PLJ 2005 Judgments

PLJ 2005 Karachi 1

Present : Khilji Arif Hussain, J.

SHAUKAT ALI & 2 others--Plaintiffs

versus

LIAQUAT ALI & 6 others--Respondents

Suit No. 517 of 1993, heard on 28.8.2003.

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

----S. 12(2) & O. VII, R. 11--Validity of Judgment/Order of ejectment challenged by way of independent suit, questioning the same on ground of fraud, mis-representation--Maintainability--Provision of S. 12(2) of C.P.C. bars to file/institute any suit questioning validity of order passed by Court, even if such order had been passed without jurisdiction--Judgment/order of Court having been questioned on ground of fraud and misrepresentation, remedy available to plaintiff is by way of filing application under S. 12(2) C.P.C. and not by way of filing separate suit--Plaint in suit was rejected as being barred under S. 12(2) C.P.C. and not by way of filing separate suit--However, if Rent Controller after hearing parties comes to conclusion that order in question, was based on fraud or misrepresentation, plaintiff would have right to file suit for damages.

[Pp. 5, 6 & 7] A, C & D

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

----S. 12(2)--Suit for damage claiming that impugned judgment/order obtained by opposite party was based on fraud and misrepresentation--Such damages could be claimed only when competent Court holds that order in question was obtained by fraud, misrepresentation and concealment of facts. [Pp. 5 & 6] B

2000 SCMR 296; PLD 2003 Karachi 314 ref.

Mr. Ghulam Ghous, Advocate for Plaintiffs.

Mr. Abdul Waheed Kanjo, Advocate for Defendants.

Date of hearing: 28.8.2003.

judgment

The plaintiffs filed suit for declaration and damages seeking following reliefs :

"(a) Declaring that the Defendants Nos. 2, 3 & 4 have committed professional misconduct, in relation to their professional obligations, in the proceedings before Ist Rent Controller, East, Karachi, in Rent Case No. 598/1992 and Execution No. 15/1993, by concealing the Facts regarding pending proceedings between the plaintiffs and the Defendant No. 1, in disregard/violation of the PROVISO of Article-9 of Qanoon-e-Shahadat, 1984;

(b) Declaring that the defendants have jointly/collusively committed. PERJURY in relation to the proceedings in Rent Case No. 598/1992 and Execution No. 15/1993, before the Rent Controller No. 1, East, Karachi.

(c) Directing the defendants to jointly/severally pay the following amounts to the Plaintiffs on account of DAMAGES/COMPENSATION, per description in para-26 of the plaint, hereinabove :

(i) losses to personal effects Rs. 6 lacs

(ii) losses due to missing of the personal effects. Rs. 5 lacs

(iii) losses to the immovable property due to demolition Rs. 25 lacs

(iv) losses due to payment of monthly rentals, being incurred by the Plaintiffs w.e.f. 1.8.1993. PER MONTH, at the rate of

Rs. 9,000/- per month (until recovery in this suit).

(v) Rs. 70,00,000/- on account of DAMAGES/ COMPENSATION for the TORTS/ WRONGS done to the Plaintiffs.

Rs. 70 lacs

(d) Granting costs of the Suit;

(e) Passing any other order/s deemed just, fit, proper and appropriate under the circumstances of the case."

On 20.8.2003, when the matter was fixed for evidence, it was ordered that the issue. "Whether the suit is barred under Section 12(2), CPC?" will be decided first as preliminary issue and the matter was adjourned to 28.8.2003, on which date, the arguments of the learned counsel for the parties were heard.

Brief facts of the case for the purpose of deciding the issue are that the father of the plaintiffs, namely, Barkat Ali died in the year 1982. He was residing in House No. 296, PIB Colony, Karachi. The said house was purchased jointly by the three brothers of the plaintiffs, namely, Rehmat Ali, Hashmat Ali and Karamat Ali from one Muhammad Iqbal. It is alleged that the said Property was gifted to the father of the plaintiffs on 10.7.1993. It is alleged that Defendant No. 1, who is son of Rehmat Ali and grandson of Barkat Ali, fraudulently managed to fabricate a fake and forged agreement of sale dated 27.3.1968 in respect of the property in question and got the house mutated in his name in the records of rights. The plaintiffs filed Suit No. 1130/1991 against the Defendant No. 1 seeking declaration, cancellation of transfer/mutation in the Court of IVth Senior Civil Judge, Karachi. In the said suit on 19.08.1981 an order was passed restraining the parties not to raise any further construction on the property in question. It is alleged in the plaint that after institution of Suit No. 1130/1991, Defendant No. 1 instituted two suits against the plaintiffs. Suit No. 1142/1991 was instituted during the month of August 1991 for declaration and injunction which is also pending before IVth Senior Civil Judge, Karachi (East) and Suit No. 309/1992 was instituted during the monthly of February 1992 and is also pending before the Ist Senior Civil Judge, Karachi (East). Suit No. 309/1992, filed by the defendant, is for possession and mesne profits. The Defendants Nos. 2 to 4, who are practicing advocates of this Court and as per averments in the plaint, had knowledge about the pendency of these suits, filed Rent Case No. 598/1992, concealing the facts regarding the pendency of suits and obtained ex-parte ejectment order against the plaintiffs. The Rent Case, filed by the Defendant No. 1, was allowed by the learned Rent Controller vide his order dated 15.5.1993. The Defendant No. 1 filed Execution Application No. 15/1993 before the Court on 5.7.1993 and by order dated 8.7.1993, the learned Rent Controller issued writ of possession with police aid. The possession was taken over by the Defendant No. 1 in pursuance of the order passed by the learned Rent Controller.

Being aggrieved by the said order, the plaintiff has filed this suit claiming Rs. 6,00,000/- for the losses to the personal effects/luggage due to breakage, etc. while mishandling the process of ejectment through police, Rs. 5,00,000/- being the losses due to the missing personal effects, which could not be found out after the luggage was thrown out in the street, Rs. 25,00,000/- being the losses sustained in the shape of demolition of the subject house and Rs. 9,000/- per month in terms of monthly rent. The plaintiff also claimed Rs. 70,00,000/- towards his claim of defamation, mental torture and humiliation. The relief claimed by the plaintiffs is that the Defendants Nos. 2 to 4 have committed professional misconduct in relation to their professional duties in the proceedings before the Rent Controller, Karachi in Rent Case No. 598/1992 and Execution No. 15/1993. The plaintiff further sought declaration that the defendants have jointly/collusively committed perjury in relation to the proceedings in Rent Case No. 598/1992 and Execution No. 15/1993 before the Rent Controller.

Heard Mr. Ghulam Ghous, learned counsel for the plaintiffs, and Mr. Abdul Waheed Kanjo, learned counsel for the defendants.

The learned counsel for the plaintiffs argued that in the present suit the plaintiffs are seeking damages under tort and as such the suit is not barred under Section 12(2), CPC. The learned advocate admitted that the application filed by him under Section 12(2), CPC, seeking relief to set aside the order passed by the Rent Controller is pending for adjudication in the Court of Rent Controller. In support of his contention the learned advocate did not point out any provision of law under which relief sought under tort is not hit by the bar under Section 12(2), C.P.C.

On the other hand, the learned counsel for the defendants argued that the plaintiffs are entitled for the relief asked only in case it is held by the competent Court that the order passed by the learned Rent Controller has been obtained by fraud and misrepresentation. He further argued that the application filed under Section 12(2), CPC filed by the plaintiffs is pending before the Rent Controller and the plaintiffs are avoiding to proceed with the said matter though the matter has been listed time and again for hearing.

I have gone through the memo of plaint as well as documents filed by the respective parties and have also taken into consideration the arguments advanced by the learned counsel. The precise question for determination is whether the order passed by the Court has been obtained by fraud and mis-representation or not. The plaintiff filed application in the Court of Ist Rent Controller/Senior Civil Judge, Karachi, under Section 12(2), CPC read with proviso of Article 9 of Qanun-e-Shahadat Ordinance, 1984 and Sections 41 & 54 of the Legal Practitioners & Bar Councils Act, 1973 read with Sections 193 & 196 of the Pakistan Penal Code. In the said application the plaintiffs sought following reliefs:--

(a) Recall, vacate and set aside the order dated 15.5.1993 in R.C. No. 598/92 passed on the Ejectment Application, declaring the same to have been obtained by FRAUD and MISREPRESENTATION ;

(b) Ordering annulment of the orders passed and the proceedings taken in the Execution No. 15/1993;

(c) Restoring possession of the subject premises to the Applicants;

(d) Granting costs to the Applicants;

(e) Sending References to the Sindh Bar Councils against the Respondents Nos. 2, 3 4, above-named for their professional misconduct practiced in these judicial proceedings;

(f) Directing registration of Criminal Complaint with the area Magistrate for prosecution of the Respondents U/Ss. 193/196 of the Pakistan Penal Code.

Section 12(2), CPC has been added in the Code by Ordinance X of 1980. Through this section a new remedy has been introduced by the legislature to provide speedy and cheap relief to the affected parties in case the party establishes that the judgment, decree or order has been obtained by fraud, misrepresentation or want of jurisdiction. The remedy for filing suit challenging the judgment, decree or order by way of filing separate suit, which was available to effected parties, is no more available to the parties, and an order/judgment/decree, passed by the Court, can now be questioned by filing application under Section 12(2), C.P.C. In the instant case the entire claimed is based on the allegation that the order of ejectment passed by the Rent Controller has been obtained by fraud, misrepresentation and due to professional misconduct of Defendants Nos. 2 to 4, who obtained the said order in collusion with each other by concealing material facts from the Court. Since there is a bar to file/institute any suit questioning the validity of the order passed by the Court, even if such order has been passed without jurisdiction, the present suit, in which the plaintiffs seek declaration that the order has been obtained by perjury in relation to the proceedings in Rent Case No. 598/1992 and Execution No. 15/1993, in my view the said declaration cannot be granted.

As regards the claim of the plaintiffs for damages, for which the plaintiffs can claim the same only in case competent Court holds that the order was obtained by fraud, misrepresentation and concealment of the facts. The plaintiffs have no cause of action to claim the damages, which damages, according to them, have been caused to the plaintiffs while executing the order passed by the Rent Controller.

In the case of Mrs. Amina Bibi v. Nasrullah & Others (2000 SCMR 296), the Hon'ble Supreme Court held as under :

"Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redress of his grievance. Firstly,, an application under Order IX, Rule 13, C.P.C.; secondly, an appeal from the ex parte decree under Section 96(2), C.P.C.; a petition for review under Section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by Section 12(2), C.P.C. Here, the petitioner has exhausted her remedies by filing an application under Order IX, Rule 13, C.P.C. and, therefore, on the same ground she cannot be permitted to re-agitate the same issue by means of a fresh petition under Section 12(2), CPC."

It is now settled that a validity of a judgement, decree or order could not be challenged by way of an independent suit, questioning the same on the ground of fraud, misrepresentation or want of jurisdiction.

In the case of Ardeshir Cowasjee & Others vs. KBCA (PLD 2003 Karachi 314), my learned brothers Mr. S. Ahmad Sarwana and Mr. Muhammad Majeebullah Mr. Siddiqui, JJ. held as under :-

"It may, however, be noted that any person, who is adversely affected by a judgment and decree of a Court has the right to file an appeal against the decree as provided by Section 96, C.P.C. The person aggrieved, therefore, has two remedies available to him which exist side by side. Under Section 12(2), C.P.C., the aggrieved person without filing a separate suit can impugn the decree on the ground of fraud, misrepresentation or want of jurisdiction by simply filing an application under the said section supported by an affidavit. To file such an application, the aggrieved person need not be a party in the suit but he has the right to challenge the same if he is aggrieved or is adversely affected by the judgment, decree or order. (See 1984 SCMR 586 and 1999 SCMR 1516). The Code has thus provided an easy and an inexpensive methods of seeking relief without having to pay any Court-fee, which would be required in case a suit were to be filed. At the same time any person, who is aggrieved or is adversely affected by a decree also has the right to file an appeal under Section 96, C.P.C. Both the remedies are concurrent and one does not exclude the other. It is open to the aggrieved party to choose either of the two. The only distinction between the two remedies, in case the person seeking the remedy is not a party in the suit and wants to file an appeal against the decree is that he must show that he is adversely affected by the decree of the trial Court and obtains leave of the Court to appeal (PLD 1969 SC 65 and PLD 1993 Karachi 548)."

In view of above, the plaint is rejected as the same is barred under Section 12(2), CPC with no order as to costs. However, I would like to make it clear that in case the Rent Controller after hearing the parties comes to the conclusion that the order has been obtained by fraud or misrepresentation, in that eventuality the plaintiffs may have a right to file suit for damages, if any, suffered by them and the said suit will be decided by the Court strictly in accordance with law.

(A.A.) Appeal rejected.

PLJ 2005 Karachi 7 (DB)

Present : Sabihuddin Ahmad and

Khilji Arif Hussian, JJ.

KHAISTA KHAN--Petitioner

versus

M/s. INDUS DYEING & MANUFACTURING COMPANY, LTD., HYDERABAD and two others--Respondents

C.P. No. 1727 of 1996, decided on 22.9.2004.

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

----Ss. 22-A(8)(g) and 25-A--Constitution of Pakistan, 1973, Art. 199--Entitlement of emolument Jurisdiction--Petitioner dismissed from service due to misconduct--Contentions--Petitioner was called on duty having leave, but failed to appear--Show-cause notice was issued--Amounted wilful absence from duty punishable as misconduct--Validity--Challenge to--Petitioner did refuse to work as a Auto Cone Operator and insisted that he could only perform the duty of a winder--It is evident from the title of his first application before the Labour Court and the observation in the order that he was working only as "Auto Cone Operator"., As such his refusal to work against that position obviously amounted to misconduct--Other objection as to the proceeding in inquiry appeared to loose their significant when misconduct is apparent from admitted facts--Concurrent findings of two tribunals not interfered with--Petition dismissed in circumstances. [P. 9] B

Res Judicata--

----Jurisdiction of the NIRC under S. 22-A (8)(g) is intended to serve different purposes and the mere factum of dismissal of the petitioner's application for preventive action prior to his actual dismissal from service could not be treated as res judicata by Labour Court. [P. 9] A

Mr. Suleman Habib Ullah, Advocate for Petitioner.

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

Date of hearing : 22.9.2004.

Judgment

Sabihuddin Ahmad, J.--The petitioner was employed as Auto Cone Operator in the factory owned by the Respondent No. 1 and was dismissed from service dated 12.6.1989. However, he was reinstated through the order of the Respondent No. 3 dated 9.2.1991. After his reinstatement he was directed not attend duties at Mill but was informed that he would be entitled to receive his monthly emoluments on the payment day or any day afterwards.

1. Nevertheless according to the respondent some Auto Cone Operators working in the mill proceeded on leave and to meet the emergency he was entitled to report the duty immediately. The petitioner however, failed to appear, whereby a show cause notice was issued on 8.8.1991, stating that his refusal to report for duty after receipt of the letter dated 18.7.1991 amounted to willful absence from duty punishable as misconduct. The petitioners submitted his reply dated 15.8.1991 wherein he stated, inter alia, that he was a winder and at no time had performed the functions of an operator, which he was being called upon to perform and with which he was not conversant. He demanded that both the show-cause notice and the letter dated 18.7.1991 be withdrawn.

2. Thereafter inquiry proceedings were initiated by the Respondent No. 1 and eventually the petitioner was found guilty of mis-conduct and the dismissal order was successfully questioned before the Respondents Nos. 3 & 2 respectively and the final order of the letter has been called in question through this petition.

3. Mr. Suleman Habibullah, learned Counsel for the petitioner vehemently argued that the letter dated 18.7.1991 had never been received by the petitioner. Moreover, he contended that the inquiry was held ex parte and the petitioner was not given a fair chance of being heard.

4. On the other hand Mr. Mahmood Abdul Ghani, learned counsel for the Respondent No. 1 argued that the petitioner had not approached the Court with clean hands inasmuch as he had moved the National Industrial Relations Commission though an application under Section 22-A(8)(g) seeking action to prevent commission of unfair labour practice, which was dismissed on merits vide order dated 30th December, 1991, which was not questioned in appeal.

5. We have heard both learned counsel and gone through the record. With profound respects we are not inclined to attach too much importance to the objection to the maintainability of this petition raised by Mr. Mahmood Abdul Ghani. Indeed it is axiomatic that a person approaching this Court must do so with clean hands. Since the NIRC was moved one day before the actual dismissal of the petitioner from service he cannot be held liable to the extent that might require dismissal of the petition. Even otherwise we are inclined to take that the jurisdiction of the NIRC under Section 22-A(8)(g) and that of the Labour Courts under Section 25-A are intended to serve different purposes and the mere factum of dismissal of the petitioner's application for preventive action prior to his actual dismissal from service could not be treated as res-judicata by the Labour Court.

6. On merits however, the admitted position seems to be that the petitioner did refuse to work as a Auto Cone Operator and insisted that he could only perform the duty of a winder. However, while his appointment letter does not appear to be on record it is evident from the title of his first application before the Labour Court, (which was decided in his favour) and the observations in the order that he was working only as Auto Cone Operator. As such, his refusal to work against that position obviously amounted to misconduct. Other objection as to the proceedings in inquiry appeared to loose their significant when misconduct is apparent from admitted facts. For these reasons we are not inclined to interfere with the concurrent findings of facts recorded by the two Tribunals and would dismiss this petition.

(M.A.R.) Petition dismissed.

PLJ 2005 Karachi 9 (DB)

Present: Anwar Zaheer Jamali & Maqbool Baqar, JJ.

Qazi MUHAMMAD SHAMIM--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through its CHAIRMAN CHIEF EXECUTIVE SECRETARIAT-II, ISLAMABAD

and 2 others--Respondents

C.Ps. Nos. D-467, D-502, D-503, D-627 & D-628 of 2004, decided on 28.8.2004.

Criminal Procedure Code (V of 1898)--

----S. 497--Pakistan Penal Code (XLV of 1860), Ss. 409/420/468/471--Prevention of Corruption Act (III of 1947), S. 5(2)--Interim bail during trial--Material placed on record would reveal that petitioner were not shown to be involved in commission of crime as per contents of F.I.R.--Even in first challan submitted before special Court petitioners were not shown as accused involved in commission of crime--Nothing from record would indicate that petitioners were involved in commission of crime for which they have been charged--Case of petitioner, thus, needs further enquiry as to their guilt--Investigation of whole case has been completed and challan has also been submitted before Court--Case of prosecution against petitioners being based on documentary evidence, possibility of tempering with evidence was ruled out--Petitioner were thus, granted concession of bail. [Pp. 15 & 16] A

Mr. Shahadat Awan, Advocate for Petitioner.

Mr. Ghulam Mustafa Memon, Advocate for Co-petitioner.

Mr. Akhlaq Ahmad, Advocate for other Petitioners.

Mr. Amanullah Khan, Special Prosecutor NAB on behalf of Respondents.

Date of hearing : 24.8.2004.

Order

Anwar Zaheer Jamali, J.--The petitioners in all the above titled petitions have been charged with the commission of offences punishable under Sections 409, 420, 468, 471, 109, 34 P.P.C. R/W 5(2) PCA, II, 1947, vide FIR No. 16/2003, P.S. FIA Corporate Crime Circle Karachi and presently they are facing trial in References Nos. 5 and 6 of 2004 before the Accountability Court at Karachi. The petitioners in the first three petitions were admitted to interim pre-arrest bail vide orders dated 21.4.2004 and 29.4.2004 respectively while petitioner in the other two Petitions Nos. D-627 and D-628 of 2004, who was arrested in the year 2003 is in custody since then.

1. The case of prosecution, as per the contents of FIR No. 16/2003, reads as under :-

"Consequent upon receipt of written complaint dated 11.4.2003 and 21.5.2003 from Raja Muhammad Nadir Ali. Cantonment Executive FIA Karachi Zone, Karachi, vide Letter No. B-3331 dated 12.4.2003 and another complaint No. DKZ/(S)CC/Enq-14/2003/B-4670 dated 23.5.2003. Enquiry No. 14/2003 was registered at FIA, CCC, Karachi and conducted by the undersigned. The contents of both complaints are reproduced as under :-

COMPLAINT NO. 1.

To

The Director FIA

Karachi Zone

Karachi.

Sub : EMBEZZLEMENT OF CANTONMENT FUND IN FAISAL CANTONMENT BOARD KARACHI

Audit authorities of Defence Audit commenced the statutory Audit of the Cantonment Board, Faisal, Cantt. Karachi, for the year of 2001, 2002. On conclusion of the Audit, Audit Authority furnished Audit Objections (OLS) bearing Nos. 47,80,81 and 90 to the management of the Faisal Cantonment Board on 20.3.2003, stating therein that an amount of Rs. 32,707,777/- regarding receipt Books # 250, 256, 257, 259, 271 (Part), 275, 276 and 283 (part) have not been deposited into Cantonment fund. Consequently detailed scrutiny of the relevant record was conducted straightway, which revealed that the objections are correct and valid. From the perusal of relevant record, prima facie, it was proved that the cashier of Faisal Cantonment Board Shahid Raza is the main person responsible for embezzlement. Resultantly he was served a show-cause notice. In this reply Shahid Raza admitting his guilt stated that in fact, said amount was to deposited by him as the same was taken away from him by the then Accountant/UDC, Qazi Muhammad Sahmim. Presently posted as UDC Cantonment Board Bannu with promise to return the same very soon. He further requested in his reply that matter may not be reported to high ups as he will return/deposit the amount in a couple of days after receiving it from the said Qazi Muhammad Shamim. Although the reply of Shahid Raza for deposit of said amount. During the intervening period he (Shahid Raza) deposited

Rs. 20,15189/- in Cantt found in bits and pieces. Yet the balance amount of Rs. 12,65,577/- remains to be deposited/recovered to Faisal Cantonment Board (ML & C Deptt.). Concurrently the matter was reported to the Department of Military Lands & Cantonment Ministry of Defence Rawalpindi vide confidential letter No. OL (Con) 25.2.2003 dated 29.3.2003 and vide letter No. OL (Con) 25/02/2003 dated 7.4.2003 by the undersigned. In response to the said letters ML & C Department vide its Letter No. 3/9/LTAR/ML & C/2002, Govt. of Pakistan, Ministry of Defence (ML & C Department) Rawalpindi dated 08.04.2003 directed the undersigned to lodge First Information Report against culprits with the FIA. besides ordering a Departmental Inquiry.

"Photo stat copy of the above referred correspondence are enclosed for ready Reference and record to facilitate the investigation."

COMPLAINT NO. 2.

Sub : EMBEZZLEMENT OF CANTONMENT FUND IN FAISAL CANTONMENT BOARD KARACHI

Reference Letter No. OL (Con) 25.2.2003 dated 11th April 2003 and HQML & C Department Letter No. 3/9/LTAR/ML & C/2002 dt: 17th May 2003.

In continuation to above referred correspondence on the subject cited above, it is brought to your kind notice that as a consequence of findings of the Department Enquiry Committee constituted Vide ML & C Deptt. Letter No. 3/9/LTAR/ML & C/2002 dated 08.04.2003, it has further come to light that Qazi Muhammad Shamim Ex-Accountant/UDC (Now Posted to CB, Bannu) and Syed Shahid Raza Cashier in connivance with Mr. Razwan and Ex-employee of National Bank of Pakistan, COD, Branch have also embezzled of Rs. 76,73,788.03, through fraud, forgery, tempering of official Documents and fake band statements in the following manner :

S. No. Description Amount Embezzled.

(i) Amount received through Cantt. 4-B only Receipt Books Nos. 290, 291, 229, 260, 280, 219, 294, 277 and 246 but not taken on the cash book and not deposited in the bank. Rs. 19,19,6777.11

(ii) Amount taken on the Cash Book but not Deposited in the Bank. (Cash book Balanced through fake Bank statements). Rs. 56,82,110.92

Only.

Grand Total : Rs. 76,73,788.03

Consequently, explanation of Syed Shahid Raza, Cashier was called vide Letter No. OL (Con) 25.02.2003 dated 03.05.2003 and Letter No. OL (Con) 25.02.2003 dated 05.05.2003 in replied whereof, he confessed his guilt and further contended that he had done it at the behest of Qazi Muhammad Shamim Ex-Accountant/UDC who had taken away all the money from him and used him as his instruments in the Embezzlement of the Public money.

In the circumstances of the case explained above, it is requested to take legal action against the above said officials besides recovery of Embezzlled amount of

Rs. 76,73,788.03 pertaining to the period from Ist July 2001 to 10th April 2003.

Photocopies of correspondence referred to above are enclosed for your perusal, ready reference and record please.

In the light of the above facts, the Audit report, 4-B Cantt. Receipt Book, Cash Book, Subsidiary Register, and statements of witnesses, it reveals that the cashier Syed Shahid Raza and Accountant Qazi Muhammad Shamim with the active connivance of each other mis-appropriated and embezzled the Cantonment Fund/Treasury and caused a huge loss to the tune of Rs. 102,98,512.03 in various heads of account during the last two years.

During the course of enquiry, it also revealed that accused Muhammad Adil Khan, UDC, Cantonment Board Faisal, Karachi (now posted at Cantonment Board, Zhob, Balochistan), used the Cantt. 4-B Receipt Books, which were issued in his name and also used the other Cantt. 4B Receipt Books, and collected Revenue/Tax from the Cantonment taxpayers and did not deposit the collected amount in Cantonment Fund, as is evident from the record, and embezzled/misappropriated the same.

It further revealed during enquiry that accused Rizwan Ahmed Jilani, Ledger Keeper, NBP, COD Branch, Karachi, (now posted in NBP, Malir Cantt. Branch Karachi) arranged/prepared the fake/counterfeit casual statements showing the deposit of Rs. 56,82,110/92 in the bank in order to compare accuracy and maching with general cash book Cantonment Faisal in his private capacity showing the forge as official statements issued by an authorised official of NBP, COD Branch Karachi whereas the above amount of

Rs. 56,82,110/92 is not lying in the Cantonment Fund of Cantonment Board Faisal, Karachi.

Hence the instant case is registered under the permission of DKZ Karachi, vide Letter No. DKZ(S)/CC/Enq-14/2003/B-6102, dated 30.6.2003, against the officials of Cantonment Board, Faisal Karachi, namely Qazi Muhammad Shamim Accountant/Store Keeper/UDC (presently posted in Cantonment Board Bannu), Syed Shahid Raza Cashier/LDC Cantonment Board Faisal Karachi; Muhammad Adil Khan, UDC (now posted at Cantonment Board, Zhob, Baluchistan), Rizwan Ahmed Jilani, Ledger Keeper, NBP, CCD Branch, Karachi (now posted in NBP Malir Cantonment Branch, Karachi) and others under Sections 409, 420, 468,471, 108, 34 PPC r/w 5(2) PCA-II, 1947. Hence this case is registered and investigation is taken up by the undersigned."

1. We have heard Mr. Shahadat Awan Advocate for petitioner Qazi Muhammad Shamim. Mr. Ghulam Mustafa Memon Advocate for petitioner Abdul Ghaffar, Mr. Akhlaq Ahmed Advocate for petitioner Muhammad Adil Khan and Mr. Amanullah Khan, Special Prosecutor NAB on behalf of respondents.

2. Mr. Shahadat Awan contended that the petitioner Qazi Muhammad Sahmim has been falsely implicated in the commission of offence which relates to embezzlement of certain sums at the Faisal Cantonment Board Karachi. Even as per the contents of FIR and other material collected by the Investigating Agency the only piece of evidence against petitioner Qazi Muhammad Shamim is the alleged statement of absconding co-accused Syed Shahid Raza, cashier of Faisal Cantonment Board at the relevant time, that he has paid the embezzled amount to the petitioner otherwise Qazi Muhammad Shamim was not involved in any manner whatsoever either in collecting the embezzled sums from the public/tax payers or the process of its deposit in the bank, except signing some corresponding entries in the account books with reference to the bank vouchers. He further submitted that as per final charge sheet, which was earlier submitted before the Special Judge Central-II Karachi and other material no other evidence has been collected against the petitioner, therefore, his case needs further enquiry as to his guilt entitling him for grant of bail.

3. Mr. Ghulam Mustafa Memon Advocate for petitioner Abdul Ghaffar advanced more or less similar arguments with reference to the alleged involvement of petitioner Abdul Ghaffar and contended that neither the petitioner Abdul Ghaffar was named in the FIR nor even his involvement was shown in any manner whatsoever in the first enquiry report or the interim challan submitted before the Special Judge Central-II Karachi dated 29.9.2003, but in the supplementary/final charge sheet submitted on 6.1.2004 he has been shown involved in the commission of crime without any basis or material against him. His case, therefore, needs further enquiry as to his guilt and he is entitled for grant of bail.

4. Mr. Akhlaq Ahmed submitted that the petitioner Muhammad Adil Khan was also not nominated either in the FIR or in the interim charge sheet submitted before the Special Judge Central Karachi on 16.7.2003. In the report of enquiry conducted by the department also he was not found involved in the commission of crime, but subsequently he has also been shown as one of the accused in the supplementary final charge sheet dated 6.1.2004 with reference to the allegation that Receipt Book No. 4-B was issued in his name on the basis of which certain sums were allegedly collected by him and Syed Shahid Raza cashier. He contended that to save the persons actually involved in the commission of crime the petitioner has been made scapegoat, his guilt needs further enquiry and thus he is also entitled for bail.

5. Mr. Amanullah Khan, learned Special Prosecutor NAB in his reply arguments contended that jurisdiction under Article 199 of the Constitution may not be exercised by this Court in such cases in aid of injustice as the petitioners who are facing charges of embezzlement of Government money are not entitled for the concession of bail. Making reference to the case of Imtiaz Ahmed v. The State (PLD 1997 S.C. 545), he further contended that even in the cases where an offence does not fall within the prohibitory clause of 497 Cr.P.C., the Court can decline to exercise its discretion in favour of accused by granting him bail. He also made reference to the provisions of NAB Ordinance to show that the applicability of Sections 497 and 461 Cr. P.C. has been specifically excluded which shows that in the cases pending before the NAB Court normally bail is not to be granted to an accused.

6. In reply to the last contention, learned counsel for petitioners have placed reliance upon the case of Chowdhary Zulfiqar v. The State (PLD 2002 SCMR 546) and the other case of Haji Ghulam Ali v. The State (2003 SCMR 597) to show that the jurisdiction under Article 199 of the Constitution can be invoked in appropriate cases to avoid abuse of process of law and for granting bail in appropriate cases, even if pending before NAB Court.

7. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record with their assistance.

8. Admittedly the incident with reference to which FIR No. 16/2003 has been lodged on 3.7.2003, has occurred during the years 2001-2003 and such embezzlement was subsequently unearthed by Audit party. Involvement of petitioner Qazi Muhammad Shamim at this stage is mainly based on the statement of co-accused Syed Shahid Raza as at the relevant time he was also holding the office of Accountant at Faisal Cantonment Board Karachi. The allegations against the petitioner Abdul Ghaffar are also, with reference to the signing of some account registers with reference to certain bank vouchers received by him which were purportedly managed by the main accused Syed Shahid Raza in connivance with co-accused Rizwan Ahmed Jilani, an employee of National Bank of Pakistan, who had purportedly issued such fake vouchers about deposit of embezzled sums in the account of Faisal Cantonment Board maintained at National Bank of Pakistan, Malir Cantonment Branch. Material placed on record further reveals that neither the petitioner Abdul Ghaffar nor the petitioner Muhammad Adil Khan were shown involved in the commission of crime as per contents of FIR which was lodged by Sub-Inspector Rafatullah Khan, after the commission of such offence was unearthed by Audit party and case was investigated by him, nor even in the first challan submitted before the Special Court they were shown as accused involved in the commission of crime. Learned Special Prosecutor appearing on behalf of NAB has failed to show anything from the record whereby at this stage it can be reasonably said that prima facie petitioners are involved in the commission of crime for which they have been charged. Thus, in our view case of all the petitioners needs further enquiry as to their guilt. Moreover the investigation of whole case has been completed and challan has also been submitted before the NAB Court, the case of prosecution against the petitioners will be based on documentary evidence, thus, there is no possibility of tampering with the evidence.

9. Foregoing are the reasons of our short order dated 24.8.2004 separately passed in each petition.

(A.A.) Order accordingly

PLJ 2005 Karachi 16 (DB)

[Sindh Circuit Hyderabad]

Present : Anwar Zaheer Jamali and Muhammad Sadiq Leghari, JJ.

MIR MUHAMMAD and others--Petitioner

versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI

and others--Respondents

C.P. No. 121 to 127 and 264 of 1994, heard on 7.4.2004.

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

----S. 25-A--Constitution of Pakistan (1973), Art. 199--Grievance petition--Orders of dismissal of grievance petition by Labour Forums, assailed--Non-service of notice/charge sheet was not proved by petitioners--Post-man's evidence that petitioners were duly served was supported by various documents placed on record--No misreading or non-reading of evidence by labour forums was pointed out--Evidence beyond pleadings could not be looked into plea that evidence record in one case was scribed in other cases was of no significance as such procedure was followed at joint application of parties which fact was admitted by them--Finding of labour forum was thus, not open to interference. [Pp. 20 & 21] A & B

2000 PLC 144; PLD 2001 S.C. 415; 1996 PLC (C.S.) 433; 2000 PLC 274; 2000 PLC 215; PLD 1981 S.C. 225; PLD 1989 SC 503; 1981 SCMR 179; PLD 1971 Karachi 733 and 1997 PLC 132 ref.

Mr. Abdul Ghani Khan, Advocate for Petitioners.

Nemo for Respondents 1 & 2.

Mr. Mehmood Abdul Ghani, Advocate for Respondents Nos. 3 & 4.

Date of hearing : 7.4.2004.

judgment

Anwar Zaheer Jamali, J.--By these five identical Constitutional petitions, petitioners, Mir Muhammad, Amir Bux, Qadir Bux, Allah Jurio and Ghulam Nabi Shah have assailed the common judgments dated 31.1.1994 and 23.9.1992 respectively passed by Respondents Nos. 1 and 2, whereby their respective grievance applications under Section 25-A of the IRO, 1969, preferred against Respondents Nos. 3 and 4 were dismissed by Respondent No. 2 and such judgment was maintained in appeal by Respondent No. 1. We, therefore, propose to dispose of these petitions by this common judgment.

1. Succinctly, the relevant facts, which are almost common in all petitions, forming back ground of this litigation are that the petitioners, who were workmen in the Sugar Mills of Respondent No. 3 were dismissed from their services by private respondents. According to the petitioners, without serving any show-cause notice ex-parte enquiry proceedings were held against them, wherein they were found guilty of misconduct in terms of charges levelled against them and consequently they were dismissed from service vide letters dated 7.8.1988. The petitioners on receipt of their dismissal orders served their respective grievance notices on Respondents Nos. 3 and 4 on 5.11.1988, which were replied by private respondents on 14.11.1988, but their grievances were not redressed. Consequently the petitioners filed their respective applications under Section 25-A of the I.R.O. before Respondent No. 2 on 5.1.1989. In these applications Petitioners reiterated same grievance that no charge sheet were served on them, no enquiry was held, but all of a sudden they were served with the orders of their dismissal from service by private respondents, which has given them case for initiating such proceedings.

2. In their reply statements Respondents Nos. 3 and 4 challenged the maintainability of two applications under Section 25-A of the I.R.O. 1969, filed by the petitioner Ghulam Nabi Shah and another workman Karim Bux, who is not before us, on the grounds being barred by time, lack of territorial jurisdiction and not being workmen. On facts, Respondents Nos. 3 and 4 denied the claim of all the petitioners, and asserted that service of charge sheet was effected on all the petitioners through different modes as detailed in the written objections but the petitioners did not submit any reply. Thereafter enquiry officer was appointed, who served notice on the petitioners for holding such enquiry, but again the petitioners failed to participate, whereafter enquiry proceedings were conducted in their absence, wherein the petitioners were found guilty of misconduct as per charges against each of them and in terms of enquiry report submitted by the enquiry officer on 20.7.1988. Accordingly they were rightly dismissed from service vide letters dated 7.8.1988.

3. At the stage of evidence, each of the petitioners examined himself in his respective grievance application before Respondent No. 2, while from the side of Respondents Nos. 3 and 4 they examined Rao Muhammad Shafqat, their General Manager, Liaquat Ali Khan Administrative Manager, S.P. Lodhi a Labour reader and Akhtar Ali postman.

4. The Respondent No. 2 at the time of passing impugned judgment dated 23.9.1992, after considering the evidence adduced by the parties before him, came the conclusion that charge sheets were duly served upon the petitioners by different modes and that proper enquiry was also held against them wherein they were rightly found guilty of misconduct as attributed to them and consequently all the grievance applications were dismissed.

5. The petitioners challenged the order of Respondent No. 2 before Respondent No. 1 by way of filing their respective appeals under Section 37(3) of the I.R.O. 1969, which were heard together and disposed of by common impugned judgment dated 31.1.1994. In its judgment Respondent No. 1 concurred with the view of Respondent No. 2 as to the due service of charge sheets on the petitioners and holding of enquiry proceedings against them in accordance with law and consequently the appeals preferred by the petitioners were also dismissed.

6. Mr. Abdul Ghani Khan learned counsel for the petitioners vehemently argued the case of the petitioners and urged following grounds:-

(a) No charge sheets were served on the petitioners as required by law hence all further proceedings were illegal.

(b) No enquiry proceedings were held against the petitioners and in the alternative the enquiry officer nominated by Respondent No. 3 was outsider, thus the proceedings held by him were alleged and not warranted by law.

(c) The cross-examination of two witness recorded in the case of Ghulam Nabi Shah was illegally taken into consideration by Respondent No. 2 in all the six cases.

1. Learned counsel also made reference to the reported cases, 1993 PLC 485, PLD 1988 SC 633, 1986 SCMR 1121 and recent judgment of this Court dated 21.1.2004 in C.P. No. D-447/1999 to fortify his submission that even concurrent findings of facts recorded by two tribunals, if based on misreading or non-reading of evidence or jurisdictional defect, are not immune from interference in the Constitutional jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan. He, therefore, urged that the two judgments impugned in these petitions may be set aside and the petitioners may be reinstated in the service of Respondents Nos. 3 and 4 with all back benefits.

2. Conversely, Mr. Mehmood Abdul Ghani learned counsel for Respondents Nos. 3 and 4 firstly took us to the findings of Respondents Nos. 1 and 2 recorded in their respective impugned judgments to show that the aspect of due service of charge sheet on all the petitioners was intensively examined by both the Courts and that their findings in this regard are based on proper assessment of evidence, thus not open to question before this Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. To fortify this submission leaned counsel placed reliance on the following case:-

(a) Mukhtar Ahmed and 2 others v. Chairman, S.I.A.T. and two others (2000 PLC 144).

(b) Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore Through Divisional Forest Officer v. Ghulam Nabi and 3 others (P.L.D. 2001 Supreme Court 415).

(c) National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1996 PLC (CS) 433).

(d) Messrs Crescent Pak. Industries Ltd. v. Sindh Labour Appellate Tribunal Pakistan Secretariat, Karachi and another. (2000 PLC 274).

(e) Qayyum Nawaz and 9 others v. N.W.F.P. Small Industries Development Board, Peshawar through Managing Director, Koht Road, Peshawar and 4 others. (2000 PLC 215).

1. As to the factual aspect regarding service of charge sheet on the petitioners learned counsel again referred to the material placed on record by the petitioners before us and contended that though so much was not required by law but the private respondents had taken all possible care in effecting service of charge sheet upon the petitioners, inasmuch as, firstly, the charge sheet was served on them by hand, which they had refused to accept, secondly, copy of charge sheet was pasted on the Notice Board of the Sugar Mills, thirdly, charge sheet was discontent to the petitioners by Registered Post A.D. at the address of their Union Office, fourthly, copy of such charge sheet was sent to the Labour Directorate for their information and service on the petitioners, and lastly, copy of the charge sheet was attached with the grievance application filed by Respondents Nos. 3 and 4 before N.I.R.C., which was duly received before the N.I.R.C. by the representative of the petitioners. Mr. S.P. Lodhi. He therefore, contended that there is no legal infirmity, misreading or non-reading of evidence or jurisdictional defect in the concurrent findings of the two tribunals i.e. Respondents Nos. 1 and 2 and in such circumstances these petitions are liable to be dismissed. Dilating upon the legal aspect as to the service of charge sheet in such matters learned counsel further placed reliance upon the cases reported as Dawood Cotton Mills Ltd. v. Guftar Shahand another (PLD 1981 SC 225), Rashid Ahmed v. Messrs Biend Match Works (PLD 1989 SC 503), Khuda Bux v. Muhammad Yaqoob etc. 1981 SCMR 179) and Munawar Hussain v. Superintending Engineer, Agricultural Machinery Organization, Guddo Barrage Project, Sukkur and 2 others (PLD 1971 K. 733).

2. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record. With reference to the plea of on service of charge sheet on the petitioners, which is the crucial plea raised by Mr. Abdul Ghani Khan on behalf of the petitioners, we have perused the case record specially the evidence of Postman Akhtar Ali Ex. R/31. This witness, in his Examination-in-Chief has deposed that service of charge sheet on Allah Jurio was not effected as he could not be traced out, Ghulam Nabi petitioner had refused to receive the registered post notice containing the charge sheet, while four other workmen including the petitioners Qadir Bux, Mir Muhammad and Amir Bux were duly served with registered post letters containing such charge sheets. This statement of witness is further supported with various documents placed on record by him as Ex. R/31/1 to R/31/12. In his cross-examination the learned counsel for the petitioners only questioned the deposition of postman with reference to non-service of notice/charge sheet on Allah Jurio and Ghulam Nabi Shah, but not a single question was put to him as to the service of notice on other four workmen, out of whom, excluding Karim Bux, three are petitioners before us. Not only this but claim of service of charge sheet on the petitioners through their representative Mr. Lodhi, who represented them before N.I.R.C. also remained un-controverted.

3. In view of the above discussion, we find no misreading or non-reading of evidence as to the findings of Respondents Nos. 1 and 2 regarding due service of charge sheet on the petitioners.

4. The next contention of Mr. Abdul Ghani Khan with reference to non-holding of enquiry proceedings or in the alternative holding of enquiry through an outside has also no force for the reason that no such pleas were raised by the petitioners in their grievance application under Section 25-A of I.R.O. 1969 filed before Respondent No. 2, therefore, any evidence beyond pleadings cannot be looked into for this purpose. In this regard we find force in the submissions of Mr. Mehmood Abdul Ghani that they plea of holding of enquiry through an outsider was neither raised before Respondent No. 2 nor before Respondent No. 1, therefore, such contention, for the first time, cannot be raised in writ jurisdiction. Moreover, in view of the dictum laid down in the case of Mujahid Hussain Shah v. K.S.B. Pumps Company and two others (1997 PLC 132) such contention is without force.

5. The last contention of Mr. Abdul Ghani Khan with reference to consideration the evidence of two witnesses recorded in one case, in other cases has also no force as such procedure was followed at the joint application of parties, which fact has not been disputed before us, and further petitioners have failed to show that any prejudice was caused to them by adopting of such procedure by Respondent No. 2.

6. The Respondent No. 1, in its judgment has discussed in detailed each and every relevant aspects of the case and has rightly dismissed the appeals preferred by the petitioners, therefore, such judgment is unexceptionable. We record our sincere appreciation for the labour put up by Respondent No. 1 in dilating upon each aspect of the case in a comprehensive and prudent manner.

7. For the forgoing reasons we find these petitions without substance and the same are accordingly dismissed.

(A.A.) Petition dismissed

PLJ 2005 Karachi 21

[Sindh Circuit Hyderabad]

Present: Muhammad Mujibullah Siddiqui, J.

ARMY WELFARE SUGAR MILLS, WORKERS UNION through its GENERAL SECRETARY--Applicant

versus

REGISTRAR TRADE UNIONS, HYDERABAD and 2 others--Respondents

Labour Revision No. 13 of 2004, decided on 5.5.2004.

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

----O. 1, R. (10) and O. VII, R. 11--Application submitted petitioner that respondent be deleted from the array of parties--Labour Court rejected the application that Complaint was filed by the Registrar or the representation made by respondent wherein the proposition of law and authorities of Superior Courts were brought to the knowledge of Registrar regarding registration of Union and thereafter the Registrar applied for cancellation of registration of petitioner before Labour Court joining the respondent also as a party--Ordinarily in case of registration, Registrar and concerned Union are party but Registrar can move application to the Labour Court for cancellation either suo moto or information laid before it by the employer--Since the complaint was filed at the instance of Management, therefore, Managing authority was necessary party and was rightly joined as respondent in complaint--Held: No justification for the admission of the labour revision--Even case of delay in disposed of matter pending before the Labour Court--No prejudice caused to the applicant with the rejection of application under Order 1, Rule 10 CPC or no omission of justice has been taken place--Even all parties filed their affidavit-in-evidence and all of them had been subjected to cross-examination--No justification for admission of pension application but shall cause delay in disposal of matter--Dismissal in limine. [Pp. 22, 23 & 24] A, B & C

Mr. Ghulam Sarwar Chandio, Advocate for Applicant.

Mr. Masood Ahmad Noorani, Addl. A.G. for Respondent No. 1.

Mr. Mahmood Abdul Ghani, Advocate for Respondent No. 2.

Date of hearing : 5.5.2004.

Order

The petitioner is aggrieved by the order dated 5.2.2004 passed by the learned Labour Court No. VI, Hyderabad in Complaint No. 48/2003 pending before the learned Labour Court.

The petitioner, who is Respondent No. 1 in the complaint before the learned Labour Court, submitted an application that Respondent No. 2 be deleted from the complaint filed by the Registrar, Trade Unions, for the reason that the Management was not a necessary party. It was alleged in the affidavit annexed with the application under Order 1 Rule (10) CPC that the General Manager of the Army Welfare Sugar Mills (Management) has nothing to do with the cancellation of registration of the Union and under Section 12 of the Industrial Relations Ordinance, 2002 the General Manager of the company was not required to be impleaded as party. It was further stated in Para 5 of the affidavit sworn by Mr. Abdul Salam, General Secretary of the petitioner Workers Union, that only establishment/ company/mills can be impleaded as party, wherever it is necessary and permissible under the law but in the instant case neither General Manager nor establishment are necessary parties.

The learned Labour Court dismissed the application with the observation that the issue was already decided by the Court while passing order on application under Order 7, Rule (11) CPC.

The copy of order on application under Order 7, Rule (11) CPC referred to in the impugned order dated 5.3.2004 has been produced along with the petition as annexure `A/4'. A perusal thereof shows that an application was submitted on behalf of petitioner on 9.10.2003 praying that the Respondent No. 2 be deleted from the array of parties. The learned Labour Court rejected the application vide order dated 19.2.2004. It is observed in the said order that "the complaint was filed by the Registrar on the representation made by the Respondent No. 2, wherein the propositions of law and authorities of superior Courts were brought to the knowledge of Registrar regarding registration of Union and thereafter the Registrar applied for cancellation of registration of petitioner before the Labour Court joining the Respondent No. 2 also as a costly". The learned Labour Court further observed that ordinarily in case of registration of Trade Union or cancellation of registration the Registrar and the concerned Union are necessary parties and are to be impleaded but the Registrar can move application to the Labour Court for cancellation of the registration either suo

moto or on information laid before it by the employer. With this reference the learned Labour Court examined the issue whether Management was a necessary party and came to the conclusion that since the complaint was filed at the instance of Management, therefore, the Management was necessary party and was rightly joined as Respondent No. 2 in the complaint filed by the Registrar. It was further observed that the under the new Industrial Relations Ordinance, 2002 the Registrar was required to inform the employer by giving a notice regarding registration of Union and the employer is deemed to be a necessary party in the proceedings even under the repealed Statute. With these observations the application under Order 7, Rule (11) CPC was dismissed.

The petitioner feeling aggrieved with the above order dated 19.2.2004, filed a revision application before this Court being Labour Revision Application No. 12/2004. During the course of hearing at Katcha Peshi stage Mr. Ghulam Sarwar Chandio, advocate, informed a learned single Judge of this Court that on 8.9.2003 affidavit-in-evidence has been filed by the Registrar, Trade Union, Hyderabad and the matter was adjourned for cross-examination of the complainant. The revision application was disposed of with the observation that in case cross-examination has not been conducted by the applicant, the Presiding Officer should before hearing arguments on the main petition allow the applicant to cross-examine the Registrar, Trade Union, whose affdavit-in-evidence has been placed on record. The applicant was also given opportunity to produce evidence if so desired. The matter part of the order was necessitated because Mr. Ghulam Sarwar Chandio, advocate, informed the learned single Judge that the matter has been posted for arguments on main petition without giving opportunity of cross-examination to the parties.

Be that as it may, the revision application filed against the order dated 19.2.2004, whereby the prayer for deleting the Respondent No. 2 from the array of respondents was disposed of.

In the above circumstances this second application under Order 1 Rule (10) CPC seeking same relief which, was sought in the application dated 9.10.2003 under the caption, under Order 7, Rule 11 CPC, was uncalled for.

Mr. Ghulam Sarwar Chandio has submitted that the second application was submitted under Order 1, Rule (10) CPC, which is the proper provision of law because the earlier application was submitted under Order 7, Rule 11 CPC, which was not the correct provision of law. The Courts are supposed to consider the contents of the application and not the law which is cited in the application. Mere wrong citation of a provision of law is neither sufficient for rejection of any application nor has any bearing on the merits of the case. I find that, notwithstanding, the wrong citation of law in the application dated 9.10.2003 the prayer in the application was that the Respondent No. 2 was not a necessary party and may be deleted from the array of respondents. The learned Labour Court in it's order dated 19.2.2004 has considered the contention elaborately and has given a finding that in the peculiar facts and circumstances of the case the Management was a necessary party. The order dated 19.2.2004 was assailed in the earlier revision application No. 12/2004. Although there is nothing in the order of learned single Judge of this Court dated 23.2.2004 that the revision application was not admitted for the reason that the application dated 9.10.2003 was shown to have been submitted under Order 7, Rule (11) CPC, but Mr. Ghulam Sarwar Chandio states that the earlier revision application was disposed of for the reason that the application ought to have been submitted under Order 1 Rule (10) CPC. I do not find any such observation in the order of learned single Judge of this Court dated 23.2.2004.

I am of the opinion that second round of litigation was uncalled for.

coming to the merits, I find that no prejudice has been caused to the applicant with the rejection of application under Order 1, Rule (10) CPC. I have specifically asked Mr. Ghulam Sarwar Chandio, learned Counsel for the applicant, to show as to what prejudice has been caused to the applicant or what is the miscarriage of justice which has taken place. The learned Counsel is not able to show any such prejudice or miscarriage of justice caused to the applicant. Mr. Mahmood Abdul Ghani, who is appearing before the Labour Court also, has stated that all the parties have filed their affidavit-in-evidence and all of them have been subjected to cross-examination including the Registrar, Trade Union and now the matter has been fixed for final arguments on 11.5.2004. Thus the earlier directions contained in the order dated 23.2.2004 have been complied with.

At this stage I do not find any justification for admission of this revision application, which shall cause delay in the disposal of matter pending before the Labour Court. The revision application is dismissed in limine along with the listed application.

(N.T.) Application dismissed

PLJ 2005 Karachi 24

[Sindh Circuit Hyderabad]

Present: Muhammad Mujibullah Siddiqui, J.

MUSLIM COMMERCIAL BANK LTD., GENERAL MANAGER OFFICE, HYDERABAD through its SENIOR VICE-PRESIDENT--Appellant

versus

MUHAMMAD KHAN ABRO--Respondent

Labour Appeal No. 02 of 2004, decided on 27.4.2004.

Industrial Relations Ordinance, 2002--

----Ss. 18 & 47(3)--Industrial Relation Ordinance, 1968, S. 25-A--Labour appeal allowed--Respondent, not a workman--No oral or documentary evidence was produced to substantiate the contention that an officer in Grade III was performing manual or clerical job, but the sole word of respondent record--In the absence of any evidence to establish that respondent was a workman, the grievance Petition dismissed and impugned judgment of Labour Court is thereby set aside--Appeal allowed accordingly. [Pp. 26 & 27] A & B

1993 SCMR 488.

Mr. Mehmood Abdul Ghani, Advocate for Appellant.

Present Nemo for Respondent.

Date of hearing : 27.4.2004.

Judgment

This appeal under Section 47(3) read with Section 18 of the I.R.O. 2002, is directed against the order dated 19th of December 2003, passed by the learned Labour Court No. VI, Hyderabad, in Application No. 181 of 2000, under Section 25-A of Industrial Relation Ordinance, 1968.

Mr. Manzoor Ahmed Shaikh, Advocate was present for the respondent on 18.3.2004 and on his request the hearing was adjourned to 27.4.2004. Today the respondent and his advocate are absent without intimation. Mr. Mehmood Abdul Ghani, Advocate for the appellant has been heard.

The relevant facts are that the respondent is an Officer Grade-III in the appellant Muslim Commercial Bank Ltd. A Charge Sheet was issued to him on 31.10.1995 for unauthorized absence without permission. Subsequently inquiry was held and the respondent participated in the inquiry. The inquiry Officer found the respondent guilty of the Charge. Before any final order could be passed the respondent filed a case with the National Industrial Relations Commission. The appellant/bank was restrained from taking any final action. The appellant bank preferred appeal before Full Bench of N.I.R.C. The appeal was accepted and the prohibitory order was vacated thereafter the respondent was dismissed vide letter dated 30.7.1997. The respondent filed Case No. 4(17)/1997-K before N.I.R.C. challenging the same Charge Sheet and order of dismissal. This case was filed on 27.10.1997. Subsequently respondent served grievance notice on the appellant/bank followed by Grievance Petition before Sindh Labour Court No. VIII Larkana Bearing No. 6/1997. Several objections were raised by the appellant including the maintainability of the Grievance Petition for the reason that the respondent was an Officer in Grade-III and was performing supervisory nature of work and was Member of Muslim Commercial Bank Officers' Union. He was not a workman. Another objection was raised to the effect that the application was entertained by the Presiding Officer Labour Court No. VII Sukkur, who has no jurisdiction. Objections were raised on merits as well. The respondent filed his affidavit-in-evidence and was cross-examined. Affidavits in evidence were also filed on behalf of appellant/bank. In cross examination he admitted that a petition in respect of same subject matter was pending before N.I.R.C. also. He further admitted that Officers in Grade-I, II and III are posted as Managerial Staff.

The learned Labour Court after appraisal of evidence observed that, it is admitted fact that respondent Muhammad Khan was Grade-III Officer of the Bank. It was further observed that it is well settled law that for determination of question whether an employee is a workman within the meaning of various Statutes in the field of Labour Legislation, the nature of work done by the employee would be essential and fundamental consideration and his designation has no effect and cannot be treated as conclusive for this purpose. The amount of salary receiving is also not a determining factor. The criteria, is the work which the employee is doing at the time of termination of his service. After making these observations the learned Labour Court further observed that the mere fact that the petitioner was Officer in Grade-III will not debar him from filing the application if he was doing the manual or clerical work at the time of termination of his service. It was further observed that it has come on record through evidence that respondent Muhammad Khan was not working in any supervisory position but was doing the clerical work, and was not having supervisory duty over the staff, therefore, he is a workman. The learned Labour Court ultimately held that the dismissal order of the respondent was liable to be set-aside. After setting-aside the dismissal order, the learned Labour Court No. VI, Hyderabad, ordered for reinstatement of the respondent within one month of the impugned order. He was awarded all the back benefits as well.

Mr. Mehmood Abdul Ghani, learned counsel for the appellant assailed the impugned order of learned Labour Court, inter-alia, on the ground that the respondent was not a workman. He has drawn my attention to the fact that the observations made by the learned Labour Court in the impugned order pertaining to the status of respondent Muhammad Khan are same word to word as made in the case of another Officer of Muslim Commercial Bank namely Mehmood Hussain Larik. He submitted that the facts and circumstances in present case are similar to the case of Mehmood Hussain Larik which came for consideration before this Court in Appeal

No. 1/2001 (M.C.B. v. Mehmood Hussain Larik). He pointed out that in the case of Mehmood Hussain Larik, no oral or documentary evidence was produced to substantiate the contention that an Officer in Grade-III was performing manual or clerical job. In that case Mr. Manzoor Ahmed Shaikh, the learned counsel for the respondent in this case (absent today) had no option but to concede 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. After examination of facts in decided case and following the law laid down by Supreme Court in the case of Managing Director Shahi Bottlers v. Punjab Labour Appellate Tribunal, 1993 S.C.M.R. 488, it was held that if a plea was taken by an Officer that actually he was performing clerical and manual job, the burden was on the employee to prove that he was workman and was performing purely clerical and manual duties. In the above cited judgment Honourable Supreme Court further held that the burden of proof was not on the employer. In the earlier case the Officer Grade III had not produced any documentary or oral evidence in support of the contention, that, notwithstanding his designation as Officer, he was performing purely clerical and manual job. It was held that the finding of the learned Labour Court was a figment of imagination.

Mr. Mehmood Abdul Ghani, has submitted that present case is worst than the case of Mehmood Hussain Larik for the reason that the respondent has admitted that he is an Officer in Grade-III and normally Officer in Grade-III is appointed in Managerial Staff. He has further admitted in the cross-examination that N.I.R.C. declared the Officers Union of which he was a General Secretary Larkana Land as a non-workman union. He further conceded that Chairman N.I.R.C. cancelled the C.B.A. Certificate of the Officers Union for the reason that it was obtained fraudulently. An appeal was preferred before Full Bench of N.I.R.C. which was rejected. Petition was filed before Lahore High Court Rawalpindi Bench, which was also dismissed. Mr. Mehmood Abdul Ghani has vehemently argued that the finding of learned Labour Court No. VI, Hyderabad, that there was evidence on the record that respondent was doing the clerical work and was not having supervisory duty over the staff is based on mere surmises and conjectures not warranted in law. A perusal of record shows that the contention is correct. The respondent has not alleged any such thing and has not produced any documentary or oral evidence to establish that although he was an Officer in Grade-III but was performing clerical work.

In the above circumstances, it is held that the finding of the learned Labour Court No. VI. Hyderabad, on the status of respondent in totally perverse and is based on mere imagination, assumptions and presumptions not warranted in fact and law. There is substance in the contention of learned counsel for the appellant that the finding on the status of respondent has been given by the learned Labour Court with pre-determination for granting the relief. In the absence of any evidence to establish that the respondent was a workman the Grievance Petition was liable to be dismissed. The impugned judgment of learned Labour Court No. VI, Hyderabad is therefore, hereby set-aside and Grievance Petition is dismissed. The appeal is allowed accordingly.

(N.T.) Appeal allowed

PLJ 2005 Karachi 28 (FB)

Present: Shabbir Ahmad, Muhammad Mujibullah Siddiqui and

Khilji Arif Hussain, JJ.

SUI SOUTHERN GAS COMPANY LTD. through its DEPUTY MANAGER (1R), KARACHI--Petitioner

versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION

and 5 others--Respondents

C.P. No. D-1553 of 2003, decided on 12.10.2004.

(i) Industrial Relations Ordinance, 2002 (XLI of 2002)--

----S. 49(4) (c)--Constitution of Pakistan (1973), Art. 199--Service of inquiry notice upon respondent employees--National Industrial Relations Commission assuming jurisdiction and requiring petitioner to file comments on petition filed by respondent employees--Legality--Respondent employees were admitted by civil servants serving under petitioner controlled by Federal Government, therefore, they could not invoke jurisdiction of National Industrial Relations Commission by alleging unfair labour practice on the part of petitioners--However, none of allegations of charge sheet would attract plea of unfair labour practice--Mere charge sheeting or show-cause notice and initiating of proceedings under disciplinary rules against civil servant does not furnish him cause for invoking jurisdiction of tribunal or Court--Civil Servant would not have any cause of action to challenge show-cause notice and inquiry proceedings initiated pursuant to show-cause notice--Order in question having been passed without jurisdiction, High Court can issue writ in exercise to its jurisdiction under Art. 199 of the Constitution.

[Pp. 37 & 38] A, B & C

(ii) Industrial Relations Ordinance, 2002 (XLI of 2002)--

----Ss. 49 (c) & 63--Constitution of Pakistan (1973), Art. 199--Assumption of jurisdiction by National Industrial Relations Commission in relation to grievance of civil servants, assailed--National Industrial Relations Commission assumed jurisdiction on application of respondent employees for alleged unfair Labour Practice on the part of management of petitioner and illegally proceeded against petitioner without first determining as to whether alleged action complained of, would be covered by provision of S. 63 of Industrial Relations Ordinance 2002, so as to come within definition of unfair Labour Practice which is essential condition for conferring jurisdiction on commission to proceed on that application--Impugned order having been passed in illegal exercise of jurisdiction was not sustainable and the same was set aside. [P. 38] D

2001 PLC 80; SBLR 2002 Sindh 129; 2002 PLC 87; 1999 SCMR 197; 2000 SCMR 959; 1998 SCMR 2139; 2004 SCMR 38; PLD 1989 SC 360 and

2001 SCMR 777, ref.

Mr. Mahmood Abdul Ghani, Advocate for Petitioner

Mr. Gohar Iqbal, Advocate for Respondents Nos. 2 to 6.

Date of hearing : 30.9.2004.

Order

Shabbir Ahmad, J.--The petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution, for the relief that unilateral assumption of jurisdiction by the Respondent No. 1 and the ex-parte order dated 3.12.2003 is illegal and contrary to the provisions of law and without lawful authority and of no legal effect.

1. The facts are not disputed, the same can be summarized as follows:--

The petitioner is a Public Limited Company, controlled by Federal Government. The Respondents Nos. 2 to 4 are its employees, whereas Respondent No. 6 is the Industry-wise Trade Union in petitioner company. The Respondents Nos. 2 to 5 were guilty of certain acts prejudicial to and subversive of discipline and were served with charge sheet dated 13.11.2003. The allegations against Respondents Nos. 2 to 4 are common, which are reproduced as follows:--

STATEMENT OF ALLEGATIONS

1. On 12th November 2003, at about 9:30 a.m. you gathered a workers mob at SITE Office while the MD, SGM (D) and GM (HR) were visiting SSGC Site Office. You instigated and agitated the workers mob, and on non-core issues like routine transfer of an employee, raised aggressive and threatening slogans, used abusive and filthy language/words including such you did this while MI was visiting Site Office and being briefed by GM(D), Site.

2. You misled and provoked the workers due to which peaceful atmosphere of the Company was disrupted and also halted for over one hour, the briefing which was being giving to the MD.

3. Due to the gathering of approximately 100 workers who left their place of work, normal work of the Company was also disturbed, resulting in illegal cessation of work.

4. As General Secretary of CBA-Union, instead of showing responsible attitude you insulted and used derogatory remarks against the Management.

5. When MD intervened you became so aggressive, rude and threatened him for dire consequences.

6. Your above acts are clearly prejudicial to good order and service discipline and therefore, amount to gross misconduct within the meaning of Section 3(1) (b) read with Section 2(b) of the Removal from Service (Special Powers) Ordinance, 2000.

7. An Inquiry Committee comprising of Mr. Mansur Ahsan, DGM (HR-SP), Mr. Deedar Hussain, DGM (Billing)-H.Q. and Mr. Abdul Rasheed, CM (IR) H.Q. was appointed. The Respondent Nos. 2 to 5 were served with Inquiry Notice dated 11.12.2003, they filed petition under Section 49(4)(e) of the Industrial Relations Ordinance, 2002 (in short the Ordinance) read with NIRC (P&F) Regulation, 1973 before the Respondent No. 1, who assumed the jurisdiction and required the petitioner to file comments on petition and also passed an ex-parte order dated 3.12.2003, the operative part reads:

"In the meanwhile the respondents are directed not to pass final order on the charge sheets and statement of allegations dated 15.11.2003 against the petitioners till the next date. The respondents are however, allowed to continue and complete the inquiry proceedings against the petitioners but may not announce the final result."

1. Hence the present petition.

2. On notice, the Respondents Nos. 2 to 5 have filed counter affidavit, whereby raised, inter alia, the pleas that the issue of jurisdiction is subjudiced before the competent forum and the petition is premature. The acts of unfair labour practice committed by the petitioner company were brought before the Member of NIRC with well based apprehension as to likelihood of commission of further acts of unfair about practice as to removal/dismissal from service by applying Ordinance, 2000 just to victimize the officers of the Union for their legitimate trade union activities. The petitioner have itself filed a case, alleging acts of unfair labour practice against the union and its office bearers seeking prohibitory orders, thus the petitioner company is taking contradictory pleas and stand by approbation and reprobating when availing the same forum by filing cases one after the other against the union and its office bearers and obtaining prohibitory orders and when the union sues the company for acts of unfair labour practice, it takes objection to its jurisdiction alleging that the Federal Service Tribunal has the jurisdiction, which is malicious and vexatious.

3. We have heard Mr. Mahmood Abdul Ghani, learned counsel for the petitioner and Mr. Gohar Iqbal, learned counsel for the Respondents Nos. 2 to 6.

4. Contention of learned counsel for the petitioner was that by virtue of Section 2A Service Tribunals Act, the workers/servants of the petitioner have been treated as "Civil Servant" for the purpose of providing single forum for adjudication of their grievances, touching the terms and conditions of the employment. He referred the statement of objects and reasons for insertion of Section 2A in Service Tribunals Act, 1973, by the Service Tribunals (Amendment) Act, 1997, to avoid multiplicity of fora for dealing with service appeals of the officers and employees of the statutory bodies, and employees of authorities, corporations, bodies, and organizations set-up or controlled by the Federal Government. The Statement of objects and reasons are as follows:

"There is a multiplicity of for a for dealing with service appeals of the officers and employees of the statutory bodies, and employees of authorities, corporations, bodies, and organizations set, up or controlled by the Federal Government. It is appropriate that the employees of such bodies and authorities are provided right of appeal before the Service Tribunal established under the Service Tribunals Act, 1973 under the existing provisions of the Service Tribunals Act, 1973, the Tribunals cannot hear appeal against interim orders made by the departmental authorities. Lack of jurisdiction in that regard some times, leave the employee without remedy. It is appropriate that the Tribunals should have jurisdiction to hear appeals even against ad interim order."

Elaborating his contention, it was contended by him that the effect of Section 2A came under discussion before the High Court and the apex Court. The settled view of the Superior Court is that by virtue of insertion of Section 2A, no forum has jurisdiction except the Services Tribunal for redressal of the grievance of the employees touching the terms and conditions of service.

1. Section 2A was brought on statute book by the Service Tribunals (Amendment) Act, 1997, which reads as under:

"2A. Service under certain corporations, etc. to be service of Pakistan--Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."

1. Mr. Mahmood Abdul Ghani in support his contention has urged that the assumption of jurisdiction by the Respondent No. 1 in the matter is coram-non-judice and the only forum is the Service Tribunal in the matter in respect of a grievance touching the terms and conditions of the service and his further contention was that the disciplinary action emanates from the terms and conditions of the services, he placed his reliance on the judgment dated 29.2.2000 in (1) C.P. No. D. 1026/1999, (Ehtishamuddin Siddiqui and others v. Federation of Pakistan & another), (2) C.P. No. D-718/1999 (Syed Ahmed Naqvi v. Member NIRC and others), (3) C.P. No. 373/2000 (Trustees of the Port of Karachi v. Member, NIRC and another), judgment dated 8.11.2002, (4) Sui Southern Gas Co. Ltd. Member, National Industrial Relations Commission and another (2002 PLC 80), (5) Mr. Azher Jameel v. Federation of Pakistan & others (SBLR 2002 Sindh 129) and (6) Searle Pakistan Limited v. Full Bench, National Industrial Relations Commission (2002 PLC 87).

2. In the first case, the Division Bench of this Court, consisting of one of us (Mr. Justice Shabbir Ahmed) refused to exercise the jurisdiction under Article 199 in view of bar of jurisdiction under Article 212 of the Constitution, with the following observations:

"It may be mentioned that Section 2A has been inserted in the Service Tribunals Act, whereby the said statute is extended to new territories or class of persons, who were originally not covered by it. By such insertion, any person serving under any Authority, Corporation, Body or Organization established by or under Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has controlling share of interest is declared to be service of Pakistan and every person holding post under such Authority, Corporation, Body or Organization shall be deemed to be civil servant for the purpose of this Act. There can be no escape from the conclusion that only forum for adjudication of dispute in respect of terms and conditions of service of employees of Authority, Corporation, Body or Organization owned or controlled by the Federal Government has been changed and in respect of such dispute Service Tribunals established under the Service Tribunals Act, 1973 shall have exclusive jurisdiction to entertain such dispute as provided under Section 4 of the Service Tribunals Act of 1973."

In second case, the learned Member of NIRC refused to assume the jurisdiction by dismissing the application under Section 22-A (B)(g) of I.R.O., 1969 read with Regulation 32(2) of NIRC (P&F) Regulations, 1973. The petitioner challenged the order in Constitutional jurisdiction, taking the plea that the petitioner was a work-man and therefore against the termination order the only remedy available to him was before the NIRC. The plea taken by the respondents was that the status of the petitioner may be of a work man but for the purpose of remedy, after insertion of Section 2-A with effect from 10.6.1997, was a "civil servant" and thus against the order of termination of his service the only forum available to him was the Service Tribunals and not before the NIRC. The Division Bench of this Court dismissed the petition, following the dictum of apex Court in Syed Aftab Ahmed and others v. K.E.S.C. and others (1999 SCMR 197), wherein the apex Court examined the status of employees/workman working under any authority, corporation, body or organization covered by Section 2-A of the Service Tribunals Act, 1973, the observations were:

"A perusal of the above quoted newly enacted Section 2-A indicates that the service under any Authority, Corporation, Body or Organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest has been declared to be service of Pakistan. It has also been provided that every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purposes of this Act i.e. the Service Tribunals Act, 1973. In our view, it is not necessary for any employee working in any of the organizations covered by Section 2-A that he should also come within the ambit of definition of the "civil Servant" given in Section 2(b) of the Act of 1973. The employees of various Authorities, Corporations etc. mentioned in Section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved."

In third case, in similar circumstances, the Trustees of the Port of Karachi challenged the observations made by the Members of the NIRC with regard to age of the respondent, while allowing withdrawal of the application under Section 22-A (8)(g) and 32(2) of the Industrial Relations Ordinance, 1969 and the plea taken on behalf of the respondents was recorded as follows:

"The contention of Ch. Rasheed that charges of unfair labour practice were leveled against the petitioner which could be enquired/investigated solely by Respondent No. 1. Is without any substance in view of the principle that a civil servant would not be allowed to bypass the jurisdiction of the Service Tribunal by adding/raising a ground of violation of fundamental rights as propounded by the Supreme Court in the case of I.A. Sherwani, reported in 1991 SCMR 1041. If the services Tribunal in exercise of its jurisdiction can deal with the issue of violation of fundamental rights then it can certainly deal with the issue of unfair labour practice while proceeding with an appeal of a civil servant against violation of his terms and condition of service."

In Sui Southern Gas Co. Ltd. (supra), the petition was allowed by recording that "the only contention urged by the counsel for petitioner is that the order passed by Respondent No. 1 is without any lawful authority as the Respondent No. 2 is a workman and after insertion of Section 2-A of Service Tribunals Act, 1973 the remedy if any lies before Service Tribunal and not before the N.I.R.C. In support of his above contention he has placed reliance on the case of Syed Aftab Ahmed and others v. K.E.S.C. and others (1999 SCMR 197) in which Hon'ble Supreme Court has held that Section 2-A was retrospective in its operation being a law relating to procedure as such all proceedings pending before any forum other than the Federal Service Tribunal in respect of departmental order made before insertion of the said section could no longer continue and the only remedy was to approach the Service Tribunal. The same view was also followed by Hon'ble Supreme Court in the case of Gulzeb Hussan v. Sui Northern Gas Pipelines Ltd. (2000 SCMR 959).

In Azhar Jameel's case, the following view was expressed:--

"It is a settled principle of law that objections/issues with regard to mala fides coram non judice, order ultra-vires and the illegality of the authority issuing the order can be raised before a Service Tribunal and an aggrieved civil servant cannot bypass the jurisdiction of the Service Tribunal by adding the aforesaid grounds. In support of the above proposition reliance is placed on the case of Asadullah Rashid v. Haji Muhammad Muneer and others, reported in 1998 SCMR 2129."

In last case, the following observations were made:--

"A bare perusal of Section 15 reproduced hereinabove is sufficient to establish that the management of the petitioner in initiating disciplinary proceedings against Respondent No. 3 on the basis of the inquiry report submitted by the Inquiry Officer was not guilty of committing unfair labour practice as defined in Section 15 of the Ordinance. In the circumstances, exercise of jurisdiction by Respondents Nos. 1 and 2 under Section 22-A(8)(g) of the Ordinance was beyond the scope of their jurisdiction and both of them had acted without jurisdiction in taking cognizance of the application filed by Respondent No. 3."

1. Lastly, it was contended by the learned counsel for the petitioner that if an order or proceedings are patently without jurisdiction, High Court can issue writ in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, to enforce his submission, he referred the case of Malik Nazar Hussain v. National Bank of Pakistan (2004 SCMR 28).

2. Learned counsel for the respondent, inter alia, raised the following contentions.

That the NIRC has the jurisdiction in respect of unfair labour practice either on the part of the employee or the employer. His contention was that the jurisdiction of NIRC could be invoked in a matter which is beyond the pale of Section 4 of the Service Tribunals Act.

Elaborating his contention, he maintained that only those matters could be brought before the Service Tribunals which are enumerated in Section 4 of the Act and his further contention was that the petitioner himself have invoked the jurisdiction of NIRC alleging unfair labour practice on the part of the Union, therefore, the petitioner cannot be aprobate and reprobate.

1. Section 4 of the Service Tribunal Act gives right to a civil servant to file an appeal aggrieved by any order whether original or appellate in respect of any terms and conditions of his service within the period mentioned therein.

2. The ratio of the cases referred to above can be summarized as follows:--

3. That by virtue of insertion of Section 2A any person serving under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act.

4. That the only forum for adjudication of dispute in respect of terms and conditions of service of employees of Authority, Corporation, Body or Organization owned or controlled by the Federal Government has been changed and in respect of such dispute Service Tribunals established under the Service Tribunals Act, 1973 shall have exclusive jurisdiction to entertain such dispute as provided under Section 4 of the Service Tribunals Act.

5. That a show-cause notice and initiation of proceedings under the disciplinary rules against a civil servant does not furnish him a cause for invoking the jurisdiction of a tribunal or a Court.

6. The matter of inquiry in respect of the allegations not attracting the Clause (d) of Section 63 of the Ordinance, 2001 cannot be brought before the NIRC under Section 49(4)(e) of the Ordinance, 2001.

7. The NIRC cannot assume jurisdiction to entertain a petition without examining whether the employee has been made victim of "unfair labour practice" in accordance with the provisions of Section 63 of the Ordinance.

8. It was contended by the respondents' counsel that the respondent Union had brought the Charter of Demand and during the pendency of the demand, the Respondents Nos. 2 to 5 were served with charge sheet, they are office bearers, as such, the case of unfair labour practice is made out and the Respondents Nos. 2 to 5 have rightly invoke the jurisdiction of the Respondent No. 1.

9. Unfair labour practices on the part of employers are enumerated in Section 63 of the Ordinance, which are synonymous to Section 15 of the repealed Ordinance 69, which are as follows:--

"63. Unfair labour practices on the part of employers.--(1) No employer or an association of employers and no person acting on behalf of either shall--

(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union; or

(b) refuse to employ or refuse to continue to employ any person on the ground that such person is or is not, a member or office-bearer of a trade union; or

(c) discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is or is not, a member or office-bearer of a trade union; or

(d) dismiss, discharge, remove from employment or transfer a workman or injure him in respect of his employment by reason that the workman--

(i) is or proposes to become a member or office-bearer of a trade union; or

(ii) participates in the promotion, formation or "activities of a trade union", (e) induce any person to refrain from becoming, or to cease to be a member or office-bearer of a trade union, by conferring or offering to confer any advantage on, or by procuring or offering to produce any advantage for such person or any other person; or

(f) compel or attempt to compel any office bearer of a collective bargaining agent to arrive at a settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power or telephone facilities or by such other methods; or

(g) interfere with or in any way influence the balloting provided for in Section 20; or

(h) recruit any workman during the period of notice of strike under Section 31 or during the currency of a strike which is not illegal except where the Conciliator has, being satisfied that complete cessation of work is likely to cause serious damage to the machinery or installations, permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur; or

(i) close down the whole of an establishment in contravention of Standing Order 11A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No. VI of 1968); or

(j) commence, continue, instigate or incite others to take part in, or expend or supply money or otherwise act in furtherance or support of, an illegal lock-out."

1. The question is whether the charge sheet and statement of allegations attract the Clause (d) referred to above. The statement of allegations with charge sheet served on the Respondents Nos. 2 to 5, have been reproduced in Para 2 above. There is no such allegation that they are being proceeded with as they propose to become a member or office bearer of a trade union or participate in the promotion, formation or activities of a trade union.

None of the allegations of the charge sheet attracts the "unfair labour practice" Mere "charge-sheeting" or show-cause notice and initiation of proceedings under the disciplinary rules against a civil servant does not furnish him a cause for invoking the jurisdiction of a tribunal or a Court. It is a settled principle of law that a civil servant would not have any cause of action to challenge a show-cause notice and the inquiry proceedings initiated pursuant to the show-cause notice as ruled in Azher Jameel v. Federation of Pakistan (SBLR 2002 Sindh 129). Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 SC 360) is the pronouncement of the apex Court, wherein the Supreme Court ruled that a show-cause notice did not furnish a ground to an aggrieved party to invoke the jurisdiction of a Court/tribunal and the proper forum for him was to submit a reply thereto and to fact the consequent proceedings, if initiated.

1. The learned counsel for the respondent, on the last leg, contended that apex Court in Malik Nazar Hussain (supra) ruled that the NIRC has the jurisdiction in respect of the unfair labour practice. In above case NIRC assumed the jurisdiction in respect of the individual grievance, who could have challenged the dismissal before the Labour Court by following the procedure of grievance notice as laid down in Section 25-A of the Industrial Relations Ordinance, 1969. The petition was allowed. The respondent bank filed appeal before the Full Bench of the NIRC and also filed the petition. The petition was allowed by holding that the impugned order to be completely devoid of jurisdiction and without lawful authority. The plea was raised that NIRC assumed the jurisdiction, for the reason that petitioner was made victim of unfair labour practice by the employer in accordance with the provisions of Section 15 of the Industrial Relations Ordinance. In this back-ground the apex Court ruled that "we are inclined to hold that NIRC has no jurisdiction to entertain the petition on behalf of the petitioner, without examining whether he has been made victim of unfair labour practice in accordance with the provisions of Section 15 of the Industrial Relations Ordinance, 1969, therefore, assuming of the jurisdiction by the Chairman, N.I.R.C. was illegal, as such the High Court was quite competent to entertain writ petition filed by the National Bank, irrespective of the fact that it has also filed appeal before Full Bench of N.I.R.C. through the same was withdrawn by the Bank during pendency of the petition before High Court. It is well settled that if an order or proceedings are patently without jurisdiction, High Court can issue writ in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, as it has been held in the case of Chairman Central Board of Revenue v. Pakistan Saudi Fertilizer Ltd. (2001 SCMR 777)."

2. Admittedly the Respondents Nos. 2 to 5 are "civil servants", serving under petitioner, controlled by the Federal Government, they cannot invoke the jurisdiction of Respondent No. 1 by alleging unfair labour practice on the part of the petitioner. We are unable to accept the contentions that the respondents being officer bearers, if proceeded under the disciplinary proceedings, will amount to "unfair labour practice".

3. Upon the above discussions we are satisfied that the respondent No. 1 erred in exercise of jurisdiction on the application of the respondents under Section 49(4)(e) of the Ordinance for alleged unfair labour practice on the part of the management of the petitioner and the Respondent No. 1 illegally proceeded against the petitioner without first determining as to whether the alleged action of the management would be covered by the provisions of Section 63 of the Ordinance so as to come within the definition of unfair labour practice, which was an essential condition for conferring jurisdiction on Respondent No. 1 to proceed with the application of Respondent No. 6. The Respondent No. 1 passed the impugned order in illegal exercise of the jurisdiction and cannot be sustained. Resultantly, we allow the petition, the impugned order is set aside, with no order as to costs.

(A.A.) Petition accepted.

PLJ 2005 Karachi 39 (DB)

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ.

YOUSAF MUNEER SHAIKH and others--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others--Respondents

C.P. No. D-715 of 2004, decided on 21.7.2004.

(i) Criminal Jurisprudence--

----Principles--Any number of accused may escape unpunished for lack of sufficient evidence or failure of prosecution to prove guilt beyond reasonable doubt, but no innocent persons should be convicted or punished for what he has not done. [P. 57] H

(ii) Interpretation of Statutes--

----Meaning and scope of--Provision of law is to be given its literal meaning as evidenced from its language--Each and every word used by Legislature has its own import/significance and no word is to be deemed redundant.

[P. 54] B

PLD 1976 SC 6 fol.

(iii) Representation of the People Act, 1976 (LXXXV of 1976)--

----Ss. 27, 52, 57, 68 & 103-AA--General election--Remedy of aggrieved candidate--Scope--General remedy of aggrieved candidate was to present election petition before Election Tribunal having power to declare election of returned candidate void on any ground stated in S. 68 of

Act, 1976--Election Commission had jurisdiction to declare a poll void subject to various conditions spelled out from language of S. 103-AA of the Act--"Satisfaction" of Commission contemplated under S. 103-AA could not be arbitrary or fanciful, but should be in accord with view expressed by Supreme Court--Order could be re-polled on one or more polling station. [Pp. 54 & 55] A, C, D & E

1999 SCMR 2051 and AIR 1966 SC 1047 ref.

(iv) Representation of the People Act, 1976 (LXXXV of 1976)--

----Ss. 42 & 103-AA--General election--Election Commission declared void election process in some constituencies and directed holding of fresh bye-elections--Validity--Material available with Commission while invoking its jurisdiction under S. 103-AA of Act, 1976 consisted of reports of Home Secretary, Law enforcing agencies, returning officer/assistant returning officers and application in forms of telegrams and such reports, adequate safety measures had been taken through Law enforcing agencies to ensure of election process in smoothly and peacefully manner--Polling had continued without any disturbance or interruption except stoppage of polling on two polling stations for a short period due to incidents of indiscriminate firing outside polling stations, but same had again resumed and concluded as per schedule--If all prevailed, had power under S. 27 of Act, to stop polling and inform Returning Officer, who in turn would report matter to Commission, which could direct re-poll at such polling stations--Such reports from independent sources had been rejected by Commission without reasonable ground and further inquiry--Commission had brushed aside affidavit of petitioner without assigning any reason--Commission had accepted such complaints as true for no valid ground, which were neither supported by complainants nor same were corroborated by reliable material--Such incidents resulting in loss of several human lives could not be made basis to declare whole election process void, unless same was shown and proved to have any material bearing on result of returned candidates were responsible for same--No material was available with Commission for taking impugned action--Constitutional petition accepted. [Pp. 56, 57 & 58] F, G, I, J & K

PLD 2003 Kar. 209; PLD 1996 SC 108; PLD 1979 SC 741; PLD 2000 SC 77; 1989 CLC 1833; 1986 SCMR 1736; PLD 1990 SC 352; 2003 YLR 1413; 1995 SCMR 684; 2003 SCMR 1401; 1991 CLC 2093; 1993 MLD 1225; PLD 1989 SC (AJ&K) 61; 1994 CLC 296; 2003 CLC 44; 2003 CLC 1310 and PLD 1977 Journal 164 ref.

Mr. Abul Inam and Aftab Ahmed Sheikh, Advocates for Petitioners.

Mr. Makhdoom Ali Khan, Attorney-General of Pakistan, alongwith Mr. Nadeem Azhar, Deputy Attorney-General of Pakistan.

Mr. Anwar Mansoor Khan, A.G. Sindh alongwith Qazi Khalid Ali, Addl. A.G.

Mr. Shahadat Awan, Advocate for Respondent No. 13.

Mr. Muhammad Junaid Farooqi, Advocate for Respondents Nos. 17 and 25.

Mr. Muhammad Khalid Khan Arshi, Advocate for Respondent

No. 28.

Mehboob Anwar, Deputy Election Commissioner on behalf of Respondent No. 1.

Nemo for other Respondents.

Dates of hearing: 14th, 15th and 16.7.2004.

Order

Anwar Zaheer Jamali, J.--By this Constitutional petition, petitioners Yousaf Munir Shaikh, Muhammad Abid Ali Umang and Nisar Ahmed Panhwar, who were respectively candidates from PS-127 Karachi-39, NA-240, Karachi-2 and NA-246 Karachi-8 in the bye-elections held on 12.5.2004, have challenged the order dated 9.6.2004 passed by Respondent No. 1, and have prayed for the following reliefs:--

A. That this Honourable Court may be pleased to declare that the impugned order dated 9.6.2004 is bad in law, arbitrary, unjust, mala fide and of no legal effect.

B. That this Honourable Court may be pleased to hold that Petitioner No. 1 having secured highest number of votes in Constituency P.S. 127, Karachi-39, Petitioner No. 2 having secured highest number of votes in N.A. 240, Karachi-2 and Petitioner No. 3 having secured highest number of votes in N.A. 246, Karachi-8 are entitled to be declared as returned/elected members of the Sindh Provincial and National Assembly of Pakistan.

C. That this Honourable Court may be pleased to direct Respondent No. 1 to declare by public notice the Petitioner

No. 1 from P.S. 127, Karachi-39, Petitioner No. 2 from N.A. 240, Karachi-2 and Petitioner No. 3 from N.A. 246, Karachi-8 as returned/elected candidates.

D. That this Honourable Court may be pleased to grant permanent injunction restraining Respondent No. 1 from giving effect to and from taking steps pursuant to Notification No. F. 8(16)/2004-Cord, dated 9.6.2004.

E. Any other/further additional relief/relieve which this Honourable Court deems fit proper and exercise in the circumstances of the case.

1. Briefly stated, the case of the petitioners is that in the bye-elections of their respective constituencies at Karachi held on 12.5.2004 they were the returned candidates, having secured following votes as against their nearest rival candidates:--

Sl. Constit- Name of the Votes Name of nearest

No. uency Candidate/ secured rival candidate

No. petitioner and votes secured

1. PS-127 Yousuf Munir 41089 Muhammad Umar

Karachi-39 Shaikh Jat 25430

1. NA-240 Muhammad Abid 46453 Qari Muhammad

Karachi-2 Ali Umang Usman 26053

1. NA-246 Nisar Ahmed 47685 Rashid Naseem

Karachi-8 Panhwar 16895

It was obligatory upon Respondent No. 1 to have declared their results accordingly in terms of Section 42 of the Representation of People Act, 1976 (hereinafter referred to as the Act of 1976) but instead of doing so the election result were initially kept in abeyance by Respondent No. 1, vide order, dated 13.5.2004, thereby further authorising one of its members, Justice Muhammad Sadiq Leghari to hold summary enquiry. Thereafter purportedly exercising its powers under Section 103-AA of the Act of 1976 Respondent No. 1 declared the whole election process in their respective constituencies null and void and directed holding of fresh bye-elections, in an arbitrary manner. To impugn such order of Respondent No. 1 some of the grounds urged in the petition read as under:--

(i) That the impugned order has been passed by the Respondent No. 1 in purported exercise of Section 103-AA of the Representation of the People Act, 1976 which empowers the Respondent No. 1 to declare the poll in any constituency void in case the Respondent No. 1 is satisfied that grave illegalities or violations of the provisions of the Representation of the People Act, 1976 or the rules framed thereunder have been committed. It is submitted that such powers by the Respondent No. 1 can only be exercised if from the facts apparent on the face of the record and after such summary inquiry as the Respondent

No. 1 may deem necessary come to the conclusion that grave illegalities or violations of the provisions of the Representation of the People Act, 1976 or rules framed thereunder have been committed. It is further submitted that as is evident from the reports of the relevant District Returning Officers and Returning Officers the poll in the 3 Constituencies were held in a free, fair and transparent manner and as such the alleged gross illegalities or violations of the provisions of the Act or the rules were not apparent on the face of record;

(ii) That Section 103-AA of the Representation of the People Act, 1976 does not confer unbridled and unfettered powers on the Respondent No. 1 to declare the poll void but exercise of such power by the Respondent No. 1 is subject to existence of grave illegalities or violation of the provisions of the Act or the Rules apparent on the face of the record and holding of such summary enquiry as the Respondent No. 1 may deem necessary. It is submitted that while passing the impugned order the reports of the Returning Officers and the Law Enforcement Agencies were available before the Respondent No. 1 and from such reports no illegality or violation of the provisions of Act or Rules is apparent on the face of the record. Furthermore, no other material on record by way of summary inquiry was brought before the Respondent No. 1 which may suggest or prove that grave illegalities or violations of the provisions of the Act or Rules were committed by the petitioners. Such being the position the order, dated 9.6.2004 passed by the Respondent No. 1 is based on surmises and conjectures.

(iii) That Section 27 of the Representation of the People Act, 1976 empowers a Presiding Officer for a Polling Station to stop the poll and inform the Returning Officer that he has done so if the poll at the Polling Station at any time, so interrupted or obstructed for a reason beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under Section 26 or any ballot box used at the Polling Station is unlawfully taken out of the custody of the Presiding Officer or lost or damaged or tampered with to such an extent that a result of the poll at the Polling Station cannot be ascertained. It is submitted that during the entire electoral process of 12.5.2004 polling was stopped temporarily for a short period only on one Polling Station i.e. Polling Station No. 94 in P.S. No. 127, Karachi-39 and on this Polling Station also polling resumed after a short interval and continued in a peaceful and orderly manner till the closing hours of the polling. There was no incident of removal of ballot box or tampering or stuffing with the same at any of Polling Stations. Such orderly, fair, transparent and peaceful conduct of poll on 12.5.2004 amply demonstrated that insofar as the conduct of election is concerned the same was done in any orderly peaceful and transparent manner and as such the Respondent No. 1 had/have no justification to declare the poll null and void.

(iv) That the impugned order of declaring the poll null and void has been based by the Respondent No. 1 on the complaints which were made by the parties regarding alleged grave illegalities. It is submitted that the complaints mad by the parties on the election day cannot be made basis for declaring the poll null and void as the complaints made by the parties requires probe, investigation and evidence which can only be done by the Election Tribunal in an Election Petition under Section 52 of the Representation of the People Act, 1976. It may be added that indeed none of the losing candidate appeared before the Respondent No. 1 to substantiate the allegations contained in the complaints made before the Respondent No. 1 in respect of process of election held on 12.5.2004.

(v) That the Respondent No. 1 has gravely erred in holding that there was indiscriminate firing in the said constituencies which resulted in interference with the free exercise of right of franchise of the electorate during bye-election in the said 3 Constituencies. It is submitted that incident of firing in N.A. Constituency No. 240 is restricted and as reported was a hit and run incident, as is evident from the police reports, at one Polling Station situated in Anjam Colony, Baldia, Karachi and as per the consolidation of result count 6215 votes were cast as against total registered 10521 votes at this Polling Station. In any event the ends of justice would have met if re-polling on this Polling Station would have been ordered. It is submitted that on account of disturbance/violence at one Polling Station alone the entire result cannot be declared null and void.

(vi) That from the tenor of the impugned order dated 9.6.2004 it became crystal clear that the incidents of firing at some places weighed with the Respondent No. 1 in declaring the poll in the 3 constituencies as null and void. It is submitted that firing incidents in P.S. Constituency No. 127, Karachi-39, took place outside only one Polling Station i.e. Polling Station No. 94 situated in Jafer-e-Tayar Society, where no casualty took place and few persons were injured as a result of firing and as a result of injuries caused with hard and blunt objects. In N.A. Constituency No. 240, Karachi-2 the incident of firing took place outside the Polling Station situated in Anjam Colony and in N.A. 246, Karachi-8 incident of firing took place outside 3 different Polling Stations as is evident from the police report which has been incorporated in the impugned order itself at page 5. It is submitted that on account of incidents of firing polling was not disturbed or stopped and it continued till the scheduled time of closing of polling, as is evident from the report of the Rangers. Such being the position the order of declaring the poll, null and void is bad in law, arbitrary, mala fide and of no legal effect.

(vii) That there were 158 Polling Stations in N.A. 240, 197 Polling Stations in N.A. 246 and 130 Polling Stations in P.S. 127 and in N.A. 240 firing incidents took place outside 3 Polling Stations, in N.A. 246 firing incident took place outside one Polling Station and in P.S. 127 firing and disturbance took place outside one Polling Station as is apparent from the police reports which is available at page 5 of the impugned order. Such being the position the entire poll does not stand vitiated and the poll cannot be declared as null and void merely on account of disturbance at some Polling Stations (16 out of 495 Polling Stations) and as such the order of Respondent No. 1 is bad in law, arbitrary and unjust and of no legal effect. At best the Respondent No. 1 could have passed an order for holing of fresh polls only on such Polling Stations where such disturbance had taken place.

1. On service of notice of this petition, appearance has been made by Mr. Makhdoom Ali Khan, Attorney-General of Pakistan, Mr. Anwar Mansoor Khan, Advocate-General, Sindh, both on Court notice, counsel named above on behalf of some of the respondents, while other respondents have chosen to remain absent.

2. Reply on behalf of Respondent No. 1 has been filed wherein it has been stated that in view of the interim order passed by this Court in this petition on 22.6.2004 further process of fresh elections in these constituencies in pursuance of the notification dated 9.6.2004 has been stayed. As to the other allegations made in the petition it has been asserted that the impugned order, dated 9.6.2004 has been passed in conformity with the provisions of Section 103-AA read with Section 104 of the Act of 1976 and Article 6 of the Election Commission Order, 2002 after proper application of mind and considering all the facts and circumstances of the case in a bona fide manner, therefore, the petition is liable to be dismissed. Other respondents have not submitted any comments/reply to this petition.

3. Mr. Abul Inam, Advocate representing petitioners in this case reiterated the facts stated in the petition and strongly contended that the impugned order passed by Respondent No. 1 is a glaring instance of arbitrary and mala fide exercise of power by Respondent No. 1 contrary to the material available on record before it, and ignoring the relevant material without any cogent or valid justifications. He made specific reference to three reports submitted by the respective Returning Officers/Assistant Returning Officers of P.S. 127, N.A. 240 and N.A. 246 to show that none of these Officers, who were in charge of the whole election process at the relevant time had reported any illegality, irregularity, rigging or such other incidents at any Polling Station except interruption of polling on two Polling Stations for some short period which could have materially affected the election results of the petitioners who are the returned candidates. In the same context he also made reference to Paragraph 4 of the impugned order, wherein the reports submitted by Tariq Jamil, D.I.-G.P. Operations, Haji Abdul Razzaque, I.N.S.P. Sharfabad P.S. Investigation Zone III Karachi, Ashfaq Hussain, I.N.S.P. Liaquatabad P.S., Bashir Khan Sub-Inspector Gulberg P.S. Investigation Zone III Karachi, Muhammad Riaz Sub-Inspector, Liaquatabad P.S. Investigation Zone III, Karachi, Niaz Ahmed Khoso, Senior Superintendent of Police Investigation Zone IV, C.C.P., Karachi, have been reproduced to show that in these reports also, except some incidents of violence outside few Polling Stations, resulting in some casualties, no allegations of rigging, bogus voting or any other illegality, materially affecting election results were reported. He, therefore, contended that the impugned order passed by Respondent No. 1 is based on surmises and conjectures which do not find support from any material available before the Respondent No. 1. Referring to the provisions of Section 103-AA of the Act of 1976 learned counsel further contended that if there was any illegality or irregularity in the process of bye-elections held on 12.5.2004 then proper/appropriate remedy was available to the aggrieved parties by way of Election petitions before the Election Tribunal, after the notification under Section 42 of the Act of 1976 was issued by Respondent No. 1. He also urged that the scope of summary enquiry contemplated under Section 103-AA of the Act of 1976 cannot be stretched in an arbitrary manner to the extent that contrary to the reports and other material available before Respondent No. 1, which were received from independent sources, on the pretext of restoring the confidence of general public on Respondent No. 1, by a stroke of pen the whole election results could be declared void. Mr. Abul Inam contended that the authenticity of the results compiled by Returning Officers of their respective constituencies were not in dispute, thus, the Respondent No. 1 had no option but to declare such results in terms of Section 42 of the Act of 1976 leaving it open for the losing candidates to agitate any further grievance in respect thereof before the Election Tribunal established under Section 57 of the Act of 1976 for this purpose. To add force to his contention he relied upon the case of Kunwar Khalid Younus v. Federation of Pakistan PLD 2003 Kar. 209 wherein a Division Bench of this Court has held that Section 42(4) of the Act of 1976 casts a mandatory duty upon Election Commission to publish the name of returned candidates, on the basis of the consolidated result communicated by the Returning Officer, irrespective of any power that the Election Commission may exercise under Section 103-AA to declare an election void upon finding of grave illegalities or violation of law.

4. Continuing with his arguments Mr. Abul Inam submitted that nullifying the whole election results of three constituencies PS-127, NA-240 and NA-246 by impugned order mainly on the pretext of instances of indiscriminate firing resulting in several casualties and for restoring the confidence of public on Election Commission of Pakistan, the Respondent No. 1 has laid down a very dangerous precedent to give benefit to a party who himself may be instrumental/responsible for creating such law and order situation or loss of precious lives of innocent citizens, which has otherwise no nexus to the smooth election process, as confirmed by the Returning Officers in their respective reports. Critically examining the impugned order he urged that the material available, with Respondent No. 1 at the time of passing of impugned order could be categorized in three parts (a) enquiry reports submitted by the Home Secretary and Law Enforcing Agencies on the directions of Commission; (b) reports submitted by the Returning Officers on the directions of the Commission and (c) complaints in the shape of telegrams and letters directly received by the Commission. From these reports, first two reports have supported the claim of the petitioners, inasmuch as there were no such incidents of violence which could materially affect the results of the three constituencies, while the third part of the material, telegrams and complaints were wholly unsupported from any corner as even the complainants themselves have not responded to join the enquiry proceedings before the Commission. In the same context he also made reference to the proceedings before one of the members of the Commission, Mr. Justice Muhammad Sadiq Leghari, who was authorized to hold enquiry in terms of the order, dated 13.5.2004, to show that he had expressed his inability to hold detailed enquiry due to the factors, including profile of the matter, the absence of MMA candidates and the expressions made by some circles through media. Learned counsel also made comparative analysis of remedies provided under Sections 52 and 103-AA of the Act of 1976 to show that the former provision of law is the one where full-fledged enquiry is to be conducted through Election Tribunal to examine all grievances through Election Petitions in an appropriate and judicious manner while under the latter provision of law only summary procedure is prescribed in the cases where grave illegalities or violations of law and rules of such nature are apparent on the face of record which could form valid basis to nullify whole election results in a summary manner. To amplify the concept of "apparent on the face of record" learned counsel placed reliance on the following cases:--

(a) Messrs Joint Venture KG/KIST v. Federation of Pakistan PLD 1996 SC 108.

(b) Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741;

(c) Mohtarama Benazir Bhutto v. President of Pakistan PLD 2000 SC 77.

Relevant observations from these cases adverted to by the learned counsel are reproduced as under:--

PLD 1996 SC 108 (119)

"We may mention here that the Court while examining the validity of an award does not act as a Court of appeal. Therefore, a Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the Arbitrator in order to discover the error or infirmity in the award. The error or infirmity in the award which rendered the award invalid must appear on the face of the award and should be discoverable by reading the award itself. Where reasons recorded by the Arbitrator are challenged as perverse, the perversity in the reasoning has to be established with reference to the material considered by the Arbitrator in the award."

PLD 1979 SC 741 (768)

"43. From what has been said in the preceding paragraphs it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination."

PLD 2000 SC 77 (81)

"Before an error can be a ground for review it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface and does not require any elaborate discussion or process of ratiocination."

1. Mr. Abul Inam also placed reliance on the following passages from the case of Abdul Hamid Khan Achakzi v. Election Commissioner of Pakistan, Islamabad and 24 others 1989 CLC 1833 to fortify his submissions with reference to the extent of jurisdiction of Respondent No. 1/Election Commission of Pakistan in invoking its powers conferred under Section 103-AA of the Act, which reads thus:

"It may be seen that Section 27(1)(b) expressly caters for special situation wherein ballot boxes used at the polling station, are unlawfully taken away from the custody of the Presiding Officer and are destroyed, lost, damaged, or tampered with whereupon result of such polling station cannot be ascertained. Evidently the Returning Officer is obliged to communicate such happening to Election Commission who shall direct fresh polls unless satisfied that result of the election in the said constituency is appropriately determinable on the basis of voting already held in the remaining polling stations. Anyhow powers of Election Commission' for directing fresh polls in a particular polling station and procedure for counting are specified in sub-sections (3) and (4) of Section 27. Whereas Section 103-AA describes general supervisory and all pervading authority ofElection Commission' for declaring election of the whole constituency as void on being satisfied about existence of grave illegalities or serious violations of the provisions of The Representation Act' orElection Rules' in the conduct of polls in any constituency. In the instant case report was made by the Returning Officer to the Election Commission about unauthorised forcible removal of the ballot boxes concerning two polling stations i.e. 43 and 44 by a group of persons admittedly other than the petitioner. There was absolutely no grievance placed by either party before the `Election Commission' about any violation in the remaining 55 polling stations. We are quite clear that when express provision concerning exercise of authority by a form providing specific mode of redress to an aggrieved party exists then it would be inexpedient to invoke general or supervisory provisions of the statute. Similarly basic object of providing variety of jurisdiction to a forum is necessarily for rectifying mischief or violation through least disturbance, inconvenience or expenses. No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of Section 103-AA but in our view such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation.

Additionally it appears imperative that preconditions contained in the general provision should be fully satisfied before making direction about extreme action or disturbing the whole electorate of the constituency. Section 103-AA obviously regulates jurisdiction of the Commission, only when grave illegalities are reported to have been committed in the Constituency' as distinguished fromPolling Station' Section 2(vii) of The Representation Act' defines constituency as delimited under the Delimitation of Constituencies Act, 1974. WhereasPolling Stations' is a fraction unit, established by the District Returning Officer in every constituency for facilitating holding of elections as contemplated under Section 8 of said enactment. Admittedly in Constituency PB-9 Pishin IV, fifty-seven (57) polling stations were established through Gazette Notification No. 199 Quetta 22.10.1988. Therefore, Election Commission while considering factum of rigging, malpractice, illegal practices, or violation of law or rules was obliged to see whether alleged illegalities or improprieties were reported in `The Constituency' or considerable portion thereof, or merely in one or two specified polling stations. The Election Commission was further bound to consider whether final result of the Constituency was otherwise determinable on the basis of polls conducted in the remaining majority of the polling stations. We are inclined to observe that relevant facts for assumption of jurisdiction have not been kept in view by Election Commission No. 1 while passing the impugned order, besides provisions of Section 27(1)(b) and other factual aspects were completely ignored. In this context it would be proper to mention here that ignored. In this context it would be proper to mention here that Constituency PB-9 Pishin IV comprising of 57 polling stations has 95,907 voters. Whereas voting strength of polling stations has 95,907 voters. Whereas voting strength of polling stations 43 and 44 combined together consists of 2,782 persons. Apparently, when matter came up for hearing before the Election Commission there was no complaint in respect of remaining 55 polling stations consisting of approximately 93,125 votes. The result count pertaining to fifty-five polling stations forwarded by the Returning Officer to the Election Commission, in accordance with Section 42 and the Rule 28 showed 17,843 votes having been polled in favour of petitioner as well as rival candidates (private respondents) thus, indicating almost ratio of 19.05% persons who participated in the election from 55 polling stations of said Constituency."

1. Relying upon the above case, learned counsel contended that Respondent No. 1 in passing the impugned order, dated 9.6.2004 miserably failed to make distinction between disturbances at one or two Polling Stations in the constituency, not much affecting the overall result of the constituency or disturbance as a whole, and in this regard availability of powers with the Presiding Officer of the Polling Station and the concerned Returning Officer under Section 27 of the Act of 1976, were also overlooked. He concluded that examining the impugned order from any angle, factual or legal, same is not sustainable in law.

2. Mr. Aftab Ahmed Shaikh, learned counsel for Petitioner No. 2 adopted the arguments of Mr. Abul Inam, Advocate and urged that to meet the ends of justice impugned order and consequent notification dated 9.6.2004 be declared void and of no legal effect.

3. Mr. Makhdoom Ali Khan, Attorney-General of Pakistan, who has appeared on Court notice, did not support the impugned order passed by Respondent No. 1. He contended that in relation to election disputes two types of remedies are available to aggrieved persons, one under Section 52 of the Act and the other under Section 103-AA of the Act. Dilating upon the scope of summary enquiry contemplated under Section 103-AA of the Act he made reference to the case of Raja Muhammad Afzal v. Ch. Muhammad Ali Altaf Hussain 1986 SCMR 1736 and urged that even in the cases of summary enquiry provisions of Qanun-e-Shahadat Order were strictly applicable to prove any allegation and for that principles of natural justice also cannot be violated. He emphasized that the language of Section 103-AA of the Act of 1976 is very significant and interference by Respondent No. 1 in exercise of such powers can only be justified within its strictly defined parameters, and this remedy cannot be considered as bar to the other general remedy available under Section 52 of the Act of 1976. He submitted that if the two provisions of law are placed in juxtaposition then it will be noticed that the powers under Section 103-AA of the Act of 1976 could only be exercised by Respondent No. 1 in exceptional cases of grave illegalities or violation of Act and the rules, which are apparent on the face of material available before the Commission. Referring to the impugned order he further contended that whole discussion made in the impugned order is of general in nature, without reference to any provision of Act or rules which were purportedly violated during the process of election or any instance of grave illegality which has materially affected the election results. Referring specifically to the observations of Respondent No. 1 contained in impugned order that "the interference related to a part or any section of electorate, big or small or majority of the electoral is wholly immaterial learned counsel contended that such view is contrary to the settled law relating to elections as enunciated in the case of Abdul Hameed Khan Achakzai (supra) (relevant portion produced above) and the case of Haji Behram Khan v. Abdul Hameed Achakzai PLD 1990 SC 352 whereby such judgment of the High Court was upheld by the Honourable Supreme Court of Pakistan with the following observations:--

"We agree with the High Court that in a case whereas serious violation of law or any statutory rules is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, Respondent No. 1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or a hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process."

1. In the end Mr. Makhdoom Ali Khan discussed the import of word "satisfied" used in Section 103-AA of the Act of 1976 and contended that, such satisfaction of Respondent No. 1 should not be arbitrary or capricious but it should be based on sound material available with the Commission. To fortify this view he referred the case of Syed Saeed Hassan v. Pyar Ali and others (PLD 1976 SC 6) and the case of Mehmood Khan v. Election Commission of Pakistan 2003 YLR 1413.

2. Mr. Anwar Mansoor Khan, Advocate-General, Sindh, who is on Court notice, also did not support the impugned order passed by Respondent No. 1 and adopted the arguments of learned Attorney-General of Pakistan. In addition to that, he placed on record notes of his written arguments wherein he, from his point of view, critically analyzed shortcomings of the impugned order and further dilated upon the scope of phrases "(fact apparent on the face of record" "grave illegalities" and import of word 'satisfied" available under Section 103-AA of the Act of 1976. In addition to some of the cases referred above, he made reference to the following cases:--

(1) Bartha Ram v. Lala Mehar Lal Bheet and another 1995 SCMR 684;

(2) Mian Muhammad Jahangir and others v. Government of Punjab through Secretary, Housing and Physical Planning, Lahore and others 1999 SCMR 2051;

(3) Baqar v. Muhammad Rafique and others 2003 SCMR 1401;

(4) Abdul Hafeez Pirzada v. Agha Ghulam Ali Buledi and others 1991 CLC 2093;

(5) Syed Muhammad Khalil-ur-Rehman Chishti v. Shamshad Khan and others 1993 MLD 1225;

(6) Faiz Ali Shah v. The State PLD 1989 SC (AJ&K) 61;

(7) Mian Khurshid Mahmood Kasur v. Returning Officer and 9 others 1994 CLC 296.

1. Mr. Muhammad Junaid Farooqi, Advocate for Respondents Nos. 15 and 27 in his reply submissions firstly, challenged the maintainability of the petition with reference to the status of Respondent No. 1 as Tribunal in view of the language of Section 103-AA(3) of the Act of 1976. However, on perusal of explanation note to Section 67(3) of the Act (substituted vide Act IX o 1991 dated 18.6.1991) he did not press this point. Learned counsel next contended that as the whole material available with the Commission/Respondent No. 1 is not available before this Court therefore, findings of fact recorded in the impugned order of Respondent

No. 1 cannot be examined properly by this Court. To fortify this view he placed reliance upon Sarfraz Ahmed Khan v. District Judge, Multan 2003 CLC 44 and Dr. Ruqia Shaukat v. Additional District and Sessions Judge and others 2003 CLC 1310. In these cases which respectively related to ejectment proceedings under rent laws and guardianship dispute, the view taken by the Courts was that the exercise of reappraising the evidence in order to come to its own conclusion should not be undertaken by the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution. Learned counsel also made reference to photostat copies of the complaints, which were placed on record by him on 15.7.2004 alongwith statement, to show that the incidents of violence were of such nature that same have affected the over all turn out of voters and the final result of elections. He also submitted that the Election Commission of Pakistan has acted in a bona fide manner, therefore, due to some procedural lapse in the proceedings the impugned order shall not be disturbed/set aside but at the most the matter can be remanded to Respondent No. 1 for fresh summary proceedings to afford full opportunity to the petitioners and other parties to put up their case.

1. Mr. Shahadat Awan, Advocate for Respondent No. 13 also strongly supported the impugned order, dated 9.6.2004 passed by Respondent No. 1. He confined his submissions with reference to illegalities and the acts of violence committed within the constituency of PS-127 from where Respondent No. 13 was a candidate. He made reference to certain observations of Respondent No. 1 contained at Pages 6, 30 and 33 of the impugned order to fortify his submission in this regard. Learned counsel also made reference to page 7 of Annexure "E" in the same context to fortify his submissions and placed reliance on the judgment relating to complaint of malpractices in constituency NA-57 Sargodha-V PLD 1977 Journal 164. In this case powers of Election Commission available under Sections 103 and 103(B) were discussed in detail with reference to the concept of "grave illegalities" or violation of the law or the rules and after detailed discussion on relevant facts, polls were declared void.

2. Mr. Muhammad Khalid, Advocate for Respondent No. 28 also supported the impugned order and submitted that by virtue of Section 105 of the Act the jurisdiction of this Court to entertain this petition is barred. However, he was unable to cite any case-law in support of his submissions that how a sub-Constitutional legislation can curtail the Constitutional jurisdiction of this Court under Article 199 of the Constitution. Learned counsel however, did not controvert that except some complaints, which also remained unpursued, no other material was available with the Respondent No. 1 to declare the election result void.

3. Mr. Mehboob Anwar, representative on behalf of Respondent No. 1 did not advance any arguments, except that whatever has been stated by Respondent No. 1 in its comments that may be taken into consideration for disposal of this petition.

4. We have carefully considered the arguments advanced by the learned counsel minutely perused the material placed on record, including the record produced by the representative of Respondent No. 3 on our directions and also perused the case-law cited at the bar.

5. There is no divergence of view in the arguments advanced by learned counsel for parties to this extent that the normal remedy available to an aggrieved candidate against election results is provided under Section 52 of the Act and such election petition is to be presented before the Tribunal constituted under Section 57 of the Act which is, inter alia, empowered to declare the election of returned candidates void on any of the ground stated in Section 68 of the Act and in addition to such remedy Respondent No. 1 has also been conferred with power under Section 103-AA of the Act of 1976 to declare a poll void but such power is subject to various conditions spelled out from the language of the said provision of law. To examine this aspect vis-a-vis the scope of Section 103-AA to the Act of 1976 it will be advantageous to reproduce the same as under:

"103-AA. Power of Commission to declare a poll void.--(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary enquiry as it may deem necessary the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in Section 108.

(2) Notwithstanding the publication of the name of a returned candidate under sub-section (4) of Section 42, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final subject to a decision of a Tribunal.

(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure."

1. It is well-settled principle of interpretation of statutes that a provision of law is to be given its literal meaning as evident from its language, each and every word used by the Legislature has its own import/significance, and no word is to be deemed redundant. Keeping in view this guiding principle when the provision of Section 103-AA of the Act of 1976 is perused it reveals that this remedy is available in addition and notwithstanding to any other remedy available under the Act of 1976, for invoking jurisdiction, facts apparent on the face of record are to be taken into consideration by way of holding summary enquiry as deemed fit by the Commission, and in case on holding of such summary enquiry the Commission is satisfied that grave illegalities or violation of the provisions of the Act or the Rules were committed only then Commission can declare the polls in the constituency void.

2. As against this, Section 52 of the Act of 1976 provides general provision for challenging the election of any returned candidate on various grounds given in Section 68 of the Act, while Section 27 of the Act of 1976 deals with the situation of stopping of polling on one or more polling stations on the grounds provided therein, and holding of fresh poll on those polling stations under the orders of Commission and issue of such notification.

3. A review of some of the cases cited at the bar (shows that in the case of Mian Muhammad Jahangir (supra) the import of words "error apparent on the face of record" was considered and it was observed that it refers to an error so manifest and so clear that no Court shall permit such an error to remain on record. In the case of Baqar (supra) reference was made to the case of Master Construction Ltd. AIR 1966 SC 1047 and it was held that an error apparent on the face of record or an accidental slip or omission should be an error apparent on the first sight and omission should be an accidental slip or omission made by the Court. Such an error, for its discovery, should not depend on elaborate arguments on questions of fact and law. In addition to it, as has been rightly argued by the learned Attorney-General the "satisfaction" of Respondent No. 1 as contemplated under Section 103-AA of the Act of 1976 cannot be arbitrary or fanciful but it should be in line of the view expressed by the Honourable Supreme Court of Pakistan in case of Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 (relevant page 30) which reads thus:

"Firstly, the petitioner or any of the respondents should claim the seat, and secondly, the Tribunal should be satisfied as to his entitlement, to be so declared elected, which in turn would depend on several considerations including recriminatory petition and the evidence led in support of the allegation contained therein. For a proper and reasonable interpretation of the provision, one has to closely examine in the first instance the connotation and implication of the two key expressions satisfaction' andentitlement'. 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 persuasion 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 kind admitting of no doubt or indecision or oscillation. To be satisfied' with a state of things is to be honestly convinced in one's own kind. According to Black's Law Dictionary apart from thelegal satisfaction' which is a term of art and connotes 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 Dictionaryto satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."

1. Reverting to the facts of the instant petition it will be seen that the whole material available with the Commission at the time of invoking its jurisdiction under Section 103-AA of the Act of 1976 consisted of three parts; the first one related to the report of Home Secretary Government of Sindh and other Law Enforcing Agencies (reproduced in the impugned order at typed pages 3 to 15). Second part consisted of reports submitted by the Returning Officers/Assistant Returning Officers of different constituencies (reproduced/referred at Pages 18, 19, 21, 22, 24 25, 26 and 29 of the impugned order) and third part consisted of the complaints in the form of telegrams/letters etc. directly received by the Commission, which were replied by the petitioners through their respective counter-affidavits, which remained unchallenged/uncontroverted. The reports submitted by the Home Secretary, Government of Sindh and other Law Enforcing Agencies as well as the reports submitted by the Returning Officers and Assistant Returning Officers available before the Commission were quite exhaustive and had revealed that adequate safety measures were taken through Law Enforcing Agencies to ensure completion of bye-election process in a smooth and peaceful manner with the result that out of total 701 polling stations for four constituencies, including NA-243, polling continued on 686 polling stations throughout the polling time without any disturbance or interruption, while there were some disturbances and incidents of indiscriminate firing outside some polling stations and that for a short period polling was stopped on two polling stations, but it was again resumed and concluded as per schedule. It is significant to mention here that to meet such situation, if it at all prevailed, the Polling Officers had authority under Section 27 of the Act to stop polling at the polling station and inform the Returning Officer, who in turn shall report the matter to the Commission and the Commission can direct fresh poll at such polling stations, but such authority was not invoked by the Polling Officers. Admittedly, the reports submitted by the Law Enforcing Agencies and Home Department, Government of Sindh so also by the Returning Officers/Assistant Returning Officers were the reports from independent sources, therefore, in our view rejection of such reports by Respondent No. 1 for no cogent reasons and without any further enquiry was arbitrary and unjustified. In addition to this the Respondent No. 1 also brushed aside the affidavits filed by the petitioners before it without assigning any reason whatsoever. As against it, the complaints received by the Commission which were neither corroborated by any other reliable material nor even supported by the complainants, as they failed to respond and appear before the Commission to support it, were accepted by Respondent No. 1 as gospel truth for no valid reason. Thus, in our view there was no material available with the Respondent No. 1, what to speak of facts apparent on the face of record to show that grave illegalities were committed or any violation of the provisions of the Act or the Rules, materially affecting the election results, was made to, justify the conclusion drawn by Respondent No. 1 to declare the election results of the three contituencies as void.

2. Another important aspect of the case surfaced from the case record is that for all the four constituencies, i.e. PS-127 Karachi-39; NA-240 Karachi-2; NA-243 Karachi-5 and NA-246 Karachi-8 reports submitted by Additional Chief Secretary (Home) with several reports of Law Enforcing Agencies and reports of Returning/Assistant Returning Officers were same, except that there was no casualty which the constituency of NA-243 Karachi-5 and for this difference alone polling/election result of this constituency was not disturbed. Indeed, murder of any innocent person is considered as heinous crime in every civilized society, what to speak of loss of nine precious lives and injuries to 29 others, as has happened in Karachi on 12.5.2004. Such incidents of violence are highly deplorable and it is the duty of the State to bring the accused involved in such heinous crimes before the Courts of law for justice, but at the same time on such pretext innocent person(s) cannot be hanged or punished on the pretext of restoring the confidence of general public on Law Enforcing Agencies about their efficiency or to show performance of any judicial system. It is well-settled principle of criminal jurisprudence that any number of accused may escape unpunished, for lack of sufficient evidence or for the reason that prosecution failed to prove their guilt beyond reasonable doubt, but no innocent person should be convicted or punished for what he has not done. Similarly in the present petition no law abiding citizen can keep himself oblivious of the tragic incidents of indiscriminate firing which took place at Karachi on 12.5.2004 and resulted in loss of several human lives, but unless it is shown and proved that such incidents have any material bearing on the election results or the petitioners/returned candidates were responsible for it the same cannot be made basis to declare the whole bye-election result/process void.

3. We also find much force in the arguments of learned counsel for the petitioners that after one of the learned Members of the Election Commission Mr. Justice Sadiq Leghari, has expressed his inability to hold enquiry, except calling of reports from the Home Department Government of Sindh, Law Enforcement Agencies and the Returning Officers, no other proceedings were taken by the Commission to find out the truthfulness of the allegations made in the complaint, which have been accepted by the Respondent No. 1 on its face value as true and correct. In this regard it is also pertinent that even the complainants had not appeared before Respondent No. 1 to participate in the proceedings or to produce before the Tribunal any evidence to substantiate their allegations contained in the complaint. In our view, in the above circumstances, the Respondent No. 1 misdirected itself in placing reliance on such anonymous complaints.

4. From what has been discussed above we have come to an irresistible conclusion that before the Respondent No. 1 no case for invoking jurisdiction under Section 103-AA of the Act was made out as the requirements such provision of law were lacking in the instant case, and the exercise of jurisdiction by Respondent No. 1 in passing the impugned order, dated 9.6.2004 was arbitrary, without jurisdiction and of no legal effect. Consequently, we allow this petition in the following terms:--

(a) The impugned order dated 9.6.2004 being arbitrary, unjust and illegal, and consequent Notification No. F. 8(16)/2004 cord of even date are declared to be without lawful authority and of no legal effect;

(b) the Respondent No. 1 shall declare the result of PS-127 Karachi-39, NA-240 Karachi-2 and NA-246 Karachi-8 in terms of Section 42 of the Act without delay as per the result submitted by the Returning Officers.

1. Before parting with this judgment we deem it proper to mention here that we have refrained from discussing in detail allegations relating to factual controversies as to the holding of election by Respondent No. 1 on 12.5.2004 so that no prejudice is caused to a party, who may be interested in pursuing the matter under Section 52 of the Act before the Election Tribunal.

Original record summoned from the office of Respondent No. 1 be returned immediately.

(R.A.) Petition accepted

PLJ 2005 Karachi 59 (DB)

Present: Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ.

MUHAMMAD AZAM and another--Petitioners

versus

COLLECTOR OF CUSTOMS (PREV.), HEADQUARTERS, KARACHI and 3 others--Respondents

Misc. A. No. 3840 of 1998 in C.P. No. 1572 of 1991, decided on 20.10.2004.

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

----O. XLVII, R. 1 & S. 151--Review--The ground urged by petitioner was that while passing the order, in Constitutional petition, did not properly appreciate though reference of the said case was available in admission order by Court--Validity--The ground could be a ground for consideration in appeal but looking at limited scope of review it could not be made basis for review, moreso when reason recorded by Division Bench for dismissing the Constitutional petition were different and there was no reference in it about citing of the said case at the time of hearing of Constitutional petition. [Pp. 59 & 60] A

Mr. Muhammad Saleem Samoo, Advocate for Petitioners.

Raja Muhammad Iqbal, Advocate for Respondents Nos. 1 to 3.

S. Ziauddin Nasir, Standing Counsel.

Date of hearing : 20.10.2004.

Order

Anwar Zaheer Jamali, J.--Through listed application under Order 47, Rule 1 read with Section 151, C.P.C. (Misc. A. No. 3840 of 1998), which is pending for adjudication for more than six years, the petitioners have sought review of short order dated 12.8.1998, which was followed by judgment, dated 25th August, 1998, it is pertinent to mention here that though judgment containing detailed reasons was also delivered before filing of instant application on 1.1.1998, but no review has been sought in that regard.

We have heard Mr. Muhammad Saleem Samoo, learned counsel for the petitioner. The only ground urged by him for seeking review of the order dated 12.8.1998 passed in this petition is that while passing such order learned Division Bench did not properly appreciate the case of

M. Hamaeedullah Khan v. Director Customs Intelligence and others 1992 CLC 57 though reference of this judgment in this case is available in the admission order, dated 28.11.1991.

In our view this may be a ground for consideration is appeal but looking the limited scope of review it cannot be made basis for review of order dated 12.8.1998 (or the judgment dated 25.8.1998) passed in this petition. Moreso, when the reasons recorded by the Division Bench for dismissing this petition are different and there is no reference in it about citing of above case at the time of hearing of this petition.

In view of the above this application is dismissed.

(R.A.) Application dismissed

PLJ 2005 Karachi 60

Present: Rahmat Hussain Jafferi, J.

MADERSSA DARUL FAZAL HALANI--Applicant

versus

MUHAMMAD RAMZAN KASHMIRI--Respondent

C.R. No. 82 of 1998, decided on 12.2.2004.

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

----Arts. 30 & 133--Presumption of evidence--Not challenging any piece of evidence during cross-examination--Effect--Presumption would be that such piece of evidence accepted as true by other side. [P. 63] A

2001 SCMR 1700 rel.

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

----S. 8--Words "entitled to possession"--Meaning and scope--Possessory rights or interest in property--Nature of--Possessor's right to maintain ejectment on basis of possessory rights or interest in property--Principles--The words "entitled to possession" mean a right to possession on basis of ownership or possession of which person claiming has been dispossessed--Title could be by contract, inheritance, prescription by possession and will prevail where no preferable title was shown--Possession of land is sufficient evidence as owner as against a person, who has no title whatsoever and is a trespasser--Entitlement of possession against all persons, except the rightful owner and entitles the possessor to maintain ejectment against any person who dispossessed him--A person in possession without title has no interest in land possessed which, unless and until owner interferes, can dispose of by execution of sale in just same manner--Right of possessory to possession of property was not only transferable, but also heritable, therefore, he can disposes of same by deed, gift--Will or by execution of sale--Courts below committed material irregularity and illegality in scrutinizing available evidence--Miscarriage of justice has taken place which requried to be rectified.

