIZ SADIQ-Respondent C.R. No. 2411 of 2003, decided on 23.12.2003. (i)

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

—-O.VII R. ll Objection that suit was barred by time is a mixed question of law and fact. [P. 673] A

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

—S. 11-Principle of res judicata-Not applicable where earlier suit was withdrawn and so was not decided on merits. [P. 673] B

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

—O. II, R.2-Bar contained under the provision is not available where decision has not been given on merits. [P. 673] C

2003 SCMR 1284 ref.1999 SCMR 2396, 1988 CLC 1207 ref.

Ch. Muhammad Arshad, Advocate for Petitioners. Date of hearing : 23.12.2003.

order

This revision petition assails judgment/order dated 27.9.2003 passed by the learned Additional District Judge, Lahore accepting appeal of the respondent and remanding the case to the trial Court with a direction to frame all the necessary issues, to record evidence on merits to hear the parties and to decide the case afresh.

1. Precisely, relevant facts are that the respondent entered into a tie of marriage with Mst. Barkat Bibi, mother of Khairat Masih deceased, predecessor' of the petitioners, in the year, 1963. The said predecessor of the petitioners' at that time, was a child of 4/5 years old, was born from earlier husband of Mst. Barkat Bibi and respondent was his step-father. According to the respondent, he brought up Khairat Masih deceased, like his own child, during this brought up, he occupied a plot in Kachi Abadi,' Shah Jamal, Lahore, 'in the year, 1966. Government of the Punjab, in the years 1979-80 decided to provide alternative accommodation to the inhabitants of KachiAbadi, Shah Jamal, Lahore, in LDA quarters, Township Scheme and price of a quarter was fixed at Rs. 17,500/-, out of which, an amount of Rs. 7000/- was subscribed by the Government of Punjab and the balance amount was to be paid through loan of House Building Finance Corporation, arranged by Lahore Development Authority, payable by the allottee through instalments. In this manner, the respondent claimed ownership of quarter No. 171-A, Township Scheme, Lahore, whereafter he claimed to have transferred it, out of love and affection with predecessor of the petitioners, in his name, the respondent claimed that transfer in favour of Kairat Masih was Benami and real owner is the respondent.

2. The petitioner's predecessor being a defendant in the suit contested it by asserting that the respondent has no cause of action to file the suit, besides the objection of maintainability of the suit on account of earlier withdrawal of a similar suit vide order dated 9.1.2002 wherein, no permission was granted for filing fresh suit. The petitioners' predecessor on merits, claimed that he purchased this quarter out of his own labour and efforts. The suit of the respondent was also claimed to be barred by limitation.

3. Pending this suit, an application under Order VII,-Rule 11 CPC was filed by the deceased defendant that plaint is liable to be rejected as the suit is barred by limitation, as well, under the principle of res-judicata. This application was contested by the respondent and the learned trial Judge who was seized of the matter, accepted the application of the petitioner and rejected the plaint of the respondent under Order VII, Rule 11 CPC vide his judgment/order dated 20.11.2002.

4. The respondent aggrieved of the decision of the trial Court dated 20.11.2002 filed an appeal before the Additional District Judge and succeeded in having the said decision annulled, as his appeal was accepted and the case was remanded vide judgment/order dated 27.9.2003, as noted above. It appears that Khairat Masih, died in the meanwhile and petitioners who are his heirs/legal representatives have now filed this revision petition, challenging the appellate judgment/order, remanding the case to trial Court, as noted above.

5. Learned counsel for the petitioners submits that suit of the respondent was barred by limitation, as well as, under the principle of res-

judicata and Order II, Rule 2 CPC, as'such, plaint was rightly rejected by the learned trial Judge but on appeal, a well reasoned judgment, has erroneously been reversed by the appellate Court. He further submits that no fruitful purpose will be served on account of remand of the case, which cannot succeed on merits, as well, because the petitioners predecessor was not a Benamidar.

1. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record appended herewith. Appellate Court has taken the view that both the grounds urged in support of rejection of plaint i.e. limitation and res-judicata cannot be decided without recording of evidence. Undeniably, limitation is a mixed question of law and facts and cannot be determined without recording of evidence. Under law, limitation for filing of a declaratory suit, the like one in hand, stalls from the date of denial of title of the plaintiff, which in the instant case was pleaded to be in the year, 1999; From this time, suit which was filed on 28.10.2001, appears to be within limitation. Be that as it may, if the petitioner can show at the trial, by evidence that from the very beginning their title had been hostile, obviously, thereafter the suit which can be held to be barred by limitation. The proposition that plaint cannot be rejected on the ground that it is barred by limitation, it being a mixed question of law and facts, is settled by this time. My this view gets support from the judgment in the cases of Tariq Mehmood vs. Najam-ud-Din (1999 SCMR 2396) and Abdur Rahim vs. Karachi Development Authority (1988 CLC 1207).