[Pp. 63, 64 & 65] B, C & D

ILR 20 Cal. 834 (PC); ILR 6 Bombay 215; AIR 1958 Mad. 497; ILR 24 All. 157; LRI QB 1 and ILR 29 All 52 fol.

Mr. Abdul Haq Comboh, Advocate for Applicant.

Mr. Muhammad Sadiq Ansari, Advocate for Respondent.

Date of hearing : 30.1.2004.

Judgment

The present revision application is directed against the concurrent findings of two Courts below by which the suit for possession and mesne profits filed by the applicant was dismissed.

The facts giving rise to the present application are that one Gul Sher owned the disputed shop situated at Halani Road. On 4.1.1993, Gul Sher gave the said shop to Madressa Darul-Fazal as charity through a written document and then after few days, the said Gul Sher died. Thereafter the applicant demanded the rent of the said shop from the respondent and from other tenants. However, the tenants filed a Suit No. 4 of 1993 in the Court of learned Civil Judge, Kandiyaro for perpetual injunction on the basis of possessory rights in the property. The said suit was disposed of on the statement made by the applicant that they would not be dispossessed from the property without due course of law. The applicant approached the respondent many times to pay the rent but he failed to pay. Therefore, he filed the suit for possession and mesne profit at monthly rent of Rs. 200 from January, 1993 till the possession is given to him.

The respondent was served. He filed a written statement in which he denied the allegations of the applicant. He claimed that the applicant had no right to claim the rent from him. He further took a plea that Gul Sher died before the execution of documents through which the property was allegedly transferred to the applicant and that the said documents are forged and fabricated. He took a plea that the suit was not maintainable, hence he prayed or the dismissal of the suit.

Out of the pleadings of the parties, the trial Court framed the following issues:--

Issues.

(1) Whether originally property belongs to Gul Sher who donated to Madressa plaintiff?

(2) Whether the defendant was already in occupation of the disputed shop on rent ?

(3) Whether the suit is maintainable at law ?

(4) What should the decree be ?

The parties led evidence in support of their respective claims. The learned trial Judge after going through the evidence available on the record and hearing the parties counsel decided the Issue No. 1 that the property did not belong to the applicant who failed to produce ownership document. The Issue No. 2 was decided that the defendant was already in occupation of the shop on rent. The Issue No. 3 was decided that the suit was maintainable. Consequently, the suit was dismissed vide judgment dated 8.8.1996 and decree, dated 15.8.1996. The applicant challenged the said judgment and decree before the District Court. The learned Additional District Judge who heard the appeal formed the opinion that Gul Sher was not the owner of the property as no ownership documents were produced by the applicant. The respondent was also not found owner of the property, as he could not produce the documents of ownership but as per Exh. 19 he was found to be in possession of the suit property as tenant. Consequently, the appeal was dismissed by judgment and decree dated 19.8.1998.

The applicant was dissatisfied with the said judgment and decree, therefore, he has preferred the present revision application.

I have heard the Advocate for the applicant, respondent and perused the record of this case very carefully. The learned Advocate for the applicant has stated that the property was owned by the Government but the same was occupied by Gul Sher long ago who constructed shops and a house on the said property; that the shops were rented out to three different tenants out of them the disputed shop was rented out to the respondent; that the respondent was paying rent to Gul Sher; that Gul Sher had transferred his possessory and tenancy rights to the applicant through written documents which have been produced in evidence as Exhs. 19 and 20; that the applicant demanded the rent from the respondent but he refused to pay the same therefore, the suit was filed for possession and mense profits; that both the Courts below misread the evidence; that both the Courts below gave emphasis on the production of ownership documents of Gul Sher but he had no ownership rights in the property as he had only possessory rights which are transferable; that the evidence of applicant and his witnesses about the tenancy between Gul Sher and the respondent has not been denied in the cross-examination therefore, both the Courts below reached at the wrong and illegal conclusions which are required to be set aside.

On the other hand the learned Advocate for the respondent has stated that both the Courts below did not commit and illegality or irregularity in dismissing the suit of the applicant; that the applicant had no right title or interest in the suit property therefore, he cannot claim any such right; that no rent receipt has been produced; that the possession of the respondent has been admitted by the applicant; that the documents transferring the property to the applicant by Gul Sher are forged documents therefore, they cannot be relied upon and that both the Courts below did not misread the evidence therefore, he prayed for the dismissal of the revision application.

I have given due consideration to the arguments and gone through the evidence available on the Court. I find that the applicant and his witnesses namely Muhammad Ramzan, Haji Muhammad Mossa, and Sikandar Ali have categorically stated that the respondent was tenant of the Gul Sher. Their evidence reveals that sometimes the respondent was paying the rent and sometimes he was not paying the rent to Gul Sher therefore, a dispute arose between theme. The above piece of evidence went unchallenged as no cross-examination was conducted by the respondent to any of the above named witnesses challenging their assertions or denying that the respondent was not the tenant of Gul Sher. It is well-settled principle of law that if any piece of evidence is not challenged in the cross-examination then it is presumed to be accepted as true by the other side. Reference is invited to a case of Muhammad Akhtar v. Manna 2001 SCMR 1700.

The trial Court and the Appellate Court are unanimous on the point that the respondent occupied the premises on rent. The Appellate Court further observed that the respondent was tenant as per Exh. 19 through which Gul Sher transferred the property to the applicant.

Both the Courts below are unanimous on the point that the applicant could not produce the proof of the ownership rights of Gul Sher by not producing his ownership document therefore, the suit was dismissed. In this connection it is pertinent to point out that applicants witness Sikandar Ali categorically stated that Gul Sher occupied a Government plot situated on Link Road Halani near bus stand. He constructed four shops and a house over the said property. This statement of the witness went unchallenged, as the respondent did not cross-examine the witness on the above point. The respondent also did not claim the ownership of the property as he claims to be having possessory rights over it. From the above position, it is clear that the suit property was owned neither by Gul Sher nor by the applicant nor by the respondent but it is the property of Government.

Gul Sher claimed possessory rights over the suit property. Under Section 8 of Specific Relief Act a person entitled to the possession of a specific immovable property can recover it in the manner prescribed by the Code of Civil Procedure. The words "entitled to possession" appearing in Section 8 of the Specific Relief Act mean a right to possession on the basis of ownership or possession of which the person claiming has been dispossessed. It has been held in a case of Ismail Ariff v. Mahomad Ghous ILR 20 Cal. 834 (PC) that there may be a title by contract, inheritance, prescription or even by possession and the last will prevail where no preferable title is shown. In the same authority it has further been held that lawful possession of land is sufficient evidence as owner as against a person, who has no title whatsoever and who is a mere trespasser. It has further been held in IRL 6 Bombay 215 that possession is a good title against all persons except the rightful owner, and entitles the possessor to maintain ejectment against any other person than such owner who dispossessed him.

Keeping in view the above proposition of law with regard to possessory rights in the suit property now it is to be seen as to whether the respondent had better title than Gul Sher. All the applicant's witness clearly stated that Gul Sher was in the possession of suit property who had let out the same to the respondent. The respondent did not claim that he owns the property but he also claims possessory rights over the suit property. It has come in the evidence through P.W. Sikandar Ali that Gul Sher constructed the disputed shop and let out the same to the respondent. This piece of evidence also went unchallenged, as the respondent made no cross-examination to this witness on the said point. The respondent examined himself and took a plea that he constructed the shop in question. The applicant through cross-examination denied the said assertion. In spite of the denial from the said of the applicant, the respondent did not care to lead any further evidence to prove his assertion. After scrutinizing the evidence available on the record, I am of the considered view that the rights of Gul Sher were earlier in time than the alleged rights of respondent. In fact, the respondent occupied the suit property as tenant of Gul Sher, which is the unanimous decision of both the Courts below.

The question arises whether the possessory right are transferable. This point was examined by Madras High Court in a case reported in AIR 1958 Mad. 497. It has been held that a person in possession without title has an interest in the land possessed which unless and until the true owner interferes, he can dispose of by deed or will or by way of gift, and which can be disposed of by an execution of sale, in just the same manner as if his title was unimpeachable. It has been held in Gobind Prasad v. Mohan Lal ILR 24 All. 157 that possessory interest is not only transferable but also heritable. Reference is also invited to cases of Ahser v. Whitlock LRI QB 1; Shri Gopal v. Ayesha Begum, ILR 29 All 52. Thus, the above rights of a person in possession of property are heritable and transferable therefore, the said person can dispose of the same by deed or gift or will or by execution of sale.

In view of the above position, it is clear that Gul Sher was competent to transfer his rights to the applicant which he did by executing such deed and the same has been produced as Exh. 19. The said deed has been proved by the applicant by examining himself, Muhammad Ramzan, the scribe of the above document, two attesting witnesses Haji Muhammad Moosa Opera and Sikander Ali.

In the light of what has been stated above it is clear that both the Courts below misread the evidence. They did not consider the Gul Sher has only possessory rights. He did not have ownership rights in the suit property as it belongs to the Government. Therefore, both Courts wrongly emphasized upon the fact of non-production of ownership document of Gul Sher. Both the Courts below committed material irregularity and illegality in assessing and scrutinizing the evidence available on the record. Thus, a miscarriage of justice has taken place which is required to be rectified. Hence, the judgments and the decrees of both the Courts below are set aside. The suit of the applicant is decreed as prayed with direction to the respondent to vacate the premises within a period of two months. The revision application is allowed.

(R.A.) Revision accepted

PLJ 2005 Karachi 65 (DB)

Present : Sabihuddin Ahmed and Syed Ali Aslam Jafri, JJ.

Syed TANVIR ALI--Petitioner

versus

MALIR CANTONMENT BOARD and others--Respondents

C.P. No. 319 of 1998, heard on 29.3.2002.

(i) Cantonment Act, 1924 (II of 1924)--

----S. 3--Constitution of Pakistan (1973), Art. 199--Cantonment area would fall within territorial limits of a Province in which it situates. [P. 68] C

PLD 1975 SC 37 fol.

(ii) West Pakistan Motor Vehicles Ordinance, 1965 (XIX of 1965)--

----S. 44--Cantonmetns Act (II of 1924), Ss. 2, 117 & 210--Route permit granted by concerned authority for plying commercial vehicles in Cantonment area--Jurisdiction of Cantonment Board to impose further conditions and restrain entry of such vehicles in Cantonment area--Scope--Power of Cantonment Board to abstain from entry of person or vehicles must be spelt out from statute--Cantonment Board's decision must be conscious conforming to the law and rights guaranteed by Constitution--Vocation of transportation of commercial vehicles was not covered by S. 210 of Cantonment Act, 1924--Cantonment area would fall within territorial limits of a Province in which it situates--Transporter possessing valid route permit granted by authority, could not be required by Cantonment Board to get a separate licence for allowing entry of his vehicles in Cantonment area. [Pp. 67 & 68] A, B & D

PLD 1975 SC 37 fol.

Mr. Shoukat Ali Shaikh, Advocate for Petitioner.

Khalid Daudpota and Faisal Khalid, Advocate for Respondent No. 1.

Mr. Abbas Ali, A.A.-G. for Respondents Nos. 4 to 6.

Date of hearing : 29.3.2002.

Order

Syed Ali Aslam Jafri, J.--The petitioner is running a coach service in the name and style of Askari Coach Service from Malir Cantt. to Karachi Cantt. Railway Station under the route permit issued by the Respondent No. 4. By letter, dated 21.8.1997 issued by the office of the Respondent No. 2 he was given a "permit" to run the service from the area of Malir Cantt. Upon certain conditions including payment of permit fee payable to the Station Headquarters. This "permit" however, appears to have been cancelled by a subsequent letter, dated 12.3.1998 addressed to the respondent. Moreover through a public notice appearing in the press on 21.12.1997 the Respondent No. 1 "Cantonment Executive Officer, Malir Cantt". invited applications from interested transporters, possessing valid route permit issued by the Respondent No. 4 (Road Transport Authority) to apply for grant of permit for running Buses and Coaches on the designated route upon deposited of Rs. 2,00,000 as security deposit. The petitioner protested against inviting such bids for the purpose of allowing transporters to operate their vehicles. Thereafter by a letter, dated 18.2.1998 the petitioner was informed by the office of the Respondent No. 2 (Station Headquarters), Malir Cantt, that it had been decided to award the contract for running transport vehicles on the prescribed route, through competitive bids and the offer submitted by the Respondent No. 7 being lowest was approved by the Garrison Commander. Therefore, the permission granted to him earlier stood withdrawn. Simultaneous directions a were also issued to the Military Police Unit, Malir Cantt. to stop the vehicles owned by the petitioner.

1. The petitioner has called in question the action of respondents Nos. 1, 2 and 3 and has mainly contended that once he has been granted a route permit to play Coach service by the Respondent No. 4, the aforesaid respondents had no jurisdiction to impose further conditions and restrain the entry of such vehicles in the Cantonment area. Notices were issued to the respondents and their comments were invited but only Respondent No. 1 Cantonment Board and Respondent No. 4, Provincial Transport Authority, have filed such comments.

2. On 7.3.2002 when all the respondents were duly represented we felt that since short questions were involved, the entire petition would be disposed of. At the outset we requested. Mr. Amir Hani Muslim, D.A.-G. and Mr. Khalid Daudpota, learned counsel for Respondent No. 1 to satisfy us under what authority of law a permit in addition to one granted by the Provincial Transport Authority was required for plying a transport vehicle in a Cantonment area. Both learned counsel requested for time to prepare themselves and the hearing was adjourned to 12.3.2002. On that date Syed Tariq Ali, learned Federal Counsel appeared for the Respondents Nos. 2 and 3 and stated that he needed more time to obtain appropriate instructions. We, therefore, adjourned the matter to 20.3.2002. Syed Tariq Ali did not appear on that date of Mr. Daudpota required further time to study the matter and the case was adjourned to today. We have not had the benefit of the assistance of the learned Federal Counsel, who was not even available today, but have heard Mr. Faisal Khalid appearing on behalf of Respondent No. 1.

3. In the first instance it may be pertinent to mention that on the last date of hearing Mr. Khalid Daudpota had relied upon Section 282(4) of the Cantonment Act, 1924, which enables Cantonment Board to make bye-laws in respect of several matters, including Regulations or Prohibition of any discrepancies of Traffic in the streets. We had nevertheless requested learned counsel to show whether any particular bye-laws had been validly made by the Respondent No. 1 enabling imposition of the description in question. Mr. Faisal Khalid candidly stated that no such bey-laws have been framed. Nevertheless he referred to Section 117 of the Act which describes the discretionary functions of the Board and clause (J) thereof reads as under :--

"Constructing subsidizing or guaranteeing a Tramways or other means of locomotion, and electric lightening or electric powers bulbs."

1. Learned counsel contended that discretionary functions as distinguished from duties spelt out in Section 117 indicated that it was optional for the Board to undertake or not to undertake any measure in the performance of this function and failure to allow the petitioner's vehicles to enter into the Board limits ought to be treated as exercise of a valid option. We regret we find this contention to be patently untenable. In the first place the relevant statutory provisions indicate that the Board may in its discretion choose to construct a Tramway or facilities or other means of locomotion such as roads etc. but the power to restrict the entry of person or vehicles is altogether different and must be clearly spelt out from statute. Secondly the Board may have discretion not to perform a particular function, but for restricting the movement of persons or vehicles a conscious decision has to be taken, which must conform to the law and the rights guaranteed by the Constitution.

2. We have also examined Section 210 of the Act which requires that large number of occupations cannot be carried out in a Cantonment area without obtaining a licence from the Board and the Board may levy licence fee with the previous sanction of the Government, but this section does not speak of the vocation of transportation of commercial vehicles.

3. Learned A.A.-G. on the other hand, supported the case of the petitioner by contending that the power to grant a route permit only vested in the Respondent No. 4 under the Motor Vehicle Ordinance and any restriction imposed by the Respondent No. 1 would amount to an invasion over authority of the Respondent No. 4.

4. Mr. Faisal Khalid attempted to meet their argument by contending that a permit granted by the Respondent No. 3 was applicable only within the area of Province and Cantonments did not fall within such areas. We are afraid there is no force in this contention either inasmuch as it has been clearly laid down by the Honourable Supreme Court in Pakistan v. Province of Sindh PLD 1975 SC 37 "that there is nothing in any Constitution or any law to show that a Cantonment area is not to be included within the territorial limits of a Province in which it is situate".

5. For the foregoing reasons we are constrained to allow this petition, holding that as long as the petitioner possesses valid route permit granted by the Respondent No. 4, the Respondents Nos. 1 and 2 cannot require him to obtain a separate licence for allowing entry of his vehicles in the Cantonment area.

(R.A.) Petition accepted

PLJ 2005 Karachi 68

Present: Sarmad Jalal Osmany, J.

Mst. YASMEEN MALIK and others--Petitioners

versus

Mrs. SAFIA MALIK and others--Respondents

C.P. No. S-331 of 2003, decided on 23.6.2004.

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

----S. 15(2)(viii)--Bona fide--Personal need of landlord--Owner had claimed that she required shops in question to run personal business--Landowner had admitted that she was running a business in some other premises, but nothing had been asked of her whether those premises were sufficient for running new business which landlady proposed to do alongwith her son--Evidence also revealed that petitioner's son wanted to run a business alongwith his mother in disputed shop and again nothing had been asked in cross-examinations to the nature of intended business or whether he in fact intended to start such business--Landlord was required to do in respect of personal bona fide need, was to state in Court his bona fide need, whereupon the burden would shift to the tenant to establish the contrary--Need of landlord should be bona fide and ejectment of tenant should not be sought for some other ulterior purpose or fancy--Both landowner and her son stated before Rent Controller that they required shops in question in order to run a business--Even if landlady had admitted that she was running another business in another premises and her son had also admitted that he was also running a business with his friend, but said admissions were not sufficient to dispel stand of landowner and her son that they required shops in question in good faith for their own personal bona fide need. Landlord had right to open up number of business in premises belonging to them or for that matter which was not questionable by tenant except where mala fide needs and that of her son for the shop in question, Rent Controller had rightly allowed ejectment application on ground of her personal bona fide need. [Pp. 72 & 73] A, B & C

1996 SCMR 336; 1996 SCMR 1233; 1993 SCMR 1559; 1987 SCMR 2051; 1992 SCMR 1303; 1996 SCMR 1178; 1987 CLC 686; 1999 MLD 2761; 1978 SCMR 437; 2000 SCMR 1613; 1996 SCMR 771; 1986 SCMR 309; 1989 SCMR 1366 and 1998 SCMR 2119 ref.

Mr. Faisal Arab, Advocate for Petitioners.

Muhammad Ismail Memon, Advocate for Respondents.

Dates of hearing : 30.10.2003 and 21.6.2004.

Order

The petition assails the judgment dated 28.1.2003 passed in F.R.A. No. 506 of 2001 whereby the order of the learned IVth Rent Controller, Karachi East, allowing Rent Case No. 390 of 1995 for the eviction of the petitioner was upheld.

1. Briefly stated the facts of the matter per the petitioner are that the predecessor-in-interest of the parties viz. Pervez Malik and Muhammad Haneef entered into a lease agreement dated 28.5.1976 whereby the latter had rented out two shops in the premises known as 138-A, Block No. 2 PECHS. Karachi, to the former on the terms and conditions appearing therein. Thereafter, another shop was obtained on lease from Muhammad Haneef by Pervez Malik in the same premises vide lease agreement executed between the parties in October, 1983. All these three shops are now in the occupation of the petitioners being the legal heirs of late Pervez Malik as tenants of the Respondent No. 1 who is the widow of the later Muhammad Haneef.

2. Respondent No. 1 had filed R.C. No. 390 of 1995 against the petitioners for their eviction from the shops in question on the ground of personal need which was allowed and subsequent F.R.A. No. 506 of 2001 filed against such order of the learned Rent Controller was dismissed and hence this petition.

3. Mr. Faisal Arab appearing for the petitioner had firstly submitted that prior to the present round of litigation between the parties there were two earlier rounds. In the year 1977 late Muhammad Haneef filed Rent Case No. 3430 of 1977 on the ground of personal use for Shops Nos. 2 and 3 which was subsequently settled. Again in the year 1987 Rent Case No. 989 of 1987 was filed on the ground of nuisance, which was dismissed in the year 1991. As against such dismissal the Respondent No. 1 preferred appeal being F.R.A. No. 294 of 1991 in this Court. On 13.10.1992, a compromise was reached and F.R.A. No. 294 of 1991 was disposed of. In terms of the compromise rent of the premises was enhanced from Rs. 2,850 to Rs. 4,000 and the petitioners handed over possession of the first floor office premises back to Respondent No. 1. In the compromise it has been specifically agreed that the petitioners would continue with their tenancy without any let or hindrance from Respondent No. 1. However, in utter disregard of the commitments made by Respondent No. 1 at the time of the compromise, she initiated the present proceedings by filing R.C. No. 390 of 1995 before the learned Rent Controller seeking the petitioner's eviction from all the three shops on the ground of nuisance, default in payment of electricity bills and bona fide personal need. Per learned counsel this was done as the goodwill of the shops in the area had increased and hence was totally mala fide. In this connection learned counsel also submitted that on the previous two occasions when the parties had entered into a compromise, the rent was enhanced which would establish that what the Respondent No. 1 wanted was increased rent which would belie her contentions regarding personal bona fide need. Per learned counsel the law in this regard is very well-settled i.e. the landlord should approach the Court with clean hands and establish his/her bona fide need which is to be adjudged in accordance with the facts and circumstances of the case and the previous history of litigation of the parties as in the present matter.

4. In support of his contentions learned counsel relied upon Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336, Latif Ahmad v. Mst. Farrukh Sultana 1996 SCMR 1233, Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559, Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051, Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303, Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, Muhammad Aslam v. Muhammad Asam 1987 CLC 686 and Mst. Hajiyani Ayesha Bai v. Zahid Hussain 1999 MLD 2761.

5. Next learned counsel has submitted that in para-5 of the application before the Rent Controller the Respondent has stated that she being a widow has no other means of income except the rents from the shops in question and hence she has decided to open ladies garments and boutique shops with the help of her son for which purpose she needed the shops. However, in her affidavit in evidence, the Respondent No. 1 has not stated that the shops in question were her only source of income. Furthermore, under cross-examination she has admitted that she is doing her own business. Again per learned counsel the Respondent No. 1 has admitted that she has two other tenants in the same building viz. Baba and Ghousia Flower Shop. As these shops were recently vacated, the Respondent No. 1 could not be cross-examined on the issue. Consequently, the matter should be remanded for this purpose viz. whether or not the Flower Shops were sufficient for her personal bona fide need. In support of his contentions learned counsel has relied upon Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559 and Latif Ahmed v. Mst. Farrukh Sultana 1996 SCMR 1233. He has, therefore, prayed that the petition be allowed.

6. Mr. Muhammad Ismail Memon, appearing for the respondent, has on the other hand submitted that the flower shops vacated recently by the tenants are only 10 x 10 ft. and hardly suitable for a boutique of a garment shop. Secondly, the previous compromises with the petitioners in litigation could hardly fetter the respondents right to assert her personal need against in the present proceedings for which proposition he has cited Allah Rakha v. Muhammad Shafi 1978 SCMR 437.

7. Finally, learned counsel has submitted that the respondent has clearly stated her need to start a garment shop/boutique in partnership with her son which has been supported by him as well. Nothing has come about in the cross-examination of the respondents to dispel their version. Hence, learned counsel has prayed that the petition be dismissed. He has relied upon Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613, Muhammad Anwar v. Jamaluddin 1996 SCMR 771 and Mst. Razia Begum v. Muhammad Rafi 1986 SCMR 309.

8. I have heard both learned counsel and my conclusions are as under :-

9. It would be seen that the Respondent No. 1 has stepped into the witness-box before the learned Rent Controller and deposed inter alia that she required the shops in question in order that she may establish a business with her son Syed Muhammad Rehan. Under cross-examination she has admitted that she is running a business in some other premises but nothing has been asked of her whether these premises were sufficient for running the new business which she proposed alongwith her son. Similarly her son Syed Muhammad Rehan has also stated in his affidavit in evidence that he intends to start a business alongwith his mother in the shops in question but again nothing has been asked in cross-examination as to the nature of this business or whether in fact he did intend to start such business.

10. On the other hand, the petitioner in his affidavit in evidence has stated inter alia that the respondent was a habitual litigant and on two previous occasions when her late husband and she herself had filed proceedings against him for eviction the same were compromised. Hence, the present proceedings are totally mala fide in nature and only filed in order to extricate enhanced rent from him as was done on the previous occasions. Under cross-examination he has inter alia denied that either the Respondent No. 1 or her son needed the shops for their own personal bona fide need in order to start their business.

11. On the basis of the foregoing evidence on the record, it would be seen that on the one hand the Respondent No. 1 landlady has consistently maintained her bona fide need for the shops in question in which she proposes to start a business alongwith her son, whereas on the other hand this need has been denied by the petitioner. The law in respect of personal bona fide need is very well-settled viz. all that the landlord is required to do is to step into the witness-box and state his personal bona fide need whereupon the burden shifts to the tenant to establish the contrary. However, it is equally well-settled that the need should be bona fide and eviction should not be sought for some other ulterior purpose or on a mere whim or fancy. In this respect reference can be made to F.K. Irani & Co. V. Begum Feroze 1996 SCMR 1178, Saira Bai v. Anis-ur-Rehman 1989 SCMR 1366 and S.M. Nooruddin v. Saga Printers 1998 SCMR 2119.

12. In the present case it would be seen that both the landlady and her son have stepped into the witnesses-box and deposed that they required the shops in question in order to establish a business. Under cross-examination the landlady has only admitted vis-a-vis personal need that she is running another business in another premises whereas her son has admitted that he is running a business of Computer Sale and Service with his friend Ilyas Moosa. However, in my opinion these admissions are not sufficient to dispel the stand of the respondent and her son that they required the shops in question in good faith for their own personal bona fide need. A landlord/landlady has all the rights to open up any number of business in the premises belonging to them or for that matter elsewhere which is not questionable by the tenant except where mala fides can be established. Similarly, although in the previous round of litigation culminating in R.F.A. No. 294 of 1991 before this Court, the matter was compromised upon the rent of the shops being increased and possession of an office above the shops handed over to the respondent, this in my view cannot fetter the rights of the respondent to seek eviction of the petitioner on the ground of personal need. Such compromise cannot be interpreted so as to grant a lease in property to the petitioner. In any event as the compromise took place in 1992, it cannot be said that in 1998 when the rent case was filed the need of the landlady could not occur again. In this regard reference can be made to Allah Rakha v. Muhammad Shafi (supra). So also it would be seen that no question was asked of the Respondent No. 1 or her son in cross-examination whether the office premises given up by the petitioner earlier was sufficient for opening up a new business.

13. As to Mr. Faisal Arab's contention that in this regard the case of the petitioner would be in all norms with the facts in Latif Ahmed v. Farrukh Sultana (supra) where the Honourable Supreme Court had repelled the ground of personal bona fide on the ground that she had not disclosed the fact of previously obtaining vacant possession of two other shops, sufficient to say that such possession had been obtained immediately before filing of the rent case. In the present matter the office above the shops was handed over to the respondent in 1992 upon compromise of R.F.A. No. 294 of 1991. Similarly, I cannot also agree with learned counsel's proposition that the matter should be remanded to the learned Controller for the purpose of recording evidence on the issue whether the recently vacated flower shop are sufficient for the respondent's needs. This is for the simple reason that upon a perusal of the photographs of such shops, which are on the record, in my opinion, they can never be sufficient for a boutique or garment shop being too small in area. Hence, no useful purpose would be served in remanding the matter.

14. In this view of the matter, I am of the opinion that the respondent has established her personal bona fide need and that of her son for the shops in question. Consequently, this petition is dismissed. The petitioner shall vacate the shops within three months from today and hand over vacant peaceful possession to the respondent.

(R.A.) Petition dismissed

PLJ 2005 Karachi 73 (DB)

Present: Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ.

MUHAMMAD ZAKIR--Petitioner

versus

DIRECTOR KATCHI ABADI and others--Respondents

C.P. No. 2497 of 2001, decided on 28.8.2003.

Transfer of Property Act, 1882 (IV of 1882)--

----Ss. 105 & 108--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Plot in question was allotted to predecessor-in-interest of petitioner with possession and rights in same as well as right for transfer to petitioner--Occupation of petitioner over plot question was admitted by respondent but no regularization was effected--Petitioner filed petition due to non-availability of redress from concerned authority and was directed to survey plot and pass allotment order/grant lease in favour of petitioner according to law. Petitioner applied for lease of allotted plot at rate specified amount per square yard, but rates having since been revised per square yard, respondent had contended that petitioner was liable to pay revised rates--Validity--Petitioner was entitled to execution of lease in his favour long before filing of petition and due to failure of respondent to perform its duly ordained by law that petitioner was constrained to move High Court--Respondent could demand only such amount as was payable by petitioner when right to execute lease in his favour occurred--No justification was found for claiming revised rates and lease could be executed after recovering charges payable on the date when right in favour of petitioner accrued. [P. 74] A

Mr. Ibadul Hussain, Advocate for Petitioner.

Mr. Manzoor Ahmad, Advocate for Respondents.

Date of hearing : 28.8.2003.

Order

Sabihuddin Ahmad, J.--Granted.

Mr. Manzoor Ahmad attempted to justify the respondent's failure to implement the Court order by contending that the petitioner had applied for lease of allotted plot at the rate of Rs. 300 per square yard in 1988. The rate has since been revised to Rs. 4,500 per square yard and the petitioner does not appear to be willing to pay the revised rates.

It may be recalled that according to the petitioner the plot was allotted to his predecessor-in-interest way back in 1951 together with possession and the rights in the same as well as possession for transfer to the petitioner. His occupation of the plot in the Katchi Abadi was admitted by the respondent but no regularization was effected. Obviously that it had not been surveyed or numbered. The petitioner moved this Court after failing to obtain redress from concerned authorities and by a consent order, dated 27.8.2002 the respondents were directed to survey the plot and pass allotment order/grant lease according to law.

Obviously the petitioner was entitled to execution of a lease in his favour long before the petition was filed and it was only due to failure of the respondent to perform their duties ordained by law that he was constrained to more this Court. Therefore, the respondents could only demand such amount as was payable by the petitioner when the right to execute the lease in his favour occurred.

We are afraid that by raising the argument that he is liable to pay at the revised rates, learned counsel is only attempting to claim that the respondents are entitled to a premium in their own in their own inefficiency and defiance of law. We regret such kind of logic being canvassed on behalf of the public body. Let it be made clear that the mere fact of depriving somebody of property can give rise to a claim for damages in addition to direction for delivery of property. We would therefore, order that there is absolutely no justification for claiming revised rates and the lease may be executed after recovering charges payable on the date when the right in favour of the petitioner occurred. The application stands disposed of accordingly.

A copy of this order may be communicated to the Nazim Aala who will ensure that such injustices are not done and people are not required to approach the Court unnecessarily.

(R.A.) Order accordingly

PLJ 2005 Karachi 75

Present: Muhammad Sadiq Leghari, J.

PAKISTAN STATE OIL COMPANY LIMITED--Petitioner

versus

SIKANDAR A. KARIM and others--Respondents

C.Ps. Nos. S-877 and S-901 of 2003, decided on 13.4.2004.

(i) Evidence--

----Evidence beyond scope of pleadings deserves to be excluded from consideration, as law does not permit it. [P. 80] B

(ii) Limitation Act, 1908 (IX of 1908)--

----S. 3--Laches--Where provisions of Limitation Act, 1908 do not apply, then principle of laches would play a role. [P.] L

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

----S. 15(2)(vii)--Bona fide personal need of landlord--Without express and plea showing the purpose for which demised premises was required by landowner, Court could neither consider nor decide question of requirement and its reasonableness. [P. 79] A

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

----S. 15(2)(vi)(vii)--Bona fide--Personal need of landowner--Reconstruction of demised plot. Plea of landlord that he would raise construction upon plot and use some shops thereof himself and give others to third party--Validity--Plea of proposed construction showed large number of shops, thus, landlord was required to say expressly as to how he wanted to use them--Such plea would not discharge responsibility of proving, personal requirement reasonably manner to satisfaction of Court--Landlord was required first to accommodate tenant for running business at same level, but in plan of proposed construction so such provision was available--In absence of satisfactory explanation, ground of reconstruction for commercial performance could not be accepted--Ejectment petition was dismissed. [Pp. 80 & 82] C, D, E, F & M

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

----Ss. 10(4) & 15(2)(ii)--General Clauses Act (X of 1897), S. 27--Default in payment of rent--Deposit of rent in Court after non-encashment of cheques sent to landlord through registered post--Tenant brought in evidence postal receipt, and copy of covering letter--Landlord did not enter witness-box to deny receipt of such letter/cheque, but his attorney orally denied the same--Validity--Common mode of communication between citizens was post--Receipt showing correct address would be evidence of dispatch and delivery of material--Non-dispute correctness, of address mentioned on postal receipt and confirmed dispatch of envelop/material to landlord--Such postal receipt and covering letter, presuming would be that landlord had received envelope containing cheques, unless he proved the contrary--Oral denial by attorney would not rebut such presumption as he did not say as to what had been received by landlord in envolope--Tenant was justified in depositing rent with Rent Controller and had not committed willful default in payment of rent--Ejectment petition dismissed. [Pp. 81 & 82] G, H, I J, K & M

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

----S. 15(2)(ii)--Limitation Act (IX of 1908), S. 30--Laches--Default in payment of rent--Filing of ejecmtent petition after 10 years of alleged default--Limitation--No limitation fixed in Sindh Rented Premises Ordinance, 1979 for filing ejectment petition--Where provisions of Limitation Act, 1908 did not apply, then principle of leaches would play a role--Tenant had not pleaded waiver by landlord--Silence for a decade after alleged default was sufficient for tenant to believe that landlord had no mind to come for his ejectment, thus, he continued with his business under such belief--Ejectment petition was hit by principles of leaches.

[P. 82] L

1991 SCMR 846 and PLD 1989 SC 503 rel.

1997 CLC 339 and 1991 SCMR 846 ref.

Mr. Agha Faqir Muhammad and Mr. Shaukat Hayat, Advocates for Petitioner.

Mr. S. Sajjad Ali Shah, Advocate for Respondents.

Date of hearing : 29.1.2004.

Order

The above mentioned two petitions assail the orders passed by Vth Rent Controller (E) and Additional District Judge, Karachi (E) on 30.9.2002 and 17.11.2003 respectively directing the eviction of petitioner-Pakistan State Oil Company Ltd. from the plot measuring 1222 sq. Yds. Survey No. H-205 Tariq Road, Karachi (hereinafter referred to as "the Plot").

1. The facts in brief, are that the plot was leased out by its owner Begum Shamim Niaz to Dawood Petroleum Ltd. under agreement of lease dated 17.3.1971. It was agreed that the tenant shall use the plot for installation of filing/service/petrol station thereon by raising or erecting the essential constructions. The tenant was also authorized on sub-let the plot.

2. Under the decision of Federal Government of Pakistan in 1976, Dawood Petroleum Limited merged into PSO and the landlord accepted it as the tenant in respect of the plot.

3. Experiencing difficulty in payment and acceptance of the rent according to the mode in practice, the tenant started depositing the rent in the Court under MRC No. 2910/1988. They claim to have deposited the rent in the name of previous owner upto September, 1988. In June, 1988 the owner/landlord sold the plot to Sikandar A. Karim, the Respondent No. 1. The new owner then served PSO (hereinafter referred to as "the tenant") with notice dated 13.8.1988 under Section 18 of the Sindh Rented Premises Ordinance, 1979 and demanded the rent from July, 1988.

4. In December, 2000 Sikandar A. Karim the landlord filed the Rent Case No. 952 of 2000 for eviction of the tenant on the ground that it had committed default in payment of rent from July, 1988 and also the demised property was required by him for personal use.

5. The tenant resisted the case and filed written statement denying therein the commission of default. In also controverted the ground of personal requirement alleging it not to be bona fide.

6. The Vth Rent Controller, Karachi (E) by order, 30.9.2002 directed the eviction of the tenant accepting the ground of default and repelling the plea of personal requirement. In appeal the VIth Additional District Judge, Karachi (E) maintained the findings relating to the default and reversed the conclusion of the trial Court on the issue of personal requirement. He accepted that ground too and directed the eviction of the tenant, on 17.11.2003. Both of the orders have been assailed through present petition.

7. It deserves to be mentioned here that during the pendency of the appeal Mansoor Rafi sub-lessee of the tenant, applied for joining him as the respondent but his request was turned down through the same order i.e. order dated 17.11.2003. Mansoor Rafi has also filed Constitutional Petition No. 877 of 2003 against the order dated 17.11.2003.

8. As both the petitions are related to same subject-matter they were heard together.

9. First Mr. Agha Faqir Muhammad argued his petition contending that his client Mansoor Rafi being sub-lessee was running the business and as such was vitally interested in protecting the possession and his business and as such necessary party to the proceedings. According to the learned Advocate, the sub-lease was also in accordance with the terms of the lease agreement, therefore, the sub-lessee should have been made party to the ejectment proceedings keeping in view his interest also.

10. Mr. Shaukat Hayat, the learned Advocate for the tenant conceded to the submissions made by Mr. Agha Faqir Muhammad, Mr. Sajjad Ali Shah, the learned Advocate, for the landlord defended the dismissal of an application filed by the sub-lessee for becoming party to the proceedings. He contended that the settled proposition of law is that sub-lessee even in the cases like present one has to sail or sink with the tenant and he has no independent or separate right in the tenancy so far the landlord is concerned.

11. The contention of Syed Sajjad Ali Shah has much force in it. No doubt, the lease agreement did permit the tenant to sublet the demised property yet there was no privy in between the landlord and the sub-lessee. The sub-lessee got the lease from the lessee/the tenant, therefore, he could not be acknowledged as co-tenant. It was rightly argued that the sub-lessee has to sail or sink with the tenant. Thus, the C.P. No. S-877 of 2003 filed by Mansoor Rafi, the sub-lessee, is meritless, the same is dismissed in limine.

12. While starting his arguments on the C.P. No. 901 of 2003, Mr. Shaukat Hayat, the learned Advocate for the tenant/PSO wanted to place on record some documents for consideration while deciding the petition. As the decision impugned through present petition was recorded on the basis of material placed before the Rent Controller and the question of legality thereof was to be examined, the documents were not accepted.

13. On merits of the petition Mr. Shaukat Hayat contended that the evidence does not prove the commission of wilful default in payment of rent alleged by the landlord yet the learned two Courts below recorded the finding against the tenant. That even otherwise the alleged default in payment of rent pertained to the year 1988/89, therefore, the rent case filed ten years thereafter was not maintainable on the ground of that default. According to the learned counsel the rent allegedly not paid had become time-barred and the landlord could not get it under the law, therefore, it could only be treated as technical default and no ejectment could be ordered on the basis of such default.

14. It was next contended by the petitioner's counsel that the landlord/respondent had boldly contended that he wants the demised property for personal use without saying expressly and clearly as how he wants to use the property, therefore, his that plea was rightly rejected by the original Court. According to the learned Advocate the Appellate Court arbitrarily and illegally accepted that ground without appreciating the material on record.

15. Mr. S. Sajjad Ali Shah appearing for the Respondent No. 1 defended the decision of the Rent Controller only on the issue of default. He, however, defended the appellate judgment fully. He argued that although the default in payment of rent was committed more than ten years before the filing of rent case and that rent could not be recovered through legal process yet the tenant's liability for eviction on account of that default remained intact as no limitation for filing the ejectment case has been provided by the concerned law. He argued further that even the waiver of the default was also not pleaded by the tenant, therefore, that plea cannot be considered by this Court in exercise of Constitutional jurisdiction.

16. On the issue of personal requirement Mr. Shah contended that the respondent/landlord had specifically pleaded that he being builder needs the demised premises for personal use, therefore, his that plea has to be accepted specially when no mala fides behind that plea have been established by the petitioner. In support of his contention he referred to the case of Messrs Mustafa Oil Mills v. Muhammad Asif 1997 CLC 339 and Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846.

17. First I want to deal with the ground of personal use. As mentioned above the Rent Controller rejected it but the Appellate Court reversed that finding and accepted that ground also. For proper appreciation of the plea the contents of the rent case relating to personal need are reproduced below :--

"(7) That the applicant is a leading Builder/Town Planner of the city and have experience in construction some very well-known projects in Karachi, particularly Rabi Centre, Rabi Arcade and Rabi Square, which are all in the same vicinity of the demised premises. The applicant is presently supervising the construction of one of the most prestigious projects of the city namely Silver Sand Beach View.

(8) In the aforesaid circumstances the demised property is required by the applicant for his personal bona fide use and occupation in good faith as such the opponent is liable to be ejected from the demised property on this ground also."

1. After a look at the above mentioned two paragraphs one gets that first the landlord highlighted his experience as a builder having constructed big and prestigious projects and then, in the following para, he simply stated that being an experienced builder he wanted the demised property, for his personal bona fide use. It was surely inappropriate and vague plea about the personal requirement wherein the landlord did not speak expressly as to what for he required the demised property which is a huge plot. Without express and clear plea the Court can neither consider nor decide the question of the requirement and its reasonableness.

2. It was only in the evidence where the attorney of the landlord deposit that the landlord wants to raise commercial construction upon the plot and use some parts thereof himself and give other parts to some third party. The evidence deserves to be excluded of the consideration for being beyond the pleadings.

3. Although law does not permit it but even if, for the sake of academic point of view, the evidence is considered then also it does not satisfy the requirement of law for eviction of tenant on the ground of re-construction. Firstly, it is a simple word that the landlord shall use part of the new construction himself without any further explanation or details. The plan of proposed construction shows big number of shops etc., therefore, the landlord was required to say expressly as to how he wants to use them. A simple and bold word that the landlord shall use some shops himself does snot discharge the responsibility of proving personal requirement reasonably and in convening manner to the satisfaction of the Court. Secondly, when the landlord also intends to give a part of the new construction to third party he is legally required first to accommodate the tenant for carrying on his business at same level but in the plan of proposed construction on such provision is available.

4. Although clause (vi) of sub-section (2) of section 15 S.R.P.O. does not speak of the re-accommodation of the tenant but the provision cannot be applied in isolation. It is linked with sub-sections (3) and (4) of same section i.e. 15. No doubt, the subsections speak of the arrangement after the ejectment of tenant for reconstruction and after completion of the construction but in the construction plan the presence of the provision for accommodation the tenant after reconstruction is essential. If the plan is such where the tenant cannot be accommodated, the ejectment is not to be ordered.

5. In present case the plan for proposed construction does not show any provision for accommodation the tenant for running the business at the same scale. In absence of any such satisfactory provision, the ground of reconstruction for commercial performance cannot be accepted.

6. In view of the above it is clear that the Appellate Court accepted the ground of personal requirement wrongly ignoring all the legal requirements and the same is not sustainable. The decisions referred to by Syed Sajjad Ali Shah are not applicable to the present case as in the same of Messrs Mustafa Oil Mills (supra) the landlord had expressly pleaded that the premises were required by him for starting his business of sale of iron rods/bars. In the case of Muhammad Bashir (supra), the landlord had clearly pleaded that the shop was required by him for opening a medical store therein.

7. As regards the default in payment of rent, it is not disputed that the tenant/petitioner had been deposition the rent in the name of previous owner of the premises in the Court in MRC 2919 of 1981, and had deposited the same up to September, 1988. It is also admitted that after purchase of the demised property the new owner/respondent had served the tenant/ petitioner with notice dated 13.8.1988 under Section 18, Sindh Rented Premises Ordinance, 1979. Through the same letter the rent from July, 1988 was also demanded by the new owner.

8. The tenant claims to have sent Cheque No. PSO-H-11713 dated 17.9.1987 for Rs. 16,500 (the rent from 1.7.1988 to 31.12.1988) under a covering letter, dated 15.9.1988 sent through registered post A.D. It has brought in evidence A.D. receipt and copy of covering letter as Annexure O-3 and O-2. It further claims in evidence that another Cheque No. 120762 dated 1.1.1989 for Rs. 16,500 being rent for the period 1.1.1989 to 31.12.1989 was also sent under a covering letter through registered post under Registration Receipt No. 43 dated 5.7.1989 as Annexure O-4. It further claimed that the rent from 1.7.1989 to 31.12.1989 was sent by way of cheque under the registered receipt dated 5.7.1989. The sub-section (4) of section 10 S.R.P.O., 1979 recognizes the postal money orders receipts as proof of the payment of rent. This shows that the postal documents specially the registration and A.D. receipts are an evidence of the dispatch and delivery of the envelopes containing the documents/cheques. In absence of any evidence from the landlord as to what else was sent to him under the postal registration and A.D. receipts the evidence on the side of the tenant has to be accepted. The landlord has not disputed the correctness of the address mentioned on the postal receipts which confirm the dispatch of the envelopes/material to the addressee i.e. the landlord. The covering letter contained the fact of sending the cheque under it. The settled proposition of law is that ordinary and common mode of communication between the citizen is the post and the registration receipts showing the correct address are the evidence of dispatch and delivery of the material. In presence of such postal receipts and the covering letters, the presumption would be that the landlord had received the envelopes containing the cheques, unless he proves to the contrary. Reference can be made to the Honourable Supreme Court in Rasheed Ahmed v. Messrs Friends Match Works reported in PLD 1989 SC 503 and Khuda Bux v. Muhammad Yakoob and others reported in 1981 SCMR 179.

9. The landlord did not come himself to deny the receipt of the letters/cheques sent under the postal receipts. The oral denial by his attorney does not rebut the presumption specially when he does not say as to what had been received by the landlord in the envelopes. Thus, the contention of the tenant that the cheque for the rent amount pertaining to July, 1988 and onwards were sent to the landlord is to be accepted. The two Courts below did not appreciate that evidence in accordance with law.

10. As regards the justification for depositing the rent in the Court, the fact that the landlord instead of getting the cheques encashed wrote a letter dated 11.11.1989 to the tenant alleging the non-payment of rent from July, 1988 and also asking it to vacate the demised property the tenant was fully justified in depositing the rent with the Rent Controller under MRC 1030 of 1989.

11. Since the tenant first deposited the rent up to September, 1988 in the name of previous owner in MRC 2919 of 1981 and then sent the rent again from July, 1988 and onwards through cheques to the landlord, he cannot be held responsible of wilful default in payment of rent nor he can be said to have deposited the rent with the Rent Controller without tendering it to the landlord and/or without any justification.

12. Even otherwise, if for the sake of arguments the tenant is considered to have committed default in payment of rent from July, 1988 or after September, 1988 to September, 1989 then also landlord's application for his ejectment having been filed more than 10 years after the so-called default cannot be accepted, for, gross laches on his part. Although the provisions of SRPO do not fix any limit within which the ejectment application is to be filed and waiver was also not pleaded by the tenant yet the principle of laches is very much applicable to this case. Where provisions of Limitation Act do not apply the principle of laches plays a role. Silence for a decade after the alleged default was sufficient for the tenant to believe that the landlord had no mind to come for their ejectment. The continued with their business under the belief. All of sudden after 10 years the landlord decided to seek their ejectment for the so-called default having occurred more than 10 years before. The rent case is, therefore, also hit by the principle of laches.

13. In view of above discussion, the orders of the two Courts below are not sustainable. They are, therefore, declared to be illegal. Consequently the rent case filed by the applicant/landlord is dismissed. Resultantly, C.P. No. S-901 of 2003 is accepted.

(R.A.) Petition accepted

PLJ 2005 Karachi 83

Present: Mushir Alam, J.

HABIB BANK LIMITED--Plaintiff

versus

M/s. PAN ISLAMIC STEAMSHIP COMPANY LTD. KARACHI

& 6 Others--Respondents

(CMA No. 6245 of 2001, CMA No. 9127 of 2001, CMA No. 298 of 2002, CMA No. 299 of 2002, CMA No. 300 of 2002 and CMA No. 301 of 2002 in the High Court Suit No. 366 of 1999, decided on 17.1.2005.

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

----O.XX, Rr. 2, 4 & 5--Liability of Legal heirs under the purported guarantee--Legal heirs were not liable under purported guarantee which is alleged to have been executed by their deceased father--According to her, right to sue does not survive the deceased--Counsel for plaintiff disputes such facts. According to him under the terms of guarantee, the legal heirs of such deceased person are fully liable. Such issue can be decided at trial. Since this matter is pending for quite some time for consideration of leave to defend. Therefore, leave to defend is granted to the said defendants as well. [P. 85] D

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

----Ss. 126 & 128--Civil Procedure Code, (V of 1908), O.XX, Rr. 2, 4 & 5--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 10, sub-section (12)--Defendant being the legal heir was liable to extent of the guarantee extended by the deceased--Such controversy can only be resolved and decided at trial after looking to the guarantee, Defendant No. 2(b) has, therefore, made out a case for the grant of leave unconditionally--Leave granted to the defendant for consideration whether the L.R of the Defendant No. 2 were liable under the purported guarantee, if at all, the executed by her deceased husband--Application disposed off. [Pp. 84 & 85] A

(iii) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 10(12)--Civil Procedure Code, (V of 1908), S. 151--Defendant has also disputed signature on the letter of guarantee. In order to adjudicate the issue raised is found on factual and legal controversy--Application granted unconditionally. [P. 85] B

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

----Arts. 59 & 84--Hand Writing Expert's Report and Signatures on Guarantee(s)--Counsel for defendant contends that defendant signature on the guarantee were forged--Handwriting of defendant was referred to the Handwriting Expert earlier, the Handwriting Expert called for the documents bearing the signature of defendant at the relevant time, alleged guarantee was executed whereafter through another report dated 12.4.2004 expressed doubt as to the signature of Defendant No. 7 on guarantee--Report of the Handwriting Expert is not conclusive as to the veracity claim made by the defendant--Fact remains that such report do create a doubt on the guarantee. Such issue could only be determined and adjudicated at the trial--Defendant No. 7 is also granted leave to defend the suit. [P. 85] C

Mr. A.R. Akhtar, Advocate for Plaintiff.

Mr. Saalim Salam Ansari, Advocate for Defendant No. 7.

Mr. Saadat Yar Khan, Advocate for Defendant No. 4.

Mr. Asim Mansoor Khan, Advocate for Defendant No. 3.

Ms. Sumiya Usmani, Advocate for Defendant No. 2(b).

Mr. Walid Ansari, holding brief for Mr. Qazi Faez Issa, Advocate.

Date of hearing : 17.1.2005.

Order

1. Listed Application (CMA No. 6245/2001) under Order 1 Rule 10(2) CPC seeks striking off the name of Defendant No. 2(b). Learned counsel appearing for the Plaintiff, Mr. A.R. Akhter, submits that since Defendant No. 2(b) has already been joined pursuant to the direction of this Court, therefore, this Application amounts to review earlier this Court's order. Under the circumstances, the Application is dismissed and disposed off as such.

2. This Application (CMA No. 9127/2001) under Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been moved by the Defendant No. 2(b) seeking leave unconditionally to defend. It is, inter alia, contended by the learned counsel for Defendant No. 2(b) that Defendant No. 2(b) is the widow of deceased guarantor, who is alleged to have executed the Personal Guarantee. According to the learned counsel, Defendant No. 2 has since passed away. No personal liability could be foisted on his legal heirs. Mr. A.R. Akhter, learned counsel for the Plaintiff contends that since the right to sue had survived the deceased; therefore. Defendant No. 2(b) being the legal heir is liable to the extent of the guarantee extended by the deceased. Since such controversy can only be resolved and decided at trial after looking to the guarantee, the Defendant No. 2(b) has, therefore, made out a case for the grant of leave unconditionally. Leave is granted to the Defendant No. 2(b) for consideration whether the L.R of the Defendant No. 2 are liable under the purported guarantee, if at all, executed by her deceased husband. The Application (CMA No. 9127/2001) is disposed off in above terms.

3. Defendant No. 4 has, also filed the leave to defend application to challenge the very maintainability of the suit. Defendant No. 4 has also disputed the signature on the letter of guarantee. In order to adjudicate the issue raised is found on factual and legal controversy. Accordingly, the application is granted unconditionally. CMA No. 298/2002 stands disposed off in above terms.

4. Through listed Application (CMA No. 299/2002) under Section 10 sub-section (12) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with Section 151 CPC, Mr. Saalim Salam Ansari, learned counsel for Defendant No. 7 contends that Defendant No. 7's signature on the guarantee were forged. It appears that the handwriting of Defendant No. 7 was referred to the Handwriting Expert earlier, the Handwriting Expert called for the documents bearing the signature of Defendant No. 7 at the relevant time, the alleged guarantee was executed whereafter through another report dated 13.4.2004 expressed doubt as to the signature of Defendant No. 7 on the guarantee. Mr. A.R. Akhter, learned counsel for the Plaintiff contends that the report of the Handwriting Expert is not conclusive as to the veracity claim made by the Defendant No. 7. Be that as it may, the fact remains that such report do create a doubt on the guarantee. Such issue could only be determined and adjudicated at the trial. Accordingly, Defendant No. 7 is also granted leave to defend the suit. CMA No. 299/2002 stands disposed off in above terms.

5 & 6. CMA Nos. 300/2002 and 301/2002: The Applications appear to have been filed by the legal heirs of the late Mr. A. D. Ahmer by his son and daughter respectively. It is urged by the learned counsel Ms. Sumiya Usmani that the legal heirs are not liable under the purported guarantee which is alleged to have been executed by their deceased father. According to her, right to sue does not survive the deceased. Though Mr. A.M. Akhter, learned counsel for the Plaintiff disputes such facts. According to him under the terms of guarantee, the legal heirs of such deceased person are fully liable. Such issue can be decided at trial. Since this matter is pending for quite some time for consideration of leave to defend. Therefore, leave to defend is granted to the said Defendants as well. The parties are directed to file issues by consent preferably within a week whereafter the request for appointment of Commissioner to record the evidence of the parties at an early date will be considered. CMA Nos. 300 and 301/2002 stand disposed off in above terms.

(R.A.) Order accordingly.

PLJ 2005 Karachi 86

Present: Rahmat Hussain Jafferi, J.

IRFAN KHAN and 2 others--Plaintiffs

versus

ISLAMIC REPUBLIC OF PAKISTAN through MINISTRY OF PLAINING AND THROUGH ITS SECRETARY, ISLAMABAD

and 3 others--Defendants

Suit No. 612 of 2004, decided on 16.5.2005.

(i) Fatal Accident Act, 1855 (XIII of 1855)--

----Provisions of--Defendants are jointly and severally liable to pay compensation to the plaintiffs and legal heirs of deceased--As regards income of the deceased, at the time of incident he was drawing Rs. 2200/- per month--Deceased was earning Rs. 2000/- to Rs. 3000/- per month as a part-time worker--The suit of the plaintiffs is decreed against defendants jointly and severally in the sum of Rs. 27,09,743.62 with profit/mark-up at the rate of 15% per annum from the date of judgment till the recovery of amount with cost(s). the decree shall be satisfied within a period of 30 days--Decree in suit for recovery would be satisfied with a period of 30 days. [P. 90] A

Mr. Nasir Maqsood, Advocate for Plaintiff.

Mr. Abdul Rauf Khan, Advocate for Defendants Nos. 1 & 3.

Mr. Mukhtar Ahmed Kubar, Advocate for Defendant No. 2.

Date of hearing : 15.5.2005.

Judgment

On 9.8.1994 the plaintiffs being minors through their next friend, mother Mst. Naseem Akhtar, widow of Sher Azam Khan filed the suit for recovery of Rs. 35 lacs under the provisions of Fatal Accident Act, 1855 against the defendants.

1. Brief facts are that deceased Sher Azam Khan was driver on a PIA van on a contract basis. On 11.4.1993 the deceased was driving the van in which three air hostesses were sitting who were being driven to their homes. At about 5:30 a.m. when the van reached near Muhammad Ali housing society it met with an accident with the NLC trailer which was coming from opposite direction in a rash and negligent manner. In the accident the deceased and three air hostesses died. It is alleged in the plaint that the Defendants No. 4 was getting the road repaired through their contractor with the result that one side of Shahrai Faisal road was closed. The traffic was diverted to the other side of the road on which two way traffic was allowed to continue without making any precautionary measures by putting any signal, flicker lights or deploying traffic police constables therefore the the accident occurred due to the negligence of the defendants hence the plaintiffs have claimed compensation of the Rs. 35,00,000/- against all the defendants severely and jointly with 15% profit per annum on the said amount.

2. The Defendants 1 to 3 in their written statement admitted that the accident took place in which the driver and three airhostesses died but they denied that the Defendant No. 3, driver of Defendant No. 2 was driving the trailer rashly and negligently. They stated that Defendant No. 4 were instrumental in causing the accident as the road was being carpeted at the scene of incident and traffic was diverted to wrong side of the road without due caution and care by the Defendant No. 4 or the workers who were working on the road. They further alleged that the accident was caused due to solo negligence of the Defendant No. 4. They shifted the responsibility of the accident on the Defendant No. 4.

3. The Defendant No. 4 filed the written statement in which they admitted the accident but took the plea that the work on the road was in progress and proper arguments for the smooth flow of the traffic, under the supervision of traffic police constables were made. They further claimed that proper arrangements were made to caution the traffic flow by affixing barricades, flicker lights with a standby generators and diversaion sign Boards fixed on either ends of the intersection of the road and the traffic police was deputed to control the traffic. The Defendant No. 4 further stated that the accident took place due to the negligence of drivers of NLC trailer and the van of PIA.

4. Out of the pleadings of the parties following consent, issues were framed on 24.9.1995:--

ISSUES

1. Whether the death of the deceased Sher Azam Khan was caused by the composite negligence and wrongful act of the defendants, if so, it's effect?

2. Whether the defendants are liable to pay the compensation to the plaintiffs and other legal heirs, if so, to what extent?

3. In order to prove the case the plaintiffs examined Mst. Naseem Akhtar widow of Sher Azam Khan as Ex. 1/2. She produced FIR No. 99/93 about the accident as Ex. P/1, Police report dated 09.6.1993 as Ex. P/2, certificate of the deceased issued by JMPC as Ex. P/3, graveyard certificate as Ex. P/4, newspaper clippings in which the accident was reported as Ex. P/5, driving licence of the deceased as Ex. P/6, Nikahnama between the deceased and Mst. Naseem Akhtar as Ex. P/7, income certificate of the deceased as Ex. P/8, Service Card of deceased as Ex. P/9, national identity card of the deceased as Ex. P/10 and identity card of Mst. Naseem Akhtar as Ex. P/11. The plaintiffs also examined Muhammad Ihsanul Haq, eyewitness of the incident as Ex. 2/1. They also examined Muhammad Iqbal ASI of Police Station Bahadurabad who produced the certified copy of FIR No. 99/93 lodged on 11.4.1993 under Section 320, PPC in respect of the accident as Ex. 3/1, attested copy of inspection report of vehicle as Ex. 3/2, sketch of the place of incident as Ex. 3/3, postmortem report of the deceased as Ex. 3/4, certified copy of judicial inquiry report into the cause of accidents as Ex. 3/5. The plaintiffs have also examined Abdul Razzak Shaikh, Accounts Officer of PIA. He produced revised salary of the drivers as Ex. 4/1 and an agreement executed between Farqan Enterprises and PIA for providing services of drivers on contract basis as Ex. 4/2.

4. The defendants did not lead any evidence in support of their claims.

5. I have heard the arguments of the advocates for the plaintiffs, Defendants Nos. 1, 2 and 3. The Defendant No. 4 and their advocate were absent. I have perused the record of this case very carefully. My findings on the above issues are as under for the following reasons:

Findings:

Issue No.1 In affirmative.

Issue No. 2 In affirmative. The suit is decreed for an amount of Rs. 27,09,743.62 with 15% markup per annum on the decreetal amount.

Reasons:

ISSUE No. 1.

1. In order to prove the issue Mst. Naseem Akhtar mother of the plaintiffs filed her affidavit-in-evidence in which she has narrated the same facts as disclosed in the plaint which facts are mentioned in the earlier part of the judgment. The plaintiffs have examined eyewitness Muhammad Ihsanul Haq. His evidence reveals that on 11.4.1993 he was driving a PIA van and following the van of the deceased in which he was going to the drop three airhostesses to their houses. One side of Shahrai Faisal road was closed and the traffic was diverted to the other side of the road. At about 5.30 a.m. When the van of the deceased reached, Muhammad Ali Housing Society, a trailer belonging to NLC came from city side in a very rash, negligent and careless manner. In a bid to wrongly overtake the other vehicles, it dashed with PIA van driven by the deceased. The trailer was being driver in a excessively high speed. Consequently the PIA van which was going on its proper and correct side and was keeping on the left side, was hit on its front portion by the NLC trailer which knocked the front side portion of the van in a such a violent way that the said van was dragged to a considerable distance and was not stopped unless came across the middle island. He and other road users gathered on the spot as the bodies were entangled in the van. He found deceased Sher Azam Khan and one airhostess Ghazala Mehmood died at the spot where as two other airhostesses were in critical condition. They also succumbed to the injuries while taking to the hospital. In the cross-examination he admitted, that the Defendant No. 4 had not taken any proper steps to avoid any accident, as no traffic police officer was available on the spot, no signboards were erected nor any flicker lights were installed at the place of incident and there was no bifurcating lane on the road.

2. The third witness examined by the plaintiffs was Muhammad Iqbal. He was ASI police station Bahadurabad. He produced the relevant documents of the investigation of the case and also produced a copy of judicial inquiry in which it was observed that the track towards air port was used for both sides by vehicles without installation of any signboard or deployment of traffic police constable for the guidance of drivers therefore the accident took place.

3. The last witness examiner by the plaintiffs was Abdul Razzak Shaikh. He was accounts officer in PIA. His statement reveals that the deceased was working as driven on contract basis and was drawing a salary of Rs. 2200/- per month but from 1-4-1995; it was increased to Rs. 2800/- per month. He has produced the relevant documents.

4. The defendants did not cross-examine the last two witnesses. The defendants cross-examined Mst. Naseem Akhtar in which she denied the suggestion of the Defendants Nos. 1 to 3 that NLC, Defendant No. 2 had paid Rs. 20,000/- as compensation for the deceased. She also denied the suggestion that she had contracted second marriage. She admitted that Defendants Nos. 4 and 2 are also liable to pay compensation.

5. From the above evidence it is clear that one side of Shahrai Faisal road was being repaired by the Defendant No. 4 through contractor therefore it was closed for traffic. The traffic was diverted to the other side of the road. Under the circumstances the Defendant No. 4 were required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights with standby generators, diversion signboards fixed on either end of the intersections of the road, also barricades and flicker lights in the middle of the road for smooth flow of the traffic on the road and for the guidance of the dual traffic on one side of the road and should have also deployed traffic constables on the road. The eyewitness Muhammad Ihsanul Huq clearly admitted that no such signs or lights were available on the road for the guidance of the traffic. The evidence of the witness went unchallenged as the Defendant No. 4 did not cross-examine him on the above points of his evidence nor the Defendant No. 4 has led any evidence to disprove the said allegations or prove the plea taken by them in their written statement. As such, the Defendant No. 4 were grossly negligent in performing their public duties with the result that the accident took place.

6. It is further clear from the evidence that the Defendant No. 3 was the driver of the NLC, Defendant No. 2. He was driving the vehicle very rashly, negligently, carelessly and in a high-speed with the result that the accident took place. The evidence of eyewitness of the incident also went unchallenged as no cross-examination was conducted by the Defendants 1 to 3 on the evidence of the witness on the above point. It is well settled principle of law that if any piece of evidence is not challenged in the cross-examination then it is presumed to be accepted to be true by the other side. Reliance is placed on a case of Muhammad Akthar v. Manna (2001 SCMR 1700). Furthermore, the Defendants 1 to 3 did not lead any evidence to disprove the allegation made by the eyewitness Muhammad Ihsanul Huq. At least the Defendant No. 3 should have examined himself to prove that he was not driving the trailer rashly, negligently, carelessly and in a high-speed but no such evidence has been led by the defendants. As such, it has been established beyond any shadow of doubt that the Defendant No. 3, the driver of the NLC trailer, which was owned by the Defendant No. 2 was driving the NLC trailer rashly and negligently with the result that the accident took place. As such, the Defendant No. 2 is also responsible along with the Defendant No. 3 being the master of the Defendant No. 3.

7. From the above position it is clear that the Defendant No. 4 and Defendants Nos. 2 and 3 were negligent and the accident took place due to their negligence therefore, it is a case of normally styled in the legal parlance as composite negligence. The principles of composite negligence are that the victim has a choice of proceeding against all or any one or more than one of the wrong doers and every wrong doer is liable for the whole damages if it is otherwise made out. Reliance is placed on Andhora Marine Exports (P) Ltd. v. P. Radhakirshina, AIR 1984 Madrass 358, and Vanguard F. & G.I Co. v. Sarla Devi, AIR 1959 Punjab 297.

8. From the evidence available on the record I am of the considered view that the plaintiffs have proved the issue, as such the same is replied in affirmative.

Issue No. 2.

1. In view of my findings on Issue No. 1 the defendants are jointly and severally liable to pay compensation to the plaintiffs and legal heirs of the deceased.

2. As regards the compensation the deceased has left a widow, two sons and a daughter therefore, they are entitled to receive the compensation. As regards the income of the deceased, at the time of incident he was drawing Rs. 2200/- per month. Mst. Naseem further added in her statement that the deceased was earning Rs. 2000/- to Rs. 3000/- per month as a part-time worker. The plaintiffs witnesses Abdul Razzak Shaikh who was accounts officer in PIA deposed that from 1.4.1995 the salary of drivers was increased to Rs. 2800/- from Rs. 2200/- per month. The statements of both the witnesses went unchallenged as no cross-examination was conducted to these witnesses on the above point. However keeping in view all the relevant circumstances and increase in pay I take an average sum of Rs. 3500/- per month as monthly income of the deceased including overtime income. The deceased was about 32 years of age at the time of incident. The average span of life is taken, as 70 years therefore, he would have been in a funding position for the next 38 years. In aggregate pecuniary benefits for 38 years would be Rs. 1596000/-. During the periods there were chances of increment of salary and income, therefore, over all 20% is awarded on account of chances of increment on the aggregate income for all the years as such the plaintiffs will be entitled, for a further amount of Rs. 3,19,200/-. The deceased's personal expenditure would be taken at 1/6 of his total income which comes to Rs. 31,9200/-. The widow is also entitled to compensation for loss of association and loneliness which is granted at Rs. 100,000/-. The children are also entitled to the damages at the rate of Rs. 3 lacs for each child. Under Islamic law if a person is dead due to intentional, unintentional, unlawful, neglectful act, rash or negligent driving or by mistake, then the legal heirs of the victim are entitled to compensation which is know as Diyat equivalent to the value of the 30,630 grams of the silver, which is fixed and declared by the Federal Government by notification. For the financial years 1992-93 the Federal Government, vide notification No. SOR 649(1)/92 dated 1.7.1992 declared Rs. 98,743,62 as Diyat (compensation) amount. Taking the benefit of such notification the legal heirs of the deceased are also entitled to Rs. 98,743.62 as compensation for the loss of life of the deceased. The plaintiffs are also entitled to funeral expenses of Rs. 15,000/-. Thus, the plaintiffs are entitled for the following compensation:

(a) loss of pecuniary benefits for 38 years at the rate of Rs. 3500/- per Month Rs. 15,96,000/-

(b) 20% because of chances of increment of aggregate income over all the years. Rs. 3,19,200/-

(c) Damages in favour of widow for loss of association and loneliness under the head of "consortium" Rs. 100,000/-

(d) damages in favour of children due to death of their father for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him at the rate of Rs. 300,000/- each of three children. Rs. 900,000/-

(e) Compensation for loss of life of the deceased. Rs. 98,743.62

(f) funeral expenses Rs. 15,000/-

Total: Rs. 30,28,943.62

Deduction 1/6 on account of personal expenses of the deceased of the gross pecuniary benefits for 38 years. Rs. 3,19,200/-

Net compensation:

Rs. 27,09,743,62

1. Thus, the suit of the plaintiffs is decreed against the defendants jointly and severally in the sum of Rs. 27,09,743,62 with profit/markup at the rate of 15% per annum from the date of judgment till the recovery of amount with costs. The decree shall be satisfied within a period of 30 days.

(R.A.) Order accordingly

PLJ 2005 Karachi 92

Present : Mushir Alam, J.

M/s. HABIB-ADM LIMITED--Plaintiff

versus

M/s. THE KARACHI ELECTRIC SUPPLY CORPORATION

LIMITED--Defendant

CMA Nos. 4215, 4216, 4217 of 2005 in Suit No. 680 of 2005, decided on 20.5.2005.

(i) Electricity Act, 1910 (IX of 1910)--

----Ss. 24(2) & 26(6)--Jurisdiction--Controversy that has been raised in the instant suit appears to be demand raised by the defendants--Accused to counsel the plaintiff has made excess payment--Controversy as urged in suit, when confronted to counsel concede, falls within the purview of

Ss. 24(2) and 24(6) of the Electricity Act, 1910, Let the controversy be referred to the Electricity Inspector. [P. 93] A

(ii) Electricity Act, 1910 (IX of 1910)--

----Ss. 24(2), 26(6)--Direction to Electric Inspector--On deposit of the amount, claim in the suit can be filed before the Electric Inspector within seven days thereof--Electric Inspector is directed to decide the controversy within three months as provided under the provisions referred to above. [P. 93] B

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

----O.XXXIX, Rr. 1 & 2--Electricity Act, 1910, Ss. 24(2)--KESC to not take any coercive action--Till the decision is recorded by the Electric Inspector, the defendant can not take any coercive action for the recovery of the disputed amount. [P. 93] C

Messrs. Salim Salam Ansari, Muhammad Nasir Khan and Mukhtiar Ahmed Kuber, Advocates for Plaintiff.

Date of hearing : 20.5.2005

Order

1. Granted.

2. Granted but subject to all just exceptions.

3. Controversy that has been raised in the instant suit appears to be demand raised by the defendants. According to learned counsel the plaintiff has made excess payment. The controversy as urged in the suit, when confronted to the learned counsel concede, falls within the purview of Sections 24(2) and 26(6) of the Electricity Act, 1910. Let the controversy be referred to the Electric Inspector. In the meantime that plaintiff may deposit the current demand with the defendants and for the disputed amount deposit the same with the Nazir of this Court within three days. On deposit of the amount, the claim in the suit may be filed before the Electric Inspector within seven days thereof. Electric Inspector is directed to decide the controversy within three months, as provided under the provisions referred to above. The parties are entitled to avail remedy of the Appeal, as provided under the Electricity Act itself. Till the decision is recorded by the Electric Inspector, the defendants may not take any coercive action for the recovery of the disputed amount.

Let CMA be fixed in the second week after summer vacation when it is stated the suit may be finally disposed of.

(R.A.) Disposed of

PLJ 2005 Karachi 93

Present : Mushir Alam, J.

ZAFFAR MAHMOOD SHAIKH--Petitioner

versus

M/s. AHMED FOODS INDUSTRIES (PVT.) LTD., KARACHI--Respondent

J.M. No. 66 of 2003, decided on 11.1.2005.

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 305(e), 306(1)(b),(c), and 209(d)--Petitioner is exposed to Financial liability on account of default of the respondent, therefore, in terms of Ss. 305 & 309 of the Companies Ordinance 1984 is contingent creditors and entitled to seek winding up of the respondent to set off the liability to which petitioner can be exposed--In terms of Section 309(d) ibid contingent creditors, to maintain such petition, is required to furnish security under Section 309(d)--Counsel for the Petitioner has referred to case reported (Rel: Enhansanullah Tarar vs. M/s. Hafizabad Straw Board Mills Ltd., and 3 others (PLD 1994 Lahore 160), wherein the contingent petitioner was required to furnish security in the sum of Rs. 20,000/- only--Petitioner furnish security in the sum of Rs. 25,000/- to the satisfaction of the Nazir of High Court within two weeks, whereafter this petition be filed for hearing of the main petition before regular bench. [P. 94] A

PLD 1994 Lahore 160 rel.

Mr. Shabbir Ahmed Sheikh, Advocate for Petitioner.

Mr. Saalim Salam Ansari, Advocate for Respondent.

Date of hearing : 11.1.2005.

Order

Admittedly the petition has been filed by the Petitioner who stood guarantor for the Respondent for repayment of the loan and it appears that the creditors claim has been decreed by the Banking Court and the Petitioner's property has been exposed to auction pursuant to a decree passed against the Respondent and petitioner. According to the learned counsel, the petitioner is exposed to financial liability on account of default of the Respondent therefore, in terms of Section 305 read with Section 309 of the Companies Ordinance 1984 is contigent creditors and entitled to seek winding up of the respondent to set off the liability to which petitioner may be exposed. In terms of section 305(e) ibid contingent creditors, to maintain such petition, is required to furnish security under Section 309-D. The learned counsel for the petitioner has referred to case reported Ehsanullah Tarar vs. M/s. Hafizabad Straw Board Mills Ltd., and 3 others (PLD 1994 Lahore 160), wherein the contingent petitioner was required to furnish security in the sum of Rs. 20,000/-

Under circumstances, let in the first instance petitioner furnish security in the sum of Rs. 25,000/- to the satisfaction of the Nazir of this Court within two weeks, whereafter this petition be fixed for hearing of the main petition before a regular bench.

(R.A.) Order accordingly

PLJ 2005 Karachi 95

Present : Amir Hani Muslim, J.

NAZIMUDDIN--Plaintiff

versus

M/s. THE BANK OF KHYBER, KARACHI--Defendant

Suits Nos. B-20/2002 & B-39/2003, CMA No. 6169 of 2004, heard on 19.1.2005.

(i) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 10(8) & 5(8)--Both Counsel suggested that a Chartered Accountant be appointed to take account of both the parties and determine the liability--Prayers in both the suits would now be confined to the account. [P. 96] A

(ii) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 10(8) & 5(8)--Appointment of Chartered accountants as Commissioner for taking accountant--Rest of the prayers would not be pressed by both the parties except the prayer in regard to the properties mortgaged by the bank and said prayer would be subject to the proposed report of the Chartered Accountant--By consent, Messr. Liaquat Zaman & Company, Chartered Accountants, having office in Progressive Plaza, are appointed Chartered Accountant to undertake exercise of determination of liability of the parties after taking accounts from both the parties--Chartered Accountant shall submit their report within two months from the date of communication of the order--Fee of the Chartered Accountant is tentatively fixed at Rs. 100,000/- to be shared equally by both the parties.

[P. 96] B

Mr. Saalim Salam Ansari, Advocate for Plaintiff in Suit No. B-20 of 2002 and for Defendants in Suit No. B-39 of 2003.

Mr. Arshad Tayebaly, Advocate for Plaintiff in Suit No. B-39 of 2003 and for defendant in Suit No. B-20 of 2002.

Date of hearing : 19.1.2005.

Order

In these proceedings the common issue in both suit is that of accounts. According to Mr. Saalim Salam Ansari, his clients have made excess payment to the Bank and in this regard the parties have led evidence in Suit No. B-20 of 2002, which suit is pending in this Court for arguments. On the other hand, Mr. Arshad Tayebaly, Advocate, who represents Plaintiffs in Suit No. B-39 of 2003 states that the Defendant (Plaintiff in Suit No. B-20 of 2002) has to pay certain amounts for which the Bank has filed suit for recovery of the amount before the Banking Court and on transfer the said suit is now being tagged with the Suit No. B-20 of 2002. suit No.

B-39/2003 filed by the Bank is at the stage of hearing of application for leave to defend filed by the defendants therein. Both the learned Counsel suggest that a Chartered Accountant be appointed to take account of both the parties and determine the liability. Prayers in both the suits would now be confined to the account and rest of the prayers would not be pressed by both the parties except the prayer in regard to the properties mortgaged by the Bank and said prayer would be subject to the proposed report of the Chartered Accountant. By consent, M/s. Liaquat Zaman & Company, Chartered Accountants, having office in Progressive Plaza, Beaumont Road, Behind PIDC. Karachi, are appointed Chartered Accountant to undertake exercise of determination of liability of the parties after taking accounts from both the parties. The Chartered Accountant shall submit their report within two months from the date of communication of the order. Fee of the Chartered Accountant is tentatively fixed at Rs. 100,000/- to be shared equally by both the parties. To come up after the report of the Chartered Accountant has been submitted in the above terms.

(R.A.) Order accordingly

PLJ 2005 Karachi 96 (DB)

Present : Sarmad Jalal Osmany and Azizullah M. Memon, JJ.

FIRST PAK MODARABA--Petitioner

versus

NAB, CHIEF EXECUTIVE SECRETARIAT II, CONSTITUTION AVENUE, ISLAMABAD and another--Respondents

C.P. Nos. 369 & 370 of 2004, heard on 29.3.2005

(i) National Accountability Ordinance, 1999, (XVII of 1999)--

----S. 23--Transfer of Property void--Petitioner Company shall neither entertain any application for transfer of its shares from those shareholders whose names appears at Page No. 143 of the petitioner nor release any dividend warrant to the said share holders--Such restriction shall also apply in respect of those shareholders whose names shall be supplied by the NAB Authorities to the Company. [P. 97] A

(ii) National Accountability Ordinance, 1999, (XVII of 1999)--

----S. 12--Power to freeze property--Petitioner Company would be allowed to operate its accounts with the respondents bank--However, it is also ordered that since the rights of individuals are involved the NAB authorities shall move the Accountability Court for obtaining a freezing order in so far as these shares are concerned within one month from today, failing which that part of the order regarding the transfer of the shares/release of the dividends shall cease to operate. [P. 97] B

Mr. Saalim Salam Ansar, Advocate for Petitioner.

Mr. Shaukat Hussain Zubedi, Learned DPAG, NAB.

Mr. Shafiq Ahmed, for Respondent Bank.

Date of hearing : 29.3.2005.

Order

Today learned DPG NAB as well as learned Counsel for the Bank have stated that they would not object if the Petitioners were allowed to operate their bank accounts maintained with the respondent bank if the dividend warrants in respect of the shares of the Petitioner company held by Rashidullah Yaqoob and his family members/friends etc. as benamidars are not released by the Petitioner. Learned DPG further says that such list appears at Page No. 143 of the Petition and in fact has been filed by the Petitioner itself alongwith the Petition. Learned DPG further submits that it may also be ordered that such shares would not be transferred by the Petitioner to any other person nor would be encumbered. So also to these shares would be added those shares a list of which would be supplied by the NAB to the Petitioner company.

To this proposal learned Counsel for Petitioner company has agreed.

Consequently, by consent this application is disposed off by ordering that the Petitioner company shall neither entertain any application for transfer of its shares from those shareholders whose names appear at Page No. 143 of the Petition nor release any dividend warrant to the said share holders. Such restriction shall also apply in respect of those shareholders whose names shall be supplied by the NAB Authorities to the Company. Section 12 National Accountability Ordinance, 1999. The Petitioner company would be allowed to operate its accounts with the respondent bank. However, it is also ordered that since the rights of individuals are involved the NAB authorities shall move the learned Accountability Court for obtaining a freezing order in so far as these shares are concerned within one month from today, failing which that part of the order regarding the transfer of the shares/release of the dividends shall cease to operate. Application is disposed off on the basis of the foregoing.

(R.A.) Application disposed

PLJ 2005 Karachi 98

Present: Gulzar Ahmad, J.

MAZHARUDDIN--Petitioner

versus

HUSSAIN BAKHSH and 2 others--Respondents

Constitutional Petition No. S-441 of 2003, decided on 8.10.2004.

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

----Ss. 18 & 15(2)(ii)--Security to tenant--Scope--Ownership of premises in possession of tenant has been transferred by sale, gift, inheritance and by other mode--Now owner would send an intimation of transfer in writing by registered post to tenant and tenant would not be deemed to have defaulted in payment of rent for the purpose of S. 15(2)(ii) if rent is paid within thirty days from the date when intimation should in normal course have reached tenant--S. 15-A provided ample security to tenant in case landlord fails to put premises to his own use within one year of receipt of its possession. [Pp. 102 & 103] A & B

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

----S. 15--Constitution of Pakistan, 1973--Art. 199--Constitutional jurisdiction--Bona fide personal need of land lord--Ejectment application was dismissed by Rent Controller--Plea raised by landlord was the premises was required by him for personal need--Validity--Orders of courts below against petitioner was concurrent but both orders were based on complete misreading of evidence and non reading of evidence in disregard of established law having application to case--Courts below have ignored material and admitted evidence and law that was to be considered in deciding controversy raised in matter--High Court in exercise of Constitutional jurisdiction has to foster administration of justice to turn down decision which are manifestly arbitrary capricious and based on non considering of established law--Court below have not done justice between parties by their orders as petitioner has established on record that respondent has defaulted in payment of rent and such shop was required by him for his own use--Petition allowed. [P. 104] C

Mr. Qalandar Bux Phulpoto, Advocate for Petitioner.

Mr. Abdul Fateh Malik, Advocate for Respondent No. 1.

Date of hearing : 8.10.2004.

Order

By this petition, the petitioner has challenged the order dated 21.1.2003 passed by the learned and Additional District Judge Khairpur by which petitioner's F.R.A. No. 5/2001 was dismissed and the order passed by the Rent Controller dismissing the rent case of the petitioner was maintained.

Brief facts of the matter are that the petitioner has filed an application for the ejectment of the Respondent No. 1 on grounds of default in payment of rent and for personal bona fide need in respect of Shop No. 1-A-113-G-1 Shahi Bazar P.S.A. Section Khairpur. The Respondent No. 1 contested the rent case and filed his written statement. Thereafter the petitioner filed his affdavit-in-evidence so also affidavit-in-evidence of his witness Muhammad Zaman. Both the petitioner and his witness were cross-examined by counsel for the Respondent No. 1. Respondent No. 1 filed his own affidavit-in-evidence who was cross-examined by the petitioner's counsel. The Rent Controller after hearing the counsel of the parties passed order dated 25.6.1998 dismissing rent case which order was challenged by the petitioner by filing the appeal which has been dismissed by the impugned order.

Mr. Qalandar Bux Phulpoto learned counsel for the petitioner has contended that the petitioner through evidence has proved that Respondent No. 1 has defaulted in payment of rent so much so that Respondent No. 1 himself has admitted the fact of not paying the rent to the petitioner and that both trial Court as well as Appellate Court has altogether misread the evidence and gave illegal findings. He has further contended that the petitioner has also proved through evidence that premises in question is required by him for his personal use but the trial Court as well as appellate Court has disbelieved the evidence of the petitioner on wholly illegal premises. He has relied upon case of Abdul Qayoom v. Messrs Shell Pakistan (Ltd.) and others 2001 CLC 514, Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Muhammad Yamin v. Sarabai and others 2004 MLD 328.

On the other hand Mr. Abdul Fateh Malik learned counsel appearing for the Respondent No. 1 has contended that the Respondent

No. 1 has committed no default in payment of rent as he has been depositing the rent in Court regularly. He has referred to the advance rent paid by Respondent No. 1 to the previous owner Muhammad Zaman. He has further contended that rent case was filed by the petitioner in or about August, 1997 whereas the sale-deed of premises was made in favour of the petitioner on 27.12.2002 and no notice of change of ownership or sale-deed was given to the Respondent No. 1. He has contended that no default in payment of rent has been made by Respondent No. 1. He has further contended that petitioner has failed to establish the case of his personal requirement of the premises in question. In support of his submissions he has relied upon 1991 SCMR 1029.

The petitioner's case is that the shop in question was owned by his brother Muhammad Zaman who has inducted the Respondent No. 1 as tenant of the shop. There was some litigation regarding the shop between the petitioner and his said brother which was compromised vide order dated 23.1.1993 and the shop came to be owned by the petitioner. Petitioner said brother through his registered post letter dated 17.4.1994 initimated the Respondent No. 1 about the change of ownership of the shop. The petitioner through his letter dated 26.7.1997 sent by UMS gave notice of change of ownership of the shop to the Respondent No. 1 with request to pay past and future rent to the petitioner. The Respondent No. 1 despite notice did not tender the rent of the shop to the petitioner. The petitioner therefore filed the rent case for ejectment of the Respondent No. 1 from the shop on the ground of default in payment of rent with additional ground that the shop is required by him for his personal bona fide use. The Respondent No. 1 filed his written statement. In written statement Respondent No. 1 pleaded that he has paid advance rent of Rs. 15,000 to Muhammad Zaman the owner of shop and that he is not aware of any litigation regarding the shop between the owner and the petitioner and that the letter dated 17.4.1994 was not received by the Respondent No. 1. It is further stated that Muhammad Zaman who used to collect the rent regularly did not come to collect the rent from January, 1993. The rent was sent through money order dated 13.4.1993 to Muhammad Zaman but it was returned. The Respondent No. 1 then filed Misc. Rent case and started depositing the rent regularly in the name of Muhammad Zaman and asserted that the rent stood so deposited up to October, 1997.

The Respondent No. 1 admitted in the written statement that the notice dated 26.7.1997 of the petitioner was received by him but as he was not satisfied about the ownership of shop, he continued depositing rent in Court in the name of previous owner Muhammad Zaman. With regard to personal requirement of shop by the petitioner, Respondent No. 1 took defence that he has only the rented shop for running his business which is only source of his income and he has spent considerable amount for decorating shop and invested sufficient amount and will sustain heavy and irreparable loss if he is ejected from the shop. He has further pleaded that the petitioner being owner of Cotton and Ginning Factory has other source of income and thus took the stand that there is no requirement of the shop by the petitioner. The petitioner filed his affidavit-in-evidence and also affidavit-in-evidence of his witness namely Muhammad Zaman. Petitioner with his affidavit-in-evidence produced a compromise application made in Civil Appeal No. 98/1992 which was between the petitioner and Muhammad Zaman which also contain order of the District Judge Khairpur granting the compromise application and passed the decree in terms of the said compromise application. Copy of notice dated 26.7.1997 has also been produced. The petitioner's witness Muhammad Zaman also produced copy of his letter dated 17.4.1994. The petitioner was cross-examined by the Respondent No. 1's counsel. In cross-examination no suggestion was made to petitioner that the Respondent No. 1 has offered the rent of the shop and that the petitioner has refused the same. Rather it was suggested that the petitioner is receiving the rent from the Court deposited by the Respondent No. 1. With regard to the personal requirement, petitioner was suggested that he has filed rent case against Khush Muhammad to which he replied evasively. The suggestion that Respondent No. 1 has not committed default in payment of rent was denied. The further suggestion that the shop was not required by the petitioner was denied so also the suggestion that the petitioner will let out the rented shop to other person for considerable rent was denied. The petitioner's witness Muhammad Zaman in his cross-examination admitted that he received Rs. 15,000/- as advance from Respondent No. 1. He denied the suggestion that the Respondent No. 1 is not a defaulter. He also denied the suggestion that the petitioner does not require the shop for his personal use. The Respondent No. 1 has filed his own affidavit-in-evidence in which he reiterated the stand taken by him in his written statement with addition that he is continuing depositing rent in Court in Misc. Rent case filed against Muhammad Zaman and the rent stood deposited up to March 1998. He has further stated that petitioner has drawn the rent amount from the Court up to June, 1997. He has further taken stand that petitioner has not submitted any documents regarding change of ownership of the shop and took stand that he is ready to accept the petitioner as owner if allowed by the Court or even by the original owner Muhammad Zaman. He took stand that the petitioner is owner of other shop, therefore does not require the shop in question for his personal use. In cross-examination he denied having received notice from Muhammad Zaman regarding change of ownership of shop but admitted receipt of notice sent by the petitioner of change of ownership. The Respondent No. 1 also admitted that he did not pay the rent of shop in question to the petitioner but on receipt of notice of change of ownership from petitioner started depositing rent in Court in name of Muhammad Zaman the previous owner. He has denied the suggestion that shop in question is required by the petitioner for his own use and voluntarily stated that the petitioner has three shops in his name. He denied that there are only two shops of the petitioner.

From the perusal of the above record it stands established that the Respondent No. 1 has received from the petitioner the notice dated 26.7.1997 of change of ownership with request to the Respondent No. 1 to pay to the petitioner, past and future rent of the shop. As per Respondent No. 1 is own statement in his evidence that on receipt of the said notice of change of ownership he started depositing rent of the shop in Court by way of Misc. Application filed against the previous owner Muhammad Zaman. Further even after receipt of notice of the rent case, the Respondent No. 1 did not offer/tender the rent of the shop to the petitioner but as per his owner evidence, the Respondent No. 1 continued to deposit rent of the shop in the same Misc. rent case filed against the previous owner Muhammad Zaman. During the course of hearing of his petition, it was stated that Respondent No. 1 has continued to deposit the rent in the name of the previous owner in Court. The Respondent No. 1's counsel has however filed a statement dated 18.8.2004 with which he has submitted original receipts showing for the first time deposit of rent in Court by the Respondent No. 1 in the name of the petitioner for the months of April, May, June and July, 2004. Why the rent for these four months was deposited in Court and not paid to the petitioner directly is not explainable.

The learned Rent controller in its order has made reference of receipt of notice dated 26.7.1997 by the Respondent No. 1 but has stated that as the petitioner has not shown any proof of ownership of the shop, therefore the rent being deposited by Respondent No. 1 in the Misc. rent case in the name of Muhammad Zaman will only be a technical default. The Rent Controller further found that the petitioner on the basis of special power of attorney executed by Muhammad Zaman has been collecting rent from said Misc. rent case. The Court therefore came to the conclusion that Respondent No. 1 is not a defaulter. The Appellate Court all together omitted to consider in its order the admitted fact of receipt of notice of change of ownership dated 26.7.1997 sent by the petitioner but rather stated that there was no specific notice by the petitioner with regard to the change of ownership and discussed only the notice dated 17.4.1994 of Muhammad Zaman and concluded that its delivery was not proved. The Appellate Court also noted the fact that the petitioner was drawing rent from the Misc. rent case as attorney of Muhammad Zaman and thus the case was of a technical default.

It is very strange that both the Court blow have felt it convenient in considering the case of default in payment of rent on admitted facts in such cursorily manner and without adverting to the legal position and established law applicable to the facts and circumstances of the case. The Courts below altogether went of the mark when it gave importance to the fact that the petitioner as attorney of he previous owner was drawing rent from Misc. rent case. It may be noted that there is no evidence of the parties on record regarding drawing of rent by the petitioner. The Rent Controller, as it appears from the record while writing order has itself examined the record of Misc. rent case and made observation on it. The Courts however failed to note that the petitioner, if he as drawing rent from Court as attorney was doing so merely as agent of previous owners and not in his own personal right as owner of the shop.

Section 18 of the Sindh Rented Premises Ordinance, 1979 provides that where the ownership of premises in possession of tenant has been transferred by sale, gift, inheritance and by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of sub-section (2) of Section 15, if the rent due is paid within thirty days from the date when the intimations should, in normal course, have reached the tenant.

In the present case Respondent No. 1 has admitted having received the notice dated 26.7.1997 as referred in Section 18 of the Ordinance. In case of Messrs Habib Bank Ltd. v. Sultan Ahmed (2001 SCMR 678), the apex Court at page 682 has observed as follows:--

"Before parting with the judgment we would also like to observe that the tenant has no right to demand title documents from the landlord on receipt of notice within the meaning of Section 18 of the Ordinance because no sooner notice is served upon him or it is otherwise conveyed to him either in the judicial proceedings or by some other reliable source he is bound to accept the new owner as his landlord as held in the cases of Muhammad Ashraf v. Abdul Hameed and others (1982 SCMR 237(2)) and Suleman and another v. M.A. Mallick (1988 SCMR 775)."

In the case of Sardar Muhammad v. Khawaja Muhammad Nazar (2004 CLC 289) at page 292 a Single Judge of this Court has observed as follows:--

"Finally it was urged by Mr. Tariq that the appellant did not receive any notice from the respondent to attorn to him and therefore he was justified in depositing the rent in M.R.C. and could not be ejected on account of default. Without going into the factual controversy it might be sufficient to say that filing of the ejectment application itself having been treated as notice under Section 18, there was no justification for the appellant in not tendering rent to the respondent after notice of the application as served upon. His failure to pay rent thereafter clearly amounts to default."

As regard of question of personal use of the shop by the petitioner, it was suggested to petitioner in his cross-examination that he owns another shop in respect of which he has filed another ejectment case but at the same time the petitioner who has stated in his evidence that the shop is required by him for use as office for managing and running his business i.e. of Kohinoor Cotton and Ginning Factory has not been disputed. It may be noted that Section 15-A of the Ordinance provides ample security to the tenant in case the landlord fails to put the premises to his own use within one year of receipt of its possession. In case of Muhammad Bashir v. Sakhawat Hussain (1991 SCMR 846), the apex Court at page 848 has observed as follows:--

"Under Section 15 of the said Ordinance landlord can apply for eviction of tenant on the grounds mentioned therein including the ground that the premises are required by landlord is good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. The only requirement in this provision for landlord is to show that he requires the premises in good faith. This landlord has stated very clearly in unequivocal terms in the application which he has filed for ejectment as well in his statement on oath in the Court of Rent Controller. According to the landlord he is jobless since 1972/73 and previously he was selling medicines at Sukkur and he has a licence for such business. There appears no legal impediment in the way of the landlord if he wants to open a medical store and do business in spite of the fact that he is rich and has no children. The landlord can do whatever he likes with his property and if interest of tenant is involved because property of landlord is rented out to him, then his rights are protected under the rent law. If landlord does not contravene provisions of the rent law, which allows him the relief, then it is not open to the tenant, and even for that matter to the Court, to make a comment as to what the landlord should do or should not do. In the instant case the landlord has stated on oath that he wants to open a medical store and for that purpose he needs shop in this case as well as adjoining Shop No. 7 for which he had initiated proceedings separately. Since both shops are adjacent to each other it appears that the landlords wants to obtain both these shops in order to open a medical store for which he has a licence and also previous experience. This assertion as such of landlord is not seriously challenged by the tenant nor its credibility tarnished in the cross-examination. So far affordability of landlord is concerned tenant does not dispute that landlord is rich and resourceful and can open a big medical store for which 2 shops could be required. Lack of cross-examination on this point suggests that this assertion is not disputed or doubted by the tenant. It would not be out of place to mention here that to guard interest of tenant it is provided in Section 15-A of the said Ordinance that if landlord after obtaining possession of demised premises from the tenant on the ground of personal requirement, relates it to another tenant or puts it to a use other than personal use within one year of such possession, then landlord would be punished with a fine which shall not exceed one year's rent and evicted tenant is allowed under the law to apply to the Controller for an order of restoration of disputed premises to him."

In the instant case the shop in question is adjacent to the shop for which the petitioner has filed another rent case.

It may be noted that though there is concurrent orders of the two Courts below against the petitioner but as discussed above both the orders are based on complete misreading of the evidence and non-reading of evidence in disregard of the established law having application to the case. The Courts below in not considering the record of the case in its true perspective have all together failed to exercise jurisdiction of doing justice between the parties in accordance with law. The Courts blow have ignored the material and admitted evidence and law that was to be considered in deciding the controversy raised in the matter. This Court in exercise of its Constitutional jurisdiction has to foster the administration of justice to turn down the decisions which are manifestly, arbitrary, capricious and based on non-considering of established law. The Courts below have not done justice between the parties by their orders as the petitioner has established on record that the Respondent No. 1 has defaulted in payment of rent and also that the shop is required by him for his own use. The orders of both the Courts below are consequently held to be without lawful authority and of no legal effect and are set aside.

This Constitutional Petition is therefore allowed and the ejectment application filed by the petitioner is allowed with direction to the Respondent No. 1 to vacate and hand over the premises of the shop in question to petitioner within sixty days of the date of this judgment.

(R.A.) Petition allowed

PLJ 2005 Karachi 105

Present: Gulzar Ahmed, J.

Mst. LAL KHATOON and 8 others--Appellants

versus

Mst. SAHATI and 2 others--Respondents

C.M..A. No. 4 of 1999, hears on 11.10.2004.

(i) Review--

----A review is a proceeding which exists by virtue of statute--It is in nature of new trial of issue previously tried between parties--The cause of action brought into court again for trial by new petition--Proceeding in same respect resembles a writ of error and also a new trial. [P. 109] A

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

----Ss. 114, 115(4) & O.XLVII, Rr. 1 & 7--Review--Proceedings of review were independent and separate proceedings from the one in which it had arisen and finality that was attributed to the order, judgment and decree under revision, would not be so attributed to order, judgment or decree that as passed in consequence of review and such order, judgment or decree on review would independently be open to incidence of appeal if it was so provided in statute--Concept that proceedings of review were an ancillary proceedings in main order or that finality to order as envisaged in terms of provisions of sub-section (4) of S. 115, C.P.C. would override provisions of O.XLVII, Rr. 1 and 7, C.P.C., in undertaking exercise of review, had to confine itself to limited enquiry enjoyed within four corners of O.XLVII, R.1, C.P.C. and not to embark upon opening of case on merits and deciding it afresh. [Pp. 109, 110 & 111] B, C & D

PLD 1967 Lah. 439; PLD 1981 SC 94, ref.

Mr. Mobeen Khan, Advocate for Appellants.

Mr. Abdul Rasheed Kalwar, Advocate for Respondents.

Date of hearing : 11.10.2004.

Order

By this appeal the order dated 10.1.1999 passed by the learned III-Additional District Judge, Mirpur Mathelo in Civil Revision No. 15 of 1997 is challenged by the appellant whereby the review application filed by respondent was allowed.

Brief facts of the matter are that Respondent No. 1 Mst. Shai filed a suit on 2.2.1981 for declaration and permanent injunction valued at Rs. 6.00 against Muhammad Shafi her husband the only defendant, claiming that she is in physical possession and enjoyment of agricultural land Bearing S. Nos. 28(2-06), 251(1-16), 263/2(0-26), 291/2(2-04), 385(3-19), 615(1-12) and 643(2-12) situated in Deh Chijjan Taluka Mirpur Mathelo District Sukkur (Now District Ghotki) to the extent of 50 paisas share and she pays land revenue to the Government in her own right since last 20 years and that defendant has no interest whatsoever in the land and that her possession is hostile, adverse, notorious and continuous for over 12 years, and therefore her title is perfect by the law of adverse possession. It is alleged that on 29.1.1981 defendant for the first time claimed the suit-land as his own and denied the title of the Respondent No. 1 and threatened to eject her by force.

That on 12.3.1981 defendant filed his written statement in which he admitted all the claims made by the Respondent No. 1 in her suit. On the very day of filing of written statement the trial Court passed the order that in view of admissions made by the defendant in the written statement the suit as prayed is decreed with no order as to costs. Decree followed in terms of this order. The present appellants claiming themselves to be the legal heirs of defendant and co-sharers in the land, on 16.5.1996 filed an application under Section 12(2), C.P.C. on the ground that the decree has been obtained by fraud and misrepresentation and prayed for setting aside of the decree. The respondents filed objections. The parties also led evidence.

Admittedly no documents were produced by any of the witnesses. The trial Court after hearing the Advocates of the parties passed order dated 15.5.1997 by which the application under Section 12(2), C.P.C. was dismissed. The appellants challenged the order of the trial Court by filing Civil Revision No. 15 of 1997. The revisional Court after hearing the parties passed judgment dated 19.2.1998 by which the revision application was allowed and the application under Section 12(2), C.P.C.. was remanded to the trial Court for deciding it in accordance with law. Respondents thereafter made an application under Section 114 read with Order XLVII, Rules 1 and 2 and Section 151, C.P.C. before the revisional Court for review of its judgment dated 19.2.1998. The revisional Court after hearing the parties passed order dated 4.1.1999 by which the review application was allowed and the judgment dated 19.2.1998 was recalled and consequently the revision application was dismissed. The ground on which the review was granted was that the revisional Court has no power to condone the delay in filing of the revision application and the revision application being out of time was liable to be dismissed.

Learned counsel for the respondents has challenged the maintainability of appeal on the ground that the impugned order is in the nature of an order disposing of the revision application and thus not appealable. In support of his submission he has cited the case of Muhammad Rafique vs. Mst. Rashida Begum 1979 CLC 823. The counsel for the appellant has however maintained that the appeal is maintainable and competent in view of the specific provisions of Section 104 read with Order XLIII, Rule 1(w), C.P.C. As the question regarding the very maintainability of this appeal has been raised, I propose to dispose of this question (sic) judgment which is of a learned Single Judge of the Lahore High Court in which the appeal was filed in somewhat similar circumstances as in the present case which was found to be not maintainable for the reason that the order by which the District Judge as revisional Court has reviewed his earlier order was an order passed under revisional jurisdiction in terms of Section 115, C.P.C. and was not appealable and secondly the appeal was not competent because it was not covered by the provision of Order XLVII, Rule 7, C.P.C. On the point of maintainability of the appeal learned Judge at page 827 has observed as follows:--

"It is therefore, clear that while exercising the ancillary jurisdiction under Order XLVII, Rule 1 read with Section 115, C.P.C., the learned Additional District Judge was still exercising the revisional jurisdiction. By the order which was reviewed he had allowed the revision petition but by the order in review he had dismissed the same. In this view of the matter, the finality given by Section 115 to his orders remains intact nor the High Court, whose jurisdiction in a case of which its cognizance has been taken under Section 115 by the District Court is ousted, can have any jurisdiction to interfere with or set aside an order, or to adjudicate upon the incorrectness of the order refusing to exercise revisional jurisdiction. The refusal to exercise revisional jurisdiction on the part of the learned Additional District Judge amounts to confirming the order of the trial Court to exercise of its revisional jurisdiction. The provisions of Section 115, C.P.C. conferring finality to the order of the District Court and excluding the jurisdiction of the High Court to sit in judgment over it thus override the provision of Order XLVII, Rule 1(w). If a different view is held, that would lead to the serious anomaly which has already been pointed out. It has always been the intention of the Legislature not to allow any interference against the revisional order of the High Court also. Thus there is a specific bar under clause 10 of the Letters Patent of the High Court against an appeal to the Bench of two Judges or more from an order of a Single Judge passed in exercise of revisional jurisdiction. The same finality has been granted by Section 115 to the revisional order of the District Court."

In arriving at the above conclusion regarding maintainability of the appeal, the learned Judge has relied upon the case of Muhammad Naeem Ullah Khan v. Ihsan Ullah Khan AIR 14 All 226, Muhammad Hassan Khan v. L. Bikhari Lal and others (AIR 1950 All 537) and Ghulam Hussain v. Ghulam Mustafa (PLD 1967 Lah. 439). All the above three cases related to an order passed in review by an appellate Court, wherein the consensus opinion appears to be that the matter has to be considered on the basis of main jurisdiction being exercised by the Court wherein ancillary matter later on arose and once the exercise of jurisdiction with regard to main case has been ascertained, rest of the proceeding though regulated by different provision on the subject remain to be proceeding in the same jurisdiction under which the case has come up. It may be noted that such consensus view referred to above was not accepted by the Hon'ble Supreme Court of Pakistan in the case of Muzzafar Ali v. Muhammad Shafi (PLD 1981 SC 94) wherein at page 96, the Court has observed as follows:--

"Learned counsel referred to Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (PLD 1966 Lah. 53) which was followed by the Letter Patent Bench in this case. He laid emphasis on a passage which exists at page 58 of the report and is to the following effect:--

"When acting as a Appellate Authority under sub-section (4) of Section 15 of the Ordinance the High Court is to deal with the appeals in accordance with the provisions of Order XLI or Order XLII of the Code, as the case may be. That being so, it is clear that any orders passed in these appeals would be subject to review in the light of the provisions contained in Order XLVII of the Code of Civil Procedure. An order passed in review is an order made by the same authority and must be deemed to be in continuation of the previous order which is sought to be reviewed, and therefore, the power of review cannot be said to come into conflict with the idea of finality embodied in sub-sections (4) and (5) of Section 15 of the Ordinance."

Learned counsel for the respondent adopted the reasoning given in the above passage, to show that as held therein a right of review should be held to exist in the High Court. However, with profound respect, we are of the opinion, that the above reasoning is not legally correct, vis-a-vis the subject-matter under examination. Taking up the first reasoning, it states that as a petition for review, according to the High Court procedure and practice, is to be heard in that Court by the same Judge, therefore, this incident or circumstance was sufficient to vest in the said Judge under the Ordinance. This argument, respectfully speaking, deals more with the procedure as to how a review petition, if competent, is to be heard or disposed of, but cannot be a basis for holding that by itself it amounts to a conferment of a jurisdiction of review qua the types of cases involved herein. The jurisdiction to review must flow from some express provision of a statute, and as there is no such provision which confers jurisdiction on High Court to review orders passed by it in Second Appeals under the Ordinance, the fact that how the High Court otherwise disposes of various reviews in general cannot be a deciding factor in the overall context of this case.

The second reasoning given in the above passage is that as an order passed in review is---(or to be more precise is to be deemed to be)--in continuation of the main Second Appeal, therefore, it follows that if the jurisdiction to hear the Second Appeal existed then the jurisdiction to hear its review must also continue to exist, implying thereby that the process of review is nothing but a continuation of the hearing of the Second Appeal itself. With due respect, this reasoning is also not correct. Aiyer in his Law Lexicon (1940 Edn.), page 1126, while describing a review states that---

"A review is a proceeding which exists by virtue of Statute. It is in the nature of a new trial of the issue previously tried between the parties. The cause of action being brought into Court again for trial by new petition. The proceeding in some respect resembles a writ of error and also a new trial......"

To the same strain is the view expressed in Carpus Juris Secundum at page 339, where it is stated that--

"The proceeding by way of writ or review, or, so it is sometimes called, a petition for review, or action of review, or a review, is statutory remedy unknown to the common law. It is a civil action or proceeding, and is in its nature a new trial of the issues previously tried between the parties. In some respects it resembles, although it is also distinguishable from, a writ of error, as considered in Appeal and Error, and new trial, as discussed in New Trial. It is separate proceeding from the action sought to be reviewed, commenced by a writ which is a new process, as considered infra, and is in one aspect a new and independent proceeding, and not merely a new hearing on an existing proceeding, or a continuation or further step in the action sought to be reviewed."

The above discussion will show that the assumption on which the above passage was based, namely that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall."

The rule thus laid down by the Hon'ble Supreme Court of Pakistan is that the proceeding of review is an independent and separate proceeding from the one in which it has arisen and the finality that is attributed to the order, judgment and decree under review will not be so attributed to the order, judgment or decree that is passed in consequence of the review and such consequential order, judgment or decree on review will independently be open to the incidence of appeal if it is so provided in the statute. So the concept that the proceeding of review is an ancillary proceeding in the main or that the finality to the order as envisaged in terms of the provision of sub-section (4) of Section 115, C.P.C. will override the provision of Order XLVII, Rule 1 and Order XLVII, Rule 7, C.P.C. apparently is not supportable in view of the rule laid down by the Hon'ble Supreme Court.

Besides also, it may be noted that in undertaking the exercise of review, the Court has to confine itself to the limited enquiry enjoined within the four corners of Order XLVII, Rule 1, C.P.C. and not to embark upon opening of the case on merit and deciding it afresh,. Consequently, in dealing with the appeal as provided in Order XLIII, Rule 1(w), C.P.C. the relevant enquiry of the Appellate Court will also remain confined to the limited four corners of the provision of Order XLVII, Rule 1, C.P.C. and not to merits of the case itself. Further Rule 10 (iv) of the Sindh Chief Court Rules (OS) provides for disposal by Single Judge appeals from orders under Section 104, Order XLVII. Rule 1, C.P.C. Thus no redundancy can be attributed to the provision of Order XLVII, Rule 1(w) C.P.C. when an order is passed by revisional Court under Rule 4 of Order XLVII granting an application of review. I am therefore of the respectful opinion that the law as laid down in Muhammad Rafique case (supra) is not a good law and I find the appeal to be maintainable.

Having reached the above conclusion, it has to be seen whether the appeal is competent. It may be seen that the review has been allowed merely on the ground that the law did not provide for condoning the delay in filing the revision application and it being filed beyond 90 days was liable to be dismissed. The review therefore appears to have been allowed on the ground of mistake or error apparent on the face of record. In the present case, the impugned order shows that the review Court has considered the earlier judgment dated 19.2.1998 to be based on mistake or error of law. Such an order of review in terms of Rule 7 of Order XLVII, C.P.C. is not appealable. Learned counsel, for the appellant has contended that limitation for review is 90 days and the respondent's application for review was filed after 90 days of judgment dated 19.2.1998. To this objection, the learned counsel for the respondent has submitted that the review application was filed with certified copy of the judgment dated 19.2.1998 and if time taken in obtaining of certified copy is excluded, the review application was in time. In support of this submission he has relied upon Dada Steel Mills v. Government of Balouchistan (1986 SCMR 1602). In the present case the judgment was announced on 19.2.1998 and certified copy of which was supplied on 25.5.1998 and the review application was filed on 26.5.1998. Section 12(2) of the Limitation Act specifically provides for exclusion of time for obtaining of certified copy of judgment for filing of review. In this view of the matter, I find that the review application was in time and appeal on this ground is also not competent.

Learned counsel for the appellant has submitted that if the appeal is found to be not maintainable or not competent, it may be converted into Constitutional Petition. On perusal of impugned judgment passed on review application, the review Court has taken a categorical stand that revision application filed beyond 90 days is not maintainable and the Court has no power to condone the delay in filing of the revision application. In my view this point needs to be considered in the light of the case-law laid down by the superior Courts which unfortunately has not been referred in the impugned judgment.

I therefore consider this case to be fit one to be converted into Constitutional Petition. Order accordingly. As the matter will be heard by a Division Bench of the Court, the appellant is directed to supply further copies to the office and also to pay requisite Court-fee. This compliance be made within one month and thereafter the office will fix the matter in Court as early as possible.

(R.A.) Order accordingly

PLJ 2005 Karachi 111

Present: Zia Pervez, J.

JAGSI--Petitioner

versus

Shr. MARWAN and another--Respondents

C.P. No. S-81 of 2004, decided on 29.11.2004.

(i) Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Scope--Findings of trial Court were to be interfered only in case of gross irregularity or jurisdiction error.

[P. 116] C

(ii) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 2(b), 5 & Sched.--Matters involving Hindu citizens--Jurisdiction of Family Courts--Family Court constituted under West Pakistan Family Courts Act, 1964, as competent to adjudicate upon the matters pertaining to divorce claimed on strength of customs; and High Court was competent to adjudicate upon matters involving Hindu citizens of Pakistan to extent specified in Schedule to the Act which included the cases pertaining to divorce. [Pp. 112 & 116] A B, & D

PLD 1982 FSC 48; 1991 SCMR 681; PLD 1978 Kar. 336; PLD 1985 Kar. 362; 1985 CLC 2478; 1996 CLC 1963; PLD 1998 Kar. 42; AIR 1968 SC 142; 1981 CLC 195 & 1995 SCMR 1419, ref.

Mr. Jagdesh R. Mullani, Advocate for Petitioner.

Mr. Taj Muhammad Kaimkhani, Advocate for Respondent No. 1.

Mr. Masood A. Noorani, Addl. A.-G.

Mr. Hassan Mehmood Baig and Jhamat Jethanand, Amicus Curie.

Date of hearing : 29.11.2004.

Order

This petition is directed against the impugned judgment of the learned Joint Civil and Family Judge, Mirpurkhas in Family Suit No. 46 of 2003 dated 20.1.2004 dissolving the marriage.

1. The suit for dissolution of marriage was instituted by Respondent No. 1 on the ground that she belonging to Hindu Menghwar community was subject to custom providing for dissolution of marriage. She sought dissolution on the ground of cruelty and for not providing maintenance. After expulsion respondent left the house of petitioner while the fact of belonging to Menghwar community, custom of dissolution of marriage and the marriage itself were admitted by the petitioner in his written statement. The matter was contested before the learned Family Judge on factual aspects of the controversy. The case was ultimately disposed of by the impugned judgment in favour of respondent.

2. The contentions raised by Mr. Jagdesh R. Mullani are that the parties belonging to the Hindu community were not subject to the jurisdiction of the Family Court constituted under the Family Courts Act, 1964. As the point required consideration Mr. Jhamat and Mr. Hassan Mehmood Baig learned Senior Counsel of the Court were appointed as Amicus Curiae vide order dated 27.9.2004.

3. The second contention of Mr. Jagdesh R. Mullani learned counsel for the petitioner is that the Family Law Ordinance makes references to the Muslim Laws, provides for matter exclusively within the domain of Muslim Personal Law and as such would apply to Muslim marriages and not those attracting the Hindu Law. He has referred to the provisions of sub-sections (4)(10) of the said Act and contended that in view of the provisions of Section 5 and Family Courts Act, 1964 is a mere procedural Act and cannot be invoked to adjudicate the case of the respective parties. To elaborate his above contention, he has placed reliance on the promulgation of an Act of dissolution of marriages as 1955 in India. He has also placed reliance on the case of Sultan Ahmad v. Mst. Mahr Bhari (PLD 1982 FSC 48), Masood Ahmed Malik v. Mst. Fouzia Farhana Quddus (1991 SCMR 681), Mrs. Daphne Joseph v. Malik Eric Roshan Khan (PLD 1978 Karachi 336) and Mulchand v. Smt. Indra (PLD 1985 Karachi 362).

4. Mr. Taj Muhammad Qaimkhani, learned counsel for the Respondent No. 1 opposed the petition and contended that no objection as to the jurisdiction of the Court was taken up before the learned trial Court, as such the question of jurisdiction was neither discussed nor any issue was framed in this regard. According to him, the parties have submitted to the jurisdiction of the Family Court and, therefore, by submission of parties without any objection, the Court had jurisdiction to adjudicate and decide the matter. He has placed reliance on the case of Ghulam Sarwar v. District Judge (1985 CLC 2478), Mubashar Ahmad v. Talat Khurshid (1996 CLC 1963) and Ramdas v. Bernadat (PLD 1998 Karachi 42).

5. The learned Amicus Curiae have rendered their views and before proceeding further, I may place on record my appreciation for the valuable assistance rendered by them in arriving at the conclusion.

6. Their views are similar. Mr. Hassan Mehmood Baig learned Amicus Curie has, while agreeing with the view of Mr. Jhamat Jathanand, contended that there are three sources of Hindu Law as enunciated in paragraphs 8 and 15 of the principles of Hindu Law by Mulla, Ninth Edition. These are (1) Sruti (2) Smriti and (3) Custom while the details of the respective sources as contained in Section 15 specifically provides that in case of conflict a custom prevails over the text of the Sruti. Reference to Section 8 may be made, it reads as follows:--

7. Sources of Hindu Law.--The three main sources of Hindu Dharma or law are (1) the Sruti, (2) the Smriti, and (3) Custom:--

(1) "Sruti" means literally, that which was heard. The Srutis are believed to contain the very words of the deity, and they include the four Vedas, but they contain very little of law.

(2) "Smirit" means, literally, that which was remembered. It is the recollection handed down by the Rishis, or sages of antiquity, of the precepts of God. The Smritis constitute the principal source of law. The term Dhamra Shastra, literally, teacher of law, comprehends both Srutis and Smirits, but it is often used to designate the Smritis alone.

The three principal Smritis are--

(i) The Code of Institutes of Manu, complied some time between 200 B.C. and 200 A.D.

(ii) The Code or Institutes of Yajnavalkya, written about the 4th century, A.D. The Mitakshara is the leading commentary upon this Code.

(iii) The Code or Institutes of Narada, written in the 5th or 6th century A.D.

(3) Customs are supposed by some writers to be based on lost or forgotten Sruti, and by others, on lost or forgotten Smriti."

1. The requisite for such customs, the essentials for valid customs, redeemed customs proof and validity are discussed in subsequent Sections 16 to 20 respectively.

2. Mr. Masood A. Noorani, learned Additional A.G. has also supported these views and the case-law submitted.

3. The question was also examined by the Supreme Court of India in case of Gurdit Singh v. Angrez Kaur and others (AIR 1968 S.C. 142) and while admitting the institution and significance of custom as a source of the Hindu Law in the elaborate discussion, the practice of different customs in different areas and castes have also been recognized.

4. Having examined the question of custom of divorce in the light of the above legal position as well as the admission of the parties before the Court, custom of divorce was specifically pleaded in paragraph 1 of the application that applicant belonging to Hindu Menghwar community, where custom of dissolution of marriage existed. This was admitted in the written statement. This point does not require any further elaboration. The existence of the institution of divorce by custom having the force of personal law is acknowledged to be in practice by the Hindu Menghwar community.

5. The next question as to the scope of the jurisdiction of Family Court constituted under the Family Courts Act, 1964 came for examination before this Court in the case of Mrs. Daphne Josehp v. Malik Eric Roshan Khan (PLD 1978 Karachi 336), after the powers of dissolution of Christian marriages earlier available to the District Courts were conferred upon the Family Courts. The Division Bench of this Court concluded that the case involving divorce under Divorce Act, 1869 was triable by the Civil Court.

6. In the case of Sultan Ahmed v. Mst. Mehr Bhari (PLD 1982 FSC 48), while examining the validity of the powers of appeal in pursuance to the provision of Section 14(2) of the Family Courts Act, the Full Bench of the Hon'ble Federal Shariat Court dismissed the petition on the ground that in the earlier decided case of Federation of Pakistan v. Mst. Farishta and the subject-matter was beyond the scope of jurisdiction of the Federal Shariat Court.

7. In the case of Mulchand v. Smt. Indra and others (PLD 1985 Karachi 362), Justice Tanzil-ur-Rehman, J. (as his Lordship then was) examined the objection under Section 5 of Family Courts Act, 1964 and its application to the Hindu Citizens of Pakistan. It was observed that "I find that the provisions of Section 5 of the Family Courts Act, 1964 do not exclude from its ambit cases relating to marriage and family affairs of non-Muslims including Hindus. The Family Courts Act is a procedural statute and does not come into conflict with the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. The Act of 1964, in every sense of the term, has brought about only procedural change and has not affected any substantive right, muchless the right to separate maintenance of Hindu married women as provided in Act XIX of 1946 to show or even infer from the scheme of the said Act by which it could be said to be inapplicable to Hindus. Merely the use of the expression, "subject to the provisions of Muslim Family Laws Ordinance, 1961" does not take away the jurisdiction of the Family Courts to try and decide the matter relating to the maintenance of a Hindu wife or the minor. The Central Act XIX of 1946 does not, in the circumstances of the case, have an overriding effect on Family Courts Act which is a provincial statute. Reference may be made to a number of cases reported as Mrs. Daphne Josheph v. Malik Eric Roshan Khan, Adnan Afzal v. Capt. Sher Afzal and Safdar Bhatti v. Mst. Rozi Jan."

8. The same view found favour before the two Single Benches of the Lahore High Court in case of Mubbashir Ahmed v. Talat Khurshid (1996 CLC 1963) and in Naeem Ahmed v. Mst. Nuzhat Almas (1981 CLC 195), the provisions of Family Courts Act, 1964, after examining the Section 5, were held to be applicable to the cases of non-Muslims, who were Qadianis.

9. The scope of application of the provision of Family Courts Act, 1964 in a case of Talaq amongst two Muslims holding American citizenship came for examination before the Honourable Supreme Court in the case of Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus (1991 SCMR 681) and the Honourable Court has observed that a close examination of the provisions of the Family Courts Act, 1964 and those of the Muslim Family Laws Ordinance, 1961 shows that they do not operate exactly in the same field and that the scope of the Family Court Act, 1964 is wider than that of the Muslim Family Laws Ordinance, 1961. In our view, the effect of the words in Section 5 that the Family Courts shall have the jurisdiction to entertain suits relating to dissolution of marriage, jactitation of marriage etc. but subject to the provisions of the Muslim Family Laws Ordinance, 1961 imply only that where there is an inconsistency between Muslim Family Laws Ordinance, 1961 and the Family Courts Act, 1964, the provisions of the Muslim Family Laws Ordinance will prevail and shall be given effect to in their pristine form and no more. They do not have any other effect and the provisions of other laws are not affected thereby. Accordingly, suits of this nature filed by the parties other than Muslim citizens of Pakistan if otherwise competent under any other law can be entertained but will be heard and tried not in accordance with the provisions of the Muslim Family Law Ordinance, but by the proper law applicable to them. Thus, under the Civil Procedure Code, 1908 a Civil Court has jurisdiction to entertain and try a suit if the parties, at the commencement of the suit, and residing within its local limits (section 20, C.P.C..) Accordingly, any party irrespective of the question whether he is a Muslim citizen of Pakistan or not an institute a suit, including a suit for jactitation of marriage, before a Court within whose local limits the defendant is, for the time being residing. If the parties are Muslim citizens of Pakistan, the suit will be tried and determined in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. But if they are not Muslim Citizens of Pakistan the suit can still be entertained but it will be tried and determined by the proper law of the parties; in the former case by the Family Court while in the later case by the ordinary Civil Court of competent jurisdiction".

10. Masood Ahmed Malik's case (supra) also pertains to the dissolution of marriage between two Muslims who had migrated to Pakistan and acquired two different nationalities abroad and the Honourable Supreme Court was pleased to observe that while the provisions of Family Courts Act were attracted to the citizen of Pakistan. Foreign citizen though Muslim may approach the Civil Court, however it was observed that, in that case, the same Court was exercising the power of Family Court as well as Civil Court and, therefore, the Court was competent to deal with the matter.

11. For the above reasons, the Family Court constituted under the Family Courts Act, 1964 are competent to adjudicate upon the matters pertaining to divorce claimed on the strength of customs. In Constitution matter, the findings of the trial Court are to be interfered only in case of gross irregularity or jurisdictional error as held by the Honourable Supreme Court in the case of Mst. Nadira Shahzad v. Mubashir Ahmed (1995 SCMR 1419).

12. The practice of divorce exists, it is recognized and practised under the prevalent Customs of Hindu Dharma. Though it may vary from place to place and from community to community. The existence of the institution of divorce by way of custom having the force of personal law is admitted to be in practice by the Hindu Menghawar community. The Family Courts constituted under the Family Courts Act, 1964 are competent to adjudicate upon the matters involving the Hindu citizens of Pakistan to the extent as specified in the schedule to the said Act, which includes the cases pertaining to divorce. The contentions raised on behalf of the petitioner, therefore, have no force.

13. This petition being devoid of any merit is dismissed with costs.

(R.A.) Petition dismissed

PLJ 2005 Karachi 116

Present: Muhammad Sadiq Leghari, J.

PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT

CORPORATION--Petitioner

versus

KARACHI PORT TRUST--Respondent

Suit No. 956 of 2000, decided on 26.10.2004.

(i) Transfer of Property Act, 1882 (IV of 1882)--

----Ss. 41--Karachi Port Trust Act (VI of 1886), Ss. 4 & 87--Land Control (Karachi Division) Act (XI of 1952), S. 155--Specific Relief Act (I of 1877), Ss. 42 & 56--Locus Standi--Transfer by obstensible owner, principle of--Validity--Land owned by defendant was acquired by Karachi Development Authority and same was changed into plots--Karachi Development Authority leased out the plots to different persons and plaintiff was also one of such lessees--Plaintiff had constructed boundary wall around his plot and had not completed construction--Defendant issued notice to plaintiff for removal of his encroachment over the plot--Contention of plaintiff was that after acquisition of land, defendant had nothing to do with the plots leased out by Karachi Development Authority--Plea raised by defendant was that transfer in favour of Authority was incomplete--Validity--After delivery of possession of land by defendant to Karachi Development Authority in year, 1965--Authority had allotted the plot to plaintiff and received consideration thereof--When hundreds of persons were being allotted the plots by Authority as owner it could legitimately be inferred that plaintiff got allotment in good faith, taking care about competency of Authority to transfer the same--Even if plea of Karachi Port Trust about final transfer of land was accepted, then allotment of plot in question in favour of plaintiff was a transfer by ostensible owner and no essential element of S. 41 of Transfer of Property Act, 1882, was wanting--Defendant had no locus standi to resume plot in question on the ground of invalidity of its allotment--Only Karachi Development Authority could take decision about allotment in accordance with law and terms of allotment--Allotment of plot in question to plaintiff was not affected by decision of Trust and possession of allottee over it could not be treated as unauthorized--Notice issued by defendant was declared without legal effect and was restrained from interfering with the possession of plaintiff over plot in question--Suit was decreed accordingly. [Pp. 121 & 122] B & C

PLD 1975 Kar. 373 and KDA 1981 CLC 1260 rel.

(ii) Transfer of Property Act, 1882 (IV of 1882)--

----s. 41--Incomplete transfer--Scope--Essentials--Transfer as mentioned in S. 41 of Transfer of Property Act, 1882, includes incomplete transfers also, as scheme of S. 41 of Transfer of Property Act, 1882, is based on a principle--Not providing protection to incomplete transfers by ostensible owner fulfilling all essential requirements of S. 41 of Transfer of Property Act, 1882, would be absurd. [P. 121] A

Mr. Mushtaq A. Memon, Advocate for Plaintiff.

S. Yousuf Ali, Advocate for Defendant.

Date of hearing : 24.11.2004.

Judgment

The facts of present case are that in June, 1965, Karachi Development Authority (KDA) acquired from KPT 638 acres and 1590 sq. yds. of land in connection with Kehkeshan Clifton, Scheme-V. The agreed rate of the land was Re. 1 per sq. yd. The land went in the possession of KDA which prepared the lay-out plan of Scheme V and then allotted/leased out plots to various persons. A plot measuring one acre (4011.11 sq. yds) from the area reserved for Public Building was allotted to PICIC for construction of its office building. The price fixed was of commercial area. It was at the rate of Rs. 400 per sq. yd. On 27.4.1983 allotment/possession order was issued in transferee's favour and then possession of the plot was physically delivered to them on 15.8.1983.

1. Under the terms of allotment PICIC had to complete the construction of its office building within two years from the date of the possession order. However, that time was later on extended.

2. Lastly, on failure to start and complete the construction of office building by PICIC, the allotment was cancelled by KDA. The cancellation order was challenged by PICIC through Suit No. 384 of 1991 which was later on withdrawn on 21.5.1998 after agreement between PICIC and KDA that two years further time for completing the construction shall be allowed to PICIC after it pays ground rent with effect from 1.7.1995 and non-utilization fund with effect from 1.1.1994. PICI paid those charges in October, 1998. Obviously, the period of two years commenced from the date of that payment.

3. Before expiry of the period allowed to PICIC for construction KPT and KDA entered into correspondence relating to non-payment of part of the price of land by KDA. Lastly, Board of Trustees of KPT passed a resolution withdrawing the offer of the transfer of KPT land to KDA. The decision was communicated to Secretary KDA through letter death 9th June, 2000 by Estate Manager KPT. Thereafter, Estate Manager, KPT issued notice dated 20.7.2000 under the Land Control (Karachi Division) Act, 1952 to PICIC mentioning therein that KPT Board had withdrawn offer of transfer of the land to KDA and they (PICIC) were occupying KDA's land unauthorisedly and had raised boundary wall thereon without lawful authority, therefore, the encroachment shall be removed within seven days else the boundary wall shall be demolished at their (PICIC's) risk and cost.

4. After replying the notice through their Advocate PICIC filed present suit pleading therein substantially that after acquiring the land from KPT, KDA had validly allotted the plot to them and they had paid the occupancy charges and then non-utilization funds and ground fee. They further pleaded that they being valid allottee of the plot were possessing it with right to raise construction thereupon, and KPT could not resume the plot and treat their possession as unauthorised one. They prayed as under:--

(a) Declaration that the plaintiff is owner of subject Plot Bearing No. PB-1, Block-6, Scheme No. 5, Clifton, Karachi.

(b) Declaration that the Notice dated 20th July 2000 issued by Defendant No. 2 is without lawful authority and of no legal effect;

(c) Permanent injunction restraining the defendants, their subordinates, employees, agents etc., from interfering with plaintiff's possession, enjoyment and use of subject Plot Bearing No. PB-1, Block-6, Scheme No. 5, Clifton, Karachi;

(d) Costs of the proceedings; and

(e) Any other, additional appropriate relief as may be considered proper by this Hon'ble Court.

1. In their written statement the defendants i.e. KPT and its Estate Manager admitted the position about acquiring of land including the plot in question by KDA with their approval, for Scheme V Clifton Karachi. They also did not deny the allotment of plot in question to the plaintiff and payments by the allottee. Delivery of possession to the allottee with right to raise construction was also not disputed. However, they claimed that the title over the land still vested in KPT as no such deed was extended and signed, therefore, KDA had not acquired marketable title and they (KPT) could withdraw their offer to transfer the land and resume its unbuilt portion. They also pleaded that after the withdrawal of the offer the plaintiff's occupation over the plot in question and construction of compound wall were unauthorised, therefore, the Defendant No. 2 had competently declared them unauthorized and issued notice to PICIC requiring them to remove the encroachment. They also raised objections that no legal cause of action for filing the suit and accrued to the plaintiff and the suit was hit by Sections 42 and 56 of Specific Relief Act; Sections 4 and 87 of the KPT Act and Section 15 of the Land Control (Karachi Division) Act, 1952.

2. Following issues were cast on the pleadings of the parties:

(1) Whether any cause of action has accrued to the plaintiffs against the Defendant for the present suit?

(2) What is the effect of allotment of Plot No. PB-1, Block-6, Scheme No. 5, Clifton, Karachi by KDA in favour of the plaintiff?

(3) Whether the Plaintiff has encroached upon any land belonging to the Defendants?

(4) What should the decree be?

1. Plaintiff examined Abubakar Siddique and Syed Liaquat Hussain who produced bulk of documents. Defendants examined Bashir Ahmed and Badruduja Qureshi. They also produced a big number of documents specially the letters forming part of the correspondence between KPT and KDA authorities.

2. After hearing the parties counsel and examining the material, I proceed to decide the issues. For the sake of convenience I shall first take up Issues Nos. 2 and 3 and decide them together.

Issues Nos. 2 & 3:

1. All the material facts and events including the acquisition of KPT's land measuring 738 acres and 1590 sq. yards by KDA; fixation of its price and delivery of possession thereof to KDA are admitted. Preparation of layout plan of Scheme-V, by KDA and then allotment and lease of the plot to various persons are also not disputed. The allotment of plot in question measuring I acre (4011.11 sq. yards) to PICIC, the plaintiff for construction of its office building is also an accepted fact. Possession of the plot in question was delivered to the plaintiff with right to raise construction thereupon. Exhibit 8 letter dated 20.4.1983 by Additional Director (CON) KDA to Managing Director, PICIC; exhibit 10 letter dated 27.4.1983 from Assistant Director-II; Amenity Plot Cell, KDA to Secretary, PICIC and exhibit 12---an acknowledgment of possession confirm the above position.

2. Without disputing the above facts the learned Advocate representing the defendant argued that since the title over the land was not transferred finally to KDA the allotment of the plot in question by it did not transfer any right in favour of plaintiff. According to him KPT being owner of the land could competently take decision of resuming unbuilt part thereof. He further contended that the plot in question being amenity plot could be allotted for construction of office building of the plaintiff.

3. Mr. Mushtaq A. Memon, learned counsel for the plaintiff argued that after transfer of the land to KDA even if it was incomplete, KPT could not take unilateral decision in respect of any part of the land, for non-payment of the balance of the price and they could only insist upon the payment. In the alternative he argued that KDA had been dealing with the land as its owner with the express consent of KPT therefore the transfers/allotments by KDA are not open to challenge by KPT in view of estoppel provided by Section 41 of Transfer of Property Act, being conscious of the fact that the transfer of the plot in question in favour of the plaintiff was yet to be completed. Mr. Memon argued that the scheme of Section 14 of Transfer of Property Act protects incomplete transactions also. According to him it will be ridiculous to leave the incomplete transfer by ostensible owner unprotected. He also argued that vendors can be compelled legally to complete the transfers. He referred to Section 55(i)(g) of Property Act.

4. The contentions of Mr. Mushtaq A. Memon, learned counsel for the plaintiff have much substance in them. However, I skip the part of arguments relating to the right of KPT to the extent of balance of price only as that controversy can be mainly in between KDA and KPt. My discussion and decision will be to the extent of plot in question. There can be no two opinions about the fact that after delivery of the possession of land by KPT to KDA in 1965 the latter had been dealing with it as its owner. It had allotted the plot in question to the plaintiff and received consideration thereof. When hundreds of persons were being allotted/transferred the plots by KDA as owner it can legitimately be inferred that the plaintiff got the allotment in good faith, tasking care about the competency of KDA to transfer the same. Thus even if the defendant's plea about final transfer of the land is accepted then also the allotment of the plot in question in favour of the plaintiff is a transfer by ostensible owner and no essential element of Section 41 of Transfer of Property Act is wanting. The transfer which the section speaks of includes the incomplete transfers also as the scheme of the Section is based on a principle. Not providing the protection to the incomplete transfers by the ostensible owner fulfilling all the essential requirement of Section 41 of Transfer of Property Act would be absurd.

5. On allotment of the plot in question to it and receiving possession thereof with right to raise construction the plaintiff has acquired right in rem in respect to the same. Decisions of this Court in cases of Noor Muhammad v. KDA, reported in PLD 1975 Kar. 373 (DB) and Ibadur Rehman v. KDA reported in 1981 CLC 1260, can be referred to in support of the view. It may be made clear that the allotment is subject to its terms and conditions and the relevant law.

6. The defendant's plea relating to the status of the plot is, on the face of it, afterthought. It is not so that KPT's Board has taken decision in respect of the individual plot. Also KPT has no locus standi to resume the plot in question on the ground of validly of its allotment. It was only KDA which could take decision about the allotment in accordance with law and the terms of the allotment.

7. In view of the above the allotment of plot in question to the plaintiff was not affected by the decision taken by KPT's Board and the possession of allottees over it cannot be treated as unauthorized one.

Issues answered accordingly.

Issue No. 1:

1. As the suit was filed by the plaintiff after receiving notice from the Defendant No. 2 under the provision of Land Control (Karachi Division) Act, 1952 the learned Advocate representing the defendants argued that the Land Control (Karachi Division) Act 1952 provides for an appeal against the decision of Defendant No. 2 before a particular special forum therefore suit filed by the plaintiff without filing an appeal against the order is not maintainable. The contention is not acceptable. In present case the notice dated 20.7.2000 issued by Defendant No. 2 under the Land Control (Karachi Division) Act, 1952 contains that the decision of Defendant No. 2 about the nature of plaintiff's possession over the plot in question was taken in consequence of the decision of KPT's Board to resume the land including the plot in question. The plaintiff in effect challenged the decision of KPT's Board and the notice has been challenged only as an act in the result of KPT's decision therefore the suit is not barred and is maintainable. The plaint, as shaped, discloses causes of action as it does contain recitals that the plaintiff's legal right has been infringed. Even in the light of the conclusion recorded above, the plaintiff had cause of action to file present suit.

The issue answered in affirmative.

Issue No. 4.

1. Although the plaintiff has prayed for declaring them owner of plot in question but evidence on record proves them to be the allottees of the plot therefore they are declared as such, the notice dated 20.7.2000 issued by the Defendant No. 1 is declared without legal effect and defendants are restrained from interfering with the possession of plaintiff over the plot in question till they have right to possess the same under the allotment in their favour. KPT the Defendant No. 1 to suffer costs.

(R.A.) Suit decreed

PLJ 2005 Karachi 122

[High Court of Sindh, Circuit Court, Larkana]

Present: Mushir Alam, J.

Mst. KOURI--Petitioner

versus

JHANDO and 3 others--Respondents

Const. P. No. 228 of 2004, decided on 11.10.2004.

Guardian and wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Minor girl--Custody of--Welfare of minor--Minor has shown affection towards petitioner--Similar affection for her mother--Respondent has left minor in most vulnerable position--Interest of minor--Minor can be accessible to both parents and maternal and paternal relations and cousins--Both parties appreciated by Court about well being of minor is understandable without entering into factual controversy--Grand father of minor has given statement in writing will ensure well being and look after of minor as long as minor attains the majority--Petitioner also undertake for looking after and will not do anything that can cause injury to welfare of minor--Petitioner would provide free access and liberty to visit minor by consent, shall be allowed to take minor, so that minor could visit her paternal relations--Respondents also bind not to take any step that could prejudice interest of minor--Parties agree and petition disposed of. [P. 123] A & B

Mr. Jai Jai Veshno, Advocate for the Petitioner.

Mr. Asif Ali Abdul Razak Soomro, Advocate for Respondents No. 2 & 3.

Mr. Mushtaque Ahmed Kourejo, Advocate for State.

Date of hearing : 11.10.2004.

Order

Pursuant to direction of this Court minor baby Guddi, daughter of petitioner and Respondent No. 1 has been produced. Minor appears to be properly maintained and well kept.

Minor has also shown affection towards the petitioner and both have embraced each other which shows that the minor has similar affection for her mother. Petitioner unfortunately now separated from Respondent No. 1 have left the minor in most vulnerable position. It is not expected that she could make sane decision to choose between either of the parents for her both may be affectionable and lovable. It is in the interest of the minor that she may be accessible to both the parents and maternal and paternal relations and cousins. It is indeed appreciable that both the learned counsel have endeavored to resolve this sorry state of affair in conducive amicable manner. Concern of both the parties about well being of minor is understandable on account of difference between the elders minor should not be made to suffer good will gesture of displayed by both the parties is appreciated by the Court. Without entering in to factual controversy, in this proceeding as it may be cause of further irritant between the parties. For the satisfaction of the respondents party Respondent No. 1 who is father of the minor is stated to have proceeded abroad in connection with his employment. Respondents Nos. 2 & 3 are brothers of the minor. In order to dispel their concern the grandfather of the minor Abdul Wahab who is present in person and Muhammad Bux Lashari Nekmard have given statement in writing that they will ensure the well being of the minor and also under took that minor's hand will not be given to any other person nor she shall be engaged and they bind themselves to keep such commitment as long as minor attains the majority. Petitioner also undertake that she will look after and she will not do any thing that may cause injury to the well fare and well being of minor. The petitioner shall provide free access and liberty to the Respondents to visit minor at all reasonable time and by consent they shall be allowed to take minor so that she may visit her paternal relations and cousins for which the Respondents Nos. 2 & 3 also bind themselves not to take any step that may prejudice the interest of the minor in any manner and shall restore the minor to the mother without any legal process. The parties agree that such arrangement will continue as long as the issue of minors custody is decided by the Guardians & Wards Act if at all such issue is agitated otherwise the parties may continue with such working relations ship.

In view of the above, the petition having served out its purpose stands disposed of in terms set out above.

(A.S.) Petition disposed of

PLJ 2005 Karachi 124

(Original Civil Jurisdiction)

Present: Mushir Alam, J.

ZAFAR-UL-ISLAM--Plaintiff

versus

MANAGEMENT EDUCATIONAL SOCIETY, KARACHI through its RECTOR & 10 others--Respondents

Suit No. 979 of 2004, decided 14.3.2005.

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

----O. VII--Rule 11 & S. 11--Preston Institute of Management Science and Technology Ordinance, 2001--Ss. 7 & 8--Suit for declaration, injunction, cancellation and accounts--Rejection of plaint--Application moved on grounds--Interalia--Plaintiff has no cause of action, suit is barred and plaintiff has cancelled material facts--Plea of resjudicata--Pendency of suit and bar in terms would not attract S. 11 C.P.C.--Allegation--Facts have been concealed is no ground to reject plaint--As regards cause of action and right of plaintiff have been spelled out clearly arrested of plaint--Plaintiff's suit is without cause of action and has no right--Application did not merit consideration--Dismissed--Some dispute has arisen between parties to suit as to manner in which a chartered institution is to be run, maintained and regulated--Governor of Sindh under both enactment is possessed of wide range of powers, authority and jurisdiction to take stock of situation and pass appropriate orders regulating mismanagement and financial discipline in chartered institution--Large number of student would be effected by any dispute, if allowed to be continued in Court--Governor of Sindh could exercise powers as conferred under enactment referred to above and decide controversy as raised in suit and to resolve controversy and regulate administrative and financial affairs in best and larger interest of institution--All parties could be given fair opportunity of being heard--Matter will be made to decide with in period of three months--Held: Facts have been concealed is no ground to reject plaint--Order accordingly. [Pp. 125 & 126] A & B

Kh. Shamsul Islam, Advocate for Petitioner.

Raja Qureshi, Advocate.

Mr. Nadeem Azhar Siddiqui, DAG.

Mr. M. K. Badar, Advocate.

Mr. Qazi Khalid, A.A.G.

Date of hearing : 14.3.2005.

Judgment

CMA No. 166/2005. This application under Order VII Rule 11 CPC is moved on the grounds, inter-alia, that the plaintiff has no cause of action; secondly, the suit is barred under Section 11 CPC; and thirdly, the plaintiff has concealed the material facts from this Court. The plaintiff has got no right and title to file the present suit.

When the learned counsel for the Defendants Nos. 1, 3 to 6 who has moved the listed application was called upon to address the Court he stated that he would need further time to address. It appears that the parties are hotly contesting the matter and counsel for the plaintiff and intervenors submit that students are suffering on account of dispute between the Plaintiff and other Defendants. According to them students are being deprived of the decree to which they are entitled to.

On 1.3.2005 the matter was adjourned as a last chance to 8.3.2005 thereafter twice adjournments has been sought by the defendants. It is stated that in support of plea of resjudicata under Section 11 CPC Suit No. 100 was filed at Hyderabad which is still pending. It may be observed that pendency of the suit would not attract Section 11 CPC, therefore, the bar in terms of Section 11 CPC would not be attracted. The allegation that the facts have been concealed is no ground to reject the plaint. As regards cause of action the plaintiff have spelled-out the cause of action in Para-28 of the plaint, therefore, it cannot be said that the suit is without cause of action. As regards the right of the plaintiff such rights have been clearly asserted in Para-1 of the plaint. At this juncture it cannot be said that plaintiff has no right, however, on such assertion issue, may be framed at appropriate time. The application does not merit consideration, same is accordingly dismissed.

It appears some dispute has arisen between the parties to the suit as to manner in which a Chartered Institution is to be run, maintained and regulated.

Qazi Khalid, learned A.A.G. has drawn my attention to Sections 7 & 8 of the Preston Institute of Management, Science and Technology Ordinance, 2001 and so also the Preston University Act 1999. It appears that the Governor of Sindh under both the Enactment is possessed of wide range of powers, authority and jurisdiction to take stock of the situation and pass appropriate orders regulating mismanagement and financial discipline in the Chartered Institution. Since large number of student would be effected by any dispute if allowed to be continued in Court. It is deemed appropriate that the Governor of Sindh may exercise the powers as conferred under the enactment referred to above and decide the controversy as raised in suit, and take such measure, so as to resolve the controversy and regulate the administrative and financial affairs in the best and larger interest of the institution.

Needless to say that, all the parties may be given fair opportunity of being heard. Qazi Khalid learned A.A.G. states that on account of pressing engagement of the Hon'ble Governor of Sindh efforts will be made to decide the matter preferably within a period of three months. Let this matter may be fixed in Court after such time.

(A.S.) Order accordingly.

PLJ 2005 Karachi 126 (DB)

Present: Mushir Alam & S. Zawar Hussain Jafri, JJ.

M/s. PAKLAND CEMENT LIMITED, KARACHI--Appellant

versus

M/s. AMERICAN EXPRESS BANK N.A., KARACHI

& another--Respondents

First Appeal No. 75 of 2004, heard on 20.9.2005.

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

----O. 7, Rr. 1 & 3--Application under Section 12(2) CPC--Appellant was made party to the suit nor even such case appears to have been made out in the plaint, as is being urged now that a corporate card was issued to appellant for use of its Director Finance. [P. 128] A

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

----O. 1, R. 1--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 2--Application under Section 12(2), Civil Procedure Code, 1908--Pleading in suit lacks in material particular and even proper parties were not added or joined. It is settled position of law under Order 1 Rule I CPC that all persons could be joined in one suit against whom any right or relief in respect of or arising out of the same act or transaction or series of acts or transaction is alleged to exist. [P. 128] B

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

----S. 2(7)--Companies Ordinance, 1984, S. 13--Contention--Appellant cannot be absolved of its liability, but the facts remain that, appellant a separate corporate legal entity was not joined as party to proceeding. [P. 128] C

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

----S. 12(2)--Blanket judgment, and decree was obtained, which clearly amounts to misrepresentation and fraud as to liability of party by the Respondent No. 1. Appeal is accordingly allowed, application under Section 12(2) CPC is granted, judgment and decree is set aside. [P. 128] D

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

----O. I, R. I--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Respondent No. 1 is directed to add the Director Finance by name who had availed corporate charge card and appellant, Pakland Cement Ltd., as necessary party in the plaint, before Banking Court within two weeks from today--Counsel for Respondent No. 1 waive notice before the Banking Court on 1.10.2005 and file leave to defend application within time stipulated under the Financial Institutions (Recovery of Finances) Ordinance, 2001 before Banking Court--Banking Court shall decide leave to defend application in accordance with law--Impugned order is set aside. [P. 128] E

Mr. Saalim Salam Ansari and Mukhtar Ahmed Kober, Advocates for Appellant.

Syed Salimuddin Nasir, Advocate for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 20.9.2005.

Order

Mushir Alam, J.--The order dated 8.4.2004 on application under Section 12(2) CPC have been impugned by the appellant Pakland Cement Ltd. It appears that the Respondent No. 1 filed a suit against Director Finance, Pakland Company Ltd. It appears that the suit was decreed vide judge dated 15.10.1998. Execution was filed Being No. 43/1999 that led the appellant to approach the Court for setting aside of the judgment and decree obtained behind their back.

It was contended by Mr. Saalim Salam Ansari learned counsel for the Appellant that appellant is a public limited company own its independent legal entity as oppose to its distinctive shareholder and directors. It was contended that even the Defendant was sued without naming any person and blanket judgment and decree was obtained, which clearly amounts to misrepresentation and fraud not only upon the Court but also to the appellant, who was never a party before the Court. When Mr. Salimuddin Nasir was confronted to the above position it was contended that Corporate Charge Card was issued on the guarantee of the Pakland Cement Ltd., to its Corporate Director who so ever it may be and the Company is bound to honour such liability incurred. From the record that has been placed on record it appears that "Corporate Charge Card" in fact was issued to be used by Corporate Director one Yazdi J. Mehta who was Finance Manager, who utilized it as apparent from the statement of accounts and even the legal notice has been issued to Mr. Yazdi J. Mehta on 21.7.1998 calling upon him to reimburse the liability followed by this suit. Nowhere from the pleading it appears that the appellant was made party to the suit nor even such case appears to have been made out in the plaint, as is being urged now that the a corporate card was issued to the appellant for the use of its Director Finance. It seems that pleadings in suit lacks in material particular and even proper parties were not added or joined. It is settled position of law under Order 1 Rule I CPC that all persons may be joined in one suit against whom any right or relief in respect of or arising out of the same act or transaction or series of acts or transaction is alleged to exist. It was contended by the learned counsel for the Respondent No. 1 that, appellant cannot be absolved of its liability, but the facts remain that, the appellant a separate corporate legal entity was not joined as party to the proceeding. Therefore, in our opinion there appears to be misrepresentation as to the liability of the party by the Respondent No. 1. The appeal is accordingly allowed application under Section 12(2) CPC is granted Judgement and decree dated 8.4.2004 in suit No. 565 of 1998 is set aside. Respondent No. 1 is directed to add the Director Finance by name who had availed corporate charge card and the appellant, Pakland Ltd., as necessary party in the plaint, before the Banking Court within two weeks from today. Mr. Salimuddin Nasir undertakes to waive notice before the Banking Court on 1.10.2005 and file leave to defend application within time stipulated under the Financial Institution (Recovery of Finance) Ordinance 2001 before the Banking Court. The Banking Court shall decide leave to defend application in accordance with law. The impugned order is set aside.

(R.A.) Appeal allowed

PLJ 2005 Karachi 128 (DB)

[High Court of Sindh, Hyderabad Circuit]

Present: Mushir Alam and Gulzar Ahmad, JJ.

MUHAMMAD RAHEEL SARWAR and 5 others--Petitioners

versus

UNIVERSITY OF SINDH JAMSHORO through REGISTRAR

and 3 others--Respondents

Constitutional Petition No. 397 of 2002 and C.P. Nos. D-89 and 90 of 2003, decided on 22.12.2003.

(i) Administrative Action--

----Constitution of Pakistan, 1973, Art. 199--High Court taking notice of plight of student, whose institution was de-affiliated in midst of their students, advised Law Ministry of Federal and Provincial Government to sponsor such legislative measures, that might provide remedy for such malady and for providing remedy to student, in event any college or institution was de-affiliated by chartered university or chartered institute--Copy of judgment was sent to Ministry of law of Federal and Provincial Government for necessary action. [P. 133] C

(ii) Educational Institution--

----Constitution of Pakistan, 1973, Art. 199--De-affiliation of Medical College by respondent university--Petitioners, were registered in such Medical College as also with the university--Petitioners assailed order of de-affiliation in between period of their course--Respondent University as also Pakistan Medical and Dental Council offered "no objection certificate" if petitioner get themselves enrolled in any other Private Medical College that was affiliated with any of the universities--Respondents were directed to issue "no objection Certificates" to petitioner within 7 days.

[P. 131] A

(iii) Educational Institutions--

----Constitution of Pakistan, 1973, Art. 199--Admission in a college affiliated with any chartered university--De-affiliation of a college by the university--Remedy once any student was admitted in a college affiliated to any chartered university/institute that too in a professional course and in case that college or institute was de-affiliated for whatever reason, then students of such de-affiliated institution cannot be left high and dry and they would be responsibility of chartered university/institute with whom they were enrolled and they must be accommodated in any of its affiliated colleges. [P. 132] B

1997 CLC 80 and 1997 CLC 1915 ref.

Syed Kabeer Mahmood, Advocate (Multan) & Mr. S.A. Ghaffar, Advocate for Petitioners (in C.P. No. D-89/2003).

Mr. S.A. Ghaffar, Kh. Naveed Ahmad and Muhammad Ibrahim A. Soomro, Advocates for Petitioners (in other C.P. No. D-90 of 2003).

Mr. Kishan Chand Lachmandas, Advocate for Respondent No. 1.

Muhammad Zafar Alam & Kamal-ud-Din, Advocates for other Respondents (in C.P. Nos. D-89 & 90/2003).

Nemo for Respondent No. 3.

Date of hearing : 17.11.2003.

Judgment

Mushir Alam, J.--Through this common judgment, we proposed to decide above petitions involving similar questions of facts and law.

Facts relevant for deciding the petitions appears that, the University of Sindh. Jamshoro, granted affiliation to Bhutta Medical College, Faisalabad. The petitioners were admitted to Bhutta Medical College, Faisalabad, for the Academic Session 1997-1998, they were also registered with Respondent No. 1, University of Sindh Jamshoro. Petitioner Tasneem Akhter claims to be student of IVth year MBBS, Intervenor Iftikhar Ali passed First Professional MBBS (in CP. No. 90/2003). All the Petitioners claim to be registered by the University of Sindh, MBBS Examinations were held under the asupices of University of Sindh the Respondent No. 1.

It appears that, in between the University of Sindh, Jamshoro withdrew the affiliation of the Bhutta Medical College, on the ground of breach of conditions of affiliation. Petitioners made various representations to the various quarters against the deaffiliation but could not succeed, followed by a Constitutional Petition No. 131/2002 titled as Muhammad Rahil Sarwar & another vs. University of Sindh, Jamshoro, at Hyderabad Circuit of this Court, impugning the deaffiliation and for holding the examination of the petitioners therein. It appears that during pendency of the said Constitutional Petition, the deaffiliation order, was withdrawn, resultantly said petition was dismissed in limine on 16.5.2002, directing the petitioner to approach Bhutta Medical college for the needful.

However, after the disposal of the Constitutional Petition, but before the examination could be held, University of Sindh, once again deaffiliated Bhutta Medical College with effect from 29.6.2002 as notified through public notice in newspapers.

It is the case of the petitioners that, the petitioners obtained admission in the Bhutta Medical College, as it was affiliated with the University of Sindh. The University also registered them as MBBS students, some of the petitioners have in fact appeared in examination of MBBS Part-I and Part-II respectively held by said Bhutta Medical College, under the authority and blessings of Sindh University.

It was contended by the learned counsel for the Petitioners that, at no point in time the University of Sindh or for that matter. Pakistan Medical and Dental Council, ever notified or warned the public generally or the petitioners particularly, advising not to obtain admission in the Bhutta Medical College. First Public Notice appeared only when the Petitioners appeared and passed First and Second Professional MBBS Examinations, held under the University of Sindh. It was contended by the learned counsel for the Petitioners that, once the petitioners were admitted in a Bhutta Medical College, affiliated to University of Sindh and enrolled as MBBS Students by the University, it was bounden duty of the University to, accommodate its students in any other college. In support of his contention reliance was placed on the following judgment Ali Akhtar and 3 others vs. University of the Punjab and another (1997 CLC 80), Muhammad Irshad Siddiqui vs. University of the Punjab (1997 CLC 1915) & unreported Judgment in CP. No. D-300/2002 (Professor Dr. M. Jamil Bhutta v. The University of Sindh.

Mr. Lachmandas, learned Counsel for the University of Sindh contended that. Liaquat Medical College was upgraded and granted Charter under Ordinance No. VIII of 2001 as Liaquat University of Medical and Health Sciences (LUM&HS). All the Medical Colleges affiliated with the University of Sindh, are now affiliated LUM&HS. He further points out that LUM&HS was requested to adjust the students of Bhutta Medical College, but they declined; therefore, the students of the de-affiliated Bhutta Medical College, could not be accommodated in any of the Colleges. He however, contends that, looking at the plight of the students. University of Sindh, as a special case is prepared to give its no objection to the petitioners so that they may seek admission in any other medical college, institutions or universities. He points out that, the Respondent No. 4, Pakistan Medical and Dental Council, is not co-operating. According to him, if the Respondent No. 4 also extends such concession, career of large number of students at stake, for no fault of their own, may be saved.

Mr. Zafar Alam, appearing for the Respondent No. 4, at the very outset, contended that the Petition is not maintainable, the earlier affiliation was not accorded in accordance with law. He was not able to show any steps or measure taken by the PMDC when the University of Sindh, granted affiliation to the defunct Medical College, Petitioners were enrolled by it and First and Second professional MBBS examination were held by the University. He was also not able to give any plausible reason or objection that the PMDC may have for extending No Objection to the students who may desire to seek admission in any of the recognised Medical College. It is not disputed that, MBBS examination of the students of defunct college was held by the University of Sindh as per curriculum prescribed by PMDC.

Mr. Zafar Alam, under circumstances, state that PMDC shall have no objection in case the petitioners seek admission in any of the Private Medical College, Institute or University and do not press for admission in Government of Sindh Colleges or Institutes.

When the Petitioners Counsel was confronted with such proposal of Mr. Lachmandas, and as approved by Mr. Zafar Alam, on instructions Sardar Kabir, wasted no time to grab the offer. On instruction, he further stated that Petitioners will not insist on creation of additional seats in any of the State sponsored Medical Colleges or University, provided such no objections as suggested on behalf of University of Sindh and PMDC is given.

In view of the No objection given by Mr. Lachmandas on behalf of the University of Sindh and Mr. Zafar Alam for PMDC as recorded by above. We direct that, in case, any of the Students of defunct Bhutta Medical College, enrolled with the University of Sindh, if approaches the University of Sindh or, for that matter to PMDC, it will issue necessary. No Objection certificate the within Seven days from the date of such application.

In this view of the matter, we do not consider appropriate to enter into any detail discussion as to the obligation and duties of the Sindh University or that of the PMDC. who in this entire episode, have acted in most irresponsible manner. Once a student is admitted in a College affiliated to any Chartered University/Institute that too in a professional course and in case the College or institute is de-affiliated for whatever reason, then the student of such de-affiliated institution cannot be left high and dry. They are the responsibility of the Chartered University/Institute with whom they are enrolled.

On enquiry Mr. Lachmandas, stated that there is no provision either in the University of Sindh Act 1972, nor in the Liaquat University of Medical and Health Sciences Ordinance VIII, 2001 that caters to such eventuality.

We are of opinion, once any Chartered University/Institute, enrols a student admitted in any of its affiliated college; such student, for all practical purposes is the student of such Chartered University/Institute. In event, any of the College/Institution is de-affiliated for any reason, then student having being enrolled by the Chartered University as well, must be accommodated in any of its affiliated Institution. Recent example is of Vohra Medical College. Said college was also deaffiliated. After much agitation and hunger strike on large scale. Government of Sindh took notice and all the effected students, were accommodated in various medical college of the Province. In past, even in worst situation, where even the colleges were not granted affiliation by the concerned University in Punjab, students were led to believe that they would be enrolled and allowed to appear in University Exams' later they were declined and on the intervention of the High Court, the matter was resolved cases are reported as Muhammad Irshad (Supra), and Ali Akhtar (Supra). Present case, is still on better footing. However, Government of Sindh, it appears, is not interested to accommodate the students of Bhutta Medical College.

In the present case, both the University of Sindh as well as PMDC remained indolent and allowed the student not only to seek admission in Bhutta Medical College but were also enrolled by the University of Sindh, MBBS Exams were held and results were also announced by the University. Deaffiliation was notified in the press much after. It was not the administration of the defunct college that was punished. It was students who were ultimate sufferer and were effected most for no default of their own.

Recurrence and relapse of similar episode, in different part of country is in bitter tasting both for the Government as well as those effected. Slackness and indifferent attitude of the State functionaries to attend and remedy the malady promptly reflects adversely on the working of the executive and legislative machinery of the State. It is sad to record that; the State functionaries do not learn lesson from past. They wake up either, when much water is flown or situation slips out of their control. Neither, any executive decision has been taken nor, appropriate and remedial legislative measures were adopted at appropriate time. Large number of undesired litigation could be avoided, if fair executive decisions are taken promptly and law is amended at the right time when the flaw is encountered.

It is desirable that, Ministry of Law, may study and examine various Statutes whereunder, Charters are given to any University or Institution both, in public and private sector either, through the Provincial or Federal Legislature. After careful study and examination, the Ministry of Law may sponsor such legislation measure, that may provide remedy for the malady, and that may provide remedy to the students in event any College or Institution is de-affiliated by the Chartered University or the Chartered Institute. Ministry of law may also examine and provided regulatory mechanism or check on authority of any Chartered Institution or University to give provisional affiliation, as such authority experience shows is often misused.

Let copy of this Judgment be sent to the Ministry of Law. Justice and Parliamentary Affairs, Government of Pakistan, and Ministry of Law, Government of Sindh, for, necessary action at their end.

Both the petitions and pending application. if any, in terms of the above stand disposed of.

(A.A.) Order accordingly

PLJ 2005 Karachi 133

Present: Muhammad Moosa K. Leghari, J.

DILSHAD KHAN LODHI--Appellant

versus

ALLIED BANK OF PAKISTAN through its PRESIDENT

and 3 others--Respondents

Labour Appeal No. 107 of 2004, decided on 14.3.2005.

(i) Industrial Relation Ordinance, 1969 (XXIII of 1969)--

----S. 25-A--Status of employ--Primary duties--Common sense--Validity--Real test for determining status of an employee is as to constitutes primary duties assigned to employee in course of his duties--An employee can be declared to be workman, if their duties performed by him are of clerical nature--It is matter of common sense that every employee even occupying higher position have to do work of clerical nature on certain casual occasion--Held : Clerical or manual duties must be of primary nature and not of an occasional nature--Merely by producing one document would not be sufficient to hold that applicant was employed on job of clerical nature. [P. 136] A

(ii) Jurisdiction--

----Labour Court--Merely because an employee has no power of hire and fire would not bring within ambit of a workman to invoke jurisdiction of labour Court--Held: Applicant had not been able to establish that was performing clerical duties as working as incharge of Foreign Exchange Section and even holding power of attorney by Bank, burden was upon him to lead evidence to bring him within term workman as contemplated under law. [P. 136] B

Mr. Abdul Ghani Khan, Advocate for Appellant.

Mr. Shahid Anwar Bajwa, Advocate for Respondents.

Date of hearing : 14.3.2005.

Judgment

This appeal is directed against the order dated 5.10.2002, passed by Presiding Officer Labour Court No. VI, Hyderabad, in the matter of an application under Section 25-A of I.R.O. 1969, whereby the grievance petition filed by the applicant against his dismissal from service was dismissed for want of jurisdiction.

1. Briefly stated the facts relevant for the purpose of disposal of this appeal are that at the relevant time the applicant was serving with the respondent/Allied Bank of Pakistan and was posted as Incharge Foreign Exchange Department Station Road Branch Hyderabad. It appears that irregularities were detected to have been committed by the Petitioner hence he was issued a letter of explanation on 29th September 1999. It seems that the explanation offered by the respondent was not found satisfactory and, therefore, an inquiry was initiated against him. Eventually the applicant was dismissed from service vide letter dated 7th February 2000.

2. After serving the grievance notice upon the respondent/bank the petitioner filed a grievance petition before the Labour Court.

3. Upon service the respondents filed their written statement. The respondents challenged the status of the petitioner to invoke the jurisdiction of Labour Court stating that at the relevant time the applicant was posted as Incharge Foreign Exchange Section and was holding a duly executed power of attorney and was IBS signatory as such he was not a workman. Respondents denied that the petitioner was doing any manual or clerical work claiming that the applicant/Appellant was employed in a fiduciary and managerial capacity hence the petition was not maintainable.

4. The Labour Court framed the following issues out of the pleadings of the parties:--

5. Whether the applicant was a workman?

6. Whether the applicant is entitled to maintain this grievance petition?

7. Whether the grievance notice was served the applicant upon respondent?

8. Whether the establishment where the applicant was employed at material time, the number of workman were less than 20?

9. Whether the application is time-barred?

10. Whether a proper enquiry was held before dismissing the applicant from his service?

11. Whether the order of dismissal was passed by the competent authority appointed by respondent?

12. What should the order be?

13. Evidence was led by the parties. The petitioner appeared as his own witness and reasserted the facts as given in the petition and the grievance notice. One Nafees Noor Incharge foreign Exchange Saddar Branch Hyderabad and Hafiz Muzaffar Ali adduced evidence on behalf of respondent/bank.

14. After hearing the arguments and going through the pleadings and the evidence learned Labour Court came to the conclusion that the applicant was not a workman and, therefore, the labour Court and no jurisdiction to entertain the grievance petition. It was accordingly dismissed. Hence this appeal.

15. Mr. Abdul Ghani Khan, Advocate argued the case on behalf of the Appellant while Mr. Shahid Anwar Bajwa, Advocate represented the respondents.

16. It was contended on behalf of the Appellant that the Judgment passed by the Labour Court was against the evidence as the Appellant has placed on record Cashier's Daily Memo Book pertaining to 25th May 1999, which was in the hand of the petitioner which was enough proof to show that the petitioner was doing clerical duties. It was next contended that in para-6 of the affidavit in evidence filed by the petitioner it was asserted that the applicant was not engaged in hire and fire powers and his duties were manifestly of clerical nature and that the said assertion was not challenged in the cross examination by the respondents. Consequently it will be deemed to have been accepted. It was further contended that the respondents have not placed on record any document to show that the applicant was not a workman or that he was not performing manual or clerical work.

17. Conversely it was contended on behalf of the respondent that the applicant was holder of a power of attorney and was Incharge of Foreign Exchange Section. He was performing duties of managerial and supervisory nature and therefore, the applicant was not a workman, thus the Labour Court had no jurisdiction to entertain his petition. Both the learned counsel cited certain case-law in support of their contentions.

18. The arguments put forward by respective advocates have been considered, relevant case law has been perused and the evidence adduced on the record has been examined.

19. It is the case of the Appellant that he was a workman and, therefore, was governed by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In order to claim the protection provided under the said Statute the applicant has to prove by leading positive evidence that he was doing some manual or clerical work. In his cross-examination the applicant/Appellant himself admitted that he was working as Head of Foreign Exchange Department in the Station Road Branch. He admitted that a power of attorney was executed by the Bank in his favour. He admitted in the cross-examination that there are 5 other employees in the Foreign Exchange Department of the Branch, some of them were doing the clerical and manual work. Last but not the least he admitted in the cross-examination that he was not doing the manual and clerical work and was only signing the cheques and statement slips.

20. The perusal of above evidence would abundantly show that the applicant himself admitted that the was holder of a power to attorney, 5 other employees who were doing clerical and manual work were under him as he was the Head of Foreign Exchange Department in the Branch. It is well settled that the real test for determining the status of an employee is as to what constitutes the primary duties assigned to the employee in the course of his duties. An employee can only be declared to be a workman, if the main duties performed by him are of clerical nature and not otherwise. It is a matter of common sense that every employee, even those occupying higher position have to do work of clerical nature on certain casual occasions. It does not mean that those officers will also be treated as workman. The result would be that the clerical or manual duties must be of primary nature and not of an occasional nature. Merely by producing one document would not be sufficient to hold that the applicant/Appellant was employed on the job of clerical nature.

21. The respondents have brought in evidence sufficient material to show that the applicant/Appellant was occupying a responsible position and his primary duties did not constitute manual work.

22. It is also well settled law that merely because an employee has no powers of hire and fire would not bring him within the ambit of a workman to invoke the jurisdiction of Labour Court.

23. It was rightly observed by learned Labour Court that the applicant had not been able to establish that he was performing clerical duties, as while working as Incharge of the Foreign Exchange Section and even holding a power of attorney by the Bank, burden was upon him to lead evidence to bring him within the term `workman' as contemplated under the law.

24. In the light of above discussion I am of the considered view that the order passed by learned Labour Court is quite legal and valid. The order is based on evidence and has been passed in accordance with settled principles of law. Since there is no merit in the appeal the same is dismissed.

(R.A.) Appeal dismissed

PLJ 2005 Karachi 137 (DB)

Present: Anwar Zaheer Jamali and Azizullah M. Memon, JJ.

Messrs YOUSUF SONS and another--Appellants

versus

MUHAMMAD KHALID and others--Respondents

High Court Appeals, No. 426 of 2003 and 2 of 2004, decided on 15.3.2005.

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

----S. 151--Inherent powers of Court--Scope--Court, to seek implementation of its order, to meet the ends of justice and to ensure the supremacy of law, can follow any course, which is not prohibited by law, and for that purpose inherent powers of Court conferred by S. 151, C.P.C. could be exercised by it. [P. 146] F

(ii) Contempt of Court Act, 1976 (LXIV of 1976)--

----Ss. 3 & 4--Civil Procedure Code (V of 1908), O. XXXIX, R. 2(3) & S. 151--Violation of--Assailed--Application in the suit under Ss. 3 & 4, Contempt of Court Act, 1976 read with O. XXXIX. R. 2(3) and S. 151, C.P.C., agitating the grievance to that effect that order of High Court was violated by appellants, in violation of such order--Framing of charges/ issues and affording of opportunity to the offenders--Requirements--Held: Proceeding initiated in present case on basis of application were not, in stricto senso, it was not necessary for Court to have framed formal charge against appellants--On service of notice of contempt proceedings, appellants were well informed and aware about initiation and pendency of contempt proceedings against them and its ultimate consequences and full opportunity was afforded to them to meet the case with reference to violation of the order in-question which was admittedly in their knowledge at the time of commission of acts forming basis for initiation of contempt proceedings for violation of injunction order by appellants--Contention that non-framing of charges/issues or non-affording opportunity of hearing to the appellants before ordering their conviction by impugned order, had no force in circumstance--Record showed that prima facie, a collusive game of fraud was played by appellants for violation of order and their conduct during the pendency of the application was throughout contumacious--High Court in its impugned order had thoroughly examined the case of the appellants in a judicious manner and rightly convicted both the appellants for deliberate violation of High Court order--High Court directed that appellants be taken into custody and remanded to the prison to serve their respective sentences.

[Pp. 139, 144, 145 & 146] A, B, C, D, E & G

PLD 1992 SC 104; 1980 SCMR 89; PLD 2002 SC 303 fol. PLD 1952 Lah. 77; PLD 1966 SC 802; PLD 1992 SC 104; 1999 SCMR 2215; PLD 1962 SC 457; 1980 SCMR 89 & PLD 2002 SC 303 ref.

Mr. Muhammad Anwar Tariq, Advocate for Appellant (in H.C.A. No. 426 of 2003).

Mr. S. Sami Ahmed, Advocate for Appellant (in H.C.A. No. 2 of 2004).

Mr. Muhammad Ali Jan, Advocate for Respondents Nos. 1 to 4 (in H.C.A. No. 426 of 2003).

Mr. Rasheed A. Razvi, Advocate for Respondents Nos. 1 to 4 (in H.C.A. No. 2 of 2004).

Mr. Abbas Ali, A.A.-G., Sindh on Court Notice.

Nemo for Remaining Respondents (in both the appeals).

Dates of hearing : 27 & 28.1.2005.

Judgment

Anwar Zaheer Jamali, J.--The above titled two appeals arise out of order dated 24.12.2003, passed on C.M.A. No. 1949 of 2001, in Suit No. 576 of 1998. As common questions of law and indentical facts are involved in these appeals, same are being disposed of by this single order.

1. Briefly stated, the facts relevant for the disposal of these appeals are that during the pendency of Suit No. 576 of 1998, wherein Respondents Nos. 1 to 4 are plaintiffs, appellant Shoaib Yousuf Mahpara is Defendant

No. 1 and appellant Muhammad Anwar Malik is Defendant No. 2. On 4.8.1998, C.M.A. No. 4728 of 1998, an application under Order XXXIX, Rules 1 and 2, C.P.C. filed by Respondent Nos. 1 to 4, was disposed of in the following terms:--

"The dispute in the suit relates to the competence of Defendant No. 3 to execute a deed of assignment in favour of the plaintiffs and unless evidence is recorded the respective contentions of the parties, at this interlocutory stage, cannot be finally dealt with. It will, therefore, be in the interest of all the parties that the rent of the suit property is preserved. Accordingly, the Defendant No. 1 who is a tenant in the suit property is directed to continue depositing rent with the Rent Controller in M.R.C. No. 160 of 1998, as is presently being done by him. However, neither the plaintiffs nor the Defendant No. 2 could be entitled to withdraw the rent deposited by the Defendant No. 1 with the Rent Controller till final disposal of the suit." (Underlining has been done by us for emphasis).

1. On 12.3.2001, Plaintiffs/Respondents Nos. 1 to 4 filed an application under Sections 3 and 4 of the Contempt of Court Act, 1976 read with Order XXXIX, Rule 2(3) read with Section 151, C.P.C., being C.M.A. No. 1949 of 2001, in the suit, wherein they agitated their grievance regarding violation of above order dated 4.8.1998 by the appellants and one S.J. Shahid Shah and prayed for their punishment, besides direction for deposit of the rent amount in Court, which was withdrawn by appellant Muhammad Anwar Malik in violation of such order.

2. On notice of this application, appellant Shoaib Yousuf Mahpara, filed his detailed counter-affidavit in Court on 7.6.2001 which was accompanied with documents Annexures A to E. In brief, he did deny violation of order dated 4.8.1998, but attempted to justify such violation by explaining the circumstances in which, by way of compromise, he acted so.

3. The appellant Malik Muhammad Anwar on receipt of notice of C.M.A. No. 1949 of 2001 also submitted his detailed counter-affidavit in the Court on 13.6.2002, which was accompanied with documents Annexure A/1 to A/12. He also did not dispute violation of order dated 4.8.1998, but justified such violation on the basis of various documents placed on record, whereby he, on same lines as urged by appellant Shoaib Yousuf Mahpara, took the shelter of compromise/settlement between the parties.

4. On 10.11.2003, arguments of learned counsel for the parties were heard by learned Single Judge of this Court on pending C.M.A. No. 1949 of 2001, which was ultimately disposed of in terms of impugned order dated 24.12.2003. In his order, learned Single Judge examined in detail the proceedings held in Suit No. 576 of 1998, order dated 4.8.1998, contents of C.M.A. No. 1949 of 2001, its supporting affidavit, the counter-affidavits filed by the appellants and the documents annexured thereto, and after a detailed discussion in the impugned order he came to the conclusion that the two appellants have flouted, disobeyed and committed deliberate breach of the directions contained in the order dated 4.8.1998 for almost five years. Thus, they were found guilty, convicted and ordered to be detained in prison for a term of two weeks. In addition to it, Contemnor No.1/appellant Shoaib Yousuf Mahpara, was directed to deposit entire rent from October, 1995 at the rate of Rs. 60,000 per month after adjustment of the rent amount deposited in M.R.C. No. 160 of 1995 and paid to Contemnor No. 2/appellant Malik Muhammad Anwar within 15 days with further directions to continue to deposit future rent also at the same rate. Appellant Malik Muhammad Anwar was also directed to deposit entire rent amount withdrawn by him from M.R.C. No. 160 of 1999, with the Nazir of this Court within 15 days.

5. After passing of aforesaid impugned order dated 24.12.2003, two applications under Section 382-A, Cr.P.C. were moved on behalf of the appellants, which were granted by the learned Single Judge on the same day, subject to furnishing of surety by both the appellants in the sum of

Rs. 10,000 each.

1. After filing of these appeals, such order in favour of the appellants was kept alive by this Court and in this manner till this date the two appellants have not been committed to prison in terms of the impugned order.

2. At the outset, Mr. M. Anwar Tariq, learned counsel for the appellant, Shoaib Yousuf Mahpara has made statement at the bar that the directions issued to the appellant Shoaib Yousuf in the impugned order regarding deposit of arrears of the rent have been complied by him and further he is also regularly depositing current rent in terms of the earlier order dated 4.8.1998 and the order dated 23.12.2004. No such statement has, however, come forward from the side of other appellant Muhammad Anwar Malik.

3. Mr. M. Anwar Tariq, learned counsel for the appellant, Shoaib Yousuf Mahpara, did not dispute gross violation of order dated 4.8.1998 committed by the appellant, however, he contended that there was no ill-will or element of contumacy in his conduct in this regard, but it was under the bona fide impression of compromise between the parties that he had given his no objection to the application for withdrawal of rent moved by other appellant Malik Muhammad Anwar. He urged that in view of this position and looking to the subsequent conduct of the appellant Shoaib Yousuf Mahpara that now he has been regularly depositing rent in Court, the punishment awarded to him may be set aside/remitted.

4. Mr. Sami Ahmed, learned counsel for the appellant Malik Muhammad Anwar, mainly challenged the impugned order on the premises that it is in gross violation of the principles of natural justice. In this regard he contended that neither any show-cause notice was issued to the appellant, Muhammad Anwar Malik, nor any charge was framed against him or opportunity to lead evidence in defence was afforded to him, therefore, on this ground alone impugned order is liable to be set aside. To fortify his submission learned counsel placed reliance on the following cases:

"(1) PLD 1952 Lahore 77, (2) PLD 1992 SC 104, (3) PLD 1966 SC 802 and (4) 1999 SCMR 2215".

1. Mr. Sami Ahmed further contended that the directions issued by the learned Single Judge in the impugned order calling upon the two appellants to deposit the arrears of rent already received/withdrawn by them and current rent are in gross violation of Order XXXIX, Rule 2(3), C.P.C., which does not contemplate such eventuality; thus, for this reason too such order is liable to be set side. He also made reference to the application under Order XXIII, Rule 1, C.P.C., being C.M.A. No. 7487 of 2001 purportedly moved by the sub-attorney of Respondents Nos. 1 to 4, Muhammad Anees on 6.10.2001, which was dismissed by the Court vide order dated 15.10.2001, to show that the violation of the order dated 4.8.1998 by the two appellants was result of some settlement/compromise between the parties, which had left no further cause of grievance to any party.

2. On the other hand, Mr. Muhammad Ali Jan learned counsel for Respondents Nos. 1 to 4 in H.C.A. No. 426 of 2003, supported the impugned order particularly the directions of the Court regarding deposit of arrears and current rent in Court, issued to both the appellants. He contended that Order XXXIX, Rules 1 and 2 provides sufficient mechanism to meet such eventualities. Further under Sections 94 and 151, C.P.C. more powers are available to the Court which could be exercised in appropriate cases to meet the ends of justice. In such circumstances, the impugned order being in conformity with law needs no interference. Mr. Muhammad Ali Jan narrating other facts contended that a game of fraud and cheating was managed by the two appellants whereby initially execution of power of attorney by Respondents Nos. 1 to 4 in favour of Abdul Karim was alleged and on that basis execution of another sub-power of attorney in favour of Muhammad Anis was shown. When Respondent No. 1 came to know about such collusive game of fraud between the two appellants, whereby the rent deposited in M.R.C. No. 160 of 1995 was withdrawn by them without any notice to the Respondent Nos. 1 to 4, and in violation of the order dated 4.8.1998, they brought this fact to the notice of the concerned Court of Rent Controller, who immediately sought verification of document/power of attorney purportedly executed in favour of Abdul Karim and he was informed by the Sub-Registrar concerned that it was a forged document. He, therefore, urged that the two appellants are liable to be punished for violation of order dated 4.8.1998 and the impugned order is that unexceptionable.

3. Mr. Rasheed A. Razvi, learned counsel representing Respondents Nos. 1 to 4 in H.C.A. No. 2 of 2004, in his arguments made a detailed reference to the relevant facts of the case to show that there is no denial of fact regarding violation of order dated 4.8.1998 by the two appellants. To meet the submissions of Mr. Amin Ahmed with reference to the alleged non-providing of due opportunity of hearing to the appellants before passing of impugned order, learned counsel placed reliance on the following cases:--

(1) PLD 1962 SC 457, (2) 1980 SCMR 89 and (3) PLD 2002 SC 303.

1. Supporting and justifying the directions issued by the learned Single Judge to the appellants in his impugned order regarding deposit of the rent amount with the Nazir of this Court within fifteen days, learned counsel further made reference to the provisions of Sections 36 and 94, C.P.C. and Order XXXIX, Rule 10, C.P.C.

2. Giving further reply to the allegations of denial of due opportunity of hearing to the appellants before passing of impugned order, learned counsel vehemently contended that on filing of C.M.A. No. 1949 of 2001 notice of this application was issued to the alleged contemnors whereupon they had submitted their detailed reply in Court accompanied with bunch of documents. Even thereafter, the said application remained pending for disposal for more than one year and nine months and during this period it was fixed in Court for hearing on several dates, but during that period too at no stage any of the appellants made any request to the Court for any further opportunity to lead evidence in support of their claim. He contended that it has been time and again held by superior Courts that the proceedings of violation of order passed under Order XXXIX, Rule 1, C.P.C. initiated under Order XXXIX, Rule 2(3), C.P.C. are not regulated by any specific procedure prescribed by law, but the Court has to regulate its own procedure for deciding the fate of such proceedings. He lastly contended that having contested the contempt application for over twenty one months it does not suit in the mouth of the appellants to agitate that proper opportunity of hearing was not provided to them or they were required to be served with any show-cause notice or any formal charge should have been framed against them before passing of impugned order.

3. Before we proceed to examine the contentions raised by the learned counsel with reference to the short controversy involved in these appeals, it will be advantageous to discuss some of the case-law cited at the bar by learned counsel for the parties, which is relevant to such controversy:--

(a) In the case of Hatim v. Shah Din (PLD 1952 Lahore 77) a learned Single Judge of Lahore High Court, while dealing with a petition arising out of proceedings under Order XXXIX, Rule 2(3), C.P.C. had observed that in a case which lies in the civil jurisdiction, but penalties involved are of criminal nature, notwithstanding that no precise procedure has been laid down, it is expected that the Court, before imposing these penalties, should proceed as nearly as possible in the same manner as Criminal Court would proceed by framing of questions or issue so that the person at fault is put on his guard. It was further observed that the provisions of Order XIX, C.P.C. are couched in general terms, therefore, it lies within the discretion of Court to make use of these provisions in appropriate cases; as a general rule, a case involving quasi criminal proceedings is not a suitable case for grant of permission to prove by affidavit; however, there can be cases where such penalties have been incurred in which evidence may suitably be received on affidavit.

(b) In the case of Dr. M.O. Ghani, Vice-Chancellor, University of Dacca v. Dr. A.N.M. Mahmood (PLD 1966 Supreme Court 802) the Honourable Supreme Court of Pakistan had taken into consideration the powers of the Court under Order XXXIX, Rule 2, sub-rules (3) and (4) vis-a-vis the powers of the High Court under summary jurisdiction to punish for contempt and held that former provides an adequate remedy against disobedience of an injunction order issued under Sub-Rules 1 and 2 of Order XXXIX; the machinery provided by Rule 2 of Order XXXIX of the Civil Procedure Code is quite effective to deal with the situation, thus, the High Court would be well advised in restraining themselves from proceedings for contempt in such cases. Such observations were made by the Court with reference to the peculiar facts of the case.

(c) In the case of Muhammad Aslam v. Mahmood Ali and another (PLD 1992 SC 104), while dealing with the scope of contempt proceedings, the Honourable Supreme Court of Pakistan, following the view in the case of Ch. Zahoor Ellahi v. Mr. Zulfiqar Ali Bhutto (PLD 1975 SC 383), observed that the contempt of Court proceedings were sui generis in nature partaking some of the elements of both civil and criminal proceedings but really constituting neither; no fixed formula for contempt proceedings was required nor technical accuracies were desired; Court was not bound by Code of Civil Procedure or by the technicalities or ordinary criminal proceedings; the Court being Court of Justice, nevertheless, would normally follow the fundamental rules for the ascertainment of the truth by giving the fullest opportunity to a party for defending himself and putting forward his case with as much, if not more than an ordinary trial before the Court.

(d) In the case of Raja Talat Mahmood v. Ismat Ehtishamul Haq (1999 SCMR 2215), it was again observed by the Honourable Supreme Court of Pakistan in the matter of dealing with the disobedience or breach of terms of injunction/status quo order, no precise procedure was laid down for adjudication of application under Order XXXIX, Rule 2(3), C.P.C. however, the party facing the charge should be fully conscious and aware of the charge against him vis-a-vis violation of the order passed and proper opportunity should be afforded to him to defend himself.

(e) In the case of Saadat Khialy, Staff Reporter ("Kohistan" Daily) and others v. (1) The State and (2) Shama Overseas (Private) Ltd. (PLD 1962 SC 457) it was observed by the Honourable Supreme Court that the nature of contempt proceedings was neither wholly criminal nor wholly civil, but partaking of some elements of both purely sui generis, therefore, fundamental rules for ascertaining the truth and allowing full opportunity of defence should be provided to a party. It was further observed that there was no fixed formula for contempt proceedings and that technical accuracies were not required nor the Court was bound by the provisions of criminal procedure of technicalities of ordinary criminal proceedings in such cases.

(f) In the case of Bakhtawar etc. v. Amin etc. (1980 SCMR 89) the Honourable Supreme Court of Pakistan observed that if disobedience of an injunction granted under Order XXXIX, Rule 2, C.P.C. has occurred and an application for action being taken within Rule 2(3) is made; mere dismissal of suit will not excuse party guilty of disobedience. Referring to certain other provisions of C.P.C. it was further observed that one of the object of contempt proceedings is also to seek compliance of Courts order as otherwise these orders would be mere farce.

(g) In the case of Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others (PLD 2002 Supreme Court 303), taking into account a sale transaction, which had taken place during the subsistence of an injunction order, it was observed by the Honourable Supreme Court that any act which entails punishment under the law would be unlawful act and such act cannot be said to be valid, thus, the act of sales being invalid for all intents and purposes; all sales/alienation, which had taken place during the pendency of the lis and in violation of the Court order/decree, are invalid and if the same are allowed to exist it would amount to sanctioning of illegal acts of the violator of Court orders. In such circumstances, the Court, besides proceedings against violation of Court order under Section 3 of Contempt of Court Act, 1976, can initiate action under Order XXI, Rule 32 and Order XXXIX, Rule 2(3) of the Code of Civil Procedure for disobedience of its order and to prevent the abuse of the process of Court. It can also exercise inherent powers under Section 151, C.P.C. for the achievement of ends of Justice and for upholding the majesty of law.

1. To sum up, it may be observed that the proceedings initiated in the present case on the basis of application C.M.A. No. 1949 of 2001 are not in stricto senso criminal proceedings, therefore, it was not necessary for the Court to have framed formal charge against the appellants. On service of notice of contempt proceedings, the two appellants were well-informed and aware about initiation and pendency of contempt proceedings against them and its ultimate consequences. In this background of the matter, in our view, full opportunity was afforded to the appellants to meet the case of Respondents Nos. 1 to 4 with reference to violation of order dated 4.8.1998, which was admittedly within their knowledge at the time of commission of acts forming basis for initiation of contempt proceedings for violation of injunction order by the appellants. Thus, the arguments advanced by Mr. S. Sami Ahmed regarding non-framing of charge/issue on non-affording of the opportunity of hearing to the appellants before ordering their conviction by impugned order, have no force.

2. Further, examining the relevant facts of this case, it will be seen that disobedience of order dated 4.8.1998 with full knowledge has not been denied by any of the two appellants. Not only this, but as also rightly observed in the impugned order by the learned Single Judge, such defence was continued by them even after filing of C.M.A. No. 1949 of 2001 dated 12.3.2001 without showing any remorse towards their conduct. In the impugned order, the learned Single Judge has taken care of each and every elevant aspect of the case in the light of the affidavit/counter affidavits, accompanied with bunch of documents placed on record by the parties and thereafter he has rightly come to an irresistible conclusion about gross wilful violation of the order dated 1.8.1988 vis-a-vis contumacious and irreverent attitude of the appellants. We have also taken notice of the facts specially with reference to the conduct of appellant Muhammad Anwar Malik that throughout not only he grossly violated the order dated 4.8.1998, but again he continued to show disrespect to the impugned order by not making compliance of the directions regarding deposit of rent amount illegally withdrawn by him from the office of Rent Controller, with the Nazir of this Court till this date. In such circumstances, in our view, rule laid down by Honourable Supreme Court of Pakistan in the cases of Muhammad Aslam v. Mahmood Ali, Bakhtawar v. Amin and Muhammad Sabir Khan v. Rahim Bakhsh (supra) is fully attracted to the facts and circumstances of the present case and justify passing of impugned order by the learned Single Judge without framing any formal charge.

3. Looking to the case record and proceedings with reference to C.M.A. No. 1949 of 2001 in Suit No. 576 of 1998, from no stretch of imagination, it could be said that while passing the impugned order due opportunity of hearing was not afforded to the appellants or the impugned order suffers from any technical/procedural shortcoming or violation of principles of natural justice. It will be pertinent to observe that both the appellants in their detailed counter affidavits accompanied with bunch of documents attached thereto have put up their best possible defence to resist C.M.A. No. 1949 of 2001. Even if they had been allowed any further opportunity to lead evidence in the matter, for which they did not move to the learned Single Judge at any time during the pendency of contempt application for more than twenty-one months, then too they could not have led any evidence beyond their own case/defence as set up in the counter-affidavits. Moving one step further, if the contents of counter affidavits filed by appellants are taken into consideration at their face value, then too gross and deliberate violation of order dated 4.12.1998 is conclusively proved against both the appellants. Needless to mention that law does not permit parties to violate the order of the Court by mutual understanding/consent/ agreement or compromise, as at best pleaded and urged by the appellants.

4. After careful examination of case record, we have no doubt in our minds to express that prima facie a collusive game of fraud was played by the two appellants for violation of order dated 4.8.1998 and their conduct during the pendency of the C.M.A. No. 1949 of 2001 was throughout contumacious. Learned Single Judge in his impugned order has thoroughly examined the case of both the appellants in a judicious manner and rightly convicted both of them for deliberate violation of order dated 4.8.1998.

5. The other submission of Mr. Sami Ahmed that the learned Single Judge while dealing with C.M.A. No. 1949/2001 was not legally competent to issue any directions to the appellants for re-deposit of rent in Court, are also ill-founded. Suffice it to observe that to seek implementation of its order, to meet the ends of justice and ensure the supremacy of law, the Court can follow any course, which is not prohibited by law and for this purpose inherent powers of the Court conferred by Section 151, C.P.C. could be exercised by it. Similarly the submission of Syed Tariq Ali, learned counsel for appellant Shoaib Yousuf that since he has complied with the directions issued to him in the impugned order, therefore, punishment awarded to him may be remitted, has no force, reason being that not only for withdrawal of rent deposited in M.R.C. No. 160/1998 he was hand-in-gloves with the other appellant but even after filing of C.M.A. No. 1949/2001 for more than 21 months, he persistently flouted the order dated 4.8.1998.

6. For the foregoing reasons we find no substance in these appeals, which are accordingly dismissed with costs. The appellants be taken into custody and remanded to Central Prison Karachi to serve thier respective sentences, awarded through impugned order.

(R.A.) Appeal dismissed.

PLJ 2005 Karachi 147 (DB)

Present: Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ.

ZAFARUL HAQ KHAN--Petitioner

versus

MUHAMMAD AMIN and others--Respondents

Constitutional Petition No. 1696 of 2003, decided on 12.11.2004.

(i) Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 173(3) & 561-A--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Cancellation of F.I.R.--Jurisdiction of Magistrate--Doctrine of "res judicata" or "functus officio"--Applicability--No specific provision exists in Criminal Procedure Code, under which question of cancellation of registered criminal case can be dealt with--Inherent powers have been given to Magistrate to cancel the case and Magistrate is within his power to cancel the F.I.R.--Such order passed by Magistrate being administrative order is not hit by doctrine of "res judicata" or doctrine of "functus officio"--Both the doctrines were not to apply to prevent exercise of administrative power--Administrative order could be challenged before High Court under S. 561-A, Cr.P.C. if same amounts to be an abuse of process of Court. [Pp. 153 & 154] A, B, C, E & F

PLD 1985 SC 62 and PLD 1962 Lah. 405 rel.

(ii) Criminal Procedure Code, 1898 (V of 1898)--

----S. 154--Investigation after submission of challan--Principles--Police Officer has jurisdiction to investigate a case in which F.I.R. has been registered under S. 154, Cr.P.C. in respective book of police station--Such power of police officer continues even after submission of challan in Court. [P. 154] D

(iii) Criminal Procedure Code, 1898 (V of 1898)--

----S. 173(3)--Police Rules, 1934, R. 47.7--Cancellation of F.I.R.--Investigation after cancellation of F.I.R. by Magistrate--Police submitted a report to Magistrate for cancellation of the case and Magistrate approved report, then the Magistrate passed order for cancelling the F.I.R.--Police cancelled the F.I.R. as per R. 47.7, Vol. III of Police Rules, 1934 by putting cross lines with red ink on F.I.R. available in the book maintained under S. 154, Cr.P.C.--After cancelling the F.I.R. in red ink, there remains no F.I.R. pending on the file of police--Once such situation arises, then no further

investigation can be conducted in such case without recalling the order of cancelling F.I.R. by Magistrate himself or getting it set aside from High Court. [P. 154] E

(iv) Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 154 & 173(3)--Police Rules, 1934, Vol. III, R. 47.7--Constitution of Pakistan (1973), Art. 199-Constitutional petition--Re-investigation of case--Cancellation of--F.I.R. lodged against petitioner was cancelled by Magistrate on the report of investigating officer, therefore, petitioner was discharged of the case--Application was filed by complainant to superior officer of police for re-investigation of the case--Without getting the order of cancellation of F.I.R. set aside from Court, the police re-investigated the case and arrested the petitioner--Validity--If re-investigation of cancelled F.I.R. could be undertaken under the orders of superior officer of police, then such superior officer of police would be acting as appellate forum over the orders of Magistrate--Such order of superior officer of police tantamounts to setting aside the order of Magistrate and the same could not be done as it was beyond the authority of a police officer concerned--Order of Magistrate either judicial or administrative could be set aside by concerned judicial forum and not by police officers directly or indirectly--If such order of superior police officer was implemented then investigation officer would start re-investigation of the case which otherwise he was not competent to do even on order of his superior officers--If a particular thing could not be done directly then it could not be done indirectly--Superior police officers were not competent to allow re-investigation of the case when the F.I.R. had been cancelled under orders of Magistrate--Re-investigation conducted by the investigation officer in the cancelled F.I.R. was abuse of process of law hence it had no legal effect and all subsequent actions on the re-investigation were illegal and void--Petition allowed. [Pp. 154 & 155] G & H

1995 P.Cr.LJ 440; 2000 PCr.LJ 580, 1983 PCr.LJ 2187; PLD 1986 Lah. 81; 2000 PCr.LJ 520; PLD 1986 Lah. 256; PLD 1985 SC 62; 1991 PCr.LJ 1755; 1974 PCr.LJ 394; 2004 PCr.LJ 1023; PLD 1967 SC 425; 1970 SCMR 178; PLD 1992 SC 263; 1993 SCMR 187; 1972 SCMR 335 and

1984 SCMR 221, ref.

Mr. F.M. Javed, Advocate for Petitioner.

Mr. Habib Ahmed, A.A.-G. for Respondent No. 4.

Respondent No. 1 (in person).

Date of hearing : 11.10.2004.

Judgment

Rahmat Hussain Jafferi, J.--The applicant has filed the present Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayers:

(a) declaration that the actions and act of the police officers/Respondents Nos. 2 to 4 for re-investigation/reopining of criminal case registered vide F.I.R. Nos. 480/2001 under Sections 420/468/471/506(1), P.P.C., P.S. Ferozabad, Karachi are illegal, unlawful, without jurisdiction, malafide, null and void having no legal effect in the eyes of law.

(b) directions to the Respondent No. 2 for registration of the case against the Respondents Nos. 1, 2, 3 and 4, and any other person involved in the offence, under the relevant provision of law and deal with them in due course of flow.

(c) Interim injunction restraining the Respondents Nos. 2 to 4 from further re-investigation of the case; F.I.R. No. 480 of 2001 during pendency of this petition.

(d) Award compensatory costs amounting to Rs. 5 lacs or as deemed fit by this Honourable Court to the petitioner against the Respondents Nos. 1 to 4 to be paid by them jointly and severally or by the State on behalf of the official respondents.

(e) Any other relief (s) deemed fit and proper by this Honourable Court under the special circumstances of the case."

1. Brief facts giving rise to the present petition are that the petitioner and his team members were dealing in Publicity Business. On April 8, 2000, the petitioner and his team members entered into an agreement with the Respondent No. 1 to work with them in the business. In pursuance of the said agreement, the parties worked together for some time as per terms and conditions of the agreement but due to high handedness of the Respondent No. 1 the petitioner and his team members were made to leave the Respondent 1. As some dues were outstanding against the Respondent 1 therefore the petitioner through his advocate served a legal notice dated 22.11.2001 on the Respondent 1: calling upon him to pay such dues. A notice was also published in a newspaper. In retaliation to the above notice, the Respondent 1 also published a defamatory notice alongwith photograph of the petitioner and his team members in daily "Dawn" and "Jang" dated 2.12.2001. He also printed and distributed a derogatory pamphlet containing photograph of the petitioner and his team members, causing extreme damage to their reputation in the market in particular and in public at large. In order to pre-empt the legal notice from the petitioner the Respondent 1 with mala fide intention and ulterior motive got a false case registered against the petitioner and his team members vide F.I.R. No. 480 of 2001 under Sections 200, 468, 471, 506(1), P.P.C. at Police Station Ferozabad Karachi on 4.12.2001. The petitioner and his team members obtained a bail before arrest from the Sessions Court. The police after usual investigation, on 7.6.2002 submitted a final report under Section 173, Cr.P.C. in the Court of IInd Judicial Magistrate Karachi East requesting for cancelling the case under "B" class for want of evidence. The said Magistrate approved the request of the police and cancelled the F.I.R. vide order dated 3.7.2002. On 6.12.2001, the petitioner filed a Civil Suit No. 127 of 2002 against the Respondent 1 and his firm for rendition of account, recovery of dues, damages, cancellation and permanent injunction in this Court, which still pending for adjudication.

2. In the above background, the petitioner submitted that on 31.7.2002 at about 7.00 p.m. the Respondent 4 on the directions of Respondents 2 and 3 arrested the petitioner, raided his house and houses of his team members. The petitioner was handcuffed and rough handed by the police at the instance of the Respondent 1. The police produced him before the IInd Judicial Magistrate Karachi East for obtaining remand on 1.8.2002. The petitioner was kept in police custody up to 6.8.2002 and throughout the period of his confinement he was extended threat to his life, pressurized to come to terms with the Respondent 1 and to withdraw the Suit No. 127 of 2002 pending before this Court. On his refusal, the petitioner was remanded to jail custody at the instance of Respondent 1 which has caused extreme harassment, insult, torture and threat to his life. The petitioner moved the Sessions Court for the grant of bail, which was granted on 7.8.2002. The rest of the team members were compelled to seek the pre-arrest bail and the Sessions Court admitted them to an interim bail before arrest on 3.8.2002. It is further alleged that the Respondents 2 to 4 are bent upon to carry on with the investigation of the case illegally thereby causing extreme harassment, torture and damage to the petitioner and his team members at the instance of Respondent 1. Therefore, he has filed the present petition.

3. The Respondent 1 filed his comments, in which he admitted the execution of the agreement between him, the petitioner and his team members to carry out works but denied that any dues were outstanding against him. However, he admitted the receipt of notice issued by the petitioner and publication of such notice in the newspaper. He also admitted the publication of his notices in the newspapers and distribution of pamphlet with the photograph of petitioner and his team members. He has also admitted the filing of F.I.R. No. 480 of 2001 and cancellation of such F.I.R. by the Magistrate. Nevertheless, he stated that he had moved an application before the higher officers of the police against the investigation officer for submitting incorrect challan before the Magistrate on which the case was cancelled. Therefore on the orders of superior police officer the case was re-investigated in which the petitioner was arrested who was produced before the Magistrate for obtaining remand which was granted to the police. He further stated that the police after usual instigation submitted the challan in the Court of law and now the case is pending before the Court. He has denied the other allegations of the petitioner.

4. The Respondent 4 also filed his comments in which he admitted the registration of F.I.R. No. 480 of 2001 and cancellation of such F.I.R. by the Magistrate on the report of the earlier investigation officer. However, he stated that he received the case under the orders of the D.I.-G., Karachi for re-investigation of the case. Therefore, he recorded the statements of witnesses and found the involvement of the petitioner and his team members in the case therefore the petitioner was arrested and subsequently produced before the Magistrate for obtaining the remand, which was accordingly given. After re-investigation of the case, he submitted the challan before the Court and that he committed no illegality in re-investigating the case under the orders of D.I.-G.

5. We have heard the advocate for the petitioner, Respondent 1 in person and Assistant Advocate General.

6. Mr. Sh. F.M. Javed, learned advocate for the petitioner has stated that in the first investigation, the Investigating Officer reported to the Magistrate that the case may be disposed of under "B" Class, as there was no evidence against the petitioner; that the learned Magistrate approved the said report and cancelled the F.I.R. He has further stated that after cancellation of the F.I.R., the same cannot be re-investigated or reopened by the Police without the permission of the Magistrate or getting the said order set aside, from the superior Court, therefore, the re-investigation of the case by the Police is illegal. In support of his arguments, he has relied upon the following cases:--

(1) Mulazim Hussain v. S.H.O., 1995 P.Cr.L.J. 440;

(2) Mir Dad Khan v. Zahir Shah, 2000 P.Cr.LJ 580.

(3) Asghar Ali v. The State, 1983 PCr.LJ 2187.

(4) Abdul Waheed v. The State, PLD 1986 Lahore 81.

(5) Soofi Abdul Qadir v. The State, 2000 P.Cr.LJ 520.

(6) Muhammad Ibrahim v. Qudratullah Ruddy PLD 1986 Lahore 256.

(7) Bahadur and another v. The State PLD 1985 SC 62.

(8) Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755.

1. On the other hand, Respondent No. 1, who was appearing in person has argued that after cancellation of the F.I.R. by the Magistrate, he had moved an application before the D.I.-G. Police, complaining against the earlier investigation, therefore, on the orders of D.I.-G. Police, the Respondent No. 4 re-investigated the case, who recorded the statements of witnesses and formed the opinion that the case was made out against the petitioner, therefore, he submitted challan. He has further stated that the case can be re-investigated under the orders of Senior Police Officers. He has relied upon the following cases:

(1) Abdul Hakim v. Bashir Ahmed, 1974 PCr.LJ 394.

(2) Farooq Sumar v. The State 2004 PCr.LJ 1023.

(3) Falak Sher v. The State 1967 SC 425.

(4) Muhammad Arif v. The State 1970 SCMR 178.

(5) Board of Intermediate and Secondary Education, Lahore v. Mst. Salma Afroze, PLD 1992 SC 263.

(6) Arif Ali Khan v. The State 1993 SCMR 187.

(7) Muhammad Akbar v. The State, 1972 SCMR 335.

(8) Mumtaz v. Mansoor Ahmed 1984 SCMR 221.

1. Mr. Habib Ahmed, learned Assistant Advocate General, who was assisted by Respondent No. 4, has argued that the order of the Magistrate, cancelling the F.I.R was an administrative order, therefore, if the Respondent No. 4 was dissatisfied with the said order, then he should have challenged the same before this Court under Section 561-A, Cr.P.C., but no step was taken by him for setting aside the said order. However, he has stated that Respondent No. 4 conducted the investigation under the orders of his superior officers and the investigation can be conducted even after the decision of the case.

2. Learned Assistant Advocate General was asked to show the order of the Competent Authority, ordering the re-investigation of the case. He after consulting the police papers and Respondent No. 4, was unable to show such order but he referred to the orders passed by the Senior Police Officers, on the application filed by the Respondent No. 1. The said orders are available on the record, which have been filed by the Respondent No. 1 through his counter affidavit. After going through the said orders, the learned Assistant Advocate General has frankly conceded that the last order passed by the superior police officer was to obtain the legal opinion in the matter and thereafter no legal opinion was obtained but instead thereof the Respondent No. 4 started the re-investigation. Faced with the above situation, the learned Assistant Advocate General frankly conceded that the superior police officer did not pass any order for re-investigation of the case.

3. We have given due consideration to the arguments, gone through the material available on record and find that the admitted facts are that on 4.12.2001, the Respondent No. 4 lodged F.I.R. Bearing No. 480 of 2001 under Sections 420, 468, 471 and 506(1), P.P.C., against the petitioner. The Police after investigating the case, on 7.6.2002 submitted a report with the approval of Respondents 2 and 3, before the Court of II-Judicial Magistrate, Karachi for cancelling the case as the police could not collect any evidence against the accused persons. Learned Magistrate after going through the material, approved the report and ordered for the cancellation of case vide order dated 3.7.2002. Thereafter, the F.I.R. Bearing No. 480 of 2001 of Police Station Ferozabad was cancelled. It further transpires that Respondent No. 4 started re-investigation of the case; therefore, the petitioner filed the present petition.

4. A perusal of Criminal Procedure Code reveals that there is on specific provision in it, under which question of cancellation of registered criminal case can be dealt with. However, the wording of Section 173(3), Cr.P.C., clearly indicates that it give inherent powers to the Magistrate to cancel the case. Similar question was examined by a Full Bench of Lahore High Court in the case of Wazir v. The State PLD 1952 Lahore 405. The Full Bench took the view that power of cancellation of F.I.R. is available in Section 173(3), Cr.P.C., because it is inherent in Section 173 read with Section 190, Cr.P.C., though the language of sub-section (3) does not specifically apply to the case. The Hon'ble Supreme Court of Pakistan approved the above observation of the Full Bench of Lahore High Court in the case of Bahadur v. The State, reported in PLD 1985 SC 62. In this case also the order of Magistrate cancelling the criminal case on the report of police was challenged. The Hon'ble Supreme Court of Pakistan held the said order to be administrative order of the Magistrate which cannot be challenged under Section 439, Cr.P.C. At page 65 it has been observed as under:--

"The Magistrate, by the impugned order, dealt with and disposed of a final report submitted to him under Section 173, Cr.P.C., recommending the cancellation of the registered criminal case. Neither Section 173, Cr.P.C., nor any other provision of the Criminal Procedure Code specifically deals with the question of cancellation of a registered criminal case. In the Full Bench decision Wazir, v. State PLD 1962 Lah. 405, such a power was found to be inherent in Section 173 read with Section 190 of the Code of Criminal Procedure though the language of sub-section (3) does not specifically apply to the case."

1. Thus, the Magistrate was within its power to cancel the F.I.R. The said order is an administrative order of the Magistrate as held in the case of Bahadur (supra). The administrative order of Magistrate is not hit by doctrine of res judicata or hit by doctrine of functus officio. These doctrines will not apply to prevent exercise of administrative power, as observed in Reid and David in Administrative Law and Practice, 2nd Edition, Canadian Legal Text Series observed at page 52.

2. The Administrative order can be challenged before the High Court under Section 561-A, Cr.P.C., if the order amounts to an abuse of the process of Court. Reference is invited to Arif Ali v. The State, 1983 SCMR 187.

3. If the Respondent No. 4 was dissatisfied with the investigation of the earlier Investigating Officer and the order of the Magistrate cancelling the F.I.R, then he should have invoked the jurisdiction of the High Court under Section 561-A, Cr.P.C., to rectify the said order but the Respondent No. 4 did not challenge the said order before the competent forum. However, instead thereof he moved an application before the D.I.-G. Police, making complaints against the earlier investigation. The last order passed by the D.I.-G. Police on the application of the Respondent 1 was to obtain legal opinion. Instead of obtaining legal opinion, the Respondent No. 4 started reinvestigating the case. As such, the Respondent No. 4 re-investigated the case without any authority or sanction of his superior officer.

4. It is pertinent to point out that a police officer has jurisdiction to investigate a case in which F.I.R. has been registered in 154, Cr.P.C, book of the police station. The said power of the police officer continues even after submission of the challan in the Court. However, position is quite different when after investigation; police submit a report to the Magistrate for cancelling the case under "B" class. If the Magistrate approves such report then he will order for cancelling the F.I.R. After passing such order by the Magistrate, the police would cancel the F.I.R. by putting cross lines on the said F.I.R. available in the 154, Cr.P.C, book in red inks as per Rule 47:7, Volume-III of Police Rules 1934. After crossing, the said F.I.R. in red ink then there will be no F.I.R. pending on the file of police. One such situation arises then no further investigation can be conducted in such case without recalling the order of cancelling the F.I.R. by the Magistrate himself or getting it set aside from the High Court.

5. If the police intend to re-investigate the case, then they have to approach the Magistrate for recalling his order of cancelling the F.I.R. If such order is recalled then the F.I.R. would become alive and thereafter re-investigation can be conducted. If the complainant or prosecution is aggrieved from such order of the Magistrate, then they can challenged the said order before the High Court under Section 561-A, Cr.P.C. If the said order is set aside, then the Police would be competent to start the re-investigation. Thus without the Magistrate recalling such order himself or it is set aside by the High Court further investigation cannot be conducted in the said case.

6. If we accept the proposition that in such type of cases, re-investigation can be undertaken under the orders of superior officers of police, then superior officers of police would be acting as an appellate forum over the orders of the Magistrate. Superior officers of police by ordering re-investigation of the cancelled F.I.R., case, which was done under the orders of Magistrate, tantamounts to setting aside the said order of the Magistrate. It cannot be done as it is beyond the authority of a police officer how high so ever he may be. The order of the Magistrate either judicial or administrative can be set aside by the competent judicial forum and not by the police officers directly or indirectly. It the said order of the superior police officer is implemented then the investigation officer would start the re-investigation of the case, which otherwise he was not competent to do so even on the order of his superior officers. It is well settled that if a particular thing cannot be done directly then it cannot be done indirectly. Thereafter, superior police officers ar not competent to allow the re-investigation of the case, in a case, in which the F.I.R. has been cancelled under the orders of the Magistrate.

7. In the present case, more glaring factor is that the Respondent No. 4 started re-investigation of the case on his own, without obtaining permission or getting the order cancellation of F.I.R. cancelled from the Magistrate or getting it set aside from the High Court. Thus, the Respondent No. 4 has travelled beyond his jurisdiction thereby committed material illegality in re-investigating the case.

8. In view of the above discussion, the re-investigation conducted by Respondent No. 3 in the cancelled F.I.R. No. 480 of 2001, Ferozabad Police Station, Karachi, is an abuse of process of law hence it has no legal effect. Consequently, all subsequent actions on the said investigation are illegal and void. Thus, the petition is allowed in the above terms.

(R.A.) Petition allowed

PLJ 2005 Karachi 155 (DB)

Present: Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J.

MUSTAFA LAKHANI--Petitioner

versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI--Respondents

C.P. No. D-390 of 1988, decided on 20.7.2004.

(i) Pakistan Defence Officers Housing Authority Order, 1980 (P.O. 7 of 1980)--

----Art. 17(h)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Cancellation of plot under Art. 17(h) of Pakistan Defence Officers Housing Authority Order, 1980--Applicability--Allotment of the plot in question in favour of petitioner could be made by managing committee of society in accordance with bye Laws of Society--Petitioner had failed to produce a valid and proper order of Managing Committee of Society whereby a decision to allot the plot in question in favour was made--Contentions--Allotment letter was a fraudulent, bogus and illegal letter issued by then Secretary to Society who was involved in grave and serious practice of fraudulent, bogus illegal and mala fides allotment of plots in favour of several persons including petitioner--Where order on basis of which subsequent rights and privileges were claimed was found to be illegal void and mala fides then all superstructure by way of rights and privileges would fall to ground--Pronouncements made in cases of Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104--Home Secretary to Government of West Pakistan Lahore and other v. Jan Muhammad and others PLD 1969 SC 333 and Mansab Ali v. Amir and others PLD 1971 SC 124--(Supra) were applicable on all fours to facts of such case--Held : Order of allotment was illegal, bogus, mala fide and of no effect therefore subsequent payment made by petitioner by way of price and charges in respect of plot in question as well as of execution of--Petition dismissed. [Pp. 161 & 163] A & D

(ii) Legal or Moral Duty--

----Cancellation of plot under Art. 17(h) of Pakistan Defence Officers Housing Authority Order, 1980--Principle of--Legal moral duty or obligation--Validity--Society was under a legal or moral duty or obligation to allot the plot in question in favour of petitioner for legal service rendered without charging any fee, it is to be observed that petitioner had categorically stated that legal services were tendered on behalf of his senior colleague advocate who was legal advisor/consultant of society performance of work of legal assistance, advice and opinion was undertaken by petitioner on behalf of senior colleague and society could in no way be said to be under legal or moral obligation to petitioner--Obligation if any performing the duties would be to late Advocate who was legal adviser of society but was out of Pakistan during relevant period as a result of which petitioner as an associate or colleague was under a legal and moral duty to Late Advocate to provide assistance to society--Held: Petitioner claimed entitlement to allotment of plot was not exist and there was hardly ground for society to allot hi the plot in question for legal service rendered by him. [Pp. 161 & 162] B

(iii) Principle of Locus Poenitentiae--

----Applicability--Perpetual rights could not be acquired or gained on basis of illegal order--Allotment order was not a legal valid and bona fide order as basis thereof i.e. meeting of the Managing Committee of Society wherein decision was purportedly taken to allot the plot in question in favour of petitioner had never taken place, there was no basis for issuing allotment in question--On basis of illegal bogus and mala fide allotment order even if some decisive steps had been taken in nature of payment made by petitioner and execution of lease in his favour--Order of allotment would not become irrevocable and past and closed transaction--Held : Allotment order being illegal void mala fide and of no effect, no perpetual right could be acquired or gained by petitioner on basis of an illegal order.

[P. 162] C

Mr. Abul Inam, Advocate for Petitioner.

Mr. Nazar Hussain Dhoon, Advocate for Respondents.

Date of hearing : 9.3.2004.

Judgment

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

(a) Declare that the impugned order/decision dated 14th April, 1988 passed by the respondent is without jurisdiction, illegal, without lawful authority and of no legal effect.

(b) Direct the respondent to withdraw, rescind and/or cancel the impugned order/decision and restore the plot in question to the petitioner.

(c) Restrain and prohibit the respondent, its officers, employees, agents and assigns and/or any person or persons claiming through or under it from alloting, transferring, sub-leasing, encumbering, charging, alienating and disposing of Plot No. 104-C, Khayban-e-Badar, Phase VII measuring 600 square yards, situated in Pakistan Defence Officers Housing Authority, Karachi, in any manner whatsoever.

(d) Award costs of this petition, and/or

(e) Grant any other relief or relief in addition to the foregoing or such other orders and directions that this Hon'ble Court may deem fit and proper under the circumstances of the case.

The brief facts of the case as stated in the memo. of petition are that the petitioner was allotted a plot of land Bearing No. 104-C, Khayaban-e-Badar, Phase VII, measuring 600 Sq. Yds. (hereinafter referred to as the said plot) by Pakistan Defence Officers Cooperative Housing Society Limited (hereinafter referred to as the Society), the predecessor of the respondents Messrs Pakistan Defence Officers Housing Authority (hereinafter referred to as the Authority), vide letter dated 25.1.1978 in accordance with the provisions of the bye-laws. The petitioner submitted that such allotment was made in his favour for the services rendered by him to the Society. The allotment was followed by execution of sublease in form `A' on 4.2.1978. Subsequently in 1980 by President's Order No. 7 of 1980 (hereinafter referred to as the President's Order), the Society was superseded by the Authority. The Authority by virtue of the powers vested in it by Article 17(h) of the President's Order authorizing it to cancel allotment and transfer of plots whether residential or commercial issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society, cancelled the allotment/transfer of the said plot vide letter dated 14.4.1988. The petitioner was informed that the Executive Board of the Authority had cancelled his allotment. Feeling aggrieved and dissatisfied with the above order, the petitioner filed the present Constitutional petition for seeking the reliefs mentioned herein above.

The petition was allowed by this Court vide judgment dated 14.4.1993 holding that the impugned order cancelling the allotment of the said plot in favour of the petitioner was without lawful authority and of no legal effect. The judgment of this Court was assailed by the respondents before the Supreme Court, who vide order dated 3.7.1994 set aside the judgment and remanded the petition to this Court for fresh decision in accordance with law/bye-laws, after giving the parties opportunity of hearing.

After the remand order, fresh notices were issued to the parties and/or their Advocates and the matter was heard on 9.3.2004 when the arguments of Messrs Abul Inam and Nazar Hussain Dhoon, learned advocates for the petitioner and the respondents respectively were heard and the petition was reserved for judgment.

Mr. Abul Inam vehemently submitted that the Managing Committee of the Society, the predecessor of the respondents Authority, had allowed allotment of the said plot in its meeting held on 13.4.1976 and such allotment was made in accordance with the provisions of the bye-laws of the Society. He further submitted that in pursuance of the decision of the Managing Committee, letter dated 25.1.1978 was issued to the petitioner informing him of the allotment of the said plot in his favour and in pursuance thereof the petitioner made payments of a total sum of Rs. 35,165 which he was called upon to pay by the Society from time to time. Mr. Abul Inam contended that in view of the fact that the decision of the Managing Committee had been acted upon as a result of which the petitioner had made payments towards the price and other charges in respect of the said plot and A' lease had been executed in his favour, the respondents were precluded from cancelling the allotment of the said plot. His further contention was that in the present case the allotment was converted into a substantial right by execution ofA' lease by the Society in favour of the petitioner and the respondents in exercise of the powers conferred on it by the President's Order could not cancel or set aside `A' lease which could be done only in accordance with the provisions of law relating to cancellation of leases and documents. Mr. Abdul Inam also argued that the facts of the case also attracted the principle of locus poenitentiae as propounded by the Supreme Court and submitted that as the order of the Managing Committee had been acted upon resulting in creating of vested right in favour of the petitioner the same even if illegal or contrary to any provision of the law or the bye-laws could not be recalled, rescinded or cancelled. Mr. Abul Inam in support of his contention that the lease could not be cancelled by the respondents placed reliance on the case of Muhammad Arshad Jalil v. Pakistan Defence Officers Housing Authority and another PLD 1992 Kar. 304. Mr. Abul Inam in support of his contention that an order even if illegal, ultra vires or contrary to the provisions of law was acted upon, thereby conferring or creating legal right in favour of a party then the same could not be recalled or rescinded, placed reliance on the case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407.

Mr. Abul Inam further argued that the petitioner had become entitled to allotment of a plot under Bye-Law Category No. 8(1) of the Bye-laws of the Society as he had rendered legal services as an Advocate on behalf of the Society for which he was not paid any professional fee and to compensate him for his services the Society in the meeting of the Managing Committee decided to allot him the said plot.

Mr. Nazar Hussain Dhoon, Advocate for the respondents Authority controverted the arguments advanced by Mr. Abul Inam and submitted that the entire process of issuance of letter of allotment, making payments towards price and other dues/charges in respect of the said plot and execution of `A' lease was fraudulent, bogus, illegal and was done with mala fide intention by the then Secretary of the Society namely, Lt.-Col. (R.) G.M. Nizamuddin, who was found to be involved in a large number of cases of fraudulent, bogus and illegal allotments in favour of several persons including the petitioner and all such allotments/transfers were cancelled by the respondents in exercise of its powers under Article 17(h) of the President's Order. He further submitted that the illegality and the mala fides were apparent from the very letter of allotment which is dated 5.1.1978 purporting to informing the petitioner of allotment of the said plot in his favour in the meeting of the Managing Committee purported to have been held on 13.4.1976 and contended that the letter of allotment was issued after a lapse of twenty-one (21) months which in itself was sufficient to raise grave and serious doubts with regard to the genuineness of the allotment order. Apart from the above, he submitted that as a matter of fact no meeting of the Managing Committee had taken place on 13.4.1976 and in support of the above contention, he placed reliance on the Minutes Book of the meetings of the Managing Committee of the Society held during 1976, according to which no meeting of the Managing Committee had taken place on 13.4.1976 and submitted that this fact completely negated the claim of the petitioner and rendered the allotment as absolutely bogus, illegal and of no legal effect.

With regard to the contention that the respondents Authority in exercise of the powers conferred on it by Article 17(h) of the President's Order could not recall rescind or cancel A' lease executed in accordance with law, he submitted that when the initial order which formed the basis of the execution ofA' lease was illegal, contrary to law, bogus and fraudulent, then all subsequent orders made and actions taken on the basis of the original illegal, bogus and fraudulent order would be deemed to be without any sanction, illegal and of no legal effect in view of the settled principle that all subsequent orders passed on the basis of a void or illegal order either by the same authority or by other authority would be without any basis in law and such orders together with superstructure of right and obligation built upon, would fall to the ground, reliance was placed on the cases of (i) Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; (ii) Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another PLD 1969 SC 33; and (iii) Mansab Ali v. Amir and 3 others PLD 1971 SC 124.

We have considered the arguments advanced by the learned counsel for the parties and have also perused the material on record, the relevant provisions of the law/bye-laws and the case law relied upon the learned counsel for the parties.

Before proceeding to discuss the case in the light of the arguments advanced by the learned counsel, it will be appropriate to refer to the observations of the Supreme Court in its order dated 3.7.1994, whereby the judgment of this petition in favour of the petitioner was set said and the petition was remanded for fresh decision. The main point which weighed with the Supreme Court in setting aside the judgment of this Court and remanding the case for fresh decision appears to be the failure of this Court to examine the proceedings of the Managing Committee said to have been held on 13.4.1976, which was found by the Supreme Court to be essential for doing complete justice to the parties and for a just decision of the Constitutional Petition. It will be appropriate to reproduce the relevant portion from the order of the Supreme Court which is as under:--

"4. Learned counsel for the parties have argued for and against the aforesaid contentions. They have, however, agreed that under the bye-laws, the Managing Committee alone could make allotment of the plot to the respondent provided he was a member of the Society or there were special reasons and special circumstances in his favour and that this aspect of the case, requiring examination of the proceedings of the Managing Committee held on 13.4.1976, which was essential for doing complete justice to the parties and for the just decision of the Constitutional petition, has not received attention of the High Court.

It was for this reasons that we had asked Mr. Nazar Hussain Dhoon to produce the Minutes Book of the meetings of the Managing Committee of the Society for the year 1976, which was duly complied with by him. From perusal of the Minutes Book, it transpires that no meeting of the Managing Committee had taken place on 13.4.1976. It was further revealed that Meeting No. 3/1976 was held on 29.3.1976. Meeting No. 4/1976 was held on 19.4.1976; and subsequent meetings were held after 19.4.1976 but no meeting had taken place on 13.4.1976 as was claimed by the petitioner. Neither in the meeting of 29.3.1976 nor in the meeting of 19.4.1976 there was any material relating to the allotment of the plot in favour of the petitioner. Perusal of the Minutes Book of the meetings of the Managing Committee for the year 1976 completely erased the basis for allotment of the said plot in favour of the petitioner. It is to be noted that during the course of arguments before the Supreme Court the counsel for the petitioner had conceded that the allotment of the said plot in favour of the petitioner could be made by the Managing Committee of the Society in accordance with the bye-laws of the Society. The petitioner was failed to produce a valid and proper order of the Managing Committee of the Society whereby a decision to allot the said plot in his favour was made. The facts and circumstances lend support to the contention of Mr. Nazar Hussain Dhoon that the allotment letter dated 25.1.1978 was a fraudulent, bogus and illegal letter issued by the then Secretary to the Society who, according to Mr. Nazar Hussain Dhoon, was found involved a grave and serious practice of fraudulent, bogus, illegal and mala fides allotments of the plots in favour of several persons including the petitioner.

Taking up the contention that the Society was under a legal or moral duty or obligation to allot the said plot in favour of the petitioner for the legal service rendered by him without charging any fee, it is to be observed that in the memo of petition the petitioner had categorically stated that the legal services were rendered by him on behalf of his senior colleague late Sharaf Faridi, Advocate who was the legal adviser/consultant of the Society. The performance of work of legal assistance, advice and opinion was undertaken by the petitioner on behalf of his senior colleague and the Society could in no way be said to be under legal or moral obligation to the petitioner. The obligation, if any, in performing the above duties would be to late Sharaf Faridi who was the legal adviser/consultant of the Society but was out of Pakistan during the relevant period as a result of which the petitioner as an associate or colleague of late Sharaf Faridi was under a legal and moral duty to late Sharaf Faridi to provide assistance to the Society. In view of the above facts, the special circumstances/case on the basis of which the petitioner claimed entitlement to allotment of a plot did not exist and there was hardly any ground for the Society to allot him the said plot for the legal services rendered by him.

Relating to the contention that since order of allotment had been acted upon as the petitioner made payments of a total sum of Rs. 35,165 as demanded by the Society from time to time followed by execution of A' lease in his favour, the same could not be recalled, rescinded or cancelled in view of the principle of locus poeniteniae as enunciated in the case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (Supra), it is to be noted that the principle of locus poenitentiae is applicable if the order on the basis of which certain rights and privileges are claimed was a legal order and further that perpetual rights cannot be acquired or gained on the basis of an illegal order. As has already been observed above, the allotment order dated 25.1.1978 was not a legal, valid and bona fide order as the very basis thereof i.e. meeting dated 13.4.1976 of the Managing Committee of the Society wherein the decision was purportedly taken to allot the said plot in favour of the petitioner, had never taken place and, therefore, there was no basis for issuing the said allotment order. On the basis of such illegal, bogus and mala fide allotment order even if some decisive steps had been taken in the nature of payments made by the petitioner and execution ofA' lease in his favour, the order of allotment would not become irrevocable and a past and closed transaction. The basic order i.e. allotment order dated 25.1.1978 being illegal, void mala fide and of no effect, no perpetual right could be acquired or gained by the petitioner on the basis of such an illegal order.

The contention that A' lease had been executed by the concerned authority in accordance with law in favour of the petitioner and the respondents could not rescind, cancel or set aside the same which could be cancelled or rescinded in accordance with law relating to the cancellation of leases, deeds and such like documents is also without any force in view of the settled principle that where the order on the basis of which subsequent rights and privileges are claimed is found to be illegal, void and mala fide, then all superstructure by way of rights and privileges would fall to the ground. The pronouncements made in the cases of (i) Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; (ii) Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another PLD 1969 SC 333; and (iii) Mansab Ali v. Amir and 3 others PLD 1971 SC 124 (supra) are applicable on all fours to the facts of this case and it is held that as the order of allotment dated 25.1.1978 was illegal, bogus, mala fide and of no effect, therefore, the subsequent payments made by the petitioner by way of price and other charges in respect of the said plot as well as of execution ofA' lease in his favour were also illegal and of no effect and would not create any rights or privileges in favour of the petitioner in respect of the said plot.

For the foregoing reasons and discussion, we find that this Constitutional Petition does not merit consideration. Accordingly, it stands dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2005 Karachi 163 (DB)

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ.

HANIF AHMED BHATTI--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

Const. P. Nos. D-1310, 1324 and 1343 of 2004, decided on 23.12.2004.

(i) Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)--

----S. 5-A [as amended]--Constitution of Pakistan (1973), Arts. 199 & 25--Constitutional petition--Qualification for membership of Provincial Bar Council--Ordinance amending S. 5-A, inter alia had increased qualifying practice period from 7 years to 10 years which had affected as they were now no more qualified to stand for elections to Provincial Bar Council as members and amending Ordinance could not operate retrospectively to disadvantage of the petitioners that petitioners had acquired a vested right to contest elections of Provincial Bar Council that the notification dated 5.11.2004 issued by Returning Officer was void ab initio and of no legal effect; that elections of Provincial Bar Council be held for all the seats as per un-amended Legal Practitioners and Bar Councils Act, 1973, that amendment in question had reduced seats for Provincial Bar Council allocated to respective Districts which had adversely affected the petitioners such reduction brought could not affect their vested rights under unamended Legal Practitioners and Bar Councils Act, 1973--Validity--Held: Right to contest elections, was crystallized in favour of the petitioners on the day they filed their proposal on which date they stood qualified to do so, hence their matter would be a past and closed transaction between petitioners and State insofar as their right to contest election was concerned with could not be destroyed retrospectively through amending Ordinance--Vested right of the petitioners to have two members each returned to the Provincial Bar Council from the respective Districts, also had accrued to them when the election programme under the amended Act was announced, therefore the elections to the Provincial Bar Council from said Districts would remain unaffected by the amending Ordinance as well--Elections of Provincial Bar Councils having taken place under unamended Act, if the elections to the Provincial Bar Council (Sindh) were allowed to be held under the amended Act that would certainly be violative of the petitioners' fundamental right to the equal protection of law as enjoined under Art. 25 of the Constitution.

[Pp. 165, 168, 169, 170, 171 & 172] A, B, C, D, F, G, H, I & J.

PLD 1998 SC 388; PLD 1984; Quetta 117; PLD 1965 Pesh. 46; PLD 1964 SC 673; PLD 1969 SC 599; PLD 1961 (W.P.) Lah. 842; PLD 1966 Lah. 900; PLD 1986 Lah. 310; PLD 1995 SC 66; PLD 1999 SC 1026; PLD 1999 Kar. 372; 1992 SCMR 563; PLD 1993 SC 341; PLD 2001 AJ&K 60; 1998 SCMR 1404; 2003 PLC 143; 2002 SCMR 272; 1993 SCMR 1905 & 1986 SCMR 1917 ref.

(ii) Estoppel--

----Promissory estoppel--Government or a Government functionary competent to represent on behalf of the Government--Limitations.

[P. 169] E

Raja Qureshi, Abdul Hafeez Lakho and Ghulam Shabbir, Advocate for Petitioners.

Mr. Rasheed A. Rizvi, for Pakistan Bar Council, Abrar Hassan, for Sindh Bar Council, Anwar Manzoor Khan, Advocate-General, Sindh Returning Officer and Nadeem Azhar Siddiqui, D.A.-G. for Federation of Pakistan in all Petitions.

Dates of hearing : 23, 25, 26 & 30.11.2004 & 1.12.2004.

Judgment

Sarmad Jalal Osmany, J.--All the aforementioned petitions raise common issues of law viz., the applicability of the amendments to the Legal Practitioners and Bar Councils Act, 1973 (hereinafter the "Act") per Ordinance No. 111 of 2004 notified on 3.11.2004 (hereinafter the "Ordinance"), to the elections of the Sindh Bar Council which were announced on 16.9.2004 per notification of the same date published in the Sindh Government Gazette, Part II. Consequently these petitions are being disposed of through this common order.

1. Briefly stated the case of the petitioner in C.P. No. D-1310 of 2004 is that he was enrolled by the Sindh Bar Council as an Advocate on 3.2.1997 and hence having completed seven years of uninterrupted practice was entitled to contest the election to the Sindh Bar Council (per Section 5-A of the Act), which had been announced on 16.9.2004. Accordingly, he filed his proposal for such election on 25.10.2004, however, due to the amendment in Section 5-A of the Act, the practice period of seven years was increased to 10 years consequent upon which the learned Advocate General, in his capacity as the Returning Officer has also issued a notification dated 5.11.2004 taking cognizance of the aforementioned amendment and inter alia increasing the practice period to 10 years. So also the seats of District Karachi East have been reduced from six to four. Accordingly the petitioner has been adversely affected as he is now no more qualified to stand for the elections to the Sindh Bar Council as a member from District Karachi East the seats for which have also been reduced from 6 to 4. Hence, the petition praying for declarations that the Ordinance cannot operate retrospectively to the disadvantage of the petitioner especially when the election programme has already been notified; that the petitioner has acquired a vested right to contest the elections of the Sindh Bar Council from District East, Karachi once having filed his proposal on 25.10.2004, which cannot he taken away retrospectively through the Ordinance notified on 3.11.2004; that the notification dated 5.11.2004 issued by the Returning Officer is void ab initio and of no legal effect, and that the elections of the Sindh Bar Council be held for all the six seats for District Karachi East as per the unamended Act.

2. The case of the petitioners in C.P. No. 1324 of 2004 and 1343 of 2004 is that the Ordinance has reduced the number of seats for the Sindh Bar Council allocated for Larkana and Khairpur Districts from 2 to 1, which has adversely affected the petitioners who being practising advocates in the District of Larkana and Khairpur respectively can now only elect one member each to the Sindh Bar Council instead of two as per the unamended Act. According to the petitioners such reduction brought about through the Ordinance on 4.11.2004 could not affect their vested rights to elect two members each under the unamended Act, as the election programme had already been announced on 16.9.2004 by the Returning Officer. Hence, the petitioners pray for declarations that the Ordinance would not be applicable to the election programme announced by the Returning Officer on 16.9.2004 whereby two seats have been reserved for the Districts of Larkana and Khairpur each and that the said officer be directed to conduct the elections to the Sindh Bar Council on the basis of the said programme.

3. Mr. Raja Qureshi appearing for the petitioner in C.P. No. 1310 of 2004 has firstly submitted that as the term "election" has not been defined any where in the Act or the Rules framed thereunder this would then mean the entire election process as per the Programme announced on 16.9.2004. For this proposition he has relied upon; Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388) and Khushnood Ahmed v. President Cantt. Board (PLD 1984 Quetta 117). Hence, per learned counsel the petitioners vested rights came into operation the day he filed his proposal viz. on 25.10.2004 which could not thereafter be adversely affected by the amendments to the Ordinance being later in time. For this proposition he has relied upon Mardan Industries Ltd., v. Government of Pakistan (PLD 1965 Pesh. 46), Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) and Nabi Ahmed v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599).

4. Learned counsel's next contention was that under the Constitution of Pakistan the President only has power to promulgate an Ordinance when the National Assembly is not in session whose life in any event is four months. Hence, there was no compulsion to pass the Ordinance in a hurry when admittedly the Bill regarding the proposed amendments was already pending with the Senate. This, per learned counsel, gives the impression that the Ordinance was promulgated for ulterior motives and not in the best interest of the Lawyers Community which would then oblige this Court to consider the vires of the Ordinance. For this proposition he has relied upon Mian Iftikhar-ud-Din v. Muhammad Sarfraz (PLD 1961 (W.P.) Lah. 842), Zafar Ali v. Chief Settlement Commissioner (PLD 1966 Lah. 900), Asif Ahmed Ali v. Muhammad Khan Junejo (PLD 1986 Lah. 310 at page 322) and Sabir Shah v. Shad Muhammad Khan, (PLD 1995 SC 66 at page 207).

5. Finally, learned counsel has submitted that the Elections in the N.-W.F.P. have already taken place in June, 2004 under the unamended Act and hence it would be quite inequitable, in fact discriminatory for the application of the same law viz. the Act in the unamended form to NWFP and after the amendments to the rest of the Country particularly when the result would operate against the vested rights of the petitioner.

6. Mr. Abdul Hafeez Lakho, appearing for the petitioner in C.P. No. 1324 of 2004 has firstly submitted that the arbitrary reduction of the seats of Larkana District from 2 to 1 vide the Ordinance has adversely affected the vested rights of the petitioners who being practising advocates of the District can now only return one member to the Sindh Bar Council instead of two as previously. Per learned counsel these vested rights accrued to the voters of Larkana District i.e. the petitioners and other advocates enrolled in such district as soon as the election programme was announced on 16.9.2004. He has relied upon the cases cited by Mr. Raja Qureshi on the subject of vested rights. Furthermore, per learned counsel, the two seats for Sukkur District have been retained by the Ordinance although there is a difference of only 12 (twelve) in the number of advocates enrolled in Larkana and Sukkur Districts i.e. 456 as opposed to 468 respectively. Hence, the reduction of the two seats for Larkana to one would then be discriminatory since the number of seats for each District per the unamended Act were based on the formula in the unamended Section 5(2)(b) & (c) of the Act which was with reference to the number of enrolled advocates. Finally, learned counsel has also questioned the hurried manner in which the Ordinance was promulgated when the matter was pending with the Government since the year 2002 and with the Senate since August, 2004. Per learned counsel a debate on the proposed amendments in Parliament would have endorsed the views of all the concerned parties including the Lawyers Community. Whereafter perhaps a consensus could have been evolved. In this connection, he has relied upon Sabir Shah v. Shad Muhammad Khan (supra) and Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026).

7. Mr. Shabbir Shah, appearing for the petitioner in C.P. No. 1343 of 2004 wherein the amendments to the Ordinance have been impugned vis-a-vis the reduction of the seats of Khairpur District from two to one has also submitted that this would operate to the detriment of the advocates enrolled in the said District and against their vested rights acquired proper to the Ordinance. He has supported the arguments of Mr. Abdul Hafeez Lakho.

8. Mr. Abrar Hassan, appearing for the Sindh Bar Council in C.P. No. 1310 of 2004 has supported the arguments of Mr. Raja Qureshi, and Mr. Abdul Hafeez Lakho. He has further submitted that according to the scheme of the Act the members of the various Provincial Bar Councils are to elect the members of the Pakistan Bar Council. Since the elections to the N.W.F.P. Bar Council have already taken place hence they would have more representation on the Pakistan Bar Council if the elections to the Sindh and Punjab Bar Councils were held according to the amendments brought about in the Act. According to learned Counsel this would be evident from the fact that after the amendments only fixed number of candidates can be elected to the various Bar Councils viz. Punjab 75, Sindh 32, and Balochistan (sic) whereas N.-W.F.P. already has 32 members in its Bar Council. Learned counsel has further submitted that vested rights could not be taken away in a statute such as the Act which concerns the advocates right of representation to the Provincial Bar Councils, and ultimately to the Pakistan Bar Council, which is a fundamental right guaranteed by the Constitution.

9. Mr. Rasheed A. Rizvi, Vice-Chairman of the Pakistan Bar Council has submitted that the council as long as in 1992 had decided in a joint meeting held with the Provincial Bar Councils that the number of seats had to be decreased in each Province in view of the financial burden imposed upon the Pakistan Bar Council due to the increasing number of advocates in the country. In this connection he has referred to the minutes of such meeting dated 31.5.2002 which were conveyed to the Federal Law Secretary. Consequently Mr. Rasheed A. Rizvi has supported the amendments brought about in the Act through the Ordinance. However, according to him this should have been done a along time ago and perhaps the timing of the Ordinance was in-appropriate. Nevertheless, according to him vested rights can always be curtailed through legislation for which he has relied upon Ghulam Nabi v. Province of Sindh (PLD 1999 Karachi 372).

10. Mr. Nadeem Azhar Siddiqui, learned D.A.-G has firstly submitted that per Section 7 of the Act the elections are to be held on or before 30th November of the year in which the term of the Provincial Bar Council expires which is for five years and begins in January of the year following such elections. The last elections in Sindh were held in November 1999 and hence the term ended in November, 2004 whereas in N.-W.F.P. the elections were held earlier and the term ended in 2003. Consequently per the learned DAG as such elections in N.-W.F.P. were held in accordance with the unamended Act no fault can be found with the same. Thereafter, the Act was amended and consequently all future elections for the Provincial Bar Council are to be held in accordance with such amendments. As regards unfair discrimination, per learned DAG reasonable classification can be made by the State which would then not be in violation of Article 25 of the Constitution which guarantees equality before the law, but no equal application of the law. For this proposition he has cited Inam-ur-Rehman v. Federation of Pakistan (1992 SCMR 563) and Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341).

11. As regards the issue of vested rights the learned DAG has submitted that in elections matters, this would accrue to the candidate upon acceptance of his proposal, which would correspond to the scrutiny of the same and the display of list of the candidates who had been cleared to contest the elections by the Returning Officer. In this connection he has referred to Rule 5 of the Bar Council Rules and also Muhammad Yousuf v. Azad Government (PLD 2001 AJK 60). In any event per the learned D.-A.G., as per settled law vested rights can always be adversely affected/taken away through legislation for which proposition he has cited M.Y. Electronic Industries Ltd., v. Government of Pakistan (1998 SCMR 1404), Bank of America Employees' Union Federation of Pakistan (2003 PLC 143), Shadi Khan v. The State (2002 SCMR 272), Molasses Trading & Export (Pvt.) Ltd. v. Federation of Pakistan (1993 SCMR 1905). Hence even if such vested rights accrued to the petitioner when he filed his proposal by virtue of the amendments to the Act brought about by the Ordinance, he stood disqualified as the practice period had been increased to 10 years.

12. For all the foregoing reasons, the learned D.A.-G. has prayed that the petitions be dismissed.

13. We have heard all the learned counsel, the learned D.A.-G., the learned Advocate-General/Returning Officer and Mr. Rasheed A. Rizvi, Vice-President, Pakistan Bar Council. Our conclusions are as follows.

14. It would be seen that insofar as vested rights are concerned, the Hon'ble Supreme Court in the Molasses Trading case (supra) has unequivocal held that through legislation, vested rights created in favour of a citizen can be set at naught meaning thereby that such legislation would operate retrospectively. However, at the same time, the Hon'ble Supreme Court also opined that said legislation would not affect past and closed transactions. In the instant case the Hon'ble Supreme Court was examining the vires of Section 31-A of the Customs Act which is reproduced herein blow for case of reference:--

"Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of Sections 34 and 31, the rate of duty applicable to any goods shall include.... The amount that may have become payable in consequence of withdrawal of exemption from duty whether (the withdrawal is) before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit thereof."

It was held that after the insertion of Section 31-A of the Customs Act, the judgment of the apex Court in the case of Al-Samrez Enterprises (1986 SCMR 1917) which had validated vested rights acquired by the appellants by virtue of opening of letters of credit/conclusion of sale contracts, stood neutralized. The Honourable Supreme Court opined that the consequences which flowed from the act of withdrawal or modification of an exemption notification under Section 31-A would take effect with reference to the date of its issue irrespective of the fact that the contract for the import of goods and letter of credit had come into existence prior to such date. However, at the same time, the Honourable Supreme Court held that Section 31-A did not have the effect of destroying or reopening past and closed transactions and consequently where the bills of entry were presented prior to the insertion of Section 31-A in the Customs Act then the rate of duty payable would be that which was applicable on the date of the bill of entry. This would be for the reason that the liability to pay customs duty by the citizen crystallized on this date under Section 18 of the Act and once it has been paid the liability stood discharged. In other words the rights and liabilities of the importer attained finality on said crucial date. Inevitably, therefore, a vested right has been created and the transaction is closed by the qualification of the tax if any or by the discharge of liability on that date.

1. The judgment of the Honourable Supreme Court in the Molasses Case was followed by the apex Court in the case of M.Y. Electronics (supra). It was further held that the doctrine of promissory estoppel (vested rights) which was founded in equity arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government or a person competent to represent on behalf of the Government changes his position to his detriment, takes a decisive step, enters into a binding contract or incurs a liability then in such cases the Government would not be allowed to withdraw from its promise for representation. However, a general promise without any time limitation cannot bind the Government for all times to come. The enforcement of the doctrine of promissory estoppel against the Government or a Government functionary competent to represent on behalf of the Government is, however, subject to the following limitations:--

(i) the doctrine of promissory estoppel cannot be invoked against the Legislature or the Laws framed by it because the Legislature cannot make a representation.

(ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;

(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;

(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.

1. The Honourable Supreme Court further held in the instant case that in the absence of any period having been specified during which an exemption notification was to remain operative the benefits thereunder could only be availed of till such time such notification was withdrawn/superseded. Hence, the doctrine of promissory estoppel could not be pleaded by the assessee after the withdrawal of the exemption notification. However, the vested rights of the assessee acquired during the period when such notification was in the field viz. as to exemption from payment of sales tax etc., were upheld by the Honourable Supreme Court.

2. Applying the aforegoing principles to the facts of the present matters, it would be seen that the election programme was notified on 16;.9.2004 by the Returning Officer for elections to the Sindh Bar Council and accordingly the petitioner in C.P. No. 1310 of 2004 filed his proposal with the council on 25.10.2004 which was the last day for the receipt of the proposal as per the programme. It would be noted that on this day he was qualified to be a candidate for the elections as he had completed seven years of practice per Section 5-A of the unamended Act. The question to be decided now is whether the petitioner could claim vested rights to contest the elections on the day he filed his proposal viz. 25.10.2004. In this context it would be beneficial to refer to the reasoning of the Hon'ble Supreme Court in the Molasses case (supra) as to when the rights and obligations of the parties inter se viz. the Government and the citizen crystallized vis-a-vis creation of the right and discharge of the obligation. In the instant case it was held that the obligation to pay duty in terms of Section 30 of the Customs Act crystallized on the day the bill of entry was filed and correspondingly when such duty was paid the liability was discharged. It was further held by the Hon'ble Supreme Court, quote; "The mere fact that any proceedings remained pending for assessment of the tax by a statutory functionary for the purpose of recovery of the dues, will not prevent the law from operating and producing the result of closing the transaction. This is on the simple principle that every functionary is bound by the provisions of law and has to pass a lawful order which alone is protected. Besides on this date the liability to pay tax and the exemption from or mere calculation in terms of Section 30 read with Sections 18 and 19 of the Act, because the rate and value of the goods become fixed with reference to this date. Indeed no adjudicative process is involved in such a matter. Viewed in this perspective, if effect is given to the provisions of Section 31-A so as to undo the discharge of the liability which had already taken effect, it will amount to re-opening a past and closed transaction." Seen in this context, in our opinion upon a perusal of the election programme notified by the learned Returning Officer on 16.9.2004, insofar as the petitioner is concerned in C.P. No. D-1310 of 2004 his vested rights i.e. the right to contest the elections would accrue on the date he filed his proposals for the same viz. 25.10.2004, the other crucial dates notified in the programme vis-a-vis the petitioner, in our opinion, are ministerial in nature as these concern the display of the contesting candidates list on 30.10.2004, scrutiny of the proposals on 4.11.2004, display of the list regarding those candidates who had cleared the scrutiny 5.11.2004 withdrawal of proposals 8.11.2004, display of final list of unopposed candidates if any and contesting candidates, 11.11.2004, polling day and counting of votes by Polling Offices 27.11.2004, counting of votes by Returning Officer 8.12.2004 and declaration of final result 20.12.2004. Hence in our opinion, the entire election process is based upon proposals/nominations being filed by the contesting candidates and every other action to be taken regarding the process is dependent upon the same being filed. This is for the simple reasons that if there are no candidates there cannot be any elections. Consequently, in our opinion, the right to contest the elections crystallized in favour of the petitioner on the day he filed his proposal viz. 25.10.2004 on which date he stood qualified to do so. Hence this would then be a past and closed transaction between the petitioner and the State insofar as this right is concerned which cannot be destroyed retrospectively through the Ordinance. Similarly, the petitioners' vested right to seek election from six seats from Karachi East also accrued to him on 24.9.2004 which cannot be curtailed subsequently by the Ordinance by reducing the seats to four.

3. So also in our opinion, for the foregoing reasons, the vested rights of the petitioners in C.P. No. D-1324 of 2004 and D-1343 of 2004 i.e. to have two members each returned to the Sindh Bar Council from the Districts of Larkana and Khairpur respectively, also accrued to them on this date viz. 24.9.2004 when the election programme under the unamended Act was announced. Hence, the elections to the Sindh Bar Council from these two district would remain unaffected by the amending Ordinance as well.

4. Regarding the issue of discrimination vis-a-vis elections already having been concluded in N.-W.F.P. in June 2004 under the unamended Act, we would agree with the learned counsel for the petitioners that this would be the case insofar as elections to the Provincial Bar Councils in the other Provinces of the country are concerned. Indeed it would be an anomaly for elections to be held in N.-W.F.P. under the unamended Act and for the remaining Provinces under the amended Act firstly as to the number of seats since these have been reduced in the Punjab from 111 to 75, in sindh from 42 to 32 whereas there is no reduction in N.-W.F.P. where the number of seats are maintained at 28 and in Balochistan they have been increased from 5 to 8. Secondly, it would be seen that the practice period under the unamended Act under which the elections to the N.-W.F.P. Bar Council have already been held was seven years whereas under the amended Act it has been increased to 10 years. Thus in our view, if the elections to the Sindh Bar Council are allowed to be held under the amended Act this would certainly be violative of the petitioners fundamental right to be equal protection of the law as enjoined in Article 25 of the Constitution. Additionally, it would be seen that as the number of seats in the Sindh Bar Council have been reduced from 42 to 32 the Council would have lesser representation in the Pakistan Bar Council as the latter is to be elected by members of all the Bar Councils in the country. Consequently, as now 28 members have already been elected to the N.-W.F.P. Bar Council they would have a pro-rata higher representation in eh Pakistan Bar Council compared to Sindh Bar Council. Secondly, it would be seen that the seats of Larkana and Khairpur Districts have been reduced from 2 to 1 each in the amended Act while that of Sukkur District have been maintained at 2. This would again in our opinion be discriminatory as there is hardly any difference between the number of advocates enrolled in these three Districts. Hence there appears to be no good reason for reducing the number of seats in Larkana and Khairpur Districts to one each while retaining two seats in Sukkur District.

5. For all the foregoing reasons we had vide a short order passed earlier allowed the aforementioned petitions to the extent that the elections to the Sindh Bar Council would remain un-affected by the amendments brought about in the Legal Practitioners and Bar Council Act, 1973 through the Ordinance. As regards the vires of the same, we would not like to address this issue at present since it was pressed rather half heartedly by learned counsel for the petitioners. We would, therefore, leave this issue to be decided appropriately if it is addressed in any other matter.

(R.A.) Petition allowed

PLJ 2005 Karachi 173 (DB)

Present: Gulzar Ahmed and Mushir Alam, JJ.

Dr. AYAZ HUSSAIN--Petitioner

versus

PROVINCE OF SINDH through Secretary to Government, Local Government, Karachi and 8 others--Respondents

Constitutional Petition No. D-237 of 2003, decided on 26.11.2004.