2. Coming to the other ground on which the plaint was rejected by the learned trial Judge that the suit is hit under the by principle of res-judicata, as the respondent earlier filed a suit for permanent injunction and withdrew it on 18.7.2001 without permission to file fresh suit, on the basis of same cause of action, second suit is barred. Since earlier suit was withdrawn and was not decided on merits, principles of res-judicata are not applicable. A reference can be made in the case of Punjab Board of Revenue, Employees Cooperative Housing Society, Limited versus Additional District Judge, Lahore (2003 SCMR 1284). The petitioner urged bar contained in Order XXIII, Rule 1(3) CPC or under Order II, Rule 2 CPC. Earlier suit was simplicitor for permanent injunction, on the basis of his ownership whereas this suit has been filed for declaration, challenging ownership of the petitioners as Benamidars. A suit which has not seen adjudication and decision on merits of the case, can in no manner, create bar, envisaged by Order II, Rule 2 CPC. Hence, bar contained in both these provisions of law, referred to above, are not applicable. Both the grounds on which the plaint was rejected by the trial Court, could only be determined by recording of evidence and has so been held by the Hon'ble Supreme Court of Pakistan. All the above findings are tentative in nature but plaint, in this case, does disclose a cause of action and prima facie, was not barred by any law hence, plaint, therein, could not have been rejected. The order of remand, subject of attack in this revision petition, has caused no prejudice to the petitioners as both these grounds, have been put to issues and after recording of evidence of the parties, shall be decided by the trial Court, on merits.

3. Learned counsel for the petitioner complains that determination of suit on merits will delay the decision and since controversy between the parties can be resolved on the basis of the above discussed to legal points, those may be ordered to be treated as preliminary. Provisions of Order XIV, Rule 2 CPC are clear on the subject whereunder the petitioners, after framing of entire issues, as directed by the appellate Court, can move an application to trial Court, for treating issues of law, as preliminary and to decide those before proceeding with the merits of the case. These provisions are mandatory in nature and can in no manner be ignored by the trial Court.

4. For what has been discussed above, I am of'the considered view that the appellate Court has taken a rightful decision and has correctly remanded the case for decision, as observed by it. No illegality or irregularity has been committed by the appellate Court, in absence of which no interference is called for in the revisional jurisdiction of this Court. This revision petition has not merit in it and is, accordingly, dismissed in liminewith no order as to costs.

(J.R.) Petition dismissed.

PLJ 2004 Lahore 674

Present: MUHAMMAD MUZAMMAL KHAN, J. MUHAMMAD YOUSAF alias BALA-Petitioner

versus

KHUDA DAD and 11 others-Respondents C.R. No. 2326 of 2003, heard on 9.2.2004. (i)

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

—-O.XXVI, R. 10(3)-Report of Local Commissioner-Objection raised by any party-It was obligatory for the Court to decide such objections first one way or the other—While doing so Court may confirm the report or direct such further inquiry as may be necessary. [P. 677] A

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

—O.XXVI, R. 10--The Court was needed to apply its conscious judicial mind while adjudicating the objections i.e. confirming or setting aside the report of local commission. [P. 677] B

PLD 1967 Dacca 774, AIR 1937 All. 65 ref.

Malik Amjad Parvez, Advocate for Petitioner. „

Ch. Muhammad Ikram, Advocate for Respondents Nosv 1-2.

Nemo for Respondents Nos. 3-12.

Date of hearing: 9.2.2004.

judgment

This civil revision assails judgments and decrees dated 6.3.2003 and 15.7.2003 passed by the learned Civil Judge and learned Additional District Judge, Sialkot, respectively, deciding lis against the petitioner.

1. Precisely, relevant facts are that Respondents Nos. 1 and 2 filed a suit for permanent injunction against the petitioners and Respondents Nos. 3 to 12 claiming ownership over two plots measuring 5 marlas and 4 marlas,as per boundaries given in the plaint, situated within the revenue estate of Bonkan. Tehsil and District Sialkot. They pleaded that their plots bear Khasra No. 615 Khewat No. 62 Khatoni No. 246, as those were purchased by them through two registered sale-deeds dated 3.12.1980. Respondents Nos. 1 and 2 further asserted in their plaint that they are owners in possession of the plots but petitioner and Respondents Nos. 3 to 12 have threatened to encroach upon their land, by show of force. According to Respondents Nos. 1 and 2, petitioner and Respondents Nos. 3 to 12 had no such right, title or interest in the land in possession of the respondents/plaintiffs.

2. Petitioner b'eing a defendant in the suit contested it by filing his written statement and pleaded that no doubt Respondents Nos. 1 and 2 have purchased Khasra No. 615, but boundaries mentioned in the plaint relate to Khasra No. 624 owned by him. Petitioner also undertook that he has no design to interfere into possession of Khasra No. 615 owned by Respondents No. 1 and 2. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge, who was seized of the matter, in view of a controversy involved between the parties, which related to demarcation of properties, appointed a local commissioner, who visited the spot and submitted his report favouring Respondents Nos. 1 and 2 because the local commissioner observed that land mentioned in the plaint bears Khasra No. 615. This report of the local commissioner was subject to objections by the petitioner and the local commissioner was examined as PW. 1. Those objections were not disposed of and at the same time report of the local commissioner was neither confirmed nor was rejected on the objections of the petitioner, but inspite of it, it was heavily relied by the trial Court while decreeing the suit of Respondents Nos. 1 and 2 vide judgment and decree dated 3.6.2003.