(i) Sindh Local Government Ordinance, 2001 (XXVII of 2001)--

----Ss. 62 & 63--External and internal recall of Taluka Nazim--External recall of Taluka Nazim is dealt with S. 62 of Sindh Local Government Ordinance, 2001, while its S. 63 deals with internal recall of Taluka Nazim--Internal recall motion was moved against petitioner by respondent on ground of malpractice--Motion was rejected--Assailed--For external recall, power to move the motion was conferred on Zila Nazim only while for internal recall, power to move the motion was conferred upon a member of council--No need arises for calling of sessions for external recall, nor right is conferred on Taluka Nazim to appear and defend himself in House where the motion was required to be approved by simple majority of the total membership of House--For internal recall if Taluka Council is not already in session, its session was required to be summoned not earlier than three days but no later than seven days from the date of receipt of notice to move a motion and Taluka Nazim was conferred with right to appear and defend himself and motion was required to be approved by majority of the votes of its total membership through secret ballot--If motion fails nothing happens to Zila Nazim whereas if internal recall motion fails, the proposer and seconder of such motion lose their seats both as union nazim and member of Taluka Council--Provision regarding election authority causing the resolution to be voted upon by members of union council in Taluka and upon its approval consequences were the same in respect of external recall motion--No apparent prohibition exists in case of external recall in terms of S. 62 of Sindh Local Government Ordinance, 2001, of not moving the motion of external recall of Taluka Nazim before expiry of one year from rejection of previous motion whereas such provision is specifically made in S. 63(8) of Sindh Local Government Ordinance, 2001, dealing with internal recall motion--Scope, purpose, forum and manner of dealing with motion under Ss. 62 and 63 of Sindh Local Government Ordinance, 2001, are independent provisions which operate in their respective fields--Rejection of external recall motion under S. 62 of Sindh Local Government Ordinance, 2001, is not covered by the provisions of S. 63(8) of the Ordinance. [Pp. 175, 176 & 179] A & C

(ii) Interpretation of statutes--

----Section of statute--Scope and object of--Every section so statute is a substantive enactment in itself and its true meaning and effect depend on its own language context and setting. [P. 179] B

(iii) Sindh Local Government Ordinance, 2001 (XXVII of 2001)--

----Ss. 63 & 69--Constitution of Pakistan (1973), Art. 199--No confidence against nazim--Internal recall motion, notice of--Procedure--Petitioner was elected as nazim and internal recall motion against him was moved on the ground of malpractice--Notice was dispatched to petitioner through receipt press release and finally no confidence motion was passed against the petitioner--Notice of meeting was not properly served upon him and also, that Presiding Officer had no jurisdiction to preside over the meeting--Validity--Law did not provide for any specific mode, manner and forum in which notice of internal recall motion was to be given to nazim--Through receipt of press release, petitioner was conveyed the allegations against him and further through publication in press petitioner was conveyed notice of meeting to be held on specified date, it was for the petitioner to have availed statutory right under S. 63(7) of Sindh Local Government Ordinance, 2001, and appeared in house to defend himself--Petitioner did not avail opportunity and thus he could not raise grievance in respect of the resolution of no confidence passed against him--Petitioner did not dispute that the panel of Presiding Officers was not elected in terms of the provisions of S. 69(5) of Sindh Local Government Ordinance, 2001, nor disputed that respondent was not among elected panel of Presiding Officers--Petitioner also did not dispute the fact of moving of internal recall motion against Naib Taluka Nazim--No illegality appeared in respondent acting as Presiding Officer of the meeting--Internal recall motion was rightly passed against petitioner and High Court declined to interfere in same--Petition dismissed.

[P. 180] D & E

2001 SCMR 914 distinguished.

Mr. Illahi Bux Kehar, Advocate for Petitioner.

Mr. Inayatullah Morio, Advocate for Respondents Nos. 6 to 8.

Mr. Muhammad Bachal Tunio, Addl. A.-G.

Date of hearing : 20.11.2004.

Judgment

Gulzar Ahmed, J.--The petitioner has made following prayer in this petition:--

(a) It be declared that the proceedings conducted by Respondent No. 6 and the recall motion passed by the meeting conveyed by Respondent No. 6 are void and without lawful jurisdiction.

(b) That the petitioner continues to be the Nazim Taluka Administration, Miro Khan.

(c) Restrain the respondents from interfering with the petitioner's performance of his duties, and implementing the decision.

(d) Costs.

(e) Any other relief to which the petition is found fit.

Brief facts of the matter are that the petitioner was elected as Nazim, Taluka Municipal Administration, Miro Khan. It is alleged that on 9.9.2003 an internal recall motion was moved against the petitioner by the Respondent No. 3 in the Zila Council Larkana on the ground of malpractice. The motion was fixed for deliberation of 11.9.2003 of which notice was given to the petitioner and the petitioner also attended the session and explained his position pleading his innocence. It is stated that the motion was rejected. It is alleged that Respondents 6, 7 & 8 and other members of Taluka Council, Miro Khan addressed a letter to the Respondent No. 5, the Naib Nazim, Taluka Municipal Administration, Miro Khan for calling a meeting of Taluka Council to discuss some important affairs. It is stated that no specific Agenda was mentioned in the requisition letter. The Respondent No. 5 fixed the meeting of the Taluka Council on 18.9.2003. A day before the meeting, Respondent No. 5 adjourned the meeting. Intimation of such adjournment of the meeting was sent to the members and it was also pasted on the Notice Board. It is alleged that the Respondents Nos. 6, 7 and 8 and other persons reached the office of the petitioner broke its gates, locks and took away the files. On intimation to the police such respondents and other persons were removed from the office premises and in this respect of F.I.R. was also lodged. It is alleged that on 18.9.2003 petitioner received a press release signed by Respondents Nos. 6, 7, 8 and 15 other Members that next meeting of Taluka Council will be held on 20th September, 2003. It is alleged that on 20.9.2003, no meeting was held but on 22.9.2003 at 2.00 p.m. the petitioner received notice through TCS courier service signed by Respondent No. 6 styling himself as Presiding Officer of Taluka Council which contained that the Respondent No. 7 has proposed no confidence motion against the petitioner which would be deliberated upon and voted at 11.00 a.m. on 22.9.2003 in the office of the Union Council. On 23.9.2003, the petitioner learnt through press that no confidence motion has been passed against him by the Taluka Council, Miro Khan. The petitioner thus filed this petition. The Respondents Nos. 2, 3 and 7 have filed counter affidavits/comments. Petitioner has filed rejoinder affidavit.

We have heard the arguments of the learned counsel appearing for the parties and have gone through the record. Mr. Illahi Bux Kehar learned counsel appearing for the petitioner has firstly contended that motion of internal recall cannot be moved against the petitioner in view of the provision of Section 63(8) of Sindh Local Government Ordinance, 2001 (to be called the Ordinance) as the motion of external recall under Section 62 of the Ordinance tabled against the petitioner stood already rejected. He has relied upon the case of Ibrar Hussain v. Government of N.-W.F.P. 2001 SCMR 914.

Mr. Inayatullah Morio learned counsel appearing for Respondents Nos. 6, 7 and 8 contended that the provision of Section 63(8) of the Ordinance has no application to the case and on this count the internal recall motion passed against the petitioner cannot be challenged. To appreciate the respective submissions of the learned counsel it will be advantageous to reproduce the provision of Sections 62 and 63 of the Ordinance which are follows:--

"62. External recall of Taluka Nazim.--(1) If in the opinion of the Zila Nazim, the continuance in office of a Taluka Nazim is against the public policy or interest of the people or he is guilty of misconduct, the Zila Nazim may move a motion in the Zila Council stating the grounds for the recall of Taluka Nazim.

(2) Where the motion referred to in sub-section (1) is approved through a resolution passed by a simple majority of the total membership of the Zila Council, the Election Authority shall cause such resolution to be voted upon by the members of the Union Councils in the Taluka.

(3) Where the motion referred to in sub-section (1) is approved by a simple majority of the total membership of the Union Councils in the Taluka, the Taluka Nazim shall cease to hold office from the date of the notification issued by the District Government under sub-section (4).

(4) The result of the approval of the resolution of the Zila Council referred to in sub-section (2) and approval of motion referred to in sub-section (3) by the members of the Union Councils in the Taluka shall immediately be notified by the District Government in the official Gazette.

(5) Nothing contained in sub-sections (1) and (2) shall affect the provisions of Section 161 in respect of removal of Taluka Nazim by the Chief Election Commissioner.

1. Internal Recall of a Taluka Nazim.--(1) If in the opinion of a member of the Taluka Council, there is a reason to believe that the Taluka 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 second by another member of the Council, give a notice to move a motion in the Taluka Council through Naib Taluka Nazim for recall of Taluka Nazim.

(2) On receipt of notice referred to in sub-section (1), the Naib Taluka Nazim shall summon a session of the Taluka Council not earlier than three days but not later than seven days, if the Taluka Council is not already in session.

(3) where the Taluka Council is already 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 Taluka 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 District.

(5) Where the motion is approved by a simple majority of the total members of Union Councils of the Taluka, the Taluka 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 Taluka Council, the proposer and seconder of such motion shall lose their seats both as Union Nazims and members of Taluka Council.

(7) The Taluka Nazim shall have the right to appear before the Taluka Council and address it in his defence.

(8) No motion for recall of Taluka Nazim shall be moved during the first six months of assumption of office of Taluka Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion.

The perusal of the above quoted two sections show that one namely Section 62 deals with the external recall of Taluka Nazim while the other namely Section 63 deals with internal recall of Taluka Nazim. Procedure for initiating and its ultimate approval on rejection and its consequences are distinctively mentioned in two provisions. It will be noted that for external recall power to move the motion is conferred to Zila Nazim only while for internal recall, the power to move the motion is conferred to a member of Taluka Council seconded by another member of Taluka Council. For external recall, the motion is moved in Zila Council while for internal recall is moved in Taluka Council. Further for external recall there appears to be no need for calling of sessions of Zila Council nor right is conferred on Taluka Nazim to appear and defend himself in the Zila Council. In Zila Council the motion is required to be approved by simple majority of the total membership of Zila Council. For internal recall, if Taluka Council is not already in session, its sessions is required to be summoned not earlier than three days but not later than seven days from the date of receipt of notice to move a motion and the Taluka Nazim is conferred with right to appear and defend himself and the motion is required to be approved by majority of the votes of its total membership through secret ballot. In case of external recall, if motion fails nothing happens to Zila Nazim whereas if internal recall motion fails, the proposer and seconder of such motion lose their seats both as Union Nazim and Member of Taluka Council. The provision regarding Election Authority causing the resolution to be voted upon by the Member of Union Council in Taluka and upon its approval the consequences are the same in respect of external and internal recall motion. There is no apparent prohibition in the case of external recall in terms of Section 62 of not moving the motion of external recall of Taluka Nazim before the expiry of one year from the rejection of the previous motion whereas such provision is specifically made in Section 63(8) dealing with the internal recall motion. The submission of the petitioner's counsel is that the provision of Section 63(8) should be read in conjunction with the provision of external recall. Learned counsel has cited the case of Ibrar Hussain (supra) which deals with the interpretation of proviso to statute and upon perusal of the cited judgment we find that it has no application to the case in hand. The question in the present case is whether the provision of Section 63(8) which appears in the section specifically dealing with the subject of internal recall will also include the subject to external recall as laid down in Section 62 of the Ordinance. In Bindra's Interpretation of Statute 7th addition at page 62 the author has laid down the rule as to how section and sub-section of statute are to be interpreted.

"8. Sections.--Sections constitute the principal or enacting part of a statute. Every section of a statute is substantive enactment in itself. One section may contain more than one enactment. Each section in each Act must, for its true meaning and effect, depend on its own language, context and setting. In Nuth v. Tamplin Jessel, M.R., observed: "Now any one who contends that a section of an Act of Parliament is not to be read literally must be able to show one of two things, either that there is some other section which cuts down its meaning, or, else that the section itself is repugnant to the general purview of the Act," and yet, if we find a latter section in such Act repugnant to a former one, the latter must be accepted as repealing the former?

A section has only one interpretation and one scope; a process resulting in more than one interpretation and scope is clearly erroneous.

Every section must be considered as a whole and self-contained, with the inclusion of saving clauses and provisos. It is an elementary rule.' says Subbarao, J.that construction of a section is to be made of all the parts together and that' it is not permissible to omit any part of it. Sub-sections in a section must, therefore, be read as part of an integral whole and as being inter-dependent, each portion throwing light, if need be, on the rest, and harmonious construction should be placed on their for the purpose of giving effect to the legislative intent and object! So also, sentence should be construed in its entirely in order to grasp its true meaning.

1. Sub-sections.--All sub-sections of section must be read as a `parts of an integral whole' inter-dependent. Repugnancy between them must be avoided and they must be reconciled to the extend possible. (Karanataka Rent Control Act, 1961)'.

On the basis of the rule of interpretation of section as quoted above, it is clear that every section of statute is a substantive enactment in itself and its true meaning and effect depends on its own language context and setting. In the present case there is no provision similar to Section 63(8) in Section 62 nor the meaning and effect of the language of Section 63(8) leads to that its provision will also have application to external recall motions as provided in Section 62. The scope, purpose forum and manner of dealing with motion under Sections 62 and 63 are different. We are therefore of the considered view that both Sections 62 and 63 are independent provision which operate in their respective field and the rejection of external recall motion under Section 62 is not covered by the provision of Section 63(8) of the Ordinance.

The learned counsel for the petitioner further argued that the petitioner was not served with the notice of moving of internal recall and thus no opportunity was provided to him to appear and defend himself and that even notice of internal recall was vague and did not contain any specific allegation against the petitioner and that the Respondent No. 6 has illegally posed himself as Convenor of the meeting. In reply Mr. Inayatullah Morio contended that the Respondent No. 6 was appointed as a senior member of the council in terms of Section 69(5) of the Ordinance and thus was competent to act as convenor or the Taluka Council as there was motion of no confidence against Naib Nazim also. He further contended that the petitioner was aware of the holding of the meeting in which the motion of recall was to be tabled and that the notice contained allegation against the petitioner. He has referred to the press release annexure `G' to the petition and notice published in daily Ibrat dated 20.9.2003.

So far the contention of non-service of notice to the petitioner of moving of internal recall motion against him, the petitioner in para. 10 of the memo of petition has admitted that on 18.9.2003 he received a press release signed by Respondents 6, 7, 8 and 15 other members that the next meeting has been decided to be held on 20.9.2003. The press release shows that the members of the Taluka Council have made allegations against the petitioner of misuse of power, sanctioning contracts to favorites, fixed his commission, ignored issues including cleanliness of city, education, health and others and that he is incompetent. It seems that on 18.9.2003 motion of internal recall of the petitioner was tabled by Respondent No. 7. Respondent No. 6 as Convenor called the session of the Taluka Council on 22.9.2003 at 11.00 a.m. to discuss the motion. It seems that notice of this meeting was sent to the petitioner but says that he received this notice at 2.00 p.m. on 22.9.2003 through T.C.S. and learnt of passing of no confidence resolution against him through press on 23.9.2003. The Respondent No. 6 in para. 10 of his counter affidavit has specifically alleged that notice was also published in daily Ibrat on 20.9.2003 and has attached a copy of such publication with counter affidavit. The petitioner in his rejoinder affidavit has not denied this publication of notice nor alleged that he has not seen such notice. The notice published in daily Ibrat dated 20.9.2003 was addressed to the petitioner and it contains that the meeting of the Taluka Council has been summoned on 22.9.2003 at 11.00 a.m. in the Office of Union Council, Miro Khan to discuss internal recall motion against petition and the petitioner has been asked to appear in the meeting to defend himself. It seems that petitioner has chosen not to attend the meeting and consequently the motion appears to have been carried and no confidence resolution passed against the petitioner. It may be noted that law does not provide for any specific mode, manner and forum in which the notice of internal recall motion is to be given to the Taluka Nazim. In the present case through receipt of press release, the petitioner was conveyed the allegations against him and further through publication in press the petitioner was conveyed the notice of meeting on 22.9.2003. It was for the petitioner to have availed the statutory right under Section 63(7) of the Ordinance and appeared in the Taluka Council and defended himself. The petitioner did not avail this opportunity and thus in our view he cannot now raise grievance in respect of the resolution of no confidence passed against him.

As regard the question of competence of Respondent No. 6 to act as convenor, it may be noted that the Respondent No. 7 in para. 7 of his counter affidavit has specifically pleaded that the was elected as a Presiding Officer under Section 69(5) of the Ordinance as there were two internal recall notices one against the petitioner and the other against the Naib Taluka Nazim. This plea of the Respondent N. 6 is not disputed by the petitioner in his rejoinder affidavit. Besides Section 69(5) provides that in its first session, the Taluka Council shall elect a panel of Presiding Officers, in order of precedence of not less than three members who shall in the absence of or in the case where a motion for recall of Naib Taluka Nazim has been moved preside over the meeting of the Taluka Council. The petitioner has not disputed that the panel of Presiding Officers was not elected in terms of the above provision nor has disputed that the Respondent No. 6 was not among the elected panel of Presiding Officers nor has disputed the fact of moving of internal recall motion against the Naib Taluka Nazim. Thus on face of the record, there was no illegality in the Respondent No. 6 acting as Presiding Officer of the meeting. No other ground was urged by the petitioner counsel.

For the foregoing reasons, we find no merit in this petition which is accordingly dismissed. The office objection and the listed applications are also disposed of.

(R.A.) Petition dismissed

PLJ 2005 Karachi 181 (DB)

Present: Sabihuddin Ahmed and Amir Hani Muslim, JJ.

NASEEM AKHTAR KHAN--Petitioner

versus

DISTRICT AND SESSIONS JUDGE--Respondent

Constitutional Petition No. D-7 of 2005, heard on 7.1.2005.

(i) Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 4(p), 22-A(6)(iii), 154 & 551--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Justice of Peace--Jurisdiction--Powers of Sessions Judge/Ex-Officio to order registration of case against Police Officer--Respondent had filed application before Sessions Judge against that S.H.O.--Sessions judge finding that it was mandatory duty of the petitioner to record F.I.Rs., directed that F.I.R. as required by respondent be duly registered and further required the T.P.O. concerned to register a case against S.H.O. for negligence in complying with requirements of

S. 154, Cr.P.C.--Petitioner had challenged such order alleging that respondent had no jurisdiction to make said order--Validity--Contention of petitioner was untenable in view of special provisions of S. 22-A(6(iii), Cr.P.C. which had explicitly provided that respondent acting as ex-officio Justice of the Peace could always issue appropriate direction to Police Authorities on a complaint regarding negligence or failure by a Police Authority in relation to its functions--T.P.O. being a supervisory officer and superior in rank to petitioner could exercise powers to register case against the petitioner. [P. 182 & 183] A

(ii) Criminal Procedure Code, 1898 (V of 1898)--

----S. 22-A--Police Order (XXIII of 2002), Art. 35--Jurisdiction of zila nazim and Sessions Judge--Justice of Peace--Petitioner against whom criminal case was ordered to be registered for his negligence by Justice of the Peace had contended that responsibility to deal with complaints of negligence of concerned police officers were required to be entertained by Zila Nazim under Art. 35 of Police Order, 2002 and not by respondent--Contention was repelled as there was nothing to suggest any inconsistency between Art. 35 of Police Order, 2002 or S. 22-A, Cr.P.C. and prima facie both Nazim and Justice of the Peace had current powers in terms of specific statutory provisions under which they had been respectively conferred such powers--S. 22-A, Cr.P.C. was added in Cr.P.C. on 21.11.2002 whereas Police Order, 2002 was promulgated earlier in time on 14.8.2002 therefore latter/Police Order, 2002 could not be deemed to prevail over the former/S. 22-A, Cr.P.C. under doctrine of implied repeal. [P. 183] B

(iii) Police Order (XXII of 2002)--

----Arts. 35 & 155(2)--Constitution of Pakistan 1973, Art. 199--Criminal Procedure Code (V of 1898), S. 22-A & Second Sched.--Initiation of prosecution--Police Order, 2002, only required prosecution to be initiated upon a written report, but did not say that no arrest could take place without warrant--Offence being punishable with imprisonment up to three years, it would be deemed to be cognizable under Section Schedule to Cr.P.C.--Petition dismissed. [P. 183] C

Mr. Nawab Mirza, Advocate for Petitioner.

Mr. Abbas Ali, A.A.-G.

Date of hearing : 7.1.2005.

Order

The petitioner has called in question the order dated 20.11.2004 and 21.12.2004 under Section 22-A Cr.P.C. passed by the learned Sessions Judge and ex-officio Justice of Peace Karachi East in Criminal Miscellaneous Nos. 411 and 455 of 2004. The facts leading to the passing of the aforesaid two orders seem to be more or less similar and same questions of law are involved in both these matters. It appears that separate applications were made by the Respondent No. 2 in both these matters before the ex-officio Justice of Peace (Respondent No. 1) alleging that the petitioner who was working as S.H.O. P.S. Zaman Town Karachi was not performing his legal obligations in registering F.I.Rs. relating to commission of cognizable offences. The Respondent No. 1 found that it was the mandatory duty of the petitioner to record an F.I.R. whereafter the investigation would commence and directed that a F.I.R. be duly registered. At the same time the T.P.O. Korangi Town was required to register a case against the petitioner for negligence in failure to comply with the requirements of Section 154, Cr.P.C.

1. Mr. Nawab Mirza learned counsel for the petitioner in the first instance argued that the learned ex-officio Justice of Peace had no jurisdiction to make the latter part of the order i.e. direct registration of a case against the petitioner. We regret we find this contention to be untenable in view of the specific provisions of Section 22-A (6)(iii) of Criminal Procedure Code duly amended in 2002. The above provisions explicitly show that a Sessions Judge acting as ex-officio Justice of Peace can always issue appropriate directions to the police authorities on a complaint regarding non-registration of a criminal case or neglect or failure by a police authority in relation to its functions.

2. Learned counsel next argued that the T.P.O. is a supervisory officer and does not fall within the definition of "officer in charge of police station" contemplated by Section 4(p), Cr.P.C. and could not therefore, register a case under Section 154 Cr.P.C. We find no force in this contention either as much as Section 551 clearly provides that police officers superior in rank to an officer incharge of a police station may exercise powers of the latter throughout the local area to which they are appointed.

3. (sic) Thirdly Mr. Nawab Mirza argued that the responsibility to deal with complaints of neglect of police officers are required to be entertained by a Zila Nazim under Article 35 of the Police Order, 2002 and not by the Sessions Judge. We regret our inability to accept this contention either. In the first place there is nothing to suggest any inconsistency between Article 35 of the Police Order or Section 22-A, Cr.P.C. and prima facie both the Nazim and the Justice of Peace have concurrent powers in terms of the specific statutory provisions under which they have been respectively conferred. Moreover Section 22-A was added in the Criminal Procedure Code through Ordinance CXXXI of 2002 on 21.11.2002 whereas the Police Order was promulgated earlier in point of time i.e. on 14.8.2002. Therefore, the latter could not be deemed to prevail over the former under the doctrine of implied repeal.

4. Fourthly Mr. Nawab Mirza argued that under Article 155(2) of the Police Order prosecution for offences under sub-clause (1) required a report in writing by an officer authorized under the rules and there was nothing to indicate that the T.P.O. was so authorized. We do not think it is necessary to go into this question at this stage inasmuch as the T.P.O. has only been directed to register a case and no prosecution in a competent Court has commenced as yet. Finally learned counsel further argued that an offence under Article 155 of Police Order was non-cognizable. We are not impressed by this contention either. Indeed the Police Order only requires a prosecution to be initiated upon a written report but doe snot say that no arrest can take place without a warrant. The offence being punishable with imprisonment up to three years, it would be deemed to be cognizable under the Second Schedule to the Cr.P.C. For the foregoing reasons, we find no substances in these petitions and dismiss them in limine.

(R.A.) Petition dismissed

PLJ 2005 Karachi 184

Present: Shabbir Ahmed, J.

Haji MUHAMMAD HAROON

and others--Plaintiffs

versus

ABDUL GHAFFAR and others--Defendants

Civil Suit No. 132 and C.M.A. No. 784 of 2004, decided on 4.10.2004.

(i) Transfer of Property Act, 1882 (V of 1882)--

----S. 41--Principle of estoppel--Validity--Provision of S. 41 of Transfer of Property Act, is statutory application of law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has--Principle underlying the provision of S. 41 of Transfer of Property Act, is that whenever one of the two innocent persons has to suffer by of a third persons, he who has enabled the third person to occasion the loss, must sustain it. [Pp. 196 & 197] A & C

(1872) 11 BLR 46 ref.

(ii) Transfer of Property Act, 1882 (V of 1882)--

----S. 41--Transfer of ostensible owner--Pre-conditions--The conditions are necessary for the application of S. 41 of Transfer of Property Act, 1882:--

Transferor was ostensible owner; and he is so by consent, express or implied, of real owner--Transfer is for consideration; and Transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

[P. 196] B

PLD 1983 SC 53; 1976 SCMR 489; 1983 SCMR 1199; 1984 SCMR 1027 & 1987 SCMR 192 rel.

(iii) Land Acquisition Act, 1894 (I of 1894)--

----Ss. 16 & 17--Words and Phrases--Term vest'--Applicability--Possession of land acquired--Effect--Once possession of land has been taken under S. 17(1) of Land Acquisition Act, the land vests in the Government--Property so acquired, upon happening of certain events, vests absolutely in Government free from all encumbrances--Contemplated by Ss. 16 and 17 of Land Acquisition Act--Property acquired becomes the property of Government without any condition either as to title or possession--Legislature made it clear that vesting of the property is not for any limited purpose--Wordvest' does not have fixed connotation in all cases that the property is owned by the person in whom it vests.

[P. 199] D

AIR 1957 SC 344, rel.

(iv) Land Acquisition Act, 1894 (I of 1894)--

----Ss. 16 & 17--Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2--Specific Relief Act (I of 1877), Ss. 42 & 54--Interim injunction, grant of--Acquisition of land--Suit land was acquired by municipal authorities in the year 1961, for establishing wool washing area--Owners of land received compensation and the possession was handed over to concerned authorities--After acquired land was converted into plots which were auctioned by authorities--Defendants were auctioned purchasers of suit land and after allotment they constructed boundary walls around their plots and fixed steel gates--Plaintiffs claimed to have purchased the suit land from the owners and had also received possession of the suit land--Application for interim injunction was filed by plaintiffs--Validity--Once possession of land had been taken over under S. 17(1) of Land Acquisition Act, the original Khatedaran who accepted the compensation without protest or otherwise had not challenged acquisition proceedings and after about 40 years, the plaintiffs could not challenge the same--Plaintiffs claimed to have purchased suit land through sale-deeds wherein the land sold was not shown to have been bounded by wall with gates--Version given by defendants was supported by the report of Nazir--Plaintiffs were purchasers from the legal heirs of original Khatedaran who had received the compensation--Land had changed its character after acquisition from agriculture to industrial--Sellers had no right in suit property--Plaintiffs had no prima facie case nor balance of convenience was to their favour--On contrary if injunction was granted, the owners of suit land, who had purchased in from the municipal authorities, would suffer and would be more inconvenienced--Application for interim injunction was dismissed. [Pp. 199 & 200] E & F

1991 SCMR 2180; AIR 1926 PC 100; AIR 1927 All. 339; AIR 1914 All. 521; AIR 1914 Oudh 235; AIR 1916 All. 1; AIR 1921 All. 248; PLD 1972 Lah. 495 and PLD 1994 SC 245 ref.

Mr. Abid S. Zuberi, Advocate for Plaintiffs.

Khawaja Shamsul Islam, Advocate for Defendants Nos. 1 to 5.

Mr. Abbas Ali, Addl. A.-G. for Defendants Nos. 6, 7 and 10.

Mr. Manzoor Ahmed, Advocate for Defendant No. 9.

Date of hearing : 13.9.2004.

Order

This order shall dispose of the application (C.M.A. No. 784 of 2004), filed by the plaintiffs seeking injunctive order against the defendants, their agents, employees, staff, from interfering with the plaintiff's peaceful possession over the land, admeasuring 7.10 acres out of Survey No. 21, Deh Ganghrio, Bin Qasim Town, Karachi, covered by boundary wall (in short the suit land) and not to dispossess them from the suit land forcibly in any manner without the process of law.

The application is supported by affidavit of plaintiff Muhammad Zubair, asserting therein that the plaintiffs have made out a prima facie case, balance of convenience lies in their favour, they are the real owners of the suit-land. The Record of Rights is mutated in their favour, and defendants are trying to dispossess them illegally, unlawfully and forcibly. In case, the application is refused, they shall be seriously prejudiced.

The plaintiff's case as disclosed in the plaint is that they have purchased suit-land from owners vide registered Sale-Deeds after legal formalities and the Sellers also handed over the Heirship Certificate with the copies of the Record of Rights. They have obtained the mutation and previous owners had handed over the possession of the admeasuring 7.10 Acres alongwith its boundary wall. It is the further case of the plaintiffs that the defendants. In collusion with each other, have tried to create hindrance in their possession. The Survey Superintendent demarcated the Survey No. 21, Deh Ganghrio. Bin Qasim Town, Karachi and also issued the sketch. On attempt to dispossess plaintiffs, the Constitutional jurisdiction of this Court was invoked by the plaintiffs and from the side of the defendants, proceeding under Section 145(iv) Cr.P.C. was initiated, which was also dismissed. The private defendants are claiming their title on the K.M.C. land situated on Plots Nos. 75, 76, 77, 88, 89, 90, 99, 100, 113 and 114, situated at Wool Washing Area; Landhi, Cattle Colony, Karachi, whereas, the plaintiff's land is Kabooli land of Survey No. 21, Deh Ghanghrio, Bin Qasim, Karachi. The defendants are trying to interfere with the possession. Hence the suit with following reliefs:--

(a) To declare that the plaintiffs are the owners of land admeasuring 7 acres 10 Ghuntas adjacent to each other in Survey No. 21, Deh Ghanghrio, Bin Qasim Town, Karachi.

(b) To restrain the defendants, their person/persons, agents, employees, servants, subordinates, relatives, friends, legal heirs, assigns, or anybody else acting through or under them and/or on their behalf not to interfere in the peaceful possession of land in possession of the plaintiffs which is covered by boundary wall, admeasuring 7 acres and 10 Ghuntas on Survey No. 21, Deh Ghanghrio, Bin Qasim Town, Karachi in any manner of whatsoever nature directly and/or indirectly.

(c) To restrain the defendants, their agents, servants, employees, subordinates, relatives, friends, legal heirs, assigns, person/persons or anybody else acting through or under them and on their behalf, not to dispossess the plaintiffs from the above said land illegally, unlawfully and forcibly in arbitrary manner and/or in any manner of whatsoever nature directly and/or indirectly without due course of law.

(d) Any other relief/reliefs which this Honourable Court may deem fit and proper in favour of the plaintiffs under the circumstances of the case.

The application is opposed by private Defendants Nos. 1 to 5, 6, 7, 8, 10, and 9 by filing separate counter affidavits.

The case of the Defendants Nos. 6, 7 and 10 is that the Survey No. 21 Deh Ghanghrio, measuring about 14.20 acres was acquired for erstwhile K.M.C. as long back as in the year 1961 under the provisions of Land Acquisition Act. The original Khatedars, namely, (1) Muhammad son of Anjario, (2) Usman son of Bakar, (3) Basra daughter of Bakar, (4) Hawi wife of Bakar and Mooso son of Esso received the compensation for their respective shares in the year 1963. The alleged sale of 7.10 acres of Survey No. 21 out of total area of 14.20 acres is nothing but a fraud perpetuated by the seller and the plaintiffs. It was their plea that on the date of alleged sale i.e. 21.8.2003 and 10.9.2003 neither the land was available for sale nor the sellers had any title or right to sell the same to the plaintiffs. It was also pleaded that for acquiring Survey No. 21 Deh Ghanghario, measuring 14.20 acres following proceedings took place:--

(a) Notification Bearing No. 19/64/61-Rev dated 20.10.1961 was issued under Section 4 of the Land Acquisition Act.

(b) Notification under Section 6 of the Acquisition Act was duly issued.

(c) The award passed by the Deputy Commissioner, Karachi.

(d) Statement showing compensation payable to landowner.

(e) Payment orders of compensation to landowners.

(f) Compensation amount paid to the legal heirs of Mooso son of Esso.

It was also pleaded that the previous owners were well aware of the fact that the Survey No. 21 Deh Ghanghario was acquired. No objection to sell or no objection certificate was of no legal effect as one who is not owner cannot sell a land which was not owned by him. They have also denied the issuance of no objection and so the physical possession of the plaintiffs.

The case of the Defendants Nos. 1 to 5 is that the suit-land is situated in previous Survey No. 21 which was acquired by the Karachi Metropolition Corporation (now City District Government Karachi) for Wool Washing Area, Landhi Cattle Colony and after acquiring the same, the K.M.C. had announced the project of Wool Washing Area and notice was published regarding auction of the suit property in various newspapers, whereby the defendants purchased the plots in question in an open auction from K.M.C. In the year 1972. The auctions were held on 16.1.1971 and 24.10.1971 under the rules for management and disposal of waste lands within the Municipal limits of Karachi. The Licensor, K.M.C. (now City District Government Karachi) has leased suit property to the defendants which is near about 40,000 sq.yds. Approximately 12 acres. The auction was approved by Commissioner and they were put into possession in the suit property on 7.12.1971 and in 1972. The defendants are allottees of Plots No. 75, 76, 77, 88, 89, 90, 99, 100, 113, 114, situated in Wool Washing Area, Landhi, Cattle Colony, Karachi, measuring about 40,000 sq. yds., being relatives to each other, they amicably chosen to cover all the areas with one boundary wall by affixing two iron gates in order to save the property from the land grabbers. The defendants have paid the auction amount and were put into respective possession. The plaintiffs have allegedly purchased 7.10 acres out of Survey No. 21. Deh Ghangiaro Bin Qasim Town, Karachi through registered sale-deeds from the flictitious persons without any right, title and without clarifying the survey numbers and clarification from the Revenue as well as the K.M.C. (now City District Government Karachi) and illegally, malafidely, forcibly duly armed with deadly weapons trespassed the plots and forcibly dispossessed the defendants by throwing out the Chowkidar by force. They have also admitted moving of applications against the plaintiffs. In counter-affidavit, the same facts were reiterated.

Rejoinder was separately filed, wherein they have maintained that for acquisition of land procedure under Land Acquisition Act has to be followed, no such procedure was ever carried out nor any entry was ever made in the record of right, showing the K.M.C. ever acquired any vested right in the area now being claimed by the defendants as Wool Washing Area. They have denied the K.M.C. acquired the property for consideration from one Usman and the documents annexed with the defendants' counter-affidavit or written statement are to be taken as forged one.

During the hearing, the file pertaining to the acquisition of Survey No. 21 of Deh Gangiaro for "Public purpose" i.e. shifting of Wool Washing Tanneries was produced. Registers of Village Form VII pertaining to the years 1936-37 to 1966-67 and from 1997 to current were also produced and perused. Perusal of file reveals that by Letter dated 15.8.1961 of Mukhtiarkar, Karachi, intimated Deputy Commissioner, Karachi with regard to the handing over of 250-20 acres of land in Deh Gangiaro to KMC, and request of Chairman K.M.C. that Survey No. 21, measuring 14.20 acres inclaved by Government land measuring 250-20 acres be acquired under the Land Acquisition Act and kept at the disposal of the KMC, with detail report with regard to the owners of the land bearing Survey No. 21, required to be acquired and of taking steps for acquiring Survey No. 21 under the Act. There is another letter dated 26.7.1961, containing the facts regarding area required by KMC on the eastern side of the land reserved for cattle colony in the same zone and the details of the land covered by the plane received was as under:--

Deh S. No. Area Name of owners Share Evacuee

involved or Non-

Evacuee

Gangiaro N.C.46 and 246-6 Government -- --

76 2-0

Abondoned 0.14 -- -- --

Road Dharo 2-0

Gangiaro Kabuli 21 14-20 1. Muhammad Angiario 0-4-0 Non-

2. Muhammad Hussain 0-4-0 Evacuee

3. Usman Bakar 0-2-4 "

4. Basra d/o Bakar 0-1-2 "

5. Hawi w/o Bakar 0-0-6 "

0-4-0 "

6. Mooso s/o Isso

Total: 265-0 1-0-0

The Notification No. 19/64/61-Rev, dated 20.10.1961 was issued, whereby the land specified in the schedule annexed is needed for establishment of Wool Washing Godown, Tanneries, Horns etc. for the public purpose. The schedule reads as under:--

SCHEDULE

Taluka Karachi District Karachi

Taluka Deh S.No. Total Area Approx. Area

(in acres) required (in

acres)

Karachi Gangiaro 21 14-20 14-20

(Sd. G.A. Madani)

Commissioner of Karachi.

It was issued by the then Commissioner G.A. Madani to the Manager, Government Press of Pakistan, Karachi for publication in Karachi Gazette and its copy was also sent to the Chairman, Karachi Municipal Corporation and the Deputy Commissioner, Karachi, followed by the Notification under Section 6 with further direction under sub-section (1) of Section 17, that on expiration of 15 days from the publication of the notice relating to the said land under sub-section (1) of Section 9, the Collector to take possession of all the vest or arable land specified in the Notification.

The Deputy Collector, Land Acquisition, Karachi was appointed under Clause (C) of Section 3 to perform the functions of Acquisition Collector for all proceedings to be taken in respect of the land and he was further directed under Section 7 of the Act to take order for the acquisition of the said land. Notice under Section 9 of the Act issued, containing the Schedule, the land acquired to (1) Usman, (2) Basra, (3) Hawi and (4) Mooso. There is a report of Mukhtiarkar with regard to the service of notice under Sections 9 and 10. The Deputy Commissioner Karachi, S. Munir Hussain recorded award on 3.1.1962 and sent award for approval by the Commissioner vide letter dated 17.2.1962 and was approved by the then Commissioner, Karachi on 20.3.1962. Statement of Compensation payable to the owners dated 4.7.1963 contains the names of owners, their shares and amount payable and the mode and date of payment which is as follows:

The perusal of record also shows that the amount of compensation was received by Mahmood son of Angario, Muhammad Hussain son of Angario, Usman son of Bakar, Basra daughter of Bakar, Hawi wife of Bakar and Mooso son of Isso, on his death, compensation was paid to his legal heirs, namely Qasam son of Husain, Isso son of Husain, Fatima daughter of Husain, Hawa daughter of Husain on 15.8.1963. There is also an undated application by Usman and Qasam, stating therein that they received the compensation awarded under protest with a request that the case may kindly be referred to the Court under Section 18 of the Land Acquisition Act, it contains a submission note that it was filed on 19.6.1966. Matter was not referred under Section 18. No step was taken by the original Khatedars, challenging the, acquisition with regard to the compensation or the area of the land acquired.

Nazir's report dated 24.3.2004 in pursuance of order dated 19.3.2004 is in the following terms:--

"The land about 12 acres was bounded with old boundary walls of which southern side wall was found only half. About 7 acres 10 Ghuntas was in possession of plaintiff, one Haji Yameen was present for them. Two iron big old gates with north sides boundary wall and old room 10 x 10 feet each without plaster were available with the boundary wall of east, north and west. With chapper 75 buffaloes were standing on west portion. Adjacent to the boundary wall of eastern side there was a wall of height of 6 feet of 90 x 20 feet length and width without plaster available. Remaining land was open to sky. The land about 3 acres or moreso out of 12 acres was found open to sky with the possession of Naeem his servant Arif, who was supervising the bifurcating wall between 7 acres 10 Ghuntas and 3 acres or more so which was found at the time of inspection up to the foundation level of which eastern portion about 30 RFT raised up to 5 feet height. The entrance of 3 acres portion is from the portion of 7 acres 10 Ghuntas of the plaintiff."

I have heard Mr. Abid S. Zuberi, learned counsel for the plaintiffs. Mr. Khawaja Shamsul Islam, learned counsel for the Defendants 1 to 5, Mr. Abbas Ali, Additional Advocate-General for Defendant 6, 7 and 10 and Mr. Manzoor Ahmed, learned counsel for Defendant No. 9, who has adopted the arguments of the learned Additional Advocate-General.

The principles for the grant or refusal of temporary injunction are:-

(a) Whether the plaintiff has prima facie good case;

(b) whether the balance of convenience lies in favour of grant of injunction and lastly;

(c) whether the plaintiff would suffer irreparable loss if the injunction is refused.

These principles are to be applied on the basis of facts and circumstances of the case.

Plaintiffs need to establish is that there is a prima facie existence of a right and threatened infringement.

The learned counsel for the plaintiffs in support of the application contended that the plaintiffs are bona fide purchasers from the ostensible owners and they were put in possession was such they have a good prima facie case and his further contention as that the land was not acquired and even if it was acquired, it cannot be said to be legally acquired for want to gazette notifications under Sections 4 and 6 of the Land Acquisition Act. He maintained that in case, the injunction is not granted, the plaintiffs would suffer loss that which cannot be compensated in terms of money.

Opposing the injunction application, learned Additional Advocate-General contention was that the land was acquired for Public purpose in year 1961, compensation was paid to the original Khatedars in the year 1963 for establishment of Wools Washing Area. Godown and tanneries etc., by K.M.C. Once the original Khatedars have received the compensation, no further proceedings were taken by them, land so acquired vest in the Government and subsequently transferred to KMC and original Khatedars have no right nor the legal heirs could have any right in the land so acquired and any mutation in favour of the legal heirs and subsequent sale by them by registered sale-deeds or otherwise will not confer any right and title to the plaintiffs over the land.

Learned counsel for the Defendants Nos. 1 to 5's contention was that the KMC by public auction, auctioned the plots and the defendants purchased the Plots Nos. 75, 76, 77, 88, 89, 90,99, 100, 113, 114 of the Wool Washing Areas, Landhi Cattle Colony, Karachi, total measuring 40,000 sq. yards and all the allottees are relatives inter se, and they chosen to cover all the area with one boundary wall by affixing two iron gates in order to save the property from the land grabbers. He maintained that the defendants were in peaceful possession and they were dispossessed by throwing out the Chowkidar by force. He further maintained that the Revenue staff with collusion with heirs of Usman son of Bakar have manipulated the Revenue record. His submission was that the plaintiffs have no right and title in the property. In case the injunction is granted, the actual owner would suffer and they cannot be compensated in terms of money.

Elaborating first contention, learned counsel for the plaintiffs contended that the plaintiffs have purchased the property from legal heirs, as such, they are protected in terms of Section 41 of the Transfer of Property Act.

Learned counsel for the plaintiffs with vehemence has contended that the plaintiffs have taken all the precaution, they have obtained the Heirship Certificate, mutation is in the name of legal heirs and after obtaining the no objection from the Revenue, have entered into sale transaction through sale-deeds, thus they are protected under Section 41 and his further contention was that even if the land was acquired in absence of Gazette notification under Sections 4 and 6 of the Land Acquisition Act, all the proceedings were nullity in the eye of law and no right of the original owners had extinguished and to support his contention, referred the case of Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCMR 2180).

Section 41 of the Transfer of Property Act reads as follows:--

"41. Transfer of ostensible owner.--Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."

Celebrated Author, Mulla in his book "Transfer of Property Act" has pointed out the foundation of this section by referring a passage from the judgment of the Judicial Committee in Ramcoomar v. Macqueen (1872) 11 Bengal Law Report 46"--

"It is a principle of natural equity which must be university applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."

The section is a statutory application of the law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section is "whenever one of the two innocent persons has to suffer by the act of a third person he who has enabled the third person to occasion the loss must sustain it."

The following conditions are necessary for the application of the section, namely:--

(i) the transferor is the ostensible owner;

(ii) he is so by the consent, express or implied, of the real owner;

(iii) the transfer is for consideration;

(iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Reference in this behalf can be made to the case of Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).

Next question is as to whether the plaintiffs are bona fide purchasers and are entitled to the benefit of Section 41 of the Transfer of Property Act. This question came up for consideration in Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489), wherein it was held that where it was found that the vendor has no right, title or interest in the demised property, no protection can be given to him on the basis of Section 41 of the Transfer Property Act. The same rule was reiterated in (1) Bashir Ahmed and others v. Additional Commissioner and others (1983 SCMR 1199), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027) and (3) Ejaz Ahmed Khan v. Chahat and others (1987 SCMR 192).

Now the question is whether the mutation entries in the Record of Rights creates any title in favour of any person. In Nirman Singh v. Rudra Partab Narain Singh (AIR 1926 PC 100), Judicial Committed held that "mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that they are much more of the nature of fiscal enquiries instituted in the interest of the State for the purposes of ascertaining which of the several claimants for the occupation of certain denomination of immovable property may be put into occupation of its with greater confidence that the Revenue for it will be paid."

The same view was reiterated in Ram Sarup Rai v. Charitter Rai (AIR 1927 Allahabad 339), Rasulan Bibi v. Nand Lal (AIR 1914 Allahabad 521), Mahadeo Singh v. Jagmohan Singh (AIR 1914 Oudh 235), Mst. Jagrani v. Bisheshar Dube (AIR 1916 Allahabad 1) and Baldeo Singh v. Udal Singh (AIR 1921 Allahabad 248). Judicial Committee reaffirmed its view that "the mutation of names sanctioned by the Revenue Authorities does not confer title and an order passed in mutation proceedings on the basis of an unregistered deed cannot validate the transaction covered by that deed so as to make it admissible in evidence without registration".

The view expressed by the Judicial Committee was also followed in case of Kaniz Fatima v. Member Board of Revenue (PLD 1972 Lahore 495), that the mutation does not create a title in favour of the person and also does not adversely affect the rights of any person. It is only for correcting the entries in the Revenue Record to facilitate the recovery of the land revenue.

In Muhammad Ali v. Hassan Muhammad (PLD 1994 SC 245), the apex Court has approved the view expressed in the above cases that "it is well-settled that entries in the Revenue Record can neither create nor extinguish the title to the property. These entries are maintained mainly for fisal purposes".

Apparently, the conditions 1, 2 and 3 are missing in the instant case, therefore, this plea is not available to the plaintiffs.

The second contention of the learned counsel for the plaintiffs was that in absence of Gazette Notification, the proceedings are illegal and without jurisdiction and the right of the original owner is not extinguished.

Conversely, learned Additional Advocate-General and the learned counsel for the private defendants have with vehemence contended that once the land has been acquired in accordance with the law and the compensation was received by the original owners and the register of village Form-VII pertaining to the years 1936-37 and 1966-67 contains the entries against Survey No. 21, that on verification of record of file, it transpired that Survey No. 21, 14.20 acres, Deh Ghangiaro was acquired for Wool Washing by KMC as per Notification 19/64/61-Rev dated 20.10.1961 of the Deputy Commissioner, Karachi. It was canvassed that under the provisions of Section 129(c) of the Qanun-e-Shahadat presumption is attached to the judicial and official acts that same have been regularly performed and on the basis of presumption of law which has not been dislodged by the plaintiffs, it has to be presumed that the disputed land was acquired after observing all the formalities of law and as such, legal heirs had vested right in the land when the compensation was already received by the actual khatedars. They have also placed their reliance on the judgment referred by plaintiff's counsel.

I have referred the acquisition proceedings taken for the acquisition of Survey No. 21, Deh Ghanghiaro. The Survey No. 21 was inclaved with the Government land, which was given to the KMC for Wool Washing and tanneries purposes. The notifications under Sections 4 and 6 were issued and sent to the Manager, Government Press of Pakistan, Karachi for publication in Karachi Gazette, Khatedars, namely Mahmood Angiaro, Muhammad Husain, Usman Bakar, Kibrani, Hawa and Mooso were served with notice under Section 9 of the Land Acquisition Act. Mooso son of Isso died during the proceeding his legal heirs Qasim, Isso, Fatima and Hawai were paid compensation after the award. Once the possession of land under sub-section (1) of Section 17 has been taken the land vest in the Government. The term "vest" used in Sections 16 and 17 of the Act came for interpretation before the Supreme Court of India in The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust (AIR 1957 SC 344), it was held that the Sections 16 and 17 of the Land Acquisition Act, provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests.

I am of the view that once possession of land has been taken over under Section 17(1), the original Khatedars accepted the compensation without protest or otherwise have not challenged the acquisition proceedings and after about 40 years, the plaintiffs cannot challenge the acquisition proceedings. It is the case of the plaintiff that suit-land measuring about 7-10 acres was sold to them through two sale deeds, Annexures P-1 and P-14. The perusal of the sale deeds, the land sold was not shown bounded by the wall with gates. The schedule of the first deed is reproduced as follows:--

SCHEDULE REFERS TO ABOVE

Joint and divided shares to the extent of 0-8-0 share admeasuring 7 acres and 6 Ghuntas of the Vendors in all pieces or all portions of Kabooli Land bearing Survey No. 21 Deh Gangiaro share of Khatedars as in the Deed, situated at Bin Qasim Karachi in the territorial jurisdiction of P.S. Sikhan, District Sub-District, City Taluka and Town of Bin Qasim, Karachi.

Whereas the case of the Defendants Nos. 1 to 5 is that they purchased the plot in Wool Washing Area through public auction from KMC and they have raised boundary wall and affixed the gate. The version

given by the defendants is supported by the Nazir's report referred to above that the area covered by the boundary wall is in excess of the area claimed by the plaintiffs. The plaintiffs are purchasers from the legal heirs of original Khatedars who have already received the compensation. The land has changed its character after acquisition from agricultural to industrial. The sellers had no right in the property.

Therefore, I am of the view that the plaintiffs have no prima facie case nor the balance of convenience lies in their favour, on the contrary if the injunction is granted, the owners of the lots, who have purchased in from KMC would suffer and would be more inconvenienced.

In the light of above discussion, I am of the view that the plaintiffs have failed to make out a case for injunction, nor balance of convenience lies in their favour. Consequently, the application is dismissed.

(R.A.) Application dismissed.

PLJ 2005 Lahore 994

Present: Ch. Ijaz Ahmad, J.

JAFFAR HUSSAIN--Petitioner

versus

MEMBER (JUDICIAL-IV) BOARD OF REVENUE, PUNJAB,LAHORE and 3 others--Respondents

W.Ps. Nos. 10449 and 10450 of 2004, decided on 28.6.2004.

(i) Administration of Justice--

----Discretion--Exercise of--Discretion must be exercised judiciously, based on basic principle of fair play. [Pp. 997 & 998] C

PLD 1964 SC 829;

(ii) Constitution of Pakistan, 1973—

----Art. 199--Constitutional petition--Maintainability against remand order--Held: Constitutional petition is not maintainable against the remand order. [P. 998] E

1986 SCMR 251; PLD 1986 Quetta 130; PLD 1963 Lahore. 461 and

PLD 1973 Lahore 495;

(iii) Constitution of Pakistan, 1973—

----Art. 4--General Clauses Act (X of 1897)--S. 24-A--Public functionaries--Duty of--It is duty and obligation of the public functionaries to act in accordance with law--Public functionaries have to decide the controversy between the parties after proper application of mind. [P. 998] F

PLD 1987 SC 447; 1998 SCMR 2268; 1998 SCMR 2419.

(iv) West Pakistan Land Revenue Rules, 1968—

----R. 17--Constitution of Pakistan, 1973--Art. 199--Appointment of Nambardar--Petitioner was appointed as Nambardar by District Collector--Respondents appeals were dismissed by Commissioner--Assailed before Member Board of Revenue--Both revisions remanded to E.D.O.R.--Assailed through writ petitions--Validity--If the land Revenue Rules and operative part of the impugned order of M.B.R. be put in a juxta-position then the impugned order passed by the M.B.R. is in consonance with the provision of law--District Collector was not justified to appoint the petitioners merely on the Brathery basis unless and until the post in-question was reserved for a particular community by competent authority, which was not placed on record before District Collector as well as before the Commissioner--District Collector has exercised discretion in violation of the provisions of law, which was upheld by the Commissioner without application of mind and in fact the Commissioner has countersigned the order of collector, therefore, order of the Commissioner is not sustainable in the eye of law--M.B.R. was justified to remand the case to the Collector with cogent reasons--Petitioners are liable to be dismissed on well known principle of laches--Constitutional petitions dismissed in circumstances.

[Pp. 997, 998 & 999] A, B, D, G & H

PLD 1964 SC 829; 1968 SCMR 77; PLD 1987 SC 447; 1998 SCMR 2268; 1998 SCMR 2419; PLD 1997 SC 304; PLD 1989 SC 166 and

PLD 1988 Lahore 725;

Mr. Muhammad Nawaz, Advocate for Petitioners.

Mr. Muhammad Hanif Khatana, Addl. Advocate General, entered appearance on Court's Call.

Date of hearing : 28.6.2004.

Order

I intend to decide the following writ petitions by one consolidated order having similar facts between the same parties inter-dependent upon each other:--

(i) W.P. No. 10449-2004;

(ii) W.P. No. 10450-2004;

1. The brief facts out of which the aforesaid Constitutional petitions arise are that the original Nambardar of the village in-question Muhammad Siddique died. The Collector concerned invited the applications for the appointment of the Nambardar in the village. Seven candidates have submitted their applications, out of which Muhammad Tahir and Muhammad Ihsan contested. Resultantly, the District Collector appointed Muhammad Tahir as Nambardar of the village in-question. Respondent

No. 4 being aggrieved filed appeal before the Commissioner, who accepted the same vide order dated 18.2.1997 and remanded the case to the District Collector, Okara, for fresh decision. The District Collector Okara, after remand invited fresh applications to fill in the post in-question vide order dated 18.10.1997. Seventeen candidates submitted their applications but finally six candidates were remained in the field, who contested their applications to be appointed them in the post in-question. The District Collector appointed the petitioner as Nambardar of the village vide order dated 20.12.1999. Respondents Nos. 2, 4 and Muhammad Din being aggrieved filed three appeals against the appointment of the petitioner in the post in-question before the Commissioner. Lahore Division, Lahore, who dismissed the three appeals vide order dated 2.11.2000. Respondent No. 2 filed R.O.R. No. 163/2001 before the Member Board of Revenue Judicial-IV. Muhammad Din also filed R.O.R. No. 417-2001 before the Member Board of Revenue Judicial-IV. The Member Board of Revenue Judicial-IV accepted the revision petition of Ch. Abdul Chafoor vide order dated 28.10.2003 and remanded the cases to the Executive District Officer (Revenue) for fresh decision on this appeal. The petitioner being aggrieved filed Constitutional Petition No. 10449-2004 before this Court whereas the Member Board of Revenue Judicial-IV remanded the case while accepting the revision petition of Muhammad Din to the said authority vide impugned order dated 13.4.2004 on the basis of the earlier order dated. 28.10.2003. The petitioner being aggrieved filed Constitutional Petition No. 10450-2004.

1. The learned counsel of the petitioners submits that both the tribunals below have concurrently decided in favour of the petitioners upto the level of the Commissioner whereas the Member Board of Revenue Judicial-IV has set aside the same while exercising revisional powers. The Member Board of Revenue Judicial-IV did not find any infirmity or illegality in the impugned orders of the Tribunals below, therefore, the learned Member Board of Revenue Judicial-IV was not justified to set aside the concurrent finding of fact while exercising revisional powers. He further submits that the Member Board of Revenue Judicial-IV has no lawful authority to reverse the concurrent finding of fact on the basis of another view while reappraising the evidence on record. He further submits that both the tribunals below were justified to consider this aspect of the case that there are three posts of Namabardar in the village in-question out of which two Rajputs have already been appointed by the competent authority and this was a relevant consideration to appoint the petitioner as Nambardar against the third post belonging to the Arain Bratheri. He further submits that question of appointment of post in-question of Nambardar is not vested right and this fact was not considered by the Member Board of Revenue Judicial-IV in its true perspective. He further submits that the District Collector has exercised his powers after providing proper hearing to all the candidates and appointed the petitioner, therefore, the Member Board of Revenue Judicial-IV was not justified to interfere in the area of discretion of the District Collector, who has exercised jurisdiction with cogent reasons.

2. Mr. Muhammad Hanif Khatana, Addl. Advocate General, entered appearance on Court's call, he submits that Constitutional petitions are not maintainable.

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

4. It is better and appropriate to reproduce Rule 17 of the West Pakistan Land Revenue Rules, 1968 and operative part of the impugned order of the Member Board of Revenue Judicial-IV dated 28.10.2003 to resolve the controversy between the parties:--

"RULE 17: Matters to be considered in first appointment.--In all first appointments of headmen regard shall be had among other matters to--

(a) the hereditary claims of the candidate;

(b) extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate, the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;

(c) services rendered to the Government by him or by his family;

(d) his personal influence, character, ability and freedom from indebtedness;

(e) the strength and importance of the community from which selection of a headman is to be made;

(f) his ability to undergo training in Civil Defence in the case of headman in Tehsils situated alongwith the Border.

OPERATIVE PART OF ORDER:

In view of the above discussed position the Commissioner Lahore Division having dismissed the appeal of the petitioner without any proper appraisal of the factual and the legal position and without any valid grounds, his impugned order is set aside and the case is remanded to the Executive District Officer (Revenue) Okara for fresh decision on the appeal of the petitioner. He shall decide the case after making sure ascertainment about the finding of the District Collector that the disputed post stood reserved for Arain Community. If it is proved otherwise, then the EDO(R) shall decide the case by evaluating the merits of the claims of the respective candidates in terms of the direction laid down under Rule 17 of the Land Revenue Rules 1968. There being an allegation of the respondent being an absentee from the Chak, the EDO(R) shall look into this aspect as well in accordance with law. Muhammad Din and Muhammad Ehsan having been unnecessarily impleaded as respondents in this Revision Petition, no observations required to be made about the merits of their candidatures."

In case the aforesaid provision of law and operative part of the impugned order of the Member Board of Revenue be put in a juxta position then impugned order passed by the Member Board of Revenue is in consonance with the provisions of law. The District Collector has exercised discretion without adverting to the parameters prescribed by the Legislature in its wisdom in Rule 17, therefore, the District Collector was not justified to appoint the petitioners merely on the Bradhery basis unless and until the post in-question is reserved for a particular community by the competent authority, which was not placed on record before the District Collector as well as before the Commissioner. The foundation of the case is missing that is why the Member Board of Revenue has remanded the case to the Executive District Officer Revenue concerned. It is settled principle of law that discretion must be exercised judiciously, based on basic principle of fair play but the District Collector has exercised discretion in violation of the provisions of law, which was upheld by the Commissioner without application of mind and in fact the Commissioner has counter-signed the order of the Collector, therefore, order of the Commissioner is not sustainable in the eye of law as the law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 S.C. 829). The Member Board of Revenue was justified to remand the case to the Collector with cogent reasons as the law laid down by the Honourable Supreme Court in Risaldar Abdul Majid Khan vs. Captain Daood Khan and another (1968 SCMR 77). The relevant observation is as follows:--

"The matter was one within the jurisdiction of the learned Member, Board of Revenue and he seems to have exercised his discretion properly after consideration of all the facts and circumstances of the case."

It is settled principle of law that Constitutional petition is not maintainable against the remand order as the law laid down by the superior Courts in the following judgments:--

Muhammad Ilyas Khan vs. Muhammad and others (1986 SCMR 251);

Ghulam Rasul and others vs. Khudai Dad & others (PLD 1986 Quetta 130);

Ramzan vs. Rehabilitation Commissioner Sargodha (PLD 1963 Lahore 461);

Mst. Kaniz Fatima & 3 others vs. Member Board of Revenue, (PLD 1973 Lahore 495);

It is also settled principle of law that Constitutional petition is discretionary in character where the substantial justice has been done between the parties, then this Court can refuse this discretion in favour of the petitioner, who wants benefits of an order, which is not in consonance with Article 4 of the Constitution read with Rule 17 of the West Pakistan Land Revenue Rules, 1968. It is duty and obligation of the public functionaries to act in accordance with law in view of Article 4 of the Constitution as the law laid down by the Honourable Supreme Court in Utility Corporation's case (PLD 1987 SC 447). Even otherwise, after addition of Section 24-A in the General Clauses Act, which is procedural in nature and has retrospective effect according to which public functionaries have to decide the controversy between the parties after proper application of mind as the law laid down by the Honourable Supreme Court in the following judgments:--

M/s. Airport Support Service vs. The Airport Manager, Karachi, Airport (1998 S.C.M.R. 2268);

Zain Yar Khan vs. The Chief Engineer CRBC WAPDA etc. (1998 S.C.M.R. 2419).

Coupled with the fact that the order was passed by the Member Board of Revenue on 28.10.2003. The petitioner has filed Constitutional Petition

No. 10449-2004 on 26.6.2004. Similarly, Member Board of Revenue has passed the impugned order on 13.4.2004 against the petitioner against which the petitioner has filed Constitutional Petition No. 10450-2004 on 26.6.2004, which are liable to be dismissed on the well known principle of laches as the law laid down by the Honourable Supreme Court in Khiali Khan vs. Haji Nazir and 4 others (PLD 1997 SC 304). As mentioned above, petitioners did not file the Constitutional petition immediately, therefore, I am not inclined to exercise my discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court and the Full Bench of this Court in the following judgments:--

Federation of Pakistan vs. Haji Muhammad Shaifullah Khan (PLD 1989 SC 166);

Khawaja Muhammad Sharif vs. Federation of Pakistan (PLD 1988 Lahore 725);

In view of what has been discussed above, these Constitutional petitions have no merit, therefore, the same are dismissed.

(M.A.R.) Petitions dismissed.

PLJ 2005 Lahore 999

Present: Ch. Ijaz Ahmad, J.

Syed ASGHAR ALI SHAH--Petitioner

versus

ELECTION TRIBUNAL/ADDITIONAL DISTRICT & SESSIONS JUDGE, FEROZEWALA DISTT. SHEIKHUPURA & 13 others--Respondents

W.P. No. 3902 of 2003, heard on 22.6.2004.

(i) Constitution of Pakistan 1973—

----Art. 199--Constitutional Jurisdiction--High Court has no jurisdiction to substitute its own finding in place of the findings of Tribunal below while exercising its Constitutional jurisdiction as per law laid down by Superior Courts. [P. 1006] C

(ii) Election Tribunal—

----Applicability of provisions of CPC--Provisions of CPC are not strictly applicable and Election Tribunal can decided election petition by following principles of CPC as nearly as possible. [P. 1006] F

(iii) Punjab Local Government Election Rules, 2000—

----Rr. 14(1) & 16(4)--Constitution of Pakistan, 1973, Art. 199--Non declaration of assets of departments--Petitioner a returned candidate of the seat of Nazim--Election petition filed by respondents before Election Tribunal on the ground of concealment of assets of wife by petitioner which filing declaration of assets in form No. XIX--Acceptance of--Wife of petitioner not dependent as per S. 14(1) and non declaration of her assets was an omission--Contention of--It is the duty and obligation of a candidate to file declaration of assets in form-XIX--Admittedly petitioner did not mention assets of his dependent including wife in the declaration of assets alongwith his nomination papers--Election Tribunal after proper appreciation of evidence has given finding of fact against the petitioner that he did not disclosure assets of his wife in the declaration form--Contention that nomination papers were filed by Advocate of petitioner has no force--Petitioner has admitted that he signed and filed nomination papers himself--Finding of the Election Tribunal in the impugned order is in accordance with law--Petitioner has not brought on record sufficient material to show that his wife is independent and is not dependent upon him--Petitioner cannot take benefit of his own mistake/negligence--Election Tribunal after proper appreciation of evidence and law has decided the election petition in accordance with provisions of the Election Laws and the law laid down by Superior Courts--Constitutional petition dismissed in circumstances. [Pp. 1005, 1006 & 1007] A, B, D, E, G, J & K

PLD 1973 Lah. 600; PLD 1964 SC 260; 1994 SCMR 859; PLD 2003 Lah. 12; 2002 MLD 36; 2001 PLR 1082; 2002 YLR 2227; 1993 SCMR 2018; PLD 1974 S.C. 322; PLD 2002 Peshawar 118; 2002 SCMR 398 and unreported judgment of Full Bench of High Court, Lahore in W.P. No. 16723-2002 ref.

(iv) Pleadings--

----Parties are bound by their pleadings. [P. 1007] H

(v) Words and Phrases--

----Words `dependent'--Interpretted. [P. 1007] I

Hafiz Abdul Rehman Ansari, Advocate for Petitioner.

Mr. Iqbal Mehmood Awan, Advocate for Respondent No. 13.

Rana Aaish Bahadur, Advocate for Respondent.

Date of hearing : 22.6.2004.

Judgment

The brief facts out of which the present writ petition arises are that the petitioner and Respondents Nos. 2 to 14 contested election as Nazim and Naib Nazim respectively from Union Council No. 133, Nishtar Town, Lahore. The petitioner and Respondent No. 4 were declared returned candidates as Nazim and Naib Nazim from the said Union Council. Respondents Nos. 2 and 3 filed election petition before Respondent No. 1 on the ground that the petitioner has concealed assets of his wife while filing his declaration of assets in Form No. XIX and wilfully omitted to enter the assets of his dependents as required by Rules. Thus the petitioner and Respondent No. 4 were not competent to contest election as their nomination papers were liable to be rejected. Consequently, Respondents Nos. 2 and 3 filed election petition before the Election Tribunal under Rule 70 of Punjab Local Government Election Rules 2000 with the prayer for declaring the election of petitioner and Respondent No. 4 as void. The petitioner filed written statement and controverted the allegations levelled in the election petition. Out of the pleadings of the parties following issues were framed:--

ISSUES

1. Whether the petition is false, vexatious and is liable to be dismissed ? OPR

2. Whether the petitioners have not come to the Court with clean hands? OPR

3. Whether the petitioners have got no cause of action to bring this petition ? OPR

4. Whether the petition is not maintainable in its present form ? OPR

5. Whether the petitioners have no locus standi to bring this petition? OPR

6. Whether the election of Respondents Nos. 1 and 2 is liable to be declared as illegal and void and the petitioners deserve to be declared as elected returned candidates? OPA

7. Relief.

Learned Election Tribunal accepted the election petition vide impugned order dated 25.3.2003. Hence the present writ petition.

1. Learned counsel of the petitioner submits that at the time of declaring the assets the petitioners committed a mistake by not declaring the assets of his wife Mst. Shaista Bano and this omission was not wilful. He further submits that it was a bona fide mistake which can be corrected even at this stage as there was no bad intention on the part of the petitioner. He further submits that petitioner and Respondent No. 4 secured very high votes and Respondents Nos. 2 and 3 who filed election petition secured very low votes as compared to the petitioner and Respondent No. 4. He further submits that wife of the petitioner is not dependent upon the petitioner and the Legislature in its wisdom has used the specific phrase "dependent" in Section 14(i) of the Punjab Local Government Election Ordinance, 2000 instead of female members. In the modern age female members are also competent to work independently to run their livelihood that is why the word dependent was incorporated in aforesaid section. He further submits that the property of the wife of the petitioner was gifted to her by her parents which is solely in her name so much so the whole family members have their individual properties and is not related to the petitioner whereas the petitioner has no moveable and immovable property in his own name. Therefore, the petitioner has not concealed any assets in Form No. XIX with regard to Rule 16(4) of Punjab Local Government Election Rules, 2000. He summed up his arguments that Election Tribunal erred in law not to frame the proper issues with regard to the status of wife of the petitioner as to whether the wife of the petitioner is dependent upon the petitioner or not. Therefore, the petitioner is prejudiced by the act of the Tribunal. As such the impugned order is not sustainable in the eyes of law.

2. Learned counsel of the respondents submit that the petitioner has not taken ground of attack in written statement that wife of the petitioner was not dependent upon the petitioner as is evident from written statement filed by the petitioner before the Election Tribunal. They further urge that it is admitted by the petitioner that his wife was owner of House No. 318-A/1, Township Lahore. They further urge that this fact was not denied by the petitioner while appearing before the Election Tribunal as R.W.3. They summed up their arguments that petitioner is not qualified to contest the election in terms of Section 14(i) read with Rule 16(4) and the Tribunal was justified to declare the election as void by virtue of Rule 18 of Punjab Local Government Election Rules, 2000.

3. Learned counsel of the petitioner is rebuttal submits that wife of the petitioner has secured house in question from her parents, therefore, the petitioner was justified not to mention assets of his wife in his nomination papers but this fact was not considered by the Election Tribunal in its true perspective.

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

5. It is better and appropriate to reproduce the relevant provisions of the aforesaid Ordinance and Rules framed thereunder to resolve the controversy between the parties:--

Section-14

Qualification for candidates and elected members:--

A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he,--

(a) ........................................

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

(c) ........................................

(d) ........................................

(e) ........................................

(f) ........................................

(g) ........................................

(h) ........................................

(i) does not posses assets which are inconsistent with his declaration of assets or justificable means, whether held in his own name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the defacto control of such assets including their sale, transfer or pecuniary interest, is retained by him;

Punjab Local Government Election Rules, 2000.

16-Nomination for Election:--

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

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

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

(4) Every nomination paper shall be accompanied by a declaration of assets of the candidate in form-XIX, which shall be open to inspection by every voter of the local area concerned.

FORM XIX

[See Rule 16(4)]

Declaration of Assets

I ______________________________ s/o __________________ Candidate as __________________ of _____________________ do hereby solemnly

(Category of seat) (name of council)

declare that no movable property or Immovable property, land, shares, certificates, securities, insurance policies, jewelry and motor vehicles are held by me or any member of my family dependent upon me except as below:--

Sr. No. Description Name Relation Value of Date and Net Remarks

Of property of ship with property manner of yearly income

& location owner declarant acquiring from

property

Signature of Declarant

Categories of Seats

(xi) Muslims

(xii) Muslims (Women)

(xiii) Peasants/Worker

(xiv) Peasants/Worker (Women)

(xv) Minority candidates

(xvi) Nazim and Naib Nazim

Election Disputes

1. (ii) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full as possible a statement of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(2) A petitioner may claim as relief any of the following declarations, namely--

(i) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected, or

(ii) that the election as a whole is void.

80: Decision of the Tribunal

The Tribunal may upon the conclusion of the trial of an election petition make an order--

(a) dismissing the petition;

(b) declaring the election of the returned candidate to be void;

(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected.

(d) Declaring the election as a whole to be void.

81: Grounds of declaring election of returned candidate void:--

(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:--

(a) The nomination of the returned candidate aws invalid; or

(b) The returned candidate was not, on the nomination day member or Nazim or Naib Nazim, as the case may be; or

(c) The election of the returned candidate has been procured or induced by any corrupt or illegal practice; or

(d) A corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent.

(2) The election of a returned candidate shall not be declared void on the ground:--

(a) That any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission, or

(b) That any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a member.

(83) Ground for declaring election as a whole void

The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of:--

(a) The failure of any person to comply with the provisions of the Ordinance or the Election Rules; or

(b) The prevalence of extensive corrupt or illegal practice at the election.

It is pertinent to mention here that it is the duty and obligation of a candidate to file declaration of assets in form-XIX. It as admitted fact that the petitioner did not mention assets of his dependents including his wife in the said declaration of assets alongwith his nomination papers and this fact was admitted by the petitioner during cross-examination in the following words:

"It is correct that I have written down in Exh. P.1 that neither I nor my dependents have any moveable or immovable assets. It is correct that House No. 318-A-I, Township belongs to my wife Mst. Shaista Bano. It is correct that above said house was purchased by my wife through me from one Abdul Hameed. It is correct that Mst. Shaista Bano has also appointed me as nominee qua the property mentioned above, I have filled and noted down my residential address Bearing No. 318-A-1 Township Lahore, in my nomination papers. It is correct that I am living with my wife Mst. Shaista Bano in the same house."

Learned Election Tribunal after proper appreciation of evidence has given finding of fact against the petitioner that the petitioner did not disclose assets of his wife in the said declaration form. Therefore, the petitioner has concealed assets of his wife in his nomination papers. It is settled principle of law that this Court has no jurisdiction to substitute its own finding in place of the findings of the Learned Tribunal below while exercising its constitutional jurisdiction as per law laid down by the superior Courts in the following judgments:--

Board of Intermediate & Secondary Education Vs. M. Masaduq Nasim (PLD 1973 Lahore 600);

Syed Azmat Ali vs. Chief Settlement Commissioner etc. (PLD 1964 S.C. 260);

Qaisar Shafi Ullah's case (1994 SCMR 859);

Haji Alam Sher's case (PLD 2003 Lahore 12);

It is the duty of the petitioner to fill the nomination papers himself in terms of aforesaid provisions of law. Therefore, contention of the counsel of the petitioner that nomination papers were filled by his Advocate has no force. Even otherwise petitioner has admitted in his statement that he has signed and filled nomination papers himself. Therefore, contention of the counsel of the petitioner that petitioner has not filled the nomination papers himself has no force in view of the law laid down by this Court in Roshan Din Shah's case (2002 MLD 36). The nomination papers filed by the petitioner are inconsistent in view of the statement of the petitioner and evidence produced by Respondent No. 2 i.e. PWs-1 & 2 before Election Tribunal. Therefore, finding of the Election Tribunal in the impugned order is in accordance with law laid down by this Court in Syed Abuzar Hussain Bokhari's case (2001 PLR 1082). The contention of counsel of the petitioner qua non-framing of the issue by the Election Tribunal has no force as the petitioner had not been prejudiced in any manner by non-framing of issues by the Election Tribunal. Even otherwise the provisions of CPC are not strictly applicable and Election Tribunal can decide election petition by following principles of CPC as nearly as possible. In arriving to this conclusion I am fortified by the following judgments:--

Mehmood ul Hassan Babar vs. Liaqat Ali Karim (2002 YLR 2227);

Fazal Mahmood Bhatti vs. Mst. Saeeda Akhtar (1993 SCMR 2018);

Under the law it is the duty of the petitioner to prove that wife of the petitioner is not dependent upon the petitioner and the petitioner has not brought on record sufficient material to show that his wife is independent and is not dependent upon the petitioner. Coupled with the fact that in case para 3 ground (B) of written statement, examination in chief and cross-examination of the petitioner while appearing before the Election Tribunal as RW.3 and grounds of petition before this Court are at variance in each other. It is settled principle of law that parties are bound by their pleadings as the law laid down by the Honourable Supreme Court in Mst. Murad Begum vs. Muhammad Rafiq (PLD 1974 S.C. 322). The petitioner has not urged ground of attack in the written statement before the Election Tribunal that petitioner's wife was not dependent upon the petitioner. Therefore, the petitioner is debarred to raise this plea in the Constitutional petition. The word `dependent' was interpreted by the Division Bench of the Peshawar High Court in Muhammad Hayat's case (PLD 2002 Peshawar 118) and laid down following principle:--

"If we take into account the dictionary meaning of the word `dependent' it simply means that a person who is financially "dependent" on someone and who requires financial support from a person upon whom he depends for maintenance."

The aforesaid definition bring the case of the petitioner to discharge his duty/onus by producing evidence by alleging this fact in the written statement as mentioned above, this was not done, therefore, the petitioner cannot take benefit of his own misdeed/mistake/negligence. The learned Election Tribunal after proper appreciation of evidence and law has decided the election petition in accordance with the provisions of Election laws and the law laid down by the superior Courts which is in consonance with the law laid down by the superior Courts in the following judgments:--

Abbas Khan and another vs. Appellate Authority D & SJ Attock (2002 SCMR 398);

Unreported judgment of Full Bench of this Court in W.P. No. 16723 of 2002 dated 14.9.2002.

In view of what has been discussed above, this Constitutional petitioner has no merit and the same is dismissed with no order as to costs.

(R.A.) Petition dismissed.

PLJ 2005 Lahore 1007

Present: Mian Hamid Farooq, J.

SARDAR MUHAMMAD & others--Petitioners

versus

Mst. SAADIA and another--Respondents

Civil Revision No. 1925-D of 1997, heard on 29.9.2003.

Rule of Evidence--

----Burden of prove--Matter of validity, legality and execution of general power of attorney--When the execution of a document is denied by one party, onus shifts upon other party, who was claiming benefit from the said document, to prove the execution of the said document under the law--Beneficiary of power of attorney is to prove that the document was genuinely executed in favour of respondent when the onus to prove the validity, legality and execution of general power of attorney shifted to other--It was his duty to prove the execution of general power of attorney within the parameters set up under the law--The original defendant failed to produce respondent the general attorney, in his evidence, who was the best witness to prove the execution of the power of attorney--Case does not suffer from any material irregularities--Revision dismissed.

[Pp. 1009 & 1010] A, B & C

Mr. Mushtaq Ahmad Chaudhry, Advocate for Petitioners.

Mian Hamid-ud-Din Kasuri, Advocate for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 29.9.2003.

Judgment

Petitioners, claiming to be the successors-in-interest of Noor Muhammad, deceased, the original defendant, through the filing of the present revision petition have called in question judgment and decree dated 27.10.1997, whereby the learned Appellate Court accepted Respondent

No. 1's appeal, decreed her suit and set aside the judgment and decree dated 17.2.1994, passed by the learned Civil Judge, through which he dismissed the suit for declaration, filed by Respondent No. 1.

1. Briefly stated the facts relevant for the decision of the present revision petition are that Mst. Saadia, claiming to be the minor, filed a suit for declaration, against Noor Muhammad and Naveed Alam, Respondent No. 2, thereby asserting that the registered sale-deed dated 6.8.1978, executed by Respondent No. 2 on the basis of general power of attorney dated 27.7.1978, is illegal, void and based on fraud, thus, liable to be declared as null and void as on the date of alleged execution of power of attorney dated 27.7.1978, she was minor and thus could not execute the said document. She also claimed the possession of the disputed land. The suit were resisted by Noor Muhammad and Respondent No. 2 who filed separate written statements. The defence of Noor Muhammad was that the power of attorney was validly executed, as she was major at the time of execution of the general power of attorney and Respondent No. 2 is the first cousin of Respondent No. 1, therefore, there is no question of fraud. It was further the case of Noor Muhammad that he is bona fide purchaser for value and without notice. Naveed Alam, Respondent No. 2, through a separate written statement, supported the claim of Noor Muhammad and stated that the plaintiff was major at the time of execution of general power of attorney, she has rightly executed the general power of attorney and, therefore, the sale-deed is valid document.

Out of the divergent pleadings of the parties the learned trial Court framed issues, recorded the evidence of the parties and ultimately dismissed the suit vide judgment and decree dated 17.2.1994. Feeling aggrieved Respondent No. 1 filed an appeal and the learned Additional District Judge accepted the appeal and decreed her suit vide judgment and decree dated 27.10.1997, hence the present revision petition.

1. Learned counsel for the petitioners has contended that the impugned judgment suffers from misreading and non-reading of evidence and that the learned Additional District Judge has committed legal errors, thus, the impugned judgment is not sustainable. Conversely, the learned counsel for Respondent No. 1 has supported the impugned judgment and submitted that with denial by Respondent No. 1 of the execution of general power of attorney, the onus shifted upon Noor Muhammad to prove that the general power of attorney was validly executed, but he could not produce evidence to prove the execution of the general power of attorney.

2. Upon the examination of the available record, the real controversy, to my mind, hinges on the question as to whether the general power of attorney dated 27.7.1978, was validly and legally executed by Respondent No. 1 or not, on the basis of which Respondent No. 2 executed the sale-deed dated 6.8.1978, favouring Noor Muhammad. To resolve that controversy the learned trial Court framed Issues Nos. 5 and 6 upon which the parties led evidence. Respondent No. 1 by producing her evidence proved that on the date of execution of power of attorney, she was minor and that she did not execute the general power of attorney, inasmuch as had writing expert, who appeared as P.W.2, supported the case of the plaintiff. It is settled law that when the execution of a document is denied by one party, the onus shifts upon the other party, who is claiming benefit from the said document, to prove the execution of the said document under the law. The learned Appellate Court has rightly observed that the beneficiary of power of attorney is to prove that the document was genuinely executed in favour of Respondent No. 2. When the onus to prove the validity, legality and execution of general power of attorney shifted to Noor Muhammad, it was his duty to prove the execution of said general power of attorney within the parameters set up under the law. Upon the examination of the evidence produced by Noor Muhammad it is clear that none of the witnesses has stated that at the time of execution of power of attorney, Respondent No. 1 was major. The best evidence, available with Noor Muhammad, was the marginal witnesses, which he failed to produce. The original defendant failed to produce Respondent No. 2, the general attorney, in his evidence, who was the best witness to prove the execution of the power of attorney. It is true that in his written statement, the alleged attorney has supported the defence of the original defendant and asserted that the power of attorney was validly executed by Respondent No. 1 herself but the fact remains that after the filing of written statement he absented and did not participate in the rest of the proceedings. In these circumstances, it was all the more necessary for the original defendant to produce the said witness in support of his case, but he failed to do so inasmuch as the said witnesses was not even summoned. The learned counsel for the contesting respondent is right in submitting that the defendant did not make any endeavor to produce the marginal witnesses, they were never summoned and the defendant did not make any effort to cause the attendance of those witnesses. In view of the evidence on record I am of the firm view that by producing the evidence, Respondent No. 1/plaintiff, has been able to prove that the power of attorney was not validly executed, however, the original defendant could not produce any evidence in order to prove that the power of attorney as validly executed by her. On the basis of available evidence, the learned Appellate Court has drawn correct inferences to hold that the power of attorney could not be proved to have validly executed by Respondent No. 1 in favour of Respondent No. 2.

3. Although it has been urged by the learned counsel for the petitioners that the impugned judgment suffers from mis-reading and nonreading of evidence, however, when asked to explain as to which portion of the evidence has been misread the learned counsel despite of his best efforts could not explain any misreading and nonreading of evidence.

4. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle to administration of justice, thus, the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral vs. Ghulam Muhammad (PLD 1996 Karachi 202), Ilamuddin through legal heirs vs. Syed Sarfraz Hussain through legal heirs and 5 others (1999 CLC 313) and Aasa vs. Ibrahim (2000 CLC 500) can be referred.

5. In the above perspective, I have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and does not suffer from any material irregularities, much less the illegality, thus, in my view does not call for any interference by this Court in exercise of its revisional jurisdiction. The learned counsel for the petitioners has not been able to point any flaw or grave illegality so as to upset the well reasoned judgment rendered by the learned Additional District Judge, in view whereof the impugned judgment is hereby maintained.

Upshot of the above discussion is that the present revision is devoid of merits, thus, the same is dismissed, with no orders as to costs.

(H.A.) Revision dismissed.

PLJ 2005 Lahore 1011

Present: Khawaja Muhammad Sharif, J.

Brig. (R.) ANIS AKRAM--Petitioner

versus

A.S.P. DEFENCE and others--Respondents

W.P. No. 12379 of 2004, decided on 20.9.2004.

Constitution of Pakistan, 1973—

----Art. 199--Writ petition filed for registration of FIR--Signature of petitioner and one "I.A." on agreement to sell were forged by respondents after adopting the technique of computer scanning--Contention of--Respondents appeared before the Court and produced original agreement to sell and General Power of Attorney which was admitted document between the parties having their signature and thumb impressions--Neither signatures nor thumb impressions of both documents were superimposed--Specimen signature and thumb impressions were taken by High Court in presence of parties and sent to the Director (Technical), FIA--The report was positive--According to report of the handwriting expert, the thumb-impressions marked on agreement are identical with specimen thumb-impressions of petitioners on his sample paper and power of attorney on the basis of ten characteristics points of identity dotted in one of his specimen print--Same is the position of specimen thumb impressions of "I.A."--Petition dismissed in circumstances.

[Pp. 1012 & 1013] A & B

Mian Javed Hafeez, Advocate for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.G. Punjab with Asif S.I. with record.

Mr. Jehnagir A. Jhojha, Advocate for Respondents.

Date of hearing : 20.9.2004.

Order

The requisite report from the Handwriting Expert, FIA, Islamabad has been received. I have perused the same. Learned counsel for the parties as also the learned Additional Advocate General have also gone through it.

1. Learned counsel for the petitioner submits that in fact the signatures of Brig. (R) Anis Akram and Iftikhar Ahmad, on agreement to sell (Mark-A) were forged by respondents after adopting the technique of computer scanning. Further submits that another report may be summoned from the same Handwriting Expert on this point.

2. On the other hand, learned counsel for the respondents submits that in view of the report from the FIA Handwriting Expert, no further action is called for. He has placed on record a copy of suit for specific performance of agreement to sell dated 3.11.2003 which is titled as Sohail Afzal son of Muhammad Afzal vs. Iftikhar Ahmad and Brig. (R) Anees Akram Baig son of Akram Baig. Further submits that in order to defeat the claim of the respondents, the suit in question had been filed with malafide intention.

3. The learned Additional Advocate General submits that in view of the report of the Handwriting Expert, no further action is called for and that the petitioner, if so advised, can file a complaint or a civil suit.

4. I have heard learned counsel for the parties, the learned Additional Advocate-General and have also perused the report of Handwriting Expert and the other documents placed on record.

5. In the instant case, this petition was filed for registration of criminal case by Brig (R) Anis Akram against Respondents Nos. 3 to 9 and it came up for hearing on 23.7.2004. It was mentioned in this petition that Respondents Nos. 3 to 9, in connivance with each other, got a forged sale-deed registered about the property situated in Defence Area, Lahore. I had asked the learned Additional Advocate General to direct Respondents Nos. 1 and 2 to appear before this Court. The same came up for hearing on 27.7.2004 on which date the petitioner was again heard. According to the petitioner, Power of Attorney was given to Respondent No. 3 on 17.12.2003 but the same was cancelled on 1.6.2004, sale agreement between Respondent No. 3 and Mubashar Ahmad etc. was prepared prior to 17.12.2003 and this fraud could easily be traced out from the fact that paper in question of sale agreement was purchased on 4.12.2003 and the Local Commission had completed his proceedings on 10.12.2003.

6. After hearing learned counsel for the petitioner, the learned Additional Advocate General and Humayun ASP Defence Circle, Cantt., I had directed the ASP to bring respondents in this Court on 28.7.2004 alongwith the original agreement to sell. They had appeared before this Court on the said date and original agreement to sell was produced by Respondent No. 3 which was placed on record as marked-A allegedly entered into between the petitioner and Respondent No. 3 Respondent No. 3 also produced original irrevocable General Power of Attorney, placed on record as Mark-B, which is an admitted document in question between the parties having their signatures and thumb impressions. I noted that neither any signatures nor any thumb impressions of both the documents were superimposed. Thereafter specimen signatures and thumb impressions of both i.e. Brig (R) Anees Ahmad and Iftikhar Ahmad, were taken by this Court on white papers in presence of both the parties and were sent to the Director (Technical), FIA, Islamabad alongwith Marks-A&B. Now the requisite report has been received and the same has been perused by the parties and myself. The report is positive in nature. According to the report of the Handwriting Expert, the thumb impressions marked as Q-1 and Q-2 on the agreement marked as "A" are identical with the specimen thumb impressions of Brig(R) Anees Akram, on his sample paper and Power of Attorney marked as S-1 and B on the basis of ten characteristics points of identity dotted in one of his specimen print. Same is the position of specimen thumb impressions of Iftikhar Ahmad on his sample paper and Power of Attorney. The questioned marked as Q-5 and Q-6 on the agreement marked as "A" are similar in characteristics with the corresponding specimen and admitted routine signatures of Brig(R) Anees Akram, on his sample sheet and Power of Attorney for comparison.

7. After having heard learned counsel for the parties, the learned Law Officer and having gone through the report of the Handwriting Expert, I am not inclined to interfere in the writ jurisdiction of this Court. This petition, having no merit, is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2005 Lahore 1013

Present: Muhammad Ghani, J.

ABDUL MALIK--Petitioner

versus

Mst. GULE REHMANA and 3 others--Respondents

W.P. No. 8029 of 2003, heard on 16.10.2003.

(i) Constitution of Pakistan, 1973—

----Art. 199 Guardian and Wards Act (VIII of 1890)--S. 25--Sufficient cause--Where an order has been passed against a person without his knowledge, particularly when he has been burdened with a liability, it would be a sufficient cause for re-opening or vacating the same. [P. 1016] B

(ii) Guardian and Wards Act, 1890 (VIII of 1890)—

----S. 25--Constitution of Pakistan, 1973, Art. 199--Disposal of custody application between the parties by Family Court in view of statements of parties and their respective counsel--Judge Family Court made certain observations beyond the statements of the parties--Application filed by respondent and Judge Family Court directed deletion of the offending paragraph, while otherwise keeping the judgment intact--Order challenged by petitioner in appeal and after dismissal of same before High Court--Admittedly petition filed by petitioner seeking custody of his minor daughter as not adjudicated upon with reference to the pleadings and evidence--Judgment delivered by Guardian Judge stemmed out of a compromise arrived at between parties--Guardian Judge had observed that father of the respondent undertook to deposit specified amount but there is no such undertaking on the record--It appears that same was a wishful thinking on the part of Guardian Judge otherwise it had factual foundation--Impugned orders do not suffer from any fundamental vice so as to attract Constitutional jurisdiction--Petition dismissed in circumstances. [P. 1016] A, C, D & E

Malik Muhammad Qasim Joya, Advocate for Petitioner.

Mr. Mushtaq Ahmad Chaudhry, Advocate for Respondents.

Date of hearing : 16.10.2003.

Judgment

Abdul Malik, petitioner, was married to Mst. Gule Rehmana (Respondent No. 1) daughter of Ejaz Ahmad Khan, Respondent No. 2 on 23.7.1987. Out of the wedlock, a daughter named Marshall was born on 29.10.1989. The parties parted ways, consequently resulting in divorce by the petitioner to Respondent No. 1 on 13.5.1997. Then, on 9.9.1998, the petitioner approached the learned Guardian Judge, Lahore under Section 25 of the Guardians & Wards Act, seeking custody of the minor daughter who was with the mother, Respondent No. 1. Respondent No. 1 filed her written statement. Out of the pleadings of the parties, four Issues were framed. The parties were put to trial. Examination-in-Chief of PW-1 was recorded on 26.5.2000, and the cross-examination was reserved till the next following day. On 27.5.2000, the parties arrived at a compromise. Abdul Malik, petitioner volunteered to make a statement which was recorded in Urdu, rough translation of which is to the following effect:--

"Stated that if the respondent can hand over to me the minor twice a month, I am ready to bear the expenses of return air ticket of Peshawar; that I can also deposit, an amount of Rs. 1,00,000/- for investment in some profit bearing scheme in the name of the minor so that on attaining the age of majority she should get the same; that I am ready to pay maintenance for the minor; that on festivals like Eid and on birth days of the minor, she may be handed over to me and I would bear her expenses; that if the respondent would hand over the minor to me as per schedule to be chalked out by the Court for regular meetings and on festivals, I am ready to abide by all the conditions of the respondent, and shall have no objection to the minor's permanent custody with the respondent".

Respondent No. 1, in turn, accepted the offer/statement of the petitioner, and undertook to abide by the schedule to be settled by the Court regarding the meetings etc., of the minor with the petitioner, and disposal of the petition accordingly. The statements of the parties bear their signatures and thumb impressions as well as signatures of their respective counsel.

1. The then learned Judge, Family Court, Lahore, seized of the matter, disposed of the petition vide the impugned order, dated 27.5.2000. The schedule of meeting of the minor with the petitioner-father was settled as follows:--

(1) The petitioner-father would take the custody of the minor from Lahore Airport on the evening of Friday of the second week of the month and would return the minor to the custody of the respondent-mother on the next following Sunday evening at Lahore Airport through Peshawar-Lahore bound flight with a week's intimation in advance prior to visitation. The schedule could be changed with consent of the parties, but the mother would be bound to hand over custody to the father for a period of two days in a month.

(2) For 10 days, during summer vacations and 4 days during winter vacations, the first day of Eid-ul-Zaha and on the birth day, the minor was to be handed over to the father for which the petitioner-father was to arrange return ticket for the minor.

(3) The respondent was to open an account in any scheduled Bank at Peshawar or at any other suitable place, with the consent of the petitioner, who was bound down to deposit Rs. 20,000/- by the 5th of each month.

These direction were quite in consonance with the compromise arrived at between the parties, as reflected in their statements, dated 27.5.2000. The learned Judge, however, proceeded to further observe in paragraph 8 of the order as follows:--

"I may further be permitted to mention that the father of the respondent also undertakes to deposit Rs. 3,00,000/- in the name of minor. The said amount of Rs. 3,00,000/- was allegedly invested by the applicant at the time of constructing the respondent's house. The father of respondent, however maintains that the said payment would be voluntarily deposited in the name of minor, therefore, the same may not be made a part of the proceedings. The parties further undertook that with effect from this date, they would not agitate any claim against each other and the matter would be deemed to have been settled for all times to come. The Court expects that the father of the respondent would also deposit Rs. 3,00,000/- in the name of minor keeping in view the alleged participation of the applicant in constructing the house of the respondent".

1. On coming to know of the above extracted portion of the order, Mst. Gule Rehmana, Respondent No. 1 filed an application on 4.7.2000 before the learned Guardian Judge for deletion of the afore-quoted paragraph 8 of the judgment. A similar application was filed on 16.7.2001 by Ejaz Ahmad Khan, Respondent No. 2, who is father of Respondent No. 1, with the prayer that the said paragraph should be scrapped from the judgment. Both the petitions were heard by the learned successor Guardian Judge who by his impugned order, dated 31.10.2002, while otherwise keeping intact the judgment, dated 27.5.2000 of his predecessor, directed deletion of the offending paragraph 8. The petitioner filed an appeal which has since been dismissed by the learned Addl. District Judge vide order dated 24.4.2003. Hence, this Constitutional Petition to assail the afore-mentioned orders.

2. I have heard the learned counsel for the parties and have also scanned through the record.

3. Admittedly, the petitioner filed by the petitioner seeking custody of his minor daughter was not adjudicated upon with reference to the pleadings and the evidence. The judgment, dated 27.5.2000 delivered by the learned Guardian Judge, stemmed out of a compromise arrived at between the parties, which was reflected in their statements recorded by the Court. On the record, there is no statement of Ejaz Ahmad Khan, Respondent No. 2 undertaking to deposit Rs. 3,00,000/- in the name of the minor. There is no proof on the record about the petitioner paying invested Rs. 3,00,000/- on the construction of the respondent's house. Moreover, Ejaz Ahmad Khan, Respondent No. 2 herein, was not a party to the petition before the learned Guardian Judge. It is settled law that where an order has been passed against a person without his knowledge, particularly when he has been burdened with a liability, it would be a sufficient cause for re-opening or vacating the same. Doubtless, the learned Guardian Judge had observed that the father of the respondent undertook to deposit Rs. 3,00,000/- but, as shown above, there is no such undertaking on the record. Moreover, from the observations of the learned Guardian Judge himself, viz: "The Court expects that father of the respondent would also deposit Rs. 3,00,000/- in the name of minor keeping in view the alleged participation of the applicant in constructing the house of the respondent" it appears that the same was a mere wishful thinking on the part of the learned Guardian Judge, otherwise it had no factual foundation. The learned successor Guardian Judge was, therefore, right in expunging the offending paragraph 8 from the judgment, and the learned Addl. District Judge, Lahore, was justified in not interfering with the order.

4. For the foregoing reasons, the impugned orders do not suffer from any fundamental vice so as to attract Constitutional jurisdiction. The Writ Petition, being devoid of merit, is dismissed, leaving the parties to bear their own costs.

(M.A.R.) Petition dismissed.

PLJ 2005 Lahore 1017

[Multan Bench Multan]

Present: Ijaz Ahmad Chaudhry, J.

ANJUMAN AHL-E-HADITH, KHANEWAL--Petitioner

versus

RENT CONTROLLER/SENIOR CIVIL JUDGE, KHANEWAL and another--Respondents

W.P. No. 1204 of 2004, heard on 26.5.2004.

(i) Constitution of Pakistan, 1973—

----Art. 199--Punjab Urban Rent Restriction Ordinance VI of 1959--S. 13(6)--Non deposit of rent within stipulated time provided by Rent Controller u/S. 13(6)--Tenant filed application for deposited of rent after given time--Acceptance of application--Petitioner/land-lord raised objection about delayed payment of rent for the month of February, 2004 and also prayed eviction of tenant due to committing willful default in payment of rent--Dismissal of--Challenge to--Respondent/tenant was bound to deposit the amount of rent for the month of February, 2004 but he failed to deposit the said amount as directed--No reason was given for non depositing the rent within time, hence, the defence of respondent struck off and ejectment petition filed by petitioner against respondent was accepted.

[P. 1021] B, C & D

2002 CLD 1407, PLD 1964 (W.P.) Pesh. 101 and PLD 1966 (W.P) Pesh. 119 distinguished.

2002 CLC 538; PLJ 1997 Lah. 395; 1990 SCMR 557; PLD 1970 Lah. 140; PLD 2003 S.C. 228 and 1981 SCMR 276 ref.

(ii) Punjab Urban Rent Restriction Ordinance, 1956 (VI of 1956)—

----S. 13(6) Constitution of Pakistan 1973,--Art. 199--Writ jurisdiction--Willful default in payment of rent--Non deposit of rent as directed by Rent Controller is a willful default and is amenable in writ jurisdiction as orders passed due to violation of S. 13(6) of the Rent Restriction Ordinance were treated in a number of cases as final. [P. 1020] A

2002 CLC 538; PLJ 1997 LHR 395; 1990 SCMR 557; PLD 1970 LHR 140; PLD 2003 SC 228 and 1981 SCMR 276, ref.

Ch. Abdul Sattar Goraya, Advocate for Petitioner.

Mian Anwar Hussain, Advocate for Respondent No. 2.

Date of hearing : 26.5.2004.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks setting aside of the impugned order dated 6.3.2004 passed by the learned Rent Controller, Khanewal whereby request of the petitioner for eviction of Respondent No. 2 due to non-compliance of order dated 4.1.2004 in the deposit of rent for the month February, 2004 before 15th of that month has been dismissed and it is prayed that by striking off his defence, eviction of Respondent No. 2 from the rental premises may be ordered.

1. The brief facts of the case are that the petitioner-Anjuman Ahl-e-Hadith rented out shop situated at Markazi Jamia Masjid Ahl-e-Hadith, Block No. 11, Khanewal to Respondent No. 2. Afterwards, the petitioner instituted an ejectment petition in terms of Section 13 of the Urban Rent Restriction Ordinance mainly on the ground of tenant's willful default in payment of rent for 14 months from May 2002 to June 2003. Respondent No. 2 filed written reply and issues were framed on 19.11.2003 and the parties were called upon to produce evidence. In the meanwhile vide order dated 5.1.2004 under Section 13(6) of the Ordinance, the learned Rent Controller directed Respondent No. 2 to produce proof of payment of arrears of rent and that "he shall also keep on depositing the rent before 15th of every month." On 17.2.2004 Respondent No. 2 moved an application before the learned Rent Controller seeking permission to deposit the amount for the month of February, 2004 at the rate of Rs. 1,000/- per month which was accepted. On 21.2.2004 an objection was raised by the petitioner about delayed payment of rent for the month of February 2004 and payer was made for the eviction of Respondent No. 2 as he had committed willful default by not depositing the rent for the month of February, 2004 before 15th as directed by the learned Rent Controller vide order dated 5.1.2004. This request has been declined through the impugned order. Hence, this writ petition.

2. Learned counsel for the petitioner contends that non-deposit of rent before 15th of that month was a willful default and in support of his contention has relied upon Muhammad Hussain vs. Mian Mahmood Ahmad and 3 others (PLD 1970 Lah. 140). It is also contended that a willful default in the deposit of rent was committed by the tenant and refusal to direct the eviction of the tenant by striking off his defence is a final order. Relies upon Muhammad Yousaf vs. Muhammad Bashir and others (1990 SCMR page 557) to contend that Rent Controller had no jurisdiction to extend the time when the same was not deposited before 15th of every month. It is further contended that reason of illness was not mentioned by Respondent No. 2 in his application for the delayed deposit of the rent filed on 17.2.2004. Relies upon Muhammad Umar vs. Mst. Aiysha Aziz (1981 SCMR page 276) to contend that in the absence of any sufficient cause the learned Rent Controller could not extend time for deposit of rent. Also relies upon Mirza Nazeer Ahmad Baig vs. Addl. District Judge and two others (PLJ 1997 Lah. 395) and Muhammad Ashraf vs. Qamar Sultana (PLD 2003 SC page 228).

3. Learned counsel for Respondent No. 2 has raised a preliminary objection that the writ petition is not maintainable as the impugned order is an interlocutory order and this Court has held in number of cases that against such orders the writ petition is not maintainable Relies upon Al-Shamas Apparel (Pvt.) Ltd. through Chief Executive and 3 others versus Muslim Commercial Bank Ltd. and another (2002 CLD page 1407), and contends that as it was not a willful default, the impugned order is sustainable. It is also contended that illness of Respondent No. 2 provides sufficient cause for delayed deposit of rent which was beyond his control and whether he was not ill and default was willful can only be determined after recording of the evidence. Relies upon Syed Toghan Shah vs. Shah Muhammad Madni Abbas, (PLD 1964 (W.P.) Pesh. 101) and (Qamar-uz-Zaman vs. Sher Afzal, (PLD 1966 (W.P.) Pesh. 119) in support of his contentions.

4. I have heard the learned counsel for the parties and also perused the impugned order and the case law cited by both the parties. The learned Rent Controller had passed order dated 5.1.2004 in the presence of parties according to which Respondent No. 2 was bound to deposit the amount of future rent before 15th of each month. This order was not complied with by Respondent No. 2 and he moved an application on 17.2.2004 that he could not deposit the rent for the month of February, 2004. Only thereafter he deposited the rent. The application dated 17.2.2004 (Annex. `D') of this petition does not find mention that Respondent No. 2 could not deposit the amount of rent before 15th of February, 2004 due to illness. The contents of the application are only to the effect that he wants to deposit the amount and he may be allowed. The said application was allowed without any speaking order. On 21.2.2004 the petitioner raised the plea that as default was committed in payment of rent for the month of February by Respondent

No. 2 his eviction should be ordered by striking off his defence. Vide the impugned order the Rent Controller has not accepted the plea of the petitioner on the ground that the rent for the month of February, 2004 was deposited by Respondent No. 2, only with the delay of three days, which has been explained by learned counsel for Respondent No. 2 saying that the respondent was ill and without recording the evidence it cannot be held that he was not ill. This plea raised by the learned counsel for Respondent No. 2 before the learned lower Court seems to be after thought as it was never mentioned by him in the application for deposit of rent and cannot be accepted.

1. The case law cited by the learned counsel for Respondent No. 2 has been perused. There is no cavil to the proposition that the writ petition is not maintainable against an interlocutory order as has been held in (2002 CLD page 1407) (supra), but the facts and circumstances of the cited case are not applicable to the facts and circumstances of the present case. The judgment cited by the learned counsel for Respondent No. 2 reported in (PLD 1964 (W.P.) Pesh. 101) (supra) is also not applicable to the facts and circumstances of the present case as here Respondent No. 2 had not mentioned unavoidable circumstances in his application for not depositing the rent before 15th February, 2004. Similarly the other case reported in (PLD 1966 (W.P.) Pesh. 119) (supra) is also not applicable to the facts and circumstances of the present case as in the said case plea was raised by the tenant that the default was due to serious illness like typhold with relapse and it was held that it was a legal excuse for not depositing the rent by the due date but in the present case no such plea was raised by Respondent

No. 2 in his application for late depositing of the rent.

1. On the other hand, the case law cited by the learned counsel for the petitioner is very clear on the point that the default in payment of rent as directed by the Rent Controller is a willful default and the same is amenable in writ jurisdiction as the orders passed due to violation of Section 13(6) of the Rent Restriction Ordinance were treated in a number of cases as final. The first case law cited by learned counsel for the petitioner is Muhammad Jahangir vs. Muhammad Abbas and 2 others (2002 CLC 538) wherein one-third amount was not deposited in compliance of the direction of the Court and it was held that "where law required a particular thing to be done in a given manner, it had to be done in that manner." In the second case reported in (PLJ 1997 Lah. 395) (supra) this Court held that "non-compliance of tentative order for deposit of rent is sufficient to struck off the evidence of the tenant by the Rent Controller." It was contended in the cited case that the tenant was ill at the time when tentative rent order was passed to deposit, and he remained admitted in a private clinic. It was held that Section 13(6) of the Rent Restriction Ordinance, did not provide any reason for extension of time and anybody should have deposited the rent if the tenant was ill. In (1990 SCMR page 557) (supra) the tenant's defence was struck off by the learned Rent Controller due to the failure to make deposit of rent before specified date. Writ petition filed against the said order by the tenant was also dismissed by the High Court. Then petition was filed in the August Supreme Court of Pakistan and it was held as under:--

"The default under Section 13(6) is of a particular nature. As held by this Court the Rent Controller has no discretion to condone it as distinguishable from the default in payment of rent relatable to the other provisions of Section 13."

I am also fortified by the view taken by this Court in (PLD 1970 Lah. 140) (D.B. Judgment) in which the rent was not deposited before fifteenth day of each month, but it was deposited on fifteenth of the month. I am further fortified by the view adopted by the decision of the August Supreme Court of Pakistan reported in (PLD 2003 S.C. 228) (supra). Similar view was rendered in (1981 SCMR page 276). The relevant portion is as under:--

"Even otherwise the appellant has no case on merits. Admittedly, he deposited the rent of September, 1966 or the 17th of October, 1966, therefore, he had to explain and justify each day's delay in the deposit of rent and as he was running a hotel, there plea of his own illness is not sufficient explanation for his failure to comply with the order for deposit of tentative rent, therefore, on merits he has no case."

1. From the perusal of the above said case law it is clear that Respondent No. 2 was bound to deposit the amount of rent for the month of February, 2004 before fifteenth February, 2004, but he failed to deposit the said amount as directed. It has been held in the above-said cases that the tenant will be held a willful defaulter if no reasonable cause is given and the writ petition is also maintainable against the order passed by the Rent Controller due to the non-deposit of the rent within time under Section 13(6) of the Rent Restriction Ordinance, 1959. In the present case no reason was given for not depositing the rent within time, hence, the defence of Respondent No. 2 was liable to be struck off by the learned trial Court. Non-speaking order was passed on his application dated 17.2.2004 for deposit of rent for the month of February, 2004. The impugned order dated 6.3.2004 has been passed by the learned lower Court against the settled principles of law laid down by the Superior Courts which is not maintainable and is set aside. Resultantly, the defence of Respondent No. 2 is struck off and the petition filed by the petitioner against Respondent No. 2 for ejectment from the shop in his possession is accepted. No order as to costs.

(R.A.) Order accordingly.

PLJ 2005 Lahore 1021

Present: Mian Saqib Nisar, J.

KHIZER HAYAT--Petitioner

versus

MEMBER (CONOLONIES) BOARD OF REVENUE, LAHORE and others--Respondents

W.P. No. 10948 of 2004, heard on 14.9.2004.

(i) Administration of Justice--

----The rights of the parties are required to be determined not on the basis of whims or the caprice of any officer, rather in accordance with law.

[P. 1024] B

(i) Constitution of Pakistan, 1973—

----Art. 199--Petitioners allottees of Govt. lands under Temporary Cultivation scheme--Application for grant of proprietary rights--The land was allotted to the evictes of the Atomic Energy Scheme instead of giving proprietary rights to petitioner by the Deputy Commissioner--Appeal dismissed by Commissioner and further challenged before B.O.R.--Matter remanded to commissioner by B.O.R. identifying some points--Assailed before High Court--Writ was accepted and case remanded to decide the identified points itself--In post remand proceedings B.O.R. dismissed the revision of petitioner--Challenged through Constitutional petition--Impugned order is illegal for the very reason that it does not follow the remanded order passed by High Court--B.O.R. was required to render its decision on the issues involved in the matter, indicated by B.O.R. in pre-remand order of High Court--This has not been done--There is no reference in the order, if such issues have become redundant, in view of reasonings now adopted by B.O.R--Board without making day reference to any relevant rules, the policy or the precedent, has leased its decision on the notion of "generally speaking"--The order suffers from the vice of subjectivity--Petition allowed and impugned order set aside in circumstances--B.O.R. to re-decide the matters after hearing parties--Case remanded. [Pp. 1023 & 1024] A & C

Ch. Bashir Ahmad, Advocate for Petitioners.

Mr. Muhammad Sohail Dar, A.A.G. for Respondents Nos. 1 to 4.

Mr. Ghulam Hussain Malik, Advocate for Respondents Nos. 5 to 17.

Date of hearing : 14.9.2004.

Judgment

The petitioners are the allottes of the estate lands, situated in Chak No. 3 Rakh Dala, Tehsil Darya Khan, District Bhakhar, and described in their respective petitions, which were allotted to them in the year 1984 under Temporary Cultivation Scheme for certain period and their allotments have been extended from time to time. It is their case that by dint of the hard labour and by spending certain money, they have made the land cultivable which otherwise, was banjar. The BOR issued Notification No. 1289-95-843-CL-I-1 dated 19.3.1995, for the grant of proprietary rights to the allottes of the estate land under the Temporary Cultivation Scheme subject to certain conditions, the petitioners fulfilled these conditions; they had applied for the grant of proprietary rights and thus have acquired a vested right in this behalf.

1. Instead of granting the proprietary rights to the petitioners, the land was allotted to the evictees of the Atomic Energy Scheme and their entitlement certificate were verified by the Deputy Commissioner Mianwali, vide order dated 11.3.1996. Aggrieved of the above, the petitioners preferred appeal, against the order dated 11.3.1996 before the Commissioner Sargodha, which was rejected mainly on the ground that the petitioners were lessees under temporary cultivation scheme. The petitioners further challenged the matter before the BOR, who vide order dated 4.4.2000, remanded the matter to the Commissioner by identifying the following points, which were to be kept in view by the Commissioner while disposing of the matter:--

(a) Were the respondents owner of the required amount of land in the concerned Mauzas at the time of acquisition of land for Atomic Energy Scheme and were they entitled for alternate allotment under the Government Policy Instructions ?

(b) Whether the Entitlement Certificate, were genuinely and correctly issued as per requirement of the law/Government instructions?

(c) Was area included in the Atomic Energy Schedule before the grant of lease to the petitioners under the Temporary Cultivation Scheme?

(d) Should the area have been excluded from the Schedule if it was included in the schedule as per Board of Revenue's instructions from time to time when the ban was lifted on the allotment under the Atomic Energy Scheme?

(e) Are the petitioners eligible for proprietary rights under 19.3.1995, Notification.

The private respondents challenged this order before this Court through WP No. 10171 of 2000, which was accepted vide judgment dated 8.5.2002 and the operative part of the judgment is as follows:--

"All these issues could have been adjudged by the Board of Revenue, itself and there was no justification for the remand of the case."

1. On the remand, the Board of Revenue through the impugned order dated 16.6.2004, has dismissed the revision of the petitioners on the following reasons:--

"Generally speaking land allottee under temporary cultivation scheme is liable to be resumed for allotment to persons unders permanent scheme whenever the need arise. Atomic Energy Commission Scheme is a permanent scheme and land leased out under temporary cultivation could be utilized for allotment under permanent scheme."

1. Learned counsel for the petitioners contends that the Member Board of Revenue has failed to determine the points, which were formulated in the earlier order dated 4.4.2000 passed by the Board of Revenue and for the determination whereof, the matter was remanded by this Court to the Board of Revenue.

2. I have heard learned counsel for the parties and find that the impugned order is illegal for the very reasons that it does not follow the remand order passed by this Court. According to the operative part of this Court's order reproduced above, it was affirmed that the issues involved in the matter are the one, indicated by the Board of Revenue in the order dated 4.4.2000 and therefore, it was on those points that the Board was required to render its decision. But, as mentioned earlier, this has not been done. Even there is no reference in the order, if such issues in view of the reasoning, now adopted by the Board, have become redundant. Moreover, the Board without making any reference to any relevant rules, the policy or the precedent, has based its decision on the notion of "generally speaking". But I failed to understand, if the term "generally speaking" is self assumption of the Member or it is founded upon any material or data before him. If it is subjective, obviously the order cannot be sustained, because the rights of the parties are required to be determined not on the basis of whim or the caprice of any officer, rather in accordance with law. The present order suffers from the vice of subjectively. Resultantly, these petitions are allowed, the impugned orders are set aside with the direction to the Board of Revenue to re-decide the matters after hearing the parties in the light of the earlier order of the Board dated 4.4.2000, as upheld by this Court in the W.P. No. 10171 of 2000 on 8.5.2002.

(R.A.) Petition allowed.

PLJ 2005 Lahore 1024 (DB)

Present: Ali Nawaz Chowhan and Rustam Ali Malik, JJ.

CHISTIA SUGAR MILLS--Appellant

versus

COLLECTOR OF CUSTOM--Respondent

Custom Appeal No. 48 of 2004, heard on 28.9.2004.

(i) Customs Act, 1969 (IV of 1969)—

----S. 194-B(2)--Civil Procedure Code (V of 1908)--S. 152 O. XX, R. 2--Appeal filed by appellant before Tribunal alongwith other appeals were accepted--Appeal of appellant omitted to be mentioned in original order--Filing of application by appellant for rectification of accidental slip, whereby his order in original was excluded amongest the list of facsimile impugned orders--Dismissal of application on the ground of time barred--Held: Clerical or arithmetic mistakes or errors in a judgment or order arising therein from any accidental slip or omission, are to be corrected by Court itself or on the application of any of the parties and this principle of S. 152 CPC is an exception to the rule with respect to the attaining of finality of judgments as reflected in O. XX, R. 2 CPC--Further held: Such error is not really a rectification as envisaged by S. 194-B(2) of the Act--Such error as the present one where name of appellant has not been included in the list to which the order of the Tribunal was made applicable in an accidental slip or at the most a clerical error which attracts the provisions of S. 152 CPC--Such like error/accidental slip is to be cured without any shadow of statutory limitation--Case remanded to Tribunal with direction to consider applying the principle laid down in the said order to the appellant as well through addition of his name in the list of cases to which the order under reference attracts--Appeal disposed of.

[Pp. 1026, 1027 & 1028] A, E, F, G & H

PLD 1992 Lah. 261; 1970 SCMR 133; 1990 CLC 1351; 1993 CLC 535; 1986 CLC 552; PLJ 1987 Lah. 78; AIR 1939 Bombay 389 rel.

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

----S. 152--Clerical error--Accidental slip--Correction of--A clerical error apparent on the record or an accidental slip is to be corrected by Tribunal or the Court committing the same whether suo moto or against a petition. [P. 1026] B

PLD 1992 Lah. 261, ref.

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

----S. 152--Accidental slip of error--Instances of--In cases where:--

(1) there has been mis-description of property in the decree;

(2) Where judgment accidentally includes property of strangers'

(3) The Court fails to mention properties relating to the decree;

(4) Dismission the sent instead of decreeing it;

(5) Accidentally enters the names of the deceased party instead of the names of the legal representatives;

Accidental slip or error on discovery is corrected. [P. 1026] C

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

----S. 152--Rules of limitation--Applicability--Held: The rules of limitation are ordinarily not applicable to acts which the Court can perform exercising its suo moto powers. [P. 1027] D

1993 CLC 535; 1986 CLC 552; PLJ 1987 Lahore 78 and

AIR 1939 Bombay 39, ref.

Syed Hamid Ali Shah, Advocate for Appellant.

Ch. Abdul Ghafoor, Advocate for Respondent.

Date of hearing : 28.9.2004.

Judgment

Ali Nawaz Chowhan, J.--The Government of Pakistan had provided an incentive with respect to the export of Pakistani sugar and this was on the basis of zero-rated central excise duty and sales tax besides increase in the drawbacks.

1. The appellant availed this incentive exported the sugar but a Show Cause Notice was sent to him by the Collector (Adjudication), Collectorate of Customs, Sales Tax and Central Excise, Faisalabad, asking him to pay central excise duty because he had failed to export 5% of the total sugar produced by him. In this connection, the Collector (Adjudication) passed an order in Original No. 25/FD/2000.

2. Against the said other, the appellant preferred an appeal before the Appellate Tribunal which was Bearing No. 840/LB/2000. This appeal was clubbed with 34 other appeals. All these appeals were said to have been accepted and the order in original of the Collector aforementioned dated 31.1.2001 was set aside. Copy of the order was circulated. Later, however, the appellant came to know that amongst the 35 appeals decided the order in original pertaining to him was omitted, therefore, after lapse of about 3 years proceedings were de-novo initiated against the appellant.

3. The appellant agitated the matter through an application for rectification of accidental slip, whereby his order in original was excluded amongst the list of facsimile impugned orders. But this was disallowed on 14th June, 2004 on the ground simplicitor that the rectification was time barred and, therefore, his application under Section 6(5) of the Limitation Act was unacceptable.

4. The argument before this Court was that afterall it was a mistake committed by the Tribunal itself and was of the nature of a typographical error whereby the omission was made and as such it ought to have been corrected by the Tribunal at a time it came to its notice while invoking the provisions of Section 152 of the CPC. That in stricto senso this was not a case of rectification, as such involving a periphery of time.

5. That when the Tribunal had accepted the case of others, the appellant with a similar plea could not have been shown discrimination. That, anyway, the Tribunal ought to have probed into the causes of the omission of the name of the appellant in the order in original which the appellant had impugned and ought to have dismissed the petition only if satisfied from record about the factual position with respect to the non-pendency of the appeal at the relevant time.

6. Clerical or arithmetic mistakes or errors in a judgment or order arising therein from any accidental slip or omission, are to be corrected by the Court itself or on the application of any of the parties and this principle of Section 152 CPC is an exception to the rule with respect to the attaining of finality of judgments as reflected in Order XX Rule 2 of the Civil Procedure Code. Because a judgment after it has been announced cannot be otherwise altered. A Court or a tribunal has inherent powers in this respect and the technicalities in the way are to be avoided.

7. A clerical error apparent on the record or an accidental slip is to be corrected by the Tribunal or the Court committing the same whether suo moto or against a petition. Reference is made to the following case: Muslim Commercial Bank Ltd. vs. Continental Engineers Ltd. and others (PLD 1992 Lahore 261). Therefore, in cases where there has been mis-description of property in the decree, where judgment accidentally includes property of stangers or the Court fails to mention properties relating to the decree, dismisses the suit instead of decreeing it or accidentally enters the names of the deceased party instead of the names of the legal representatives, the accidental slip or error on discovery is corrected. Reference is made to the following cases: (1) Nora vs. Muhammad (1970 SCMR 133); (2) Sind Star Syndicate, Karachi vs. Synthetic Chemical Co. Ltd. and others (1980 CLC 1351).

8. The rules of limitation are ordinarily not applicable to acts which the Court can perform exercising its suo moto powers and in this connection reference may be made to the following cases: (1) Habib Bank Ltd. vs. Iftikhar Ahmad and 7 others (1993 CLC 535); (2) Muhammad Jalat Khan and another vs. Ghulam Sarwar etc. (1986 CLC 552); (3) Pakistan Day Memorial Committee and another vs. Mian Abdul Khaliq & Co., Civil Engineer & Contractors, Lahore (PLJ 1987 Lahore 78); and (4) Laxman Mahadev Bankar vs. Maruti Rambhau Nikam and others (AIR 1939) Bombay 389).

9. To our mind, therefore, such an error is not really a rectification as envisaged by Section 194-B(2) of the Customs Act, 1969, which reads as follows:--

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

(2) The Appellate Tribunal may, at the any time within three years from the date of order with a view of rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal:

Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to the party of its intention to do so and has allowed a reasonable opportunity of being heard.

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

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

It is not attracted because it really does not call for amending an order. The relief sought only calls for addition of the name of the appellant in the list of appeals whereby the order under reference as passed by the Tribunal on 31.1.2001. The factum of the order is an accepted position calling for no rectification.

1. This Court, therefore, holds that such like error as the present one where the grievance is that there has been an accidental slip in including the name of the appellant in the list to which the order of the Tribunal was made applicable, is an accidental slip or at the most a clerical error which attracts the provisions of Section 152 of the Civil Procedure Code. This Court, therefore, is of the view that such like error/accidental slip is to be cured without any shadow of statutory limitation.

2. The order refusing to correct this error and impugned before this Court is, therefore, set aside. The case is referred back to the learned Tribunal with directions that while following the observations herein-above and after such probe as is necessitated with respect to the factum of the pendency of the appeal at the relevant time when the order was passed by the Tribunal and after careful verification of all other relevant facts, it may consider applying the principle laid down in the said order to the appellant as well through addition of his name in the list of cases to which the order under reference attracts.

3. With these observations, this Custom Appeal is disposed of. No order as to costs.

(R.A.) Appeal disposed of.

PLJ 2005 Lahore 1028

[Rawalpindi Bench Rawalpindi]

Present: Abdul Shakoor Paracha, J.

MOVINA IFTIKHAR--Petitioner

versus

VICE-CHANCELLOR UNIVERSITY OF PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 2366 of 1997, decided on 5.12.2003.

(i) Calendar of the University of the Punjab (Volume-II)--

----R. 22 & Proviso--Withholding of degrees of B.A. & M.Sc.--University's power to quash or withhold result--Limitation of--No doubt under the said rule university of punjab had power to quash the result or withhold degree diploma or certificate of a candidate after it has been delivered or awarded within three years of such delivery or withholding--The result of the petitioner was deferred for want of decision therefore, under the proviso Rule 22 did not apply to the petitioner's case as three years would have elapsed if the result would have been announced by University--Petitioner cannot take the benefit of Proviso of Rule 22--Petition dismissed. [P. 1031] A & B

Mr. Muhammad Asif Ch. Advocate for Petitioner.

Malik Gulzeb Khan, Advocate for University alongwith Rana Fazal Ahmad, Assistant Controller Certificate (Cell Degree) with record.

Date of hearing : 21.10.2003.

Judgment

Petitioner, Movina Iftikhar, calls in question the action of the respondent, Punjab University, quashing the B.A. result of the petitioner and witholding her degree of B.A. & M.Sc. to be declared as illegal and without lawful authority.

1. Learned counsel for the petitioner contends that the petitioner passed the following examination from the educational examinations from England (U.K.):-

(i) Certificate of secondary education issued by London Regional Examining Board.

(ii) Certificate of extended education.

(iii) General certificate of education issued by the associated examining board.

(iv) Certificate from Norwood School Crown Dale London. (University of London).

She was desirous to be admitted in the medical college for obtaining MBBS decree, therefore, moved to the Inter Board Committee of Chairman, through its Secretary (Respondent No. 3) who was competent authority to issue equivalence certificate in Pakistan under the Federal Supervision of Curricula Text Books and Maintenance of Standards of Education Act, 1976. On her application, the respondent vide letter dated 31.12.1980 required the petitioner to pass certificate of Urdu A-Level and on fulfilling their requirement as such, the requisite equivalence certificate was issued by them vide Letter No. Y.2-106/80-IBCC dated 31.01.1981. Since the petitioner could not obtained the admission in the medical college as time had expired in process of obtaining Urdu A-Level certificate. She left with no option except to seek admission in the Government Degree College for Women, in B.A. classes and she appeared in the annual examination in 1982 under Roll No. 16153 and was allowed Registration No. 80-gp-407 by the respondent University and thus passed the examination by securing 456 marks. Therefore, petitioner passed her M.Sc. examination but result was withheld by the Respondent No. 2, on the ground that the education certificate of the petitioner from abroad was not sufficient to recognize her education equal to F.Sc., and the subjects as passed by her abroad were short by one, viz Urdu A-Level. Petitioner with a view to fulfill the said requirement, again studied for the said subject and it was in 1984 that she secured the required certificate from University of London. Thereafter, certificate was furnished to Respondents Nos. 1 & 2 upon which the University of Punjab (Respondent No. 1) having examined the same directed the Respondent

No. 2 for the issuance of petitioner's result. Quite ironically, he instead of issuing the same, he took a complete somersault into his earlier stance with a version that result card of the petitioner for B.A. 2nd Annual examination had been issued through an oversight and thus, he, required the petitioner to return the same immediately. Thereafter, it was disclosed that the result of the petitioner for B.A. and M.Sc. classes have been quashed by the University.

1. In pursuance of the order of this Court, respondent, university has filed report and parawise comments. Preliminary objection regarding maintainability of the Constitutional petition has been raised by the respondent on the ground that the same suffers from "lashes" and that Calendar of University of the Punjab Volume-II empowers the punjab University to quash the result of student if it is found that he/she was not eligible to appear in the examination.

2. On facts, it was admitted that she appeared in B.A. 2nd Annual Examination of 1982 under Roll No. 16153 as regular student from Government Degree College for Women. The result of the petitioner was declared and subsequently was quashed as she was not found eligible to appear in the examination. The eligibility of the petitioner was placed before the Equivalence Committee which is statutory body as defined under the Calendar of University of the Punjab Vol. I. The said committee decided to quash the result of the petitioner vide Paragraph 10 of the proceedings of the meeting of the Committee held on 4.8.1986.

3. Learned counsel for the petitioner contends that "no doubt the respondent University had power under rules to quash the result or to withdraw the degree of candidate, but that rule was subject to proviso attached to that rule according to which result of a candidate could be cancelled within three years from the date of declaration of the result of examination and since cancellation/quashment of the result of the petitioner was passed after more than 3 years from the declaration of the result of the petitioner. Thus the same was in clear violation of the rule of the University. Reliance has been placed on the case reported as Azad Jammu and Kashmir University and another versus Muhammad Malik and others (1998 CLC 783).

4. Learned counsel for the respondent University states that the result of the petitioner for B.A. examination was not announced and it was declared as latter on, therefore, petitioner cannot avail the benefit of proviso attached to the rules and the case of Azad Jammu and Kashmir University and another versus Muhammad Malik and others (1998 CLC 783) relied by the learned counsel for petitioner is not applicable to the facts and circumstances of the present case.

5. I have heard the learned counsel for parties and perused the record with their assistance. Vide Letter No. 615/E dated 14.3.1985 the Assistant Controller (Examinations. I) informed the college authorities as follows:--

"I am to inform you that the pass result card of Miss. Movina Iftikhar D/O Iftikhar Muhammad Roll No. 16153 of B.A. 2nd Annual Examination, 1982, a regular candidate of your College has been issued through an oversight by this office. You are, therefore, requested to direct the candidate concerned to return her result card to this office immediately. Her result is later for want of decision. The result for the above examination will however, be declared when her case of eligibility is decided."

1. Rule 22 of the Calendar of the University of the Punjab Volume-II reads as follows:

"Notwithstanding anything to the contrary contained in Regulations, the Syndicate shall have the power to quash the result or withdraw the Degree, Diploma or Certificate of a candidate after it has been declared or awarded, as the case may be".

No doubt under the above said rule of the Calendar of University of the Punjab had power to quash the result or withdraw the degree, diploma or certificate of a candidate after it has been delivered or awarded. It is also correct that this rule is subject to the proviso attached to that rule according to which result of the candidate could be cancelled within three years from the date of declaration of the result of the examination. Since the petitioner's result was declared as latter on and as per letter dated 14.3.1985 addressed to the Principal, Government Degree College for Women, Rawalpindi, the result of the petitioner was deferred for want of decision, therefore, under the proviso of the Rule 22 does not apply to the petitioner case as three years would have elapsed if the result would have been announced by the University. In case of Azad Jammu and Kashmir University and another versus Muhammad Malik and others (1998 CLC 783) referred by the learned counsel for the petitioner candidate appeared in B.Ed. Examination and were declared successful by the University and salary and other allowances of candidates were increased on basis of their newly acquired academic qualifications, but University after more than six years from issuance of the result, cancelled result of candidate on ground that they were not eligible to sit in B.Ed. Examination due to lack of teaching experience. In that eventuality, it was observed that Syndicate no doubt had power under Rule 22 of Azad Jammu & Kashmir University Rules to quash result or to withdraw the degree of candidate, but that rule was subject to proviso attached to that rule according to which result of candidate could be cancelled within three years from the date of declaration of result of examination and therefore order canceling the result of candidate after more than six years from the declaration of the result of the candidate was held to be in clear violation of proviso to Rule 22 of Azad Jammu & Kashmir University Rules. It was held to be not sustainable. In the present case, petitioner was able to complete the degree of the M.Sc. on the basis of B.A. result which was declared latter on for want of decision; therefore, the petitioner cannot take the benefit of proviso to Rule 22. Moreover she could produce the evidence, which could prove that, she had passed an examination equivalent to intermediate examination of Board of Intermediate and Secondary Education, before the Equivalence Committee on whose recommendation the result was quashed.

1. For what has been discussed above, this writ petition has no merits, therefore, is dismissed. Parties to bear their own costs.

(H.A.) Petition dismissed

PLJ 2005 Lahore 1032

Present: Mian Saqib Nisar, J.

SHER MUHAMMAD etc.--Appellants

versus

HAQ NAWAZ etc.--Respondents

R.S.A. No. 435 of 1972, heard on 13.9.2004.

(i) Interpretation of document--

----Interpretation of a document being a question of law, same can be construed in the light evidence led by parties and available on record.

[P. 1036] A

(i) West Pakistan Land Revenue Act, 1967 (XVII of 1967)—

----S. 39--Custom (Punjab), S. 52--Shart Wajab-ul-Arz" to effect that person who had cultivated Shamilat land should be entered in revenue record as owners of land--Connotation--Words used in "Shart Wajbul Arz" included therein expression that Shamilat was yet to be divided--Thus only rights available to defendants (appellants) were to enjoy possession and usufruct of such land and by describing them as owners, only meant for purpose of responsibility and implication of land revenue which they were supposed to bear--Land in question, thus, remained part of Shamilat and never stood excluded--However, at the time of partition, such land would be reckoned, computed and carried to account within the meaning of word " "--Court, below had rightly dismissed claim of defendants as exclusive owners of land in question. [P. 1036 & 1037] B & C

PLD 1975 SC 574; PLD 1949 Lahore 86; AIR 1935 Lahore 446; PLD 1980 Rev. 55 and PLD 2001 Lahore 481 ref.

Mr. Tariq Kamal Qazi, Advocate for Appellants.

Mr. M. Aslam Riaz, Advocate for Respondents.

Date of hearing : 13.9.2004.

Judgment

The dispute between the parties relates to 2602 Kanals and 10 Marlas of land, situated in Kot Mirza, Shahpur, District Jhang. A suit for declaration brought by the respondents against the appellants, claiming this land to be the part of the Shamilat, has been decreed by the learned trial Court on 30.4.1971; the first appeal of the appellants has failed on 9.3.1972.

1. Briefly stated the facts of the case are, that on 8.5.1967, respondents brought a suit for the declaration and permanent injunction, claiming that the land measuring 2602 Kanals and 10 Marlas situated in Kot Mirza Shah Pur, District Jhang, is a part of Shamlat Deh and that they are the co-owners thereof. It is further their case that the entries in the revenue record, showing this Shamilat land in the exclusive ownership of the appellants, are illegal, unlawful and against their rights. Therefore, such entries be corrected; they also sought the relief in the nature of permanent injunction that the appellant should not alienate the land and interfere in their possession. The suit was contested by the appellants/defendants, in which, they took up the plea that before 1878, their predecessors-in-interest had dug four wells in the land measuring 851 kanals and 17 Marlas of the land, which admittedly was the part of "Shamilat" and such land was brought under cultivation. On account of some challenge thrown by the predecessors of the respondents' side, the matter was settled and a "shart wajab-ul-Arz" was entered in the revenue record on 23.11.1878 by virtue thereof, the appellants' predecessors were acknowledged to be the owners of that part of the land, which was made cultivable in the above manner. This "shart wajab-ul-Arz" was given due effect in all the subsequent settlements, which took place in the Punjab in the years, 1886, 1904-5 and 1924-25, thus they denied the ownership of the plaintiffs and asserted their exclusive title to the land in dispute on account of the said "Shart Wajb-ul-Arz" asserting that since then the Shamilat stood partitioned and they have become the owners of the land falling to their land. Out of the pleadings of the parties, the learned trial Court, was pleased to frame the following issues:--

2. Is the suit time barred?

3. Has the Civil Court jurisdiction to entertain and try this suit?

4. Are the plaintiffs in possession of the suit land and is the suit competent in its present form and so is rightly valued for purposes of Court fee and jurisdiction?

5. Are the plaintiffs estopped to bring this suit for various objections raised by the defendants in their written statements?

6. Has the suit land been partitioned by Custodian, Evacuee Property, Auqaf Department and in proceedings under the Land Reform Regulation? If so, its effect?

7. Is the suit bad for non-joinder of necessary parties?

8. Was the land attached to the wells mentioned in para 3 of the plaint a part of the Shamilat land and it continued as such?

9. Have the defendants become the owners of the land of the wells by adverse possession for more than twelve years?

10. Is the Shart-wajab-ul-Arz for the year 1880 and the order of the Superintendent dated 23.11.1878, illegal and void and the said Shart-wajab-ul Arz is not binding on the parties?

11. To what relief or reliefs the plaintiffs are entitled?

Parties were put to trial; the suit of the respondents as mentioned above was allowed and the appeal filed by the petitioners remained unsuccessful. Hence this second appeal.

1. Mr. Tariq Kamal Qazi, the learned counsel for the petitioners has not attacked the findings of the two Courts below on the touchstone of the evidence on the record, imputing any misreading or non-reading thereof by the Court. And at the very out set has submitted that the fate of the case is depended upon the construction of the "shart-wajab-ul Arz, entered on 23.11.1878. According to Mr. Qazi, there are three possible interpretation of the "Shart". In his own words, these possibilities, which were noted down, are reproduced below:--

Firstly that the land, which had been cultivated by the predecessors of the appellants, had ceased to shamilat and had become their personal properties and there was no accounting for it;

Secondly that the land always remained part of the shamilat land and the interest of the appellants was usufructory or possessory;

Thirdly that the land has become the property of the appellants, but with the rider that at the time of the partition of the shamilat, the partition was to be on the basis, that such land shall be considered as the personal property of the appellants and not a part of the shamilat. But an area equal to 851 Kanals and 10 Marlas, would be deducted from the entitlement of the appellant.

Mr. Qazi has vehemently emphasized upon the third possibility and has argued that even without there being any formal proceeding or the specific order of the revenue authorities, for the partition of the Shamilat, yet by virtue of Shart Wajab-ul-Arz, a valid partition can always take place, as it has happened in the present case, and in such an eventuality, the land, which was made cultivable by the predecessors of the appellants, shall be deemed to be their Personal Property, but subject to the condition that when the formal partition of the Shamilat is made, 851 Kanals and 10 Marlas, shall be deducted from the entitlement. To support his contention, that a shamilat can be partitioned with their being the formal proceedings or the orders of the competent revenue authorities, Mr. Qazi has relied upon the case reported as Hussain & others vs. Fazal Rahim Khan etc. (PLD 1975 SC 574), particularly, the following passage:--

(Page 585)

"The final position, therefore, the emerges from a careful examination of these documents, which constitute the only evidence in this case, is that the rights of the parties are to be controller by the various Wajibul Arzes prepared at the successive settlements. These do not disclose that the rights of the Ala Maliks in the Shamilat had, at any stage, been altogether abolished. None of the Wajibul Arzes show that any rights in the Shamilat Deh as such were acquired by the Adna Maliks. They certainly did acquire rights over portions in their possession, if they had brought the same under cultivation or sunk a well therein, whether with the permission of the superior landlords or without such permission but neither the Adna Malika nor the Tiriniguzars acquired any specific share in the Shamilat proper which could entitle them to claim its partition."

He has also placed reliance on the cases reported as Mitha vs. Ghulam Hussain (PLD 1949 Lahore 86), with the relevant portion reading as under:

"Those who constructed wells with the permission of Sullah's descendants (i.e. the ala maliks) assumed the status of adna maliks, and became responsible for payment of malikana. This then was the method employed for the development of proprietary rights. Sullah was first granted permission to dig a well and he became owner of the land cultivated there from; he was empowered to allow outsiders to develop similar rights for themselves on land lying in the vicinity of his well, by the labour of their hands i.e. by digging wells and cultivating land therefrom and such person had to make submission in the form of gifts and dues known as tappa lagwai, as a condition precedent to the grant of permission and were also required to any malikana to the ala maliks in perpetuity and in consideration of these facts of submission, they became proprietors of the lands which they had reclaimed from the desert."

Sunder, and other vs. Inder Singh (Lal) and others (AIR 1935 Lahore 446).

"The word "Hasab rasad Khewat' when used in Revenue Records in reference to a partition of the shamilat area always meant according to the revenue assessed on the holing and not according to their areas, except in very extraordinary circumstances."

Support is also drawn from the case reported as Karim Bakhsh, etc. vs. The State and others (PLD 1980 Rev. 55), the operative part of which, is reproduced as under:--

"Thus, the revised entry in Misl Haqiyat of 1921-22 namely, Shamilat deh Malikan Adna hasab rasad khewatr jama bandobast qanuni would simply mean that the village Shamilat was to be shared by Adna Malikan according to the measure of assessment fixed on cultivated holdings on each well at the Settlement of 1878-80."

Lastly reliance has been put on the case reported as Maskin, etc. vs. Mst. Bhag Sultan, etc. (PLD 2001 Lahore 481), the relevant extract reads as follows:

"S. 52 Custrom (Punjab) Shart Wajibul Arz reflected an agreement based on custom pertaining to land classified as Banjar area giving right to the residents of village of grazing their cattle, collecting fuel wood and using natural ponds for their cattle."

1. Heard, Before proceeding with the matter, I feel expedient to restate the settled principle of law that the interpretation of a document is a question of law, which obviously, can be construed in the light of the evidence led by the parties, and available on the record. Mr. Qazi, however, has not discussed any evidence, which could be helpful in this behalf and has simply relied upon the wording of the "shart", which reads as under:

From the perusal of the above "Shart" and in the backdrop, in which it was entered upon, and explained by the counsel for the parties that when the predecessors-in-interest of the appellants had dug four wells in the Shamilat land and had made it cultivable, the respondents' predecessors objected to it, therefore, in order to resolve the dispute that the "Shart-Wajab-ul-Arz" reproduced above, was effected in which it is clearly mentioned that the persons, who have cultivated the land, shall be entered in the revenue record, as the owners of the land. But this does not mean that the land was either expressly or impliedly partitioned, and that the appellants' side has become the exclusive owners, on account of the above. Rather to the contrary, the assertion of the partition is refuted and negated by the very wording of the "Shart Wajbul Arz", itself, when it is expresses therein

" . This means that according to the intention of the parties to the "shart", the Shamilat was yet to be divided. And till then, the only rights available to the appellants were to enjoy the possession and the usufruct of the said land, and by describing them as the owners, only meant for the purpose of the responsibility and the implication of the land revenue, which they were suppose to bear. But their entitlement to have the exclusive ownership of the aforesaid land, was obviously dependent upon the partition in accordance with law. From the above, my answer to the first part of the third possibility is very clear.

1. Now examining the "Shart" from the other angle, as has been argued by Mr. Qazi, that the word "Mahsub", used in the "shart" according to the Urdu. Classical Hindi & English Dictionary by Joint T. Platts, M.A., means:--

" (Pass, Part of " " to number, reckon & (c) Part, Number, reckoned, computed, calculated; carried to account."

Therefore, the disputed land has been excluded from the Shamilat and the appellants were only liable to account for the same at the time of the partition. Suffice it to say that according to the true interpretation of the above word in the context of the "shart" and also the aforesaid meaning, the said land remained the part of the Shamilat and never stood excluded. However, it was agreed and stated, that at the time of the partition, such land shall be reckoned, computed and carried to the account within the meaning of the word " " reproduced above. Obviously when ever the partition, shall take place, the "Shart Wajbul Arz shall be given due effect.

In the light of above, I do not find any error either in reading the evidence on the record; the interpretation of the "shart wajabul Ars" or any other legal or factually infirmity in the judgments of the two Courts below, rendering these to be contrary to law, calling for interference in the second appeal. This appeal thus has no merit and the same is hereby dismissed.

(A.A.) Appeal dismissed.

PLJ 2005 Lahore 1037

Present: Sayed Zahid Hussain, J.

INSHALLAH KHAN and 10 others--Petitioners

versus

SIR BOLAND KHAN and 3 others--Respondents

W.P. No. 13973 of 2003, heard on 25.5.2004.

Constitution of Pakistan, 1973—

----Art. 199--Jurisdiction sphere, bounds and limitations of jurisdiction--Not equivalent to the appellant jurisdiction of the Court--Two different remedies with different scope, extent and contents--Resolution of disputed questions of fact does not fall within the domain of jurisdiction of the Court under Art. 199 of Constitution of Pakistan 1973 and that appreciation and re-appraisal of evidence is also not undertaken by the Court in writ jurisdiction--The finding recorded by Rent Controller and the appellant authority after appraising the evidence was not open to scrutiny and reversal in Constitutional jurisdiction and appropriate course should left an opportunity open for the landlord to go and establish the claim in Courts of plenary jurisdiction--Dispute relating to title of the property could not be decided in rent proceeding or in appeal emanating therefrom--Petition dismissed with an option open for petitioner to approach the Civil Courts for resolution of dispute.

[Pp. 1038 & 1039] A, B, C & D

1984 SCMR 317; 1983 SCMR 1064; 2000 SCMR 1525 and 1999 MLD 1607.

Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioners.

M/s. S.M. Masood and Moiz Tariq, Advocate for Respondents Nos. 1 to 3.

Date of hearing : 25.5.2004.

Judgment

An ejectment petition was instituted by the petitioners against the respondents qua Property No. 2400 that the same had been transferred to their predecessor-in-interest and P.T.D. had been issued on 22.4.1973. The ejectment petition was filed on 2.9.1996. In their reply filed by the respondents, relationship of landlord and tenant was denied which gave rise to Issue No. 1. Evidence was led by the parties. On 11.10.2000 the learned Rent Controller accepted the ejectment petition recording finding in favour of the petitioners. Appeal preferred by the respondents thereagainst, however, succeeded and the finding was reversed by the learned Additional District Judge. Daska vide his judgment dated 9.7.2003 with a direction to the petitioners to establish title before the Civil Court. This is petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 qua the above mentioned appellate judgment.

1. Lengthy arguments have been addressed in this matter in view of the bulk of the material on the record.

2. It is high time to be conscious of jurisdictional sphere, bounds and limitations of writ jurisdiction. It cannot be equated with the appellate jurisdiction of the Court. There is a marked difference in the scope, extent and content of the two remedies. Resolution of disputed questions of fact does not fall within the domain of jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and that appreciation and re-appraisal of the evidence is also not undertaken by this Court in writ jurisdiction. I have been taken through the evidence due to variant approach of the lower Courts in order to satisfy as to whether there was any material misreading or non-reading of the evidence or illegality or infirmity with the approach adopted by the learned. Additional District Judge in the matter. It was the case of the petitioners that Muhammad Ibrahim Abid, their predecessor-in-interest, had purchased Property No. 2400 in open auction from the settlement department for which P.T.D. was issued on 22.4.1973. The ejectment petition was, however, filed against the respondents in the year 1996. According to the petitioner, the respondents were occupying the said property. This assertion of the petitioners was disputed by the respondents and the plea of the petitioners was controverted that the property occupied by them was not No. 2400 and that the site-plan brought on record by the petitioners was also incorrect. It was, thus, that Issue No. 1 as to:

"whether relationship of landlord and tenant exists between the parties"

was framed by the Rent Controller with the onus on the petitioners to prove the same. As mentioned above, an attempt was made by the petitioners by producing bulky evidence to prove the issue, but the same was found unsatisfactory by the appellate Court who reversed the finding of the learned Rent Controller. In the context of the controversy it was the burden of the petitioners to prove that what was purchased in auction by their predecessor-in-interest and was transferred by the settlement department was the property in occupation of the respondents. Thus, a serious dispute as to title and the identity of the property had cropped up, the resolution whereof as essential before an ejectment order could be passed against the respondents. In Nisar Ahmad and others v. District Judge, Muzaffargarh and others (1984 SCMR 317) it was observed with reference to Rehmat Ullah v. Ali Muhammad and another (1983 SCMR 1064) that the finding recorded by the learned Rent Controller and the appellate authority after appraising the evidence was not open to scrutiny and reversal in Constitutional jurisdiction and that the appropriate course would have been to leave an opportunity open for the landlord to go and establish his claim in Courts of plenary jurisdiction. Similar was the approach adopted in Junaid Rasheed and others v. Sultan Muhammad and others (2000 SCMR 1525) in which controversy of almost identical nature (identification of property) had arisen and it was observed that dispute relating to title of the property could not be decided in rent proceedings or in appeals emanating therefrom. Similar was the view taken by this Court in Khalid Mahmud and 6 others v. Maqbul Mahmood Bajwa, Additional District Judge, Sialkot and another (1999 MLD 1607). In such view of the matter, the learned Additional District Judge i.e. the appellate authority in the present case was fully justified to reverse the order of the Rent Controller which judgment is consistent with the above cited precedents.

The petition is, thus, dismissed with an option open for the petitioners to approach the Civil Court for resolution of the dispute as to their claim and the identity of the property. No order as to costs.

(N.T.) Petition dismissed.

PLJ 2005 Lahore 1040 (DB)

Present: Sayed Zahid Hussain and Rustam Ali Malik, JJ.

PROVINCE OF PUNJAB etc.--Appellants

versus

M/s. RAUF CORPORATION (PVT.) LIMITED--Respondent

R.F.A. No. 27 of 2000, decided on 31.3.2004.

Civil Procedure Code, 1908 (V of 1908)—

----O. XX R. 5--Issue-wise findings--Trial Court took different issues and disposed them of together--Held--Trial Court had to record its findings and decision upon each issue separately--Case was remanded to trial Court for decision afresh after affording opportunity of hearing to the parties. [Pp. 1043 & 1044] A & B

1982 SCMR 816; PLD 1992 Pesh. 13 and 1996 MLD 818.

Mian Muhammad Athar, Advocate for Appellants.

Mr. Riaz Karim Qureshi, Advocate for Respondent.

Dates of hearing : 29, 31.3.2004.

Judgment

Syed Zahid Hussain, J.--A suit for recovery of Rs. 2,38,46,263/- instituted by the respondent was decreed by the learned Civil Judge 1st Class, Lahore to the extent of Rs. 1,70,33,045/- with interest at the prevailing bank rate with effect from September 1996 till the date of realization of the decretal amount vide judgment and decree dated 11.10.1999 whereagainst this appeal has been preferred by the Province of Punjab through Secretary to the Government of the Punjab, Irrigation and Power Department, Lahore and the Executive Engineer, Chackbandi Division, Mustafa Abad, Lahore.

1. The case of the plaintiff as setup in the plaint was that he had in execution of the agreements completed the works:--

(a) Repairing Bridge R.D. 227-B.G R.B.D. Link vide acceptance letter dated 15.4.1993.

(b) Protection of `J' Head Spur RD 288500 during flood of 1966 and checking errosion of River Ravi in Reach 288-289/Left B.R.B.D. Link Canal vide acceptance letter dated 3.9.1996.

(c) Constructing Stone Stud No. 1 vide acceptance letter dated 25.7.1996.

(d) Launching of Tree to protect the B.R.B.D. Link RD 288700 to 289700 during flood of 1996 vide acceptance letter dated 2.9.1996.

(e) Launching of Tree to protect Shank Bund RD 4000 to 4600 at Ravi Syphen including wire rope `U' Clamp etc. vide letter dated 13.8.1994.

It was pleaded that despite completion of the works to the satisfaction of the department the payment was not being released due to paucity of funds. According to the plaintiff the completion of works and the amounts due found mention in the report of Superintending Engineer dated 12.1.1998. It was thus averred in Paragraph No. 5 of the plaint that the cause of action accrued in favour of the plaintiff firstly in September 1996, when the work orders were issued, secondly on 12.1.1998 when the Superintending Engineer made a confirmation to the higher authorities for the completion of the jobs, thirdly on 1.1.1998 when the legal notice was served and lastly on 7.8.1998 when the final notice was issued by the plaintiff. It was thus prayed that "a decree for Rs. 2,38,46,263/- may kindly be passed including compensation at the rate of 20% per annum with effect from September, 1996, with costs, till the date of realization." Through the written statement, which was filed by the appellants/defendants it was pleaded that the respondent/plaintiff had not invoked the arbitration clause. The valuation of the suit and payment of Court fee was also objected to. It was averred that scrutiny committee had been constituted pursuant to an order passed by the Lahore High Court where the matter could be examined and scrutinized. It was further averred that there was no cause of action in favour of the respondent/plaintiff and the suit was liable to be dismissed accordingly. In reply to Paragraph 5 of the plaint it was pleaded that "That para is denied. The confirmation of the executed works is under question and is being scrutinized by the scrutiny committee." From the pleadings of the parties the under-mentioned issues were framed:--

(i) Whether the plaintiff is entitled to obtain a decree for the recovery of Rs. 2,38,46,263/- on the basis of facts mentioned in the plaint as prayed for ? OPP

(ii) Whether the suit is not maintainable in the light of preliminary Objections Nos. 1 and 3 ? OPD

(iii) Whether the plaint is not properly valued for the purposes of the Court fee and its jurisdiction, if, so what is the correct amount of the Court fee ? OPD

(iv) Whether the suit is without any cause of action and plaint is liable to be dismissed U/O. 7, Rule 11 CPC ? OPD.

(v) Whether the suit is liable to be dismissed with special costs U/S. 35-A CPC ? OPD.

(vi) Relief.

In support of his case the respondent/plaintiff produced Yousaf Ali. Accounts Clerk, Chak Bandi Division, Mustafabad, Lahore PW-1. Allah Dad Niazi Jamadar as PW-2 and statement of Ch. Barkat Ali, Chief Executive of the plaintiff's firm was recorded as PW-3. Documentary evidence Ex. P-1 to

Ex.P-11 was also adduced. From the appellants/defendants' side Tariq Siddique Khokhar XEN, Chak Bandi Division, Mustafabad, Lahore deposed as DW-1. The learned trial Court recorded finding on Issue No. 1 in favour of the respondent/plaintiff that the same had been proved to the extent that the plaintiff was entitled to obtain a decree for Rs. 1,70,33,045/- and chose to take Issues Nos. 2, 3, 4 and 5 together, considering that the same were interconnected. Such disposition of the matter has been assailed that the suit was based on five different claims arising out of distinct transactions and that Issues Nos. 2 to 5 had distinct implications, which have illegally been clubbed and treated together. Findings on Issue No. 1 are assailed that the same are not backed by the evidence on the record and are rather based on assumptions, conjectures and surmises resulting in a decree not sustainable in law.

The learned counsel for the respondent/decree holder has referred to a report dated 12.1.1998 of the Superintending Engineer, Link Circle, Lahore to contend that the claim of the respondent/plaintiff was conceded and admitted and the suit had rightly been decreed. It is contended that resort to arbitration as per clause 65 of the agreement or to the scrutiny committee was not required as according to him there was no such dispute as could be referred or examined by any such forum. Reference has been made to Itehad Cargo Services, National Hotel Lahore through Managing Partner and 2 others v. Rana Rafaqat Ali and 3 others (PLD 2002 Karachi 420) and Messrs Gulf Pacific Fertilizer, California, U.S.A. through Attorney v. Messrs Ali Akbar Enterprises and 2 others (2000 MLD 1537) to contend that after the filing of written statement the objection of the appellants/defendants as to arbitration clause had lost its efficacy.

1. The record has been perused by us and the case pleaded by the parties had been considered in the light thereof. As has been mentioned above the cause of action for the suit was pleaded in Paragraph No. 5 of the plaint, contents whereof were denied by the appellants/defendants, pleading that "The confirmation of the executed works is under question and is being scrutinized by the scrutiny committee." In the light of the denial entered by the appellants/defendants it was the duty of the respondent/plaintiff to have proved its case by producing cogent and convincing evidence. The main reliance of the respondent/plaintiff was on some report prepared on 12.1.1998 by the Superintending Engineer from which an inference was sought to be drawn that the claim of the respondent/plaintiff stood admitted and proved. On perusal of the record of the trial Court we have, however, found that there is a photocopy of a report which was neither proved of exhibited as piece of evidence nor confronted to the Superintending Engineer by calling him as a witness. The learned counsel for the respondent/plaintiff. However, stated that the said report is part of Ex. P-7. The assertion, however, it not supported by the record. We find that Ex. P-1 to Ex. P-10 were adduced in evidence through Yousaf Ali, Accounts Clerk PW-1 and Ex. P-11 through Allad Dad Niazi Jamadar PW-2. In the statement of Yousaf Ali Accounts Clerk PW-1, the description of Ex. P-7 is measurement book page from 132 to 144 Ex. P-7". The perusal of Ex. P-7 starting from pages 132 to 144 shows that the same is a copy of printed book with hand written entries. That is all what Ex. P-7 is. It is thus misconceived that the report dated 12.1.1998 (relied upon by the respondent/plaintiff) was part of Ex. P-7. Likewise Ex. P-11 consisting of 28 pages is a photocopy of hand written entries. Report dated 12.1.1998 is not part of Ex. P-11 even. It thus has remained an assumption that such a report of the Superintending Engineer dated 12.1.1998 was part of the evidence on the record. The inferences drawn by he learned trial Court were more based on assumptions rather than the proved facts. He has assumed as if the entire work had been completed by the respondent/plaintiff but was not made payment. Indeed the statement of Tariq Siddique Khokhar, Executive Engineer, DW-1 was misread and misconstrued, wrongly attributing an admission of the liability to him. It had been stated by him that five separate works were allotted to the respondent/plaintiff but sanction of only one work had been given and the estimate of four works had not been sanctioned by the authority. It was stated by him that the claim of the respondent/plaintiff had been sent to the scrutiny committee for verification and finalization. In presence of such a stance of the appellants/defendants (as pleaded in the written statement) and the statement of Tariq Siddique Khohkar, Executive Engineer, DW-1 that the claim of the respondent/plaintiff had yet to be scrutinized and finalized, the trial Court clearly took an erroneous view of the matter as if the works were completed to the satisfaction of the competent authority and the payment, therefore, had to be made to him, which was decreed.

2. As mentioned above, Issues Nos. 2, 3, 4 and 5 were taken and disposed of together by the trial Court. The perusal of these issues would show that the same had different scope and implications Order XX of Code of Civil Procedure, 1908 deals with the judgments and decrees. Rule 5 thereof enjoins upon the Court to record findings and decision upon each issue separately. In Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816) it was observed that the trial Court had "disregarded the mandatory provisions of Order XX, Rule 5, C.P.C. and, therefore, had acted in exercise of his jurisdiction with material irregularity." The High Court in that case had remanded the case to the trial Court for rewriting judgment as the later had decided Issues Nos. 1 to 5 without recording findings on each separate issue. The judgment of High Court was maintained by the Hon'ble Supreme Court. In Mst. Gul Shahbah v. Civil Judge-III/Judge Family Court, Haripur and 2 others (PLD 1992 Peshawar 13) and Haji Abdul Jalil v. Anjuman Jame Masjid Haquani (1996 MLD 818) also similar view was taken. It may, however, be observed that in the civil litigation the conduct of the litigants also become relevant inasmuch as if in a case an issue is not pressed, the Court would not be obliged to record findings thereon. In the present case, however, the perusal of Issues Nos. 2 to 4 would show that each of the issue had an important bearing and finding was to be recorded separately on each of them. Paragraph 15 of the judgment of the learned trial Court, however, shows that after noting the respective contention of the learned counsel qua the valuation of the suit and the Court fee (Issue No. 3) no finding was recorded by the trial Court. Likewise the Court proceeded on the assumption in deciding rest of the issues as if the claim of the respondent/plaintiff had been admitted by the appellants/defendants. Such was an erroneous approach to the matter inconsistent with the plea taken in the written statement by the appellants/defendants and the deposition of Tariq Siddique Khokhar, Executive Engineer DW-1. In such view of the matter, we are unable to affirm the approach adopted by the trial Court in its judgment dated 11.10.1999 or granting decree in favour of the respondent/plaintiff.

Considering all aspects of the matter we have come to the conclusion that remand of the case to the trial Court for decision afresh after affording opportunity of hearing to the parties would serve the ends of justice. The impugned judgment and decree is thus set aside accepting the appeal accordingly. The parties to cause their representation before the trial Court on 3.5.2004. Office to ensure that the records are despatched and sent to the trial Court well in time.

No order as to costs.

(J.R.) Appeal accepted, case remanded.

PLJ 2005 Lahore 1044

Present: Muhammad Muzammal Khan, J.

LAHORE DEVELOPMENT AUTHORITY through its MANAGING DIRECTOR WASA--Appellant

versus

M/s. FAISAL INTERNATIONAL CONSTRUCTION CORPORATION LTD., LAHORE--Respondent

F.A.O. No. 191 of 1994, heard on 9.12.2003.

(i) Arbitration Act, 1940 (X of 1940)—

----Ss. 15 & 20--Award substitution of--Legal misconduct--Supervisory role of the Court--Opinion/decision given by an Arbitrator cannot be substituted by the civil Court or even High Court in discharge of appellate jurisdiction unless and until some legal misconduct is shown to have been committed by the Arbitrator--Role of Court is of supervisory nature and not that of Appellate Court. [P. 1048] A

(ii) Arbitration Act, 1940 (X of 1940)—

----S. 15--Amendment of award--Scope--Award can only be amended or modified or corrected when it falls within the scope of S. 15 of Arbitration Act. [P. 1048] B

(iii) Arbitration Act, 1940 (X of 1940)--

----Ss. 13 & 26-A--Arbitration, powers of--Held : Arbitrator while calculating the loss incurred to any party under the agreement can consider to the advantage of that party factors like the depreciation of currency, loss of investment or profit etc. [P. 1048] C

(iv) Arbitration Act, 1940 (X of 1940)--

----S. 29--Award of interest--Principles--Grant or refusal of interest is a discretion that vests in the Court and is exercisable on the basis of principles of administration of justice. [P. 1049] E

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

----Ss. 34 & 34-B--Interests Act 1839, S. 1--Arbitration Act, 1940, S. 29--Held: Interest can be claimed from the date when a debt or loan becomes payable from the specified date and if no such date is mentioned in writing the claim of interest is recoverable upto the date of the suit.

[P. 1049] D

2002 SCMR 366; 2002 SCMR 1903; 2002 CLC 353; 1992 SCMR 2238 &

PLD 1992 SC 479, ref.

Mr. Mehboob Ahmed, Advocate for Appellant.

M/s Syed Ikhtisar Ahmed & Malik Amjad Parvez, Advocates for Respondents.

Date of hearing : 9.12.2003.

Judgment

This first appeal is directed against judgment/order dated 9.2.1994 passed by Civil Judge, Lahore, whereby an award dated 7.6.1985 was made rule of the Court.

1. Precisely, facts relevant for disposal of this appeal are that respondent was a contractor of the appellant, who filed a petition under Section 20 of the Arbitration Act, 1940 and averred that it was given a contract by the appellant for construction of Trunk Severs and appurtenances in Sodiwal, Naunarian, Babu Sabu and Shera Kot, Lahore, vide contract/agreement No. WASA/S/303-A, dated 26.7.1979 for an amount of Rs. 1,22,02,693.80. The work was to be completed within a period of 600 days. According to clause D-30(a) of Part-D General Terms and Conditions, mobilization advance of Rs. 12,20,269.30 was paid to the respondent-contractor on 15.8.1979 against the bank guarantee. Respondent started the assigned work, but in the course of work, first running bill was submitted by the respondent on 10.3.1980 for an amount of Rs. 10,29,232.13, whereupon an amount of Rs. 8,90,370.42 was paid and the remaining amount was withheld by the appellant without any just cause. Likewise, second bill was submitted on 27.8.1980 amounting to Rs. 8,16,035.37, wherefrom an amount of Rs. 7,69,306.74 was paid on 18.11.1980. Respondent also detailed in his petition that third running bill of

Rs. 14,46,996.56 was unnecessarily delayed and its payment was not made until the sewer lines were tested and checked by the appellant. Respondent also pleaded that appellant had been creating unnecessary hurdles in the progress of the work and did not provide vacant sites for laying of sewer lines. According to it at the time of tender the spaces for sewer was lying unoccupied, but after start of work many houses and other constructions had been raised by the unauthorized occupants, which were to be removed by the appellant and inspite of the repeated requests, the needful was not done. For these reasons, the respondent claimed that construction work which was to be completed by 31.12.1981 had to suffer, the delay of which was only due to the appellant's conduct. Near completion of work, appellant unilaterally rescinded the contract which, according to the respondent was in breach of the agreement itself, as it could not be done, without hearing or notice to it. Respondent also prayed that dispute may be referred for arbitration in terms of agreement between the parties and appellant may be required to file the agreement in Court.

1. In response to the notice by the trial Court, appellant though admitted contract/agreement between the parties, yet it denied averments in the petition filed by the respondent regarding delayed payment in running bills and regarding handing over of vacant site for laying the sewer lines. In view of admitted nature of the agreement between the parties dated 26.7.1979, which provided arbitration clause in case of dispute vide Clause D-43 parties were required to submit names of the arbitrators. Thereafter, Mr. Mazhar Munir Ex-Secretary Communication, Government of the Punjab, was nominated as arbitrator by the appellant and respondent named Mr. Umar Hayat Chohan, Advocate and both of them were appointed as joint arbitrators by the trial Court vide its order dated 7.9.1981. Arbitrators after taking proceedings on 24.7.1987 submitted their award and thereafter the parties were required to file objections, if any, thereof, within 30 days. Appellant filed objections, inter alia, asserting that award is conjectural, based on insufficient material, beyond scope of reference and lacks reasoning in itself. Objections of the appellants were replied by the respondent, whereafter following issues were framed:--

2. Whether arbitrators have misconducted themselves during the proceedings? If so its effect? OPR.

3. Relief.

Parties produced their respective evidence and in result of its appraisal by the learned trial Judge, award was made rule of the Court through judgment/order dated 9.2.1994 whereby objections of the appellant were also dismissed.

1. Appellant aggrieved of the decision of the learned trial Judge dated 9.2.1994 making award rule of the Court, has come up in appeal before this Court for setting aside the said order.

2. Learned counsel for the appellant has attacked the order of the trial Court on multiple grounds, including that interest could not have been allowed to the respondent, as it was neither included in the reference nor was determined by the arbitrator. He also asserted that work was not completed by the respondent within the stipulated period, inspite of repeated notices by the appellant. He also complains that contractor did not join measurement work by the department and thus was not entitled to any amount, as claimed by it. Learned Counsel for the appellant further elaborates his arguments by saying that the arbitrators had no material for their decision as given in the award and thus their award is based on surmises. According to learned counsel for the appellant work was not completed at the site, but was so erroneously claimed by the respondent before the trial Court. It has also been complained by the learned counsel for the appellant that rent on account of shuttering, has not only been incorrectly calculated but being exorbitant, could not have been granted. He further adds that period of interest is also more than to the entitlement of the respondent under law.

3. Conversely, learned counsel for the respondent have not only supported the judgment of the trial Court but have also refuted the submissions of the appellant and urged that trial Court or the Court of appeal cannot substitute its own viewpoint in place of the one taken by the arbitrator after due appraisal of evidence. They in support of their argument relied on the judgments reported in the cases of Messrs Waheed Brothers (Pakistan) Ltd. Lahore through Chief Executive vs. Messrs Izhar (Pvt.) Ltd, Lahore through Managing Director (2002 SCMR 366), Messrs Tribal Friends Co. vs. Province of Balochistan (2002 SCMR 1903) and S.G. Rayon Mills (Pvt.) Limited vs. Fida Hussain & Associates (2002 CLC 353). Learned counsel for the respondent have also contended that there is no misconduct on part of the arbitrators who provided full opportunity to the parties to substantiate their stances by production of evidence. Appellant itself did not produce evidence in support of the alleged misconduct of the arbitrators or the failure of the respondent to complete the work within the stipulated period.

4. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Under law, opinion/decision given by an arbitrator cannot be substituted by the Civil Court or this Court in discharge of appellate jurisdiction unless and until some legal misconduct is shown to have been committed by the arbitrator. Learned counsel appearing on behalf of the respondent have rightly relied on two alighted judgments of the Honourable Supreme Court in the cases of Messrs Waheed Brothers (Pakistan) Ltd. and Messrs Tribal Friends Co. (supra), wherein it was mandated that role of the Court under Arbitration Act, 1940, is of supervisory nature and not that of the Appellate Court, as under Civil Procedure Code. Award can only be amended/modified/corrected when it falls within the scope of Section 15 of the Act. There is no evidence, worth the name showing that the arbitrators committed any legal misconduct yet in order to verify the record, I have examined the award as well as evidence recorded by both the arbitrators and the trial Court, whereby it is proved that a contract stood extended up to 31.12.1987 but work progress by the contractor was slow without any lawful justification. Respondent had proved its difficulties of laying pipelines of 42" only, but it could not do so with regard to lay of other pipes of the sizes of 18", 21", 24", 27", 30", 48" and 60". In this manner, respondent in a way committed default in performance of the contract, by his slow work and could not complete it, inspite of five extensions, in a year. Appellant's non-co-operation with the respondent is only proved on the file with regard to laying of pipelines according to drawing No. SG-01 touching pipelines of 42". Conduct of Respondent No. 1 was not justifiable in stopping work on the other sites on account of non-co-operation of the appellant on one site. Respondents, besides other items, was entitled to Rs. 10,79,911/- for work done, but he claimed an amount of

Rs. 1,70,024.06 for Item No. 17 of its claim, on account of excellation before the arbitrators, whereas appellant admitted its this claim to the tune of

Rs. 98,010.79. Arbitrators have noted those lapses on part of the respondent who have also remarked regarding claim of the respondent to be exorbitant and in this manner granted claim, including loss incurred by it much less the original claim. Arbitrators did not consider to the advantage of the appellant, depreciation of currency, loss of investment or profit etc. according to principles laid down by the Honourable Supreme Court of Pakistan in the case of Karachi Transport Corporation vs. Karachi Tameerat Limited (PLD 1992 SC 479). Respondent has also not appealed against the order granting lesser claim thus I find that in the circumstances of this case, trial Court has rightly passed the order making the award rule of the Court. Similarly, awarding of return/interest at the rate of 15% on only awarded amount to the contractor is absolutely justified. According to alighted judgment of the Honourable Supreme Court of Pakistan in the case of TERNI S.P.A. vs. PECO (Pakistan Engineering Company) Ltd. (1992 SCMR 2238), while interpreting Section 1 of the Interest Act, 1839 and Sections 34 and 34-B of the Civil Procedure Code, 1908, it was held that interest can be claimed from the date when such debt or loan becomes payable, from the date specified and if no such date is mentioned in writing the claim of interest up to date of suit is recoverable. Grant or refusal of interest is a discretion vesting in Court exercisable on the basis of known principles for administration of justice. The discretion vesting in the trial Court has judiciously been invoked.

1. For what has been discussed above, I find that judgment of the trial Court is absolutely in consonance with the evidence on the file and no interference is called for in this appeal, as the respondent have already been given much less amount, to the one to which it was entitled under law. This appeal has no merit in it and is accordingly dismissed, with no order as to costs.

(J.R.) Appeal dismissed.

PLJ 2005 Lahore 1049

Present: Mrs. Fakhar-un-Nisa Khokhar, J.

ALLAH DITTA etc.--Petitioners

versus

NOOR HUSSAIN etc.--Respondents

W.P. No. 5061 of 2004, decided on 8.4.2004.

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

----O.XIV R. 5--Power to amend and strike out issues--Held: The power of Court under this provision is inherent power to take cognizance of the question going to the root of the case at any stage. [P. 1052] A

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

----O.XIV, Rr. 3 & 5--Held--Under R. 3, issues can be framed on the basis of material available on the allegations made on oath by the parties or allegations made in the pleading or in answers to interrogatories delivered in the suit on the contents of the document produced by either party--Further held: Rule 5 gives a discretion to the Court that proper issues must be framed and for that purpose it authorizes the Court to add, amend or strike out the issues--The second part of the rule makes it mandatory upon the Court to amend or frame issues of determining the matters in controversy at any stage of the case. [Pp. 1052 & 1053] B

AIR 1922 Patna 514 and 35 M 607 PC.

Ch. Atta Ullah, Advocate for Petitioners.

Date of hearing : 8.4.2004.

Order

Brief facts in the instant writ petition are that three suits for specific performance of agreement to sell, one filed by petitioner and two suits filed by the respondents/defendants were consolidated, following consolidated issues were formulated:--

(i) Whether the suit is not maintainable in its present form? OPD.

(ii) Whether the Punjab Province is un-necessary party to the suit, if so, its effect? OPD.

(iii) Whether this suit is time barred? OPD.

(iv) Whether the suit is bad for multifariousness? OPD.

(v) Whether the general attorney of the deceased Defendant No. 2 and Defendant No. 3 were not competent to enter into sale contract without the permission of District Collector, If so, its effect? OPD.

(vi) Whether the plaintiffs are estopped by their own words and conduct to bring this suit? OPD.

(vii) Whether the suit cannot be filed on the strength of arbitration decision/rule of the Court in view of P.O. No. 9 of the written statement? OPD.

(viii) Whether the plaintiffs have no locus-standi and cause of action to file this suit? OPD.

(ix) Whether this Court has no jurisdiction to try the suit? OPD.

(x) Whether this suit cannot proceed for non-issuance of conveyance deed? OPD.

(xi) Whether the plaintiffs are entitled to the decree for specific performance in respect of the suit land. If so, on what terms and conditions? OPD.

(xii) Whether both the suits filed by Zulifqar the Defendant No. 4 are not maintainable in their present form? OPP.

(xiii) Whether the Plaintiffs/Defendants Nos. 4 to 6 in the counter suits are entitled to special costs under Section 35/A CPC, If so, to what amount? OPP.

(xiv) Whether Zulifqar the Defendant No. 4 is estopped by his own conduct to file his suits? OPP.

(xv) Whether the agreement deeds dated 29.12.1973, 14.1.1975 and 22.10.1986 in favour of the Defendant No. 4 on the basis of which he has filed two separate suits, are false, illegal, fraudulent, collusive, fictitious, void and in-effective qua the rights of the plaintiffs? OPP.

(xvi) Whether the Defendant No. 4 is not entitled to get a decree for specific performance in view of Section 22 of the Specific Relief Act? OPP.

(xvii) Whether Zulifqar the plaintiff in Suit No. 48/91 is entitled to the decree for specific performance in respect of the land duly described therein, If so, on what terms and conditions? OPD.

(xviii) Whether Zulifqar the plaintiff in Suit No. 141/92 in regard to the land duly described therein is entitled to the decree for specific performance if so, on what terms and conditions? OPD.

(xix) Relief.

The petitioner applied for amendment in Issues Nos. 5, 15 and 16 as not correctly framed by an application under Order 14 Rule 5 CPC for correction and framing of correct issues. The learned Trial Court vide order dated 19.5.2003 dismissed the application. On revision the learned Revisional Court amended and re-framed Issue No. 5 as "whether general attorney of the deceased Defendants Nos. 1 and 2 was not competent to enter into sale contract without the permission of District Collector, if so, its effect? OPD" and in respect of Issue No. 15 the learned revisional Court observed that Issue No. 15 has been correctly framed and needs no interference. The learned Revisional Court partly accepted the revision petition, converted Issue No. 5 and refused to reframe Issue No. 15 as according to him it was correctly framed. Instant writ petition is filed to challenge the said order.

1. Arguments advanced by learned counsel for the petitioner are that Zulifqar son of Wali Dad respondent in the present petition has filed two suits for specific performance of agreements to sell dated 29.12.1973, 14.1.1975 and 22.10.1986. As such the onus to prove these three agreements was on the said Zulifqar the plaintiff in those suits. There was no need to frame separate Issues Nos. 15, 16 and 17. It could be resolved through one issue in accordance with the pleadings of the parties that whether Zulifqar plaintiff in two suits is entitled to decree for specific performance of the agreements to sell dated 29.12.1973, 14.1.1975 and 22.10.1986 in his favour and whether the same are valid lawful and whether Zulifqar is entitled to specific performance of the agreements to sell as referred to above? OPD.

2. I have heard the learned counsel for the petitioners and perused the judgments as well as the pleadings of the parties. Order 14 Rule 5 CPC provides that "The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed". Similarly in sub-section (2) "the Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced." The power of the Court under this provision is inherent power to take cognizance of the question going to the root of the case at any stage of the case "Baijnath Kuar and others vs. Brijraj Kuar and another" (AIR 1922 Patna 514) and "Shamu Patter vs. Abdul Kadir Ravuthan and others" (35 M 607 PC). But this inherent jurisdiction is subject to the term of Order 14 Rule 3 CPC, which provides that the materials, from which issues may be framed i.e. (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties, (b) allegations made in the pleadings or in answers to interrogations delivered in the suit; (c) the contents of documents produced by either party.

3. It is note worthy that suits were consolidated but no amendments were made in the suits for impleadment of parties. One suit was filed by Allah Ditta plaintiff, which was contested through written statement on behalf of Defendants Nos. 1 to 4 and later on through amended written statement on behalf of Defendants Nos. 1-A to 1-E. The second suit was filed by Zulifqar Ahmad son of Wali Dad against Noor Hussain etc. on 12.7.2000, which was contested through written statement on behalf of Defendants Nos. 3, 4 to 16 and the third suit was also filed by the plaintiff Zulifqar Ahmad against Mst. Parveen Bibi etc. for specific performance of agreement to sell dated 29.12.1973, 14.1.1975 and 22.10.1986, which was contested through written statement on behalf of Defendants Nos. 9 to 21. The Court formulated Issues Nos. 15, 16, 17 and 18, these are interconnected issues and onus of all these issues is on the plaintiff and defendant. The learned Revisional Court has amended Issue No. 5 and re-framed the same but the observation of the learned Revisional Court in respect of Issues Nos. 15, 16, 17 and 18 is that no interference is needed in these issues as they are the out come of allegations averred in the pleadings of the parties.

4. Keeping in view the observation of the learned Revisional Court and Order 14 Rules 3 and 5 CPC, issues may be framed on the basis of material available on the allegations made on oath by the parties or allegations made in the pleadings or in answers to interrogatories delivered in the suit or the contents of the documents produced by either party and the discretion exercised by the Court is subject to the provision of Order 14 Rule 3 CPC. Perusal of Rule 5 shows that first part of the provision gives a discretion to the Court that proper issues must be framed and it authorizes the Court subject to the term of Rules 3 and 5 to add, amend or strike out the issues. The second part of the rule makes it mandatory upon the Court to amend or frame issues for determining the matters in controversy between the parties at any stage of the case.

5. Since the aforesaid Issues Nos. 15, 16, 17 and 18 are interconnected the learned Revisional Court has correctly held that no interference is needed as the said issues are the out come of pleadings of the parties in all the consolidated suits and written statements, therefore, no interference by this Court is needed in the judgment passed by the learned Revisional Court. Instant writ petition is dismissed in limine.

(J.R.) Petition dismissed.

PLJ 2005 Lahore 1053

Present: Ch. Ijaz Ahmad, J.

MUHAMMAD QASIM--Appellants

versus

TAHIR SALEEM and another--Respondents

F.A.O. No. 108 of 2004, decided on 29.6.2004.

(i) Administration of Justice--

----It is settled principle of law that no body should be penalized by act of Court. [P. 1056] C

(ii) Administration of Justice--

----It is settled principle of Law that each and every case is to be decided on its own peculiar circumstances and facts. [P. 1056] D

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

----O. XXXIX, R. 4, S. 151--Date was changed without knowledge of appellant--Challenge to vires of order--Principle of natural justice--Preliminary objection--Once a Court had decided a matter after giving to each side an opportunity of being heard its order was final and cannot be re-opened except on presentation of some new material not available when original order was passed--Held: It is better and appropriate to reproduce material facts in chronological order to resolve present controversy between parties--Appeal accepted and order set aside--Trial Court is directed to decide application of respondent afresh after providing proper hearing to all parties in accordance with law--Case remanded. [Pp. 1055 & 1056] A & F

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

----O. XLIII, R. 1 (R) Legislature in its wisdom placed the Order 39 Rule 4 CPC before Order 39 Rule (1)(R) of CPC--It is settled principle of interpretation that later provision of law will hold in field--Even otherwise impugned order is appealable under O. 39 R. 1(r) of C.P.C.

[P. 1056] E

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

----S. 24-A--Civil Procedure Code (V of 1908) O. XXXIX, R. 4--Adjournment without intimation--Challenge to--Principle of natural justice--It is duty and obligation of even public functionaries to decide controversy between parties after application of mind with reasons. [P. 1056] B

Mr. Abdul Razzaq Mirza, Advocate for Appellant.

Ch. Muhammad Akhtar Ali Gorya, Advocate for Respondent No. 1.

Ch. Muhammad Rashid Vehra, Advocate for Respondent No. 2.

Date of hearing : 29.6.2004.

Order

The appellant has challenged the vires of order dated 20.3.2004 through this appeal on the ground that the case as fixed before the learned trial Court on 17.3.2004 and adjourned for arguments of learned counsel of the parties for 16.4.2004. Subsequently, the date was changed without intimation to the learned counsel of the appellant from 16.4.2004 to 18.3.2004. Thereafter the case was fixed on 18.3.2004 and learned counsel of respondents has argued and case was adjourned for arguments of learned counsel of appellant/defendant for 20.3.2004.

1. The impugned order was passed by the Court below without providing proper hearing to the appellant, therefore, the same is without lawful authority and is hit by principle of natural justice.

2. The learned counsel of respondents raised preliminary objection in view of Order 39 Rule 4 CPC that appellant has alternative remedy to file an application for vacation of stay order before the learned trial Court, therefore, the appeal filed by the appellant directly before this Court without exhausting the remedy under the provisions of CPC was not maintainable. In support of his contention, he relied upon `Pakistan Engineering Consultant's case (1993 CLC 882) and "Abrar Ahmad Khan Tareen's case" (1994 SCMR 1764).

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

4. The learned trial Court has ample powers under Order 39 Rule 4 CPC to discharge vary or set aside injunctive order which is not confined only in case of ex-parte injunctive order passed before issuance of notice to opposite party. It can be exercised keeping in view the circumstances of each case, which makes injunctive order harsh or unworkable. In arriving to this conclusion, I am fortified by the following judgments:--

"Muhammad Yousuf vs. Mst. Sabira A. Muhammad, etc." (NLR 1990 Civil 151);

"Muhammad Yousuf vs. Mst. Sabira A. Muhammad, etc. (1990 CLC 1127);

It is also settled principle of law that once a Court has decided a matter after giving to each side an opportunity of being heard, its order is final and cannot be reopened except on presentation of some new material not available when the original order was passed. In arriving to this conclusion, I am fortified by the law laid down in the following judgments:--

"Sind Madrasatul Islam Board Society vs. Shamim" (1982 CLC 2242);

"Muhammad Inam vs. Dr. Muhammad Safdar" (1988 CLC 230);

1. It is better and appropriate to reproduce the material facts in chronalogical order to resolve the present controversy between the parties:--

(1) Order dated 17.3.2004.

(2) Order dated 18.3.2004.

(3) Final order dated 20.3.2004

Present: Counsel for the plaintiff.

No body has appeared on behalf of Defendant No. 1 although the suit has been kept writing for whole day. The learned counsel for Defendant No. 2 has submitted that Defendant No. 2 is not a contesting party and he does not oppose the petition for temporary injunction.

The learned trial Court confirmed order dated 18.3.2003 vide impugned order dated 20th March, 2004. Mere reading of order dated 17.3.2004, prima-facie reveals that case was adjourned for 16.4.2004 and subsequent date was changed from 16.4.2004 to 18.3.2004 as is visible from the order dated 17.3.2004. Subsequently, the order also reveals that although the counsel of the parties were present. The learned counsel of the respondents has argued the case and the case was adjourned for arguments of learned counsel of the appellant for 20.3.2004 which clearly reveals that the case was adjourned for 20.3.2004 from 18.3.2004 without making any request by the learned counsel of the appellant/respondent. This fact alone brings the case in the area that the learned trial Court has decided the case without application of mind, which is condition precedent as per law laid down by the Honourable Supreme Court in "Mollah Ejahar Ali vs. Government of East Pakistan and others" (PLD 1970 S.C. 173). After addition of Section 24-A in the General Clauses, it is the duty and obligation of even public functionaries to decide the controversy between the parties after application of mind with reasons, as per law laid down by the Honourable Supreme Court in "M/s. Airport Support Service's case" (1998 SCMR 2268).

1. In case, the aforesaid orders are put in juxta position, then it is crystal clear that the impugned order was passed in violation of principle of natural justice, therefore, the impugned order is not sustainable in the eyes of law. It is settled principle of law that no body should be penalized by the act of Court, as per law laid down by the Division Bench of this Court in "Mian Irshad Ali vs. Government of Pakistan etc." (PLD 1975 Lahore 7). It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per law laid down by the Honourable Supreme Court in "Trustee Board's case" (1994 SCMR 2213). The objection raised by the learned counsel of the respondents has no force in view of Order 43, Rule 1(R) CPC and it is admitted fact that the legislature in its wisdom placed the Order 39, Rule 4 CPC before the Order 43 Rule (R) of CPC. It is settled principle of interpretation that later provision of law will hold in the field. Even other-wise as mentioned above, the impugned order is appealable under Order 43 Rule 1(R) CPC, as per principle laid down in the following judgments:--

"District Council Haripur vs. Zaheerullah Khan" (PLD 1994 Peshawar 228)";

"Poineer Pakistan Seed Ltd. vs. United Distributors." (1998 C.L.C. 61).

"Shah Jehan Khan vs. Fazal-ur-Rehman Khan & other" (2001 CLC 1695);

"Haji Abdul Ghafoor Akhtar vs. Malik Tahir Mukhtar" (2001 CLC 1721);

1. In view of what has been discussed above, the appeal is accepted and the impugned order dated 20.3.2004 is set-aside, meaning thereby the application of appellant shall be deemed to be pending adjudication before the learned trial Court. The learned trial Court is directed to decide the application of the respondents afresh after providing proper hearing to all the concerned in accordance with law without being any influenced by the observations of this Court. The parties are directed to appear before the learned trial Court on 12.7.2004, who is directed to decide the matter in terms of aforesaid direction of this Court.

The appeal is disposed of in terms of aforesaid direction.

(R.A.) Appeal disposed of.

PLJ 2005 Lahore 1057

Present: Mian Hamid Farooq, J.

Mst. ALLAH JAWAI, WIDOW and 4 others--Petitioners

versus

MAQBOOL SHAH and 2 others--Respondents

C.R. 1376-D-1997, heard on 26.7.2004.

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

----S. 115--Qanun-e-Shahadat Order (10 of 1984), Arts. 17 & 79--Suit for specific performance of an agreement to sell filed by petitioners, decreed--Appeal dismissed--Assailed--The agreement was executed and signed in the presence of scribe, he scribed the said documents and contents were read over to the parties and consideration was also paid in his presence--Non production of the second marginal witness would not in any way adversely effect the case of the plaintiffs--Statement of the scribe could be treated as a statement of marginal witness and finding to contrary are against the law declared by High Court--First Appellate Court has definitely committed illegality and material irregularity in rendering the judgment--Revision petition accepted and impugned judgment and decree of Addl. District Judge set aside. [Pp. 1060 & 1061] B, C & E

1993 CLC 257; 2000 YLR 2789, referred.

(i) Constitution of Pakistan, 1973—

----Art. 201--Judgment passed by High Court are binding upon all the Courts. [P. 1061] D

(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)—

----Arts. 17 & 79--Production of two marginal witnesses to prove the execution of the agreement to sell--Under what circumstances a scribe can be considered as a competent witness and replace the requirement of producing marginal witness--Question of--Held : A scribe can be treated as a marginal witness, if the parties had executed and signed the document in his presence, they alongwith the attesting witnesses, have signed the agreement before him. [P. 1059] A

1993 CLC 257; 2000 YLR 2789;

Mr. Asad Ullah Javed, Advocate for Petitioners.

Respondents proceeded ex-parte.

Date of hearing : 18.5.2004.

Judgment

The petitioners, through the filing of the present revision petition, have called in question judgment and decree dated 25.6.1997, whereby the learned Addl. District Judge accepted respondents' appeal and set aside the judgment and decree dated 21.11.1995, passed by the learned trial Court, through which it decreed petitioners' suit for specific performance of agreement to sell.

1. Ahmad Hassan, the predecessor-in-interest of the petitioners, on 11.12.1991, filed a suit for specific performance of an agreement to sell dated 7.3.1988, against the respondents, stating therein that predecessor-in-interest of the respondents, namely, Ghulam Mohy-ud-Din agreed to sell land measuring 12 Marlas in his favour, under the aforestated agreement dated 7.3.1988, for a total consideration of Rs. 24,000/-, Ghulam Mohy-ud-Din received the total consideration from Ahmad Hassan and handed over the possession of questioned land to him; Ahmad Hassan constructed a house over the disputed land; after the death of Ghulam Mohy-ud-Din, his legal representatives, the respondents, denied the execution of sale agreement and refused to execute the sale-deed, which necessitated the filing of the aforenoted suit by Ahmad Hassan. The suit was resisted by the respondents, inter alia, denying the execution of the agreement of to sell by Ghulam Mohy-ud-Din and receipt of sale price by him. The learned trial Court framed the necessary issues and recorded the evidence of the parties. During the pendency of the suit, Ahmad Hassan died and survived by the present petitioners, who were impleaded as party in place of Ahmad Hassan. The learned trial Court ultimately decreed the suit in favour of the petitioners vide judgment and decree dated 21.11.1995. The respondents assailed the said decision before the learned appellate forum, through filing the appeal, which was allowed by the learned Addl. District Judge and consequently, petitioners, suit was dismissed, vide judgment and decree dated 25.6.1997, hence the present revision petition.

2. The respondents were proceeded exparte vide order dated 18.5.2004 and uptil now, the said respondents are un-represented.

3. The learned counsel for the petitioners has submitted that Muhammad Yousaf, scribe, appeared as PW2 and deposed about the execution of the agreement to sell and the payment of consideration by the vendee, therefore, he is a competent witness. He has further added that such statement of scribe can be considered to be a statement of second marginal witness.

4. In this case, the respondents, through filing the written statement, denied the execution of agreement to sell dated 7.3.1988, statedly, executed by Ghulam Mohy-ud-Din, their predecessor-in-interest, in favour of Ahmad Hassan and pleaded that the said agreement is a forged document; that no consideration was received by Ghulam Mohy-ud-Din and that Ahmad Hassan is in illegal possession of the disputed land. The learned trial Court framed Issues Nos. 1 and 2 about the execution of agreement to sell and the receipt of consideration, onus of which was rightly placed upon the plaintiffs.

I have examined the questioned agreement to sell and find that Muhammad Amin has put his thumb impression and Zafar Iqbal has signed the agreement, both as marginal witnesses, while Muhammad Yousaf has signed twice in the capacity of scribe and stamp vendor. In order to prove the said agreement Ahmad Hassan appeared as PW-1, Muhammad Yousaf, scribe/stamp vendor was produced as PW-2 and Muhammad Amin, one of the marginal witnesses, appeared as PW-3. Zafar Iqbal, another marginal witness, was not produced by the plaintiffs. The learned Addl. District Judge has primarily dismissed petitioners' suit on the ground that although the agreement was attested by Muhammad Amin and Zafar Iqbal as marginal witnesses, yet Zafar Iqbal was not produced in the witness box.

1. In view of the contentions raised by the learned counsel, I have perused the statement of aforestated Muhammad Yousaf, who stated that he knew the parties; Ex. P1 was scribed by him and was read over to the parties; the same was executed in his presence and a sum of Rs. 24,000/- was received by Ghulam Mohy-ud-Din from Ahmad Hassan Shah and thumb impressions were put in his presence. It would be appropriate to reproduce the examination-in-chief of the said witness, which reads as follows:--

2. It is true that the plaintiffs were obliged, per force of Article 79 of the Qanun-e-Shahadat Order, 1984, to prove the execution of the agreement to sell by producing two marginal witnesses. However, the question arises as to under what circumstances a scribe can be considered as a competent witness and replace the requirement of producing marginal witness.

It has been held in Nazir Ahmad vs. Muhammad Rafiq (1993 CLC 257) that a scribe can be treated as a marginal witness, if the parties had executed and signed the document in his presence, they alongwith the attesting witnesses, have signed the agreement before him and that can be treated as sufficient compliance of Article 79 read with Article 17 of Qanun-e-Shahadat Order, 1984. It would be appropriate to reproduce para 4 of the aforenoted judgment, which reads as follows:

"I am not persuaded to agree with the contentions raised by the petitioner's learned counsel. In the present case the agreement to sell Exh. P1 was proved through the statement of Javed Sultan, Advocate, who appeared as PW-2 and Bashir Ahmad PW-1, the scribe of the document. Ordinarily, a scribe who merely writes a deed and hands it over to the parties for their signatures and those of the attesting witnesses, does not become a competent attesting witness if the document/deed is executed elsewhere in his absence. The position is different if after writing, the deed is actually executed in the presence of the scribe. In the present case, the parties had executed the document in the presence of the scribe and signed it. Even the two attesting witnesses had signed the document in the presence of the scribe. Under these circumstances, the scribe can be treated to be an attesting witness although he has not signed it in that capacity. The requirements of the provisions of Article 79 read with Article 17 of Qanun-e-Shahadat have been substantially complied with. The view that a scribe, in suitable cases, can be treated as an attesting witness, finds support from judgments in the cases of Thakurdas and another vs. Topandas and others (AIR 1929 Sindh 217), Ghanshamsingh Tirathsing and another vs. Mahomed Yacoob (AIR 1933 Sindh 257)."

The said view was approved by the learned Division Bench of this Court in a case reported as Zafar Ullah Khan vs. Mst. Hakim Bibi and another (2002 YLR 2789), wherein this Court in Para 10 of the judgment has held as under:

"This contention of the learned counsel has not impressed us. In addition to PW-2, Muhammad Amin, who was one of the marginal witnesses, the scribe of the document, Malik Shaukat Ali, Advocate appeared as PW-1 and deposed that the agreement was scribed by him and thumb impressions were put by Respondent No. 1 on Ex. P1 and Exh. P-1/1 in his presence. In this view of the matter, the statement of the scribe can be considered to be a statement of a marginal witness. In this behalf, we may refer to the judgment of this Court in Nazir Muhammad vs. Muhammad Rafiq 1993 CLC 257. We have not been persuaded to take a different view."

1. Placing the para-meters, for treating a scribe as marginal witness, as laid down in the aforenoted judgments, in juxta-position with the facts of the present case, I find that the principles, laid therein, are completely applicable in the present case. As is evident from the reproduction of the statement of scribe, the agreement was executed and signed in his presence, he scribed the said document and contents were read over to the parties, inasmuch as the consideration was paid in his presence. He has further stated that signature and thumb impressions were put in his presence. In view whereof, non production of the second marginal witness would not in any way adversely affect the case of the plaintiffs and they could not be non-suited on the said plea. In the present case, the statement of the scribe could be treated as a statement of marginal witness and findings to the contrary are against the law declared by this Court. Suffice it to add that the learned Addl. District Judge did not take into consideration the said aspect of the case.

2. In the above perspective, I have examined the impugned judgment and find that the learned Addl. District Judge has definitely committed illegality and material irregularity in rendering the judgment, inasmuch as the law declared by this Court in the afornoted judgments, which as per Article 201 of the Constitution of Islamic Republic of Pakistan, 1973 is binding upon all the Courts, has completely been ignored. In view whereof, I am inclined to invoke the revisional jurisdiction of this Court and set aside the impugned judgment.

3. Upshot of the above discussion is that the present petition is allowed and the impugned judgment and decree dated 25.6.1997, passed by the learned Addl. District Judge is set aside. Resultantly, the judgment and decree dated 21.11.1995, passed by the learned trial Court stands restored and petitioners' suit for specific performance is decreed. No order as to costs.

(R.A.) Revision accepted.

PLJ 2005 Lahore 1061

Present: Syed Jamshed Ali, J.

SAGHIR AHMAD NAQI--Petitioner

versus

GOVERNMENT OF THE PUNJAB through SECRETARY HOME (PRISONS) DEPARTMENT CIVIL ECRETARIATS, LAHORE and another--Respondents

W.P. No. 11290 of 2004, heard on 24.1.2005.

Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976—

----R. 3(v)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petitioner's candidature for appointment as Assistant Superintendent Jail was rejected due to overage--Assailed--Period rendered in Govt. Service is to be excluded while computing upper age limit and that statutory rules could not be modified or superseded by executive instructions--Held: Statutory rule cannot be abrogated by an executive instruction--Further held: Rule 3(v) is a beneficial dispensation and is to be interpreted in a manner to advance the remedy and that Rule 3(v) contemplates computation of upper age limit and not relaxation, consequently writ petition allowed and the case was directed to be considered in accordance with Rule 3(v) ibid.

[Pp. 1062 & 1063] A, B, C, D, E & F

2004 PLC (CS) 69.

Mr. Muhammad Amjad Pervaiz, Advocate for Petitioner.

Shahid Saleem, Section Officer, Home Department Punjab.

Liaquat Masih, Superintendent, Punjab Public Service Commission.

Date of hearing: 24.1.2005.

Judgment

The petitioner was contender for the post of Assistant Superintendent Jail. He is serving as Upper Division Clerk in the Accountability Court and according to the learned counsel for the petitioner since 7.11.2000. He applied for the post in question through proper channel which was duly forwarded to the Punjab public Service Commission. According to the public notice, the prescribed upper age limit was 25 years with five years general relaxation. His date of birth is 12.10.1971 and on the closing date i.e. 29.3.2004, he was 32 years 5 months and 18 days. His candidature was accordingly, rejected vide order dated 29.5.2004. He filed a representation to the Commission which did not evoke any response.

1. The learned counsel for the petitioner has referred to paragraph (3)(b) of the Recruitment Policy of the Govt. of the Punjab, dated 5.5.2003, according to which "no relaxation of qualification, experience, physical criteria etc as provided in the relevant service rules shall be allowed, except as prescribed under the rules."

His contention is that according to Rule 3(V) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules 1976, the period of Govt. service rendered by the petitioner as Upper Division Clerk was required to be excluded while computing the upper age limit for the post in question which rule, according to him, stands saved by the aforesaid Recruitment Policy. It is also maintained that in any case, statutory rules could not be modified or superseded by executive instructions. Reliance is being placed on Muhammad Qasim and 6 others vs. Home Department, Govt. of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others (2004 P.L.C. (C.S.) 69).

1. Mr. Shahid Saleem, Section Officer of Home Department, submits that in accordance with the Recruitment Policy, apart from the general relaxation of five years, no other relaxation could be granted to the petitioner. The representative of the Punjab Public Service Commission submits that the candidature of the petitioner was determined in accordance with the Govt. instructions.

2. The submissions made have been considered. Not only the 1976 Rules referred to above stand protected even by the Recruitment Policy aforesaid but also that a statutory rule could not be abrogated by an executive instruction. The question was considered by me in the case of Muhammad Qasim and 6 others (supra) and the view taken was that the benefit of Rule 3(V) was available to a candidate in Govt. service. It was also held that the aforesaid rules was a beneficial dispensation and is to be interpreted in a manner so as to advance the remedy. It may also be observed that Rule 3(V) contemplates computation of upper age limit and not relaxation of upper age limit.

3. Accordingly, the rejection of petitioner's candidature is declared as without lawful authority and the Punjab Public Service Commission is directed to consider the candidature of the petitioner by computing the upper age limit in accordance with Rule 3(V) of the aforesaid 1976 Rules, of course, after satisfying itself as to the claim of the petitioner for continuous Govt. service from 7.11.2000.

4. Vide order dated 7.7.2004, the petitioner was allowed to take test/interview with a direction that his result shall not be declared. And, vide order dated 11.11.2004, it was directed that one post shall not be filled in. It is, therefore, directed that if after allowing the benefit of Rule 3(V) of the 1976, Rules, to the petitioner, he is found to be within the upper age limit, his result shall be declared. No order as to costs.

Disposed of.

(R.A.) Order accordingly.

PLJ 2005 Lahore 1063

[Rawalpindi Bench Rawalpindi]

Present: Syed Shabbar Raza Rizvi, J.

GHULAM MURTAZA--Petitioner

versus

DIRECTOR OF F.I.A. IMMIGRATION, RAWALPINDI and 3 others--Respondents

W.P. No. 133-Q of 2005, decided on 25.1.2005.

(i) Emigration Ordinance, 1979 (XVIII of 1979)—

----S. 17--Detention of person on charge of tampering of passport under S. 17 of the Ordinance of 1979--Legality--Tampering of passport is not included in definition of `depart' or "emigrate"--Detention of petitioner being not warranted by law was declared to be illegal and of no legal effect.

[P. 1065] A

(ii) Emigration Ordinance, 1979 (XVIII of 1979)—

----S. 27--Petitioner being British subject detained at Airport by Emigration official--Legality--Petitioner being British subject and having already settled in U.K. was visiting Pakistan temporarily--Neither provision of

S. 27 of Emigration Ordinance nor any of the provisions of Ordinance of 1979, was applicable to him--Detention of petitioner was declared to be illegal and of no legal effect--Officials concerned were directed to be proceeded against in accordance with law for detaining petitioner illegally. [Pp. 1065 & 1066] B & C

Mr. Mumtaz Ahmad, Advocate for Petitioner.

Raja Iftikhar Javed, Standing Counsel for Respondents.

Date of hearing: 25.1.2005.

Order

The petitioner is settled in the U.K. Originally he belongs to village and post office Mandhar Tehsil Gujar Khan, District Rawalpindi. He was granted British Nationality vide No. M 285164 dated, 26.3.1973 and also holds British Passport. He has been visiting Pakistan at several occasions for temporary stay.

1. This time the petitioner came to Pakistan after obtaining visa from the Consulate of Pakistan, Bradford vide visa No. 16348 dated 23.10.2003.

2. According to the learned counsel for the petitioner, the petitioner was leaving Pakistan on 20th November, 2004 from Islamabad Airport but Iftikhar Ahmad Abbasi, Inspector FIA stopped him and also demanded from him illegal gratification of 1000 British Sterling Pounds. Thereafter FIA officials registered FIR No. 958 dated 30.12.2004 under Section 17 of the Emigration Ordinance, 1979. The learned counsel for the petitioner contends that the registration of the said FIR is based on mala fide and ulterior motives. For the above reasons, he seeks quashment of FIR No. 958.

3. The learned standing counsel was directed to call the respondents who have appeared today in the Court. They contend that the passport of the petitioner created some doubts and for the same reason he was not allowed to leave Pakistan. The petitioner was asked to produce original documents to support his version which he failed. They also submitted that they do not nurse any grudge against the petitioner and they only acted in the honest discharge of their official functions.

4. After hearing the petitioner's learned counsel and the learned standing counsel, I have gone through myself the contents of the FIR and other documents produced by the parties. The said FIR has been registered at the instance of Iftikhar Ahmad Abbasi, Inspector, FIA, Emigration Airport, Islamabad by Shahid Pervez Akbar, Inspector FIA, Passport Cell, Rawalpindi. According to the contents of the FIR during the clearance of passengers, on 20.11.2004, the petitioner presented his British Passport and other travel documents for clearance at the counter; his passport was found doubtful. The petitioner was off-loaded and for the purpose of verification of his passport, he was sent to the Passport Cell. The FIR further reveals that information received from British High Commission, Islamabad vide letter dated 29.11.2004, showed that the passport was tampered, hence the FIR was registered on 30.12.2004, by Shahid Pervez Akbar, Inspector, FIA, Rawalpindi.

5. The said FIR has been registered under Section 17 of the Emigration Ordinance, 1979. The said Section is attracted against, whoever "emigrates" or "departs" or attempts to "emigrate" or "depart" in violation of the provisions of the Ordinance. Section 2(d) and (f) defines "depart" and "emigrate". A person "departs" in terms of the Emigration Ordinance when he is departing for the purpose of employment or self-employment by any means. Similarly a person "emigrates" in terms of the Emigration Ordinance 1979, when he is leaving Pakistan by sea, air or land for the purpose or with the intention of working for hire or engaging in any trade, profession or calling in any country beyond the limits of Pakistan. Prima facie the above two ingredients of Section 17 do not exist in the contents of the instant FIR. Tempering of a passport is not included in the definition of Depart or Emigrate. When the attention of the learned standing counsel was drawn to this effect he frankly conceded the point and made a statement that in the facts of the instant FIR, Section 17 was not attracted. The story of the present petitioner is very unfortunate and it does not end here.

6. Section 27 of the Emigration Ordinance 1979 provides that nothing in this Ordinance shall be deemed to apply to the departure of a person:--

"(viii) who is already settled or employed in a foreign country and is on a temporary visit to Pakistan."

This provision shows that the Emigration Ordinance, 1979 as a whole is not applicable to the case of the present petitioner as he is already settled in the U.K. and was visiting Pakistan temporarily.

1. The acts of the said two inspectors i.e. Iftikhar Ahmad Abbasi and Shahid Pervez Akbar, Respondents Nos. 2 and 3, are not appreciated and approved. They have acted abhorrently. The Constitution of Pakistan, guarantees inalienable rights of life, property, reputation and to be protected by law and not to be prevented from doing which is not prohibited by law, under Article 4 of the Constitution. Article 14 confers inviolable right of dignity. Similarly Article 15 of the Constitution guarantees right to enter and leave Pakistan. Article 5 of the Constitution demands obedience to the Constitution and laws of Pakistan from all. The people of Pakistan look forward adherence to the Constitution and law more intensely from the people placed at higher pedestal but the said two officials proved on the contrary. They have failed to act in good faith, instead, they acted malafidely, as it is apparent, for reasons discussed hereinabove. Therefore, not covered by Section 25 of the Ordinance.

2. The D.G., F.I.A. must note that incident like subject of this petition are appearing everyday at Islamabad Airport. The people of this area are being constantly harassed and looted by his officials. The Director General, FIA is directed to look into the conduct of Respondents Nos. 2 and 3, personally and see if a case can be registered against them under Sections 167 and 193 PPC or any other provision of the law at an appropriate forum. He may also consider to hold departmental inquiry against them. The Director General FIA will submit his report in 4 weeks from today to this Court through the Additional Registrar, Lahore High Court, Rawalpindi Bench, Rawalpindi.

3. The petitioner may also move to the proper Court for institution of suit for the damages. In this context, he may seek further guidance from, Syed Ghayyur Hussain Shah vs. Gharib Alam, PLD 1990 Lahore 432, paras 26 and 27.

4. In view of the above discussion and statements of the learned standing counsel and the respondents who appeared in the Court, this writ petition is accepted and FIR No. 958 dated 30.12.2004, registered under Section 17 of the Emigration Ordinance, 1979 is hereby quashed and declared without lawful authority and of no legal effect.

5. Office is directed to send a copy of this order to Director General, F.I.A. Islamabad.

(A.A.) Petition accepted.

PLJ 2005 Lahore 1066

Present: Syed Jamshed Ali, J.

AYAZ HASSAN--Petitioner

versus

GOVERNMENT OF THE PUNJAB and 3 others--Respondents

W.P. No. 13666 of 2003, heard on 13.9.2004.

Punjab Technical Education and Vocational Training Authority Ordinance (XLV of 1999)--

----Ss. 10(2)(3)--Constitution of Pakistan, 1973, Art. 199--Punjab Civil Servants Act (VIII of 1974), S. 2(2)--Petitioner was appointed as Assistant Professor, Automation Technology (BS-18) in Technical Wing of Education Department--Recommendation of Punjab Public Service Commission--His service transferred to TEVTA under Ordinance, 1999--Petitioner was not being treated as a regular employee and according to impugned letter was declared as a contract employee--Grievance of--Post against which petitioner was selected was duly advertised in newspaper, process of selection was undertaken and petitioner was selected post--He was subject to provisions of Punjab Civil Servants Act, 1974--Order of appointment also subjected him to probation for stipulated period as well as verification of his antecedents--It was regular appointment in service of Government of Punjab--Temporary nature of post for which petitioner was selected did not convert petitioner into contract employee--Petition in circumstances allowed and it was declared that petitioner has been a regular employee of Government of Punjab holding a temporary post.

[P. 1068] A & B

Mr. Amir Mahmood, Advocate for Petitioner.

Mr. Aamir Rehman, Addl. Advocate General with Mr. Masood Anwar, Asstt. Manager TEVTA and Mr. Sher Ali, Senior Research Officer, TEVTA.

Date of hearing: 13.9.2004.

JUDGMENT

Vide letter dated 14.6.1999 of the Govt. of the Punjab, in the Education Department, the petitioner was appointed as Assistant Professor, Automation Technology (BS.18) in the Technical Wing of the Education Department on the recommendation of the Punjab Public Service Commission. According to the said order, the said post was temporary, likely to be made permanent (upto June 2002). On 4.9.1999, the Punjab Technical Education and Vocational Training Authority Ordinance (No. XLV), 1999 was promulgated. According to Section 10(2), thereof, all employees of the Institutions or offices taken over by the Authority, stood transferred to the Authority on terms and conditions which shall not be less favourable than those admissible to them immediately before their transfer to the said Authority. Sub-section (3) of Section 10 provides that the transferred employees shall continue to be the Govt. employees liable to be transferred back to the Govt. by the Authority, unless absorbed in the service of the Authority in such manner as may be prescribed. It was under the aforesaid provisions that the service of the petitioner stood transferred to the TEVTA.

1. The grievance in this petition is that although the petitioner was appointed in the service of the Govt. of the Punjab on the basis of the recommendation of the Punjab Public Service Commission and was a regular employee, he was not being treated as a regular employee and according to the impugned letter dated 2.8.2003 of the District Manager, of the TEVTA, it was declared that the petitioner was a contract employee.

2. The contention of the learned counsel for the petitioner is that while in the service of TEVTA, the petitioner continued to be a regular employee of the Govt of the Punjab although against a temporary post, and his status as such could not have been altered to his disadvantage by the TEVTA.

3. It may be noted that vide order dated 15.8.2003, the petitioner was selected as Mechanical Manager in National Development Complex, Govt, of Pakistan. The petitioner was not being relieved. However, during the pendency of this petition, he has been relieved to join the new assignment but the relieving order does not indicate, the status of the petitioner as a regular employee of the Govt. of the Punjab.

4. The representative of the TEVTA, however, maintains that the petitioner was employed for a specific project i.e. Technical Education Project and was, thus, his employment in Punjab Govt. was contractual in nature.

5. The submissions made by the learned counsel for the parties have been considered. The post against which the petitioner was selected and appointed, was duly advertised in the newspaper, the process of selection was undertaken and the petitioner was selected and appointed to the post. He was subject to the provisions of the Punjab Civil Servants Act 1974 and as such other Service Rules and Regulations as may be issued by the Govt. of the Punjab from time to time. The order of appointment also subjected him to probation for a period of two years as well as verification of his antecedents. Thus, it was regular appointment in the service of the Govt. of the Punjab in accordance with the provisions of the Section 2(2) of the Punjab Civil Servant Act, 1947. Although, this order of appointment shows that the post for which the petitioner was selected was temporary but even the temporary nature of the post did not convert the petitioner into contract employee. In any case he was the employee of the Govt. of the Punjab and was transferred to the TEVTA under the provisions of Ordinance XLV of 1999 and, therefore, the TEVTA had, otherwise, no jurisdiction to sit in judgment over the order passed by the Govt. as to the nature of appointment of the petitioner. Accordingly, this petition is allowed, it is declared that the petitioner has been a regular employee of the Govt. of the Punjab holding a temporary post. No order as to costs.

(M.A.R.) Petition allowed.

PLJ 2005 Lahore 1069

Present: Muhammad Muzammal Khan, J.

ZARKHEZ AGRO ENGINEERING AND SERVICES (PVT.)LIMITED--Petitioner

versus

M/s. SARGORAH FARM AIDS (PVT.) LIMITED and others--Respondents

C.R. No. 42 of 1996, heard on 23.9.2004.

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

----O. VII, R. 11--Dismissal of application for rejection of plaint--Legality--Order passed by trial Court disallowing application for rejection of plaint being just and in accordance with law could not be interferred with in revisional jurisdiction. [P. 1074] A

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

----O. XIV, R. 2 & S. 115--Preliminary issues framed by trial Court on legal objections of defendants--No objection was raised against framing of those issues at any stage of proceedings--Trial Court in exercise of suo-motu powers recalling order in question and instead of deciding preliminary issues framed issues on merits--Legality--Parties having not raised any objection at any stage of proceedings--There was no compelling reason of framing of issues on merits--Trial Court was required to try and decide preliminary issues framed earlier by such Court--Impugned order recalling order relating to framing of preliminary issues being not maintainable, was set aside. [P. 1074] B

1999 SCMR 2396; PLD 1996 Lahore 528; 1996 MLD 55; 1999 MLD 2049 & PLD 1975 Lahore 425, ref.

Ch. Muhammad Rashid, Advocate for Petitioner.

Mr. M. Iqbal Abid Chaudhary, Advocate Respondents.

Date of hearing : 23.9.2004.

Judgment

This judgment proposes to decide two civil revisions (C.R. No. 42 of 1996 and C.R. No. 2263 of 1995), as those arise out of the same order/judgment, are between the same parties and raise similar question of law and facts.

1. Both these Civil Revisions assail a consolidated order dated 31.10.1995, passed by the learned Civil Judge Lahore whereby on an application of Respondent No. 2 its name was ordered to be deleted from the array of defendants and the application of Respondent No. 1 (M/s. Sargorah Farm Aids (Pvt.) Limited) under Order VII, Rule 11 of CPC was dismissed.

2. Precisely relevant facts are that the petitioner (M/s. Zarkhez Agro Engineering and Services (Pvt.) Limited) filed a suit for recovery of

Rs. 79,78,125/- in form of damages against the respondents with the averments that Respondent No. 1 being an agent of Respondent No. 2, (M/s. FORD NEW HOLLAND) as its sole representative/distributor in Pakistan for sale of their Combine Harvesters known as "FORD NEW HOLLAND-8040 Combines" and other products designed and manufactured by Respondent No. 2, advertised their equipments including the combine harvesters for sale, in response to which the petitioner purchased five harvesters with the specifications mentioned in para 4 of the plaint, from Respondent No. 1, who acted as sole agent/respective/distributor of Respondent No. 2 in Pakistan, in October, 1986 by paying an amount of Rs. 42,11,862/-. the delivery/possession of the harvesters purchased by the petitioner was given to it on 1.11.1986, and 30th October, 1986, under the written agreement dated 6.7.1986 and memorandum of undertaking signed by the parties on 30.9.1986. The petitioner further pleaded in its plaint that the Harvesters supplied by the respondents were not according to the standard/specification represented to it and after correspondence, inter se, the suit in form of recovery of damages, as noted above, was filed before the learned Senior Civil Judge, Lahore. Pending the suit respondents filed two different applications one under Order I, Rule 10 CPC praying deletion of name of Respondent No. 2 from the array of defendants, on the ground that Respondent No. 2 is neither working within the limits of this country nor it has any sub-office within the territorial jurisdiction of the trial Court and that there being no privity of contract between the plaintiff and Defendant No. 2, the suit against it was not maintainable. The other application filed by the Respondent No. 1 was Order VIIm Rule 11 CPC praying rejection of plaint on two fold grounds, firstly that the suit on the face of it, is barred by limitation and on the other ground that according to agreement between the parties the Combine Harvesters were to remain property of Respondent

No. 1 unless and until all the instalments are paid by the petitioner and a discharge certificate is issued by the Respondent No. 1 and since none of those eventuality took place, the plaint did not disclose any cause of action, thus, the same deserved rejection under Order VII, Rule 11 CPC.

1. The petitioner contested both these applications. The learned Civil Judge cognizant of the matter, vide order dated 31.10.1995 dismissed the application filed on behalf of Respondent No. 1 for rejection of plaint, whereas he allowed the application of Respondent No. 2, filed for deletion of its name from the array of defendants. Thereafter the petitioner filed Civil Revision No. 42 of 1996 challenging the order of the trial Court, deleting the name of Respondent No. 2 whereas, Respondent No. 1 filed Civil Revision No. 2263 of 1995 challenging the order of the trial Court dismissing its application under Order VII, Rule 11 CPC. Both the parties having been impleaded in both the civil revisions filed by each of them, appeared in response to notice by this Court and are represented through their respective counsel.

2. The learned counsel for the petitioner in Civil Revision No. 42 of 1996 submitted that besides the specific averments in the plaint with regard to sale of Combine Harvesters by Respondent No. 1 as a representative/sole agent of Respondent No. 2 in Pakistan, there is documentary evidence showing that Respondent No. 1 did not conduct business in Pakistan in his individual capacity rather he being an agent of Respondent No. 2 sold those harvesters to the petitioner. In support of the submission, reference was made by the learned counsel for the petitioner, to the memorandum of undertaking dated 6.7.1986 duly signed by the petitioner and Respondent No. 1 and sale letters by Respondent No. 1 dated 17.12.1988 and 11.5.1989. According to his submission, Respondent No. 2 being the Principal of Respondent No. 1 was not only a necessary, but also a proper party to the suit, and its name could not have been deleted. He further submitted that the application of Respondent No. 1 filed by it under Order VII, Rule 11 CPC was rightly dismissed by the trial Court, as none of the pleas raised therein could be determined without recording of evidence and that none of the pre-requisites of the said provision, was attracted because according to him, suit was not barred by any law and also disclosed a cause of action. It was further submitted that though the suit of the petitioner is within the limitation yet this point being a mixed question of law and facts, cannot be put to rest without proper trial and after recording of evidence of the parties. He further elaborated his arguments that the trial Court has correctly recalled its earlier order of framing of two preliminary issues arising out of pleadings of the parties because, this exercise cannot be undertaken twice, once in support of preliminary issues and then on merits of the case. He also urged that similar evidence is needed to prove that the suit is within time and the petitioner is entitled to the decree prayed.

3. The learned counsel appearing on behalf of the respondents opposed the arguments of the petitioner, supported the deletion of name of Respondent No. 2 and urged that, on the face of the record, plaint in the suit by the petitioner deserved rejection, hence its application under Order VII Rule 11 CPC has incorrectly been dismissed. He further contended that the claimed contract on the basis of which the suit has been filed by the petitioner was arrived at and was signed by the petitioner and Respondent No. 1 to which Respondent No. 2 is not party/signatory, thus, Respondent No. 2 has wrongly been impleaded to the suit and its name has rightly been ordered to be struck off. He further elaborated his arguments by saying that it is bounded duty of the Court, cognizant of the suit, to first determine whether it is within the limitation in view of provisions of Section 3 of the Limitation Act, 1908, and since, the suit as it stood, from the statement in the plaint was barred by limitation, the plaint deserved rejection but a contrary view taken is not in consonance with the settled proposition of law. According to his estimation, the petitioner having not cleared instalments of the Combine Harvesters, those remained property of Respondent No. 1, thus, plaint did not disclose any cause of action and deserved to meet fate provided by Order VII, Rule 11 CPC. It was lastly argued that in case, the plaint of the petitioner is not to be rejected, the preliminary issues framed have to be tried in the first instance, in view of the provisions of the Order-XIV, Rule 2 CPC, thus the trial of the suit was seriously opposed.

4. I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. The only basis which weighed with the learned trial Judge, for deletion of name of Respondent No. 2 was that there is no privity of contract between the petitioner and Respondent No. 2 but the trial Court while deciding the application of Respondent No. 2 under Order I, Rule 10 CPC, did not examine the pleadings of the parties and the documents appended therewith. The petitioner in Paras Nos. 2 and 4 of its plaint had specifically pleaded that Respondent No. 1 being sole agent/representative of Respondent No. 2, offered sale of the Combine Harvesters, as goods of Respondent No. 2. Though the respondents filed written statements refuting assertions in the plaint and also opted to file Misc. Applications, one by each, yet the petitioner had appended with its plaint a copy of memorandum of undertaking dated 6.7.1986 duly signed by the petitioner and Respondent No. 1 which in its Clause 4, detailed that:

"Party `B' will pay Ist, 2nd & 3rd Instalments directly to our Principals M/s. NEW HOLLAND N.V., Zedelgem--Belgium through Sargroh Farm Aids (Pvt.) Ltd., Account and the 4th Instalment valuing: BF 2,750,163.00. Equivalent Pak Rs. 1,028,065.00 (Pak Rs. One Million, Twenty Eight Thousand & Sixty five only) to be paid to Sargroh Farm Aids (Pvt.) Limited, Lahore."

1. Similarly, the petitioner produced two letters of the Respondent No. 1 dated 11.5.1989 and 26.6.1989 and both of those clearly convey that the requested modifications in the combine harvesters were recommended by FORD NEW HOLLAND Engineers and that the necessary improvement for the supplied goods was to be provided as and when advised by the Principal FORD NEW HOLLAND. Both these letters have duly been signed by one Mian Tariq, Director of Respondent No.1. The learned trial Judge at the time of impugned order did not take into consideration any of these documents and out of superficial the approach opted to delete the name of Respondent No. 2. Respondent No. 1 itself is neither the importer/manufacturer of the Combine Harvesters supplied to the petitioner and he acted under an agreement, not denied during the course of hearing of this petition, as an agent of Respondent No. 2 and the latter mentioned respondent was neither incorrectly impleaded nor was wrongly arrayed as one of the defendants. According to my estimation Respondent No. 2 was a necessary party to the proceedings initiated by the petitioner in form of suit for damages, allegedly suffered by it on account of supply of defective/damaged machinery which, according to it, was not according to the specification provided by the respondents. The order impugned, in view of the above observations, suffered from material illegalities/irregularities and thus, the same is not sustainable under law. Resultantly Civil Revision No. 42 of 1996 is accepted and the order dated 31.10.1995 passed by the learned Civil Judge Lahore, is set-aside and the application filed by Respondent No. 2 under Order I, Rule 10 CPC for deletion of its name, from the array of defendants, is dismissed.

2. As regards the application filed by Respondent No. 1 under Order VII, Rule 11 CPC it contained two fold reasons for rejection of the plaint, firstly being that the suit is barred by limitation and the other being that the Combine Harvesters still continued to be owned by the respondents, the plaint did not disclose any cause of action. The petitioner in its para 9 of the plaint has clearly mentioned that initially the cause of action accrued during the wheat harvest season in April, 1998 when it was found that the combine harvesters were severely damaged and thoroughly cracked for which there had been correspondence between the parties, as detailed in rest of the paras of the plaint which finally accrued 15 days earlier to the filing of the suit, on final refusal of the respondents to pay the claimed damages. In view of these averments in the plaint, the plaint could not have been summarily thrown out but the point of limitation as asserted, needed to be put to trial, giving opportunity to the parties to produce their respective evidence. In the circumstances of the instant case, question of suit being barred by limitation, was a mixed question of law and facts and on the basis thereof the plaint could not have been rejected. My this view is fortified by an alighted judgment of the Honourable Supreme Court in case of Tariq Mahmood Chaudhry Kamboh Versus Najam-ud-Din (1999 SCMR 2396). Similarly suit in hand is not one for declaration regarding title of the Combine Harvesters rather it is a suit for damages under the sale of Goods Act with the averments that the goods supplied were not according to the specification and were defective/damaged. Sale of Combine Harvesters under a written agreement between the parties and receipt of money there-under even if it in part, is not denied by the respondents. Argument that since the petitioner has not paid all the installments and respondents have not issued the discharge certificate, the plaint does not disclose a cause of action, has not impressed me and I would not like to throw the plaint away on this unfounded, flimsy and fake assertion of the respondents. The plaint as drafted, did disclose a cause of action, thus, the provisions of Order VII, Rule 11 of CPC are not attracted to the case in hand. The order passed by the trial Court dis-allowing the application of the Respondent No. 1 under VII, Rule 11 CPC is just and in accordance with the law. To this extent the trial Court did not commit any illegality or irregularity amenable to revisional jurisdiction of this Court, thus, maintaining the order on application of Respondent No. 1, the Civil Revision No. 2263 of 1995 to this extent, partly is dismissed being devoid of force with no order as to costs.

3. The learned trial Judge on 15.4.1992, after hearing the parties opined that the objections of respondents touching the jurisdiction of the Court and limitation of the suit, can only be resolved after recording the evidence, thus, treating those as mixed questions of law and facts, framed three issues of law, arising out of controversial pleadings of the parties, in terms of provisions of Order XIV, Rule 2 CPC. None of the parties objected to the lawful course adopted by the Court at the time of framing of those issues or subsequently through some application but at the time of decision of the above referred two applications the trial Court, in exercise of its suo-moto powers, recalled order dated 15.4.1992 and felt it appropriate that all the issues arising between the parties be framed in order to avoid exercise of recording of evidence, twice. It is settled controversy that where the issues of law going to the route of the case are raised, those have to be decided in the first instance especially when much evidence is not needed for decision of such issues. There is a chain of judgments on this proposition, out of which some are i.e. I.C.I.C. Versus Mian Rafiq Saigol and other (PLD 1996 Lahore, 528), Raza Hussain Versus Haji Qaisar Iqbal and 7 others (1996 MLD 55), 1999 MLD 2049 and Muhammad Saleem Versus Hafiz Ahmad Din (PLD 1975 Lahore 425). Framing of issues on merits of the case would not only delay the determination of the suit but will also create an incumbersome exercise for the parties and there appears to be no reason to keep the entire lis pending, without decision on preliminary legal objections of the respondents. Viewing the attitude of the parties on framing of issues and not raising any objection at any stage of the proceedings, I hold that there was no compelling necessity of framing of issues on merits of the case and the trial Court should in the first place, try and decide preliminary issues framed on 15.4.1992. The order of the trial Court regarding framing of issues, in the impugned order, is resultantly, set-aside with observations noted above and thus Civil Revision No. 2263 of 1995 is partly accepted, to this extent, with no order as to costs.

(A.A.) Order Accordingly.

PLJ 2005 Lahore 1075 (DB)

Present: Syed Jamshed Ali and Abdul Shakoor Paracha, JJ.

LIAQAT ALI--Appellant

versus

Mst. BASHIRAN BIBI etc.--Respondents

F.A.O. No. 88 of 2000, heard on 30.6.2004.

Administration of Justice--

----Rules of procedure are intended to foster justice, technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master. [P. 1086] L

Administration of Justice--

----To avoid failure of justice and multiplicity of litigation, one type of proceedings could be converted into another type of proceedings. [P.1086] M

Civil Procedure Code, 1908 (V of 1908)—

----O. XLIII, R. 1, & XXI, Rr. 68, 80 & 90 & S. 47--Limitation Act (IX of 1908), Art. 166--Ex-parte decree totally passed by Banking Tribunal against predecessor-in-interest of respondents--Application for setting aside, decree was dismissed--Assailed--Execution of decree was stayed--Banking Tribunals Ordinance (LVIII of 1984) was declared un-Constitutional by High Court and pending cases were transferred to Banking Courts--Appellant filed application for confirmation of sale and issuance of sale certificate--Widow of judgment-debtor also made application under R. 89 of O. XXI C.P.C. for setting aside sale--Application accepted--Challenge to--Validity--Provisions of R. 68 of O. XXI CPC was prima facie violated which amounts to an illegality--Signature/thumb-impression of appellant are conspicuously missing from bid sheet which made presence of appellant at time of auction doubtful when at least signatures of two bidders, were taken on bid sheet--Allegation in objection petition that no auction was held at spot--Inadequacy of sale consideration, can not, by itself, be a sale reason to set aside but viewed in facts and circumstances of case High Court noted, warrants a proper inquiry--Execution proceedings were stayed by High Court subject to deposited by appellant--Impugned order could not be passed on application under R. 89 on ground on which it is based--Widow did not comply with provisions of R. 89 regarding two deposits referred to therein and for application was beyond prescribed period of limitation in accordance with Art. 166 of Act--Objections of judgment debtor made in reply to application of appellant seeking confirmation of sale should have been inquired into by executing Court--Conclusion was down as under:

(a) application by widow of judgment debtor under O. XXI, R. 89 CPC was not maintainable without complying with two conditions of R. 89 of O. XXI which are mandatory--Application was barred by time and dismissed;

(b) Impugned judgment which set aside sale could not have been passed by executing Court without holding inquiry;

(c) Reply submitted by judgment debtor will be treated an application under O. XXI, R. 90 read with S. 47 of C.P.C.

Appeal accepted and case remanded for fresh decision.

[Pp. 1080, 1081, 1082, 1086 & 1087] A, B, E, F, G, H, N, O, P & Q

AIR 1932 Allahabad 55; PLD 1993 Lahore 706; AIR 1939 Lahore 113;

AIR 1941 Patna 566; AIR 1952 Madras 582; AIR 1957 Allahabad 558 and PLD 1966 SC 375.

Civil Procedure Code, 1908 (V of 1908)—

----O. XXI, Rr. 89, 90, 91 & 92--Confirmation of sale--Validity--Question of confirmation of sale only arises in case of a valid sale--Although, provisions of Rule, 92 as worded, provided no option to Court but to confirm a sale in case no objections are filed under Rules 89, 90 and 91 and if filed have been dismissed--Rule 92 does not exclude duty of Court to satisfy itself that sale conducted by Court auctioneer was bona fide and in accordance with law. [P. 1083] I

PLD 1993 Lahore 706.

Civil Procedure Code, 1908 (V of 1908)—

----S. 47, O. XXI, R. 90--Power of executing Court--Inquiry by Court--Held: If executing Court feels a difficulty to deal with an application under

R. 90, such an application could be treated as falling under S. 47 C.P.C. for which no specific limitation is provided for--Course is necessary to remove patent in justice. [P. 1084] J

AIR 1939 Lahore 113.

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

----S. 47, O. XXI, R. 90--Violation of mandatory provision--Inquiry by executing Court--In case no sale is conducted or a mandatory provision of law is violated or sale is collusive and fraudulent, it will be a nullity and such objection can be inquired into under S. 47 of C.P.C. independently of R. 90 of O. XXI. [P. 1085] K

AIR 1941 Patna 566; AIR 1952 Madras 582; AIR 1957 Allahabad 558 and

PLD 1966 S.C. 375 rel.

Civil Procedure Code, 1908 (V of 1908)—

----O.XXI, Rr. 71 & 84--Auction in execution of decree--Bid sheet--Signature of highest bidder necessary--Question of--Held: It is necessary to obtain signatures of highest bidder on bid sheet because in case of release on account of purchaser's default, he is not only liable to pay all expenses attending release but also deficiency in sale price on re-sale--Further held: Rule 84 contemplates sale and R. 71 provides for re-sale and if purchaser defaults and property is re-sold, deficiency in price could not be recovered from him unless it could be shown that he was purchaser--In absence of signatures purchaser could come forward with plea that it was somebody else who had made bid. [Pp. 1080 & 1081] C & D

Mr. Mushtaq Mehdi Akhtar, Advocate for Appellant.

Mr. Shahid Iqbal Mian, Advocate for Respondents.

Date of hearing: 30.6.2004.

Judgment

Syed Jamshed Ali, J.--This appeal is by the auction purchaser. His grievance is against non-confirmation of sale in his favour. The facts of the case are noted hereunder.

1. On 2.8.1994, learned Banking Tribunal passed an ex-parte decree in the sum of Rs. 183,886/- with costs amounting to Rs. 15,569/-, totaling to Rs. 1,99,435/-, against Noor Muhammad, the predecessor-in-interest of Respondents Nos. 1 to 9. His application for setting aside the said decree was dismissed vide order dated 8.3.1995. He then approached this Court in W.P.No. 9725-95 and vide order dated 30.7.1995 execution of the decree was stayed. Meanwhile on 22.7.1995, the property of the judgment-debtor i.e. agricultural land measuring 70 Kanals and 9 Marla (in two revenue estates) was put to auction. The appellant was the highest bidder in the sum of

Rs. 2,20,000/-. In the said Writ Petition and 606 connected petitions various provisions of Banking Tribunals Ordinance (LVIII of 1984) were assailed. These writ petitions were decided by a Full Bench of this Court on 21.7.1996. This judgment is reported as Messrs Chenab Cement Product (Pvt) Ltd. and others vs. Banking Tribunal, Lahore and others (P.L.D. 1996 Lah. 672). Section 4, Section 6(6) as amended by Finance Act (No.VII), 1990, first proviso to Section 9 of Ordinance No. LVIII of 1984 and the notifications appointing Presiding Officers of the Banking Tribunals issued under the said Ordinance were declared as unconstitutional, without lawful authority and accordingly, quashed. It was, however, observed that the said judgment shall not effect cases past and closed or invalidate the judgments/decrees, orders, fines or sentences or proceedings which have become final. Accordingly, it was directed that the cases pending before the Banking Tribunals shall stand transferred to the respective Banking Courts or this Court, depending on the amount involved in those cases.

1. After the aforesaid decision of the Full Bench, the appellant made an application to the Banking Court on 24.4.1997 for restoration of the execution petition, confirmation of sale in his favour and issuance of a sale certificate. On 12.6.1998, the widow of the judgment-debtor made an application under Rule 89 of Order XXI of the Code of Civil Procedure for setting aside the sale.

2. The case of the interveners (C.M.No. 1114/2003) is that they had also made an application before the learned Baking Court on 31.7.1995, for setting aside the sale. They assert that no auction was at all held and the sale was surreptitiously confirmed in favour of the appellant, who had not even participated in the auction.

3. The two applications, one moved by the widow of the judgment-debtor and the other moved by the appellant, were disposed of by a single order dated 6.4.2000. The learned executing Court declined to confirm the sale on the ground that the sale consideration was inadequate and, therefore, mandatory provisions of "Rules 66, 106 and 110" were violated. The objection of the auction-purchaser that the application under Rule 89 of Order XXI of the Code of Civil Procedure was beyond the prescribed period of limitation was brushed aside on the same ground. Accordingly, while the application under Order XXI, Rule 89 of the Code of Civil Procedure was allowed, the application moved by the appellant was dismissed. The said order has been assailed in this appeal. The objections of the intervenors were, however, left undecided.

4. The learned counsel for the appellant contends that against the sale made on 22.7.1995, an application under Rule 89 of Order XXI CPC was filed on 12.6.1998. Limitation for the said application was governed by Article 166 of the Limitation Act which is 30 days. It was thus, beyond the prescribed period of limitation. He also invited our attention to the date of the decision of the W.P.No. 9725-95 which is 21.7.1996 and asserted that even from the said date, the said application was made beyond 30 days. He maintains that deposit of 5% of the auction price as compensation to auction purchaser and the amount given in the proclamation is mandatory to maintain an application under Rule 89 of Order XXI of the Code of Civil Procedure and in the absence of compliance of the aforesaid provision, the said application could not have even been entertained and ultimately granted as was done by the impugned order. He further submits that in the said application it was not even alleged that the sale consideration, for which the property was sold, was inadequate. He further submits that mere inadequacy of sale consideration is not a ground to set aside the sale unless the element of fraud or any irregularity in publishing or conducting the sale was established. In support of his submissions reliance is being placed on Lutfer Rehman vs. Mst. Tahera Khatun and others (PLD 1961 Dacca 303), Hudaybia Textile Mills Ltd. and others vs. Allied Bank of Pakistan Ltd. and others (PLD 1987 SC 512) and National Bank of Pakistan vs. Economic Office Machines & Equipment and 8 others (1990 MLD 258).

5. The learned counsel for the appellant has further contended that remedies under Rules 89 and 90 of Order XXI of the Code of Civil Procedure are distinct remedies. While remedy under Rule 89 is available as of right, the remedy under Rule 90 is dependent on establishment of certain facts vitiating the sale. The learned executing Court, while setting aside the sale imported the grounds mentioned in Rule 90 which could not have been done. Reliance was placed on sub-rule (2) of Rule 89 to contend that a condition precedent to move an application under Rule 90 is withdrawal of petition filed under Rule 89. He next contended that the learned trial Court allowed a period of two months to clear the liability of the Bank and to deposit 5% of the bid money but even that direction of the Court was not complied with.

6. The learned counsel for Respondents Nos. 1 to 9 maintains that the application of the appellant was contested by Noor Muhammad by a written reply filed on 17.6.1997. He had raised a number of objections to the conduct of sale including fraud and inadequacy of sale consideration, but his objections were not decided. He could not pursue the matter and died. He maintains that the bid sheet does not even contain the signatures of the auction purchaser, although the signatures of five other persons and representative of the decree holder were obtained by the Court auctioneer on the bid sheet.

7. It is next contended that the sale was in violation of Rule 68 of Order XXI of Code of Civil Procedure. The proclamation for sale on 22.7.1995 did not indicate the date of issue, nor it was identified by the Court auctioneer in his report. He also invited our attention to the said proclamation purportedly (issued for 22.7.1995) and pointed out that the date in the aforesaid proclamation was written in ink in hand writing although it was otherwise a printed matter and in the bid proceedings, the amount of Rs. 74000/- and Rs. 146000/- were inserted later on.

8. As far as the deposit of the bid money is concerned, he has placed reliance on Mir Wali Khan and another vs. Manager Agricultural Development Bank of Pakistan, Muzaffargarh and another (PLD 2003 S.C. 500), to contend that the total principal amount of Rs. 1,43,000/- had already been deposited. As to the non-compliance of the direction of the executing Court, he maintains that 5% of the sale price i.e. Rs 11,000/- was deposited on 13.4.2000 within the time allowed by the Court. Photo-copy of the challan was also produced.

9. He contended that the so called auction proceedings were fake and fraudulent and thus, nullity. He maintained that the objection of the intervenors were not in any case decided. He lastly contended that the order for sale was passed by the Banking Tribunal which was a nullity. The said order could not be said to be a past and closed transaction because further action under the said order was required to be taken.

10. We have considered the submissions made by the learned counsel for the parties and have carefully perused the record. The execution petition in this case was filed by the decree holder on 19.10.1994, warrant of attachment for sale of the agricultural land of the judgment-debtor measuring 9 kanals 1 marla in Mauza Budhpur and 61 kanals and 8 marlas in Chak Rehan, alongwith a Tractor, was directed to be issued vide order dated 24.10.1994 and the order for sale was passed on 23.1.1995. The first auction was scheduled for 10.6.1995 on which date the judgment-debtor requested for time to liquidate his liability but on account of his failure to do so a fresh order for sale was passed on 28.6.1995. Perusal of the record shows that on 15.7.1995 notices were addressed to the judgment-debtor and the decree holder for sale on 22.7.1995 on which date the auction was statedly held. The appellant was the highest bidder for an amount of Rs. 2,20,000/-. The appellant deposited 1/3rd (Rs. 74000/-) with the Court auctioneer and was directed to deposit the amount of Rs. 1,46,000/- till 7.8.1995 in the Banking Tribunal. The report was accordingly, submitted by the auction purchaser on 1.8.1995.

11. The proclamation for sale on 22.7.1995 does not indicate the date of its issue. However, the notices on the record to the judgment-debtor and decree holder were issued on 15.7.1995. Therefore, the provision of

Rule 68 of Order XXI was prima facie violated which amounts to an illegality. Rule 68 aforesaid prohibits a sale, except with the consent in writing of the judgment-debtor, before a period of 15 days (High Court Lahore Amendment) from the date on which the proclamation was affixed on the Court House of which there is no evidence. The term in which the aforesaid rule is worded makes it mandatory and non-compliance thereof entails serious consequences.

1. Perusal of the bid sheet shows that attendance of 16 persons were marked out of which Muhammad Yaqoob, Muhammad Afzal, Liaqat Ali, Farooq Khan and Khalid Mehmood, statedly participated. Signatures of Muhammad Yaqoob and Muhammad Afzal, the two bidders, appear on the bid sheet alongwith the Manager of A.D.B.P., Gujranwala, Siad Muhammad, Chowkidar, Muhammad Sharif and one Abdul Rehman. However, the signatures/thumb impression of Liaqat Ali are conspicuously missing from the bid sheet which makes the presence of the appellant at the time of auction doubtful particularly when at least the signatures of two bidders, as noted above, were taken on the bid sheet. The learned counsel for the appellant explained that signatures of the appellant were not required on the bid sheet. To our mind this explanation, in the circumstances of the case, is not sufficient and was required to be inquired into. In our view, it is necessary to obtain the signatures of the highest bidder on the did sheet because in case of resale on account of purchaser's default, he is not only liable to pay all expenses attending resale but also the deficiency in the sale price on resale as provided in Rule 71 or Order XXI. The learned counsel, however, referred the Rule 84 of Order XXI which provides that on failure of the person declared to be the purchaser, the property shall be resold and the deposit of 25% shall stand forfeited. The two provisions have to be read together. While Rule 84 contemplates sale, Rule 71 provides for resale and if the purchaser defaults and the property is resold, deficiency in price could not be recovered from him unless it could be shown that he was the purchaser. In the absence of signatures the purchaser could come forward with the plea that it was somebody else who had made the bid. However, for the order proposed to be made we do not consider it necessary to further dilate on this issue.

2. Perusal of the bid sheet further shows that the figures " " and Rs. 1,46,000/- prima facie appear to be a latter insertion as the aforesaid two figures are in bolder ink than the entire body of the auction proceedings. The word " " after "74" also appears to be in a different hand writing because every where else in the bid sheet the Court auctioneer has written this word as " " while after the figure "74", it was written as

" ". This fact also raises doubts about the genuineness and validity of the auction proceedings. There was an allegation by the intervenors in their objection petition moved under Order XXI, Rule 90, that, in fact, no auction was held at the spot. The inadequacy of the sale consideration, may not, by itself, be a sole reason to set aside a sale but viewed in the facts and circumstances of the case we have noted, warrants a proper inquiry.

1. Another material feature of the case to be noted is that in W.P.No. 9725-95, filed by the judgment-debtor execution proceedings were stayed by order dated 30.7.1995 of this Court while amount of Rs. 1,46,000/- was deposited by the appellant on 6.8.1995. No sale can be said to have taken place unless the remaining amount was deposited by the auction purchaser. The deposit of the balance sale price to complete the sale in favour of the appellant was one of the steps in the execution proceedings and the question which was required to be determined was the effect of the aforesaid order dated 30.7.1995 of this Court.

2. The question which attracted our attention was the proceedings in which all the aforesaid facts could be inquired into by the learned executing Court. Although the learned executing Court declined to confirm the sale yet the impugned order does not proceed on correct legal premises because the learned executing Court pressed on inadequacy of the sale consideration on the basis of provisions of Rules 66, 106 and 110 of Order XXI. This ground was not germane to an application under Rule 89 because under the said rule if 5% of the purchase money and the amount mentioned in the proclamation is deposited, the Court cannot confirm the sale. Such an application by the judgment-debtor lies as of right.

3. There is a merit in the contention of the learned counsel for the appellant that the two applications under Rules 89 and 90 cannot proceed simultaneously because sub-rule (2) of Rule 89 provides that when a person applies under Rule 90, he will have to withdraw his application under Rule 89. Therefore, the impugned order could not be passed on the application under Rule 89 on the ground on which it is based.

4. It may also be observed that a pre-requisite to maintain an application under Rule 89 are the two deposits referred to therein and Mst. Noor Fatima, while, making the application under Rule 89, did not comply with the aforesaid rule. Further, such an application was maintainable within 30 days, in accordance with Article 166 of the Limitation Act, from the date of sale and even if time is computed from 21.7.1996, (the date of decision of the Full Bench of this Court referred to above), the application was beyond the prescribed period of limitation.

5. We have also noted that while holding that Rules 66, 106 and 110 of Order XXI were violated, in this case, the learned executing Court was influenced by the judgment of Allahabad, High Court in Ram Parasad vs. Shiva Kumar (AIR 1932 Allahabad 55), Rules 106 & 110 were inserted in Order XXI by way of Allahabad High Court amendment. As far as this Court is concerned, Rules 106 and 110 do not exist in Order XXI. The impugned order is not, therefore, sustainable. However, the matter does not end here.

6. Rule 90 of Order XXI does not prescribe any particular form of filing objections to the sale. In the written reply submitted on 17.6.1997 by the judgment debtor, a specific plea was raised that the auction was not conducted in accordance with law. It was tainted with mala fide and was predetermined. The objection of the learned counsel for the appellant was that this reply could not be treated as an application under Rule 90 for two reasons. Firstly, that it was beyond 30 days prescribed by Article 166 of the Limitation Act and secondly the condition of deposit of 20% of the sale price or to furnish the security was not complied with.

7. The question as to whether all applications by a judgment-debtor for setting aside a Court sale are governed by Article 166 of the Limitation Act has been subject matter of a number of judgments of the superior Courts. The first objection will be examined after attending to the second objection of the learned counsel for the appellant.

8. The decretal amount including costs in this case was

Rs. 1,99,455/-, 20% of the said amount comes to Rs. 39891/-. Perusal of the order dated 30.7.1995 in W.P.No. 9725/95 shows that according to the statement of accounts an amount of Rs. 69761/- had already been repaid while an amount of Rs. 73,239/-, was directed to be deposited within 2 months to make it Rs. 1,43,000/- i.e. the principal amount of loan. The said amount of Rs. 73,239/-, .... according to the learned counsel for Respondents Nos. 1 to 9, was deposited. Thus, a total amount of Rs. 1,43,000/- had already been deposited leaving a balance of Rs. 56455/- out of the decretal amount and the costs. Thus, the deposit with the decree holder bank already exceeded 20% of the decretal amount. In such a situation, the rule laid down by the Honorable Supreme Court of Pakistan in Mir Wali Khan (supra) was fully attracted.

1. As far as the first objection is concerned, we may, at the outset, observe that the question of confirmation of sale only arises in case of a valid sale. Although, the provisions of Rule 92 as worded, provided no option to the Court but to confirm a sale in case no objections are filed under Rules 89, 90 and 91 and if filed, have been dismissed. Rule 92, to our mind, does not exclude the duty of the Court to satisfy itself that the sale conducted by the Court auctioneer was bona fide and in accordance with law. Reference may be made to a D.B. judgment of this Court in Brig. (Rtd.) Mazhar-ul-Haq and another vs M.C.B. Ltd. Islamabad (PLD 1993 Lahore 706). In the said case an ex-parte decree was passed against the defendants in a Banking suit and in execution of the said decree, the mortgaged property was sold on 21.12.1984. On 17.9.1986, the judgment-debtors filed an application under Order XXXVII, Rule 4 of the C.P.C. read with Order IX Rule 13. Another application was moved under Order XXI Rule 90 for setting aside the sale. The applications were dismissed. Two separate appeals were filed before this Court which were allowed. In the said case the Court sale was effected after publication of the notice in the newspaper. This Court noted a number of illegalities and irregularities in the passing of the ex-parte decree and the sale including non-issue of the proclamation and violation of the provisions of Rules 66, 67 and 68 of Order XXI. Inadequacy of sale consideration was also taken notice of the case of Hudaybia Textile Mills supra was also noted and it was observed that it dealt with an application under Rule 89 of Order XXI. In paragraph 30 of the judgment, this Court observed:-

"While confirming the sale the Court is expected to apply its judicial mind to the nature and location of the property and the bid offered for it on its sale through auction. The difference in the price fetched through auction and the one by private sale is not unknown. But when the auction price is too low, the Court mechanically accords approval to the sale, without considering that the offer is too low and the property could clearly fetch a far more higher price, both the elements of material irregularity and injury to the judgment-debtor would be present in the case."

.......In para 33, it was observed as follows:

"We are mindful of the laudable rule of giving protection to an innocent 3rd party succeeding at the Court sale, but this rule cannot be stretched too far that the possibility to do justice to a judgment-debtor deprived of his valuable property and condemned unheard, is practically shut out".

It was further observed that in case of fraud and collusion, Section 18 of the Limitation Act was attracted, and application under Order XXI, Rule 90 could not be thrown away as barred by time. Further, that "if confirmation of sale is got through fraud, an objection can be raised even after confirmation and the confirmation of sale cannot be used as sheild for the fraud by which it has been induced to make the sale."

1. We have also taken notice of the provisions of Section 47 of the Code of Civil Procedure. An application under Order XXI, Rule 90 raises a question as to the execution, discharge and satisfaction of a decree and even a separate suit is barred. Therefore, if the executing Court feels a difficulty to deal with an application under Rule 90, such an application could be treated as falling under Section 47 of the Code of Civil Procedure for which no specific limitation is provided for. This course, to our mind, may be necessary in a case to remove patent injustice. Here, in this case not only the objections of the judgment-debtor to the sale were on the record, the interveners also asserted that they intended to participate in the auction but no auction was, in fact, held. With the facts borne out from the record and the undecided objections of the judgment-debtor and the intervenors, the duty of the Court to examine whether the sale had lawfully been made was clearly attracted to do justice in the case even if the application under Rule 89 of Order XXI of the Code of Civil Procedure filed by the widow of the judgment-debtor was not maintainable.

2. We have able to lay our hands on some judgments in which the question as to the scope of the powers of the Court, applicability of Article 166 of the Limitation Act and Order XXI, Rule 90 of the Code of Civil Procedure came under consideration of the superior Courts. The first case we will like to refer is Ram Chandar and another vs. Sarupa (AIR 1939 Lahore 113). In the said case the question was whether the Court had the jurisdiction to sell a property exempt under Section 60 (I)(c). The judgment-debtor in the said case, had filed two applications. One under Order XXI, Rule 90 and the other under Section 60 of the Code of Civil Procedure. The executing Court dismissed the application under Order XXI, Rule 90. After noting a number of judgments, this Court held:

"that the Court has power to take notice of any objection under Section 47 of the Code of Civil Procedure relating to property until the sale of the property is confirmed as it is not till then that the sale becomes absolute and title passes"

It was further observed:

"This argument is based on the reading of Order 21, R. 92 to the effect when the objections under Order 21, R. 90 are dismissed, the sale shall be confirmed. But Section 47 is completely independent of the provisions of Order 21 relating to the procedure which is to govern the sale of property, and it seems to us that Order 21, Rule 92 presupposes that there is no objection outstanding under Section 47 of the Code. When such an objection is made it is the duty of the Court first to decide it; especially when the objection is that the Court has no jurisdiction to sell the property....." (underlining is ours)

1. Although in the said case exemption from sale of a house was claimed on the basis of Section 60 of the Code of Civil Procedure yet we are of the view that the principle enunciated emphasizes the duty of the Court to satisfy itself that the sale was validly made and was free from any illegality or taint of fraud or collusion.

2. In Bhan Kumar Chand and another vs. Lachmi Kanta Rai (AIR 1941 Patna 566), the question involved was whether the property sold in execution of a decree could be sold within the terms of the decree. The observation made in the case was that Article 166 applies to voidable sales but where the sale is nullity, it even does not require to be formally set aside, it would be a question under Section 47 of the Code of Civil Procedure and in that case Article 181 of the Limitation Act will apply. We are of the opinion that in case no sale is conducted or a mandatory provision of law is violated or the sale is collusive and fraudulent, it will be nullity and such an objection can be inquired into under Section 47 of the Code of Civil Procedure independently of Rule 90 of Order XXI. We have noticed that one of the grounds in Rule 90 is fraud in publishing or conducting a sale. It, however, presupposes that a sale was in fact conducted and if it is proved to the contrary Rule 90 will not apply.

3. In the case of Kandaswami vs. Narasimha Aiyar (AIR 1952 Madras 582), the said Court went on to the extent of observing that an objection against a sale is between the judgment-debtor on the one hand, decree holder and the auction purchaser on the other and can, therefore, falls under Section 47 of the Civil Procedure Cod. It was observed: --

"It is the duty of the Court when it comes to know before the sale is confirmed that a fraud has been perpetrated in bringing about the sale to refuse to confirm the sale."

1. We have also noted that the decree holder, while applying for execution also misled the Court inasmuch as that according to the statement of accounts an amount of Rs. 69,761/- had already been paid while proclamation was issued for the entire decretal amount i.e. Rs. 1,83,886/-. Another amount of Rs. 73239/- is claimed to have been paid before the confirmation of sale. Thus a total amount of Rs. 143,000/- had already been paid leaving a balance of Rs. 56455/- out of the total decretal amount. Because of the interim order of this Court no further proceedings in execution could be taken, the subsequent event i.e. deposit an amount of

Rs. 73239/- was a material subsequent event, which to our mind, was also relevant in the peculiar circumstances of the case whether confirmation of sale of the two properties of the judgment-debtor was warranted.

1. In Nand Lal vs. Siddiquan (AIR 1957 Allahabad 558), the observation made by the said Court was that Rule 90 applies only when there is a valid sale and unless it was so there can be no confirmation of any invalid sale even if it is so made it will continue to remain invalid sale.