3. Petitioner aggrieved of the decision of the trial Court dated 3.6.2003 filed an appeal before the learned Additional District Judge raising specific objections with regard to report of the local commissioner, but there again he remained unsuccessful as his appeal was dismissed on 15.7.2003 without redress of his grievance regarding determination of his objections to the report of the local commissioner (Exh. P.I). He has now come up in revisional jurisdiction of this Court for setting aside the above referred two judgments and decrees of the Courts helow. Respondents Nos. 1 and 2 in response to notice by this Court are represented through their counsel, whereas Respondents Nos. 3 to 12, who appear to be performa respondents, have opted not to appear despite service and repeated calls in the case, hence they are proceeded against ex-parte.

4. Learned counsel for the petitioner submits that both the Courts below have incorrectly not adverted to objections to the report of the local commissioner (Exh. P.I) and without decision of these objections, report of the local commissioner could not have been relied upon. He further submits that statement of PW. 1 clearly demonstrated that instructions issued by the Financial Commissioner contained in High Court Rules and Orders were not followed while demarcating the land in question and in this manner no proper measurements were done at the spot. It has also been contended that the only controversy, which hinged between the parties is whether the boundaries mentioned by Respondents Nos. 1 and 2 in their plaint relate to Khasra No. 615 purchased by them or to Khasra No. 624 owned by the petitioner, but this controversy remained undecided, in an unlawful manner. It is also the grievance of the petitioner that without confirming report of the local commissioner, it could not have been based upon for decision of the suit.

5. Learned counsel appearing on behalf of Respondents Nos. 1 and 2 has supported the judgments/decrees impugned and denied the assertions of the petitioner, besides urging that the objections of the petitioner were frivolous and baseless, hence required no determination. According to him, no doubt, measurements were not done according to the instructions of the Financial Commissioner but those were undertaken correctly in presence of the petitioner, without any objection from him. It has also been contended on behalf of Respondents Nos. 1 and 2 that reliance on the report of the local commissioner has the effect of confirming the report and there was no necessity to pass any specific order in this behalf. Learned counsel for Respondents Nos. 1 and 2 further submitted that according to revenue record land bearing Khasra No. 615 was owned by Respondents Nos. 1 and 2 wherewith petitioner has no right or title. He also relied on the admission of the petitioner where-under he undertook not to interfere into the land owned by Respondents Nos. 1 and 2. His precise assertion is that after undertaking by the petitioner, he is estopped to file instant revision petition.

6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Case of the petitioner was that respondents Nos. 1 and 2 are owners of two plots measuring 5 marlas and 4 marlas falling in Khasra No. 615, but the land, boundaries of which have been given in Para 1-A (a-b) of the plaint, is owned by him. This controversy could only be resolved through demarcation and the trial Court adopted a rightful procedure by appointing a local commissioner under Order XXVI Rules 9 and 10 CPC. Petitioner .had raised objections to the report of the local commissioner, which were duly

replied by his adversaries through two different replies. On objections by the petitioner, the local commissioner was examined as PW. 1. After this exercise, it was obligatory for the trial Court under Order XXVI Rule 10(3) CPC to decide objections to the report of the local commissioner, one way or the other, and while doing so, to confirm it or if dissatisfied for any reason, to direct such further inquiry as may be necessary, in the circumstances of the case. My this view gets support from the cases of Ahmad Hussain alias Tipu Mia vs. Abdus Samad Shah and others (PLD 1967- Dacca 774) and M. Mariam and another vs. Mt. Amina and others (AIR 1937 Allahabad 65).

1. It is obvious from the express language of Rule 10 of Order XXVI CPC that without adjudication of objections to the report, without accepting or turning down those objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose, trial Court was needed to apply its conscious judicial mind and tl pass a specific order thereon. Undeniably, no such exercise was taken by the trial Court and an unconfirmed report of the local commissioner was banked upon for the impugned decisions. Similarly, appellate Court has not adverted to this aspect of the case inspite of specific objections in the memo of appeal. Since the dispute between the parties was not resolved in a lawful manner, I am left with no other option except to set aside both the judgments and decrees dated 3.6.2003 and 15.7.2003 passed by the learned Civil Judge and learned Additional District Judge, Sialkot,. respectively, which, for the reasons noted above, are done with material irregularities and illegalities inviting invocation of revisional jurisdiction by this Court. This revision petition is consequently accepted and the above referred judgments and decrees are set aside, with the result that suit of the Respondents Nos. 1 and 2 will be deemed to be pending before the trial Court who will decide it afresh after deciding the fate of the report of the local commissioner by adjudication on the objections raised there-against by the petitioner. There will be no order as to costs. Parties are directed to appear before the trial Court on 23.2.2004.

(J.R.) Petition accepted.