2. In Mst Noor Jehan Begum vs. Haji Hussain Bakhsh, (PLD 1966 SC 375), a mortgage decree was involved but the property sold was not mortgaged. The objections to the sale were allowed by the learned executing Court but this Court interfered on the ground that the objections were filed beyond the period prescribed by Article 166 of the Limitation Act. The Honourable Supreme Court of Pakistan held that the said article does not include an application under Section 47 of the Civil Procedure Code and the following observations were made:--

"There is an alternative basis however for the interpretation of this Article, namely, that the words "setting aside" may refer only to a case where the sale is valid till it is set aside and they may have no application to a case where a party simply seeks a declaration that the sale is null and void and of no effect. Even if the words "set aside" be used in the application the real relief granted may be only a declaration. When a sale is without jurisdiction and therefore a nullity, Article 166 can be excluded even on the ground that the application is not for setting aside a sale."

1. We will also like to observe that rules of procedure are intended to foster justice, technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master. And, to avoid failure of justice and multiplicity of litigation, one type of proceedings could be converted into another type of proceedings. In this case, in the peculiar facts and circumstances, we are of the view that the objections of the judgment debtor made in reply to the application of the appellant seeking confirmation of the sale should have been inquired into by the learned executing Court.

2. For What has been stated above, our conclusions are as under:--

(a) The application by the widow of the judgment-debtor under Order XXI Rule 89, of the Civil Procedure Code, was not maintainable without complying with the two conditions of the Rule 89 of Order XXI which are mandatory. This application was barred by time and is dismissed.

(b) The impugned judgment which set aside the sale could not have been passed by the learned executing Court without holding an inquiry;

(c) The reply submitted by the judgment debtor will be treated an application under Order XXI Rule 90 read with Section 47 of the Civil Procedure Code.

1. Accordingly, this appeal is accepted. The impugned order of the learned executing Court is set aside and the case is remanded to it for a fresh decision of the objections of the judgment-debtor to the sale in accordance with law. Since the amount already deposited by the respondents with the decree holder exceeds 20% of the decretal amount, no further deposit or security would be required. The learned executing Court shall decide the objections and the question of confirmation of sale after allowing the parties an opportunity to produce evidence and that nothing in the judgment shall prejudice either party. No order as to costs.

C.M.No. 114-2003.

1. Since nobody appears for the applicants, this application is dismissed for non-prosecution.

(M.A.R.) Case remanded.

PLJ 2005 Lahore 1087

[Rawalpindi Bench Rawalpindi]

Present: Syed Shabbar Raza Rizvi, J.

EX PA-33756 LIEUT MUHAMMAD ASJID IQBAL--Petitioner

versus

FEDERAL GOVERNMENT, SECRETARY GENERAL MINISTRY OF DEFENCE, RAWALPINDI through CHIEF OF THE ARMY STAFF, G.H.Q.--Respondent

W.P. No. 2914 of 2003, heard on 11.1.2005.

Pakistan Army Act, 1952—

----S. 133--Constitution of Pakistan (1973), Art. 199(3) & (5)--Conviction and dismissal from service--Assailed by petitioner--Constitutional petition--Maintainability--Petitioner while serving as officer of Pakistan Army had committed alleged offences--Petitioner thus, was amendable to Pakistan Army Act, 1952--Constitutional jurisdiction can be exercised against a `person'--Art. 199(5) of Constitution excludes from definition of "person", Supreme Court, High Court and a Court established under law relating to Armed Forces--Petitioner was convicted by Field General Court Martial established under Pakistan Army Act 1952, therefore, said Court is not covered by expression "Person" in view of provisions of Art. 199(5) of Constitution--Jurisdiction of High Court was thus, barred against conviction of petitioner by Field General Court Martial. [P. 1090] A & B

PLD 1975 SC 506; PLD 1996 SC 801; PLD 1996 SC 632; 1999 SCMR 664 and 2004 SCMR 1676, ref.

Col. Muhammad Akram, Advocate for Petitioner.

Ch. Muhammad Tariq, Deputy Attorney General alongwith Lt. Col. Iqbal Hashmi, AJAG for Respondent.

Date of hearing : 11.1.2005.

Judgment

The petitioner, who was an Army officer, has challenged his conviction and sentence of 2 years RI, and also his dismissal from the service. The petitioner was tried by Field General Court-Martial (F G.C.M). His trial was terminated on 12.6.2001, the promulgation was made on 22.9.2001.

1. He has challenged the impugned order on ground of mala fide. The background is given in detail in the writ petition.

2. The learned counsel appearing for the petitioner contends that where statutory functionaries act malafidely or in a partial and unjust manner, the High Court in exercise of writ jurisdiction can take judicial notice and thereby can also grant relief to an aggrieved person. For the above reasons, the learned counsel for the petitioner prays that the trial by F.G.C.M. of the petitioner be declared to be mala fide, illegal, ab initio void and of no legal effect. The learned counsel has relied upon Brig. F.B. Ali's case, PLD 1975 SC 506. According to him in this judgment it has been held that if impugned action is without jurisdiction and bonafide then the bar of Article 199(3) of the Constitution shall not be operative. It may be noted that in the Brig F.B. Ali's case the said officers were booked under Section 121-A of the PPC to be read with Section 2(1)(d) of the Pakistan Army Act, whereas in the instant case the petitioner was charged under Section 34 of Pakistan Army Act, neglect to obey standing orders, under Section 41, PAA, malingering, under Section 36(1) PAA; desertion from service, under Section 55 PAA; prejudice to good order and military discipline, again under Section 55 PAA, conduct to the prejudice of good order and military discipline, under Section 52 PAA behaving in a manner unbecoming of an officer and the character expected from an officer, therefore, the case of Brig. F.B. Ali is distinguished from the case of the present petitioner. Moreover, in Brig. F.B. Ali's case the Supreme Court has held that it seems quite settled that if the Court-Martial has tried a particular case with jurisdiction, then the ordinary Courts of Superior jurisdiction well not interfere in exercise of their power of judicial review merely on the ground that some rule of procedure has not been followed. The learned counsel for the petitioner also referred Saboor Rehman vs. Government of Sindh, PLD 1996 SC 801. I am afraid this judgment does not support the contention of the learned counsel for the petitioner rather it goes against him. In fact the decision of the High Court was upheld and the appeal was dismissed by the Hon'ble Supreme Court in Saboor Rehman's case (Majority View). The High Court had held that the impugned order was passed on evidence and for the same, High Court had refused to interfere. The Supreme Court further held "there is no doubt that in some of the cases it has been held that if a finding is based on no evidence, it will be a case of without jurisdiction, but the basic question is, as to whether the High Court in exercise of its Constitutional jurisdiction or this Court while hearing an appeal arising out of refusal of the High Court to set aside conviction can take upon itself the role of an appellate Court to reappraise the entire evidence on record and to analyze it and then to conclude that it is a case of no evidence in order to render the conviction as without jurisdiction. In my humble opinion, this is not permissible."

3. The learned counsel further contended that Section 133 of the Pakistan Army Act and Article 199(3) of the Constitution do not provide absolute bar to the jurisdiction of the High Court under Article 199(3). In this context he has referred to Shaheda Zaheer Abbasi's case PLD 1996 SC 632. On basic proposition referred to by the learned counsel, I have no disagreement with him but every case has to be decided on its own facts and circumstances. The above judgment is not applicable in this case. Lastly, the learned counsel has referred Federation of Pakistan vs. Khurshid Ahmad, 1999 SCMR 664. I am afraid this judgment is also distinguishable from the facts and circumstances of the case in hand. In the said reported judgment the respondent Khurshid Ahmad as a civilian working in the office of Judge. Advocate-General, whereas, in the instant case the petitioner at the relevant time was a serving officer.

4. The learned Deputy Attorney General Ch. Muhammad Tariq, appearing on behalf of the respondent has contended that Article 199(3) of the Constitution and Section 133 of PAA bar jurisdiction of this Court in matter in hand. He further contended that this Court must decide question of jurisdiction before touching the merits of the petition.

5. I have already rendered my own observation on the judgments referred to and relied upon by the learned counsel for the petitioner in the preceding paras 3 & 4. The learned counsel for the petitioner tried to convince the Court, on the strength of judgments he referred to above, that question of jurisdiction do no come in his way. I do not agree with the learned counsel for the petitioner as I have already dilated upon in my effort to demonstrate that the facts were different in cases cited by the learned counsel for the petitioner, therefore, the said reports do not advance his case on point of jurisdiction also. The learned Deputy Attorney General has referred Capt. Syed Jamil Ali Shah vs. Federal of Pakistan, 2004 P.Cr.L.J. 560. According to the said judgment, Court-Martial is part of ordinary law of land are not to be confused with Martial Courts, which are brought into existence on suspension of ordinary law. Such Courts are established institutions with well known procedure which cannot be described arbitrary, perverse or lacking in fairness in any manner.

6. The learned Deputy Attorney General has also referred to Federal Government, Ministry of Defence vs. Sepoy Liaqat Ali wherein competence of the Field General Court Martial was upheld. Para-8 of the judgment is reproduced as under:--

"As regards competence and jurisdiction of the Field General Court Martial, similar situation arose in Jail Petition No. 103 of 1995 in the case of Muhammad Afzal v. The State and this Court in terms of a detailed order dated 14.10.1996 had declared that Field General Court Martial had competently and justifiably convicted Muhammad Afzal petitioner therein. Undoubtedly, respondent Sepoy Liaqat Ali at the relevant time was on duty in his Unit., and as member of the Armed Forces of Pakistan was completely amenable to Pakistan Army Act. Furthermore, clause (3) of Article 199 of the Constitution was quite clearly attracted, and thus, jurisdiction of the High Court was barred with regard to the conviction recorded and sentence awarded by the Field General Court Martial."

1. In the instant petition, the petitioner was also a serving officer of the Pakistan Army when the alleged offences were committed by him. Therefore, he was fully amenable to the Pakistan Army Act. Apparently the record does not show that the required procedure was not followed in his trial. Therefore, I am convicted, that 2004 SCMR 1676 is fully applicable in this case and this Court is bound to follow the above judgment in view of provisions of Article 190 of the Constitution.

2. Besides, in the present controversy/point of jurisdiction, provisions of Article 199(5) are relevant to mention which have not been touched by the learned Deputy Attorney General as well as learned counsel for the petitioner. The Constitutional/Writ jurisdiction can be exercised against a "person" Article 199(5) of the Constitution excludes from the definition of "person" the Supreme Court, a High Court and a Court established under the law relating to the Armed forces. The petitioner was convicted by a Court i.e. Field General Court Martial established under Pakistan Army Act, hence, the said Court is not covered by expression "person" in view of the provisions of Article 199(5) of the Constitution, hence jurisdiction is barred.

3. In view of my findings expressed above, this writ petition is dismissed.

(A.A.) Petition dismissed.

PLJ 2005 Lahore 1091

Present: Sayed Zahid Hussain, J.

AZIZ-UR-REHMAN and 3 others--Petitioners

versus

MEMBER BOARD OF REVENUE (CONSOLIDATION), LAHORE and 263 others--Respondents

W.P. No. 8154 of 2004, heard on 5.8.2004.

(i) Consolidation of Holding Ordinance, 1960—

----S. 13--Order as to annulment of holding scheme--Contention of--Member Board of Revenue has no jurisdiction & power of annulment of scheme--Held: Large number of illegalities and irregularities having been committed in the formation of scheme--More than ten glaring illegalities and irregularities which impelled him to annul scheme--Extensive hearing was given by him to parties--Large number of filing of appeals showed that scheme had not been prepared in accordance with law which suffered from illegalities/irregularities and malpractices--Member Board of revenue fully justified to annul scheme--Petition dismissed.

[Pp. 1095, 1096 & 1097] B, C & D

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

----S. 164--Consolidation of Holding Ordinance, 1960, S. 13--Civil Procedure Code (V of 1908), S. 115--Jurisdiction of Board of Revenue to call the record--Powers of consolidation officer--Ambit & scope--Scheme of Ordinance--Held: In scheme of Ordinance, consolidation scheme is prepared by Consolidation officer u/S. 10 of Ordinance--Scheme when confirmed is open to challenge by any aggrieved person though appeal u/S. 11--Board of Revenue has power to call for record of any proceedings under Ordinance "at any time" whether matter is pending or had been "disposed of" by consolidation officer and pass such order as "it thinks fit", S. 13 of Ordinance when compared with revisional jurisdiction as envisaged by S. 115 C.P.C. difference in scope and content becomes quite obvious--Ambit and scope powers u/S. 13 of Ordinance is apparently large and extensive. [P. ] A

Mr. Zafar Iqbal Ch., Advocate for Petitioners.

Mr. Fazal Miran Chohan, Addl. A.G. and Mr. Ahmead Waheed, Advocate for Respondents.

Date of hearing: 5.8.2004.

Judgment

The consolidation operation in village Chunian Otar, Tehsil Chunian, District Kasur, has given rise to the litigation between the parties. The scheme was confirmed in the year 1995. Admittedly, feeling aggrieved thereof 125 appeals were filed by the aggrieved persons. Some of them were disposed of and some are still pending. Muhammad Yousaf and others, however, made an application dated 2.4.2001, before the Provincial Ombudsman Punjab Lahore alleging illegalities and malpractices, which complaint was forwarded to the Board of Revenue Punjab. The matter was processed, reports were obtained by the learned Member (Consolidation) Board of Revenue Punjab then seized of the matter from the field officials, as a result large number of irregularities and illegalities came to light. The learned Member (Consolidation) Board of Revenue on taking account of the same, proceeded to annul the consolidation scheme vide his order dated 12.10.2002. That order was assailed through W.P.No. 20233/2002 which petition was accepted on 3.7.2003 observing that:

"Apart from the well entrenched and settled principle of natural justice that no one should be condemned unheard in a matter, likely to adversely effect his rights and interest, there is a specific provision in the law i.e. Section 13 of Consolidation of Holdings Ordinance, 1960. Proviso to sub-section 4 of Section 13 of the Ordinance envisages that a reasonable opportunity of hearing is to be given to all those persons who are likely to be affected by the order. By denying adjournment and opportunity of hearing to the petitioners, the above provision of law and the principle of natural justice was disregarded by Respondent No. 1 in the matter. He was also wrong in treating the case and disposing it of on "executive side" as the matter fell within the judicial realm inasmuch as per clause (xii) of the impugned memorandum itself as many as 125 appeals/revisions had been filed qua the scheme out of which 105 had already been decided. The right so having accrued in favour of such parties, as a result of judicial determination by the appellate/revisional forum, could not be trampled nor denuded through executive dispensation. The order thus on both these Counts, is unsustainable in law. It is declared so as of no legal effect. The result however would be that the matter will be deemed pending before the Member (Consolidation) Board of Revenue, Punjab, Lahore who would hear and decide the dame judicially by affording opportunity of hearing to all concerned who are likely to be affected by the result of the same. Let the petitioners and the respondents who are represented before this Court, cause their presence before the learned Member on 30.7.2003. Needless to reiterate that the presence of other owners in the estate will also be secured by the learned Member before passing any order in the matter."

Statedly, the above order was not assailed by any of the parties any further. As a sequel thereto, the learned Member (Consolidation) Board of Revenue has vide order dated 5.5.2004 after reconsidering the matter and hearing the parties come to the conclusion that "there was no alternative but to annul the consolidation scheme in the interest of the right holders of the revenue estate". This order has been assailed through this petition and W.P.No. 8665/04, W.P.No. 11043/2004 and W.P. No. 13069/2004, which will stand disposed of through this order.

1. The learned counsel for the parties and the learned Additional Advocate General Punjab, has been heard.

2. In assailing the impugned order, it is contended by Mr. Zafar Iqbal, Advocate, the learned counsel for the petitioners that since the mater had been agitated by aggrieved parties by means of appeals/revisions before the judicial forum, it could not be dealt with on executive side by the Board of Revenue and the order annulling the scheme is without lawful authority. According to him Muhammad Yousaf and others were not the aggrieved persons and thus had no locus standi to make any complaint before the Provincial Ombudsman nor the Board of Revenue could on such a complaint annul the scheme. It is contended that the consolidation which had become final could not be reopened after such a longtime. It is contended that the reconsolidation will disturb and upset large number of owners who have either setup industrial units or raised construction. Referring to Rule 52 of the Punjab Consolidation of Holding Rule 1998, it is contended that though power of annulment of consolidation scheme vests with the Board of Revenue, yet this Rule had no retrospective effect and thus was not applicable. Reference has been made by him to Shamir Khan vs. Member, (Consolidation) Board of Revenue, Punjab, Lahore and 8 others (PLD 1992 SC 333) and Muhammad Khan and 91 others vs. Additional Commissioner (Consolidation), Lahore Division, Lahore and 85 others (1999 MLD 1048). Mr. Muhammad Ijaz Lashari, Advocate, the learned counsel for the petitioner in W.P. No. 11043/04 while adopting contentions of Mr. Zafar Iqbal Ch. Advocate has added that reasons given by the Board of Revenue are "self confusing" and no specific ground has been given for annulment of the scheme.

The learned Additional Advocate General, makes reference to the seriatim illegalities/irregularities noted by the Member Board of Revenue which pursuaded him to annul the scheme. According to him, the power under Section 13 of the Consolidation of Holding Ordinance, 1960, is quite vast which empowers the Board of Revenue to call for record of any case which is "pending" or "disposed of". It is contended that the learned Member has on full satisfaction after considering the relevant record proceeded to annul the scheme. Mr. Ahmad Waheed Khan, Advocate has also supported the order passed by learned Member Board of Revenue and points out that about 426 schemes had been tampered and changed by the officials as has been noted by the leaned Member and that gross illegalities and irregularities committed in the consolidation of this Mauza pursuaded him to annul the scheme.

1. The respective contentions have been considered in the light of the material on the record. It may be noted at the outset that in the scheme of the Ordinance, the consolidation scheme is prepared by the Consolidation Officer under Section 10 of the Ordinance. The scheme when confirmed is open to challenge by any aggrieved person through appeal under Section 11. Then figures Section 13, the provisions whereof are important in the context of controversy, which reads as under:

Section 13.--"Power to call for and examine record. (1) The Board of Revenue may:

(a) At any time of its own motion call for the record of any proceedings under this Ordinance pending before, or disposed of by any Revenue Officer or Consolidation Officer; or

(b) On application made to it in that behalf by a person aggrieved within 90 days of the passing of an order in any proceedings under this Ordinance by any Revenue or Consolidation Officer, and after giving such person an opportunity of being heard, call for the record of such proceedings.

(2) A Commissioner or Collector may call for the record of any case under this Ordinance pending before, or disposed of by any Revenue Officer or Consolidation Officer under his control.

(3) If any case in which a Collector has called for the record under sub-section (2), he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner.

(4) The Board of Revenue may in any case called for under sub-section (1) and a Commissioner may in any case called for by him under sub-section (3), pass such order as it or he thinks fit:

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.

1. As is evident from the perusal of the above provisions, the Board of Revenue has the power to call for the record of any proceedings under the Ordinance "at any time" whether the matter is "pending" or had been "disposed of" by the Consolidation Officer and pass such order as "it thinks fit". When compared with the revisional jurisdiction as envisaged by Section 115 CPC, the difference in the scope and content becomes quite obvious. The ambit and the scope of powers under Section 13 of the Ordinance is apparently large and extensive. It is akin to the provisions of Section 164 of the West Pakistan Land Revenue Act, 1967. The power thus is not hedged by any such constraint or limitation as is being projected. The only requirement is that before passing any order, reversing or modifying the proceedings or order of the subordinate official, opportunity of hearing is to be afforded to the person concerned. This is the aim and object of sub-section (4) of the Ordinance. In Abdul Majid Khan etc. vs. Member Board of Revenue (Consolidation) etc. (NLR 1984 Revenue 247), it was observed that when irregularities and illegalities go to the very root of the matter, the Board of Revenue could justifiably direct fresh consolidation of the village. In Kala vs. Board of Revenue and another (PLD 1985 SC 208), the scope of powers of Board of Revenue qua Section 13 of the Ordinance, came to be considered before their Lordships and it was observed that;

"The power preserved under Section 13, on the other hand as the scheme of the Ordinance plainly shows, is the power of superintendence and control over the subordinate functionaries in the structure of the authorities envisaged under the Ordinance. This power appears to be vast and unbridled in its scope and amplitude, as there are no statutory limitations placed upon its reach and the manner and its exercise except the time limits on its recourse on motion of a party, and that also, in the case of Board of Revenue."

It was further observed that;

"We hold that the order of the Board of Revenue impugned in these proceedings did not suffer from lack of jurisdiction on the ground that intermediary steps of filing appeals before the lower authorities were not taken by the applicant in the revision."

In Najabat Ali vs. Bashir Ahmad and others (PLD 1987 SC 16), it was observed that "Where a consolidation scheme is found to be so offensive to the requirements of the law, appears on the face of it to be unjust and unfair, the Consolidation authorities are under a duty to reject it even though it be based on compromise or undertaking among the parties or most of them." Such is the power vested in the Board of Revenue and conceded by law, who is to supervise that the process of consolidation is undertaken in accordance with law without affecting the rights of the land owners. It may be noted that the mere filing of appeal by some of the aggrieved persons in the hierarchy would not denude the Board of Revenue of its powers vested in it under Section 13 of the Ordinance, who happens to be at the apex of that hierarchy and charged with the supervisory duty under the law. It is, however, for the Board of Revenue to consider in each case when it comes before it, the nature, amplitude and import of such illegalities and irregularities and to determine whether it appropriately attracts its jurisdiction and power of annulment of the scheme. The contention of the learned counsel for the petitioners as to the scope and extent of the power of Board of Revenue is thus untenable and cannot be countenanced.

1. Insofar as the view taken by the learned Member (Consolidation) Board of Revenue, as to annulment of scheme is concerned, suffice it to observe that large number of illegalities and irregularities having been committed in the formation of the scheme, had been noted by Mr. Sarfraz-ul-Haq Baig, Member (Consolidation) Board or Revenue Punjab at the time of passing of order dated 12.10.2002. The said order, however, was declared as of no legal effect as all the affected parties had not been heard in the matter. Now Syed Shaukat Ali Shah, Member (Consolidation) Board of Revenue Punjab has no consideration of the reports obtained from the field officials and the relevant record, also noted more than ten glaring illegalities and irregularities which impelled him to annul the scheme. It may be observed that extensive hearing was given by him to the parties and their learned counsel, who noted their respective contentions and thereafter recorded his conclusion. It has been noted that :--

"(a) State land including Auqaf Departments's land was illegally transferred without permission.

(b) That the consolidation work was done in haphazard manner without adherence to the rules and instructions and against the mode of partition.

(c) That the land of the village has been amalgamated in the land of surrounding villages.

(d) That welfare of the general public by creating various paths, roads, ihatas, chahs and graveyards was not kept in view.

(e) That some persons have been illegally benefited at the cost of others.

(f) That the Qanungo did not perform his duties in the manners prescribed by law.

(g) That even after the confirmation of scheme, 416 schemes/wandas were amended through interpolations and the then C.O. Muhammad Anwar subsequently denied having put his signatures on the register scheme.

(h) The disputed nature of the consolidation scheme is proved by the fact that only 1/4th possessions have been changed.

(i) That physical completion from Kishtwari to killa bandi was not done.

(j) That the mattled road running through the revenue estate has been shown in Shajra/Mussavi 2-K.M. away from its actual existence."

It was further noted by him that the Government land had been dished out to various persons as a result of collusion of the staff by making interpolations in the record. The view so formed by the learned Member after examining the record and hearing the parties is based on his satisfaction that there was no alternative but to annul the consolidation scheme in the interest of right holders of the revenue estate which cannot be substituted by this Court in writ jurisdiction. It may be added that report submitted by the Board of Revenue also shows that 431 illegal amendments were made after the confirmation of the scheme. Even large number of filing of appeals (125) qua the scheme would also lead to the impression and conclusion that the scheme had not been prepared in accordance with law which suffered from illegalities/irregularities and malpractices. I am thus unable to agree with the learned counsel for the petitioners that the learned Member Board of Revenue has in any way acted illegally in the matter.

In the circumstances, the learned Member (Consolidation) Board of Revenue was fully justified to annul the scheme and to direct reconsolidation in the village. Such an order does not warrant interference by this Court in writ jurisdiction. It may be observed that the time schedule was given by the learned Member for completion of the consolidation which time schedule will be adhered to with necessary modifications and the time consumed before this Court in these proceedings will be taken into account.

The petition is dismissed accordingly for the reasons stated above. No order as to costs.

(H.A.) Petition dismissed.

PLJ 2005 Lahore 1097

Present: Muhammad Muzammal Khan, J.

MUHAMMAD SHAFI and 5 others--Petitioners

versus

AMANAT ALI and 5 others--Respondents

W.P. No. 2898 of 2004, heard on 10.12.2004.

(i) Arbitration Act, 1940 (X of 1940)—

----Ss. 14, 17 & 31--Un-registered Panchayat decision--Implementation of such decision by filing of suit--Competency--Un-registered Panchayat decision/award without having backing of some decree by Court of competent jurisdiction, like an order under S. 14/17, Arbitration Act 1940, could not have been implemented by filing civil suit--Petitioner however, could have filed application under S. 14, Arbitration Act 1940--Suit for implementation of un-registered Panchayat decision/award, was thus, barred, as also showing no cause of action. [P. 1102] D

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

----O. VII, R. 11 & S. 115--Revisional jurisdiction--Extent of--Revisional Court in exercise of its revisional jurisdiction can pass any order needed in circumstances of case including rejection of plaint if the same was required on touchstone of provisions of O. VII, R. 11 C.P.C. [P. 1101] C

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

----Ss. 2(d) & 115--Order passed in revisional jurisdiction--Appeal against such order--Competency--Revisional Court having rejected plaint in terms of S. 2(d) C.P.C., such order cannot be treated as having been passed in exercise of original jurisdiction--Such order even though having force of decree cannot be challenged by way of appeal under S. 96 C.P.C.

[P. 1100 & 1101] A & B

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

----O. VII, R. 11 & S. 115--Constitution of Pakistan (1973) Art. 199--Rejection of plaint by Revisional Court in exercise of revisional jurisdiction--Revisional Court being Court of competent jurisdiction and having committed no illegality/irregularity, its decision could not be substituted in Constitutional jurisdiction of High Court. [P. 1102] E

1986 SCMR 907; PLD 1973 Lahore 495; PLD 1971 SC 516; PLD 2001 SC 518; 1995 CLC 1453; NLR 1985 Civil 325; 1985 SCMR 1925; PLD 1964 SC 97; PLD 1969 SC 65; PLD 1970 SC 506; 1994 MLD 295 and

1996 MLD 1959, ref.

Ch. Bashir Ahmad, Advocate for Petitioners.

Mr. Muhammad Zaffar Chaudhry, Advocate for Respondents.

Date of hearing : 10.12.2004.

Judgment

Instant Constitutional petition seeks revisional judgment/orders dated 14.2.2004 passed by the learned Additional District Judge Lahore, whereby revision petition of the respondents was accepted by allowing their application under order VII, Rule 11 CPC and plaint of the petitioners was rejected, to be declared illegal, void and of no legal consequence.

1. Precisely relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief with the averments that the parties had exchanged their land inter-se and on account of some subsequent dispute the matter was referred to "Panchayat" consisting of four Arbitrators who delivered their decision/award on 8.9.1990 declaring the petitioners owners of the land, subject of suit. They further averred that they have become exclusive owners of the land, by virtue of decision of the "Panchayat" dated 8.9.1990 and the respondents had no right to interfere in their possession by any means whatsoever, thus, they may be restrained through a decree for permanent injunction.

2. The respondents being defendants in the suit, contested it denying the averments in the plaint and refuted the story of arbitration mentioned therein. The respondents besides filing their written statements also moved an application under Order VII, Rule 11 CPC praying rejection of the plaint on the ground that it did not disclose any cause of action and that the suit on the basis of some award is barred by law. The learned Civil Judge, cognizant of the suit after obtaining reply to the application of the respondents, dismissed the same vide order-dated 25.9.2003.

3. The Petitioners aggrieved of the decision of their application under Order VII, Rule 11 CPC dated 25.9.2003 filed a revision petition before the learned Additional District Judge where they succeeded as their revision petition, as well as, application under Order VII, Rule 11 CPC were accepted and the plaint of the petitioners was rejected vide order dated 14.2.2004. Whereafter the petitioners filed the instant Constitutional petition with the relief noted above. The respondents in response to notice by this Court have appeared and are represented through their counsel.

4. The learned counsel for the respondents at the out set, objected to the maintainability of the Constitutional petition on the ground that the order of rejection of plaint being a decree is appealable, hence an appeal there-against should have been filed and this petition is not maintainable. The judgments in the cases of Ghulam Muhammad vs. United State Agency for International Development (U.S. AID) Mission, Islamabad and another (1986 SCMR 907) and Mst. Kaniz Fatima and 3 others vs. M.B.R. Punjab Lahore and 5 others (PLD 1973 Lahore 495), were relied in support of the objection raised.

5. The learned counsel for the petitioner submitted that the suit of the petitioners was not barred by any law and at the same time it disclosed a cause of action, thus, the plaint thereof could not have been rejected. He further submitted that the revisional Court exceeded its jurisdiction in rejecting the plaint, itself. According to him, since the plaint was not before the revisional Court, the same could not have been rejected and that, revisional Court was only to examine the legality or other-wise of the order of the trial Court and if at all, the order impugned was not justified, the matter should have been remitted back for decision in accordance with law. In support of his submissions, the learned counsel for the petitioners relied on the judgments by the Honourable Supreme Court in cases of Chaudhary Muhammad Saleem Versus Muhammad Akram and others (PLD 1971 SC 516) and Qamar ud Din Versus Muhammad Din and others (PLD 2001 SC 518). The learned counsel for the petitioners replying to the objection of the respondent's counsel regarding maintainability of the Constitutional petition urged that since revisional order was passed in excess of jurisdiction, the same could be challenged in Constitutional jurisdiction as per judgment of the Honourable Supreme Court in the case of Qamar ud Din (supra). He further argued that the order rejecting the plaint passed by the revisional Court is not appealable, as the same was not passed by the Court exercising the original jurisdiction. In support of this submission reference was made to the judgment in the case of Abdur Razzaq vs. Collector of Customs and another (1995 CLC 1453).

6. The learned counsel for the respondents replying to the arguments of the petitioners refuted those and supporting the revisional judgment order, urged that the plaint as drafted did not disclose any cause of action because the petitioners could not file the suit on the basis of decision of the "Panchayat" in form of award, as the suit was barred under the provisions of Arbitration Act, 1940.

7. I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Before analyzing the case on merits, I intend to deal with the objection of the learned counsel for the respondents that the order rejecting the plaint by the revisional Court is appealable and hence Constitutional petition there-against is not maintainable. Order rejecting the plaint under Order VII, Rule 11 CPC is a decree by fiction of law, under Clause (d) of Section 2 of Civil Procedure Code 1908. Since, the order rejecting the plaint is passed without proper adjucation of respective rights of the parties, hence, fresh suit on the basis of same cause of action has been permitted to be filed in terms of Rule 13 of Order VII of the Code obviously subject to limitation and the aggrieved person has also a right of appeal against the order. A decree is appealable under Section 96 of the Code, which lays down that an appeal shall lie from every decree passed by any Court exercising the original jurisdiction. For ready reference Section 96 is reproduced as follows:--

"96. Appeal from original decree--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex-parte.

(3) No appeal shall lie from a decree passed by the Court with consent of parties.

1. In view of the above-reproduced provision of law, the order rejecting the plaint in terms of Section 2(d) of the Code, has the force of decree and as such is appealable only if the same is passed by any Court exercising the original jurisdiction. There is no cavil about the proposition that the revision Court while discharging its jurisdiction under Section 115 CPC cannot be treated the Court exercising original jurisdiction so the orders passed by it, even though having the force of decree cannot be challenged by way of an appeal under Section 96 of the Code. My this view gets support from the Judgment in the case of Abdur Razzaq (supra) wherein the earlier view on this point from the Karachi jurisdiction in the case of Tamizun Nisa vs. Parween Fatima etc. (NLR 1985 Civil 325) and observations of the Honourable Supreme Court in the nature of obiter dicta in the case of Ghulam Hussain Versus Shahbaz Khan (1985 SCMR 1925), though having binding effect were treated as per in-curium decision. Another aspect of the matter which goes in support of the above view is that under Section 115 CPC revisional powers vested concurrently in the District Court and the High Court and a revision petition subject to the evaluation of the suit for purposes of jurisdiction is maintainable either before the High Court or the District Court now if plaint is rejected by the High Court in revisional jurisdiction, its appeal should go before the Honourable Supreme Court, subject to Constitutional requirements of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973 but all such orders are not challengeable under Article 185 of the Constitution. This all, brings me to hold that appeal against the order of rejection of the plaint by the revisional Court, is not competent, especially when, the petitioners had challenged the invocation of revisional jurisdiction by the learned Additional District Judge, hence, the petition hand was correctly maintained as per judgment in the case of Qamar ud Din (supra).

2. Now dealing with the petitioner's stance that the revisional Court could not itself reject the plaint as the same was not before it and instead it should have remitted the case to the trial Court for doing the same activity under its direction. No doubt scope of the revisional jurisdiction is controlled by certain prerequisites laid down in Section 115 of the Code and those, powers are circumscribed by the condition of excess of, failure to exercise and exercise of jurisdiction in an illegal manner but inspite of it, this jurisdiction is very vast and corresponds to the remedy of "certiorari" which, though discretionary yet can be invoked suo moto, as well and the Court can make such order in the case, as it thinks fit. Since, in the language of the Section 115 of the Code, this Court can make such order as may be needed in the circumstances of the case, hence on invocation of this jurisdiction, the entire case becomes open for scrutiny, in view of the law laid down by the Honourable Supreme Court in the case of Muhammad Swaleh and another Versus Messrs United Grain and Fodder Agencies (PLD 1964 SC 97), H.M. SAYA and Co. Karachi Versus Wazir Ali Industries Limited, Karachi and another (PLD 1969 SC 65) and Municipal Committee, Bahawalpur Versus Sh. Aziz Elahi (PLD 1970 SC 506), and by the High Court in the cases of Muhammad Salim and others vs. D.C.O. and others (1994 MLD 295) and Muhammad Zaleem and another vs. Mst. Zarina Begum and 4 others (1996 MLD 1959), thus, there is no ambiguity that during the course of exercise of revisional jurisdiction, the Court exercising it can pass any order needed in the circumstances of the case including rejection of plaint, if the same is required on the touch stone of the order VII, Rule 11 of CPC.

3. Coming to the merits of the case, in connection with rejection of plaint, the revisional Court has given exhaustive reasons in support of his order detailed that "Panchayat decision" in form of an award could not have been endorsed through a civil suit in super-session of provisions of arbitration Act 1940 and that an unregistered document, transferring title of property of the value of more than Rs. 100/-, confers no title or interest in the property in favour of the transferee. Relaince of learned counsel for the petitioners on the case of Ch. Muhammad Sharif (supra) to assert that a civil suit in view of provisions of Section 32 of the Act (ibid) was maintainable over looks the findings of the Honourable Supreme Court in case, an award had been acted upon by the parties by mutual consent then of course, any of the parties could base his suit on it but in the case in hand what to talk of panchayat decision award, and proceedings culminating to it, were denied/refuted by the respondents in their written statement as well as, in their application under Order VII, Rule 11 CPC. It goes without saying that a civil suit, without invoking the provisions of Act 1940, for making such decision/award a rule of the Court or adjudication there-over, was not maintainable even according to the ratio of the judgment in the case of Ch. Muhammad Saleem (supra). Section 31 of the Arbitration Act, 1940 clearly provided that all the questions regarding the validity, effect or existence of an award shall be decided by the Court, in which the award has been or may be filed and by no other Court. Besides it, an unregistered panchayat decision/award, without having backing of some decree by a Court of competent jurisdiction, like an order under Section 14/17 Arbitration Act, could not have been implemented by the officials working in revenue hierarchy and their direction for filing a civil suit was of no consequence as no such suit was competent. As a matter of fact, the petitioners should have filed an application under Section 14 of the Arbitration Act and the suit as it stood, was barred under law and did not disclose any cause of action.

4. For the reasons noted above, I have no hesitation to hold that the revisional Court correctly exercised its jurisdiction and aptly rejected the plaint and; without committing any illegality/irregularity, a lawful view taken by a Court of competent jurisdiction, within ambit of its framework, cannot be substituted in the Constitutional jurisdiction of this Court and consequently this petition having no merit, is dismissed with no order as to costs.

(A.A.) Petition dismissed.

PLJ 2005 Lahore 1102

Present: Ch. Ijaz Ahmad, J.

PUNJAB EMPLOYEES SOCIAL SECURITY through COMMISSIONER--Petitioner

versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO. 1,LAHORE and another--Respondents

W.P. No. 14650 of 1999, heard on 21.4.2004.

Employees Social Security Ordinance, 1965—

----S. 59--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Disablement pension--Application--Rejection by social security institution--Acceptance of appeal by Labour Court--Validity--Assumption of jurisdiction--Concealment of facts--Effect of--Petitioner did not challenge order of Punjab Labour Appellate Tribunal before any higher forum, therefore, order is final qua assumption of jurisdiction by Labour Court between parties--It is also settled principle of law that party who has not raised objection at relevant time before Court qua assumption of jurisdiction then he has no right to raise said objection after case was decided against party--Constitutional jurisdiction is discretionary in character--Since substantial justice has been done between parties, therefore, High Court is not supposed to exercise discretion in favour of petitioner--Held: Petitioner has concealed material facts that case was entrusted to Labour Court by Punjab Labour Appellate Tribunal, therefore, petition is liable to be dismissed--Petition accordingly dismissed. [Pp. 1105, 1106 & 1107] A, B, C, D & E

PLD 1987 SC 145; NLR 1993 Labour 67; PLD 1973 SC 236; 1998 SCMR 1462; PLD 1964 SC 260; PLD 1992 SC 221 and 1983 SCMR 196 ref.

Mr. Muhammad Saeed Warraich, Advocate for Petitioner.

Mr. M.A. Khadim, Advocate for Respondents.

Date of hearing: 21.4.2004.

Judgment

The brief facts out of which the present writ petition arises are that Respondent No. 2 was appointed by the Manager Shafique Industries. Subsequently, he was entrusted with the duties of Collie and thereafter he was promoted to higher grade in the year 1965. Respondent No. 2 served the department till 1985. He was secured under the Employees Social Security Ordinance, 1965 vide Registration No. SS 859528 and during his service, he developed an occupational disease of Pulmonary Tuberculosis and Rheumatic Arthritis as determined by the Medical Officer of the Institution as 100%. Consequently, he was declared unfit for future service due to the aforesaid disease. Respondent No. 2 submitted an application before the Director, Punjab Employees Social Security Institution, Lahore for grant of Disablement Pension, who rejected the plea of Respondent No. 2 on the ground that the said illness was not covered under the rules/regulations. Respondent No. 2 being aggrieved preferred an appeal before the Punjab Social Security Court, and the case was remanded back for consideration under Section 57 of the aforesaid Ordinance by the Commissioner of the Institution. The Director General of the Institution rejected the claim of Respondent No. 2 vide order dated 29.10.1996. Respondent No. 2 being aggrieved preferred an appeal before the Punjab Lahore Court No. 1. Lahore, under Section 59 of the Employees Social Security Ordinance, 1965, which was accepted vide judgment dated 17.07.1999. The petitioner being aggrieved filed this Constitutional petition.

1. The learned counsel of the petitioner submits that the Presiding Officer of the Punjab Labour Court No. 1 Lahore has proceeded to hear the appeal filed under Section 59 of the Employees Social Security Ordinance, 1965, even though he has not been notified as a Social Security Court under Section 60 of the Employees Social Security Ordinance, 1965, therefore, assumption of jurisdiction by Respondent No. 1 is without lawful authority. He further submits that claim of Respondent No. 2 was accepted by the Director General of the Institution after remand but disease of Respondent No. 2 was not covered under the rules/regulations of the petitioner, therefore Respondent No. 2 was not entitled to secure disabled man pension and gratuity. He further submits that case of Respondent No. 2 does not fall within the parameters prescribed by the Legislature in its wisdom in Sections 39, 40 and 41 of the Employees Social Security Ordinance, 1965. He further submits that impugned judgment is passed by Respondent No. 1 without application of mind.

2. Learned counsel of Respondent No. 2 submits that Respondent No. 2 preferred an appeal against order of Director General of the Institution dated 29.10.1996 before the Punjab Labour Court No. II duly designated and nominated as Social Security Court. The said Court failed to deliver the judgment despite various dates and adjournments therefore, Respondent No. 2 was constrained to file a petition before the Punjab Labour Appellate Tribunal, Lahore, under Section 38(7) of the Industrial Relations Ordinance, 1969 for transfer of the appeal from the Punjab Labour Court No. II, Lahore to any other Court of competent jurisdiction. The application of Respondent No. 2 was accepted after hearing parties/their counsel vide order dated 28.6.1999 and the case was transferred to the Presiding Officer, Punjab Labour Court No. 1, Lahore. He further submits that order dated 28.6.1999 of the Punjab Labour Appellate Tribunal was not challenged by the petitioner before any higher forum. He further submits that petitioner did not raise any objection qua hearing of the appeal by Respondent No. 1 of Respondent No. 2, therefore, petitioner has no right to agitate the matter qua assumption of jurisdiction by Respondent No. 1. He further submits that the Labour Appellate Tribunal has decided the controversy after proper appreciation of evidence and the Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunal below.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties 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) The application of Respondent No. 2 was rejected by the Director General of the Institution vide order dated 29.10.1996.

(ii) Respondent No. 2 preferred an appeal before the Punjab Labour Court No. II Lahore duly designated/nomminated as Social Security Court.

(iii) The Presiding Officer of Punjab Labour Court No. II. Lahore did not decide the case; well in time.

(iv) Respondent No. 2 submitted an application for transfer of the case from Punjab Labour Court No. II to any other Court of competent jurisdiction under Section 38(7) of the Industrial Relations Ordinance, 1969.

(v) The application of Respondent No. 2 was accepted by the Punjab Labour Appellate Tribunal vide order dated 28.6.1999, which is attached with the report and parawise comments as Annexure-R/1.

(vi) The order of the punjab Labour Appellate Tribunal was not challenged by the petitioner before any higher forum.

(vii) The petitioner did not raise any objection qua assumption of jurisdiction by Respondent No. 1.

(viii) Respondent No. 1 accepted the appeal of Respondent No. 2 vide order dated 17.7.1999.

In case the aforesaid facts are put in a juxta position that objection raised by the learned counsel of the petitioner that Respondent No. 1 has assumed the jurisdiction in violation of the provisions of the Employes Social Security Ordinance, 1965, has no force. It is admitted fact that the petitioner did not challenge the order of the Punjab Labour Appellate Tribunal dated 28.6.1999. before any higher forum, therefore, order dated 28.6.1999 is final qua the assumption of jurisdiction by Respondent No. 1, between the parties as the law did down by the Honourable Supreme Court in Pir Bakhsh represented by his Legal Heirs and others vs. The Chairman, Allotment Committee and other (PLD 1987 S.C. 145). Even otherwise the objection qua assumption of jurisdiction by Respondent No. 1, has no force as the petitioner has submitted before Respondent No. 1 and did not raise any objection of assumption of jurisdiction as mentioned above, therefore, petitioner has no lawful authority to raise objection against assumption of jurisdiction by Respondent No. 1 on the well known principle of estoppel and waiver as the law laid down by the Honourabel Supreme Court in Haji Ghulam Rasool and others vs. The Chief Adminitrator of Auqaf, West Pakistan (PLD 1971 S.C. 376). Submission to jurisdiction without objection to lack of jurisdiction in Court, would disentitle submitting party to challange the order of Court that plea grounded on a lack of jurisdiction, specially adverse order has been passed against the party on the well known principle of approbate and reprobate. It is also settled principle of law that the party, who has not raised objection at the relevant time before the Court qua the assumption of jurisdiction then he has no right to raise the said objection after the case was decided against the party as the law laid down by the superior Courts in the following judgments :--

Rice Export Corporation of Pakistan (Pvt) Limited vs. Chairman, Sindh Labour Appellate Tribunal etc. (NLR 1993 Labour 67);

Mst. Noor Jahan vs. Mst. Roshan Jahan etc. (NLR 1995 Civil 1);

Chaudhry Haq Nawaz Chohan vs. Chaudhry Tariq Azam etc. (NLR 1995 CLJ 625);

Nawab Din etc. vs. Muhammad Salim Aamer etc. (NLR 1995 U.C. 168);

The second contention of the learned counsel of the petitioner on merits has also no force as Respondent No. 1 has given finding of fact against the petitioner after proper appreciation of vidence and record and this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunal below as the law down by the Division Bench of this Court and the Honourable Supreme Court in the following judgment :--

Board of Intermediate and Secondary Education, Lahore through Chairman an another vs. M. Massadaq Naseem Sindhoo (PLD 1973 Lahore 600);

Syed Azmat Ali vs. The Chief Settlement and Rehabilitation Commissioner, Lahore etc. (PLD 1964 S.C.260);

It is settled principle of law that Constitutional jurisdiction is discretionary in character. Since the substantial justice has been done between the parties, therefore, I am not inclined to exercise my discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in the following judgments :--

Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 S.C. 236);

Rana Muhammad Arshad vs. Additional Commissioner (Revenue), Multan Division and others (1998 S C M R 1462).

It is pertinent to mention here that Respondent No. 2 preferred appeal against the following defendants before the Punjab Labour Court

No. II initially, which was transferred to Punjab Labour Court No. 1, Lahore:--

(i) Punjab Employees Social Security Institution, 3-A Gulberg V, Lahore.

(ii) The Director General, Punjab Employees Social Security Institution, (Local Office), 115/116, Rifle Range, Chauburji Park, Lahore.

(iii) The Manager, Shafique Industries (Registered), 43/N Industrial Area, Gulberg II, Lahore.

Whereas the petitioner has filed this Constitutional petition on behalf of the Punjab Employees Social Security Institution, through Commissioner, without impleading the aforesaid defendants as respondents in this Constitutional petition, therefore, Constitutional petition is liable to be dismissed as the law did down by the Honourable Supreme Court in M. Ramizul Haq and other vs. The Secretary to the Government of Pakistan, Rawalpindi and others (PLD 1992 S.C. 221). It is admitted fact that petitioner has concealed material facts from this Court that the case was entrusted to Respondent No 1 by the Punjab Labour Appellate Tribunal vide dated 28.6.1999, therefore, petition is liable to be dismissed as the law laid down in the following judgments :--

Abdur Rashid vs. Pakistan and others (1983 SCMR 196);

Principal, King Edward Medical Collage, Lahore vs. Ghulam Mustafa etc. (1969 SCMR 141).

In View of what has been discussed above, this writ petition has no merit and the same is dismissed.

(B.T.) Petition dismissed.

PLJ 2005 Lahore 1107

[Rawalpindi Bench Rawalpindi]

Present: Abdul Shakoor Paracha, J.

ALLIED BANK OF PAKISTAN LTD. through its MANAGER/ATTORNEY--Petitioner

versus

ADDITIONAL DISTRICT JUDGE ISLAMABAD and 2 others--Respondents

W.P. No. 1698 of 2004, decided on 3.12.2004.

(i) Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)—

----S. 10--Ejectment--Personal bonafide need of landlord--Evidence on record indicated that just in order to enhance monthly rent at exorbitant and unjustified rate, ejectment application was filed--Such aspect having escaped notice of Courts below resulted in misreading of contents of ejectment application and non-reading of evidence of landlord--Finding recorded by Courts below on bonafide personal need of landlord was thus, not maintainable and was reversed. [P. 1112] B

(ii) Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)—

----S. 10--Enhancement of Rent--Default in payment of enhanced rent--No notice for enhancement of rent was served upon tenant--Default in payment of rent to justify ejectment of tenant was thus not proved.

[P. 1113] C

(iii) Partnership Act, 1932 (IX of 1932)--

----S. 69--Islamabad Rent Restriction Ordinance, (IV of 2001), S. 10--Ejectment application filed by un-registered firm in the name of firm--Maintainability--Un-registered firm cannot file ejectment application against tenant. [P. 1112] A

PLD 1997 SC 564; 2000 CLC 126; 1985 CLC 2514; 1996 CLC 1205; PLD 1976 Karachi 808; PLD 1965 S.C. 459; 1982 CLC 1241; PLD 1997 SC 564 and 2000 CLC 126 ref.

Mr. Tariq Mehmood Jahangiri, Advocate for Petitioner.

Ch. Ghazanfar Ali, Advocate for Respondents.

Date of hearing : 3.12.2004.

Order

Petitioner Allied Bank of Pakistan Limited through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, impugns the judgments and decrees dated 31.7.2003 and 20.4.2004, respectively passed by the Rent Controller and Additional District Judge, Islamabad, Respondents Nos. 2 and 1 herein. Through the former order the ejectment petition filed by Respondent No. 3, Al-Hadeed Enterprises, Islamabad, against the petitioner-Bank was accepted, whereas through the latter order the appeal of the petitioner before the Additional District Judge was dismissed.

1. Brief facts of the case are that Respondent No. 3 Al-Hadeed Enterprises, Islamabad, through its seven partners, executed a lease agreement regarding Shops Nos. 10, 11, 12 and 14, measuring 1666.25 sq. ft alongwith basement measuring 979 sq.ft., on 16.12.1998, for establishment of the Branch of the Bank (Allied Bank of Pakistan Limited). The lease agreement was executed for a period of three years w.e.f. 1.12.1998 to 30.12.2001 at the rate of Rs. 31,000/- per month as rent. After the expiry of the above stated period, Respondent No. 3 initially agreed to extend the lease period with the enhanced rent at the rate of Rs. 38000/- per month but subsequently the respondent-landlord did not agree to the said enhanced rent and filed an ejectment petition on 21.9.2003 in the Court of Rent Controller against the Bank on the ground of personal use with bonafide intention and default in payment of rent by non-deposit of statutory increase of rent in violation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001.

The said petition as resisted by the petitioner by filing the written statement. The allegations leveled in the petition were denied and it was contended that the petition was hit by the provisions of Partnership Act.

1. The learned Rent Controller proceeded to frame the following issues:--

2. Whether the building is required to the petitioner for his personal use with bonafide intention? OPA

3. Whether the respondent has violated the Section 10 of the Islamabad Rent Restriction Ordinance, 2001? OPA.

4. Whether the respondent has estopped depositing rent in his account without notice? OPA

5. Whether the petitioner is entitled to get vacate the premises in dispute? OPA.

6. Whether the petitioner is estopped by his words and conduct to file this petition? OPR.

7. Whether the petition is hit by the provisions of Partnership Act, if so, its effect? OPR.

8. Relief.

9. The parties produced evidence in support of their respective contentions. Regarding violation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001, and deposit of enhanced statutory rent under Issues Nos. 2 and 3, the learned Rent Controller observed that,"......the respondent is in possession of suit premises, but he has not increased the rent in accordance with Section 10 of Islamabad Rent Restriction Ordinance, 2001. When the respondent has not vacated the suit property as per demand of the petitioner, the respondent was required to pay the increased rent after lapse of three years of tenancy which has not been done by the respondent. So it may be concluded that the respondent has violated the Section 10 of Islamabad Rent Restriction Ordinance, 2001." Finding on Issue No. 1 was also recorded in favour of the landlord-Respondent No. 3 holding that the suit property was required by the Respondents-landlords for their personal need. Under Issue No. 6 the trial Court observed that, ".......seven persons are co-owners of the suit property and further the lease agreement Ex-A/2 was also executed by all the seven persons and instant suit has been instituted by Muhammad Aslam Yaseen as attorney of all the co-owners, therefore the instant petition is not hit by Section 69 of the Partnership Act and is maintainable." Regarding default in payment of rent-Issue No. 3, the learned trial Court concluded that, "....the applicant has failed to prove this issue through cogent evidence. Further petitioner has also failed to prove default on the part of the respondent, hence this issue is decided in favour of the respondent and against the petitioner." On the basis of the findings on Issues Nos. 1, 2 and 4, the ejectment petition was accepted vide order dated 31.7.2003 and the petitioner--Bank was directed to vacate the suit premises within a period of two months. The appeal filed by the petitioner-Bank against the aforesaid judgment of the Rent Controller dated 31.7.2003 failed and the same was dismissed through the impugned judgment of the learned Additional District Judge dated 20.4.2004, hence this petition.

10. The learned counsel for the petitioner contends that the finding of the learned Rent Controller on Issue No. 1 regarding personal use with bonafide intention of the respondent landlord qua the property in dispute is result of complete misreading of evidence on the record. Further contends that the petitioner has not violated the provisions of Section 10 of the Islamabad Rent Restriction Ordinance, 2001; nothing was brought on the record to suggest that the landlord in consequence of statutory increase in rate of rent had sent any notice of such increase to tenant therefore the finding of the Courts below that the tenant had become defaulter by mere non-payment of rent according to enhanced rate was not warranted. Reliance has been placed on the cases reported as National Development Finance Corporation, Shahrah-e-Quaid -e-Azam, Lahore vs. Shaikh Naseem-ud-Din and 4 others (PLD 1997 SC 564) and Javed Iqbal vs. S.M. Khurram Wasti, Advocate (2000 CLC 126). It is further contended that the ejectment petition brought by Respondent No. 3 being an un-registered firm was hit by Section 69 of the of the Partnership Act and was not maintainable. To substantiate his argument the learned counsel has made reference to the cases reported as M. Aslam Awan vs. Ras Tariq Chaudhary (1985 CLC 2514) and Province of Sindh through Secretary, Public Works Department, Government of Sindh, Karachi and 6 others vs. M/s. Royal Contractors (1996 CLC 1205).

11. On the other hand, the learned counsel for the respondent contends that concurrent findings of facts recorded by the two competent Courts of jurisdiction on the basis of evidence cannot be interfered with by this Court in exercise of Constitutional jurisdiction. Further contends that the respondent has successfully proved the personal bonafide use therefore the finding on Issue No. 1 has been correctly recorded by the Rent Controller which has been maintained in appeal. Adds that the rent of the non-residential building stands automatically increased at the end of every three years of tenancy by 25 percent of rent; the rent was fixed at the rate of

Rs. 31,000/- per month for three years which was for the fixed period of lease but the petitioner did not vacate the suit property and further he deposited Rs. 31000/- as rent per month and did not pay or deposited the increased rent therefore the petitioner Bank has violated the Islamabad Rent Restriction Ordinance, 2001 and eviction was rightly ordered by the Court. Further contends that Section 69 of the Partnership Act pertains to the suit for dissolution of partnership by a registered or un-registered firm; section ibid has no bearing on the ejectment petition. Moreover all the partners of the firm have filed the ejectment petition therefore the same was not hit by Section 69 of the Partnership Act.

1. I have considered the arguments of the learned counsel for the parties and perused the record with their assistance. Before I advert to the question of personal bonafide need and violation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001 by non-payment of 25 percent of the enhanced rent by the petitioner-Bank to the Respondent, I would deal with the question of maintainability of the ejectment petition, filed by Respondent No. 3 Al-Hadeed Enterprises, Islamabad, an un-registered firm, against the Bank, and would see whether the petition was barred under Section 69 of the Partnership Act. Section 69 of the Partnership Act reads as under:--

"69. (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the person suing are or have been shown in the Register of Firms as partners in the firm.

(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract."

The Partnership Act, 1932 (Act No. IX of 1932) was enacted to define and amend the law relating to partnership. Provisions of Section 15 of the Partnership Act show that the assets of the firm are only to be held and used by the partners exclusively for the purposes of the business. It is to be noted that the rent case is to be filed against a tenant, who may be a living person or a juristic person. A registered firm is a juristic person which can sue and be sued. The above principle applicable to the Civil Courts can be pressed into service in rent proceedings. In the case reported as Cooperative Development Funds and Projects through its Project Manager, Karachi vs. Glimmer Textile Printing Industries, Karachi (PLD 1976 Karachi 808) while interpreting Section 69 of the Partnership Act (IX of 1932) in the case in which the tenant had claimed the right of fixation of fair rent conferred by Section 4 of the Ordinance ibid, it was held that, "Such right does not arise out of contract--Provisions of S. 69 of the Partnership Act do not apply to the proceedings before Rent Controller." By relying on the judgment of Khadim Hussain Mohy-ud-Din and another vs. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459) it was held that the Court of Rent Controller is not a Court. Further, on the mandate of Sections 2(1) and 4 of West Pakistan Urban Rent Restriction Ordinance (VI of 1959), where `tenant' has been defined, it was held that this definition extends even to body of persons acting as firm, whether registered or not. In the case reported as Messrs Construction Services (Pakistan) vs. Ali Hussain (1982 CLC 1241) it has been ruled that even an unregistered firm can be sued but cannot sue itself. This being so, I observe that the un-registered firm (Al-Hadeed Enterprises, Respondent No. 3), could have not filed the ejectment petition against the petitioner. Suffice to say that the cases of M. Aslam Awan (1985 CLC 2514) and Province of Sindh through Secretary, Public Works Department Government (1996 CLC 1205) (supra) are not attracted to the facts and circumstances of the present case.

1. Now I come to the merits of the case. Respondent No. 3 has mentioned in ground (A) of the ejectment petition that the premises is required for personal use because the plaintiff-Respondent No. 3 wanted to have his office in the disputed building, but in the evidence Muhammad Aslam, AW-1, has negated his own case, and stated that he wanted to establish hotel business in the premises. Further AW-1, one of the landlords, has admitted in his statement that if the petitioner pays the monthly rent at the rate of Rs. 1 lac per month then the landlord will extend the lease agreement. These facts clearly show that just in order to enhance the monthly rent at exorbitant and unjustified rate the ejectment petition was filed. This aspect had escaped notice of the two Courts below. The finding of the learned Rent Controller, which was maintained by the appellate Court, was result of misreading of the contents of the ejectment petition and non-reading of the evidence of AW-1 Muhammad Aslam. The said findings are not sustainable and are hereby reversed.

2. Now coming to the question of consequence of statutory increase in the rate of rent and non-payment as envisaged in Section 10 of the Islamabad Rent Restriction Ordinance, 2001, it is observed that it was held by the two Courts below that the petitioner had committed the default by non-depositing the monthly rent at the enhanced rate. Section 10 of the Ordinance ibid is identical and pari materia to the provisions of Section 5-A (as added by the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990). While interpreting the provisions of Section 5-A of the Ordinance ibid the Hon'ble Supreme Court in the case reported as National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore vs. Shaikh Naseem-ud-Din and 4 others (PLD 1997 SC 564) has ruled that:--

"Word `default' would denote something more than mere non-payment of rent--Nothing was brought on record to suggest that landlord in consequence of statutory increase in rate of rent sent any notice of such increase to tenant--Findings of High Court that tenant had become defaulter by mere non-payment of rent according to enhanced rated, was not warranted--Default in payment of rent to justify rejectment of tenant was not proved in circumstances."

The above ruling was followed by this Court in the case of Javed Iqbal (2000 CLC 126), supra, and it was held that:

"Though 25% enhanced rent in terms of S. 5-A of West Pakistan Urban Rent Restriction Ordinance, 1959, would become automatically due, but for seeking ejectment of tenant on that ground on plea of non-payment of 25% enhanced amount of rent, landlord had to allege that tenant was served with a noticed and that despite noticed tenant had failed to increase rent--In absence of any notice, willful default could not be assumed--Mere non-payment of statutory increase of 25% rent without notice, could not per se result in increase of willful default."

It is an admitted position on the record that the landlord had not alleged that the tenant had been served with a notice and despite that the tenant failed to pay the increased rent. No notice has been placed on the record. This being so, the finding of the learned Rent Controller on Issue

No. 2 is result of mis-interpretation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001, the same is, therefore, not sustainable. Issue No. 3 regarding default has been decided in favour of the petitioner and against which no cross-objection was filed by the landlord, Respondent

No. 3.

For what has been discussed above, this writ petition is allowed. The judgments dated 20.4.2004 and 31.7.2003 passed by Additional District Judge and Rent Controller, Respondents Nos. 1 and 2, are set aside. Consequently, the ejectment petition filed by Respondent No. 3 against the petitioner-Bank is dismissed. Parties to bear their own costs.

(A.A.) Petition accepted.

PLJ 2005 Lahore 1113

Present: Sayed Zahid Hussain, J.

Mst. KHISWAR SULTANA and another--Petitioners

versus

PROVINCE OF PUNJAB through DISTRICT OFFICER REVENUE/NOTIFIED and 3 others--Respondents

W.P. No. 42-R of 2004, heard on 27.5.2004.

Land Acquisition Act, 1894 (I of 1894)—

----S. 48--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Acquisition of land--Not utilized for purpose it was acquired but utilized for another purpose--Challenge to--Land was liable to be reverted if it was not required for purpose it was acquired--Question of--Held: S. 48 was not attracted in such case as it was subject to condition that possession of land has not been taken--Once a land had vested in Provincial Government it can make use of land for any public purpose--Housing Scheme cannot be constructed by any standard that such would not be a "public purpose"--Petition dismissed.

[Pp. 1116, 1117 & 1118] A, B, C, D & F

1996 MLD 731 rel.

Land Acquisition Act, 1894 (I of 1894)--

----S. 48--Constitution of Pakistan, 1973, Art. 199--Acquisition of land for bridge purpose--Bridge not constructed--Proposal of de-notification of land--Later on utilized for Housing Scheme--Challenge to--Held: Mere possibility of land becoming available if denotified, would not make petitioner an aggrieved person--A proposal does not furnish petitioner with a locus standi to file such a petition for assailing governmental action of utilizing land for public purpose--Petition dismissed. [P. 1118] E

PLD 19971 SC 252 ref.

Mr. Jahanzeb Khan Bharwana, Advocate for Petitioner.

Mr. Fazal Miran Chohan, AAG for Respondents.

Date of hearing: 27.5.2004.

Judgment

On 25.2.2004 Government of the Punjab, Colonies Department Conveyed to the District Officer (Revenue), Sheikhupura the approval of the Chief Minister Punjab regarding "transfer of state land measuring 188 Kanals and 8 Marlas, free of cost (owned by Provincial Government under the possession of C & W Department), situated in Mauza Wandala Dial Shah, Tehsil Ferozewala, District Sheikupura in favour of HUD & PHE Department, Government of the Punjab for construction of Punjab Government Servants Housing Scheme." It was subject to the conditions mentioned therein. This action has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as being malafide, illegal and ultra vires the provisions of law.

1. It is contended by the learned counsel that the land had been acquired from an evacuee owner in the year 1944 for the construction of a bridge and since the land was not utilized for that purpose, it cannot be put to any other use by the Government. It is contended that the purpose of acquisition could not be deviated from by the Government and the land was liable to be reverted if it was not required for the purpose it was acquired. It is contended that there was indeed a proposal for de-notification of the land for its vesting in the Central Government and the matter was under consideration with the Committee to de-notify the land. According to the learned counsel the unsatisfied claim of the petitioners was since pending, they would have sought allotment of the land as and when it was de-notified. He has cited Muhammad Iqbal and another vs. Member, Board of Revenue (Colonies), Punjab, Lahore and 2 others (PLD 1978 Lahore 372), Nazir Ahmad and 8 others vs. Commissioner, Lahore Division, Lahore and 3 others (2000 MLD 322), Sahib Dad Khan vs. The Commissioner, Rawalpindi Division and others (1969 SCMR 317), Federation of Pakistan vs. Province of Punjab, etc. (NLR 1993 SCJ 635), Allah Ditta and others vs. Province of Punjab (PLD 1997 Lahore 499) and Divisional Engineer (Dev) N-II T&T, Gujranwala and 3 others vs. Rana Muahammad Sharif (2002 CLC 985) to support his contentions.

2. Th learned Additional Advocate General Punjab on the other hand has vehemently opposed the maintainability of the petition and contends that since the land was never de-notified, the petitioners had no locus standi to maintain this petition. It is contended that the acquisition had been completed since long for which compensation even had been paid and the land had remained in possession of the Provincial Government ever-since. According to him mere proposal for de-notification was of no effect unless it had been so done. It is contended that the fact of the matter is that the land still vested in the Provincial Government and petitioners could not lay any claim to the same. He has relied upon a Division Bench Judgement is Syed Zainuddin and 9 others vs. Assistant Commissioner-Cum-Collector, Quetta and 2 others (1996 MLD 731) to contend that once the land had been acquired for public purpose and vested in the Government it could be utilized for any public purpose, it was considered necessary by the Government. The respective contentions have been considered in the light of the material on the record.

3. Admittedly the land was acquired by the Provincial Government in the year 1994 from the erstwhile owner (evacuee). On fulfillment of procedural steps, payment of compensation, taking over of possession, the acquisition was complete in all respects. It vested in the Provincial Government free of encumbrances in view of Section 16 of the Land Acquisition Act, 1894. In quite a recent judgment Messrs Dewan Salman Fiber Ltd. and others vs. Government of N.W.F.P., through Secretary, Revenue Department Peshawar and others (PLD 2004 S.C. 441) Section 48 of the Land Acquisition Act, 1894 came to be considered by the Hon'ble Supreme Court of Pakistan. In that case on acquisition of land by the Government of N.W.F.P for Sarhad Development Authority, the land in dispute was allotted to the industrial Units for a period of 99 years. The Provincial Government, however, proceeding on the assumption that the same was not put to the use for which it was acquired and cancelled the allotment made in favour of the appellants, which action was assailed by the appellants before the High Court being violative of Section 48 of the land Acquisition Act, 1894. Their writ petition was dismissed by a learned Division Bench of the Peshawar High Court. On appeal, it was held by the Hon'ble Supreme Court of Pakistan that the power to withdraw from acquisition envisaged by Section 48 of the Act, was not absolute and was "subject to the condition that possession of the land has not been taken. It is significant to note that in these cases the possession of the land was taken by the government and thereafter it was transferred to the appellants." It was thus, held that Section 48 was not attracted to such a case. Allowing the appeals the order of the Provincial Government was struck down. In Syed Zainuddin and 9 others (supra), the learned Division bench of the High Court, took the view that power under Section 48 could be exercised by the Government to withdraw from acquisition "when the possession is yet to be taken" and in case the possession had been taken by the government it was not at liberty to withdraw from the acquisition. It was observed that "The land having once vested in the Government, the Government cannot divest itself of it by withdrawing from the acquisition, which is already complete except for payment of compensation. Thus, there remains no obscurity as to the power of the Government qua acquisition, withdrawal thereof and vesting of the land.

4. Insofar as the contention of the learned counsel that the purpose for which the acquisition was made has remained unfulfilled, therefore, the land could not be put to any other use, suffice it to observe that once the land had vested in the Provincial government it can make use of the land for any "public purpose" considered appropriate and best for its utility. In Zainuddin case (Supra) it was observed that

"The concept of public purpose is quite exhaustive and cannot be confined to a limited definition. "The expression, however, has been interpreted to include a purpose, i.e. an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly concerned. It is not necessary that the land should be made available to the public at large. All that is necessary is that it should serve that general interest of the community. The inclusive definition of public purpose in Section 3 (f), Land Acquisition Act, not being compendious is not useful in ascertaining the ambit of that expression. Broadly speaking, the expression, `public purpose' would, however, include a purpose in which the general interest of the community, as opposed to the particular interest of the individuals, is directly and vitally concerned. Public purpose is bound to vary with the times and the prevailing conditions in a given locality and, therefore, it would not be practical proposition even to attempt a comprehensive definition of it PLD 1984 Karachi 56. It is because of this that the Legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose." (Somavanti vs. State of Punjab. AIR 1963 SC 151 + See The Land Acquisition Act of 1894 by Sardar Muhammad Iqbal Mokal.

In our view anything which is useful, beneficial, and advantageous for the public or in its interest in the sense of conferring some public benefit can be termed as public purpose. Once the land is acquired for public purpose after completion of all the formalities and its title is transferred to Government, the land can be utilized for any public purpose and it is not necessary that it must be used for specific purpose for which it was so acquired as it would not cause any prejudice to the previous owners, who have already been compensated. The public purpose is not a static one and is subject to vary with the times, and therefore, the legislature has left it to the discretion of Government to determine that as to what is a public purpose, initiate and complete acquisition process of a given land for a public purpose. Reference in its regard can be made to AIR 1963 SC 151 + AIR 1963 SC 1890 + AIR 1919 PC 155 (PLD 1984 Quetta 24). Any alteration in the public purpose does not vitiate the entire proceedings initiated under the Act. "All that the Act requires is that the land should be required for a public purpose."

In Allah Ditta and others vs. Province of Punjab (PLD 1997 Lahore 499) also it was held that "public purpose" will have to be a purpose which is in furtherance of the general interest of the community at large as opposed to the particular interest of an individual. As is evident from the impugned order in the instant petition, the land is proposed to be utilized for construction of Punjab Government Servants Housing Scheme, which will cater for the need of the Government servants to accommodate them and providing them shelter. It cannot be considered as beneficial to any individual only. It cannot be construed by any standard that such would not be a "public purpose".

1. I find also force and substance in the contention of the learned Additional Advocate General Punjab that the petitioners lack locus standi in maintaining the petition inasmuch as that the mere proposal floated at sometime to de-notify the acquisition of the land, which never matured and has remained as a proposal does not furnish them with a locus standi to file such a petition for assailing governmental action of utilizing the land for the purpose mentioned above. Suffice it to observe that till date the land has vested in the Provincial Government pursuant to a lawful acquisition to which the petitioners cannot object nor can have legitimate grievance about the same. It may be noted that mere filing of an application or claim for the transfer/allotment of a particular property does not confer a vested right in such property. In Mian Rafi-ud-Din and 6 others vs. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 S.C. 252) it was held that transfer of a particular property in the compensation pool was not a vested right of a claimant and that by making some application for the transfer he does not acquire any indefeasible right therein. As has been noticed in the present case, the property was not even in the compensation pool, which had been acquired much before partition under the prevailing Acquisition Law and has remained vested in the Provincial Government. Mere possibility that it will revert to the compensation pool does not entitle the petitioners to assail the impugned order by means of a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Such a remote and farfetched possibility of land becoming available if denotified, would not make the petitioners an aggrieved person to maintain such a petition. The precedents cited by the learned counsel for the petitioners in the peculiar context of this case are of no use and assistance to the cause of the petitioners.

As a result of the above, the petition being without merit is dismissed accordingly, No order as to costs.

(F.M.) Petition dismissed.

PLJ 2005 Lahore 1118

Present: Muhammad Muzammal Khan, J.

Sh. MUHAMMAD SHAFI and 2 others--Petitioners

versus

SH. ALA-UD-DIN and others--Respondents

C.R. No. 841 of 2000, heard on 19.11.2004.

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

----S. 115--Revisional jurisdiction, exercise of--Impugned judgments were not shown to be either arbitrary or fanciful and fulfill all requirements of doing justice in accordance with law--Courts below had properly appraised evidence on record and their judgments were not tainted with any illegality/irregularity, therefore, the same were not open to interference in revisional jurisdiction. [P. 1125] D

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

----Arts. 76 & 100--Document claimed to be 30 years old--Mode of proof--Proof of document by secondary evidence--Essentials--Documents referred to in Art. 100 of Qanun-e-Shahadat are those document, execution of which was not specifically denied by executant and of those, which in normal course of events under relevant provisions of law, would have created lawful title--Document in question by relying on Art. 100 of Qanun-e-Shahadat Order, 1984, could not be deemed to have been proved when execution of the same was denied by executant--Such document having not been proved in terms of Art. 76 of Qanun-e-Shahadat 1984, would create no title in favour of person claiming to be beneficiary thereof. [P. 1124] A

(iii) Registration Act, 1908 (IX of 1908)--

----S. 17--Transfer of Property Act (IV of 1882), S. 54--Property situated within Municipal limits--Mode for transfer--Property in question, being situated within Municipal limits, could only be transferred through registered document and not otherwise, in terms of Registration Act, 1908. [P. 1124] B

(iv) Transfer of Property Act, 1882 (IV of 1882)--

----S. 53-A--Registration Act (IX of 1908), S. 17--Transfer of Urban immovable property in lieu of dower through agreement to sell--Such transfer could not be effected through agreement in question, unless the same was registered in terms of S. 17 of Registration Act, 1908.

[P. 1125] C

PLD 1994 SC 291; 1994 SCMR 818; 1996 SCMR 575; 1997 SCMR 1139; PLD 2000 SC 839; PLD 1966 Lahore 953; 1985 CLC 7; 1986 MLD 2049; 1989 SCMR 949; PLD 1990 SC 642; 1992 SCMR 1832; PLD 1996 SC 256 and

1998 SCMR 1354, ref.

Mr. S. M. Masud, Advocate for Petitioners.

Mr. Ahmad Waheed Khan, Advocate for Respondents.

Date of hearing : 19.11.2004.

Judgment

This judgment proposes to decide two civil revisions, one in hand and the other C.R. No. 905/2000, arising out of consolidated judgments and decrees dated 9.5.1996 and 27.3.2000 passed by the learned Civil Judge and learned Additional District Judge, Lahore, wherein alike questions of law and facts are involved and both of those require similar determination against same set of respondents.

1. Precisely, relevant facts are that Sh. Alauddin etc. Respondents Nos. 1 to 6 filed a suit for declaration to the effect that their predecessor-in-interest Mst. Zubaida Khatoon purchased Property No. SX-VI-23-5-20, 44-Main Samanabad, Lahore from Syed Muhammad Shah the owner in the year 1967 through a registered slae-deed. Where-under she become exclusive owner of the property. Syed Muhammad Shah above referred, remained in possession of the property as tenant under Mst. Zubaida Khatoon, in whose favour he had also executed a rent note. Respondents Nos. 1 to 6 challenged in their suit sale by Mst. Naseem Fatima in favour of the revision petitioners i.e. Sh. Muhammad Shafi etc. claiming herself to be owner on the basis of an agreement whereby she claimed that her husband Syed Muhammad Shah had transferred the property in her favour in lieu of dower of Rs. 32,000/- and she had obtained an ex parte decree dated 1.7.1972 against her husband Syed Muhammad Shah. Respondents Nos. 1 to 6 pleaded that Mst. Naseem Fatima was residing in the property in dispute as a family member of Syed Muhammad Shah and had no independent right, title or interest therein, but she manoeuvred the agreement dated 30.6.1960 which in itself did not create any title in her and the ex-parte decree on the basis thereof having already been set aside, transferees from her could not claim ownership in their property on the basis of both these transactions i.e. the agreement and the ex-parte decree.

2. Mst. Naseem Fatima, who had obtained ex-parte decree on a declaratory suit against Syed Muhammad Shah on the basis of agreement to sell dated 30.6.1960, whereby he allegedly agreed to transfer the suit property in her favour in lieu of the claimed outstanding dower of

Rs. 32,000/- and had transferred property in favour of petitioners Sh. Muhammad Shafi etc. through a registered sale-deed dated 25.8.1986, challenged the orders setting aside the ex parte decree and rejection of her plaint through Civil Revision No. 905/2000.

1. Syed Muhammad Shah, who was defendant in the declaratory suit of Mst. Naseem Fatima, absented himself after filing written statement, in which he had denied execution of the agreement, relied in the suit and had pleaded that the dower amount was only Rs. 32/- and not Rs. 32,000/-. Subsequent increase of dower amount was also denied by him and agreement dated 30.6.1960 was claimed to be forged. It was also averred that sale by Mst. Naseem Fatima in favour of Sh. Muhammad Shafi etc. petitioners for an amount of Rs. 300,000/- was unauthorized and was also violative of injunctive order issued by the Civil Court on 15.10.1973. Since Syed Muhammad Shah after filing written statement, had absented himself and the suit was decreed ex parte, his application for setting aside the ex parte decree was accepted and the decree was set aside on 5.1.1973, whereafter an application under Order VII, Rule 11, CPC was moved, which was allowed and the plaint was rejected on 17.7.2002. This order was maintained in appeal. She also has come up in Civil Revision No. 905/2000 against the above referred concurrent judgments and decrees, impugned in this civil revision.

2. The suit filed by Respondents Nos. 1 to 6 was contested by the petitioners Sh. Muhammad Shafi etc. whereas Mst. Naseem Fatima was proceeded against ex parte vide dated 30.11.1991 after publication of proclamation in newspaper against her. Sh. Muhammad Shafi etc. petitioners averred in their written statement that the suit is barred by limitation and the same is not maintainable as Respondents Nos. 1 to 6 were out of possession of the property. On merits, a lawful transfer in favour of Mst. Naseem Fatima by the owner Syed Muhammad Shah was asserted and sale by the transferee was said to be genuine. They also claimed to have stepped into the shoes of Mst. Naseem Fatima, who was, according to them, in possession of property with adverse interest to Respondents Nos. 1 to 6 with uninterrupted title for more than 12 years. They claimed adverse possession and denied possession of Mst. Naseem Fatima as licensee of owner Syed Muhammad Shah. In view of controversial pleadings of the parties in the suit by Respondents Nos. 1 to 6, as many as 16 issues were framed and parties were put to trial. After recording of evidence, the learned trial Judge, seized of the suit, decreed the same vide his judgment and decree dated 9.5.1996.

3. From the above resume of facts, Syed Muhammad Shah the owner also filed a suit against Mst. Zubaida Khatoon averring that the deed executed by him in her favour was in fact a mortgage deed and not sale-deed. Mst. Zubaida Khatoon predecessor-in-interest of the Respondents Nos. 1 to 6 also initiated ejectment proceedings by filing an ejectment petition against Syed Muhammad Shah on the basis of rent note executed by him at the time of execution of the sale-deed in her favour, above noted, which was originally dismissed by the learned Rent Controller, but was allowed by the learned Additional District Judge in appeal by Mst. Zubaida Khatoon. The appellate order of ejectment was affirmed by this Court while dismissing SAO No. 49/1979 vide judgment dated 6.12.1979 with the observation that ejectment order shall be executed after recall/vacation of injunctive order obtained by Syed Muhammad Shah in his suit, which was subsequently dismissed as withdrawn and the injunctive order therein came to an end. Ejectment order became final after withdrawal of C.P. 70/1980 from the Honourable Supreme Court on 2.8.1983. Mst. Zubaida Khatoon predecessor-in-interest of Respondents Nos. 1 to 6 filed an execution petition seeking eviction of Syed Muhammad Shah, after dismissal of his suit. Petitioners Sh. Muhammad Shafi etc. filed an objection petition claiming ownership to the property on the basis of sale-deed dated 25.8.1986 executed by Mst. Naseem Fatima. Pending these proceedings Mst. Zubaida Khatoon died and Respondents Nos. 1 to 6 were substituted in her place. The objection petition of Sh. Muhammad Shafi etc. was dismissed by the executing Court on 8.3.1986, but the order was set aside on appeal by the learned Additional District Judge on 27.3.1995. Respondents Nos. 1 to 6 filed a civil revision before this Court, but withdrew the same and thereafter filed Writ Petition No. 6489/1995, which was accepted vide judgment dated 26.6.1996 annulling the appellate order. Judgement of this Court was affirmed by the Honourable Supreme Court vide judgment dated 24.8.1998 in CPLA No. 1609-L/1996. Sh. Muhammad Shafi etc. petitioners aggrieved of the order of the Honourable Supreme Court dated 24.8.1998, filed a review petition (CRP. 45-L/1998), which too was dismissed on 26.11.1998 with the observations that genuineness and execution of agreement dated 30.6.1960 being thirty years old shall be decided by the appellate Court in the case in hand, on its own merits without being influenced by any observation by the Honourable Supreme Court in the judgment dated 24.8.1998.

4. Learned counsel for the petitioners in both the revision petitions addressed similar arguments because their interest was joint. Before taking note of the arguments of the petitioners it will not be out of place to mention here that Mst. Naseem Fatima claimed her ownership on the basis of agreement dated 30.6.1960 allegedly executed by Syed Muhammad Shah the owner and the other revision petitioners claimed transfer of title of property from Mst. Naseem Fatima vide registered sale-deed dated 25.8.1986. According to the learned counsel for the petitioners, after transfer of property in favour of Mst. Naseem Fatima, the owner Syed Muhammad Shah was left with no title to transfer it in favour of Respondents Nos. 1 to 6, thus suit by them was not maintainable. They further argued that sale by Syed Muhammad Shah in favour of Respondents Nos. 1 to 6 was not proved on the file, hence they had no locus standi to file the suit or to defend the revision petitions. They further elaborated their arguments by referring to the two judgments of the Honourable Supreme Court delivered inter-parties in CPC No. 1609-L/1996 and CRP No. 45-L/1998 to contend that both the Courts below were bound to act on agreement dated 30.6.1960 being thirty years old under the provisions of Article 100 of the Qanun-e-Shahadat Order, 1984. According to them, permission to lead secondary evidence in proof of the said agreement was allowed by the executing Court on objection petition of Sh. Muhammad Shafi vide order dated 3.12.1992 and this order under law would ensure for their benefit even in this suit. Learned counsel for the petitioners heavily relief on an interim order passed by the executing Court on 18.7.1995, wherein it was noted that Respondents Nos. 1 to 6 accepted costs of Rs. 150/- for permission to lead secondary evidence in proof of the agreement relied by them. Learned counsel emphasized that Photostat copy of the agreement produced in secondary evidence was enough proof of its execution and no further evidence for this purpose was needed, especially when the original record was lost carrying the original agreement and the same could not be produced/summoned. They referred to list of documents provided by them under Order XIII, Rule 1 CPC, wherein it was detailed that the original agreement was produced before the Court. Challenging the order dated 5.1.1973 in the suit by Mst. Naseem Fatima whereby ex parte decree was set aside, her learned counsel argued that in the first instance, the ex parte decree was incorrectly set aside as the defendant therein after filing of his written statement absented himself without any sufficient cause and that acceptance of application under Order VII, Rule 11 CPC was unjustified because her plaint did disclose a cause of action, hence the same could not have been rejected. Justifying transfer in favour of Mst. Naseem Fatima her counsel emphasized that marriage between the spouses was solemnized in the year 1952 against a deferred dower of Rs. 32,000/- and on her demand of dower, her husband Syed Muhammad Shah the owner of the property executed the agreement dated 30.6.1960, copy of which was produced in evidence as Exh. D.4 by way of secondary evidence under the orders of the Court, hence in presence of this proof suit of Respondents Nos. 1 to 6 could not have been decreed.

5. Learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners in both the revision petitions, supported the concurrent judgments and decrees of the two Courts below and urged that neither any permission for producing additional evidence was granted to the petitioners in this case and the order passed in execution proceedings was of no help to them nor they produced any evidence even by way of secondary evidence to prove the execution of agreement dated 30.6.1960, which was specifically denied by its executant, thus ownership of Mst. Naseem Fatima was not proved. Learned counsel for the respondents assertively argued that petitioners earlier lost their case in two rounds of litigation up to the level of Honourable Supreme Court, one in ejectment proceedings and the other on objection petition by them, thus they had nothing with them to resist the suit of the respondents, especially without proof in support of their stance. Learned counsel for the respondents further elaborated his arguments by arguing that concurrent findings of facts recorded by the two Courts below after due appraisal of evidence could not be demonstrated to have been returned out of misreading of the record, thus those are immune from interference by the revisional Court.

6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, Syed Muhammad Shah was owner of the property in question and he himself by filing suit that sale in favour of predecessor of Respondents Nos. 1 to 6 i.e. Mst. Zubaida Khatoon was not a sale but was a mortgage, admitted transfer in their favour as he subsequently withdrew his suit. Since this fact could not be refuted by any of the parties, there was no need of any further proof that property in dispute was sold by Syed Muhammad Shah in favour of Mst. Zubaida Khatoon through a registered sale-deed dated 24.9.1967 (Exh. P.1). Besides it, contest of the petitioners in all the three rounds of litigation is that after transfer of property by Syed Muhammad Shah in favour of Mst. Naseem Fatima through agreement dated 30.6.1960, he was left with no title to transfer it, in favour of Respondents Nos. 1 to 6. This stance was specifically denied by Syed Muhammad Shah in his written statement filed in the suit of Mst. Naseem Fatima and after this denial, onus to prove it heavily shifted on the shoulders of the petitioners, who were beneficiaries of this transaction, as per law laid down by the Honourable Supreme Court in the cases of Janat Bibi vs. Sikandar Ali and others (PLD 1990 SC 642), Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Sana Ullah and another vs. Muhammad Manzoor and another (PLD 1966 SC 256), Muhammad vs. Mst. Rehmon through Mst. Sharifan Bibi (1998 SCMR 1354) and Mst. Rasheeda Begum and 3 others vs. Muhammad Yousaf and others (PLJ 2002 SC 706). Entire case of the petitioners rested on Exh. D.4 a Photocopy of the agreement dated 30.6.1960 which, according to them, was produced by way of secondary evidence. The document relied by the petitioners, under law, was to be proved by producing original document which was said to be lost on account of loss of original file of suit by Mst. Naseem Fatima and since the record was reconstructed in the year 1999, the original could not be produced. Let us assume that the original agreement dated 30.6.1960 has lost where-after the law has taken care of the situation through provisions of Article 76 of Qanun-e-Shahadat Order, 1984. Before considering these provisions, we have to consider stance of the petitioners that this document be presumed to have been executed being 30 years old under Article 100 of the Qanun-e-Shahadat Order, 1984. The documents referred in the provision of law under discussion, are those documents execution of which is not specifically denied by the executant and of those, which in the normal course of events under the relevant provisions of law, would have created a lawful title. Since the execution of the agreement by simply relying on Article 100 of the Order (ibid) cannot be said to have been proved especially when it was denied by the executant. Article 76 of Order 1984 requires proof of documents through secondary evidence regarding its existence, conditions and contents of the original document, which were not proved by the petitioners by producing its scribe, marginal witnesses or the persons acquainted with handwriting/signatures of the executant. Though no application for permission to lead any secondary evidence in this case was moved or allowed by the trial Court, hence petitioners could not rely on the order dated 3.12.1992 in this behalf by the executing Court on their objection petition, yet in absence of any proof even by way of secondary evidence, it cannot be held that Mst. Naseem Fatima became owner on the basis of an unproved agreement and that the petitioners were transferred the property in question, with lawful title. They also did not prove that marriage between the spouses, which was solemnized in the year 1952 was performed for a deferred dower of Rs. 32,000/-. The file is absolutely thirty of the proof that the so called deferred dower was claimed by Mst. Naseem Fatima in the year 1960. Had the property been transferred at the time of marriage i.e. in the year 1952, then it may have been claimed that the transfer was in lieu of dower transferring the title thereof, but this transfer was asserted much later through a document in form of an agreement, the same could not be alienated through a simple agreement as the same was situated within the municipal limits of Lahore i.e. in Samanabad. Urban properties within municipal limits could only be transferred through a registered document and not otherwise, in terms of Registration Act. The ex-parte declaratory decree on the basis of this agreement to sell was set aside on 5.1.1973 much before the sale-deed executed by Mst. Naseem Fatima decree holder. In this manner, as well, she was not competent to execute any sale-deed on the basis of mere an agreement which did not create any right, title or interest in the property, as held by the superior Courts of the country in number of cases, like M. Ghulam Muhammad vs. Custodian of Evacuee Property, Lahore and others (PLD 1966 Lahore 953), Sh. Nazir Ahmad vs. Haji Ghulam Hussain and others (1985 CLC 7), Capt. Dr. Abdul Wahab vs. Province of Punjab and another (1986 MLD 2049) and Sh. Manzoor Ahmad and others vs. Mst. Iqbal Begum and others (1989 SCMR 949).

7. Petitioners, after loosing twice up to the level of Honourable Supreme Court, had nothing with them to resist the claim of Respondents Nos. 1 to 6. Mst. Naseem Fatima failed to prove her title as held in the foregoing paragraphs, to the property transferred in favour of the respondents, as ex-parte decree in her favour was rightly set aside by the Court concerned by detailing lawful reasons and her plaint for mere declaration that she was owner, was correctly rejected as the same did not disclose any cause of action being based on mere an agreement to sell and was not maintainable. Transfer of urban property within municipal limits, in lieu of dower which was not outstanding against her husband, was not permissible, thus both the Courts below correctly returned the findings that she had no title to transfer the property in favour of Sh. Muhammad Shafi etc. the revision petitioners. I have no ambiguity in my mind that after two judgments by this Court and by the Honourable Supreme Court, judgments impugned were absolutely justified being in consonance with the record. Similarly, no legal defect could be pointed out in the view expressed by the appellate Court on two applications filed before it, one for additional evidence and the other for amendment of memo of appeal. Petitioners failed to demonstrate as to why the documents sought to be produced by way of additional evidence were not produced at the time of trial of the suit, where they consumed considerable time for conclusion of their evidence, during which this record was available with them for production. They have also not explained any reason as to how this record is necessary for a just/fair decision of the case especially in presence of the facts above produced. Objection petition of Sh. Muhammad Shafi petitioner was adjudicated upon, like a suit where he led his entire evidence but lost his case up to the highest level. Likewise, prayer for amendment of memo of appeal for inclusion of prayer of remand of case had no sense in it because the appellate Court was otherwise equipped with power to remand the case even in absence of any specific prayer in the memo of appeal. The judgments impugned, in all respects, are not arbitrary or fanciful and fulfill all the requirements of doing justice on the basis of canons known in this behalf.

8. For the reasons noted above, both the Courts below properly appraised the evidence on the file and their judgments are not tainted with any illegality/irregularity, thus those are not open to interference in revisional jurisdiction as held by the Honourable Supreme Court in the cases of Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291), Mst. Shumal Begum vs. Mst. Gulzar Begum and 3 others (1994 SCMR 818), Sirbaland vs. Allah Loke and others (1996 SCMR 575), Abdul Hakeem vs. Habibullah and 11 others (1997 SCMR 1139) and Mst. Ameer Begum vs. Muhammad Naeem Khan and another (PLD 2000 SC 839). Both the revision petitions have no merit in those and consequently are dismissed with costs.

(A.A.) Revision dismissed.

PLJ 2005 Lahore 1126

Present: Syed Jamshed Ali, J.

Syed AMJAD ALI SHAH--Petitioner

versus

FEDERATION OF PAKISTAN through MINISTER FOR INFORMATION AND BROADCASTING, ISLAMABAD and 5 others--Respondents

W.P. No. 4722 of 1998, heard on 2.6.2004.

(i) Constitution of Pakistan, (1973)—

----Art. 212--Pakistan Television Service Rules, Rr. 6.02 & 6.03--Program producer--Post of--Appointment without proper procedure--Challenge to--Violative of Art. 25 of Constitution--Question of--Held: P.T.V. Rules 6.02 and 6.03 do not permit making of any appointment including a contract appointment in secrecy without providing opportunity to complete for post to other eligible employees of P.T.V. Denial of equal opportunity in matter of public employment violates Art. 25, therefore, cannot be countenanced--Appointment was without lawful authority, hence will be deemed vacant--Prescribed procedure would be followed to fill in vacancy--Petition allowed.

[P. 1128 & 1129] A & D

1996 SCMR 1349 ref.

(ii) P.T.V. Rules--

----Rr. 6.02 & 6.03--Constitution of Pakistan, 1973, Art. 212--Post of program producer--Application for--Selection process not finalized--Later on appointment of respondent without lawful authority--Challenge to--Whether petition was barred under Art. 212, of Constitution--Question of--Held: Petitioner was only a candidate for said post--He is not enforcing terms and conditions of his service. Therefore, bar of Art. 212 is not applicable--Petition allowed. [P. 1128] B

PLD 1997 SC 382 ref.

(iii) Service Matter--

----P.T.V. made an appointment of Program Producer without adopting prescribed procedure--Matter of--That since appointment has not been made on regular basis it was not necessary to adhere proper procedure--Reason of--Challenge to--Held: No doubt P.T.V. is a commercial organization but not free to make contract appointments in dis-regard of their own rules--Petition allowed. [P. 1129] C

Mr. Faisal Zaman & Mr. Aleem Baig Chughtai, Advocates for Petitioners.

Mr. Naveed Ashiq Alvi, Advocate for Respondents Nos. 2 to 5.

Mr. Irfan Khalil Qureshi, Advocate for Respondent No. 6.

Dates of hearing: 1 & 2.6.2004.

Judgment

The petitioner is a contender for the post of Program Producer in pay Group No. 5 in the Pakistan Television. Vide order dated 25.9.1999, Respondent No. 6, was appointed as Program Producer on contract for a period of two years. His appointment was however, terminated vide order dated 23.11.1996. However, on the application of the said respondent, routed through the Minister for Information and Media Development, he was again appointed to the said post vide order dated 13.9.1997.

1. The petitioner is already serving in the P.T.V. His case is that the post of Program Producer was first advertised on 8.11.1992 and then on 5.2.1995. The petitioner applied at both the occasions but the process of selection was not finalized and vide order dated 25.9.1996 Respondent No. 6 was appointed to the post on contract basis for which neither application from other eligible candidates were invited, nor a public notice was given and the process of selection was not undertaken. It is contended that the act of the respondents to secretly dole out public employment without following the proper procedure and denying an opportunity to the petitioner to compete for the said post is pure and simple an act of favoritism and is clearly against the rule laid down by the Hon'ble Supreme Court in re: Abdul Jabbar Memon and others (1996 S.C.M.R. 1349) and Capt. (Retd) Muhammad Naseem Hijazi Director Finance and Admin. Gujranwala Versus Province of Punjab and 2 others (P.L.J 2000 S.C. 1720). He further submits that vide order dated 23.11.1996 the services of Respondent No. 6 were terminated but he was able to muster political support and on the application addressed to the Minister for Information and Media Development he was again appointed on contract for a period of two years. Therefore, the administrative discretion has been abused and an equal opportunity in the public employment has been denied to the petitioner in violation of the guarantee of Article 25 of the Constitution.

2. The learned counsel for the P.T.V contends that since the petitioner is already in service of the P.T.V, this writ petition is barred under Article 212 of the Constitution, because of the ban, regular appointment to the post in question could not be made, the P.T.V is a commercial organization and while recruiting persons at various levels a number of considerations have to be kept in view. He produced two charts at the time of hearing which show that a large number of persons are employed by the P.T.V on daily wages or contract basis. According to him, the procedure for regular appointment was not applicable to contract appointments. He also referred to chapter XV of the Pakistan Television Corporation, Employees Service Rules which provides departmental remedies and contended that this writ petition is not maintainable.

3. Learned counsel for Respondent No. 6 submits that because of the ban there is an actue shortage of Program Producers and since Respondent No. 6 was working as Assistant Program Producer Current Affairs since 1989, he was appointed on contract basis. His appointment was, therefore, in the interest of the organization. It is further contended that the petitioner is serving as an Associate Engineer therefore, he is not eligible for the post of Program Producer.

4. The learned counsel for the petitioner, in rebuttal has controverted the contentions of the learned counsel for the respondents. He submits that the required qualification for the post of Program Producer, according to the public notice, dated 5.2.1995, was a Mater's Degree in various subjects and since the petitioner has already acquired a Master's Degree he was, eligible for the said post. He further submits that a departmental representation was made to the Managing Director by the petitioner on 16.9.1997 which was declined vide order dated 23.10.1997 and it was only thereafter that the petitioner has approached this Court in the present Constitutional petition.

5. The submissions made by the learned counsel for the parties have been considered. Rule 6.01 of the P.T.V. Service Rules provides for filling in the vacancies in Groups 2 to 6 by promotion and according to Rule 6.02 if no suitable candidate is available within the channel of promotion relevant to a particular vacancy, it shall be advertised among all serving employees of the Corporation. Rule 4.01 classifies the employees into different categories and it includes a contract employee who is defined in Rule 4.02. Rule 6.03 provides that applications received from the serving employees under Rule 6.02 will be scrutinized and the candidates, who possess required qualification and experience, will be interviewed by the Selection Board which will submit its recommendations to the Managing Director for approval. Rule 6.04 provides that if a suitable candidate is not available, within the channel of promotion a candidate may be appointed from outside and for the purpose the appointing authority may either advertise the vacancies or may adopt any other procedure which is considered by him to be in the best interest of the Corporation.

6. The effect of the aforesaid provisions is that if a vacancy is to be filled in, irrespective of the capacity, including contract employment, from amongst the employees of the P.T.V, all eligible persons are entitled to be considered under Rule 6.02 and by the Selection Board as required by Rule 6.03. The aforesaid rules do not permit the making of any appointment including a contract appointment in secrecy without providing opportunity to compete for the post to other eligible employees of the P.T.V. Denial of equal opportunity in the matter of public employment violates Article 25 of the Constitution and, therefore, cannot be countenanced. The contention of the learned counsel for the petitioner is fully supported by the rule laid down in the case of Abdul Jabbar Memon supra.

7. The petitioner was only a candidate for the post of Program Producer. He is not enforcing terms and conditions of his service. Therefore, the bar of Article 212 of the Constitution is not applicable. Reference may be made to Dr. Ahmad Salman Waris Assistant Professor, Services Hospital, Lahore Versus Dr. Naeem Akhtar and 5 others (P.L.D. 1997 S.C. 382) which is a complete answer to the above contention. The other contention that since the appointment has not been made on regular basis it was not necessary to adhere to the proper procedure is also equally untenable. The fact that P.T.V. is a commercial organization and, therefore, free to make contract appointments in disregard of their own rules and the rule laid down by the Hon'ble Supreme Court only projects "King can do no wrong" theory which cannot be accepted in a society governed by written Constitution.

8. Accordingly, this writ petition is allowed. Appointment of Respondent No. 6 as Program Producer made vide order dated 13.9.1997 is declared as without lawful authority with the result that the post occupied by him will be deemed to be vacant and if the respondents are minded to fill in the said vacancy, the procedure prescribed in the Service Rules shall be followed. No order as to costs.

(F.M.) Petition allowed.

PLJ 2005 Lahore 1129

[Multan Bench Multan]

Present: Sh. Hakim Ali, J.

MUHAMMAD ZAFAR IQBAL--Petitioner

versus

NOOR MUHAMMAD--Respondent

C.R. No. 1021 of 2000, heard on 16.3.2005.

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

----S. 9--Punjab Tenancy Act 1887, S. 77--Jurisdiction of civil Court--Relationship of landlord/owner and tenant between parties was not entered into contents of plaint--Civil Court thus, had got jurisdiction--Provisions of S. 77, Tenancy Act 1887, were therefore, not applicable.

[P. 1132] A

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

----S. 11--Issues which were comprehensive and covering all objections, now being raised were decided in favour of respondent in earlier round of litigation by High Court--No appeal having been filed against that order/judgment such judgment/order rendered by High Court had attained finality--Decision rendered by High Court in revision and review thus, closed chapter of maintainability and jurisdiction question to be raised any more. [P. 1133] B

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

----O. XXIII, R. 3 & O.XXXIX, R. 2(3)--Under taking given before Court that defendants would not evict plaint without due process of law--Court accepting such undertaking would be competent and would have jurisdiction to punish defendants in terms of O. XXXIX, R. 2 (3) of C.P.C. if they violates such undertaking and evict tenant without due process of law--Order for delivery of possession and grant of compensation as ordered by Courts below were maintained. [P. 1134] C

PLJ 1981 SC 225; 1997 PSC 636; PLD 1982 Lahore 459; PLD 1976 Lahore 580; PLJ 1980 SC 252 and 1968 SCMR 557, ref.

Mr. Muhammad Naveed Hashmi, Advocate for Petitioner.

Mr. Irshad Hussain Jafari, Advocate for Respondent.

Date of hearing : 16.3.2003.

Judgment

Facts collected from record and narrated by both the learned counsels of the parties, forming the background of this civil revision are that one Noor Muhammad, respondent of the instant revision, had filed a suit for grant of permanent injunction against the Province of Punjab through District Collector (Defendant No. 1) and the present petitioner, namely, Muhammad Zafar Iqbal (Defendant No. 2), in the Court of learned Senior Civil Judge, Vehari on 8.4.1989 seeking an injunctive order of permanent nature, restraining the defendants from interfering into possession of the plaintiff upon the lands in dispute, measuring 96 Kanals and situated in Chak No. 88/W.B., Tehsil Mailsi, District Vehari. Learned counsel for Defendant No. 2, undertook by getting recorded his statement that plaintiff would not be ejected from the lands in dispute without due course of law. This statement was recorded on 16.5.1989. But on the same day, Noor Muhammad was got apprehended in criminal proceedings under Section 107/151 of the Cr.P.C. and ejected forcibly from the lands in dispute. This high handedness forced the plaintiffs to file an application before the learned Senior Civil Judge through which initiation of proceedings under contempt and for restoration of possession of the plaintiffs as was existing at the site before 16.5.1989 was prayed. This application was contested by the present petitioner, as he filed reply to it and got the issues framed from the learned Senior Civil Judge. The parties were granted opportunity to produce their evidence which they did produce it. After the evidence was brought on the record, the learned Senior Civil Judge accepted the application after evaluating and appraisal of the evidence of the parties. The judgment/order, in which present petitioner was sentenced to undergo six months simple imprisonment with fine of Rs. 5,000/- or in default of payment of fine to suffer further S.I. of one month, was announced on 10.12.1991. He was also directed to hand over the possession to the plaintiff with payment of

Rs. 2,00,000/- as compensation to Noor Muhammad, plaintiff. This order dated 10.12.1991 was challenged before the learned Additional District Judge by the revision petitioner in the appellate jurisdiction, who accepted the appeal on 20.2.1993 and remanded the case to learned Senior Civil Judge by holding and deciding Issue No. 1-D and 1-E with regard to maintainability and jurisdiction of the Court against Noor Muhammad and in favour of defendant/appellant. This order was assailed by Noor Muhammad in C.R. No. 197 of 1993 in this Court, which was decided on 22.3.2000 by my learned brother Mr. Justice Jawwad S. Khawaja. The order dated 22.3.2000 was further tried to be upset by revision petitioner through Review Petition No. 115 of 2000, which too was dismissed on 15.5.2000. No further appeal/revision or any other step to get it reversed in the Hon'ble Supreme Court of Pakistan were taken by the present petitioner against that judgment/order dated 22.3.2000 passed in C.R. No. 197 of 1993, or against the order dated 15.5.2003 pronounced in Review Petition No. 115 of 2000. Thus the above referred orders attained finality. My learned brother Mr. Justice Jawwad S. Khawaja remanded the case to District Court for rendering the decision on merits upon other issues because the learned brother Judge had found the petition for contempt as well as suit maintainable and jurisdiction very well available, and vesting with the lower Court. The matter was once again taken up by the learned District Judge, who maintained the sentence, the imposition of fine, the payment of compensation and the direction for return of possession on 13.12.2000. Aggrieved from that judgment/order, the present civil revision has been filed by Zafar Iqbal, the convict/contemner/contenderor.

1. Learned counsel appearing on behalf of petitioner submits that the suit as framed for grant of permanent injunction was not maintainable in the Civil Court, therefore, undertaking given, was void and its violation could not be mulcted with fine and punishment, and it was, therefore, not sustainable in the eye of law as it was without jurisdiction. He has referred to Section 77 of the Punjab Tenancy Act, 1887. In this regard, he has referred to PLJ 1981 SC 225 (Ghulam Nabi and others versus Bashir Ahmad and others) to support his contention. He has further argued that the Court which had no jurisdiction to entertain the suit, the order passed in such a suit was illegal and without lawful authority, and its violation cannot be visited with any imposition of sentence, and penalty of fine, compensation or restoration of possession. He has referred for this purpose a citation reported in 1997 PSC 636 (Province of Punjab versus Dr. Muhammad Zafar Bukhari). It has also been submitted by the learned counsel that the learned Court has wrongly ordered the attachment of whole of the property of the petitioner. This order is also liable to be set aside. It has also been agitated by the learned counsel that the injunction granted during the pendency of the suit, if violated can be proceeded with under Order XXXIX Rule 2(3) of the CPC, by the learned trial Court below, otherwise proceedings at the most could be initiated under Contempt of Court Act, which was in force.

2. On the other hand, the learned counsel for the respondents submits that the petitioner has not only suppressed the real facts but has reiterated the same arguments and points, which were canvassed by petitioner and decided in C.R. No. 197 of 1993 on 22.3.2000 and in Review Petition No. 115 of 2000 of 15.5.2000. The civil revision is accordingly not competent and is liable to be dismissed on this ground only. Learned counsel has stated that the order passed upon an under-taking given before a Court is like a stay order/injunction passed during the proceedings of a suit, and its violation can be taken note of and proceeded against under Order XXXIX Rule 2 (3) of the CPC. He has referred to PLD 1982 Lahore 459 (Muhammad Ashiq alias Ashiq Ali versus Razia Begum and others). He has also agitated that the provisions of Sections 3/4 of the Contempt of Court Act are also attracted to the case in hand which would be in addition and not in derogation of the proceedings for violation of injunctive order.

3. The arguments of both the learned counsels and the scanning of the record has brought to light the facts that the complete case upon which the learned counsel for the petitioner has weaven the web is shattered and is torn into pieces when the plaint filed by Noor Muhammad, plaintiff/respondent is carefully and minutely perused and examined. In Para No. 1 of the plaint, (Exh. A-3) he asserts the ownership of the disputed lands vesting with the Provincial Government and claims tenancy of the Government. Nowhere in the plaint, he has admitted himself the tenant of petitioner/defendant No. 2 or Defendant No. 2 to be his landlord or owner of the disputed lands. He has denied categorically any right of petitioner (Defendant No. 2) with regard to the land. There was no question of landlord and tenancy raised between plaintiff and Defendant No. 2 in that suit. Therefore, the assertion and version as envisioned by petitioner that suit was not maintainable in the Civil Court due to exclusive jurisdiction vesting with the Revenue Court, being turmpeted by him by referring to Section 77 of the Punjab Tenancy Act, 1887 loses its significance and proves to be a fallacious argument. As relationship of landlord/owner and tenant between the plaintiff and Defendant No. 2 was not entered into the contents of the plaint, therefore, the Civil Court had got the jurisdiction. The law is also settled on this point that at the initial stage, the facts as narrated in the plaint are the determinative factors for commencement of proceedings upon a suit instituted. These serve the foundational basis to decide the question of jurisdiction of a Court. Upon these averments, the Court has to take initiative and decide as to whether it has to proceed or to reject the plaint under Order VII, Rule 11 CPC. The other party when enters into Court by its appearance in the suit has been granted right to raise the objection with regard to jurisdiction of the Court and to proceed with the suit by filing a written statement and if it be in connection with the place of suing under Section 21 of the C.P.C. But the petitioner instead of putting resistance to the suit on this jurisdictional ground gave the undertaking that he would not dispossess the plaintiff without due course of law. In these circumstances, he had in fact admitted the jurisdiction of Civil Court. It is note worthy to note that question of tenancy and objection to jurisdiction of Civil Court has been conceived by Defendant No. 2 (present petitioner) in reply to application of contempt and to the proceedings to it.

4. The learned counsel for the respondent has rightly pointed out that the objection to jurisdiction and the question of maintainability which were shaped into Issues No. 1-D and 1-E were decided by this Court in C.R. No. 197 of 1993 on 22.3.2000. In Para No. 4 of the judgment delivered by my learned brother Mr. Justice Jawwad S. Khawaja, he had set aside the finding of learned Additional District Judge upon those issues which were passed in favour of petitioner vide the following para:--

"In the foregoing circumstances, this revision petition is allowed and, as a consequence, the decision of the learned Additional District Judge, Vehari, on Issues Nos. 1-D and 1-E (which are the only issues decided by him) is set aside. The case is remanded to the learned District Judge, Vehari, for decision afresh on the remaining issues.

The petitioner, present in Court, is directed to appear before the learned District Judge, Vehari, on 10.4.2000."

1. Issue No. 1-D and 1-E are produced for immediate examination:--

Issue No. 1-D:

Whether this Court has no jurisdiction to pass the order dated 16.5.89 or to record the statement of the respondent? (under objections of petitioners counsel).

Issue No. 1-E:

Whether this Court has no jurisdiction to try this petition?

1. Accordingly, these issues which were comprehensive, and covering all the objections, now being raised, were decided in favour of Noor Muhammad, respondent in the earlier C.R. No. 197 of 1993 on 22.3.2000 as noted above. Review Petition filed to get it set aside was also dismissed on 15.5.2000. Thus, this order had attained finality, as no party to the proceeding had approached the Hon'ble Supreme Court. Due to non-filing of further proceeding in the apex Court, present petitioner had admitted by his own act and conduct, the order to be legal and valid one. It may be noted here that a party cannot be allowed to approbate and reprobate because the order, which had attained the finality now cannot be assailed in the same litigation again. The decision in the above mentioned civil revision and in review has in fact closed the chapter of maintainability and jurisdiction questions to be raised anymore, at least in this Court as well as in the lower Court.

2. The learned counsel has also rightly referred to PLD 1982 Lahore 459 (Muhammad Ashiq alias Ashiq Ali versus Razia Begum and others) by maintaining that the under-taking given to a Court, is like an injunction issued during the proceeding of a suit and the party cannot be allowed to flout that injunction order/undertaking. In my view and under-taking is an earnest plight to a Court, which when made, the other party is relieved and the responsibility of the Court is brought into action. The Court is by this act is given a word by the party who has asked to believe the statement to be a sincere promise. The Court by this action is drifted to another discretion. The atmosphere of trust is created between the Court and the promisee. The other party has also been offered to believe the statement, to be true promise made by a party in a judicial proceedings. That person, if afterwards violates on the pretext of the Court having no jurisdiction. It would be playing a fraud with the Court and ridiculing the authority of the Court. It is an act by which breach of trust is committed by the promisee. Therefore, it has been considered in judicial system and parlance, an act of gravest kind of breach of injunction as well as of the commission of contempt. The violator cannot be permitted to take defence on the plea of maintainability of the suit or the petition being incompetent under Order XXXIX Rule 2(3) or it would be only capable of being filed under the Contempt of Court Act. Avoidance cannot be allowed on these hyper technical objections. The Court before whom the undertaking/statement was given would be well advised and within its competence to punish the violator/ridiculer of its authoritatively under Order XXXIX Rule 2(3) of the C.P.C. Because the undertaking to the Court, if accepted by the Court, would take the force and be considered an injunctive order passed during the course of proceedings. In the Full Bench decision reported in PLD 1976 Lahore 580 (Mst. Kishwar Sultan Jehan Begum versus Aslam Awais and 3 others), this High Court has authority decided that undertaking given to Court by a party or his counsel is like an order of injunction granted by the Court. In PLJ 1980 SC 252 (Bakhtawar etc. versus Amin etc), the Hon'ble Supreme Court of Pakistan has clearly held that contravention of injunction order can be interfered with in exercise of inherent jurisdiction. It has also been ruled that no party can be allowed to take advantage of his own wrong. In 1968 SCMR 557 (Muhammad Salim Khan Yusufzai versus K. Muhammad Din), it was held that in violation of undertaking, imposition of sentence to party for six weeks to serve it out in civil Jail under Order XXXIX Rule 2(3) of the CPC was valid.

3. Therefore, I do not see any merit in this civil revision, which is dismissed, by maintaining the order for delivery of possession and the grant of compensation as ordered/directed by the learned Appellate Court below.

(A.A.) Revision dismissed.

PLJ 2005 Lahore 1135

Present: Maulvi Anwar-ul-Haq, J.

AMEER (deceased) through his legal heirs--Petitioners

versus

GHULAM ALI--Respondent

C.R. No. 1064 of 2002, heard on 13.5.2004.

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

----Art. 64--Dismissal of suit for declaration--First appeal dismissed--Civil revision allowed--Case remanded--Suit decreed--Appeal accepted--Discrepancy of evidence--Ground of--Challenge to--Whether respondent was real son of of deceased--Question of--Held: No evidence within meaning of Art. 64 was available on record--ADJ proceeded only to rely on very mutation and failed to read discrepant evidence on record--Thus he acted with material irregularity in exercise of his jurisdiction--Revision allowed. [P. 1138] A & B

PLD 1965 Lahore 482 and AIR 1987 PC 201.

Mian M. Hanif, Advocate for Petitioners.

Mr. Shaukat Hussain Khan, Baloch, Advocate for Respondent.

Date of hearing: 13.5.2004.

Judgment

On 11.4.1987 Amir, predecessor in interest of the petitioners filed a suit against the respondent. In the plaint it was stated that Amir plaintiff had a brother namely Mudi and a sister namely Mst. Khatoon. On the death of father, Ali the suit land devolved upon Ameer, Mudi and Mst Khatoon. Mudi died 2 years ago and his estate was mutated in favour of Amir plaintiff vide inheritance Mutation No. 399 dated 16.3.1987. Mst Khatoon had died on 13.2.1987 and her inheritance Mutation No. 398 was also taken up on the same date. Mst. Khatoon had not married and had died as such. However, the respondent managed to get her estate mutated in his favour representing himself to be her son while Mst. Khatoon was shown to be widow of Baqir Ali, father of the respondent. A declaration was accordingly sought that the petitioners are the owners of the suit land and the said mutation is void. The respondent in his written statement took the plea that Mst Khatoon was his mother and as such he was the sole heir. Issues were framed on 21.7.1987. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 8.2.1990. A first appeal filed by the petitioner was dismissed on 2.2.1995. Civil Revision No. 483-1995 filed by the petitioner was allowed by this Court and the matter was remanded to the learned trial Court. After the remand issues were amended and following Issue No. 3 was framed:

"Whether the defendant is the real son of Mst Khatoon Bibi? OPD"

On 25.11.2000, the learned trial Court noted that onus of the material issue is upon the respondent and he called upon him to lead his evidence first. On 19.5.2001 it was stated on behalf of the respondent that he relied upon the evidence already recorded. Vide judgment and decree dated 27.11.2001, the learned trial Court decreed the suit. A first appeal filed by the respondent was allowed by the learned Additional District Judge, Okara on 26.3.2002 who dismissed the suit of the petitioner.

1. Learned counsel for the petitioner contends that apart from the fact that no evidence within the meaning of Article 64 of the Qanoon-e-Shahadat Order, 1984 is available on record, the evidence led by the respondent was discrepant and was rightly not relied upon by the learned trial Court. The learned Additional District Judge, on the other hand, has proceeded to set aside the judgment and decree on the grounds, which are neither here nor there.

2. Learned counsel for the respondent, on the other hand, while conceding that the evidence contemplated by the said Article 64 is not available has however, vehemently contended that Amir the deceased plaintiff was the best witness available in the circumstances of the case but he avoided to enter the witness box and instead put his son as his attorney to deny the relationship. According to the learned counsel this circumstance is enough to raise an adverse inference against the plaintiff party.

3. I have gone through the records. Now in the first instance an omnibus issue was framed on 21.7.1987 as follows :--

Whether the plaintiff is owner in possession of the suit property and Mutation No. 399 dated 11.3.1987 regarding succession of the deceased Khatoon in favour of the defendant is illegal, void and ineffective upon the rights of the plaintiff? OPP

The plaintiff was accordingly called upon to begin. He produced Muhammad Saeed as PW.1, Bashir Ahmad as PW. 2 residents of Chak No. 50/3 R who stated that the respondent is not the son of Khatoon who died unmarried. Bashir Ahmad appeared as PW. 3 and produced special power of attorney as Ex.P.1 of his father, plaintiff. He also stated that his uncle Mudi and aunt Khatoon died unmarried. Khatoon died in the house of his father, who is in possession of the suit land. The respondent claimed his share, when they came to know about the mutation, which was attested without their knowledge. In cross-examination he denied that Khatoon was married to Baqir Ali and the respondent is the result of the said wedlock.

1. The respondent produced DW.2 Noor Hussain aged 78 years resident of Chak No. 368 GB who stated that he knows the parties and that respondent is the son of Baqir and Khatoon. That he had gone in the Barat when Khatoon was married to Baqir. In his cross-examination he stated that Ghulam Ali was born in Chak No. 368 GB and Baqir Ali also used to live there. Respondent was born after 1 year or 2 years of the marriage. He stated that Baqir had enmity with the parental relations of Khatoon and during the first eight or ten years Khatoon used to live with Baqir Ali only one or two months and then she went away. She died three years ago. Respondent resides in Chak No. 24 GB since the last abut 8/10 years. Pehlawan aged 66 years resident of Chak No. 368 GB appeared as DW.3. Now he stated that Baqir and Khatoon used to live as husband and wife in their village and respondent was born as a result of wedlock. That respondent was born 3 or 4 years after and that he was born in Chak No. 368 GB. Nikah was performed 50/55 years. Baqir died 10 years ago in Chak No. 368 GB while Khatoon died in Chak No. 50/R-3. Ghulam Ali respondent appeared as DW.1 to state that Baqir is his father and Khatoon is his mother and Amir plaintiff is his maternal uncle and that he has been living with his mother in his paternal home. Now he says that his father died 10 years ago in village Rehana, Tehsil Sumandari District Faisalabad. He says that he was born 3 years after the marriage of his parents in his paternal house in Chak No. 50/3 R. Now the said Issue No. 3 was framed on 11.11.2000 and the Respondent was called upon to lead the evidence but he stated that he would not lead any other evidence. To my mind in the said circumstances of the case, when the onus was upon the respondent, and by that time Amir had died, the fact that at the first instance he did not enter in the witness box would be of no relevance.

2. Now in the case of Ghulam Muhammad and another versus Allah Yar and others (PLD 1965 Lahore 482) Section 50 of the Evidence Act, 1872 (Article 64 is a reproduction of the said provision) came up for interpretation. It was held that it is the opinion expressed by conduct of any person who has special means of knowledge about the relationship, which is relevant under the said provision of law. The opinion of a competent witness must be "expressed by conduct" and in case it is not so relevant based on conduct it would be irrelevant. It was then observed by his lordship that it is, therefore, all the more necessary that in order to lay the foundation for admission of evidence of this kind all the necessary ingredients of this section must be brought out positively. His Lordship then referred to the case of Lakshmi Reddi versus Venkata Reddi (AIR 1987 PC 201) and quoted the following observation in the said judgment with approval.

"It cannot rightly be left to time or chance or cross examination to disclose whether a statement has any basis which could give it value or admissibility." The observation was made after a note that the witness relied upon by the learned trial Judge in the said case had not at all stated the source of their information which was the basis of their knowledge of the relationship of the parties in the said case.

1. Now the caste of Ghulam Ali is Pawli. Noor Hassan, DW. 2 stated himself to be a Baloch and so is the case of Pahwalan, DW, 3. Pahwalan DW. 3 is not even aware of the caste of the plaintiff and the said lady who was admittedly the sister of the plaintiff.

2. Apart from the said inherent defects in the evidence led by the respondent, the learned trial Court very correctly read the evidence of the said witnesses and discarded the same. Now Noor Hassan DW. 2 and Pahwalan DW. 3 stated that Ghulam Ali was born in Chak No. 368 GB. Now Ghulam Ali says that he was born in the paternal house of his mother, which is in Chak No. 50/3-R. One wonders as to which is the person regarding whom DWs. 2 and 3 have made the said statements. Similarly regarding Baqir Ali, the father of the respondent, it has been stated that he died in Chak No. 368 GB (DW. 3) while Ghulam Ali states that the person who is his father died in village Rehana, Tehsil Sumandari, District Faisalabad. The said Chak No. 368 GB is in Tehsil Jaranwala of the said District.

3. Now coming to the judgment of the learned Additional District Judge. A reading of paras 4 and 5 of the judgment would clearly show that the learned Additional District Judge has worked under the impression that the onus to prove the negative was upon the petitioner. Be that as it may, he has stated in Para No. 5 at Page No. 5 of his judgment that DW. 1 Ghulam Ali clearly stated that Mudi was his uncle and Khatoon was his mother and his father died 10 years back in mauza Rehana, Tehsil Sumandari, District Faisalabad. He then states that DW. 2 Pahlawan supported the statement of DW. 1. I wonder as to whether the learned Additional District Judge read the statements of DW. 2 and DW. 3 because had he read the same, he would have found that according to these witnesses the father of the person regarding whom they had made statements had died in Chak No. 368 GB in Tehsil Jaranwala, District Faisalabad. The learned Additional District Judge had also failed to read that according to DW. 1 he was born in Chak

No. 50/R-3 whereas according to DWs. 2 and 3 the said person was born in Chak No. 368 GB. It is indeed regrettable that the learned Additional District Judge proceeded to rely on the very mutation, which was challenged by the deceased plaintiff to hold that the respondent is the son of Khatoon, who was the widow of Baqir Ali.

1. Having thus examined the records and the two judgments in the light of the applicable law, I do find that the learned Additional District Judge had acted with material irregularity in the exercise of his jurisdiction while failing to read the evidence on record and also failed to take note of the applicable law. The civil revision is accordingly allowed. The judgment and decree dated 26. 3. 2002 of learned Additional District Judge, Okara is set aside and the one passed by learned trial Court on 27.11.2001 is restored with costs throughout.

(F.M.) Revision allowed.

PLJ 2005 Lahore 1139 (DB)

Present: Sh. Azmat Saeed & Mian Saqib Nisar, JJ.

TAHMASUB FARAZ TAYYAB and 13 others--Petitioners

versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES,LAHORE, CAMP AT SHEIKH ZAYED HOSPITAL, LAHORE and 3 others--Respondents

W.P. No. 16780 of 2003, decided on 19.1.2005.

(i) Education Institutions--

----Enrolment in Medical and Dental Colleges--Institutions usually allow enrolment without observing prescribed legal procedure and very conveniently place such matter at the doorstep of High Court by challenging refusal of university to allow students to sit in forthcoming examinations with the belief that compassion would prevail and students would be permitted to continue their academic career--Such state of affairs cannot be countenanced, especially where granting of relief to one person would be at the expense of another. [Pp. 1146 & 1147] F

(ii) Education Institutions--

---Constitution of Pakistan (1973), Art. 199--Requirement of 60 per cent marks in F.Sc. Medical Group for admission in Medical or Dental Colleges--Petitioners were enrolled in breach of such condition--Petitioners however, possess basic qualification to be enrolled having qualified their F.Sc. pre-medical examination condition in question which has been added on to basic qualification pertains only to admission in institution and has no direct impact on professional examination, which petitioners must qualify independently--Petitioners could not be punished for failure of institution concerned to admit them in violation of rules/regulations--Petitioners being in midstream of their academic career, and most of them having successfully taken their professional examination, ruining their career at present stage would be extremely harsh--Petitioners prayer to sit in examination concerned, was granted however such concession was granted to the extent of petitioners only.

[P. 1147] G

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

----S. 21--Power of retracting, rescinding and amending available to Authorities till decisive step has been taken--Principle of--Applicability--Such principle has no application where variation amendment or recession was affected prior to decisive step--Where condition imposed had come into effect prior to enrolment of petitioners, same cannot press into service by take advantage of principle of law--Principle of law does not require that any act once done becomes irrevocable and past and closed transaction if original act was illegal--No vested right can be deemed to have been occurred which right was based on illegality.

[P. 1146] D

(vi) Pakistan Medical and Dental Council Ordinance, 1962—

----S. 33(2)--Educational Institutions--Admission--Minimum 60 per cent marks were required in pre medical F.Sc to obtain admission in Medical and Dental Colleges--Petitioners had obtained their enrolment when such condition was already in force--Regulation relating to such condition for admission was binding on all medical and dental colleges including that institution where petitioners were already studying--No change or retracing of steps had been affected by authorities after enrolment and then was no mandatory requirement of either obtaining previous sanction of central Government for imposing condition in question nor of its publication in official gazette. [P. 1146] E

(i) Pakistan Medical and Dental Council Ordinance, 1962—

----S. 33--Regulation/amendments--Provisions of S. 33 of the Ordinance of 1962 would reveal that no condition has been laid down requiring that regulations or any amendment therein must necessarily be notified or published in official gazette. [P. 1144] B

(vi) Pakistan Medical and Dental Council Ordinance, 1962--

----S. 33(2)--Previous sanction of Central Government--Applicability--Previous sanction of Central Government was not required by Pakistan Medical and Dental Council while determining and prescribing minimum qualification of obtaining 60 per cent marks for admission to a medical or dental college--Contention of petitioners that decision of Pakistan Medical and Dental Council made in its specified session was in operative as previous sanction from Central Government had not been obtained was without any force. [P. 1143] A

(vii) University of Health Sciences Ordinance, 2002 (XXXIII of 2002)—

----S. 1--General Clauses Act (X of 1897), S. 20-A--Requirement of all regulations to be published in official gazette in terms of S. 20-A General Clauses Act, 1897--S. 20-A of General Clauses Act, 1897 was inserted vide Ordinance No. XXXIII of 2002 dated 27.7.2002 after decision made by Pakistan and Medical Council--Ordinance XXXIII of 2002 being not retrospective in application, provisions of S. 20-A of General Clauses Act, 1897 was not attracted and could not be pressed into service by petitioners. [Pp. 1144 & 1145] C

PLD 1991 SC 973; 1999 SCMR 15; PLJ 2001 SC 759; 1995 SCMR 421; PLD 1956 FC 46; PLD 1964 SC 503; PLD 1969 SC 407 and PLD 1992 SC 207;

M/s Wajeeh-ud-Din Pervez, Masood Mirza, Iqbal Mehmood Awan and Peer Kaleem Khursheed, Advocates for Petitioners.

Mr. Rasal Ahmad Sayed, Advocate for Respondents Nos. 1 and 3.

Mr. Pervaiz I. Mir, Advocate for PM&DC.

Date of hearing : 21.12.2004.

Judgment

Sh. Azmat Saeed, J.--This order shall dispose of Writ Petitions hearing number 16780 of 2003, 16782 of 2003, 629 of 2004, 1345 of 2004, 2979 of 2004, 3350 of 2004, 552 of 2004, 16826 of 2003, 1600 of 2004 and 91 of 2004 involving almost common question of facts and identical question of law.

1. Petitioners in all these cases are presently undergoing their MBBS professional studies at various medical colleges including the Lahore Medical and Dental College which was initially affiliated with the Baqai University Karachi. It may be stated that petitioners were granted admission on the basis of less than 60% marks in their F.Sc Pre Medical examinations. Subsequently, the Ordinance 2002 creating the University of Health Sciences was promulgated on 22nd of September 2002 and for purposes of appearing in their professional exams, the petitioners through their respective colleges applied to the University to sit in the examination, but the University declined to issue them roll numbers on the ground that according to the regulation prescribed by Pakistan Medical and Dental Council (PMDC), no student with less than 60% marks could be eligible for admission to a Medical College. The marks of the petitioners were less than the prescribed 60%, therefore, they could not be allowed to sit in their examination. Petitioners have challenged such refusal by means of above referred Constitutional petitions.

2. It was argued by the learned counsels appearing for the petitioners that in terms of Section 33 of the Medical Council Ordinance 1962, the Council has the power to make the regulations, but with the condition of previous sanction from the Central Government. By virtue of sub-section 2(C) of Section 33 of the Ordinance, the Council could prescribe the conditions for admission to the course of training, but it is submitted that in its 97th session when the condition of minimum 60% marks was imposed, no previous sanction had been obtained from the Central Government, therefore, such limitation/condition/qualification had not been legally imposed/enforced, and thus the petitioners could not be restrained from appearing in the examination by the University of Health Sciences.

3. It was further argued that at the time when the petitioners obtained admission, Lahore Medical and Dental College was affiliated with the Baqai University Karachi, and they have been studying regularly in the college for a considerable period of time without there being any objection from any quarter at any point of time; they have spent valuable time and money towards their professional career, and thus they have obtained a vested right for purposes of sitting in the examination irrespective of the fact whether they had less than 60% marks in their F.Sc. (pre medical) examination, and the questioned regulation of the University of Health Sciences cannot be considered to have been validly promulgated. In support of their contentions, the learned counsel have placed reliance upon PLD 1991 SC 973 (Chief Secretary vs. Sher Muhammad Makhdoom, 1997 SCMR 15 Chairman Selection Committee/Principal King Edward Medical College Lahore and others vs. Wasif Zamir Ahmed and another and PLJ 2001 SC 759 Mst. Attiyya Bibi Khan and others vs. Federation of Pakistan etc.

4. Mr. Saqib Akram Gondal, Advocate in WP 2979 of 2004 states that prior to its affiliation with the University of Health Sciences, Lahore Medical and Dental College was initially affiliated with the Baqai University Karachi. The University of Health Sciences had imposed the condition of 60% marks vide the letter dated 30.5.2002 whereas, the Ordinance was enforced on 20.9.2002 and the petitioners had already obtained admission in their Medical College on 24.12.2002 and classes had commenced on 6.1.2003. It is stated that under the provision of Section 27 of the Ordinance 2002, the University of Health Sciences is required to supervise, inter alia, process of admission in the Medical Colleges. The inaction on the part of the University of Health Sciences even after its creation preclude the respondents from disallowing the petitioners to sit in the examination.

5. Peer Kalim Khurshid, Advocate states that once the petitioners have been registered as students of the University of Health Sciences, they could not be deprived of their studies in the examination at a subsequent stage.

6. The learned counsel appearing on behalf of the respondents controverted the contentions raised by the petitioners' side.

7. That by virtue of Ordinance XXXII of 1962, the PMDC was constituted in order to establish the uniform minimum standard of basic and higher education in medicine and dentistry. In order to give effect to the purposes of the Ordinance, the PMDC has been conferred with the authority and power to make regulations by virtue of Section 33 of the Ordinance ibid.

8. It has been held by the Supreme Court in the case reported as Nadir Khan vs. Principal Khyber Medical College (1995 SCMR 421) that the regulations framed by the PMDC in terms of Section 33 of the Ordinance are binding on all medical and dental colleges in Pakistan. Thus, such regulations would also apply to the college where the petitioners in the present case are enrolled and studying.

9. The powers conferred upon the PMDC under Section 33 of the Ordinance are bifurcated into making of two separate sets of regulations on the basis of subject to which such regulations may pertain. Sub-section (1) of Section 33 of the Ordinance provides that PMDC with the "previous sanction" of the Central Government may make regulations to provide for matters specified therein which are detailed in clauses (a) to (i) of sub-section (1) of Section 33 of the Ordinance. Obviously, any and all regulations pertaining to the subjects and matters spelt out in clauses (a) to (i) of sub-section (1) of Section 33, can be made by the PMDC after obtaining the requisite and prior sanction from the Central Government.

10. However, sub-section (2) of Section 33 is a non-obstentive in nature and confers powers upon the PMDC to make regulations in respect of matters provided in the said sub-section independently without previous sanction of the Central Government.

11. It is case of the respondents that prescribing of conditions for admission is an item mentioned in sub Clause (ca) of sub-section (2), hence, in the instant case, the "previous sanction" of the Central Government was not required. It may appropriate to reproduce the relevant portion of sub-section (2) of Section 33 of the Ordinance, which reads as under:--

"(2) Notwithstanding anything contained in sub-section (1), the Council shall make Regulations which may provide for--

(a)

(b)

(c) prescribing the conditions for admission to courses of training as aforesaid;"

1. A perusal of the aforesaid provision of the law makes it clear and obvious that previous sanction of the Central Government was not required by the PMDC while determining and prescribing the minimum qualification of obtaining 60% marks for admission to a Medical and Dental College. Thus, the contention raised on behalf of the petitioners that decision of the PMDC made in its 97th session was inoperative as previous sanction from the Central Government had not been obtained is without any force. And in view of the judgment of the Supreme Court in Nadir Khan's case, referred to herein above, there can be no escape from the fact that the conditions prescribed would apply to the institutions where the petitioners are enrolled.

2. That the petitioners relying upon the case reported as Muhammad Suleman etc. vs. Abdul Ghani (PLD 1978 SC 190) and Saghir Ahmed vs. Province of Punjab (PLD 2004 SC 261) have contended that since the decision of the PMDC, referred to above, amending the regulations had not been notified/published in the official gazette, therefore, the same were inoperative and inapplicable to the petitioners. It is not disputed by the respondents that the aforesaid decision/amendment in the regulations has in fact not been published in the official gazette or otherwise notified.

3. In the case of Muhammad Suleman etc supra, the issue before the Supreme Court was the interpretation of the phrase "declare by notification" as appearing in Section 8(2) of the Punjab Pre-emption Act 1913. It was held by interpreting Section 2(41) of the West Pakistan General Clauses Act that "notification" is a public declaration and not a private declaration made in the secrecy of an office, and further that to give effect to a provision withdrawing rights, it must necessarily be published in the official gazette, as such withdrawal would be applicable from the date of such publication and not from a prior date. However, in the aforesaid case, it was the requirement of the provision of the law conferring power to do the act that the same should be done by the notification. And the term "notification" as used in sub-section (4) of Section 2 of the West Pakistan General Clauses Act has been interpreted. A perusal of Section 33 of the Ordinance 23 of 1962 would reveal that no such condition has been laid down requiring that the regulations or any amendment therein, must necessarily be notified or published in the official gazette.

4. In the case of Saghir Ahmed ibid, the term notified as used in Section 3 of the Punjab Acquisition of Land (Housing Act 1973) came up for interpretation. In the said case, it had been clearly prescribed that the land shall be subject to acquisition for the housing scheme approved and notified by the Government or the official development agency. Their lordships of the Supreme Court interpreted the expression "notified" both in the context of its meaning and in the context whether the provision for notification was directory or mandatory. Their lordships held that notified would mean to make known, publish or announce and further held that such a condition may or may not be a sine qua non for the validity of the act required to be notified. In view of its own facts and circumstances the Supreme Court was pleased to hold that absence of publication in the official gazette did not denude the act of its validity as no prejudice was caused to the petitioner in that case.

5. Be that as it may, in the aforesaid case of Saghir Ahmed, it was the requirement of law that the act (the scheme in the case) must be notified. In the instant case, as has been noted earlier, no such requirement is mentioned in Section 33 of the Ordinance. Thus, the ratio of the above judgments are inapplicable to the facts and circumstances emerging from the instant case and are of no help to petitioners.

6. The petitioners have further contended that in view of the amendment in the General Clauses Act by insertion of Section 20-A notwithstanding the absence of requirement of notification in Section 33 of the Ordinance, all regulations must necessarily be published in the official gazette. Section 20-A of the General Clauses Act was inserted vide Ordinance No. XXXIII of 2002 dated 27.7.2002 after the decision made by the PMDC in its 97th session which is the subject-matter of the lis in hand. Ordinance XXXIII of 2002 is not retrospective in its application and Section 20-A of the General Clauses Act is not attracted and cannot be pressed into service by the petitioners.

7. Adverting now to the contention raised on behalf of the petitioners that on account of their admission and continuous studies in the College, a vested right had accrued in their favour which cannot be taken away subsequently, as the authorities have no locus poententia to impose the condition of having obtained 60%, marks in their pre medical examination. There can be no civil with the proposition that in terms of Section 21 of the General Clauses Act, the power conferred to amend, vary or rescind any notification, order, rule or bylaw can only be exercised before any decisive step has been taken. This principle has been repeatedly reiterated by the Apex Court in its numerous judgments from time to time. The Federal Court enunciated this principle in the case reported as Shahbaz vs. the Crown (PLD 1956 Federal Court 46) to hold the Government is vested with the power to modify or cancel an unconditional order till a decisive step is taken to carry it into effect. This was reiterated by the Supreme Court in the case reported as Lt. Col. G.L Battacharya vs. The State and two others (PLD 1964 SCMR Court 503). This issue again came up for consideration, and the Apex Court in the celebrated judgment reported as Pakistan through the Secretary Ministry of Finance vs. Muhammad Haimayatullah Farukhi (PLD 1969 SC 407) observed as follows.

"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to detriment of those rights."

1. The aforesaid judgments were subsequently followed in various cases including PLD 1991 SC 973 (Chief Secretary Government of Sindh vs. Sher Muhammad Makhdoom and 2 others and PLJ 2001 SC 759 Mst. Attiya Bibi Khan and others vs. Federation of Pakistan etc. and the analysis of the aforesaid dictum of law as laid down by the Supreme Court makes it clear and obvious that the power of retracing, rescinding, and amending is available with the authorities concerned till a decisive step has been taken. Such principle has no application where the variation, amendment or recession is affected prior to the decisive step. In all the instant cases under reference, the decisive step as claimed by the petitioners and as is obvious from the record is the enrolement of the petitioners in the institutions. It is equally a matter of the record that condition of obtaining 60% marks in F.Sc. pre medical examination was imposed by the PMDC and came into effect prior to the enrolment of the petitioners. Hence, they cannot press into service or take advantage of the principle of law and the aforesaid judgments of the Supreme Court are of no help to the petitioners in the facts and circumstances of the case in hand.

2. Be that as it may, even otherwise, it is not a principle of law that an act once done becomes irrevocable and a past and closed transaction if the original act is illegal. In such circumstances, no vested right can be deemed to have been accrued based on an illegality. Such is the dictum of law laid down by the Supreme Court in the case reported as The Engineer in Chief Branch through Ministry of Defence Rawalpindi and another vs. Jalaluddin (PLD 1992 SC 207).

3. The upshot of the above discussion would reveal that at the point of time when the petitioners obtained their enrolment, the condition imposed by the PMDC with reference to the minimum 60% marks in the pre-medical examination was already in force. Such decision/regulation issued by the PMDC is binding on all medical and dental colleges including the institution where the petitioners are currently studying. Furthermore, no change or retracing of steps has been affected by the authorities after the enrolment, and there was no mandatory requirement of either obtaining the previous sanction of the Central Government for imposing the condition in question nor of its publication in the official gazette.

4. Confronted with this situation, it has been contended on behalf of the petitioners that there had been a consistent practice permitted by law to enroll the students in the Medical and Dental Institutions who had obtained less than 60% marks. In fact, the primary criterion for admission was the availability of seats. The condition imposed by the PMDC was never publicized and no effort to publicize the same was ever made. The petitioners acting on the representations made by their institution had enrolled and paid money to pursue their professional and academic career and in compliance with the orders of this Court, they have taken their professional examinations, and we are apprised that most of the petitioners have passed the same. It is argued that grave hardship would be caused to the petitioners if at this crucial juncture they are deprived of their right to continue with their academic career particularly when there is no fault on their part.

5. A consistent pattern has been noticed that usually prior to the holding of an examination, writ petitions are filed challenging the refusal of the university to allow students to sit in the forthcoming examinations, and after the grant of interim relief, when the matter comes up for final disposal on merit if no case is made out, it canvassed at the bar that since the students have successfully gone through the examinations, thus, dismissal of the writ petition would cause them irreparable loss and grave hardship. It appears that the institutions allow enrolment initially without observing the prescribed legal procedure and very conveniently place the matter at the doorstep of this Court with the belief that compassion will prevail and the students will be permitted to continue their academic career. This state of affair cannot be countenanced, especially, where the granting of relief to a person may be at the expense of an other.

6. In the instant case, there can be no escape from the fact that traditionally in view of the paucity of seats in the medical as well as dental institutions, admission therein was determined by the quantum of seats rather than the minimum marks obtained. The change in this regime was affected by the PMDC in its 97th session of its counsel held on 29th and 30th of December 2001. The decision of the PMDC admittedly was never published in the official gazette nor any effort appeared to have been made to notify the same.

7. It has also been noticed that the authorities conferred with the power to issue instructions or make rules and regulations under a statute do the same within the secrecy of their offices without publishing the notification or publicizing the same thereby setting a trap for the citizens. Thus to deal with this mischief's, the legislature in its wisdom has now enacted Section 20-A in the General Clauses Act, but unfortunately the said provision of law came into force a few months too late for the petitioners who are therefor pushed into a legal black hole.

8. It is regretted that council members chose to believe that their decision would be in the knowledge of the petitioners and their parents without there being any effort to this effect by them. However, this failure on the part of the PMDC does not excuse the institution whereat the petitioners are enrolled. Thus, who are engaged in the business of selling education must make it their business to know and apprise their students of the initial requirements of enrollment and taking of examinations. It cannot be said that the institutions concerned acted bona fide in the absence of due care and diligence.

9. Furthermore, the petitioners have the misfortune of finding themselves at the cusp of a transformation, i.e., the opening of the imparting of professional education to the private sector and the replacement of supervisory regime through the creation of the UHS. Such transformation has resulted in the usual confusion and lack of timely action. Undoubtedly, the petitioners possess the basic qualification to be enrolled having qualified their F.Sc. pre-medical examination. The condition in question which has been added on to the basic qualification pertains only to the admission in the institution and has no direct impact on the professional examination which, of course, the petitioners must qualify independently. Enrolment of the petitioners and pursuit of their academic and professional career does not affect the right of any third party nor is there any question of state subsidy. We are of the considered view that it would be extremely harsh to punish the petitioners by ruining their academic career for the acts and omissions of the institution where petitioners are enrolled, and the failures of the PMDC and UHS, especially, when the petitioners are not guilty of any wrongdoing. Admittedly, the petitioners are in the midstream of their academic career, and most of them, have successfully taken their professional examinations.

10. For the foregoing reasons, these petitions are accepted with no order as to the costs. It is however clarified that relief is being granted in view of the peculiar circumstances of the case only to the extent of the petitioners.

(A.A.) Petition accepted.

PLJ 2005 Lahore 1148

Present: Muhammad Muzammal Khan, J.

MUHAMMAD RIAZ--Appellant

versus

SANDAL BEGUM and others--Respondents

R.S.A. No. 61 of 2003, decided on 23.4.2004.

Evidence Act, 1872 (I of 1872)—

----S. 68--Qanun-e-Shahadat Order, (10 of 1984), Arts. 17, 79 & 82--Determination--Second appeal also dismissed--Grounds--Agreement cannot be said to have been proved by producing only one marginal witness because the scribe, having not signed the document as a witness, cannot be treated as its marginal witness--Mere summoning through process of Court was not enough to assume that second witness has become hostile unless and until appellant had exerted in manner explained in Art. 82 of Qanun-e-Shahadat Order, 1984--Held: Courts below have rightly and correctly refused specific performance to appellant, their judgments are neither arbitrary nor fanciful--Second appeal accordingly dismissed.

[Pp. 1152 & 1154] B, C, I & J

1992 SCMR 1832; PLD 1996 SC 256 and PLJ 2002 SC 706 ref.

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

----Arts. 17 & 79--Onus to prove--Essentials--After denial of execution of some document, onus to prove it through positive evidence shifts on shoulder of beneficiary--Under Art. 17 of Qanun-e-Shahadat Order as agreement to sell creates financial and future obligations and when reduced to writing was required to be attested by two men or one man and two woman and in view of provisions of Arts. 79 of Qanun-e-Shahadat Order such document could only be used as evidence if at least two attested witnesses have been called for the purpose of proving its execution if those are alive. [P. 1152] A

Transfer of Property Act, 1882 (IV of 1882)—

----S. 53-A--Agreement to sell--Effect of--Suit for--Dismissal of--Agreement not proved--Second appeal--Dismissal again--Ground--Appellant is son of tenant holding land under original allottee and after her death so recorded under respondents, thus, he would be considered in an active fiduciary relationship qua his land lady and was required to prove not only bargain reflected in agreement but also good conscience, thereof, but file is absolutely thirsty of proof in this respect--Only witness produced by appellant in his support is related to appellant--Held: No law point urged by appellant goes in his favour--Second appeal dismissed. [P. 1154] G & H

Transfer of Property Act, 1882 (IV of 1882)—

----S. 53-A --Agreement to sell--Thumb-impression--Suit refused--Second appeal--Dismissal in view of circumstances of case--Held: Agreement to sell was of those days in which land had not been allotted to lady admittedly illiterate and observed pardah--There is no evidence that lady was accompanied by any adult male member of her family or she had access to any independent legal advice before parting with her immovable property--Moreover thumb-impression of lady or impugned agreement had no visible wriggles that is why no application moved to trial Court for comparison of thumb-impression of original allottee with her admitted thumb-impression available on record--Second appeal dismissed.

[P. 1153] D, E & F

AIR 1925 P.C. 204; PLD 1968 Dhaka 265 and 1984 SCMR 890 ref.

Ch. Muhammad Zafar, Advocate for Appellant.

Rana Rashid Ahmad, Advocate for Respondent No. 1.

Hafiz Khalil Ahmad, Advocate for Respondents Nos. 2 and 3.

Date of hearing: 23.4.2004.

Order

This regular second appeal assails judgments and decrees dated 14.10.1992 and 3.10.2003 passed by learned Civil Judge and learned Additional District Judge, Toba Tek Singh whereby suit of the appellant was dismissed and his appeal there against failed, respectively.

1. Precisely, relevant facts are that on 2.12.1989, the appellant filed a suit for specific performance against Respondents Nos. 1, 2 and Adalat Khan prodecessor-in-interest of Respondents Nos. 3-A to 3-H, with the averments that Mst. Lal Begum, mohter of Sandal Begum, Respondent No. 1 was allotted land measuring 101 kanals 10 marlas detailed in the plaint, as "Mangla Dem" affectee. The land was in cultivating position of father of Talib, a lease holder/tenant, under the respondents. It was averred that Mst. Lal Begum agreed to sell her land to the appellant for a consideration of

Rs. 3,00,000/- vide agreement to sell dated 13.5.1987 and received an amount of Rs. 1,50.000/- as earnest money. It was settled between the parties to the agreement that the sale-deed will be executed after conferment of propriety rights to Mst. Lal Begum and the remaining sale price shall be paid at the time of registration of sale-deed. It was also pleaded that Adalat Khan predecessor-in-interest of Respondents Nos. 3-A to 3-H being aware of the agreement to sell in favour of the appellant purchased the land from Sandal Begum and thus, sale in his favour was illegal and inoperative qua his rights. Mst. Lal Begum could not get propriety rights in her lifetime and after her death, those were conferred in favour of Sandal Begum (Respondent No. 1) as her heir, who sold out the land to Adalat Khan aforementioned through a registered sale-deed dated 29.10.1989. The appellant on gaining knowledge of sale in favour of Adalat Khan filed suit for specific performance of the agreement to sell in his favour, challenging sale by Respondent No. 1.

1. The respondents being defendants in the suit contested it by filing their written statement whereby execution of agreement to sell was denied and was pleaded to be fraudulent and forged. It was denied that Mst. Lal Begum ever entered into agreement to sell with the appellant and that she ever received any earnest money from him. Respondents Nos. 2 and 3 in their joint written statement claimed themselves to be bona fide purchasers for valuable consideration without notice of the asserted agreement. It was also averred that land is dispute is situated within the limits of District Toba Tek Singh whereas the claimed agreement to sell was executed at jhang in connivance with the stamp vendor there, without any reason, which shows forged nature of the document. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter after doing the needful, dismissed the suit of the appellant vide his judgment and decree dated 14.10.1992.

2. The appellant aggrieved of the decision of the trial Court dated 14.10.1992 filed an appeal before the learned Additional District Judge, Toba Tek Singh but remained unsuccessful as his appeal was dismissed vide judgment and decree dated 3.10.2003. The appellant, thereafter, filed instant regular second appeal, which after notice to the respondents has now been laid for final determination. The respondents are represented through their respective counsels.

3. Learned counsel for the appellant submits that inspite of the fact that execution of the agreement to sell was denied by the respondents, it was proved through evidence of its scribe and one of the marginal witness because the second marginal witness had been won over by the respondents and inspite of summoning through the process of the Court did not appear in the witness box. According to him, for proof of the agreement to sell dated 13.5.1987, statements of scribe and one marginal witness were enough, under law. It was further contended that after payment of earnest money to the original allottee Mst. Lal Begum, the appellant got possession of the land subject of agreement to sell which was a notice to public-at-large, protected under law and as such, during the concurrency of this agreement to sell, sale in favour of the predecessor-in-interest of the Respondents Nos. 3-A to 3-H and Respondent No. 2 was illegal and unauthorized but a contrary view taken by the two Courts below was not in accordance with law. He further submitted that Respondent No. 2 and deceased Respondent No. 3 were influential persons within the area where the land in dispute was situated and this fact was duly proved by evidence and thus, it furnished a sufficient cause for execution of agreement to sell at Jhang. It was also argued that both the Courts below returned incorrect findings, which runs counter to the file, thus, cannot be maintained.

4. Both the learned counsel for the respondents refuted the arguments of the appellant, supported the concurrent judgments and decrees of the two Courts below and urged that scribe of the alleged agreement to sell, cannot be treated as a marginal witness and in absence of statement of second marginal witness in support of the asserted agreement, is not proved in accordance with law. According to them, mere summoning of second marginal witness through process of Court was not enough and the appellant was required to move to the trial Court through an application that the witness has been won over, thus, the same may be summoned as a Court witness and on his appearance in the witness box, the witness should have been got declared as hostile and should have been subjected by cross-examination by the appellant but this course having not been adopted, the agreement to sell cannot be said to have been proved. They further contended that the only marginal witness PW. 3 produced by the appellant is a close relation of the appellant, as admitted by the appellant himself while appearing as his own witness, thus, was of not worth reliance and as such, both the Courts below have given correct findings regarding non-execution of the asserted agreement. It was also argued that had the agreement to sell claimed by the appellant been genuine, the appellant should have applied for comparison of thumb impression of Mst. Lal Begum with her admitted thumb impressions but this exercise was not also undertaken. They assertively argued that concurrent findings of facts recorded by the two Courts below, after due appraisal of evidence on the file are immuned from further scrutiny in second appeal especially when there is no misreading and non-reading of the same. Learned counsel for the respondents further elaborated their arguments by saying that Mst. Lal Begum was undeniably an illiterate villager lady and she will be presumed to be pardah observing lady as held by the Hon'ble Supreme Court in the case of Mst. Mehmooda Begum and others Versus Major Malik Muhammad Ishaq and others (1984 SCMR 890) and such women are protected under law as held by the Hon'ble Supreme Court in the cases of Mst. Badshah Begum Versus Ghulam Rasul and 4 others (PLD 1991 SC 1140) and Amirzada Khan and other Versus Itbar Khan and others (2001 SCMR 609).

5. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. It is settled principle of law that after denial of execution of some document, onus to prove it through positive evidence, shifts on the shoulders of the beneficiary. Under Article 17 of the Qanun-e-Shahadat Order, 1984, as agreement to sell, creates financial and future obligations and when reduced to writing, was required to be attested by two men or one man and two women and in view of provisions of Article 79 of Qanun-e-Shahadat Order, 1984, such document could only be used as evidence if at least two attested witnesses have been called for the purpose of proving its execution if those are alive, are subject to the process of the Court and are capable of giving evidence. The agreement to sell which was to be proved, according to the above noted principle, by the appellant, cannot be said to have been proved, in accordance with law by producing only one marginal witness because the scribe, having not signed the document as a witness, cannot be treated as its marginal witness, if any precedent regarding shifting of onus of proof on the shoulder of the beneficiary of the document, is needed, I can refer to the cases of Hakim Khan Versus Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Sana Ullah and another Versus Muhammad Manzoor and another (PLD 1996 SC 256) and Mst. Raseeda Begum and 3 others Versus Muhammad Yousaf and others(PLJ 2002 SC 706).

6. Earlier to coming into enforce of Qanun-e-Shahadat Order, 1984, an agreement to sell was not required by any law to be attested by two witnesses and whenever any such agreement was reduced to writing, its execution could be proved by producing only one witness under Section 68 of the Evidence Act, 1872 but by promulgation of Qanun-e-Shahadat Order, 1984, all the agreements, as noted above, require proof of those, in terms of Article 79 of the Order (ibid). In the instant case, the crucial point which falls for determination is that where an agreement to sell is attested by two witnesses and both are alive, are subject to process of Court and if one of those is won over by the party against whom such document is sought to be enforced, how the document shall be proved. Article 82 of the Qanun-e-Shahadat Order, 1984 has taken care of this eventuality, whereunder if an attesting witness denies or does not recollect the execution of the document then it can be proved by other evidence. The Hon'ble Supreme Court in the case of Mst. Rasheeda Begum and 3 others (supra) has very graciously dealt with a situation in which an agreement to sell was reduced to writing but was not attested by any witness. It was mandated that such agreement can be proved by other strong evidence and attending circumstances which can vary from case to case but those can also furnish a lawful proof, in first category of proof, as supporting evidence. To my mind, the appellant could prove execution of the asserted agreement to sell by applying to the Court with an assertion that the witness has been won over by the respondent, thus, he may be summoned as a Court witness and the appellant may be allowed to cross-examine the said witness, by declaring him hostile towards him but the appellant did not opt this course. No such averment was made by him in the plaint or the grounds of appeal before the First Appellant Court and at the same time, no such suggestion was put to the respondents that they have connived with his witness shown on the agreement to sell. Besides this mode of proof, the appellant could, as well, move to the trial Court for comparison of thumb impression of the original allottee/owner appearing on the impugned agreement with those admitted thumb impressions available on the record. It appears from the record that no such application was moved to the trial Court, the First Appellant Court and for that matter before this Court. Law has taken care of the situation in hand and as observed by the Hon,ble Supreme Court in the case of Mst. Rasheeda Begum and 3 others (supra) any other evidence going to support due execution of the agreement could be considered, in the cases involving the situation of winning over of the witness, in absence of any such evidence, we have to see whether circumstances of the case are such, on the basis of which, it flows that the allottee/owner lawfully executed the agreement or not. The agreement to sell is of those days in which the land has not been permanent settled/allotted in the name of Mst. Lal Begum, who undeniably was an illiterate villager lady and she will be termed as a pardah observing lady as mandated by the Hon'ble Supreme Court in Mst. Mehmooda Begum's case (supra). There is no evidence, worth the name on the file to show that Mst. Lal Begum was accompanied by any adult male member of her family or she had excess to any independent legal advise before parting with her immovable property. Though scribe while in the witness box stated that he read over this document to Mst. Lal Begum yet there is no such certificate on the impugned agreement to sell (Ex.P.I). Law regarding protection to the ladies like Mst. Lal Begum is settled by this time and we can fall back on a chain of judgments, a few out of those are Mst. Farid-ud-Nisa versus Munshi Mukhtar Ahmad and another (AIR 1925 P.C. 204), Sree Sree Gopal jeo Bigraha and others Versus Mst. Mahmuda Begum and others (PLD 1968 Dhaka 265), Mst. Mahmooda Bagum and others Versus Major Malik Muhammad Ishaq and others (1984 SCMR 890), Janat Bibi versus Sikandar Ali and others(PLD 1990 SC 642), Mst. Fazal Jan Versus Roshan Din and 2 others (PLD 1990 SC 661), Mst. Hassan Bibi Versus Ghulam Siddique and others (1992 CLC 402) and Baggu Versus Mst. Rahman Bibi (PLJ 1996 Lahore 989). I have examined Ex.P.I (agreement to sell) thumb impression of Mst. Lal Begum thereover has no visible wriggles and her alleged thumb impression appears to have been marked twice to make it indiscernible and probably this is the reason on the basis of which no application for comparison for thumb impressions was moved by the appellant. The appellant is son of a tenant holding land under the original allottee Mst. Lal Begum and after her death, he is so recorded under the respondents, thus, he will be considered in an active fiduciary relationship qua his land lady and was required to prove not only the bargain and the transaction reflected in the agreement but also the good conscience, thereof, but the file is absolutely thirsty of the proof, in this behalf. The appellant did not produce any evidence that he entered into asserted bargain of sale with Mst. Lal Begum and paid her any claimed earnest money and thereafter, took possession under it. The only witness examined by the appellant in support of all these facts which ought to have been proved, is PW. 3 Zafar, who is related to the appellant, as admitted by him while in the witness box as PW. 2. The appellant himself stated that he maintained a bank account but the amount of earnest money of Rs. 1,50,000/- was not withdrawn from his account but was allegedly lent from one Saif-ur-Rehman who was not produced in support of payment of proof to Mst. Lal Begum. In absence of any corroborative evidence in support of statement of PW. 3 and without any effort to examine the other witness as a hostile witness to lend support to the claimed agreement, mere summoning through process of the Court was not enough to assume that the second witness has become hostile towards the respondents unless and until the appellant had exerted in the manner explained above, appellant was not entitled to the relief prayed. Above all, circumstances of the case, detailed in this judgment, lead to the irresistible conclusion that neither Ex. P.I was executed by Mst. Lal Begum nor any such bargain was struck, maturing into any transaction as claimed by the appellant.

7. For what has been discussed above, I am constrained to hold that both the Courts below have rightly returned their findings with regard to execution of Ex.P.I and correctly refused its specific performance to the appellant. Both the Courts below have not misread any part of the record. Their judgments are neither arbitrary nor fanciful and no law point urged by the appellant goes in his favour. This second appeal has no merit in it and is accordingly dismissed. Leaving the parties to bear their own costs.

(F.M.) Second appeal dismissed.

PLJ 2005 Lahore 1154

Present: Muhammad Muzammal Khan, J.

MUHAMMAD ASLAM--Petitioner

versus

ADDITIONAL SESSION JUDGE, JHANG and 3 others--Respondents

W.P. No. 5007 of 2004, decided on 22.4.2004.

Constitution of Pakistan, 1973—

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 154--Registration of Criminal case--Application for--Dismissal of--Challenge to--Entitlement of hearing--Question of--Held: At time of FIR accused persons named in complaint had no right of hearing or in proceedings u/S. 154 Cr.P.C. hearing is not needed--Simiilarly application of petitioner for hearing and impleadment in proceedings u/S. 22-A was misconceived and thus was rightly dismissed--Petition dismissed.

[P. 1157] A, B & C

PLD 2000 Lah. 208; PLD 2003 Lah. 228 and 2002 PCr.LJ 9 ref.

Mr. Ghulam Hussain Malik, Advocate for Petitioner.

Mr. Taffazul H. Rizvi, Advocate for Respondent No. 4.

Date of hearing: 22.4.2004.

Order

This Constitutional petition seeks order dated 31.3.2004 passed by the learned Additional Sessions Judge, Jhang, to be declared as illegal, void and of no legal consequence, whereby hearing to the petitioner was refused while proceeding under Section 22-A Cr.P.C.

1. Precisely, relevant facts are that Respondent No. 4 filed an application under Sections 22-A and 22-B Cr.P.C. on 9.3.2004 for registration of a criminal case against the persons nominated therein, before the learned Sessions Judge, Jhang which was entrusted to Respondent No. 1 for disposal and decision in accordance with law. Respondent No. 1 summoned a report from the Police Station Athari Hazari, District Jhang, which was submitted on 24.3.2004. Petitioner moved an application for being impleaded as a party and hearing before any order on that application of Respondent No. 4. Learned Additional Sessions Judge (Respondent No. 1) dismissed the application of the petitioner through the order impugned.

2. Respondent No. 4 in response to notice has appeared through his counsel and I have heard both the learned counsel for the parties. Respondent No. 1 proceeded on an application under Section 22-A Cr.P.C. for registration of a criminal case. Section 22-A Cr.P.C. reads as under :-

"22-A. Powers of Justices of the Peace.--(1) A Justice of the Peace for any local area shall, for the purpose of making an arrest have within such area all the posers of the Police Officer referred to in Section 54 and of an officer-in-charge of a police station referred to in Section 55.

(2) A Justice of the Peace making an arrest in exercise of any powers under sub-section (1) shall, forthwith, take or cause to be taken the person arrested before the officer-in-charge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.

(3) A Justice of the Peace of any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him--

(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and

(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.

(4) Where a member of the police force on duty has been called upon to render aid under sub-section (3), such call shall be deemed to have been made by a competent authority.

(5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government, ---

(a) issue a certificate as to the identity of any person residing within such area, or

(b) verify and document brought before him by any such person, or

(c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.

(6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding --

(i) non-registration of a criminal case;

(ii) transfer of investigation from one police officer to another;

(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.

The above reproduced provisions of law gives a power to the learned Sessions Judges to direct registration of criminal case, in case of failure of the police officials to discharge their statutory obligations vested in them under Section 154 Cr.P.C. Since this basic provision of which enforcement is being done by the learned Sessions Judges does not envisage any hearing before registration of criminal case, hearing of an accused person before passing of any order under Section 22-A Cr.P.C. is not understandable. This Court earlier in the case of Saeed Ahmed and others vs. Naseer Ahmed and others (PLD 2000 Lahore 208) held that during the proceedings for registration of criminal case this Court while exercising Constitutional jurisdiction, was not obliged to hear the accused/respondent in the petition even if they were present, which was held to be limited only to the extent of directing the concerned authorities to register a criminal case. This Court again in the case of Sana Ullah vs. S.H.O. Police Station Civil Lines, Gujrat and 3 others (PLD 2003 Lahore 228) while interpreting Section 154 Cr.P.C. held that words used in Section 154 of the Criminal Procedure Code, 1898 "every information relating to commission of a cognizable offence" pertains only to the information so supplied and do not pertain to actual commission of the cognizable offence and that information supplied should be about an alleged commission of a cognizable offence irrespective of its truthfulness or otherwise and concerned police official has only to satisfy himself only to the extent that the information is in respect of a cognizable offence. It was also held that at the time of First Information Report, accused persons named in the complaint, have no right of hearing. A similar view was taken by the Sindh High Court in the case of Mst. Gul Reza and others vs. The State and others (2002 P.Cr.L.J. 9). It thus flows that if there is information relating to the commission of a cognizable offence, it falls under Section 154 Cr.P.C. and a police officer is under statutory obligation, without entering into inquiry and without hearing the accused persons, to enter it in the prescribed register. For this exercise, the only Pre-condition needed is that the information should disclose a cognizable offence, on the face of the allegations. Failure of the concerned police officer to register a complaint so made, amounts to failure to discharge statutory obligations, which attracts provisions of Section 22-A Cr.P.C. Since no hearing is needed for proceeding under Section 154 Cr. P.C. consequently, there is no such obligation on the learned Additional Sessions Judge, seeking enforcement of those provisions.

1. For what has been discussed above, I am constrained to hold that application by the petitioner for their impleadment and hearing in the proceedings under Section 22-A Cr. P.C. was misconceived and thus was rightly dismissed. The order passed within the competence and according to the provisions of law, cannot be declared as prayed. This Constitutional petition has no merit in it and is accordingly dismissed.

(F.M.) Petition dismissed.

PLJ 2005 Lahore 1157

Present: Muhammad Muzammal Khan, J.

Rana WAKEEL AHMAD KHAN--Petitioner

versus

CHIEF ELECTION COMMISSION and others--Respondents

W.P. No. 4723 of 2004, decided on 11.5.2004.

Punjab Local Government Election Rules, 2000--

----Ss. 29(2), 39 & 40--Notification of re-poll--Challenge to--Both statements of count did not carry any Note' at time handed over to polling agents but after coming from record of Returning Officer same statements sustainedNotes' so it was clear that after issuance of statement of count to polling agents, the "Note" in question were subsequently inscribed--Contention--Whether Presiding Officer could add any `Note' on his statement of count after distributing the same to candidates or their agents--Question of--Held: After completion of poll and consolidation of result, supervisory officials are not competent to add any "Note" and they are denuded of authority to direct re-poll except by intervention of Election Tribunal through an election petition, provided by law--Further held: Notification is illegal, void and without any lawful authority--Writ petition accepted. [P. 1163] A, B, C, D & E

2000 CLC 310; 1999 MLD 1814; NLR 1988 Civil 383; 2002 YLR 3283;

PLD 1999 Lah. 443; 1985 SCMR 729 and 1985 SCMR 1909 ref.

Mr. Muhammad Ahsan Bhone, Advoate for Petitioner.

Dr. Abdul Basit, Advocate for Respondent No. 7.

Mr. Khalid Pervaiz Warraich, Advocate for Respondent No. 9.

Date of hearing: 26.4.2004.

Order

This Constitutional petition seeks notification dated 31.3.2004 issued by Respondent No. 3 to be declared as illegal, void and without any lawful authority whereby District Returning Officer, Sheikhupura in exercise of his powers under Rule 29(2) of the Punjab Local Government Election Rules, 2000 directed fresh poll at Polling Stations No. 4 (Girls Primary School, Malik Pur) and Polling Station No. 5 (Government Girls Primary School, Towri Qasim) of Union Council No. 148 Jogaykot Naubahar, Tehsil Nankana Sahib, District Sheikhupura.

1. Precisely, relevant facts are that seat of Nazim, Union Council No. 148, Jogaykot Naubahar, Tehsil Nankana Sahib fell vacant due to resignation by the elected Nazim Javed Manzoor Gill, for his contest to the general election of Provincial Assembly. Schedule for the bye-election to seat of Nazim thus falling vacant, was announced according to which the election was held on 28.3.2004. The petitioner alongwith Respondents Nos. 7 to 10 submitted their nomination-papers, which were accepted after scrutiny, and election symbols were allotted to them. 13 polling stations were allocated for the day of poll, on which, conduct of election went on smooth, as no unwanted incident was reported and poll was not stopped, during the polling hours, by any of the Presiding Officer of all the 13 polling stations. All the Presiding Officers prepared their respective statements of count in terms of Rule 39 of the Punjab Local Government Election Rules, 2000 under their signatures who distributed the same to the candidates/polling agents. The statements of count prepared by the Presiding Officers at Polling Stations Nos. 4 and 5, remitted to the Returning Officer carried "Notes" thereunder. The Presiding Officer of Polling Station No. 4 mentioned on his statement of count that 174 votes were snatched by supporters of Shahid Manzoor Gill and that, according to counter foils, 179 votes were cast and instead, 183 votes came out of the ballot box. Similarly, Presiding Officer of Polling Station No. 5 gave a "Note" on his statement of count that he issued 453 ballot papers wherefrom 6 votes were spoiled and the rest were not issued by him and 113 votes were tender votes which were not issued by him and thus, may be considered, as cancelled.

2. Assistant Returning Officer Nankana Sahib on 28.3.2004 reported to the Returning Officer that he alongwith A.S.P. Nankana Sahib, under the orders of Retuning Officer visited Polling Station No. 4 of Malik Pur and on his arrival at the polling station, many people were gathered out side the polling station and when they entered the polling station, the Presiding Officers alongwith his staff were sitting idle, on inquiry they told him that some people have snatched ballot papers and affixed the stamps themselves. According to this report, counting at the polling station started in their presence and the polling agents. Meanwhile, he deputed SHO Faizabad and SHO Mangtanwala to take care of the staff posted at the polling station and he left for Nankana Sahib where he handed over complaint of the Presiding Officer to the Returning Officer.

3. The Returning Officer on 29.3.2004 transmitted his report to the District Returning Officer, in continuation of his earlier interim report dated 28.3.2004 wherein certain illegalities without details, were reported at Polling Stations Nos. 4 and 5, proposing re-poll of these both polling stations. In the subsequent report, the Returning Officer mentioned that Presiding Officer of Polling Station No. 4 had reported to him that at about 4.20 p.m. some persons had snatched ballot papers on gun point and had forcibly put those ballot papers in the ballot boxes. He also referred to the report of the A.P.O. and to the "Notes" given by the Presiding Officers of Polling Stations Nos. 4 and 5 on their statements of count. The Returning Officer also mentioned in his report that according to information conveyed by the Presiding Officer of Polling Station No. 5, number of ballot papers issued by him were 453 but at the time of counting, excess votes were recovered from the ballot box. A reference was also made to some application of the Presiding Officer wherein a scuffle at the polling station was reported and removal of the election material was also conveyed. The Returning Officer after consolidating his report, recommended re-poll on both the above-referred polling stations on account of rigging on gunpoint.

4. The District Returning Officer being influenced by the report of the Returning Officer dated 29.3.2004, opted to exercise his powers under Rule 29(2) of the Election Rules, 2000 and directed fresh poll on 7.4.2004 from 8.00 a.m. to 4.00 p.m. through notification dated 31.3.2004. The petitioner aggrieved of notification dated 31.3.2004 directing fresh poll by the District Returning Officer has filed instant Constitutional petition, for the relief noted above. Notification dated 31.3.2004 was suspended through an interim order dated 6.4.2004.

5. Learned counsel for the petitioner submits that entire exercise by the Returning Officer, as well as, the District Returning Officer, is not only illegal and unauthorized but is also contrary to law and the factual position on the ground. He further submitted that the "Notes" on the statements of Court prepared by the Presiding Officer at Polling Stations Nos. 4 and 5 were subsequently engineered which do not furnish a lawful basis for either report of the Returning Officer or for the notification by the District Returning Officer. According to his submissions, Presiding Officer of Polling Station Nos. 4 had given the result of final Count on Form No. XIII under his signatures, at the close of counting, which did not carry any "Note", allocating 177 votes to the petitioner and none was cast in favour of his adversary. Similar is the position at Polling Station No. 5 (Government Girls Primary School Towri Qasim), at this polling station, as well the Presiding Officer issued statement of count without any "Note". He further submitted that after preparing statements of count in terms of Rule 39 of the Punjab Local Government Election Rules, 2000, the Presiding Officers were not equipped with any authority to inscribe thereover any Note or to change it by any means whatsoever. It was also contended that even according to the report of the A.P.O., the polling was not stopped or interfered in terms of Rule 29 of the Election Rules, 2000 warranting re-poll of the said two polling stations. He further elaborated his arguments that even report of the Returning Officer is factually incorrect and has no legal basis for notification under Rule 29(2) of the Election Rules, 2000. He further contended that entire exercise of re-poll is illegal because after a proper count, preparation of statements in Form-XIII the only method to up set the result was an election petition.

6. Learned counsel appearing on behalf of Respondents Nos. 7 and 9 strenuously refuted the arguments of the petitioner, supported the notification dated 31.3.2004 issued by Respondent No. 3 and urged that both the Respondents 3 and 4 have acted correctly, according to the legal demands as the polling was not held fairly/justly and was interrupted by the petitioner and his party-men by snatching ballot papers as is evident from the report of the concerned Presiding Officers. It was further submitted that the controversy raised by the petitioner cannot be decided in the Constitutional jurisdiction of this Court as the same requires recording of evidence and thus, the petitioner may be required to approach the Election Tribunal after completion of election process.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Under Rule 39 of the Election Rules, 2000, the Presiding Officer is required to count the votes immediately after the polling, in presence of the contesting candidates or their agents, facilitating them to observe the count and providing them information with regard to orderly conduct of the count and proper discharge of his duties. The Presiding Officer is required to prepare statement of count in Form-XIII immediately after the count, showing therein the ballot papers issued, the votes polled for each contesting candidates and ballot papers excluded from count besides preparing a list in Form-XIV showing separately, number of ballot papers entrusted to him, number of ballot papers taken out of the ballot boxes, number of tender/challenge ballot papers, spoilt/un-used ballot papers. The Presiding Officer is also required to give certified copies of the statement of count so prepared by him to the condidates/polling agents. In the instant case, the petitioner his produced statements of count prepared on both the Polling Stations Nos. 4 and 5, which were issued by the respective Presiding Officers under their signatures. Both these statements of count do not carry any "Note" whereas statements of count of the same polling stations coming from the record of the Returning Officer have "Notes" on those, already noted above. Comparison of statements of count produced by the petitioner and those coming from the record of Returning Officer makes it clear, even to a man of ordinary prudence that after issuance of statements of count to the polling agents, the "Note" in question were subsequently inscribed. The point, which hinges for determination is, as to whether the Presiding Officer could add any "Note" on his statement of count after distributing the same to the candidates or their agents. There is no provision in the Election Rules, 2000 or in the Punjab Local Government Ordinance, 2001, authorizing the Presiding Officer to change or to give subsequently any "Note" on his statement of count, on whatever ground it may be. In similar circumstances, this Court in the case of Muhammad Afzal Versus District Judge/District Returning Officer (2000 CLC 310) held that the Presiding Officer, after issuance of statement of count, becomes functus officio and cannot change the result, already declared by him. In this precedent case, name of the writ petitioner was notified in the gazette notification as successful candidate for a general Muslim Seat and he took. Oath of his office but District Returning Officer subsequently on the basis of a direction issued by the Provincial Election Commissioner, deprived him of his success, declaring his adversary as successful and this Court after scan of all the provisions of Election Rules, 2000 held that the entire activity after declaration of result, was unauthorized. In another case Division Bench of this Court in the case of Sharafat Ali Nasir Versus Punjab Local Councils Election Authority and 3 others (1999 MLD 1814) held that the election wherein candidates participated, whether it was illegal or void, was challengeable through an election, petition before the Election Tribunal as after holding the election, all the functionaries become functus officio. In this case, re-poll order by the Election Authority was set aside. In another case decided by a Division Bench of Peshawar High Court in the case of Begum Tallat Jan and another Versus Presiding Officer etc. (NLR 1988 Civil 383) decided that after declaring the result in the prescribed Form, the Presiding Officer becomes functus officio and looses jurisdiction over the matter. It was also observed that preparation of second result by any of the authorities carries no legal sanctity. It was also propounded in this judgment that even in the election matters, where the exercise of excess of jurisdiction or legal errors are apparent on the face of the record, Constitutional jurisdiction of the High Court is not barred for intervening in the matter. While interpreting Rule 29 of the Election Rules, 2000, this Court gave a decision in the case of Malik Amjad Farooq Paracha Versus Chief Election Commissioner of Pakistan and 12 others (2002 YLR 3283) and held that stopping of poll and failure of voters to turn up at polling stations or to participate in the election during the polling hours would neither materially affect the result of election nor would be a valid ground for issuance of a direction of re-poll in exercise of powers under Rule 29 of the Election Rules 2000. It was further held that defeated candidate after declaration of official result could conveniently challenge the election through an election petition on such ground and can seek a declaration that the election as a whole was void but in any case Rule 29 of Punjab Local Government Elections Rules, 2000 could not be invoked for the benefit of the loosing candidate. In another Division Bench judgment of this Court in the case of Muhammad Arshad Versus Punjab Election Authority, Lahore and 4 others (PLD 1999 Lahore 443) in which the election authority passed an order for fresh polling at two polling stations claiming those to be disturbed, while determining validity of order, it was held that where the result of the two polling stations was not only ascertained but duly compiled and sent to the competent authority in the manner prescribed, the Election Authority was not competent under Rule 29 of the Punjab Local Councils (Election) Rules, 1979 to order fresh polls at such two polling stations and ultimately order of the election authority was declared to be without any lawful authority or jurisdiction. The Non'ble Supreme Court in the case of Emmanual Masih versus The Punjab Local Councils Election Authority and others (1985 SCMR 729) mandated that after close of election, the Election Authority becomes functus officio and validity of the election could be challenged by the aggrieved persons only through an election petition. The Hon'ble Supreme Court in another case of Hayat Muhammad and 4 others Versus Election Authority and others (1985 SCMR 1909) while interpreting Section 17 of the Punjab Local Government Ordinance, 1979 very graciously held that the Election Authority was not vested with power to pass an order for fresh poll.

8. Both the Presiding Officers of Polling Stations Nos. 4 and 5 of Union Council No. 148, Tehsil Nankana Sahib, District Sheikhupura not only counted the ballot papers under the guard of police officials, as reported by the APO but also compiled the same and transmitted the result in Form-XIII to the Returning Officer, besides delivering copies of those to the contesting candidates/polling agents, as those have been produced by them before this Court and thereafter, they were not competent to add any "Note" as has been done by them. Tampering with the election record or interfering with election process is cognizable offence but both the Presiding Officers did not take any punitive action during the polling hours against the culprits. Rule 29 of the Punjab Local Government Election Rules, 2000, provides that Presiding Officer shall stop polling and would inform the Returning Officer that he has done so, in case of interruption or obstruction in the polling beyond his control but no such report was remitted to the Returning Officer by any of the two Presiding Officers, during the polling hours. The learned Returning Officer has repeatedly emphasized that ballot papers were snatched on gun point and were forcibly put in the ballot boxes but there is no evidence with regard to any such exercise on gunpoint. Both the reports of the Presiding Officers which were subsequently engineered are absolutely silent about use of firearm. Report of the APO does not mention any such user. Telephonic message by Muhammad Ashgar Shah, SST, Headmaster Government Elementary School Mangtanwala, Presiding of Polling Station No. 4 (Girls Primary School, Malik Pur) to the Returning Officer does not find any clue, in black and white from any of the officer concerned and it appears that the Returning Officer in order to ornament his report thrusted this fact just to give strength to his recommendations of re-poll on the Polling Stations Nos. 4 and 5. None of the Respondents No. 3 and 4 have opted to issue any kind of notice to the contesting candidates or to undertake a pain of inquiry into those assertion disputed facts, themselves or through some official, by a visit at the polling stations. No incident of interruption in the polling, scuffle between the candidates or their supporters during that time, was ever reported to police on 28.3.2004 and in absence of any such reporter, action under Rule 29, above referred, the entire exercise of re-poll appears to be afterthought. The superior Courts have repeatedly held that after completion of poll and consolidation of result, the supervisory officials are denuded of authority to direct re-poll except by the intervention of the Election Tribunal established for the purpose.

9. Since pre-requisites for a fresh poll, as visualized by Rule 29 of the Punjab Local Government Election Rules, 2000 were not fulfilled in the case in hand and the result of the election had been determined by the polling which had already taken place on both the polling stations, above referred, an illegal attempt has been made to direct fresh poll, thus, I cannot resist invocation of Constitutional jurisdiction to redress the unwarranted exercise which could only be undertaken by the Election Tribunal through an election petition, provided by law.

10. For what has been discussed above, I am constrained to hold that both the reports by Respondent No. 4 on 28.3.2004 and 29.3.2004 urging re-poll on Polling Stations Nos. 4 and 5 are illegal, unfounded and without any legal basis, as result of which notification dated 31.3.2004 issued by Respondent No. 3 is also void and unauthorized, consequently this writ petition is accepted and writ as prayed is issued with the direction to Respondents Nos. 3 and 4 to prepare consolidated statements in terms of Rule 40 of the Punjab Local Government Election Rules, 2000, on the basis of statements of count furnished by the Presiding Officers of Polling Stations Nos. 4 and 5 in terms of Rules 39 of the Election Rules (ibid) and to declare the result of the election accordingly. There will be no order as to costs.

(F.M.) Petition accepted.

PLJ 2005 Lahore 1164

Present: Sayed Zahid Hussain, J.

PAK AMERICAN FERTILIZERS, LIMITED through its MANAGING DIRECTOR, MIANWALI and another--Petitioners

versus

BAHADAR KHAN and 53 others--Respondents

W.P. No. 6844 of 2004, heard on 28.5.2004.

Administration of Justice--

----Principle of Natural Justice--Constitution of Pakistan, 1973, Art. 199--"Nemo judgex in re sua"--Question of--`No man is judge in his own cause' "Nemo Judge in re-sua" that means a judge is disqualified from determining any case in which he can be suspected to be biased--Held: Justice would not only be done, but would manifestly and undoubtedly be seen to be done"--ADJ should not have heard and death with appeal but by doing so be violated principles of natural justice and consequently order is null and void--Appeal filed by petitioner would be deemed pending which will now be decided in accordance with law by District Judge--Petition accepted. [Pp. 1165 & 1166] A & C

Civil Procedure Code, 1908 (V of 1908)—

----S. 12(2)--Principles of natural justice--Same officer acted, lower as well as appellate forum--Objection on--Contention--Such objection was not taken before ADJ--Held: Needless to say that lack of jurisdiction vitiates proceedings and consequential order as nullity--Even consent of a party and non-objection before the forum cannot be construed to have conferred jurisdiction--There was no absolute rule that objection to jurisdiction if had not been taken before lower forum could in no case be taken before High Court, so contention is repelled--Petition accepted.

[P. 1166] B

1984 SCMR 925 rel.

Mr. Aftab Gul, Advocate for Petitioners.

M. Ghulam Hussain Malik, Advocate except 2, 12, 52 to 54 for Respondents.

Date of hearing: 28.5.2004.

Judgment

Mehr Muhammad Yousaf, the learned Additional District Judge, Mianwali has dismissed the appeal in limine vide order dated 30.1.2004, which order has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the same Judicial officer had dealt with the matter and passed effective orders as a trial Court when he was Civil Judge. It is contended by the learned counsel that he could not have heard the matter and the order passed by him is without lawful authority. The learned counsel for the respondents on the other hand contends that since such an objection was not taken before the learned Additional District Judge, the order cannot be assailed on that ground.

1. The respective contentions of the learned counsel have been considered.

2. Proceedings in the matter emanated from a civil suit in which a decree was passed by Mehr Muhammad Yousaf, the then Senior Civil Judge, Mianwali on 18.6.2001. The petitioners filed an application under Section 12(2) of the Code of Civil Procedure, 1908 qua the same, which was again dealt with and was disposed of by the same learned Presiding Officer namely Mehr Muhammad Yousaf, Senior Civil Judge, Mianwali on 5.9.2001. A fresh application under Section 12(2) of the Code of Civil Procedure, 1908 was filed by the petitioner for setting aside the decree dated 18.6.2001 (passed by Mehr Muhammad Yousaf the then Civil Judge), which application was rejected on 11.12.2003 by Mr. Taimur Hayat Gondal, Senior Civil Judge, Mianwali in view of the withdrawal and dismissal of the earlier application of the petitioners under Section 12 (2) of the Code of Civil Procedure, 1908. This was the order appealed against by the petitioners, which appeal was heard and dismissed in limine by Mehr Muhammad Yousaf as appellate Court who had by then been promoted and was Additional District Judge, Mianwali. The said order has been passed by making explicit reference to decree dated 18.6.2001, which had been passed by himself in the suit and the dismissal of the application under Section 12 (2) of the Code of Civil Procedure, 1908 again by himself vide order dated 5.9.2001. In such context the question arises as to whether he should have heard or disposed of the appeal, which related to the effective orders passed by him as a lower Court. Suffice it to observe that when a lis is taken from the lower Court to the higher forum it deserve to be heard and dealt with by a judicial Officer having no nexus and who is capable of applying independent mind and who had not dealt with the matter in the lower forum. Otherwise it can legitimately be complained by the party and construed that the same Officer has acted as lower as well as the appellate forum and his cause had suffered from a prejudice and bias.

3. Needless to state that principles of natural justice which are regarded as fundamental basis for administration of justice cannot be disregarded or overlooked. There is one such principle often quoted and applied that no man is judge in his own cause "nemo judgex in re sua". The rationale behind and idea underlying is that a judge is disqualified from determining any case in which he may be or may fairly be suspected to be biased. There is equally a well known saying that "justice should not only be done, but should manifestly and undoubtedly be seen to be done". By dealing and deciding a case an Officer in the Court of first instance and then

hearing and deciding it as appellate/revisional Court, such well entrenched principles, are disregarded, which vitiate the proceedings and consequently order is null and void. The principle is so fundamentally well defined and universally accepted as a basic concept of law and natural justice, that no one can think of violating the same. It indeed disqualifies the judge to hear and decide such a matter. It is only when such concepts of administration of justice are kept in view, that fair and even handed justice can be expected from the Court.

1. In the instant case the learned Additional District Judge should not have heard and dealt with the appeal but by doing so he acted in violation of the law and principles of natural justice and rendered his order as of no legal effect.

2. Insofar as the contention of the learned counsel for the respondents that no such objection was raised before the learned Additional District Judge is concerned, needless to observe that such lack of jurisdiction vitiates the proceedings and the consequential order as nullity. Even the consent of a party and non-objection before the forum cannot be construed to have conferred jurisdiction. In Hai Abdul Sattar v. Additional District Judge, Rawalpindi and others (1984 SCMR 925), relying upon an earlier decision of the Supreme Court in (PLD 1971 S.C. 197), it was held that there was no absolute rule that objection to jurisdiction if had not been taken before the lower forum could in no case be taken before the High Court in writ jurisdiction. The objection of the learned counsel for the respondent is thus un-tenable and is repelled.

In view of the above, the order impugned is not sustainable and is declared so. The petition is accordingly accepted, as a consequence whereof the appeal filed by petitioners would be deemed pending, which will now be heard and decided in accordance with law by the learned District Judge, Mianwali. The parties to cause their representation before him on 21.6.2004. No order as to costs.

(F.M.) Petition accepted.

PLJ 2005 Lahore 1166

Present: Ch. Ijaz Ahmad, J.

ZAHID ALI--Petitioner

versus

FIRST PUNJAB MODARBA, MANAGED BY PUNJAB

MODARBA SERVICE (PVT) LTD., LAHORE and 2 others--RespondentS

W.P. No. 6362 of 2004, decided on 29.4.2004.

Civil Procedure Code, 1908 (V of 1908)—

----S. 12(2), 151--Constitution of Pakistan, 1973, Art. 199--Suit for recovery--Suit decreed--Application u/S. 12(2) dismissed--Constitutional petition--Dismissal of--Challenge to--Whether writ jurisdiction could not be invoked alternate remedy being available to petitioner and whether second petition was barred by principle of constructive res-judicata--Questions of--Held: Petition was not maintainable as petitioner had alternate remedy in form of appeal--Petitioner had challenged decree in earlier round of litigation in Constitutional petition which was dismissed, therefore, principle of constructive res-judicata is applicable to instant petition as principles of CPC apply to Constitutional proceedings--Petition dismissed. [P. 1168] A, B, C, D, E & F

PLD 1997 SC 304; PLD 1996 SC 246; PLD 1970 SC 1 and

PLD 1987 SC 145 ref.

Mr. Javed Iqbal Bhatti, Advocate for Petitioner.

Date of hearing: 29.4.2004.

Order

The brief facts out of which present writ petition arises are that the respondents filed a suit for the recovery of Rs. 18,24,087/- against the appellant before the Chairman Moderaba Tribunal Punjab, who passed the decree against the appellant vide judgment and decree dated 29.5.1999. The petitioner did not challenge the said decree in appeal before this Court and filed an application under Section 12(2) read with Section 151 of CPC before the tribunal below on 10.9.1999, which was dismissed vide order dated 18.10.1999. The petitioner being aggrieved filed Constitutional Petition No. 22878-1999, which was dismissed by the Division Bench of this Court vide judgment dated 17.2.2004. The petitioner has filed this Constitutional petition with the following prayer :--

"It is prayed that by accepting this writ petition, the impugned judgment and decree dated 29.5.1999 to the extent of excessive amount than claim of Rs. 15,18,750/- be set-aside and the Respondent No. 1 may kindly be directed to receive the remaining amount in easy installments. It is further prayed that till the final disposal of this writ petition, the execution proceedings may kindly be suspended stayed meanwhile."

1. The learned counsel of the petitioner submits that the tribunal below has granted the excessive decree beyond the amount mentioned in the documents before the tribunal below, therefore, the impugned order is without lawful authority. He further submits that the judgment of banking tribunal is not in accordance with law laid down by the Superior Court. In support of his contention, he relied upon the following judgments :--

"Mian Munir Ahmad vs. United Bank Limited, etc." (PLD 1998 Karachi 278);

"Sh. Muhammad Naeem vs. Habib Bank Ltd. Karachi" (2003 C.L.D. 606);

"Farzand Raza Naqvi, etc. vs. Muhammad Din, etc." (2004 S.C.M.R. 400).

1. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record.

2. The petitioner has alternative remedy against the impugned judgment before this Court which would be heard by two Judges of this Court. This petitioner has not challenged the said decree in appeal. This fact alone is sufficient that the petitioner has approached this Court with un-clean hands. The petitioner has challenged the decree dated 29.5.1999 through this Constitutional petition, which was filed by the petitioner before this Court on 28.4.2004, which is liable to be dismissed on the well known principle of laches, as per principle laid down by the Honourable Supreme Court in "Khiali Khan vs. Haji Nazir and four others" (PLD 1997 S.C. 304). It is settled principle of law the Constitutional petition is not maintainable in the presence of alternative remedy as per law laid down by the Honourable Supreme Court in "Ch. Muhammad Ismail's Case" (PLD 1996 S.C. 246). It is settled principle of law that the principles of CPC are applicable in Constitutional proceedings as per principle laid down by the Honourable Supreme Court in "Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others" (PLD 1970 S.C. 1). The second writ petition qua the same subject matter and relief is not maintainable in view of Section 11 of CPC, as per principle laid down by the Honourable Supreme Court in "Pir Bakhsh, vs. Chairman Allotment Committee" (PLD 1987 S.C. 145). It is pertinent to mention here that as mentioned above, the petitioner has challenged the decree in the earlier round of litigation in Constitutional Petition No. 22878-1999, which was dismissed by the Division Bench of this Court vide judgment dated 17.2.2004, therefore, the constructive res-judicata is applicable in all force in the present case. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. The judgments cited by the learned counsel of the petitioner, are not relevant to resolve the controversy between the parties in view of aforesaid peculiar circumstances and fact of the case in hand, as per principle laid down by the Honourable Supreme Court in "Trustees of the Port of Karachi, vs. Muhammad Saleem" (1994 S.C.M.R. 2213)

In view of what has been discussed above, this writ petition has no merit and the same is dismissed.

(F.M.) Petition dismissed.

PLJ 2005 Lahore 1169

[Rawalpindi Bench Rawalpindi]

Present: Maulvi Anwar-ul-Haq, J.

Brig. (R) MUHAMMAD ARIF--Petitioner

versus

WAPDA through its CHAIRMAN WAPDA HOUSE, SHAHRE QUAID-E-AZAM, LAHORE and another--Respondents

W.P. No. 282 of 2001, heard on 3.3.2004.

Compulsory Service (Armed Forces) Ordinance, 1965—

----S. 9--Constitution of Pakistan, 1973, Art. 199--Compuslory service--Release from--Reinstatement--Employer was bound to reinstate such applicant in service favourable to him according to his entitlement provided he applied for so, within 3 months of his release from said compulsory service--High Court directed WAPDA to obtain appropriate order from Manpower Tribunal within 7 days in terms of S. 9(3)(a)(b) of the Ordinance--In case of failure by WAPDA in applying so to Tribunal, petitioner would automatically be deemed reinstated in service u/S. 9(1) of the Ordinance, 1965. [P. 1171] A & B

Mr. Zaheer Ahmad Qadri, Advocate for Petitioner.

Mr. M. Munir Peracha, Advocate for Respondents.

Date of hearing: 3.3.2004.

Judgment

In this writ petition, filed in this Court, on 11.12.2000, the petitioner states that he was appointed as a Shift Engineer vide order dated 22.10.1965 (Annex: C') in WAPDA. He was conscripted and commissioned in Pakistan Army on 13.12.1965 under the provisions of the Compulsory Service (Armed Forces) Ordinance, 1965. In terms of the provisions of the said Ordinance, he was assured by WAPDA vide letter dated 21.7.1969 (Annex:D') that officers placed like the petitioner will be taken back in service provided they report within three months of their release from Army. The petitioner was retired and released from Army w.e.f. 14.12.1995.

1. Now it appears that in his anxiety not to miss the Bus, expecting retirement, he approached WAPDA somewhere in the year 1995. WAPDA-responded vide letter dated 24.4.1995 (Annex: G') stating that Ex-Defence Forces Officers are re-employed against 10% quota which stands exhausted and as such the petitioner's re-employment in WAPDA is not possible. Thereafter, he started corresponding unilaterally for the said re-employment while still in Army service. On 23.8.1995 (Annex:J') formal orders were issued by the GHQ (MS Branch) declaring that he will be struck off duties w.e.f. 14.12.1995 and granted leave pending retirement under the existing Rules. On receipt of the said letter, he again wrote to the Chairman, WAPDA, on 13.9.1995 (Annex: `K') informing of the receipt of the said formal orders and requesting for re-employment. He repeatedly wrote letters on the said line to WAPDA, receiving no response. After the said refusal he filed an application before the learned Federal Ombudsman on 10.1.1996. WAPDA objected to the jurisdiction of the learned Ombudsman and the plea taken was that he was called up by the Army while he was a probationer with WAPDA and further that the said Ordinance of 1965 stands lapsed upon lifting of emergency. The learned Ombudsman as per findings recorded on 14.11.1996 rejected the case. A review application was also dismissed on 26.11.1996 while the President dismissed the representation on 15.11.2000.

2. Now as against the said plea taken in April, 1995 and then before the learned Ombudsman the plea taken by WAPDA in this Court is that since the petitioner did not apply within three months of his release from the Army, he is not entitled to the benefit of the said provision of the said Ordinance of 1965. Learned counsel for the petitioner contends that it is a matter of record that the petitioner did approach WAPDA and notwithstanding the fact that his re-employment under the said Ordinance of 1965 is assured, he was not employed. Further contends that the word "whitin" used in the said law is to be construed as both before and after the release. Now the contention of the learned counsel for the respondent is that admittedly no application was filed by the petitioner for re-employment within three months of his release from Army and according to the learned counsel the said provision is to be read as three months after the release. Further contention is that under the said law, WAPDA is entitled to get a finding from the Manpower Tribunal exempting it from the said provision and this can be done by means of an application to be filed within seven days of the application filed by the employee for re-employment.

3. I have examined the pleadings of the parties and several documents placed on the record by the petitioner in the light of the said contentions of the learned counsel for the parties. The facts as stated by me above, are almost admitted. Section 9(1) of the said Compulsory Service (Armed Forces) Ordinance, 1965 is as follows: --

"9. Reinstatement of persons released under the orders of the Board.--(1) Subject to the other provisions of this section, every employer by whom a person was released for service under this Ordinance, in pursuance of a notice served under Section 6, shall, on the termination of such service, reinstate such person in the employment from which he was released, and if such reinstatement is less favourable to such person than that to which he would, in the ordinary course, have been entitled, give him such employment as is not so less favourable:

Provided that the employer shall not be required to so reinstate or employ any person if such person does not apply or report to him for the purpose within three months of his release from service under this Ordinance."

Now it will be seen that where any person released from the said compulsory services makes an application or a report to the employer for reinstatement within three months of his release from the said service under the Ordinance, the employer shall reinstate him in service favourable to him in the ordinary course according to his entitlement.

1. Now going by the strict letter of the said law, the interpretation being placed by the learned counsel for the respondents appears to be more reasonable i.e. a person has to apply within three months of his release from service and not within three months before his release from service. At the same time, it is but apparent on the face of the record that the petitioner did make a claim and the respondent was conscious of the same while refusing the same in a rather unceremonious manner.

2. Now sub-section (2) of the said Section 9 gives a right to the employer to file an application with the Manpower Tribunal who is authorized to make any of the orders mentioned in clauses (a) or (b) of sub-section (3) of the said Section 9 of the Ordinance of 1965. I may further note here that the learned counsel has raised the question of jurisdiction in terms of the Service Tribunal Act, 1973. To my mind the objection has no force as the matter pertains to enforcement of the provision of said law in terms of the same and not as a term and condition of the service of the petitioner with the respondents.

3. For all that has been discussed above, this writ petition is disposed of in presence of the learned counsel for the parties, with the observation that within seven days from today, the respondent-WAPDA, if so advised, shall make an application before the Manpower Tribunal as defined in Section 2(f) of the Compulsory Service (Armed Forces) Ordinance, 1965 and to further act on the orders of the said Tribunal to be passed in terms of Section 9(3)(a) or (b) of the said Ordinance. In case the said application is not filed within said seven days commencing today, the petitioner shall stand reinstated in service of the respondents in terms of Section 9(1) of the said Ordinance, 1965 w.e.f. the date of institution of this writ petition noted above. No orders as to costs.

(J.R.) Petition disposed of.

PLJ 2005 Lahore 1172

Present: Sayed Zahid Hussain, J.

SHEERAZ AZIZ CHEEMA--Petitioner

versus

PUNJAB PUBLIC SERVICE COMMISSION through its SECRETARY, SIR AGHA KHAN ROAD, (DAVIS ROAD), LAHORE and 2 others--Respondents

W.P. No. 17566 of 2003, heard on 16.3.2004.

Constitution of Pakistan, (1973)—

----Art. 199--Post of Assistant Sub-Inspector--Petitioner was not recommended due to lower merit--Representation before Punjab Public Service Commission for awarding additional marks for LL.B higher qualification to attain merit was refused--Petitioner had admitted in application form that his LL.B result was not declared till closing date for submission of application form--Reason of--Result had been declared before closing date but petitioner was not aware of the same--Plea of--Held: Mere a representation in application form which according to petitioner was based on lack of information and contrary to reality could not be given that much weight--If indeed the result had been declared before closing date petitioner had acquired the additional qualification--He could not be denied the benefit of additional marks for reason which prevailed with the Commission--Further held: Too much adherence to technicalities which impedes cause of justice cannot be countenanced by Court--Petition disposed of. [Pp. 1174 & 1175] A, B & C

Mr. Mushtaq Ahmad Muhammad, Advocate for Petitioner.

Mr. Fazal Miran Chohan, A.A.G. with M/s. Manzoor Hussain Bhatti, Director Legal and Abdul Razzaq, Dy. Director Legal Pb. Public Service Commission for Respondents.

Date of hearing: 16.3.2004.

Judgment

The petitioner, a law graduate was a candidate to compete for the post of Assistant Sub-Inspector (BS-9) pursuant to an advertisement for 279 posts in the Punjab Home Department, (Gujranwala Range). He was found eligible and qualified the written test. He was called for interview, which was held on 29.5.2003. On completion of the process the Punjab Public Service Commission (to be referred as the Commission) recommended 279 candidates but the petitioner was not recommended as according to the Commission he "could not come in the orbit of selection due to lower merit". He is stated to have made a representation before the Commission for awarding of additional marks for his qualification of LL.B. Since no favourable decision was made by the Commission he has eventually approached this Court through a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with his grievance and prayer that "the act or respondent No. 1 for not awarding three marks to the petitioner for his LL.B. higher qualification may very kindly be declared illegal, unlawful, void ab initio, nullity in the eye of law, inoperative qua the rights of the petitioner, without lawful authority and of no legal effect on the rights of the petitioner and the Respondent No. 1 Punjab Public Service Commission may be directed to award three (3) marks to the petitioner for his LL.B higher qualification and to determine the merit of the petitioner after adding three marks for the purpose of merit and the Respondent No. 1 be further directed to recommend the petitioner for the post of Assistant Sub-Inspector (BS-09) according to merit and the Respondents Nos. 2 and 3 be directed to appoint the petitioner as Assistant Sub-Inspector (BS-09) in the interest of justice." In support of the petition that the petitioner was entitled to three marks for his qualification of LL.B the learned counsel contends that as per the policy decision of the Commission the petitioner was entitled to the same and he has wrongly been denied the additional marks. According to him with the addition of three marks he comes within the orbit of selection and attains higher merit position.

1. The respondents were directed to submit report and parawise comments. Respondent No. 2 i.e. the Government of the Punjab, through Home Secretary, Civil Secretariat, Lahore has responded that "the points agitated by the petitioner in the instant writ petition primarily relate to Respondent No. 1 Punjab Public Service Commission and do not require any comment from Respondent No. 2". Respondent No. 3 i.e. Provincial Police Officer Punjab, Lahore has taken the position that "award of additional marks for higher qualification is not in the purview of the answering respondent and is the sole prerogative of Punjab Public Service Commission." The petition has, however, been contested by Respondent No. 1 by filling report and parawise comments. The learned Additional Advocate General Punjab has been heard in the matter.

2. The undisputed position, which is also stated in the report submitted by Respondent No. 1, is that the petitioner was one of the candidate and applicant for the post of Assistant Sub- Inspector who was found eligible and qualified the written test. He was interviewed on 29.5.2003 "but no additional marks of LL.B. were awarded to him because the petitioner himself admitted in the application form that his LL.B. result was awaited and was not declared till 15.07.2002 i.e. the closing date". There is admission in Para No. 2 of the comments that "at the time of interview he produced the detail marks of his L.L.B. examination but no marks on account of additional qualification of L.L.B. certificate were given to him because he himself admitted in the application form that result of his L.L.B. exam was awaited on the last date for submission of application form. The Detail marks Certificat/transcript of L.L.B. examination also contains a date i.e. 18.11.2002 at the bottom thereof." There is thus no dispute that the petitioner holds additional qualification of L.L.B but the moot point is whether the approach adopted by the Commission in disallowing the additional marks was justified in the facts and circumstances of the case. There is no dispute that while submitting his application form the petitioner had stated that the result of L.L.B was awaited but his case on the basis of result-sheet dated 10.7.2002, (copy whereof has been placed on the record) is that though the result had been announced on 10th of July 2002 he was not aware of the same. In support thereof letter dated 30.5.2003 by the International Islamic University, Islamabad addressed to the Secretary, Punjab Public Service Commission is being invoked that the result had been declared on 10.7.2002 before the closing date of 15.7.2002. It is thus pleaded that on the closing date he had acquired the additional qualification of LL.B and was entitled to the additional marks. Prima facie the assertion of the petitioner finds support from letter dated 30.5.2003 issued by the International Islamic University, Islamabad and if there was any doubt thereabout the Commission could have verified the factual position from the University. This, however, appear to have not been done. The reliance of the learned counsel for the petitioner upon Dr. Muhammad Nazir Khan vs. Govt. of Punjab etc (PLJ 1996 Lahore 1210) in the circumstances lends support to his claim wherein it was observed that "The mere fact that an activity was not previously claimed or a certificate in support of it was not produced cannot affect the genuineness of the claim made at a subsequent stage. The genuineness of a claim or document is a question of fact to be determined on its own factual merit and not by an inference based on a presumption." Suffice it to observe that mere a representation in the application form which according to him was based on lack of information and contrary to the reality could not be given that much weight. If indeed the result had been declared before the closing date and he had acquired the additional qualification. He could not be denied the benefit of additional marks for the reasons which prevailed with the Commission. There is no denial of the fact that the policy decision of awarding additional marks for higher qualification was currently operative. Such a beneficial policy had to be construed in a manner, which advances underlying object and purpose of the same. It could not be applied in a manner to deprive a person what was his due and entitled to. Needless to reiterate that too much adherence to technicalities which impedes the cause of justice cannot be cannot be countenanced by the Court. Assertion as to whether the petitioner had indeed attained the additional qualification of LL.B before the closing date i.e. 15.7.2002 can still be verified by the Commission by making reference to the International Islamic University, Islamabad and in case the finding is in affirmative to formulate its recommendations accordingly.

The petition is accepted with the direction that the assertion and claim of the petitioner will be dependent upon the verification of the facts from the International Islamic University, Islamabad and the finding of the Commission.

The Contention of the learned counsel for the petitioner that none of the recommendees/appointed personnel (who are not party to his petition) would be adversely affected will also be considered by the Commission while formulating its recommendations in the light of the factual finding as to the date of the acquisition of additional qualification by the petitioner. This exercise will be undertaken and completed by the Commission within a period of 30 days. Accepting the petition in the above terms the same is disposed of accordingly. No order as to costs.

(F.M.) Petition disposed of accordingly.

PLJ 2005 Lahore 1175

Present: Muhammad Muzammal Khan, J.

PROVINCE OF PUNJAB through COLLECTOR, DISTRICT TOBA TEK SINGH and 4 others--Petitioners

versus

Haji WALI MUHAMMAD and 4 others--Respondents

C.R. No. 1703 of 1998, heard on 12.12.2003.

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)—

----S. 30(2)--Cancellation of allotment--Notice of hearing--Principles of natural justice--Violation of--No notice of hearing was served on respondents under S. 30(2) before cancellation of allotment--Effect--Provision of notice of hearing before cancellation was a statutory provision and respondent being a lawful transferee was entitled to notice as well as hearing, thus the order was bad in law. [P. 1179] A

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)—

----Ss. 16 & 30(2)--Scope of--Held: Board of Revenue can proceed against fraudulent transfers of tenancy rights obtained through mis-representation but not with regard to land permanently settled on the allottees--Where the respondents had paid the entire price of land, had deposited all other incidental charges and had taken over the possession, in such circumstances, their allotment could not be cancelled--Board of Revenue was not equipped with any authority even to cancel allotment in favour of the respondent after receipt of price and execution of sale-deed.

[Pp. 1179 & 1180] B

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)—

----S. 30(2)--Delegation of powers by the Board of Revenue--Validity--Ultra vires act--Absence of fraud or misrepresentation--Power under S. 30(2) could not be exercised by the Board of Revenue without holding any inquiry--In absence of proof of fraud or misrepresentation the order of cancellation was void & ultra vires of S. 30(2). [Pp. 1180 & 1181] C

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)—

----Ss. 16 & 30(2)--Statutory notifications--Validity of--Locus poenitentiae, principle of--Order of Board of Revenue based on the notification relating to the fact that the allotment to the respondents fell within prohibitory Zone of Municipal Limits was not a good ground to cancel the allotment because once land made available for allotment and was transferred and settled on respondents, it would supersede all the notifications imposing prohibitions--Presumption in law is that acts done by the statutory functionaries are done in good faith and in lawful manner--Authorities were thus not justified in cancelling land of the respondents through subsequent notifications. [P. 1182] D

1997 MLD 1847; PLD 1993 Lah. 114 and 2000 CLC 953 ref.

Mian Muhammad Athar, Advocate for Petitioners.

Ch. Imdad Ali Khan, Advocate for Respondents.

Date of hearing: 12.12.2003.

Judgment

This civil revision assails judgments and decree dated 6.10.1997 and 16.6.1998 passed by Civil Judge and District Judge, Toba Tek Singh, respectively, deciding the lis against the petitioners.

1. A short factual background of the case is that land measuring 100 kanals situated in Chak No. 319/GB Tehsil & District Toba Tek Singh was allotted in the name of one Sana Ullaha to whom proprietary rights were not conferred under Grow More Scheme of this land, which was held by him under lease. He on 17.4. 1971 moved as application for allotment of the land as Provincial Government had formulated another scheme for allotment of land to the persons, to whom land was not allotted under Grow More Scheme. Sana Ullah was allotted on 22.4.1990 again, 100 Kanals of land, price of which was deposited by him and the sale-deed in his favour was duly executed. Allottee Sana Ullah sold this land, got by him on 22.4.1990 to one Fazal Din vide Mutation No. 693 sanctioned on 19.6.1993 and Fazal Din further sold this land to Walli Muhammad, Respondent No. 1, through a sale Mutation No. 1012 dated 26.6.1993. It so happened that Petitioner No. 2 on 23.8.1994, on the basis of some audit report, issued notice to Sana Ullah who did not appear before him, proceeded to cancel his allotment, without notice to, subsequent vendee, purportedly exercising his jurisdiction under Section 16 of the Punjab Colonization of Government Lands Act, 1912. Aggrieved of cancellation of land from the name of original allottee, Respondent No. 1 filed a suit for declaration with consequential relief of permanent injunction, in the Court of Civil Judge, Toba Tek Singh, asserting that Petitioner No. 2 had no lawful authority or jurisdiction to cancel the allotment, after allotment where under sale-deed had already been executed, after payment of price of land and that too, without notice to him who is the real owner. A permanent injunction was also prayed against the petitioners, restraining them from initiating proceedings under Section 30(2) of Punjab Colonization of Government Lands Act, 1912, and from interfering into his lawful possession.

2. The petitioners being defendants in the suit contested it and controverted the assertions made in the plaint, through their written statement. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. Learning trial Judge, who was seized of the matter, after due appraisal of the evidence on file, vide his judgment and decree dated 6.10.1997 decreed the suit of Respondent No. 1.

3. The petitioners aggrieved of the decision of the trial Court dated 6.10.1997, filed an appeal before the learned District Judge, Toba Tek Singh, but remained unsuccessful as their appeal was dismissed by him, vide his judgment and decree dated 16.6.1998. Thereafter, they came up in revisional jurisdiction of this Court against the concurrent judgments and decrees, as noted above, for their annulment.

4. Learned counsel for the petitioners submits that land allotted to Sana Ullah was within the prohibitory zone of two miles radius of the Municipal limits and thus, on an objection by the auditors, was rightly cancelled by Petitioner No. 2. He also contends that under Sections 16 and 30(2) of the Punjab Colonization Government Lands Act, 1912, this petitioner was competent to cancel the allotment obtained out of fraud and mis-representation. It is also the case of the petitioners that before cancellation of allotment a due notice was given to the original allotte, who himself opted not to appear in the cancellation proceedings and now it does not lie in the mouth of the respondents to say that no notice was given by Petitioner No. 2 before cancellation of land. He also attacked refusal to the petitioners, by the appellate Court, to produce copies of public record, by way of additional evidence. Conversely, learned counsel for the respondents support judgments and decrees of both the Courts below and refuting submissions of the petitioners, urged that order of cancellation of allotment passed by Petitioner No. 2 on 23.8.1994 was patently illegal and void as the allotment was cancelled without any inquiry or investigation by Petitioner No. 2, himself. He also argues that order passed by Petitioner No. 2, manifestly shows that patwari circle was present with record before Petitioner No. 2 and transfer in favour of Respondent No. 1 through Mutation No. 1012 dated 26.6.1993 having duly been reflected in successive Jamabandis by that time but Respondent No. 1 was neither given any notice nor an opportunity of being heard before the passing of the order, impugned before the Civil Court. He also submits that notice by Petitioner No. 2 to original allotte is also fake because it was never served on him. According to his submissions, requirement, of notice and hearing, being a statutory requirement, could not have been waived or violated. Learned counsel for the respondents also elaborates his arguments by saying that under Section 16 of the Act, 1912, Petitioner No. 2 could only proceed against a tenant/lessee who had obtained tenancy through fraud and misrepresentation and in the case, like the one in hand, where a lawful allotment was made, price there under was paid and sale-deed was executed, he could not cancel the allotment for which purpose the petitioners had to file a suit, if at all cancellation was inevitable. In support of his arguments, he heavily relied on a judgment in the cases of Government of the Punjab Province vs. Malik Harbhagwan and another (1940 P.L.R.529) and Anjuman Talim-ul-Islam (Regd.) Sheikhupura vs. Province of West Pakistan Punjab Province and 2 others (PLD 1983 Lahore 294). It is also the case of the learned counsel for the respondents that basis on which cancellation was ordered by Petitioner No. 2 was also not covered under Section 30(2) of the Act, 1912, yet in view of proviso to this provision of law powers of cancellation, vesting in Petitioner No. 2, could not have been, delegated to any of his subordinates. He in this behalf relied on the judgments in the cases of Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha Vs Muhammad Akram (PLD 1993 Lahore 114) and in the case of Muhammad Liaqat and 5 others vs. Member Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953). It has also been contended that order of Petitioner No. 2 was violative of principles of natural justice as before passing it, Respondent No. 1 was not heard, and thus, was bad at law. He referred to the cases of Mst. Karim Bibi and another vs. Deputy Commissioner/Collector, Rahimyar Khan and 8 others (1999 SCMR 2774), Shameer and others vs. Member Colonies Board and others (1994 CLC 904) and Mst. Hajran vs. Member, Board of Revenue, Lahore and another (1994 MLD 801).

5. I have anxiously considered the arguments of the learned counsel for the parties and have also examined the record appended herewith. Undeniably, land subject of allotment of Sana Ullah vested in Respondent No. 1 through two successive transactions and his name was duly reflected in the revenue record which was produced before the trial Court, in from of Jamabandi for the years 1993-94 (Ex.P.14) and khasra girdawari Ex.P.15 wherein Walli Muhammad, Respondent No. 1, is shown owner in possession. Petitioner No. 2 has noted in his order dated 23.8.1994, that patwari, Revenue Circle, is present with record but inspite of it, no kind of notice was given to him before passing an order, depriving him of his immovable property which was purchased by him for a valuable consideration from a lawful owner. Respondent No. 1 when purchased this land, no kind of proceedings for cancellation or otherwise, were pending. Respondent No. 1 had already deposited all the dues regarding land subject of this litigation. Section 30(2) of the Punjab Colonization Government Lands Act, 1912, reads as under:

"Section 30(2): If, at anytime, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud of misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause pass an order resuming the land in respect of which proprietary rights have been acquired or reduced the area of such land or pass such order as it may deem fit."

1. Petitioner No. 2 had exercised its authority under the provision of law, above produce, it itself says that Board of Revenue may proceed for cancellation of tenancy rights obtained through fraud or misrepresentation, after giving such person a reasonable opportunity of showing cause but in the instant case no step in this behalf was taken by Petitioner No. 2. I had required, during the course of hearing, the learned counsel for the petitioners to show from his record any notice served on any of the respondents, including the original allotte Sana Ullah but he could not do so. In a similar situation where original lessee after payment of entire lease amount, sold her right to subsequent lessee, who onward sold those rights to another person but Board of Revenue after issue of suo-moto notice to the original lessee, cancelled transfer in favour of subsequent transferees, were declared as illegal, in the case of Mian Bashir Ahmad vs. The Government of Sindh through Chief Secretary, Sindh Secretariat Karachi and 3 others (1997 MLD 1847). Provision of notice of hearing before cancellation was a statutory provision and Respondent No. 2 a lawful transferee, held to be so concurrently by the two Court below, was entitled notice, as well as, hearing before order by Petitioner No. 2 and thus I conclude that this order was bad at law.

2. Petitioner No. 2 no doubt could proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Sections 16 and 30(2) of the Punjab Colonization of Government Lands Act, 1912, but not with regard to land permanently settled on the allottees. These provisions only related to tenancy/lessee rights which were not involved in the case in hand. The respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land and in such an eventuality their allotment could not have been cancelled. In the case of Malik Harbhagwan's case (supra) it was held that transfers, once made in favour of the respondent could not be cancelled. Similar view was taken in a case decided by this Court, relying on the judgment of malik Harbhagwan, supra, and it was held that Collector could see payment of purchase money and the fulfillment of conditions of sale, before executing sale-deed in favour of the allottee but thereafter he ceases with any authority to intervene after conferment of proprietary rights even through there has been breach of some condition of sale-deed. It goes without saying that proviso to Section 16 of the Act, 1912, which existed on the textbook earlier to 1978 conferring jurisdiction on Petitioner No. 2 to scrutinize tenancy/lessee rights under the Punjab Colonization of Government Lands Act, 1912, stood removed w.e.f. 3.3.1948 through Ordinance, XII of 1978. Case of the respondents, as observed above, did not relate to tenancy rights, thus, Petitioner No. 2 was not equipped with any authority to cancel allotment in favour of Sana Ullah, after receipt of price and execution of sale-deed.

3. Powers vesting in Petitioner No. 2 under Section 30(2) of Act, 1912, also did not give him any authority to cancel land of the respondent but those powers to resume even tenancy rights, are subject to certain pre-requisites like fraud or misrepresentation. Assertions of fraud and misrepresentation are factual in nature, which require some basis and determination. Undisputedly, power under Section 30(2) of the Act, ibid were given to Petitioner No. 2 as remarked above which could not have been delegated by him but he, admittedly, did not hold any inquiry and after passing the order of cancellation remitted the case to its subordinates for this purpose. The course adopted by Petitioner No. 2 was not permissible under law. He had no concrete proof of fraud or misrepresentation and thus even if it be assumed that he had an authority to cancel allotment of the respondents, there being no proof of the pre-requisites, as noted above, his order resuming land of the respondents is void, on the face of it. Petitioner No. 2 having himself acted contrary to provisions of Section 30(2) of the Act, ibid, his order is ultra vires of this provision of law. My this view, gets support from a judgment given by this Court in alike facts, in the case of Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha vs. Muhammad Akram (PLD 1993 Lahore 114). This Court in another case of Muhammad Liaqat and 5 others vs. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953) struck down the cancellation order passed under Section 30(2) of Act, 1912. In this case, allotment was made under Grow More Scheme and the allottee further sold those rights for a valuable consideration whereafter Board of Revenue determined that allotment was fraudulent and cancelled it and the purchaser was required to purchase this land on payment of market price, again, it was held that it was not open to the Board of Revenue to resume land which already stood vested in the purchaser. In this case, after transfer of land, respondent, thereover, have settled since their allotment. Land exclusively vested in them and could not have been cancelled or resumed by Petitioner No. 2.

4. The Petitioner No. 2, even on the basis on which he proceeded to pass the order dated 23.8.1994 that the allotment falls within the prohibitory zone of two miles of the Municipal limits, could not cancel it because once land was made available for allotment, it was transferred and it settled on the respondents, it would supercede all the notifications imposing such prohibitions. Under law, presumption is that acts done by the statutory functionaries were done in good faith and in lawful manner, according to law application at that time. Under the principles of locus poenitentia, the petitioners were not justified to act in the complained manner to cancel land of the respondents.

5. The petitioners did not produce any evidence of any worth, showing that cancellation order was backed by some lawful authority, had any justifiable basis and there had been any real fraud or misrepresentation or jurisdiction for the order impugned, passed by Petitioner No. 2, hence, both the courts below returned findings which are in consonance with the evidence on the file and the law, applicability. No misreading or non-reading of evidence was asserted or is proved, in absence of it, no interference in revisional jurisdiction of this Court is justified. Concurrent judgments of both the Courts below are not shown to have been tainted, with any illegality or irregularity. This revision petition has no merit in it and is, accordingly, dismissed with no order as to costs.

(J.R.) Petition dismissed accordingly.

PLJ 2005 Lahore 1181 (DB)

[Multan Bench Multan]

Present: Maulvi Anwar-ul-Haq and Farrukh Lateef, JJ.

MUHAMMAD ZUBAIR alias JHARA--Petitioner

versus

STATE and 4 others--Respondents

W.P. No. 6361 of 2004, heard on 1.12.2004.

Juvenile Justice System Ordinance, 2000 (XXII of 2000)—

----S. 7--Pakistan Penal Code (XLV of 1860), S. 302/34--Death sentence awarded to petitioner--Confirmed uptill Supreme Court--Mercy petition was also dismissed--Issuance of black warrant--Appellant filed application on the force of Notification issued by the Home Secretary, Govt. of the Punjab, before the Addl. Sessions Judge--Appellant was juvenile at the time of commission of offence and entitled to special remission in sentence in view of notification--Contention of--Dismissal of application--Challenge to--Validity--Notification was modified by President in implementation of dictum of Hon'ble Supreme Court--Addl. Sessions Judge has acted illegally in refusing to decided the plea of the petitioner--Petition allowed and case remanded. [P. 1184] A

PLD 2003 SC 656 rel.

2004 SCMR 1861 distinguished.

Mr. M. Tariq Usman Joiya, Advocate for Petitioner.

Mr. M. Qasim Khan, A.A.G. for Respondents.

Mr. Pervez Aftab and Mr. Zia-ur-Rehman, Advocates for Complainant.

Date of hearing: 1.12.2004.

Judgment

Maulvi Anwar-ul-Haq, J.--The petitioner (Muhammad Zubair alias Jhara) was sent up for trial before a learned Additional Sessions Judge, Multan, in case FIR No. 383 dated 30.8.1997 under Section 302/34 PPC at P.S. New Multan, District Multan. Vide judgment dated 22.4.1998, the petitioner was convicted under Section 302(b)/34 PPC and was sentenced to death while the other two persons were awarded life imprisonments. He filed Criminal Appeal No. 151/98 alongwith his co-accused. The matter was heard alongwith Murder Reference No. 48/99. Vide judgment dated 24.7.2001 of a learned Division Bench of this Court, the appeal of the petitioner was dismissed and his death sentence was confirmed. Sentence imposed upon Muhammad Sharif co-accused was also upheld while Muhammad Shafi co-accused was acquitted. The petitioner then filed an Appeal No. 111/2001 from Jail. It was heard by the Hon'ble Supreme Court of Pakistan and dismissed on 28.3.2002. Suo moto Review Petition

No. 11/2002 was dismissed by the Hon'ble Supreme Court on 1.10.2002. We are told that a Mercy Petition filed by the petitioner was also dismissed by the Competent Authority.

1. On 6.1.2003 the petitioner filed W.P.68/2003 in this Court. It was stated that the President of Pakistan has issued a Notification on 15.12.2001 in exercise of his powers under Article 45 of the Constitution of the country granting special remission in cases of death sentences of those condemned prisoners who were juvenile as defined in the Juvenile Justice System Ordinance, 2000, at the time of commission of offence. The said sentence was commuted to life imprisonment provided that the sentence has been awarded as Tazir. The contention raised was that the date of birth of the petitioner is 3.6.1980 whereas the occurrence took place on 30.8.1997 and as such he was 17 years, 2 months and 27 days of age on the date of said occurrence. The prayer made was as follows:

"In the aforementioned circumstances it is most respectfully prayed that by accepting this writ petition the execution of sentence may be suspended and respondents may be directed to act strictly in accordance with law and obtain medical opinion about the age of petitioner, if desired, in accordance with notifications and grant special remission of sentence awarded by President of Pakistan so circulated vide Notification No. JB/GI/53406-35 dated 15-12-2001 and Letter No. 3406/35 dated 15-2-2001 issued by Respondent No. 2 and commute the death sentence of petitioner into life imprisonment."

On 5.10.2004 the case came up before a learned Single Judge of this Court in the presence of counsel for the petitioner, a learned Additional A.G. and learned counsel for the complainant. The learned counsel for the petitioner stated that having examined the judgment in the case of Ziaullah (PLD 2003 SC 656), he does not press the said writ petition in order to approach the Court of learned Sessions Judge/Court constituted under the said Ordinance, 2000, for determination of the age of the petitioner. The writ petition was accordingly dismissed. Thereafter an application was filed before the learned Sessions Judge, Multan, which was entrusted to a learned Additional Sessions Judge. A notice was issued and the matter was fixed for 29.11.2004.

1. On 22.11.2004 another application was filed intimating that the petitioner has learnt that a black warrant has been issued and his execution is to be undertaken on 2.12.2004. The prayer was made for suspending the execution of death sentence pending the decision of the said application. The matter was taken up by the learned Additional Sessions Judge, Multan, on 26.11.2004 in presence of the learned counsel for the petitioner as well as the complainant and the Additional Superintendent, New Central Jail, Multan. On the same date, he passed an order stating that the petitioner should go to the relevant Authorities or competent Forum and that the learned Additional Sessions Judge has to do nothing. The file was accordingly ordered to be consigned to record.

2. Present writ petition was filed in this Court on 27.11.2004. It came up before a learned Single Judge on 30.11.2004 who opined that since the death sentence was confirmed by a Division Bench of this Court, the matter be placed before the Division Bench. The case was accordingly put up on the same date when learned counsel for the petitioner, the complainant and learned Additional A.G. put in appearance. After hearing some arguments, we summoned the records of the trial Court and adjourned the case for hearing today.

3. Learned counsel for the petitioner contends with reference to the said case of Ziaullah v. Najeebullah and others (PLD 2003 SC 656) that since that part of the notification which required the age to be determined by a Committee comprising as expert, Home Secretary, the I.G. Prisons and the Jail Superintendent concerned has been set aside by the Hon'ble Supreme Court and the matter is now to be determined by a judicial forum which is the Sessions Judge/the Court constituted under the said Ordinance, 2000. He complains that the learned Additional Sessions Judge, has declined to decide the matter, illegally. Learned counsel for the complainant, on the other hand, rely upon the judgment in the case of Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others (2004 SCMR 1861) to urge that the sole fact that the plea of minority was never raised during the trial or appeals in this Court and before the Hon'ble Supreme Court would be sufficient to decline the prayer being made by the petitioner. Learned AAG draws our attention to the learned Division Bench judgment of this Court which was upheld by the Hon'ble Supreme Court in the said case of Rehmat Ullah alias Raja to state that the plea was also considered on merits and found to be incorrect. The learned AAG is of the opinion that the learned Additional Sessions Judge ought to have recorded his findings regarding the plea of the petitioner. He further informs us that pursuant to the judgment in the case of Ziaullah, the President, in fact, amended the said notification.

4. We have given thought to the respective contentions of the learned counsel for the contesting parties and the learned Law Officer. We deem it appropriate to note in the very beginning, that para-3 of the said notification as originally issued on 15.12.2001 was as follows:

"3. In case of any doubt about the age, medical opinion may be obtained and decision taken by a committee comprising an expert, Home Secretary, I.G.Prisons and the Superintendent of the jail where the condemned prisoner is housed."

1. The verdict of the Hon'ble Supreme Court in the said case of Ziaullah was that this part of the notification is void inasmuch as the said Committee not being a Court referred to in Articles 175 and 203 of the Constitution Cannot share judicial powers lawfully with the said Courts and as such the said Committee has no lawful authority to determine the age of the accused. It was then stated that if so required the matter can be referred to the Sessions Judge/Juvenile Court.

2. The learned AAG has placed a copy of letter dated 18.8.2003 issued by the Home department, Government of Punjab, to the Registrar of this Court informing that the president has modified para-3 of the said notification dated 15.12.2001 as follow:

In case of any doubt about the age, the same may be determined in accordance with Section 7 of the Juvenile Justice System Ordinance, 2000."

1. It will, thus, be seen that in implementation of the said dictum of the Hon'ble Supreme Court in Ziaullah's case. the notification stood modified by the President.

2. It is but obvious that the said fact was not brought to the notice of Additional Sessions Judge, he acted in term of para-3 of the notification as originally published.

3. We, however, note with regret that the learned Additional Sessions Judge has failed to read and understand the impact of the said judgment. It intends to set aside the Constitution of the said Committee declaring it to be void and the impact is not to an individual case but rather all the cases covered by the said notification. We, therefore, do find that the learned Additional Sessions Judge has acted illegally in refusing to decide the plea of the petitioner.

4. We may here take note of the contention of the learned counsel for the complainant based on the said case of Rehmat Ullah alias Raja. The learned AAG who had opposed the said prayer made by Rehmat Ullah before a learned Division Bench of this Court in W.P. No. 2026/2004 has placed on record a copy of the judgment of the learned Division Bench. We have examined the same and we do find that the learned Division Bench considered the merits of the plea with reference to some documents and found the same factually to be incorrect. Additionally, it was noted that the plea of minority was never taken during the course of trial and appeals. Besides, in the said case, there was a note in the trial Court's judgment that his date of birth was shown at the time of occurrence as 8.3.1976.

5. In view of what has been discussed above, we allow this writ petition and set aside the order passed by the learned Additional Sessions Judge declining to decide the plea of the petitioner. The matter is accordingly remanded back to the learned Additional Session Judge/Juvenile Court to decide the following questions:--

(i) Whether the convict Muhammad Zubair alias Jhara son of Muhammad Siddique was a minor at the time of occurrence subject matter of FIR No. 383 dated 30.8.1997 under Sections 302/34 PPC at P.S. New Multan, District Multan? And

(ii) Whether the said convict is entitled to the benefit of Section 7 of the Juvenile Justice System Ordinance, 2000, read with the said notification issued by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan granting special remission to the offenders, who were minors at the time of commission of offence?

1. The office to immediately remit copy of this judgment as also the records of the said case FIR No. 383 dated 30.8.1997 under Section 302/34 PPC at P.C. New Multan, to the learned Additional Sessions Judge/Juvenile Court, Multan, who shall immediately commence proceedings to answer the said questions and complete within four weeks and the results of the same, be notified to the concerned Authorities responsible for executing the sentences.

2. We may further note here that nothing observed in this judgment either way shall influence the learned Additional Sessions Judge who shall consider whatever material is produced before him and further consider all the pleas relevant to the said questions stated by the parties before him while deciding the said questions.

3. A copy of this judgment be also remitted to the Secretary, Home Department, Government, of Punjab, Lahore, as well as the Superintendent, new Central Jail, Multan, who shall wait for the said determination to be made by the learned Additional Sessions Judge/Juvenile Court, Multan, as directed In this judgment.

(M.A.R.) Writ accepted and case remanded.

PLJ 2005 Lahore 1186

[Multan Bench Multan]

Present: Ijaz Ahmad Chaudhry, J.

Mst. AMNA BIBI--Petitioner

versus

STATE and 3 others--Respondents

W.P. No. 5153/Q of 2004, heard on 3.11.2004.

Constitution of Pakistan, 1973—

----Art. 199--Criminal Procedure Code (V of 1898), S. 561-A--Quashment of F.I.R.--Complainant lodged FIR for allegedly commission of offence of Isqat-i-Janin--Challenge to--Validity--More oral statements of witnesses, when suit for dissolution of marriage was already filed by petitioner against complainant, is not sufficient to prima facie make out offence of isqat-i-janin--No date of occurrence has been mentioned in FIR--The case has been got lodged with mala fide intention and ulterior motive to restrain petitioner from prosecution of her suit for dissolution of marriage already filed against him--In such circumstances further proceedings with FIR will be abuse of process of law which cannot be allowed to continue--Petition accepted and FIR quashed in circumstances. [P. 1188] A, B & C

Malik Naseer Ahmad Thaheem, Advocate for Petitioner.

Muhammad Bilal Masood, Advocate for Respondent No. 4.

Mr. M.R. Khalid Malik, Addl. Advocate-General for remaining Respondents.

Date of hearing: 3.11.2004.

Judgment

Through this petition under Article 199 of the Constitution of the Islamic Rebulic of Pakistan, 1973, the petitioner seeks quashment of case FIR No. 224/04 dated 9.9.2004 registered under Section 338-C PPC at P.S. Qureshi Wala District Lodhran on the statement of Fida Hussain.

1. The brief facts narrated in the FIR are that the complainant was married with the petitioner Mst. Amna Bibi about five years ago and out of their wed-lock no child was born. However, according to the complainant two months earlier while going to the house of her parents to attend the marriage ceremony of her brother Muhammad Ishaque she was conceiving pregnancy of about eight months and when the complainant went there to take her back, it was informed by his close relatives namely Abdul Khaliq and Pir Bakhsh that she was taken to some unknown midwife and with her consent Hazoor Bakhsh, Muhammad Bakhsh and Zaid Elahi are involved in Isqat-i-Janin.

2. Learned counsel for the petitioner contends that the registration of the present case is with mala fide intention and ulterior motive as on 30.6.2004 the petitioner filed a suit for dissolution of marriage in the Court of learned Judge Family Court Lodhran against the complainant and on receipt of the notice he started causing undue harassment to the petitioner through SHO P.S. Qureshiwala whereupon the petitioner also moved an application to the learned Sessions Judge/Justice of Peace on 24.8.2004 and vide order dated 30.8.2004 the SHO was restrained to cause any harassment to the petitioner. According to the learned counsel the falsity of the contents of the FIR and the nature of allegation is clear from the facts that in FIR which has been got lodged on 9.9.2004 the complainant stated that the petitioner had left his house two months earlier i.e. near about 9.7.2004 whereas she had already filed a suit for dissolution of marriage against him on 30.6.2004 claiming therein that she was turned out of the house by the complainant four months earlier and no issue was born out of their wedded life which continued for about 6/7 years. It is claimed that case has been got registered for pressurising the petitioner to withdraw her suit for dissolution of marriage and it is a case of no evidence, therefore, the FIR may be quashed.

3. Learned counsel for the Respondent No. 4 on the other hand opposes this petition on the ground that according to laboratory report dated 15.1.2004, the pregnancy test of the petitioner was positive and close relatives of the petitioner had told about the guilt of the petitioner and other accused regarding Isqat-i-Janin. According to him from the contents of the FIR commission of cognizable offence is clearly made out and the FIR cannot be quashed.

4. I have heard the learned counsel for the parties and also perused the record. Admittedly the petitioner filed a suit for dissolution of marriage against the complainant on 30.6.2004. An application was also moved by the petitioner on 24.8.2004 before the learned Sessions Judge/Justice of Peace for restraining the police officials from causing any undue harassment to the petitioner and other family members at the behest of Fida Hussain respondent which was disposed of on 30.8.2004. In the said application the petitioner specifically alleged that she was being harassed by the complainant to withdraw from the prosecution of suit for dissolution of marriage. According to the order sheet attached with this petition the complainant did not put in appearance in the said suit and lastly direction was issued for his service through citation in the newspaper.

5. The nature of the allegation levelled in the FIR seeming to be unhuman this Court felt it necessary to take cognizance in this case at the initial stage in its Constitutional jurisdiction as at the advance stage of pregnancy for about eight months the parents of the girl were not expected to take risk of Isqat-i-janin, which may result into the death of their daughter as well, when she was validly married with the complainant. Mere production of some Lab. report about the pregnancy test is not a conclusive proof of the commission of the crime. No prescription from any doctor has been brought on the record regarding her treatment after pregnancy or use of any medicines. Normally in this era ultra sound report is also procured as a modern technique in case of pregnancy. According to the complainant's own version, the pregnancy was conceived after more than five years of their marriage and normally in such cases, some special care was required to maintain the same. If the first report of the Lab. regarding the pregnancy was preserved by him, the reports regarding subsequent tests should also be in his possession for production before the police to substantiate his allegation. Mere oral statements of the witnesses irrespective of their relation with the complainant or the accused party, when the suit for dissolution of marriage was already filed by the petitioner against the complainant, is not sufficient to prima facie make out the offence of Isqat-i-Janin. No date of occurrence has been mentioned in the FIR. It is also strange that it was in the knowledge of the witnesses that the parents of the petitioner had taken her to some Daya (mid-wife) for Isqat-i-Janin but did not inform him immediately in-spite of close relationship with him and only told him when the act had already done and he came to take back his wife (petitioner).

6. From the documentary evidence available on this file, I have also found that the allegation levelled in the FIR is groundless. In the plaint of suit for dissolution of marriage filed on 30.6.2004 she specifically alleged that she was turned out of the house by the complainant about four month earlier and no issue was born out of their wed-lock whereas in the FIR the complainant alleged that two months earlier, she had left his house which would come near about 9.7.2004 and at that time the version of the complainant that she was conceiving pregnancy of eight months is proved to be false. I find force in the arguments of the learned counsel for the petitioner that this case has been got lodged with mala fide intention and ulterior motive to restrain the petitioner from the prosecution of her suit for dissolution of marriage already filed against him. In such circumstances further proceedings with the FIR will be abuse of process of law which cannot be allowed to continue. For the foregoing reasons, this writ petition is accepted and the impugned FIR is quashed.

(M.R.A.) Petition accepted.

PLJ 2005 Lahore 1189

Present: Mian Hamid Farooq, J.

HAMEED AKHTAR--Petitioner

versus

MEMBER BAORD OF REVENUE and others--Respondents

W.P. No. 17956 of 2004, decided on 23.11.2004.

Audi Alteram Partem--

----Principle of--Notice was served upon persons who were affected by impugned order--Petitioners having been granted proprietary rights of land in question by order of specified date, the same could not have been recalled without serving notice on affected persons--Order in question, was thus, violative of principle of natural justice embodied in maxim "Audi Alteram Partem" and thus, not sustainable. [P. 1192] C

Punjab Board of Revenue Act, 1957 (VII of 1957)--

----S. 8--Review jurisdiction of Board of Revenue--Board of Revenue has no power to suo-motu exercise powers to reverse earlier order passed.

[P. 1191] A

Punjab Board of Revenue Act, 1957 (VIII of 1957)—

----S. 8(2)--Limitation for filing review application before Board of Revenue--Application for review of order has to be made within 90 days from the date of that order/decree--Board of Revenue having reviewed its earlier order after lapse of five month, the same was not warranted. [P. 1192] B

1984 CLC 17 and PLD 1999 SC 484 ref.

Malik Abdul Sattar Chughtai, Advocate for Petitioner.

Misbah-ul-Islam, A.A.G. alongwith Qamer Abbas Sultan, Assistant Director Board of Revenue and Muhammad Saeed, Assistnat, B.O.R. Punjab for Respondents.

Date of hearing: 23.11.2004.

Order

This single order shall decide the present Constitutional petition (W.P. No. 17956 of 2004) and the connected petitions (W.P. Nos 18234, 18235, 18236 & 18237 of 2004), as common questions of law and facts are involved in all the petitions and they have arisen out of consolidated order.

1. Petitioners through the filing of all these petitions, have called in question order/letter dated 2.10.2004, whereby the learned Member (Colonies) Board of Revenue Punjab of his own motion, recalled and reviewed all the orders passed for the grant of proprietary rights under Lamberdari grants etc.

2. Petitioners, in all the aforesaid Constitutional petitions, are Lumberdars and they were granted proprietary rights, qua the land in their possession, under Board of Revenue, Notification dated 13.7.96, according to the price assessed by the District Authorities, vide consolidated order dated 30.4.2004, passed by the learned Member (Colonies). According to the petitioners, pursuant to the said decision dated 30.4.2004, they are still enjoying the benefits of the said property with full rights. Subsequently, the learned Member (Colonies) Board of Revenue, without issuance of any notice to the petitioners and in purported exercise of review jurisdiction, under Section 8 of the Punjab Board of Revenue Act, 1979, while himself condoning the delay occurred in reviewing the orders, recalled and reviewed all the orders passed for the grant of proprietary rights under Lamberdari grants etc after 8.3.99, vide impugned order/letter dated 2.10.2004, addressed by the said learned Member to all the Executive District Officers and District Officers (Revenue) in the Punjab, which order/letter has prompted the petitioners to file the present Constitutional petitions.

3. Learned counsel for the petitioners has contended that Section 8 of the Punjab Board of Revenue Act, 1957 does not empower the Board to exercise suo moto review jurisdiction and that before passing the said order, no notice was served upon the petitioners, thus the impugned letter/order is not sustainable under the law. He has further submitted that the judgment (Maqbool Ahmed Qureshi vs. The Islamic Republic of Pakistan PLD 1999 SC 484), relied upon by the learned Member Board of Revenue, in reviewing the orders, has no concern with the case in hand and the said judgment is not application under the facts of the present case. Confronted with the above recorded contentions, the learned Law Officer, after going through the provisions of Section 8 of the Punjab Board of Revenue Act, 1957, and after examination the impugned letter, could not say much on the proposition.

4. In view of the arguments of the learned counsel, I have examined the impugned order/letter and find that the learned Member (Colonies), Board of Revenue, in purported exercise of powers under Section 8 of the Punjab Board of Revenue. Act, 1957, has in general recalled and reviewed all the orders, passed after 8.3.99, for the grant of proprietary rights under Lamberdari grants etc. It would be appropriate to reproduce the concluding portion of the impugned order/letter, which reads as follow:

"In view of above, exercising powers under Section 8 of Board of Revenue, Punjab Act, I hereby recall and review all orders passed for grant of proprietary rights under Lambardari Grants, Pedigree Livestock Breeding Scheme etc, decided in my capacity as Member (Judicial-III) and Member (Colonies) after 8.3.1999 which is the date of judgment of Supreme Court of Pakistan. Delay which has occurred in reviewing orders passed is hereby condoned under relevant provisions of the Limitation Act."

It flows from the above that the learned Member, Board of Revenue, while reviewing and recalling all the orderss, passed for the grant of proprietary rights under Lamberdari grants etc. has exercised powers under Section 8 of the Punjab Board of Revenue Act, 1957, and has himself condoned the delay, which has occurred in reviewing the orders. Now the question arises as to whether the learned Member, Board of Revenue, under the said provision of law, relied upon by him, could exercise powers of suo moto review jurisdiction. Section 8 of the Punajab Board of Revenue Act, 1957, appears appropriate to be reproduced:

"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 (or for any other sufficient reason) disires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment made 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.

(2) Every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order."

Bare perusal of the said provision of law manifests that the Board can only exercise review jurisdiction and review the order, on the application of any person, who feels aggrieved by decree or order passed by the Board and who from the discovery of new and important matters, which were not within his knowledge or on account of some mistake or error apparent on the face of the record desires to obtain a review, may apply to the Board for review and that after the receipt of the said application, the Board, after giving notice to the parties affected and after hearing them, can pass an order. Sub-section (2) of Section 8 further envisages that every application for review of order/decree shall be made within 90 days from the date of that order. Undeniably, in the present case, none filed any application for review of order that the impugned order was passed after the expiry of period of ninety days from the date of passing of latest order in line, i.e. 30.4.2004. In view of the above, to my mind, the Board has no powers to suo moto exercise powers to review earlier order passed. It has been held in Umar Din and others vs. Member (Colonies), Board of Revenue and others (1984 CLC 17) that powers of review under Section 8, supra, can be exercised by the Board of Revenue only upon an application filed by aggrieved person and the Board has no powers of suo moto review.

1. Learned Member Board of Revenue, through passing the impugned order/letter dated 2.10.2004, has generally recalled and reviewed all the orders passed after 8.3.99 for the grant of proprietary rights under Lamberdari grants etc. Petitioners claim that they were granted proprietary rights by virtue of order dated 30.4.2004, passed by the learned Member (Colonies) Board of Revenue, which appears to be the latest order on the subject. As noted above, Section 8(2) provides that every application for review of order under Section 8(1) shall be made within 90 days from the date of that decree/order. In view whereof, all the orders passed after 8.3.99 could not have been reviewed in view of the bar of limitation contained in Section 8(2), supra. Similary, even if it be taken that the learned Member (Colonies), Board of Revenue, has reviewed order dated 30.4.2004, even then the impugned order recalling the said order was passed after the lapse of more than five months and, thus, on this count too the learned Member (Colonies) could not have passed the impugned order after the lapse of 90 days from the date of the said order.

2. There is another aspect of the case. Admittedly, before passing the order dated 2.10.2004, no notice was issued to any of the persons, who were really affected by the impugned order. Undeniably the learned Member (Colonies) did not provide opportunity of hearing to the petitioners, while purportedly exercising suo moto review jurisdiction. The petitioners, who were granted proprietary rights, vide order dated 30.4.2004, have, thus, been condemned unheard and, therefore, the impugned order is violative of the principle of natural justice embodied in the maxim "Audi alteram partem". In view whereof, the impugned order was passed not only in violation of Section 8 of the Punjab Board of Revenue Act, 1957, but it also offends the principle of natural justice.

3. I have also had the advantage of perusing the judgment reported as Maqbool Ahmad Qureshi vs. The Islamic Republic of Pakistan (PLD 1999 SC 484), and find that principles laid therein have no nexus with the controversies dilated upon by the Member, while passing the impugned order. In the said judgment the hereditary claim of the office of the Lamberdar and the rule of primogeniture in this regard were declared as un-Islamic and the question of Lamberdari grants was neither adverted to nor decided in the said case. Reliance of the Member, Board of Revenue, on the said judgment, while illegally reviewing all the orders, is misconceived, as the principles of law laid down in the case of Maqbool Ahmad Qureshi, ibid, were not attracted in the present case.

4. In the above perspective, seeing from any angle the impugned order cannot be maintained, as the same was passed in violation of the provisions of Section 8 of the Punjab Board of Revenue Act, 1957 and in derogation of the principle of natural justice. The learned Member, Board of Revenue, had no jurisdiction to pass the impugned order, inasmuch through the passing of the said order the petitioners have been condemned unheard.

5. For the foregoing reasons and conclusions, all the writ petitions are allowed and order/letter dated 2.10.2004, passed by the learned Member (Colonies), Board of Revenue, thereby reviewing all the orders passed for the grant of proprietary rights under Lamberdari grants etc, in purported exercise of powers under Section 8 of the Punajab Board of Revenue Act, 1957, qua the petitioners, is declared to be illegal, without jurisdiction and without lawful authority and, thus, have no legal effect. No order as to costs.

(A.A.) Petition accepted.

PLJ 2005 Lahore 1193 (DB)

Present: Mian Hamid Farooq and Syed Hamid Ali Shah, JJ.

Mrs. TANIS AKHTAR--Appellant

versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through MANAGER and others--Respondents

R.F.A. No. 508 of 2000, heard on 14.12.2004.

(i) Banking Tribunals Ordinance, 1984 (LVIII of 1984)—

----S. 6(2)--Decree/judgment is suit for recovery of money, assailed--Appellant could not make out case calling for interference by High Court--Impugned judgment and decree passed by Banking Court being legal and valid was maintained. [P. 1198] D

(i) Companies Ordinance, 1984 (XLVII of 1984)—

----S. 316(1)--Winding up proceedings--Decree for specified amount against defendants granted by Banking Court--Company judge had granted permission to plaintiff to continue with suit--Legality--Company judge through specific and conscious order had permitted Banking Court to continue with proceedings in recovery suit filed by plaintiff in as much as, Provisional Manager was directed to approach Banking Court and make application--Company judge having granted permission to plaintiff and Banking Court while seized of suit for recovery, to continue and proceed with proceedings, thus, Banking Court was justified in passing impugned judgment and decree. [P. 1196] A

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

----S. 316(1)--Suit for recovery of money--Winding up proceedings against company--Permission was granted by company judge to plaintiff to continue suit against company--Banking Court granting decree in favour of plaintiff--Appellant being one of defendants cannot raise plea that suit was not competent--Proceeding could have continued against defendant of even if no permission was granted by company judge for continuation of suit--Proceeding could be stayed against company if no permission was granted and the same could continue against defendants other than the company--Judgment and decree passed against appellant was thus, legal and valid. [P. 1197] B

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

----S. 316(1)--Winding up proceedings against company--Earlier order of company judge specifically permitting Banking Court to continue and commence with proceedings in suit for recovery against company--Subsequent order was passed without taking into consideration previous order on the same issue--Subsequent order does not supersede, recall, review or set aside earlier order passed by Court. [P. 1198] C

Syed Farooq Hassan Naqvi, Advocate for Appellant.

Malik Karamat Ali Awan, Advocate for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 14.12.2004.

Judgment

Mian Hamid Farooq, J.--The appellant/judgment debtor, through the filing of the instant first appeal, under Section 21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, has called in question judgment and decree dated 25.9.2000, whereby the learned Judge Banking Court, Faisalabad, proceeded to pass the ex-parte decree for the recovery of Rs. 72,28,818/-, with costs and mark up, in favour of Respondent No. 1, and against M/s. Akram Enterprises (Pvt.) Limited and others, including the appellant.

1. Briefly stated the facts, culminating to the filing of the present appeal, are that respondent-bank filed the suit for recovery of Rs. 86,74,581/- against M/s. Akram Enterprises (Pvt.) Limited and others, before the then Banking Tribunal, Faisalabad, wherein the appellant was arrayed as Defendant No. 3. During the pendency of the suit, pursuant to the special resolution, passed by the Company, i.e. M/s. Akram Enterprises (Pvt.) Limited on 7.5.94, it filed the petition (C.O. No. 51 of 1994), under Sections 305 and 309 of the Companies Ordinance, for the winding up of the company on the ground that it is unable to run its affairs. On 22.11. 94, the Hon'ble Company Judge of this Court appointed Provisional Manager, who was directed to take over the possession and control of the factory and its other assets. Subsequently, on 16.12.1996, the company was ordered to be wound up and the Provisional Manager, already appointed by this Court, was appointed as official liquidator. In the final analysis, the company was dissolved by the Hon'ble Company Judge, under Section 350 of the Companies Ordinance, vide order dated 11.10.2001, which is the subject matter of the appeal (ICA No. 11/2001), filed by the appellant. As regards the suit for recovery, the notices, as per the terms of Section 6(2) of Banking Tribunals Ordinance, 1984/-, (now repealed) were issued to the defendants and in response thereto they filed the reply to show-cause notice. Subsequently, they absented from the proceedings, thus, they were proceeded ex-parte, vide order dated 17.7.2000 and their reply to show cause notice was dismissed. Pursuant there to the learned Judge Banking Court passed a decree for recovery of Rs. 72,28,818/-, after excluding the amount of liquidated damages from the suit amount, with costs and mark up, in favour of respondent-bank, and against the defendants, including the appellant, jointly and severally, vide impugned judgment and decree dated 25.9.2000, hence the present appeal.

2. Despite various calls made, none has entered appearance to represent Respondents Nos. 2 to 4, thus, they are proceeded ex-parte.

3. Learned counsel for the appellant, while referring to para 4 of order dated 16.12.96, passed by the Hon'ble Company Judge in winding up petition (C.O. No. 51/94), has submitted that although the Hon'ble Company Judge permitted respondent-bank to file the application before the Court, if they wish to continue with the suit, yet no such like application, seeking requisite permission to continue with the suit was filed after that date, therefore, the judgment and decree, passed by the learned Judge Banking Court, is without jurisdiction. He has added that the learned Judge Banking Court was not competent to proceed and continue with the recovery suit, unless specifically allowed by the Hon'ble Company Judge. Conversely, the learned counsel for respondent-bank, while referring to order dated 16.9.96, passed in the same winding up petition, has submitted that the Hon'ble Company Judge specifically permitted the learned Judge Banking Court to continue with the proceedings in the suit, therefore, there was no legal hurdle before the learned Banking Court to decide the suit. He has further submitted that the learned Company Judge, without noticing order dated 16.9.96, has observed in order dated 16.12.96 that the Bank can seek permission to continue with the proceedings in the suit.

4. Both the learned counsel admit that orders dated 16.9.96 and 16.12.96, relied upon by them, were passed by the Hon'ble Company Judge in one and the same winding up petition (C.O. No. 51/94). It would be appropriate to reproduce relevant portion of order dated 16.9.96, relied upon by the learned counsel of the respondent-bank, which reads as follow :--

"Learned counsel for Respondent No. 1 says that the suit filed by the said respondent against the company before the Banking Tribunal is pending and the proceedings in the same have been stayed by the said Tribunal on account of pendency of this petition.

In this petition no order has been passed for staying the proceedings in the said suit. The proceedings in the said suit are permitted tobe continued. The Provisional Manager appointed by this Court in this case shall defend the said suit alongwith the other defendants already impleaded in the said suit. The Provisional Manager shall approach the said Court and make application for this purpose. Learned Counsel for respondent No. 1 wants to file reply to C.M. No. 72/L-96." (Underlining is ours)

It is evident from the bare reading of the aforenoted order that the Hon'ble Judge specifically allowed the proceedings in the suit for recovery to be continued and already appointed Provisional Manager was directed to defend the suit.

1. Section 316 (1) of the Companies Ordinance, 1984, envisages that when a winding up order has been made or a Provisional Manager has been appointed, no suit or other legal proceeding shall proceed against the company except by the leave of the Court. The said provision of law is reproduced below for ready reference:

316(1) "Suits stayed on winding up order:--(1) When a winding up order has been made or a Provisional Manager has been appointed, no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose."

It flows from the perusal of the aforesaid provision of law that when winding up order has been made or a Provisional Manager has been appointed, the proceeding in the suit or other legal proceedings shall remain stayed only against the company and cannot further proceed except with the leave of the Court. If any party wishes to commence or continue with the proceedings, then it has to file the application under Section 316(1) of the Companies Ordinance, 1984, before the learned Company Judge seeking his permission to proceed, continue and commence with the proceedings against the company and the Court may grant such permission, subject to certain terms. Placing the said provision of law in juxta-position with the order dated 16.9.96, we are of the firm view that the learned Company Judge through a specific and conscious order permitted the Banking Court to continue with the proceedings in the recovery suit, filed by the respondent-bank, inasmuch as the Provisional Manager was directed by the learned Company Judge to approach the Court and make application. In view whereof, we are firm in our views that the learned Company Judge granted permission to the respondent-bank and the learned Banking Court, which was seized of the suit for recovery, to continue and proceed with the proceedings, thus, the learned Banking Court was justified in passing the impugned judgment and decree.

1. There is another aspect of the case. As noted above, Section 316(1) of Companies Ordinance, 1984, provides that after the passing of the winding up order or the appointment of Provisional Manager, no suit or legal proceedings shall proceed with or commence against the company. Thus, upon the happening of aforesaid two eventualities, the proceedings cannot commence or proceed only against the company, while the proceedings against the other persons arrayed in the suit as defendants in the capacity of guarantors/mortgagers/beneficiaries, apart from the company, can be proceeded with, continued and commenced even without the leave of the Court. The appellant did not represent the company at any stage, although she was one of the directors. Admittedly, she did not file winding up petition. The present appeal has only been filed by Mst. Tanis Akhtar, the appellant, who was arrayed as Defendant No. 3 in the suit for recovery. Even it be conceded for the sake of arguments that no permission was granted to continue with the suit, at best, the said argument, now canvassed by the learned counsel of the appellant, was available to the company, who choose not to file the appeal in hand and instead thereof it has been arrayed as one of the respondents. The appellant, being one of the defendants, cannot raise the said plea, because in any case the proceedings had to be continued against her, even if no permission was granted to the respondent-bank to continue with the proceedings in the suit. It does not lie in the mouth of the appellant, being the defendant in the suit, to say that the decree passed against her is without jurisdiction, as in any case proceedings against the appellant and other defendants were to proceed and continue notwithstanding the fact that the company was ordered to be wound up, that Provisional Manager was appointed or/and no permission was granted to continue with the proceedings. The solitary contention raised by the learned counsel of the appellant is without any substance, hence repelled.

2. Now coming to order dated 16.12.96, passed by the learned Company Judge and relied upon by the learned counsel for the appellant. Para 4 of the said order is reproduced below:

"This apprehension of the learned counsel is ill-founded as no such consequences follow from winding up of the company. In any event, if the Respondent No. 1 wishes to continue with the suit filed by it, it can seek permission from this Court."

It is evident from the above that the learned Company Judge, while passing the aforenoted order did not consider, review or recall his earlier order dated 16.9.96, wherein, permission to continue with the suit already stood granted, as held above. The observations of the Hon'ble Company Judge, that if Respondent No. 1 wishes to continue with the suit, it can seek permission from this Court, does not mean that the previous order, granting permission to continue with the proceedings in the suit for recovery, has been recalled, superseded or rescinded, automatically. It appears from the tenor of order dated 16.12.96, that order dated 16.9.96, was not brought to the notice of learned Company Judge at the time of the passing of the latest order on the same subject. In any event, this order does not required the respondent-bank to seek fresh permission from the Court to continue with In case the aforesaid result sheet and para-5 and 6 of the order of the Honourable Supreme Court are put in juxta position then we do not interfere in the matter as the matter has been concluded between the parties to this extent by the order of the Honourable Supreme Court which if final between the parties in view of Section 11 of CPC as the law laid down by the Honourable Supreme Court in Pir Bakhsh vs. Chairman Allotment Committee (PLD 1987 S.C. 145). As the result sheet is a public document which is valid in view of Article 150 of the Constitution. Therefore, full credit is to be given to the said original record. Even otherwise the said document is valid in terms of the provisions of Qanun-e-Shahadat Order, 1984. In arriving to this conclusion we are fortified by the following judgment:--

Mst. Nur Khatoon vs. Nur Khan (PLD 1956 Lahore 293).

In view of what has been discussed above, we accept the appeals in view of order of the Honourable Supreme Court. Consequently, judgment of the learned Single Judge is set aside. Even the obiter dicta of the Honourable Supreme Court is binding upon this Court. In arriving to this conclusion we are fortified by the following judgments:--

Ghaus Muhammad Versus The State (PLD 1978 Lahore 1235).

Martial Law Administrator Versus Muhammad Niaz (PLD 1979 SC 921).

It is pertinent to mention here that learned counsel of the respondents have alleged that the department has issued the appointment letters to the candidates who are over age, therefore, keeping in view this allegation we direct the Chairman C.B.R. to constitute a high powered committee to probe into the matter to this extent and the committee shall complete the process within three months and thereafter competent authority shall proceed in the matter in terms of the finding of the committee. In case the committee finds any person who is acting in derogation of the law then he is directed to proceed against said person under Efficiency and Discipline Rules. He is also directed to submit report to the Deputy Registrar (Judl.) of this Court within the stipulated period.

(A.A.) Appeal accepted.

PLJ 2004 Lahore 1235

Present: Sayed Zahid Hussain, J.

Syed AZHAR HUSSAIN GILANI--Petitioner

versus

Mst. ROBINA AKRAM and 2 others--Respondents

W.P. No. 6017 of 1999, heard on 28.7.2004.

(i) Punjab Pre-emption Act, 1991 (IX of 1991)—

----S. 24--Constitution of Pakistan (1973) Art. 199--Suit for pre-emption--Order of deposit once passed by Court in absence of defendant was revised by Court on representation of defendant after expiry of period of thirty days--Legality--Order as to deposit of sale price having been made in absence of defendant which had been procured by plaintiff by practicing fraud on Court, the same could be recalled by Court--Trial Court was not denuded of power to recall or vary any order which had been obtained from that Court by suppressing material facts. [P. 1238] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 24--Constitution of Pakistan (1973), Art. 199--Order passed by Revisional Court being fraught with inconsistencies and contradictions and being based on mere assumptions and conjectures could not be countenanced--Order of revisional Court being wholly illegal arbitrary and whimsical in nature was declared to be of no legal effect--Case was remanded to revisional Court for decision afresh in accordance with law.

[Pp. 1238 & 1239] B & C

1992 SCMR 746; 1993 SCMR 2325; PLD 1985 SC 131 and

1991 SCMR 970, ref.

Mr. Azmat Saeed, Advocate for Petitioner.

Mr. Jari Ullah Khan, Advocate for Respondents.

Date of hearing : 28.7.2004.

Judgment

On 23.7.1998 a suit for possession through pre-emption was instituted by the petitioner qua the suit land (description whereof was given in the plaint) that the transaction was indeed a sale and not exchange. The same day the learned trial Court ordered the petitioner/plaintiff to make deposit of Rs. 45,334/- i.e. 1/3rd of Rs. 1,36,000/- which was apparently in view of averments made in the plaint. According to the learned counsel for the petitioner, the defendant/respondent entered appearance before the trial Court and filed written statement whereafter. On 13.10.1998 an application was filed by Respondent No. 1 that the petitioner/plaintiff had understated the value of the suit land and other dated 23.7.1998 was procured through fraud and mis-representation and that the petitioner/plaintiff be ordered to make deposit of 1/3rd of sum of Rs. 71,96,292/- which according to the respondent/defendant was the probable value of the land. On 2.12.1998 the learned trial Court ordered the petitioner/plaintiff to make deposit of Rs. 8 lac as 1/3rd of the sale price of Rs. 24 lac after deducting the amount which had already been deposited in the Court. Both parties felt aggrieved of the said order and assailed the same through revision petitions which were heard and decided by the learned Additional District Judge, Depalpur on 9.3.1999. By that judgment the revision petition filed by the petitioner was dismissed whereas that of Respondent No. 1 (defendant in the suit) was accepted ordering the petitioner/preemptor to make deposit of amount of

Rs. 21,55,000/- as 1/3rd after deducting the amount of Rs. 45,334/- which had already been deposited by him. This judgment has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

1. After stating the background in which the suit was filed and the orders were passed by the Courts below, it is contended by the learned counsel that once order dated 23.7.1998 had been passed by the trial Court, no further order could be passed by it after expiry of thirty days in view of Section 24 of Punjab Pre-emption Act, 1991. Reliance for this purpose has been placed upon Awal Noor v. District Judge, Karak and 8 others (1992 SCMR 746). It is contended that the learned Additional District Judge, Depalur who acted as a revisional Court could not substitute his own probable value of the suit land which was not even the case of the other side. Inconsistencies in the judgment of the learned Additional District Judge, Depalpur are sought to be pointed out to contend that in passing such an order, the Court acted wholly without jurisdiction. According to him, the order was based on conjectures and assumptions and was not sustainable in law.

The learned counsel for Respondent No. 1 support of the order of the Courts below has cited Muhammad Din v. Mehboob Khan and 3 others (1993 SCMR 2325) to contend that where the order for deposit of 1/3rd was the result of misrepresentation, the Court could lawfully pass order even after the expiry of thirty days. According to him, writ petition against revisional order of the lower Court was not maintainable particularly when there was no jurisdictional defect in passing such an order. Reference in this context has been made to Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131) and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970). It is further contended that the petitioner who had suppressed material facts and had not approached the Court with clean hands, was not entitled to relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

1. The respective contentions have been considered in the light of the material on the record. The perusal of the plaint would show that the value disclosed therein in particular paragraph 3, 5 and 7 was Rs. 1,36,000/-. The trial Court was, thus, led to pass order dated 23.7.1998 whereby the petitioner/plaintiff was ordered to make deposit of Rs. 45,334/- as 1/3rd of the same. This certainly was an order passed in the absence of the defendant/respondent who had yet to enter appearance and had the right to object to the correctness and legality thereof. It was in such context that the respondent/defendant made application before the trial Court on 13.10.1998 that the earlier order passed by the Court was result of misrepresentation and order for making deposit of 1/3rd of Rs. 71,96,292/- be made which according to the defendant/respondent was the probable value of the land. It was pointed out in that application that the petitioner/plaintiff had himself stated the value of the land as Rs. 24 lac in the notice of Talb-e-Ishhad and was estopped to take any contrary stance. Such a plea prevailed with the Court to the extent that the petitioner/plaintiff had to make deposit of Rs. 8 lac as 1/3rd of Rs. 24 lac. It was at the same time observed that "the depositing of 1/3rd has to be determined after recording evidence of the parties." In such circumstances when the order dated 23.7.1998 had been passed by the Court in absence of the defendant/respondent, the Court was fully justified to pass a fresh order in view of Muhammad Din v. Mehboob Khan and 3 others (1993 SCMR 2325) wherein such a plea (as has been raised by the learned counsel for the petitioner in this case) was repelled observing that "The order as to the deposit of sale price in the Court having been made in the absence of the respondents would be presumed to have been passed subject to their objection. In any case, the order having been obtained by the petitioner by practicing fraud on the Court, the latter was under obligation to recall the same." This being the later view of the Honourable Supreme Court of Pakistan than that of in Awal Noor's case will be attracted to the facts and circumstances of the present case. The trial Court, thus, was not denuded of the power of recall or vary an order which had been obtained from it by suppressing the material facts. The contention of the learned counsel for the petition in that context is untenable and is to be repelled.

2. Insofar as the order passed by the learned Additional District Judge, Depalpur is concerned, suffice it to observe that while dismissing the revision petition filed by the petitioner, it proceeded to observe that the revision petition was devoid of force and "does not call for any interference in the order of the learned trial Court to the extent of assessing the sale price as Rs. 24,00,000/- of the suit land as per admission of the revision petitioner." The revision petition was accordingly dismissed with costs. However, while dealing with the revision petition of the respondent/defendant, the Court adopted a different approach altogether and proceeded to assess the value of the land with reference to stamp duty paid by the respondent/defendant and, thus, making its assumed calculation the probable value of the suit property was determined at Rs. 64,65,000/- ordering the petitioner/ preemptor to pay Rs. 21,55,000/- as 1/3rd after deducting the amount of

Rs. 45,334/- already deposited by him. I do not consider it appropriate to make any further comment and would refrain from making any observation about the criteria so adopted by the learned revisional Court except to observe that the single order by which the two revisions against the one order of the trial Court were disposed, was fraught with inconsistencies and contradictions apart from the fact that it was based on mere assumptions and conjectures. Needless to observe that the Court was obliged to keep in view the respective stances of the parties (as pleaded by them) even in making prima facie assessment of the probable value of the property. There is no valid and cogent basis for such an order, rather it runs counter to what was observed in paragraph 7 of the judgment. Such self contradictory disposition of the matter cannot be countenanced.

1. The contention of the learned counsel for Respondent No. 1 that the writ petition should be dismissed as incompetent against revisional order, has in the peculiar circumstances of the case not impressed me. The precedents cited by him cannot be construed to sanctify an order of the revisional Court which may be wholly illegal, arbitrary or whimsical in nature. The order passed by the learned Additional District Judge, Depalpur on 9.3.1999 can hardly sustain in law. The same is, thus, to be declared as of no legal effect. The result would be that the revision petitions filed by both sides qua the order dated 2.12.1998 of the learned trial Court would be deemed pending before the revisional Court which need to be heard and decided in accordance with law.

The writ petition is accepted in the above terms and is disposed of accordingly with no order as to costs. In order to avoid further delay in the matter, the parties are directed to cause their representation before the learned Additional District Judge, Depalpur on 13.9.2004 by which date the office will ensure the transmission of the records.

(A.A.) Case remanded.

PLJ 2005 Lahore 1239 (DB)

[Bahawalpur Bench Bahawalpur]

Present: Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ.

LAND ACQUISITION COLLECTOR, etc.--Appellants

versus

Mst. FAREENA SHAUKAT, etc.--Respondents

RFA No. 10 of 1991/BWP, heard on 6.6.2005.

Land Acquisition Act, 1984 (I of 1984)--

----S. 18(2)(3)--Land was acquired for Highway--Award was not accepted by Province of Punjab--Reference was transmitted--The owner of land objected to filing of reference on point of limitation--Question of Limitation--Reference dismissed due to limitation--Assailed--Unambiguous in its words and language and has provided that Provincial Government, if dissatisfied with award it can refer the matter to the Court within stipulated period from the date of announcement of the award--The award in the present case having been announced on 17.8.1980 but reference was filed on 13.2.1982 and entrusted to Referee Judge on 14.2.1982--Held: As prescribed by S. 18(3) of land Acquisition Act because it was filed after prescribed stipulated period as laid down by Section 18(3) of Land Acquisition Act--Appeal dismissed. [P. 1241] A

Mr. Shaheen Masood Rizvi, AAG for Appellants.

Nemo for Respondents.

Date of hearing : 6.6.2005.

Judgment

Sh. Hakim Ali, J.--Through this Regular First Appeal, the dismissal decision dated 3.12.1990, of a reference filed by the Province of Punjab, under Section 18 of the Land Acquisition Act 1894, by the learned Senior Civil Judge/Referee Court of Rahimyar Khan has been challenged.

1. For the construction of a fly over at Rahimyar Khan, the land measuring 127 kanals 2 marlas, belonging to the respondents, situated in Mauza Kot Dera, Tehsil and District Rahimyar Khan was compulsorily acquired by the Land Acquisition Collector in the year 1977 for Highway Department. The award, which was delivered on 17.8.1980, by the Land Acquisition Collector was not accepted by the Province of the Punjab, so a reference was filed with A.C/Collector Sub-Division, Rahimyar Khan, on 14.2.1981 but it was not entertained by the aforesaid Collector, because the above mentioned Collector was of the view that Highway Department/Land Acquisition Collector could file such a reference directly in the Court of learned Referee Judge, so it was returned on the same day, i.e. 14.2.1981. After that, District Collector, Rahimyar Khan was approached and reference under Section 18 of the Land Acquisition Act 1894 was transmitted to the learned District & Sessions Judge, Rahimyar Khan, which was received by the learned District Judge, Rahimyar Khan on 13.2.1982, which thereafter was entrusted to learned Senior Civil Judge/Referee Judge, Rahimyar Khan on 14.2.1982. The owners of the lands, who were respondents, objected to the filing and entertainment of the reference on the point of limitation. On the basis of their reply/pleading, an Issue No. 2 was also framed to make conscious the parties to address to the question of limitation. Learned Senior Civil Judge after recording evidence and hearing the parties, dismissed the reference holding it to be barred by limitation as well as lacking on merits, through the impugned decision dated 3.12.1990. Hence, this regular first appeal.

2. At the very out set, it has been admitted by the learned AAG that the reference under Section 18 was to be filed by the Provincial Government before the learned Referee Court/learned Senior Civil Judge within the prescribed period. It has been candidly conceded by the learned AAG with all its fairness that the reference filed by the Provincial Government was barred by time.

3. To elaborate, examine and discuss this fact, we have also laid our hands to verify this legal proposition. Through Land Acquisition (West Pakistan Amendment) Ordinance No. XIV of 1968, after sub-section (2) another sub-section (3) was inserted in Section 18 of the Land Acquisition Act of 1894, which is as follows:--

"(3) Notwithstanding anything to the contrary contained in Section 21, the Provincial Government, may if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is prima facie case for inquiry into and determination of the objection against the award."

1. Sub-section (3) above mentioned is unambiguous in its words and language and has provided that Provincial Government, if is dissatisfied with the award, it can refer the matter to the Court within a period of six months from the date of announcement of the award. The award in the instant case having been announced on 17.8.1980 but the reference was filed with learned District Judge, Rahimyar Khan on 13.2.1982, and entrusted to learned Senior Civil Judge/learned Referee Judge on 14.2.1982 was, therefore, clearly barred by time, as prescribed by sub-section (3) of Section 18 of the Land Acquisition Act, as referred to above because it was filed after the prescribed period of six months, as laid down by the aforesaid Section. The learned Referee Court has correctly relied upon PLD 1979 Lahore 54 (Government of West Pakistan through Collector, Gujranwala versus Land Acquisition Collector, District Gujranwala etc).

2. Accordingly, the judgment/decision of the learned Senior Civil Judge, having proceeded and decided the case on the point of limitation as well as on merits, in accordance with law, this regular first appeal cannot be accepted, which is dismissed with no order as to costs.

(R.A.) Appeal dismissed.

PLJ 2005 Lahore 1241

[Multan Bench Multan]

Present: Muhammad Nawaz Bhatti, J.

MUHAMMAD SHOAIB--Petitioner

versus

S.H.O., POLICE STATION NEW MULTAN and another--Respondents

W.P. No. 952-Q of 05, decided on 21.4.2005.

Criminal Procedure Code, 1898 (V of 1898)—

----Ss. 561-A--Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) Ss. 10(2), 13 and 14--Quashment of F.I.R.--Validity--Factual controversy cannot be taken into consideration through Constitutional petition--It would not be in ends of justice to allow prosecution to continue--Held: It has been held in Ghulam Muhammad vs. Muzammal Khan that when alternative remedy is available to petitioner u/Ss. 249-A or 265-K Cr.P.C. Constitutional petition would not lie--No illegality or malafide and jurisdictional error has been found--Petition dismissed.

[P. 1242 & 1243] A & B

Rana Muhammad Hussain, Advocate for Petitioner.

Malik Muhammad Baqir Awan, Advocate for Complainant.

Date of hearing : 21.4.2005.

Order

Through this writ petition the petitioner has sought quashment of FIR No. 62/05 dated 24.1.2005 registered u/S. 10(2)/13/14 Offence of Zina (Enf. of Hudood) Ordinance VII of 1979 on the complaint of one Zafar Iqbal against Muhammad Shoaib, Muhammad Aslam, Azhar Nadeem, Muhammad Shahid, Naeem Akhtar, Mst. Shazia and Muhammad Shehzad at Police Station, New Multan with the allegation that complainant was living in a rented house alongwith his family sitting room of which was in possession of owner of house whose grand maternal son namely Shoaib on 23.1.2004 at about 10.00 p.m. alongwith his co-accused was seen while committing zina with Mst. Shazia co-accused. When Mst. Shazia was asked about the occurrence she told that she was handed over to the accused persons by one Muhammad Shahzad against a consideration of Rs. 1,000/- and they were committing zina bil raza.

1. Learned counsel for the petitioner submits that bare perusal of the FIR shows that no offence is made out against the petitioner and other co-accused and registration of case is totally an act of without lawful authority. That Sections 13/14 of the Offence of Zina (Enf. of Hudood) Ordinance VII of 1979 are not applicable in this case as there is no evidence for sale of Mst. Shazia who is a married lady having children and complainant with connivance with local police registered a false case against the accused persons. That the occurrence took place at night time and is not supported by witnesses and the complainant has also no objection if this petition is accepted and FIR is quashed. Further submits that co-accused namely Shehzad has been declared innocent and eye-witnesses have denied the occurrence.

2. On the other hand learned counsel for the complainant submitted that incomplete challan has been submitted on the basis of zimni No. 9 dated 10.3.2005 according to which Muhammad Sohaib, Muhammad Aslam, Azhar Nadeem. Muhammad Shahid, Naeem Akhtar and Mst. Shazia have been found guilty and Shehzad accused has been declared innocent.

3. I have heard learned counsel for the parties and carefully perused the record. This is well settled law that factual controversy cannot be taken into consideration through Constitutional petition. According to the principle laid down in "Naseem Beg vs. M. Iqbal etc." (1981 SCMR 315) High Court can quash proceedings if satisfied from cogent, material that the prosecution was launched for improper motives merely to harass the accused or its continuance would be an abuse of the process and the Court conclude that it would not be in the ends of justice to allow the prosecution to continue. It has also been held in "Ghulam Muhammad vs. Muzammal Khan and others" (PLD 1967 SC 317) that when the alternative remedy is available to the petitioner u/S. 249-A or 265-K Cr.P.C. constitutional petition would not lie. No illegality or mala fide and jurisdictional error has been found in this case. Instant writ petition having without substance is dismissed.

(R.A.) Petition dismissed.

PLJ 2005 Lahore 1243

[Multan Bench Multan

Present: Muhammad Nawaz Bhatti, J.

MUHAMMAD AHMAD--Petitioner

versus

S.H.O., POLICE GALLA MANDI SAHIWAL and 2 others--Respondents

W.P. No. 1642 of 2005, decided on 19.4.2005.

Constitution of Pakistan, 1973—

----Arts. 12 and 199--Criminal Procedure Code (V of 1898) S. 561-A--Pakistan Penal Code, (XLV of 1860) S. 489-F--Quashment of FIR--Cheque was dishonoured--Offence had been made punishable on issuance of a cheque dishonestly towards repayment of a loan or fulfillment of an obligation which was dishonoured on presentation--Held: Offence under provision of law is constituted when a cheque is dishonestly issued--At the time of issuance of cheque i.e. 28.5.2001 by the petitioner offence u/S. 489-F PPC was not on statute book--Petitioner could not be punished in view of Art. 12 of the Constitution of Pakistan, 1973--Further held: No law shall authorize punishment of a person for an act and punishable by law at time of commission--Restriction has been imposed on legislative by Art. 12 that it cannot punish by retrospective legislation for an act which was not offence at time it was committed--Petition allowed and FIR quashed. [P. 1244] A, B & C

2004 P.Cr.L.J. 263 ref.

Mr. Ayaz Ahmad Chaudhary, Advocate for Petitioner.

Mr. Muhammad Sarwar Bhatti, A.A.G.

Mian Khalid Shaukat Haideri, Advocate for Respondent No. 3.

Date of hearing : 19.4.2005.

Order

Through this writ petition the petitioner has sought quashment of FIR No. 107/2005 dated 5.3.2005 registered on the complaint of one Amir Khan son of Saeed Ahmad u/S. 489-F PPC at police station Galla Mandi District Sahiwal.

1. Learned counsel for the petitioner contends that the complainant has himself stated in the FIR that petitioner handed over a cheque to him on 28.5.2001 which was dishonoured on 6.6.2001 whereas offence u/S. 489-F PPC was inserted in PPC vide Ordinance No. LXXXV of 2002 dated 25.10.2002, therefore, the same could not be made punishable retrospectively under the provision of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. Further contends that there is unexplained delay of four years in lodging the FIR which itself speaks the mala fide on the part of the complainant. Further submits that the petitioner filed a civil suit in which interim relief was granted and ultimately compromise between the parties was effected and petitioner did not pursue that suit and the same was dismissed for non-prosecution. That case has been registered with mala fide intention due to previous civil litigation and revenge.

2. On the other hand learned counsel A.A.G. assisted by learned counsel appearing on behalf of Respondent No. 3-complainant submit that instant writ petition has no legal force and FIR has been registered and is being investigated strictly in accordance with law, therefore, the same is not liable to be quashed.

3. I have heard learned counsel for the parties and perused the record. Section 489-F PPC was inserted in the PPC through Criminal Law. (Amendment) Ordinance, 2002 on 25.10.2002. The cheque in question Bearing No. PA 4483671 was issued by the petitioner on 28.5.2001 which was dishonoured on presentation on 6.6.2001 and accordingly the instant FIR was registered Bare perusal of Section 489-F PPC indicates that offence has been made punishable on issuance of a cheque dishonestly towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation. So, it becomes clear that an offence under this provision of law is constituted when a cheque is dishonestly issued. On the date of issuance of cheque i.e. 28.5.2001 by the petitioner the offence u/S. 489-F PPC was not on the statute book. The petitioner cannot be punished in view of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. Article 12 ibid provides that no law shall authorize punishment of a person for an act not punishable by law at the time of commission Restriction has been imposed on the legislative by this Article that it cannot punish by retrospective legislation for an act which was not offence at the time, it was committed. Continuation of prosecution will be mere abuse of process of law. Reliance can safely be placed on "Afaf Rahim vs. Nisar Ahmad and others" (2004 PCr.LJ 263).

4. In view of above discussion, this petition is allowed and FIR

No. 107/2005 dated 5.3.2005 registered u/S. 489-F PPC at Police Station Ghalla Mandi is hereby quashed.

(R.A.) Petition allowed.

PLJ 2005 Lahore 1245

[Rawalpindi Bench Rawalpindi]

Present: Muhammad Muzammal Khan, J.

M. AKBAR KHAN--Petitioner

versus

M. BILAL AHMAD etc.--Respondents

C.R. No. 386 of 2005, decided on 25.5.2005.

Civil Procedure Code, 1908 (V of 1908)—

----S. 48(i) (amended Ordinance (XII of 1972)--Limitation Act, (IX of 1908), Art. 181--Limitation for filing execution petition--Provision of--Limitation for filing execution petition, the objection petition by petitioner was rightly turned down by Courts below without committing any illegality irregularity--Petition dismissed. [P. 1246] A & B

2000 CLC 1047; PLD 2000 Kar. 467 and 1981 CLC 98.

Qazi Muhammad Tariq, Advocate.

Date of hearing : 25.5.2005.

Order

Instant revision petition assailed orders dated 9.6.2004 and 11.4.2005, whereby objection petition filed by the petitioner and two others was dismissed by the executing Court and his appeal there against was dismissed, respectively.

1. Succinctly, relevant facts are that Sultan Khan filed a suit for partition, pending which parties entered into a compromise, on the basis of which suit was decreed. Respondents were declared to be owners to the extent of share in the joint property and rest of the half share was declared to be owned by Sultan Khan and Mst. Bakhat Begum. Consequently, Sultan Khan alienated his share to the respondents Bilal etc. and Mst. Bakhat Begum sold her share to Fateh Khan. The transferees stepped into the shoes of the original co-owners. Decree passed in the partition suit was put to execution wherein petitioner filed an objection petition averring that execution petition being beyond period of three years, was barred by limitation, the execution Court dismissed the objection petition after hearing the parties, vide order dated 9.6.2004.

2. Petitioner aggrieved of dismissal of his objection petition filed an appeal before the learned District Judge, but remained unsuccessful as the same was dismissed on 11.4.2005. He has now filed instant petition for setting aside concurrent orders of the two Courts below.

3. Learned counsel for the petitioner submitted that Article 181 of the Limitation Act, 1908 provided three years limitation for filing an execution petition and the same having been filed beyond this period could not have been put to process. He further submitted that period of limitation started running from the date of final decree in the partition suit i.e. 7.6.1995 and the execution petition having been filed on 8.2.2002 was apparently barred by limitation, besides relying on Article 181 of the Limitation Act, judgments in the cases of Secretary to Government of N.-W.F.P., Forest Department, Peshawar and another vs. Abdur Rehman and two others (2000 CLC 1047), Habib Bank Ltd. vs. Remifar (Pakistan) Ltd. and 5 others (PLD 2000 Karachi 46) and Muhammad Bakhsh and 2 others vs. Muhammad Bakhsh and 9 others (1981 CLC 98) were relied by the learned counsel for the petitioner in support of his arguments.

4. I have minutely considered the arguments of the learned counsel for the petitioner and have examined the record, appended herewith. Article 181 of the Limitation Act, 1908 would apply in cases in which limitation is not provided elsewhere in the schedule attached to the Act (ibid) or by Section 48 of the Code of Civil Procedure, 1908. Since the limitation for execution petition is specifically provided by Section 48 CPC, reference to Article 181 of the Limitation Act is misplaced. In Section 48(1) CPC, as amended through Ordinance XII of 1972, limitation for filing an execution petition was prescribed as six years from the date of decree sought to be executed. In view of clear provisions of law, controlling limitation for filing execution petition, the objection petition by the petitioner was rightly turned down by the two Courts below, without committing any illegality/ irregularity. Judgments relied by the learned counsel for the petitioner have no applicability to the facts of the case in hand, judgment in the case of Muhammad Bakhsh and 2 others (supra) fixed a point for starting of limitation which is not disputed in the case under determination. Similarly judgment in the case of Habib Bank Ltd. (supra) was given under Section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979. Since the petitioner became owner through purchase, he stepped into the shoes of his vendor and thus was bound by the decree dated 7.6.1995. Petitioner cannot escape from the process of execution of the decree.

5. For the reasons noted above, the impugned orders are strictly in accordance with law and none of the Courts committed any illegality amenable to revisional jurisdiction of this Court. This petition consequently, having no merit, is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2005 Lahore 1247

[Multan Bench Multan]

Present: Sh. Hakim Ali, J.

Mst. HALEEMA BIBI--Petitioner

versus

ABDULLAH SAEED ANWAR and 3 others--Respondents

Civil Revision No. 276-D of 1999, decided on 23.5.2005.

(i) Gift Deed--

----Validity of registered gift deed--Denial of--Illiterate villager--Parda nasheen lady--Not only transaction has to be proved with cogent evidence but that was entered by her with conscious application of mind and through independent advice--Land in question was the only asset of Petitioner--It was not expected from her to gift away that land to husband having another wife and the children from that wife--Due to love affair, the lady had contracted marriage with respondent's father and had gifted away the property to him--It could not be presumed that the lady had gifted away all her lands to that alleged donee--Held : Lady could not lose all her assets after culmination of that alleged affair into marriage--Further held : Petitioner had only to controvert, negate and refute the execution of the alleged gift deeds while it was for respondents to prove execution and attestation of the deed of gift and transation--Revision accepted and decree passed by civil Court restored.

[Pp. 1249 & 1250] A & C

(ii) Parda Nasheen Lady--

----Gift deed--Proof of delivery of possession--Parda observing lady--Possession was changed and was with respondents--So the proof of gift cannot be accepted in present case--The petitioner who was a villager parda observing lady was not managing property herself--Husband was holding its possession on her behalf, change of entries even if made on the basis of disputed registered gift deed in revenue record--There was no independent proof of delivery of possession--Held : The possession of husband who was living with that wife would be presumed to be that of his wife. [P. 1250] B

Syed Kabir Mahmood, Advocate for Petitioner.

Mian Mushtaq Ahmad, Advocate for Respondents.

Date of hearing : 15.3.2005.

Judgment

Judgment of reversal, passed by learned Additional District Judge, Burewala on 18.2.1999, has been challenged through this civil revision, by Mst. Haleema Bibi, plaintiff-petitioner, who had got a decree in her favour, from the learned Civil Judge, Burewala on 13.11.1997.

1. The facts, as found from the record and narrated by the learned counsels are that Dil Muhammad was married to one Mst. Safia Bibi, from whom Respondents Nos. 1 to 3 were born. Aforesaid Dil Muhammad contracted a second marriage with Mst. Haleema, who was lady having a landed property. A gift-deed was not executed allegedly from Mst. Haleema Bibi by Dil Muhammad in his favour through Deed No. 657, registered on 27.4.1986, as with regard the lands measuring 82 kanals 14 marlas, situated in Chak No. 469/EB, Tehsil Burewala. Mst. Haleema Bibi challenged the validity of this registered gift-deed dated 27.4.1986, which was entered into the revenue record through Mutation No. 171 dated 24.6.1986. She narrated in her suit that she had not appeared before the Sub-Registrar and had never got registered or gifted away the property to Dil Muhammad. She also asserted that she was an illiterate, villager, parda nasheen lady and the deed is the result of fabrication and forgery. Giving the reasons of having not gifted away, it was stated by her in her plaint that she could not gift out that property to Dil Muhammad, as she was issueless and it could not be presumed from her that she would alienate her last source of income to Dil Muhammad, which was consequently to devolve upon the issues of his second wife (step sons and step daughters).

2. The suit was contested. The issues were framed and the parties had adduced their evidence. After appreciation and evaluation of the evidence, learned Civil Judge decreed the suit in favour of Mst. Haleema Bibi on 13.11.1997. Aggrieved from that judgment and decree, heirs of Dil Muhammad, who were defendants in the suit, filed appeal before the learned Additional District Judge Burewala, which was accepted and the suit was dismissed on 18.2.1999. Hence, this revision petition.

3. It has been submitted by the learned counsel for the petitioner that the impugned judgment and decree of the learned Additional District Judge is liable to be reversed because learned Judge has failed to appreciate and apply the correct law, which was provided in case of an illiterate villager woman. The evidence must be of cogent and satisfactory nature in case of transaction being executed with that lady. There must be evidence showing conscious application of mind for the execution and for transacting or getting a transaction of benefit from the aforesaid lady. As the burden to prove the correctness/validity of the gift-deed was heavily placed upon the shoulders of respondents/defendants, they had to bring credible evidence in which they had failed. DW-6, Ch. Ghulam Mustafa Ghumman, Advocate, who had identified the alleged executant at the time of registration of the disputed gift, had stated that the woman was clad in a burqa and the contents were never narrated to that woman while Malik Khuda Bakhsh. Sub-Registrar, DW-7 had admitted in his statement that he had not known the lady personally. DW-8, Abdul Haq, the marginal witness of Ex. D-1 (Gift-deed) had not been able to state as to why the gift was made. DW-1, Syed Hatam Hussain Gillani, scribe was also not believable as he had not known Dil Muhammad personally, while Mst. Haleema Bibi was allegedly known to him personally, which statement was incredible. (Wife was known and not of her husband. Strange was the sentence.) The statement of DW-4 has also been challenged by the learned counsel by stating that the statement was unbelievable because a lady cannot who go and fetch the witnesses to witness the making of her gift. so, the learned counsel has prayed that the judgment and decree, passed by learned Additional District Judge be reversed.

4. On the other hand, learned counsel for the respondents has replied that DW-1, Syed Hatam Hussain Gillani had categorically stated that Mst. Haleema Bibi was known to her personally while DW-2, Abdullah Saeed Anwar, Defendant No. 2 had also supported the gift transaction and had proved the transaction of gift. There was no specific denial of thumb impression having not been affixed upon the gift-deed in dispute. The judgment of the learned Additional District Judge was passed upon sound reasonings. He has also stated that marriage of Mst. Haleema Bibi with Dil Muhammad was the result of love affair, so Mst. Haleema Bibi had alienated the lands in dispute to him. The plaintiff had not produced any other witness except her own statement, which was got recorded by her as PW-1. The plaintiff was a wife lady and had admitted that she could compare between good and bad in affairs. The possession having been changed in the revenue record, the judgment of the learned Additional District Judge requires to be upheld.

5. After considering the arguments of both the learned counsels and from the perusal of the record, I have found that it is an admitted fact that Mst. Haleema Bibi was a lady, who was villager, parda observing and illiterate also. In such cases, the law is well settled, that not only the transaction has to be proved with cogent evidence but that it was entered by her with conscious application of mind and through independent advice. Other factors, such as reason to make gift are also to be kept in view. The disputed land was the only asset of the aforesaid lady. It was not expected from her to gift away that land to a husband, having another wife and the children from that other wife. I cannot subscribe to the view that due to love affairs, the lady had contracted marriage with Dil Muhammad and had gifted away the property to him. There may be a love affair, which has also not been proved on the record, yet it could not be presumed that the lady had gifted away all her lands to that alleged donee. Such a lady could not lose all her assets, after the culmination of that alleged love affair into marriage. Independent advice was imparted to Mst. Haleema Bibi was to be proved on the record by the alleged beneficiary PLD 1990 SC 642 (Jannat Bibi vs. Sikandar Ali and others), 1991 CLC 104 (Ch. Nasrullah Khan vs. Muhammad Ramzan and others), 1991 MLD 986 (Muhammad Hashim and others vs. Arshad Javed [Irshad Javaid] and another), 1991 MLD 2359 (Mst. Saleema Bibi vs. Sardar Khan and 4 others), 1989 CLC 803 (Lal Shahadat Khan and another vs. Mst. Gul Marjana) PLD 1967 Lahore 744 (Mst. Hussain Bibi vs. Zafarullah Khan and another) and 2001 SCMR 609 (Amirzada Khan and another vs. Itbar Khan and others). The above noted decisions and the evidence, which I have noted in the arguments of the learned counsel for the petitioner, fully prove that the gift document was not proved up to the hilt. The arguments of the learned counsel for the respondents that the possession was changed and was with the respondents, so, the gift was proved, cannot be accepted in the instant case, because the petitioner who was a villager, parda observing lady was not managing the property herself. It was naturally her husband, the male, who was holding its possession on her behalf therefore, the change of entries even if made on the basis of disputed registered gift-deed in the revenue record, were the consequences of that deed. There was no independent proof of delivery of possession. The possession of husband who was living with that wife, would be presumed to be that of his wife. As regards solitary statement of plaintiff, the argument is fallacious, because the plaintiff had only to controvert, negate and refute the execution of the alleged gift-deed, while it was for the respondents to prove the execution and attestation of the deed of gift and transaction. The plaintiff was not required by any law to bring more witnesses necessarily and mandatorily, as the burden of proof after the statement of Mst. Haleema Bibi had shifted towards the defendants/ respondents. The judgment of the learned Additional District Judge is not maintainable in the eye of law, which has proceeded to reverse the judgment of the learned Civil Judge on presumptions and conjectures not warranted by any law and due appreciation of facts/evidence of the case. Therefore, by accepting this civil revision, judgment of the learned Civil Judge having been found based on sound and cogent reasons is restored and upheld while the impugned judgment of the learned Additional District Judge is set aside, with no order as to cost.

(R.A.) Revision accepted.

PLJ 2005 Lahore 1250

Present: Syed Hamid Ali Shah, J.

SALAMAT ALI--Appellant

versus

FOUJI SUGAR MILLS SANGLA HILL, DISTRICT SHEIKHUPURA through it's GENERAL MANAGER and 3 others--Respondents

L.A. No. 427 of 2004, decided on 24.1.2005.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968—

----S. 11(1) read with Ss. 33 & 46--Industrial Relations Ordinance, 2002--Remedy for redressal of grievance--Labour appeal--Allowed--Right of employer--Question of--Challenge to--Held: Appellant had remedy to serve upon employee notice u/S. 46--No notice in writing was served to employer with in stipulated period from date of grievance--Appellants are bound by the decision of labour Court as a result of settlement--Appellants remained silent--Appellants have not appeal against order within stipulated period without sufficient explaining delay--Appeals dismissed in limine. [Pp. 1252 & 1253] A & B

Ch. Abdul Karim Kerala, Advocate for Appellant.

Date of hearing : 11.1.2005.

Order

This single order will decide Labour Appeals Nos. L.A. 427/2004 title "Salamat Ali versus Fouji Sugar Mills etc." L.A. 428/2004 titled "Atiq-ur-Rehman versus Fouji Sugar Mills etc", L.A. 429/2004 titled" Zahoor Ahmad versus Fouji Sugar Mills etc" and L.A. 430/2004 titled "Muhammad Javed versus Fouji Sugar Mills etc," as common questions of law and fact are involved in all the above appeals.

1. Brief facts for disposal of the above appeals are that the appellants were working in the respondent sugar mills and were assigned various duties. The appellants have filed these appeals separately, in their individual capacity against the order dated 28.7.2004 passed by Respondent No. 4 (Labour Court) wherein the present appellants were not the party.

2. Respondent No. 1 filed an application before the Punjab Labour Court-III, Lahore under Section 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, read with Section 33 of the Industrial Relations Ordinance, 2002 stating therein that due to several operational breakdowns, substandard production, marketing problems and sale of sugar at low price, the project has not become economic and viable and suffers losses. Detail of year-wise loss and liabilities was provided. The Respondent No. 2 (Fauji Sugar Mills, Employees' Union), who was CBA Union contested the said application, filed written statement and raised various preliminary objections as to the competence of the application. The C.B.A. Union subsequently entered into a compromise, which was reduced into writing and signed by CBA Union as well the Company. The agreement was filed in the Court as Ex. C-1, which was signed by almost all the workers including the office bearers of the C.B.A. Union. The workers ultimately collected their dues and additional payments. The learned Labour Court allowed the applicant to close down its mill on 28.7.2004, as there was no objection in this respect by the CBA Union.

3. Learned counsel for the appellants submits that the appellants are aggrieved of the order passed by the Labour Court and that the appeal in individual capacity, against the said order, is competent. The appellants sought the condonation of delay, in filing the appeal by way of application under Section 5 of the Limitation Act and submitted that they had the knowledge of the impugned order on 23.2.2004 and thereafter they moved these appeals keeping in view the period of limitation running from the date of knowledge of the impugned order. The learned counsel submits that the closure of the factory was mala fide and was aimed at to deprive the unwanted union workers from jobs. The learned counsel filed a copy of daily "cane crushing summary" as Annex-E, with the appeal, to prove that the factory is functioning at present. The learned counsel submitted that the order is mala fide, does not qualify the conditions of Section 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the workers were not made party and impugned order was passed without recording evidence, hence the Labour Court was wrong to allow the closure.

4. Heard learned counsel for the appellants at length and examined the record.

5. There is no bar against the appellants to assail the impugned order in appeal as aggrieved person, despite not a party to proceedings before the lower forum. The only requirement is that he must be aggrieved by such order. Reference in this respect can be made to the following case law:--

6. Muhammad Hanif etc. versus Lal Khan etc. (2000 YLR 469);

7. Mahmood-ur-Rehman versus Atta Ullah Atta etc. (PLD 1998 SC (AJ&K) 1);

8. H.M. Saya & Co. Versus Wazir Ali Industries Ltd. and others (PLD 1969 SC 65);

9. It is admitted fact that the factory/mills (Respondent No. 1) was allowed to be closed down by the Labour Court on 28.7.2004 as a result of compromise between the CBA Union and the employer. The appellants had the remedy for the redressal of their grievance by invoking the provisions of Section 46 of the Industrial Relations Ordinance, 2002. The appellant had the remedy to serve upon the employee notice under Section 46, but no notice in writing, was served by the appellants to the employer or to its agent within the stipulated period of one month from the date of grievance. The appellants remained silent and have not agitated the matter within one month as provided under law. The appeals under reference are also not within the period of limitation and there is no explanation about the fact that how the appellants came to know about the impugned order. On the other hand, the settlement arrived at between the C.B.A. and management is binding on the dissenting workers. The impugned order dated 28.7.2004 reveals that Ex. C-1 was filed and signed by almost all the workers. The settlement so arrived at between the employer and the employee and dully recorded by the Court is not open to any scrutiny subsequently. In this view I find support from the decision of Supreme Court of India reported in 1981 Volume II Labour Law Journal p. 429. The relevant part is reproduced as under:--

"where a settlement has been accepted by vast majority of their workmen with their eyes open and accepted by them it must be presumed to be a fair and not liable to be ignored merely because a small number of workers are not prepared to accept the settlement."

1. The appellants are bound by the decision of the learned Labour Court, which was passed as a result of settlement between the CBA Union and employer. The appellants, have not agitated the matter in terms of Section 46 and have not appealed against the order within stipulated period without sufficiently explaining the delay.

2. The above appeals are without merit and dismissed in limine.

(A.S.) Appeal dismissed.

PLJ 2005 Lahore 1253

[Multan Bench Multan]

Present: Muhammad Nawaz Bhatti, J.

KHAIRAT MUHAMMAD--Petitioner

versus

JUDGE FAMILY COURT, MIAN CHANNU, DISTT. KHANEWAL and another--Respondents

W.P. No. 6659 of 2004, heard on 31.3.2005.

Constitution of Pakistan, 1973—

----Art. 199--Civil Procedure Code, (V of 1908) O.XVII, R. 3--Constitutional jurisdiction--Matrimonial disputes--Closing of evidence--Five opportunities were given to petitioner for producing evidence but failed--Validity--Family Court was justified in closing the right of evidence of petitioner because West Pakistan Family Courts Act, 1964 being brief enactment arrived at securing expeditious disposal of matrimonial disputes and there was no provision to effect that evidence of party would not closed in any case--Held: Impugned order being of interlocutory nature cannot be interfered with by High Court in exercise of Constitutional jurisdiction--Petition dismissed. [Pp. 1254 & 1255] A & B

Mr. Abid Hussain Bhutta, Advocate for Petitioner.

Mr. Muhammad Ishfaq Chaudhry, Advocate for Respondents.

Date of hearing : 31.3.2005.

Judgment

This writ petition is directed against the order dated 7.12.2004 passed by Mr. Haider Ali Khan, learned Judge Family Court, Mian Channu, whereby has closed the right of evidence of the petitioner.

1. Briefly stated the facts of the case are that Nikah of the petitioner was performed with Respondent No. 2 but Rukhsati had not taken place. Respondent No. 2 filed a suit for dissolution of marriage on the basis of option of puberty against the petitioner. The suit was contested by the petitioner and he submitted his written statement before the learned Judge Family Court. Evidence of Respondent No. 2 was recorded on 15.10.2004 and the case was adjourned for the evidence of the petitioner. On 7.12.2004 the learned Judge Family Court closed the right of evidence of the petitioner. Feeling aggrieved by the said order, the petitioner has filed this writ petition.

2. It is contended by learned counsel for the petitioner that the order passed by the learned Judge Family Court is against law and facts; that it is settled law that the matter of the parties should be decided on merits and no person can be knocked out on mere technicalities and that the learned Judge Family Court while passing the impugned order did not apply his judicial mind. Reliance is placed upon Khalid Akhtar vs. Mst. Robina and others (1991 MLD 2349), Malik Furkan Ahmad vs. Judge Family Court, Lahore and another (2003 MLD 1641) and Maqsood Ahmad vs. Judge, Family Court Burewala and 5 others (2001 CLC 567).

3A. On the other hand, learned counsel for the respondent has supported the impugned order on the ground that the learned Judge Family Court has the power to close the evidence of a party if, in the opinion of the Court, is not producing evidence without any reason. Reliance in this behalf is placed upon Syed Shaukat Abbas vs. Mst. Bushra Rani and another (PLJ 1982 Lahore 62). Further submits that the impugned order being interlocutory in nature, the instant petition is not competent.

1. Arguments heard and record perused.

2. Mst. Zareen Bibi Respondent No. 2/plaintiff had filed a suit for dissolution of marriage on 3.12.2003. Written statement was filed on 29.4.2004 by the petitioner. Statement of the plaintiff/Respondent No. 2 Mst. Zareen Bibi was recorded on 15.10.2004. The evidence of the petitioner/defendant was closed on 7.12.2004. It appears from the record that after approximately two months, the evidence of the petitioner was closed and it also appears from the impugned order that during the span of two months, five opportunities were given to the petitioner/defendant for producing evidence but he failed to do so. In such circumstances, the Family Court was justified in closing the right of evidence of the petitioner because West Pakistan Family Courts Act, 1964 being a brief enactment arrived at securing expeditious disposal of matrimonial disputes and there is no provision therein to the effect that the evidence of a party shall not closed in any case.

3. Even otherwise the impugned order being an interlocutory order cannot be allowed to be taken exception to in writ jurisdiction because it would only linger on the matter. It can, therefore, be safely held that the impugned order being of interlocutory nature cannot be interfer with by this Court in exercise of Constitutional jurisdiction. Reliance is placed on Rashid Ahmad vs. Soofi Muhammad Saleem (PLD 1976 Lahore 1450).

4. For the foregoing reasons, this petition being devoid of merit is hereby dismissed with no order as to costs.

(R.A.) Petition dismissed.

PLJ 2005 Lahore 1255

[Multan Bench Multan]

Present: Ijaz Ahmad Chaudhry, J.

Mst. KAUSAR MAI--Petitioner

versus

DISTRICT POLICE OFFICER MUZAFFARGARH and 5 others--Respondents

W.P. No. 821-Q of 2005, decided on 8.3.2005.

Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)—

----Ss. 10/16--Pakistan Penal Code, (XLV of 1860) S. 380--Constitution of Pakistan, 1973, Art. 199--Appreciation of evidence--Malafide intention to grab property of widow--No direct evidence of commission of Zina--Petitioner and her children were consistently making statement that they were not abducted by any body and they were living in the house of petitioner's brother in law after expelling to petitioner alongwith her children out of the house by complainant in order to grab their property--Held : Possibility of registration of false case with malafide intention and ulterior motive in order to grab the property of a widow--Abduction enticement department of a major lady the allegation of theft of certain house hold articles without there being any evidence is levelled to put pressure on alleged abductee to support prosecution version.

[P. 1257] A & B

Khan Dil Muhammad Khan Alizai, Advocate for Petitioner.

Sahibzada Usman Ahmad Qureshi, Advocate for Respondent No. 3/Complainant.

Date of hearing : 8.3.2005.

Order

The petitioner seeks quashment of F.I.R. No. 2/2005, dated 1.1.2005 registered under Sections 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 read with Section 380 PPC at Police Station Sadar, District Muzaffargarh.

1. Briefly the facts of the case are that the petitioner was married to the late brother of the complainant, who developed illicit liaison with Allah Bachaya even during lifetime of her husband and on 16.12.2004 the witnesses told the complainant that they had seen Mst. Kausar alongwith her three minor children in the company of Allah Bachaya, etc, in a car. On search some household articles, six tolas of gold ornaments and cash amounting to Rs. 35,000/- were also found missing.

2. Learned counsel for the petitioner contends that the petitioner is admittedly widow of Maqbool Hussain, who is at advance stage of pregnancy. It is also contended that the complainant wanted to contract marriage of the petitioner with Muhammad Hayat another brother of her deceased husband Maqbool in order to grab her property but on her refusal the complainant has got registered this false case and that they have also taken the possession of petitioner's house and grabbed, the property of the deceased while the children and the petitioner were turned out of the house in order to deprive them of their legal share in the property. It is further contended that false allegation of elopement has been levelled against the petitioner whereas she is residing with his brother-in-law, namely, Abdul Sattar. It is also contended that counter allegations have been levelled by the petitioner that the complainant party has grabbed the property of deceased and they are not giving the due share of the petitioner as well as the orphans. It is contended that the continuation of proceedings with the impugned F.I.R. would be abuse of process of law and the same may be quashed. Also contend that the respectable of the locality have sworn affidavits supporting the petitioner's version and that there is no evidence that she was indulged in the commission of zina with the co-accused.

3. On the other hand, learned counsel for the complainant opposes this application on the ground that the petitioner was abducted by Allah Bachaya and she was sent to Darul Aman on wrong assertion that his father was residing at Karachi. Also contends that she is not residing with Abdul Sattar and the petitioner is in the custody of Allah Bachaya. According to the learned counsel false counter allegations have been levelled against the complainant party to conceal their offence, who are residing with each other without any just cause and reason, therefore, are guilty of the offences. Learned Additional Advocate General also opposes the quashment of F.I.R.

4. I have heard the learned counsel for the parties and also perused the record. The statement of the petitioner has been recorded by the police during investigation and some counter allegations have been levelled by the petitioner against the complainant and his brother that they wanted to deprive them from the rights of valuable property of deceased Maqbool Hussain. She has also denied in her statement before the investigating Officer that she had eloped with any body or taking away any household article from the house.

5. In the above circumstances, when the petitioner is denying her abduction by any body and there is no direct evidence of commission of zina, the offences under Sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 are not made out. The petitioner and her children are consistently making statements that they were not abducted by anybody and they are living in the house of Abdul Sattar brother-in-law of petitioner after they were expelled out of the house by the complainant and other family members in order to grab their property. The possibility of registration of sale case with mala fide intention and ulterior motive in order to grab the property of a widow and the orphans by the relatives of late husband cannot be ruled out.

6. As far as offence under Section 380 PPC is concerned, on the one hand there is no direct evidence to substantiate the allegation of taking way the house hold articles from the house by the petitioner and on the other it is generally noticed that it is tendency in this region that in cases of abduction/enticement/elopement of a major woman the allegation of theft of certain house hold articles without there being any evidence is levelled to put pressure on the alleged abductee to support the prosecution version, otherwise she is challaned under the said offence as well.

7. In the above circumstances, when from the contents of the F.I.R., which have been denied by the petitioner (the alleged abductee) no offence is made out, the continuation of further proceedings with the impugned F.I.R. will be abuse of process of law which cannot be allowed to continue. Hence this writ petition is accepted and the impugned F.I.R. is quashed with no order as to costs.

8. At this stage the complainant and petitioner's father who are present in Court, on the query of the Court have raised no objection if the petitioner alongwith her children goes to her house and lives there. They undertake that the petitioner will not be teased or caused any undue harassment and she will be at liberty to use the assets of the deceased. They have also promised to look after the petitioner as a widow of deceased alongwith her children in the same house and give due respect to them. The petitioner wants to join her father, which is allowed.

(R.A.) Petition allowed.

PLJ 2005 Lahore 1258

[Bahawalpur Bench Bahawalpur]

Present: Sh. Hakim Ali, J.

MUHAMMAD IQBAL--Petitioner

versus

ADDL. DISTRICT JUDGE LIAQATPUR and 2 others--Respondents

W.P. No. 1113 of 2003/BWP, decided on 21.7.2004.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)—

----S. 30(4)--Constitution of Pakistan (1973), Art. 199--Compromise between parties in earlier litigation--No violation of terms and conditions of compromise--Family Court having passed decree, same could be executed by that Court--Constitutional petition on basis of non-fulfilment of conditions of compromise and lack of jurisdiction of Family Court relating to execution of decree passed by it being devoid of force was not maintainable. [P. 1259] A

2003 CLC 10 and PLJ 1990 Peshawar 1 ref.

Mr. Muhammad Ramzan Balouch, Advocate for Petitioner.

Syed Muhammad Anwar, Advocate for Respondent No. 3.

Date of hearing : 21.7.2004.

Order

Mst. Karim Khatoon, Respondent No. 3 was married to Muhammad Iqbal, present writ petition, who had filed a suit for dissolution of marriage on 23.9.2002 against the present writ petitioner in the Court of Judge Family Court, Liaqatpur, whereas Muhammad Iqbal had filed a suit for restitution of conjugal rights on 26.6.2002 against Mst. Karim Khatton. Another suit for recovery of dower was also filed by Mst. Karim Khatoon against the aforesaid writ petitioner. On 21.10.1999 in the suit filed for recovery of dower the parties effected a compromise. According to the terms and conditions of the compromise. Muhammad Iqbal, writ petitioner had promised to give 4 kanals of lands from his ownership, as an additional dower subject to the abandonment of all the claims by the aforesaid plaintiff. It was further stated by Muhammad Iqbal, defendant in that offer of compromise that in case of obtaining divorce the plaintiff, Mst. Karim Khatoon would return the property in dispute, in lieu of Zare Khulla and would not be competent to sell it out. This statement of Muhammad Iqbal was accepted by Mst. Karim Khatoon, plaintiff and the suit was decreed on the basis of that compromise on 29.5.2000. As Muhammad Iqbal, had fialed to fulfill his prmise, so Mst. Karim Khatoon filed an execution petition on 7.6.2001. Muhammad Iqbal, the present writ petitioner filed an objection petition by asserting that as decree holder had failed to live with him so she was not entitled to get the decree executed. The objection petition was pending for hearing when an order was passed by learned Court, seized of the execution application, on 31.5.2002 which had accepted the prayer of Mst. Karim Khatoon with regard to the alienation of 4 kanals of promised lands. The writ petitioner filed a revision before the learned Additional District Judge, Liaqtpur against that order with the plea that the learned executing Court had failed to decide the objection petition of the petitioner and that the condition of the compromise was violated by the decree holder herself, therefore, the execution petition could not be entertained by the aforesaid executing Court any more. The learned Additional District Judge dismissed the revision petition on 28.2.2003 hence this writ petition.

1. The learned counsel appearing on behalf of the writ petitioner has pleaded that the learned executing Court has failed to consider the terms sand conditions of the compromise. As per learned counsel, the plaintiff/ decree holder, Mst. Karim Khatoon had promised to reside with the petitioner/judgment debtor. As she had not fulfilled that compromise so, the execution petition was not competent. It has further been argued that the execution petition was to be filed in the Court of learned Civil Judge and that the execution petition before the Judge Family Court was not maintainable. To support his contentions, he has referred to 2003 CLC 10 (Mst. Arshad Bibi versus Ali Muhammad and another) and PLJ 1990 Peshawar 1 (DB) (Muhammad Farid Khan versus Civil Judge 1st Class Abbottabad and 3 others).

2. On the other hand, the learned counsel appearing on behalf of respondent has replied that the writ petitioner had taken another wife and was residing with her and he had himself deserted the respondent, who was living apart from him due to his act and conduct. A suit filed for recovery of maintenance allowance was also decreed against the writ petitioner. The direction to pay the maintenance allowance as also not being complied with by the writ petitioner and the execution petition was rightly filed in the Court of Judge Family Court.

3. I have considered the arguments of the learned counsels for the parties and perused the record.

4. In the compromise dated 29.5.2000 in the statement of Muhammad Iqbal, no condition was imposed through offer by him with regard to the putting up the residence of Mst. Karim Khatoon in his house. Mst. Karim Khatoon, respondent had accepted the statement of Muhammad Iqbal and had promised to fulfill those conditions as contained in the deposition of Muhammad Iqbal, the present writ petitioner. So, the main contention of the learned counsel for the writ petition has loss his significance as there was no violation of the terms and conditions of the compromise, therefore, the writ petitioner cannot complain the refusal to live with him by Mst. Karim Khatoon. So for, the contention of the learned counsel that the execution petition was not wrongly filed and could not be filed in the Family Court, is not legally sustainable in law. According to sub-section (4) of Section 30 of the Family Courts Act, 1964, the decree has to be executed by the Court passing it or any other Civil Court as District Judge may by special or general order direct. The execution petition, which was filed before the learned Judge Family Court, was the Court who had passed the decree, therefore, it was entertainable and competent. There was no lack of jurisdiction vested in the aforesaid Court. Therefore, this objection of the writ petitioner is also devoid of any force. Accordingly, the writ petition is dismissed without any order as to costs.

(A.A.) Petition dismissed.

PLJ 2005 Lahore 1260

[Multan Bench Multan]

Present: Muhammad Nawaz Bhatti, J.

GHULAM RASOOL--Petitioner

versus

ADDITIONAL DISTRICT JUDGE SAHIWAL and another--Respondents

W.P. No. 4946 of 2004, heard on 27.4.2005.

(i) Family Courts Act, 1964—

----S. 9(6)--Suit for recovery of dowry articles--Dismissal--Appeal accepted--Petitioner was proceeded ex-parte--Question of--Application for setting aside ex-parte was dismissed due to time barred--Assailed--Limitation for--Held: Valuable rights--Application for setting aside ex-parte decree was filed within a reasonable time--First Appellate Court was wrong in proceeding ex-parte--Impugned order set aside--Application for setting aside allowed--Case remanded to ADJ to decide appeal on merit.

[P. 1264] B & C

(ii) Family Courts Act, 1964—

----S. 8--Essentials--Service and issuance of summon and passing ex-parte decree--Service of summons is very necessary in matters--Effect of--Service of summons was not effected--Petitioner was neither served summons at lower Court nor at appellate Court--Proclamation was published in Newspaper--Neither widely published nor reached and read where petitioner resides--No summon for service was sent to chairman of union council where he resides--Held: Proceeding ex-parte against petitioner had not complied with mandatory requirements of law--Ex-parte proceeding was wrong--Application for setting aside allowed.

[P. 1263] A

PLD 1975 SC 678; 1997 CLC 1080; 2001 YLR 2612; 2001 CLC 200; 1997 CLC 761; PLD 1990 SC 497 and 2004 CLC 1545 ref.

Mr. Muhammad Arif Alvi, Advocate for Petitioner.

Mr. Tariq Zulfiqar Ahmad Chaudhry, Advocate for Respondent No. 2.

Date of hearing : 27.4.2005.

Judgment

This writ petition is directed against the judgment dated 27.7.2004 passed by the learned Additional District Judge, Sahiwal, whereby the application filed by the petitioner for setting aside the ex parte judgment and decree dated 19.4.2000 was dismissed.

1. Brief facts leading to this writ petition are that Mst. Rukhsana Kausar Respondent No. 2 was married to the petitioner Ghulam Rasool and at the time of her marriage, she was given dowry articles valuing

Rs. 1,42,400/-. On 14.8.1995 the petitioner divorced the respondent by snatching dowry articles. Thus the respondent filed a suit for recovery of dowry articles which was dismissed by the learned Judge Family Court Sahiwal on 3.6.1999. Feeling aggrieved by the order dated 3.6.1999, Respondent No. 2 filed an appeal before the learned Additional District Judge Sahiwal, which was accepted on 19.2.2000 and the petitioner was proceeded ex parte. The petitioner after getting the knowledge of the impugned decree dated 19.4.2000 passed by the learned Additional District Judge Sahiwal, filed an application for setting aside the same, which was dismissed by the learned Additional District Judge Sahiwal vide his judgment dated 27.7.2004, on the ground that the application was time barred. Hence this writ petition.

1. It is contended by learned counsel for the petitioner that the learned Additional District Judge before proceeding ex-parte against the petitioner had not complied with the mandatory requirements of the law as provided in Section 8 of the Family Courts Act, 1964; that the learned Additional District Judge without adverting to the provision of Section 9(6) of the Family Courts Act, 1964, had held the application of the petitioner for setting aside the ex-parte decree as time barred and that the valuable rights of the petitioner are attached and the same require that the appeal of the petitioner may be decided on merits. In support of his contentions, learned counsel the petitioner has relied upon Manager, Jammu & Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 SC 678), Muhammad Afzal vs. Small Business Finance Corporation and 4 others (1997 CLC 1080), Mst. Khurshid Begum vs. Majeed Ahmad Khan through Legal Heirs and others (2001 YLR 2612), Metropolitan Corporation of Labore through Administrator and another vs. Lease Pak Limited (2001 CLC 200) and Pakistan Burmah Shell Ltd. vs. Tariq Brothers (1997 CLC 761).

2. On the other hand, learned counsel for the respondent has supported the impugned decree and has submitted that the petitioner deliberately had not appear and contested the suit though having full knowledge that same had been filed against him and had deliberately refused to received the summons from the Process Server and thereafter the publication in the newspaper as mode of service was sufficient for the requirement of service on petitioner and as the same had been fully done in this case therefore, there was no justification to accept the application which was even otherwise suffered from inordinate delay of about eleven months. In this behalf, reliance was placed upon Messers Ahmad Autos and another vs. Allied Bank of Pakistan Limited (PLD 1990 SC 497) and Mirza Shahid Baig vs. Mst. Lubna Riaz and 2 others (2004 CLC 1545).

3. I have heard learned counsel for the parties and gone through the impugned decree as well as the record.

4. In this writ petition, two points are to be determined :

5. Whether the service was effected on the petitioner or not?

6. Whether the application for setting aside the ex parte decree was time barred or not?

First of all it is necessary to reproduce Section 8 of the Family Courts Act 1964, which is as under:

"Intimation to defendant.--(1) Where a plaint is presented to a Family Court it--

(a) may fix a date ordinarily of not more than thirty days for the appearance of the defendant;

(b) shall issue summons to the defendant to appear on a date specified therein;

(c) shall within three days of the presentation of the plaint, send--

(i) to each defendant, by registered post, acknowledgment due, a notice of the suit, together with a copy of the plaint, a copy of the schedule referred to in Sub-section (2) of Section 7 and copies of the documents and a list of documents referred to in Sub-section (3) of the said section; and

(ii) to the Chairman of the Union Council within whose jurisdiction the defendant or defendants, as the case may be, reside, and where the defendants reside within the jurisdiction of difference Union Councils, to the Chairman of every such Union Council, a notice of the plaint having been presented.

(2) Every summons issued under Clause (b) of Sub-section (1) shall be accompanied by a copy of the plaint, a copy of the Schedule referred to in Sub-section (2) of Section 7, and copies of the documents and list of documents referred to in Sub-section (3) of the said section.

(3) On receipt of the notice under clause (c) of Sub-section (1), the Chairman shall display the notice on the Notice Board of the Union Council for a period of seven consecutive days, and shall, as soon as may be, after the expiry of the said period, inform the Family Court of the notice having been so displayed.

(4) Service of the plaint and its accompaniments in the manner provided in clause (b) or Clause (c) or Sub-section (1) shall be deemed to be due service of the plaint upon the defendant.

(5) Every notice and its accompaniments under Clause (c) of sub-section (1) shall be served at the expense of the plaintiff. The postal charges for such service shall be deposited by the plaintiff at the time of filing the plaint.

(6) Summons issued under Clause (b) of Sub-section (1) shall be served in the manner provided in the Code of Civil Procedure, 1908 Order V, Rules 9, 10, 11, 16, 17, 18, 19, 21, 23, 24, 26, 27, 28 and 29. The cost of summons shall be assessed and paid as for summons issued under the Code of Civil Procedure, 1908.

Explanation. For the purposes of this section, the expression "Union Council" means a Union Council, Town Committee or Union Committee constituted under Section 57 of the Electoral College Act, 1964 (IV of 1964)".

It appears from a bare reading of the said section that service in family matters is very necessary. In this case, the petitioner was neither served at learned lower Court nor at learned appellate Court. Further the proclamation was published for the service of the petitioner in Daily `Jahan Numa Lahore which is neither widely published nor reached and read in Chak No. 97/6-R Tehsil & District Sahiwal where the petitioner resides. Further more no summons for the service of the petitioner was sent to the Chairman of the Union Council where he resides. Therefore, it is held that the learned Additional District Judge before proceeding ex parte against the petitioner had not complied with the mandatory requirements of the law as provided in Section 8 of the Family Courts Act 1964.

1. So far as the question of delay in filing the application for setting aside the ex parte decree, it is necessary to reproduce Section 9(6) of the Family Courts Act, 1964, which is as under:

Section 9(6):

"In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within reasonable time of the passing thereof, to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, such terms as to cost as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendant also".

According to the said section, application can be filed within reasonable time of passing of ex-parte decree. In this case, ex-parte order was passed on 18.2.2000 and the petitioner came to know about the said order on 23.2.2001 and thereafter he filed an application for setting it aside on 13.3.2001. Therefore, it is held that the application for setting aside the ex parte decree was filed within a reasonable time. Even otherwise it has been observed in the authorities cited by learned counsel for the petitioner that lis should not be knocked out on technical grounds but endeavours of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non-suited on mere technical grounds.

1. Relying upon the authorities cited by learned counsel for the petitioner as well as Sections 8 and 9(6) of the Family Courts Act, 1964, I am of the considered view that the learned Additional District Judge was wrong in proceeding ex parte against the petitioner. Therefore, this writ petition is accepted, the impugned order dated 27.7.2004 is set aside and the application of the petitioner for setting aside the judgment and decree dated 19.4.2000 is allowed. The case is remanded to the learned Additional District Judge Sahiwal who is directed to decide the appeal filed by Respondent No. 2 Mst. Rukhsana Kausar on merits.

(A.S.) Case remanded.

PLJ 2005 Lahore 1264

[Rawalpindi Bench Rawalpindi]

Present: Abdul Shakoor Paracha, J.

ZUBAIR AZAM--Petitioner

versus

PAKISTAN MEDICAL AND DENTAL COUNCIL, ISLAMABAD through its CHAIRMAN and another--Respondents

W.P. No. 1370 of 2003, heard on 11.1.2005.

Pakistan Medical Dental Council Ordinance, 1962—

----S. 33(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Notification regarding failure students inspite of availing all the chances of professional examinations--Challenged by petitioners--Ceased to be medical student for further education--Assailed--Petitioner had given an undertaking will abide by all rules of prospectus--No student could be promoted to higher classes without passing all subjects of provious classes--Any student who fail to Pass Ist Professional MBBS Part I & II examination in three chances shall cease to pursue further medical education in Pakistan--Regulations u/S. 33 of Ordinance are binding and implemented on all Medical and Dental College of Pakistan respectively--Held: Interim order allowed to appear on Ist Professional of Examination was subject to final decision of present Petition--Validity--High Court dismissed the petition on merits, qualifying the examination under interim orders was of no avail to candidate in circumstances--Petition dismissed. [Pp. 1268, 1269 & 1270] A, B & C

CPLA No. 674 of 2003, reported in 2003 CLC 1348, PLD 1999 Karachi 394, 1994 SCMR 532, 1995 SCMR 421 and 2000 SCMR 1222, ref.

Mr. Muhammad Munir Peracha, Advocate for Petitioner.

Mr. Salim-ur-Rehman, Advocate and Mr. Shamshad Ullaheema, Standing Counsel for Respondents.

Date of hearing : 11.1.2005.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Zubair Azam petitioner, assails the Notification/order dated 16.5.2003, passed by Respondent No. 2/Vice-Principal, Islamic International Medical College, Rawalpindi through which it was notified that the petitioner along with other students availed all the three chances of Professional MBBS Part-I and Ist Professional MBBS

Part-II examinations but failed therefore they ceased to be the medical students as per PMDC rules and Dv. Controller of Examination Riphsh International University, Islamabad Notification No. Exam/COE/RIU/149 dated 13th May, 2003.

1. Brief facts of the case are that the petitioner appeared in the Ist professional examination Part-I and successfully cleared the same; however, in the first professional examination Part-II, he failed in a particular paper (Physiology) in three attempts; after declaration of the result of the third attempt the petitioner went to attend the classes of the respondent College but he was told by the College authorities that he could not continue his studies as a medical student in Pakistan having failed to clears MBBS first professional examination Part-II in three attempts; the petitioner, contested the said decision on the ground that he had still one chance to clear the examination in view of the provisions of Pakistan Medical and Dental Council Ordinance, 1962, but his grievance was not redressed and he was advised to approach the Pakistan Medical and Dental Council for the purpose; thereafter the petitioner approached the said Council with the same prayer, which was not acceded to by Respondent No. 1/Pakistan Medical and Dental Council, Islamabad, hence this writ petition.

2. The case of the petitioner is that the petitioner is being discriminated. Respondent PMDC was bound to adopt a uniform policy. In the NWFP no discriminatory treatment exists as uniform policy of the PMDC is adopted in the said Province whereas in the present case the petitioner has been clearly discriminated as all the Colleges which were affiliated with the Punjab University were allowing four chances up to admission year 2003.

3. In pursuance of the order of this Court dated 28.5.2003, Respondents Nos. 1 and 2 have filed their reports and parawise comments. In reply to para-4 of the writ petition it was stated by the Respondent No. 1 that the decision made on the 77th Session of Pakistan Medical and Dental Council had become absolute and was superseded by decision of the Council made in the 92nd Session held on 22nd March 1998 on the subject-matter, i.e. "Regulations for the Degree of Bachelor of Medicine and Bachelor of Surgery." Relevant portion of Section IV pertaining to `Examination', in reply to the said para has also been reproduced, i.e. "Any student who fails to pass the first professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further medical education in Pakistan."

4. Respondent No. 2, in reply to the petition, submitted that the petitioner appeared third time in 2003 but failed for the third time. The student knew that this is the third and the last chance as per PM&DC Regulations (Revised) and quoted in College Prospectus when he got admission in Ist year 2000 as well as reminded by the college vide letter quoted in reply to para-3 of the petition.

5. The learned counsel for the petitioner relies on the judgment of the Honourable Supreme Court dated 11.2.2004, delivered in the case titled Syed Mafeed Shah vs. Principal Khyber Medical College Peshawar (CPLA No. 674 of 2003) and contends that in the said case the petition was dismissed on the ground that no discriminatory treatment existed in NWFP as the policy of PMDC was uniformly adopted in the said Province, whereas in the present case the petitioner has been clearly discriminated as all the colleges which were affiliated with the Punjab University were allowing four chances upto admission year, 2003. Further contends that the petitioner is entitled for the relief on the strength of the interim order dated 5.6.2003 passed by this Court through which the petitioner was allowed to appear in the first professional examination part-II in paper of physiology, which was conducted on 9.6.2003. Though the result of the said examination was subject to the final decision of this petition, yet, as the petitioner has passed the examination and his stay at the Medical College does not take the right of any other student, writ should be issued in his favour.

6. On the other hand, the learned counsel for the respondent contends that Pakistan Medical and Dental Council (PMDC), Respondent No. 1 is a statutory body duly constituted by the Federal Government in pursuance of the provisions as contained in the Pakistan Medical and Dental Council Ordinance, 1962; the main functions which are assigned to PMDC are to prescribe a uniform minimum standard of courses of training for obtaining Graduate or post-Graduate Medical qualification, duration and conditions for admission to such courses. The learned counsel refers to Section 33 (2) of the PM&DC Ordinance, 1962 which deals with Regulations; according to Section 2, no student shall be promoted to the 3rd year MBBS class without passing the First Professional MBBS Part-I and Part-II University Examination in Anatomy, Physiology and Biochemistry; Section 3 says that no student can be promoted to the higher classes until he passes all the subjects of the previous classes, and Section 13 days that any student who fails to clear the first professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further Medical Education in Pakistan. To substantiate his argument the learned counsel relies on the case titled Syed Mafeed Shah vs. Principal Khyber Medical College Peshawar (CPLA No. 674 of 2003) reported in 2003 CLC 1348, Ms. Fabiha Parvez vs. Peoples Medical College for Girls, Nawabshah and others (PLD 1999 Karachi 394), Akhtar Ali Javed vs. Principal Quaid-e-Azam Medical College, Bahawalpur (1994 SCMR 532) and Nadir Khan and others vs. Principal Khyber Medical College, Peshawar (1995 SCMR 421). On the strength of the case reported as Ali Yousaf and another vs. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others (2000 SCMR 1222) it is contended that qualifying examination under interim order passed by the High Court allowing the candidate to appear in the examination was subject to the condition that the candidate might appear at his own risk and subject to final decision of the case on merits and where the High Court dismissed the petition on merits, qualifying the examination under interim orders was of no avail to the candidate. Further contends that the petitioner has already availed three chances and has been declared unfit to continue has studies of MBBS and was rightly expelled from the college where he was studying and that at the time of admission the petitioner had given an undertaking that he will abide by all the rules and regulations contained in the prospectus and that at this stage it does not lie in his mouth to agitate that the regulations regarding promotion or availing more than three chances is harsh and not binding on his right and he has been discriminated.

7. I have heard the learned counsel for the parties and perused the record. Admitted position on the record is that Respondent No. 1 Pakistan Medical and Dental Council, Islamabad (PMDC) is a statutory body duly constituted by the Federal Government is pursuance of the provisions contained in the Pakistan Medical and Dental Council Ordinance, 1962. Reading of Section 33(2) of the PMDC Ordinance is necessary, which is reproduced hereunder:--

"Notwithstanding anything contained in sub-section (1), the Council shall make Regulations which may provide for--

(a) prescribing a uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in First, Third and Fifth Schedules;

(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;

(c) prescribing the conditions for admission to courses of training as aforesaid;

(d) prescribing minimum qualifications and experience required of teachers for appointment in medical dental institution;

(e) prescribing the standards of examinations, methods of conducting the examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under this Ordinance;

(f) prescribing the qualifications and experience required for examiners for professional examinations in medicine and dentistry antecedent to the granting of recognized medical qualifications;

(g) registration of medical or dental students at any medical or dental college or school or any university and the faces payable in respect of such registration."

1. Section-IV of the Regulations deals with the examination. According to this section, no student shall be promoted to the third year MBBS class without passing the First Professional MBBS Part-I and Part-II university examination in Anatomy, Physiology and Biochemistry, no student can be promoted to the higher classes unless he passes all the subjects of the previous classes. Further, according to this section, any students who fail to pass the First Professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further Medical Education in Pakistan. These Regulations framed by PMDC under Section 33 of the Ordinance are binding on all the Medical and Dental Colleges of Pakistan and have been implemented since 22nd March, 1998. Honourable Supreme Court of Pakistan in the case of Syed Mafeed Shah and others vs. Principal, Khyber Medical College, Peshawar (CPLA No. 674/2003), decided on 11.2.2004, up-held the Division Bench Judgment reported in 2003 CLC 1348. Relevant portion of the judgment is reproduced as under:--

"The NWFP Government by a policy decision followed the Regulations made by the Council under Section 33 of the Medical and Dental Council Ordinance, 1962. We are not called upon to substitute the policy decision taken by the NWFP Government which was not shown to be arbitrary or unreasonable.

The Condition No. 16 of the Prospectus 1999-2000 for eligibility of the students for examination in three chances availed or un-availed shall cease to become eligible for further Medical Education in Pakistan."

In the case reported as Ms. Fabiha Parvez vs. Peoples Medical College for Girls, Nawabshah and others (PLD 1999 Karachi 394) the Division Bench relying on the Prospectus of the College held that, "Student, after availing four chances as provided in R.8 of the Prospectus must vacate the seat for other deserving candidates." The case reported as Nadir Khan and others vs. Khyber Medical College, Peshawar (1995 SCMR 421) was also relevant and heavily relied upon by the respondent PMDC, wherein it was held that Regulations framed by Pakistan Medical and Dental Council under Section 33 of the Ordinance shall be binding on all Medical Colleges of Pakistan irrespectively of the fact whether the prospectus issued by these colleges contained a similar provision or not. The Prospectus of Respondent No. 2 Islamic International Medical College, Rawalpindi for the year 2000-2001 clearly mentions that any student, who fails to clear the First Professional MBBS Examination in three chances availed or un-availed, after becoming eligible for each examination, shall cease to become eligible for further Medical Education in Pakistan.

1. The petitioner who has already availed three chances and has been declared unfit to continue his studies of MBBS was rightly expelled from College where he was studying. At the time of admission the petitioner had given an undertaking that he will abide by all the rules and regulations contained in the Prospectus and that at this stage it does not lie in his mouth to agitate that the regulations regarding promotion or availing more than three chances is harsh and not binding on his right and he has been discriminated.

2. It is a fact vide interim order of this Court dated 5.6.2003 the petitioner was allowed to appear in the First Professional Examination

Part-II in paper of Physiology which was to be conducted on 9.6.2003, and has not been able to clear it, but it is to be noted that the result of the aforesaid examination was subject to the final decision of the present petition. Validity of qualifying the examination under the interim order passed by this Court was considered by the Hon'ble Supreme Court in the case of Ali Yousaf and another v. Chairman, Academic Council and Principal Dow Medical College, Karachi (2000 SCMR 1222) and it was held that, "Where High Court dismissed the petition on merits, qualifying the examination under interim orders was of no avail to the candidate in circumstances."

For what has been discussed above, this petition has no merit, and the same is dismissed. No order as to costs.

(A.S.) Petition dismissed.

PLJ 2005 Lahore 1270 (DB)

Present: Tassaduq Hussain Jilani and Muhammad Saeed Akhtar, JJ.

ANWAR-UL-HAQ AHMAD--Petitioner

versus

SECRETARY ECONOMIC AFFAIRS DIVISION ISLAMABAD and another--Respondents

W.P. No. 143 of 2003, decided on 2.8.2004.

Constitution of Pakistan, 1973—

----Arts. 9 & 25--Educational Institutions--Admission in Medical Colleges on self finance basis against seats reserved for foreign students--Conditions of payment of endowment fund being excessive and discriminatory, assailed--Provincial Government while prescribing different rates for different medical colleges in Punjab in self finance scheme have given no reasons, therefore, the same is arbitrary and violative of Arts. 9 and 25 of the Constitution--Right to education being fundamental right, same cannot be subjected to arbitrary conditions of clogs requiring payment of exorbitant fee--If student admitted in medical colleges under general merit are paying uniform fee irrespective of college, there was no reason why students admitted under Self Finance Scheme at different Medical Colleges in Punjab should be subjected to different fee structure depending on college--Letter of specified date in so far as the same prescribes different fee structure for foreign students admitted under "self finance scheme" in different colleges of Punjab and furnishing of Bank guarantee were set aside--Authorities however, can charge those students uniform rate of U.S. $ 5,000 per annum irrespective of colleges in which they were admitted. [Pp. 1275 & 1277] A & B

AIR 1992 SC 1858 and PLD 2003 Lahore 752 ref.

Mr. A.K. Dogar, Advocate for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.G. Punjab for Respondents.

Date of hearing: 30.6.2004.

Judgment

Tassaduq Hussain Jilani, J.--Petitioner having done his A-level (his grades were equivalent to 935 marks out of 1100 as determined by the Inter Board Committee of Chairman) applied for admission in the first year MBBS for the session 2002-03 for Medical Colleges in Punjab. In terms of the merit list prepared, he could not get admission on the general seats. His application for admission against seats reserved for foreign students on self-finance basis was allowed and ever since his admission he is a regular student of King Edward Medical College, Lahore. The prospectus of the Medical Colleges in Punjab for the year in question stipulated that the applicants seeking admission on self-finance basis will be required to contribute to the college endowment fund at a rate depending on the college, where a student is granted admission. A student admitted in KEMC Lahore was required to pay a contribution of US$ 10,000/- per annum in addition to the normal fee till graduation. Students under the said scheme where required to pay for the first year through pay order of US$ 10,000/- and for the remaining four years a bank guarantee worth US$ 40,000/- was also required to be furnished. Students admitted in Medical College at Multan & Rawalpindi were to pay US$ 7000/- per annum whereas for students allowed admission in Medical College at Bahawalpur US$5000/- per annum was the prescribed contribution.

1. Through this petition the petitioner has challenged the afore-referred conditions of payment of endowment fund on the ground that it is excessive, is not proportionate to the money spent on a medical student by the State, is discriminatory as the local students admitted on self-finance scheme pay only Rs. 2,50,000/- a year and even the requirement of US$ 10,000/- from foreign students of Pakistan origin is not uniform in all the Medical Colleges of the Punjab as in other colleges the foreign students have to pay much less. In the comments/written reply submitted by the Principal of King Edward Medical College/Chairman of the Admission Board, the stand taken is that the admission of foreign students is made by the Economic Affairs Division in Islamabad which invites the application, processes them and makes nomination against the reserved seats in the Medical Colleges of the country. Since petitioner had low merit he could not be admitted on the general seats, that on petitioner's own request he was admitted against the seats reserved for foreign students on self-finance basis, that he was fully aware of the conditionalities attached to such an admission and having accepted those terms petitioner cannot challenge the same through a Constitutional petition.

2. In support of this petition, learned counsel for the petitioner made following submissions:--

(i) That right to education is one of the fundamental rights under the Constitution and the act of the respondent authorities in imposing an endowment fund condition to the tune of US$ 10,000/- tantamount to putting a clog on the said fundamental right.

(ii) That the impugned endowment fund is not proportionate to the expenses entail by the State on a medical student in a year, that the Government spent only one hundred thousand

(Rs. 1,00,000/-) per medical student in a year and to charge a foreign student is sum of US $ 10,000/- which is equivalent to about six hundred thousand (Rs, 6,00,000/-) is excessive and exhorted.

(iii) That the local students under the self-finance scheme have to pay only Rs. 2,50,000/- as against the foreign students like the petitioner, who have to pay US $ 10,000/-. This disparity is violative of the equality clause of the Constitution of the Islamic Republic of Pakistan 1973 and, therefore, cannot be sustained. In support of the submissions made learned counsel relied on Miss Mohini Jain v. State of Karnataka and others (AIR 1992 SC 1858).

1. Learned Additional Advocate General opposed the petition and defended the impugned levy in endowment fund. He contended that having accepted the terms and condition of admission in writing petitioner is estopped to challenge the levy of endowment fund after a year of having been admitted. He explained that every fundamental right is to be regulated by law. If the law maker has created classes amongst students at the time of admission no exception can be taken to it as the students having similar background in a class are being treated alive.

2. We have heard the learned counsel for the parties and have been given anxious consideration to the submissions made.

3. Para 24 of the comments submitted on behalf of the Ministry of Finance are to the following effect:

"There are two components of PTAP programme one for the friendly countries and the other for foreign nationals of Pakistan Origin. Nomination against seats reserved for friendly countries are invited through diplomatic chancel conveying them the conditions specified for this component, whereas applications for the seats reserved for foreign nationals of Pakistan Origin are invited through advertisement clearly indicating the prescribed terms & conditions. The admission notice referred by the petitioner was meant for the seats reserved for foreign nationals of Pak Origin under PTAP/SFS. It is reiterated that no relaxation was made in case of any foreign student of Pak Origin. The condition of having studied abroad was introduced exclusively for foreign nationals of Pak Origin to ensure the utilization of seats reserved for genuine foreign nationals of Pakistani Origin who are settled abroad."

1. Although the afore-referred scheme appears to have been framed by Respondent No. 1 but seats against the afore-referred quota and the fee to be charged from students was determined by the respective. Provincial Governments. In Punjab the quantum of fee was conveyed to the Chairman of the Admission Board for Medical Colleges in the Punjab vide the letter dated 3.2.2003 which reads as under:

No. SO (ME) 8-91/2003

GOVERNMENT OF THE PUNJAB

HEALTH DEPARTMENT

Dated Lahore, the 3rd February 2003

To

To Principal/Chairman, Admission Board, King Edward Medical College, Lahore.

Subject: REDUCTION OF SELF-FINANCE RATES FOR FOREIGN STUDENTS IN MEDICAL COLLEGES OF PUNJAB.

Reference your Letter No. 191/KEMC/2002, dated 8, 2002, on the subject noted above.

1. The Competent Authority in the Government of the Punjab on re-consideration of the issue decided as under:--

(i) 50% seats of MBBS (self-finance) for expatriate Pakistanis may be kept floating and the preferred choice of candidates be respected.

(ii) The fee structure for the peripheral colleges like, Multan, Rawalpindi be reduced from US $ 10,000/- to US $ 7,000/- per annum and for Faisalabad and Bahawalpur to US $ 5,000/- per annum.

1. The revised allocation of seats in this category will be as under:

Foreign students seat on Self Finance basis

SEATS KEMC AMIC FJMC NMC PMC QMC RMC TOTAL

Original 4 4 4 4 4 4 4 28

Revised 2 2 2 2 2 2 2 14 28

14 Floating seats 14

SEATS de'Montmorency NMC Multan TOTAL

College of Dentistry (Dental Section)

Lahore

Original (2 each subject to confirmation of EAD) 4

Revised 1 1 2 4

2 seats floating 2

1. It is hoped that the decision would facilitate optimal utilization of self-finance seats. Further necessary action may kindly be taken accordingly.

ADDITIONAL SECRETARY (TACH)

HEALTH DEPARTMENT

1. Since the petitioner could not be admitted on general merit, he himself opted to avail the benefit of the self-finance scheme and as per the admission form he agreed to abide by the terms and conditions prescribed in this regard. He, therefore, cannot take exception to the scheme itself. However, so far as the quantum of fee prescribed is concerned; we note that although there is a uniform fee structure for the students admitted on general merit for local students admitted under self-finance scheme as also for the students admitted under the Pakistan Technical Assistance Programme but the foreign students admitted under the self-finance scheme have been subjected to a varying fee structure depending on the Medical Colleges in which they are admitted. Right to education is a fundamental right and a full Bench of this Court while considering the scope and ambit of article 9 of the Constitutional of the Islamic. Republic of Pakistan 1973 has held that education in modern age is part of the fundamental right of right to life. In Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others (PLD 2003 Lahore 752) at page 791 it was observed as under:

"The fundamental right of "right to life" recognized in the entire civilized world and enshrined in Article 9 of our constitution has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its action, policies and laws affect the individuals in a variety of ways and the Courts have accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life.

Right to life is no longer considered as merely a right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without a certain level of education and the State has to play a role in ensuring by positive action that the citizens enjoy this right. In Brown v. Board of Education (1953) 98 Law Ed. 873, the US Supreme Court acknowledged this right and held as under:--

"Today, education is perhaps the most important function of State and Local Governments..........it is required in the performance of our most basic responsibilities, even service in the Armed Forces, it is the very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful and child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

While prescribing different rates for different Medical Colleges in Punjab in the Scheme under consideration, the Provincial Government neither in the letter referred to above (dated 3.2.2003) nor in the comments submitted have given any reason. The same is, therefore, arbitrary and violative of Articles 9 and 25 of the Constitution of the Islamic Republic of Pakistan 1973. Even the Ministry of Economic Affairs Federal Govt. conveyed its dismay to the Govt. of Punjab over the exorbitant rates being charged in the letter dated 6th June 2003. It reads as under:

No. 1 (1)FS/03

GOVERNMENT OF PAKISTAN

MINISTRY OF ECONOMIC AFFAIRS & STATISTICS

(ECONOMIC AFFAIRS DIVISION)

Islamabad, the 6th June, 2003

Fax : 92-51-9205971 & 9210734

From : Joint Secretary, Tele: : 9205327

SUBJECT: ADMISSION OF FOREIGN UNDER PAKISTAN TECHNICAL ASSISTANCE PROGRAMME (PTAP/SELF FINANCING SCHEME (SFS), Dear Mr. Secretary, The Economic Affairs Division has been arranging the admission of foreign students under Pakistan Technical Assistance Programme as well as under Self-Financing Scheme (SFS) for the last more than two decades. The main objective of the programme is to earn goodwill of friendly countries. Through this programme Government is honouring its bilateral commitments with those countries with whom Pakistan enjoys very exceptional friendly relations.

1. Following seats are reserved in the Medical Colleges of Punjab for foreign students excluding 07 seats reserved for Afghan Refugees students under PTAP:

KEMC AMIC FJMC PMC NMC RMC QMC TOTAL

PTAP 4 4 20 9 9 9 10 65

seats

1. In the meetings of Joint Ministerial Commissions/Committees friendly countries including Saudi Arabia, Oman Bahrain, Malaysia, Iran, Iraq, U.A.E., and Kuwait etc., have persistently requested for placement of their students in King Edward Medical College, Rawalpindi Medical College, Rawalpindi and Allama Iqbal Medical College, Lahore. As the purpose of Pakistan, Technical Assistance Programme (PTAP) is to promote economic and diplomatic relations with the friendly countries, it is necessary to accede to the request of these countries to accommodates their students in the Colleges of their choice. It is, therefore, requested that the Government of Punjab may kindly re-allocate the available, 65 seats in MBBS in different Colleges as proposed below:--

KEMC AMIC FJMC PMC NMC RMC QMC TOTAL

Proposed 10 10 10 8 8 12 7 65

PTAP

Seats

1. You would kindly appreciate that the high fee rates for Self-Financing seats and condition of submitting bank guarantee for remaining four years studies has resulted into low utilization of these seats for the last many years, no doubt the revision of fee rates made by the Health department during last year has improved the utilization of seats under SFS in Punjab. However, it can be improved further by reducing the fee rates to US $ 7,000/- per annum for Medical colleges in Lahore and US $ 5,000/- for Colleges of rest of cities of Punjab and by waving off the condition of bank guarantee as no such condition exist in other Provinces (emphasis as supplied).

2. Right to education is a fundamental right and cannot be subjected to arbitrary conditions or clogs requiring payment of exorbitant fee. If students admitted in Bahawalpur, Multan, Rawalpindi etc. and Lahore under the general merit or under the Pakistan Technical Assistance Programme are paying the uniform fee irrespective of the college, there is no reason why the students admitted under the self-finance scheme at different Medical Colleges in Punjab should be subjected to a different fee structure depending on the college.

3. For what has been discussed above, this petition is allowed. The letter dated 3.2.2003 insofar as it prescribes a different fee structure for foreign students admitted under the self-finance scheme in different Colleges of the Punjab and the condition of furnishing Bank guarantee are set aside. The respondent authorities may, however, charge those students a uniform rate of US $ 5,000/- per annum for irrespective of the Colleges in which they are admitted. The petition stands disposed of in terms noted above.

(A.A.) Petition accepted.

PLJ 2005 Lahore 1277

Present: Muhammad Sayeed Akhtar, J.

UNITED BANK LIMITED--Plaintiff

versus

M/s. AZIZ TANNERIES (PVT.) LTD.--Defendant

C.O.S. No. 13 of 2000, heard on 5.8.2004.

(i) Contract Act, 1872 (IX of 1872)—

----S. 62--Novation of Contract--Where contract was norated, fresh contract would come into existence directly or by implication in place of original contract--Effect of novation would be that original contract was extinguished and replaced by another contract. [P. 1282] C

(ii) Financial Institution (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)—

----Preamble & S.3--Defendant's prayer to declare customer as defaulter and refer the matter to State Bank of Pakistan for permission to file suit was not born out by S. 3 of the Ordinance of 2001--Defendant's prayer was thus of no consequence. [P. 1281] B

(iii) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)—

----S. 10(2)--Amended application for leave to defend suit filed by defendants on 8.3.2003 was beyond the period prescribed by Court i.e. 16.12.2002--Defendant's such application being barred by time was thus, bailable to be ignored--Presumption would be that no application for leave to defend suit was pending--Plaintiff's claim having been proved, the same was decreed in terms of prayer in plaint. [Pp. 1281 & 1283] A & D

2003 CLD 1007; 2001 MLD 1351; 1992 SCMR 215; 2002 CLD 557; 1994 CLC 2272; 2000 CLC 1502 and PLD 2000 SC 225, ref.

Mr. Tariq Kamal Qazi, Advocate for Plaintiff.

Mr. Asghar Hamid Bhutta, Advocate for Defendant.

Date of hearing : 5.8.2004.

Judgment

The plaintiff Bank (U.B.L.) filed a suit on 29.9.2000 for recovery of Rs. 6,69,16,000/- against the defendants under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 before the Multan Bench of this Court. It was averred in the plaint that the defendant Company was a customer of the plaintiff having availed different credit facilities from time to time, however, it defaulted in the payment of the amounts due from it. The company vide letter dated 2.1.1999 requested the plaintiff Bank for restructuring/rescheduling its total liabilities faciliting it to liquidate its liabilities. The request of the respondent company was acceded to and its liabilities were restructured by merging converting the same into two main accounts:--

(i) Principle amount of different liabilities of defendants company.

(ii) Total agreed mark-up payable on the aforesaid principle amount.

In this respect two finance facilities NIDF-I (Non Interest Based Demand Finance) and NIDF-II were granted vide agreement dated 28.8.1996. The former would include to the total principle amount i.e. Rs. 10,57,78,000/- of all the liabilities outstanding against the defendant Company, whereas, the latter would comprise of the total mark-up payable by it on the principle amount. In order to secure the NIDF-I facility the following documents were executed by the defendants:--

(a) Agreement dated 28.8.1998.

(b) Agreement for financing the LB-6A dated 16.12.1999 for the sale price as Rs. 3,27,78,000/- and by-back price as

Rs. 4,40,33,000/-. The sum was payable on order before 30.9.2002 in 45 equal installments.

(c) Promissory note dated 16.2.1999 for a sum of Rs. 3,27,78,000/-

(d) Mortgage charge registered with the Deputy Registrar of Companies.

(e) Memorandum of Deposit of title deeds dated 16.2.1999 (the detail of the mortgaged properties has been given in the plaint).

(f) Personal Guarantees dated 16.2.1999 by the defendants 3 to 10.

Similarly another agreement for financing LB-6A dated 16.2.1999 was executed for a sum of Rs. 2,46,99,000/-. The defendants company in order to show its bona fides handed over 59 post dated cheques of Rs. 1 million each in favour of the plaintiff Bank. Out of the same only two cheques were honoured and the others bounced. The defendants defaulted in the payment of the aforementioned facilities.

The defendants contested the suit and filed an application under Section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 for grant of unconditional leave to defend the same on 2.12.2000.

The assets of the company were declared as `non-performing asset' and taken over under Section 18 of the Corporate and Industrial Restructing Ordinance, 2000 by Corporate and Industrial Restructuring Corporation (CIRC), it has stepped into the shows of Bank (U.B.L.).

The defendants were directed vide order dated 16.12.2002 to file an amended application for leave to defend the suit under Section 10(12) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. They filed P.L.A. No. 50-B/2003 on 8.3.2003. Another application C.M. No. 59-B/2004 was filed by the defendants alleging that the actual liability of the defendants/applicants was Rs. 1,66,34,691/-. A technical person having technical qualification be appointed to assist the Court.

1. Learned counsel for the defendants/applicants contended as under:--

(i) The plaint is not in accordance with the mandatory provisions of Section 9(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The plaint failed to mention the default of the defendants. Under Section 3(2) of the aforementioned Ordinance defendants should first be declared `defaulter' and then the matter be referred to the State Bank seeking permission to file the suit.

(ii) The actual liability of the defendants is Rs. 1,66,34,691/-. Learned counsel referred to certain payments made by defendants in the chart prepared by them. CIRC can acquire take over the `non performing asset' exceeding Rs. 30 million, as such the take over is illegal.

(iii) Restructuring or rescheduling does not constitute `finance'. There can be no novation of the contract. Reliance was placed on Habib Bank Limited vs. Al-Jalal Textile Mills Ltd. (2003 CLD 1007) and Habib Bank vs. Messrs Qayyum Spinning Ltd. (2001 MLD 1351).

(iv) The plaintiffs have no cause of action against the defendants and

(v) That a Amicus Curriae should be appointed on the technical aspects for assistance of this Court. He proved for grant of leave to defend the suit.

Conversely the learned counsel for the plaintiff submitted that the amended application submitted with the amended application for leave to defend the suit is not in accordance with the format of Section 10(4) of the Ordinance, 2001. The plaint contains all the required details specified in Section 9(3) of the Ordinance. In the alternative he submitted that the suit was filed under the Act of 1997 and before the promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001. He further submitted that there is no provision in law that first there should be a finding by the State Bank of Pakistan regarding the default of the defendants. The finance facilities were restructured on the request of the defendants vide agreement dated 28.8.1998 and this fact was acknowledged by the defendants in their letter dated 1.2.1999. Learned counsel urged that the defendants have enjoyed the benefit of the agreement and got four properties released. A party to a contract who has enjoined a benefit under it cannot say that he is not bound by its terms. Reliance was placed on Dr. Muhammad Munir-ul-Haq and others vs. Dr. Muhammad Latif Chaudhry and others (1992 SCMR 215). Bolan Bank Limited through Attorneys vs. Baig Textile Mills (Pvt.) Limited through Chief Executive and 6 others (2002 CLD 557), Banque Indosuez vs. Banking Tribunal For Sindh & Balochistan and others (1994 CLC 2272) and Habib Bank Ltd. Sarmast Cooking Oil Ltd. (2000 CLC 1502).

1. I have considered the arguments of the learned counsel for the parties and perused the record. The agreement dated 28.8.1998 which is signed by the five Directors of the defendant Company discloses that request for rescheduling/restructuring was made and the same was acknowledged by the defendant Company vide letter dated 1.12.1999, that too was signed by the five Directors. It is admitted in para I of the aforementioned agreement that before the rescheduling an amount of Rs. 49.223 million alongwith mark-up of Rs. 15,845 million (total Rs. 65,068 million) was outstanding against the defendant Company. It was divided into two categories:

(a) Principle amount Rs. 35.778 million

(b) Mark-up Rs. 13.445 million

Total Rs. 49.223 million

The principle amount of Rs. 35.779 million was converted into NIDF-I(Non Interest Demand Finance) which was repayable in monthly installments of Rs. 1 million each effective from January 1999. Down payment of Rs. 3 million was to be made out of which a sum of Rs. 2,614 million had already been paid. NIDF-II comprises of mark-up amounting to Rs. 13.445 million repayable in monthly installments of Rs. 1 million. In case of default of any two installments or delay in the payment of any three installments by the defendant Company, the given package shall be withdrawn by the Bank and it shall be entitled to recover all the debt outstanding in its books. Accrued mark-up of Rs. 15.845 million was waived on the condition that the company shall adhere to the repayment schedule given. Agreement for financing dated 16.2.1999 was executed between the parties regarding the principle amount of Rs. 3,27,78,000/- with by-back (marked-up) price of Rs. 4,40,33,000/-. The same was repayable on or before 30.9.2002 in 45 equal installments. Another agreement of the same date regarding the payment of mark-up was also executed by the parties. Learned counsel for the defendants has referred to certain entries in the chart prepared by the defendants about payments made by them but the same ar not relevant as suit has been filed on the basis of agreements dated 28.8.1998 and 16.2.1999. The previous outstanding were admitted by the defendants in the agreement dated 28.8.1998. The defendants are estopped from challenging the same.

The plaint contains all the particulars specified in Section 9(3) of the Ordinance, 2001. Even otherwise the plaint was filed on 29.9.2000 and the Financial Institutions (Recovery of Finances) Ordinance, 2001 was promulgated on 30.8.2001. There is no provision in it for filing the amended plaint. The defendants were to file the amended application under Section 10(12) of the Ordinance, 2001. They were directed to do so vide order dated 16.12.2002 of this Court, however, the record reveals that the amended application for leave to defend the suit was filed on 8.3.2003. It is clearly barred by time and is liable to be ignored. The presumption would be that no application for grant of leave to defend the suit is pending. See Bolan Bank Limited through Attorneys vs. Baig Textile Mills (Pvt.) Limited through Chief Executive and 6 others (2002 CLD 557).

1. There is no provision in the Financial Institutions (Recovery of Finances) Ordinance, 2001 that the plaintiff should declare the customer as defaulter and refer the matter to the State Bank of Pakistan seeking permission to file the suit. I have gone through the provisions of Section 3 referred to by the learned counsel for the defendants but find no such mandate therein. The contention of the learned counsel, therefore, goes by the board.

The defendants admit the liability to the time of Rs. 166,34,691/- only and state that the assets of the company could not be declared as non performing asset' because the jurisdiction of CIRC comes into play onNPA' exceeding Rs. 30 million as such could not be acquired/taken over. The acquisition/take over by CIRC cannot be questioned in the suit for recovery of money. Even otherwise I do not agree with the learned counsel for defendants/applicants that the liability of the company was only

Rs. 1,66,34,691/-. The liability to the tune of Rs. 68,068 million was admitted vide agreement dated 28.8.1998, Rs. 15.845 million were written off and were repayable in case of default by the defendants. The said agreement shows the principal amount as Rs. 35.778 million and mark-up Rs. 13.445 million and two agreements dated 16.2.1999 to this effect were executed by the defendants in favour of the plaintiff.

Fourth properties were released for disposal which the respondent Company did for enhancing the working capital.

The new agreement dated 28.8.1998 between the parties was a novation of the old contract, the consideration of which was:--

(i) The agreement to extend the time for payment of the outstanding liabilities of the customer.

(ii) Waiving off an amount of Rs. 15.845 million

(iii) The release of the four mortgage properties.

The case of Habib Bank Ltd. vs. Sarmast Cooking Oil Ltd. (supra) was a case under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 it was observed as under:--

"Section 62 of the Contract Act, 1872, clearly provides that if the parties to a contract agree to substitute a new contract for the old one or to rescind or alter it, the original contract need not be performed. The original contract between the parties required Defendant No. 1 to pay the amount on or before a specified date which Defendant No. 1 did not do and instead requested the plaintiff to substitute the old contract with a new one in which it agreed to pay the outstanding amount by 31.7.1996. There is nothing in the Contract Act or in any other law which prohibits the parties or the bank from varying or altering the terms of the original contract or executing a new contract to substituted the old one. The agreement, dated 10.4.1993 in respect of Rs. 31.111 million was a novation of the old contract the consideration of which was the agreement of the bank to extend time for payment of the outstanding liabilities of Defendant No. 1."

See also Banque Indosuez vs. Banking Tribunal For Sindh & Balochistan and others (supra). In the instant case the contract has been restructured, a new contract has come into being with different terms and conditions. Novation takes place when for an existing contract some new contract is substituted either by the same parties or between different parties, the consideration mutually being the discharge of the old contract. When the contract is novated a fresh contract comes into existence, directly or by implication in place of the original contract. The effect of the novation is that it extinguishes the original contract and replaces it by another. This is what has happened in the instant case. The authorities cited by the learned counsel for the defendants Habib Bank Limited vs. Al-Jalal Textile Mills Ltd. (supra) and Habib Bank vs. Messrs Qayyum Spinning Ltd. (supra) are decided by the same learned Judge and are based upon the judgment of the august Supreme Court in the case Dr. M. Aslam Khaki v. Syed Muhammad Hashmi (PLD 2000 SC 225). The Hon'ble Supreme Court has set aside the judgment in the case of Dr. M. Aslam Khaki v. Syed Muhammad Hashmi (supra) and remanded the case to the Federal Shariat Court where it is still pending. The contention of the learned counsel for the defendants/applicants does not hold water. The argument of the learned counsel for the defendants/applicants that a Amicus Curriae or technical expert be appointed for assisting this Court on technical matters has no merit. There is ample proof/documentary evidence on the record to decide the case.

1. For what has been stated above the application for leave to defend the suit filed by the defendants. (P.L.A. No. 50-B/2003) and C.M. No.

59-B/2004 are dismissed. The case of the plaintiff stands proved by the agreements dated 16.2.1999 supported by the security documents. The suit is decreed as prayed for with costs and cost of funds as envisaged in Section 3(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

(A.A.) Suit decreed.

PLJ 2005 Lahore 1283

Present: Mian Saqib Nisar, J.

SYED SALIM IMTIAZ HUSSAIN--Petitioner

versus

MUHAMMAD SALIM (MINOR) and 2 others--Respondents

W.P. No. 19437 of 2002, heard on 27.5.2004.

(i) West Pakistan Family Courts Act, 1964 (XXXV of 1964)—

----S. 5 & Sched.--Past maintenance to wife--Wife's plea that petitioner had abandoned her in Kuwait since June 1999 and that she had been living with her brother, has not been substantiated on record--Even name of brother has not been disclosed in plaint and he has not been examined--No proof was available on record if wife and son were expelled from house of petitioner and they were living and being maintained in Kuwait by wife's brother till filing of suit--Court of appeal has thus, rightly interfered and declined to award any maintenance to wife--No exception can be taken to such judgment and decree. [P. 1285] A

(ii) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 5 & Sched.--Fathers obligation to maintain his minor child--Extent of--Father is legally and morally bound to maintain his child--One of criteria for determining quantum of maintenance, is although income and status of father, yet Court is supposed to find out from evidence on record as to what was requirement of minor for purpose of his subsistence, which means support to his life, which includes food, clothing, lodging, education, medical care and same amount for extra curricular activities--Appellate Court had neither taken such exercise nor respondent had proved on record that for subsistence of child amount of Rs. 34000/- as worked out by Court was essential--While passing impugned judgment only amount of 20 percent of worked out allowance i.e. Rs. 7000/- have been directed to be spent upon minor whereas remaining amount of

Rs. 2700/- was to be deposited in the name of minor to be withdrawn by him on attaining majority--Appellant has not challenged amount of

Rs. 7000/- as maintenance to minor--Appellant has been depositing amount of Rs. 10000/- (Ten thousand) on direction of Court and he has agreed that he would be willing to pay amount of Rs. 10000/- per month to his child--Decree of Court below was modified to that extent.

[P. 1287] B & C

Rai Muhammad Zafar Bhatti, Advocate for Petitioner.

Mr. Muhammad Abdur Rehman Janjua, Advocate for Respondents.

Date of hearing : 27.5.2004.

Judgment

The instant W.P. No. 19437 of 2002 and W.P. No. 572 of 2003, are being disposed of together, as these have been filed by the respective parties, challenging the same judgments and decrees of the forums below.

1. Briefly stated the facts of the case are that, the petitioner and Mst. Ghazala Abid Rizvi (the Petitioner No. 2 in the connected writ petition), were married on 28.3.1996, and after briefly residing in Europe, they shifted to Kuwait, where the petitioner started working with some organization as a "Computer Analyst". The Respondent No. 1 Muhammad Salim (minor) was born to the spouses on 26.4.1997; when the minor alongwith his mother came to Pakistan on 23.6.2001; within seven days of their arrival, on 2.7.2001, three suits were brought i.e. (i) suit for dissolution of marriage by Mst. Ghazala Abid Rizvi against the petitioner; (ii) suit for recovery of the dower amount of Rs. 10,000/- (iii) the suit for the maintenance by Mst. Ghazala and the minor claiming Rs. 50,000/- each, per month as the requisite allowance; for the past since June 1999, as allegedly the petitioner had failed to maintain the plaintiffs, from that point, as also the future maintenance at the same rate.

2. The petitioner contested the matters, issues were framed, parties were put to trial, and the learned trial Court vide consolidated judgment and decree dated 17.6.2002, decreed the suits for the dissolution of marriage and for the dower in favour of Mst. Ghazala Abid Rizvi, while in the third suit for the maintenance, the lady was granted past maintenance at the rate of

Rs. 10,000/- per month w.e.f. June 1999, but was declined the future maintenance. For the minor Respondent No. 1, past maintenance was fixed at Rs. 2000/- per month and the arrears on the above calculation for the same period were granted to him, while for his future maintenance, the amount was Rs. 5000/- per month, with 10% increase every year.

1. Both the parties, feeling dissatisfied with the decision, preferred the appeals, and the learned Appellate Court, by partly accepting the appeal of the petitioner has set aside the judgment and decree of the trial Court, awarding the past maintenance to Mst. Ghazala Abid Rizvi; while the appeal of Respondent No. 1 (minor) seeking enhancement in the maintenance was accepted and has been granted maintenance at the rate of Rs. 34,000/- per month w.e.f. June 1999. It has been further directed by the Court of appeal that, out of the aforesaid, the mother shall invest 80% in the purchase of Saving Certificates in the name of the minor.

2. Against this judgment and decree of the learned Court of appeal dated 20.9.2002, again both the parties being aggrieved, have filed the instant writ petitions. In the connected petition, (the petitioners of that case), inter-alia claim the maintenance as prayed in their suit for the maintenance. On the other hand, the petitioner being aggrieved of the amount of Rs. 34,000/- per month, to Respondent No. 1, has challenged the said judgment and decree.

3. I will first take up the W.P. No. 572 of 2003, to the extent of Mst. Ghazala Abid Rizvi, and hold that, the spouses were living in Kuwait; the lady arrived in Pakistan on 23.6.2001 and on 2.7.2001, the suit was filed. The case of the lady, that the petitioner (Syed Salim Imtiaz Hussain) had abandoned her in Kawait since June 1999 and she has been living with her brother, has not been substantiated on the record. Even the name of the brother has not been disclosed in the plaint, such brother has not been examined. There is no independent proof on the record, if Mst. Ghazala Abid Rizvi and the minor were expelled from the house by the petitioner and they were living and being maintained in Kuwait by Ghazala's brother till 23.6.2001. Resultantly, the learned Court of appeal has rightly interfered and declined to award any maintenance to the lady. No exception can be taken to such judgment and decree.

4. As regards the maintenance claim of the minor is concerned, suffice it to say that, the learned Court of appeal has come to the conclusion, that the salary of the petitioner is Rs. 1,70,000/- per month. After having held so, the learned Judge observed, that the income/earning of a person has to cover the following spheres:--

(i) Personal expenditures.

(ii) Expenditure for close relatives, including parents, brothers and sisters.

(iii) Expenditure on wife.

(iv) Expenditure on children.

(v) Saving for future emergencies/fulfillment of necessities, other than every day expenditures such as house building etc.

Then, the learned Judge, simply divided the above amount by five and has awarded Rs. 34,000/- as maintenance to the minor. But subject to certain conditions, which are mentioned in Paragraph No. 10 of the judgment, and are reads as below:--

1. The period of maintenance shall start from June 1999.

2. This maintenance allowance at the rate of Rs. 34,000/- per month shall only continue during the period of present job/pay of the defendant and shall automatically adjust to 1/5th portion of his income/pay in future and if his job/salary changes.

3. The maintenance allowance shall continue uptil the time Muhammad Saleem minor attains the age of majority or his legal custody is granted to him by the Court of competent jurisdiction which ever occurs earlier.

4. If the defendant Salem Imtiaz Hussain contracts other marriage and gives birth to children then the maintenance amount shall accordingly be adjusted as equal portion of 1/5th share of his income among all the children of the defendant if become more than one.

5. The guardian and/or mother of Muhammad Saleem minor shall purchase defence saving certificates in the name of the minor out of the 80% (4/5th) of total maintenance received by her on behalf of the minor for a calendar year during the month of January of next year and she shall not get it encashed until the minor attains the age of majority as the minor has only the personal expenditure out of the five above mentioned categories of expenditures and the four categories shall only come into picture on his attaining the age of majority.

6. I have heard the learned counsel for the parties. Undoubtedly, the father is legally and morally bound to maintain his child. One of the criteria for determining the quantum of maintenance, obviously is the income and status of the father, but it does not mean that, by taking the total income of the father and dividing it on some subjective and unknown principles, the Court should grant allowance on unfounded mathematical rule. The Court of law cannot act whimsically and in a capricious manner, but is supposed to find out from the evidence on the record, as to what is the requirement of the minor for the purpose of his subsistence, which means the support to his life; this definitely includes the food, clothing, lodging, education, medical care and some amount for extra curricular activities of the minor etc. Unfortunately, the learned Court below has neither undertaken this exercise, nor it has been so proved by the respondent on the record, that for his subsistance, the amount of Rs. 34000/- per month is essential. Moreover, while passing the judgment, under condition No. 5, only the amount of 20% of the maintenance allowance of Rs. 34,000/- has been directed to be spent upon the minor, which comes to about Rs. 7000/-. Whereas, for the remaining amount of Rs. 27,000/-, the mother has been directed to purchase the Defence Saving Certificates in the name of the minor, which shall only be encashable, when the minor attains the age of majority. This part of the judgment has not been challenged by the respondents. The above, therefore, clearly shows that the learned Court below infact has granted Rs. 7000/- as maintenance to the minor and this cannot be reduced having been fixed by a Court of competent jurisdiction, but the balance of Rs. 27,000/- per month is for his future security. I am not convinced, if the maintenance, which undoubtedly is in the nature of a support allowance meant for the purposes mentioned above, can be equated with the future security of the minor, usable by him after he attains the age of majority. Therefore, such judgment and decree cannot be sustained.

7. It may be pertinent to mention here that, this petition when came up for hearing before this Court on 4.11.2002, the following order was passed:--

"Notice. The operation of the impugned judgment is suspended subject to the petitioner depositing Rs. 10,000/- per month as past maintenance w.e.f. 23.6.2001, with the Deputy Registrar (Judicial) of this Court and for future maintenance, shall pay the amount at the same rate through money order to the mother of the Respondent No. 1."

1. This order has been complied with and when questioned about the excess amount than Rs. 7000/-, the learned counsel for the petitioner on instructions, has candidly conceded that the petitioner does not want to withdraw any of the amount deposited and further that, the petitioner shall continue making the payment of Rs. 10,000/- per month to the respondent/minor, because he is his son and he wants him to have the best for his needs and the education. Resultantly, in the light of above, the impugned judgment and decree of the learned Court of appeal, though is set side, but the petitioner shall keep on making the payment of Rs. 10,000/- per month to the minor as maintenance. However, when the minor shall cross his 5th class and is yet in the custody of his mother, and his needs are increased, he may apply to the Family Court for further adequate increase in the maintenance, which matter shall be decided on its on merits.

In the light of above, the W.P. No. 572 of 2003 is dismissed, whereas the W.P. No. 19437 of 2002, subject to the observation and direction given above, is allowed.

(A.A.) Order accordingly.

PLJ 2005 Lahore 1288

Present: Muhammad Sayeed Akhtar, J.

SHER MUHAMMAD and 7 others--Petitioners

versus

Mst. SUGHRAN BIBI etc.--Respondents

C.R. No. 2001 of 1997 & R.S.A. No. 528 of 1980, heard on 27.1.2005.

(i) Muhammadan Law--

----Hiba--Legality--Plaintiffs being tenants challenging "Hibanama" on the ground that the same was illegal, made during pendency of suit and that possession of subject matter of "Hiba" had not been delivered and that there was no declaration and acceptance of "Hiba"--Plaintiffs tenants could not challenge "Hiba" on ground that possession was not delivered to donee--Donor could have challenged gift and not the tenant or co-sharer--Donee had accepted the gift and had re-iterated the same in written statement and in her testimony before Court--Donor had deposed that she had gifted shop in favour of donee and that he had been receiving rent of the shop from plaintiffs/tenants and that alleged sale-deed in favour of plaintiffs was based upon fraud--Alleged sale-deed having been made after registration of gift-deed was void in presence of gift-deed.

[P. 1290] A & B

(ii) Muhammadan Law--

----Gift of undivided share (Musha)--Valid gift can be made of undivided share in property which was not capable of partition. [P. 1290] C

Mr. Muhammad Nazir Janjua, Advocate for Petitioners.

Mr. Saleem Akram Chaudhry, Advocate for Respondents.

Date of hearing : 27.1.2005.

Judgment

The plaintiffs/petitioners filed a suit on 6.12.1978 for declaration to effect that they were owners-in-possession of Shop No. 6/14-B, known as Punjab Medical Store situate in Sadar Bazar Mandi-Baha-ud-Din through a registered sale-deed dated 21.5.1974 and that the registered "Hibanama" dated 12.9.1974 regarding the suit shop was illegal and ineffective upon the rights of the plaintiffs and was liable to be cancelled. It was averred that one Shabbir Khan was the owner of the shop, after his death 1/4th share devolved upon his widow Mst. Sughran Bibi/Defendant No.1/Respondent No. 1. She sold her share to Plaintiffs 1 and 2 and Manzoor Ali (predecessor-in-interest of plaintiffs 3 to 8) vide registered sale-deed dated 21.5.1978. The registered "Hibanama" dated 12.9.1974 was illegal on the ground that the same was made during the pendency of a suit and that the possession of the shop had not been delivered and there was no declaration and acceptance of the gift. The suit was resisted denying all the allegations. It was alleged that the plaintiffs have no locus standi to challenge the "Hiba" and that the registered sale-deed in favour of the plaintiffs was based upon fraud and mispresentation and was also without consideration. The donor specifically stated that the "Hiba" was in accordance with law and she accepts the same.

Out of the pleadings of the parties following issues were framed:--

The learned trial Court after recording the evidence of the parties decreed the suit vide judgment dated 3.4.1979 and declared the gift-deed dated 12.9.1974 as void. The defendants/respondents preferred an appeal before the District Judge, Gurjat which came up for hearing before the learned Additional District Judge, Gurjat who vide his judgment dated 16.3.1980 allowed the same, reversed the judgment of the learned trial Court and dismissed the suit of the plaintiffs/petitioners.

1. Learned counsel for the petitioners contended that the possession of 1/4th share in the shop was not delivered to the donee, defendant/Respondent No. 2. It was still with the petitioners. Mst. Sughran Bibi has been receiving the rent of the shop from the petitioner till 17.1.1977. The gift in favour of Respondent No. 2 was incomplete. Learned counsel referred to Ext. P.10 in support of his contention. He further contended that Mst. Sughran Bibi appeared as D.W.3 and admitted in cross-examination that respondent was to pay Rs. 200/- per month during her life time failing which the "Hiba" shall stand cancelled. Learned counsel argued that since the gift stood revoked the sale-deed in favour of the plaintiffs was rightly registered. He also urged that the petitioners had filed a suit against the Respondent No. 1 in which the parties had reached a compromise and the suit was disposed of in terms of the compromise on 17.1.1977 vide Ex. P.3/1 According to the said agreement the Respondent No. 1 undertook not to alienate the share in the shop in favour of Respondent No. 2.

Conversely the learned counsel for the respondent submitted that the plaintiffs/petitioners had no locus standi to challenge the gift. Only Mst. Sughran Bibi could do so. She in the written statement filed by her accepted the gift and reiterated it. It was further stated in the written statement that the alleged sale-deed dated 21.5.1978, Ext. P.1 was based upon fraud and misrepresentation. The petitioners earlier claimed themselves as tenants as such could not challenge the "Hiba".

1. I have gone through the impugned judgments, perused the record and considered the arguments of the learned counsel for the parties. I tend to agree with the learned counsel for the respondent that the petitioners could not challenge the "Hiba" on the ground that the possession of the property was not delivered. It is for the donor to challenge the gift and not for the tenant or co-sharer. The defendant/respondent has accepted the gift deed and has reiterated the same in her written statement and in her testimony as D.W.3. The suit filed by donor/Defendant No. 1 against Defendant No. 2/Respondent No. 2 was withdrawn. The claim of the petitioners is that Mst. Sughran Bibi has been receiving the rent from them as her tenants till 17.1.1977. The delivery of the possession of the subject matter of the gift to be donee, either actually or constructively is necessary to complete a gift. The donor must divest herself completely of all the ownership and dominion over the subject of the gift. Para 152(2) of Chapter XI on gifts of Mahomedan Law by D.F. Mulla reads as under:--

"(2) Where property is in the Occupation of tenants.--A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee (f) or by delivery of the title deed or by mutation in the Revenue Register or the landlord's sherista (g). But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete (h)."

It is thus clear that mere request to the tenant to attorn to the donee or delivery of title deed or by mutation is sufficient Mst. Sughran Bibi, D.W.3 deposed that she gifted the suit shop in favour of Defendant No. 2, the donee and it has been receiving the rent of the shop and that the alleged sale in favour of the plaintiffs is based upon fraud. The alleged documents Ex. P.10 are only the receipts about sending the money order. There is nothing on the record to show that the same were received by Mst. Sughran Bibi, donor nor the said receipts have been proved according to the Law of Evidence. The alleged sale of share in shop in favour of petitioners vide sale-deed Ex. P.1 of which she was no more the owner, even if made by the defendant, in the presence of the "Hiba" deed, Ext. D. 1 is void.

As far as the contention of the learned counsel for the petitioner that the petitioners and Respondent No. 1 had reached a compromise, suffice to say that the "Hiba" was made on 21.5.1974 vide Ext. D.1. She was no more the owner of the said share as such could not make a statement on 17.1.1977 for not alienating her share in the shop in favour of Respondent No. 2.